26 In this case, as in Roussillon v Roussillon and as I understand it in Schibsby v Westenholz, recognition was not founded on the ground of allegiance or citizenship and the observation should be understood to be obiter dictum. However this view appears repeatedly in judgments on appeal given by judges of considerable reputation; such observations are not made lightly. It has been pointed out by text writers and elsewhere that direct authority for that proposition is not cited in any of these cases. I would add that allegiance or citizenship has not, in any event for some centuries, been a ground upon which English courts themselves have assumed jurisdiction.
27 Many text writers, so it would seem, have felt dissatisfied with this view. Their views were collected in the High Court of the Irish Republic in Rainford v Newell-Roberts [1962] IR 95 by President Davitt, who after careful consideration of the text writers as well as case law to which I referred and other case law, declined to act on that basis and to recognise a judgment which had been given in the United Kingdom against a citizen of the United Kingdom, but not based on service within the United Kingdom. In New South Wales in Federal Finance and Mortgage Ltd v Winternitz (unreported, 9 November 1989) Sully J acted on the basis which the English decisions support in recognising and enforcing a judgment given against a United States citizen in the State of Hawaii. His Honour did not refer to Rainford v Newell Roberts and based his decision principally on what he referred to as "the celebrated statement of principle" made by Lord Justice Buckley in Emanuel v Symon.
28 Notwithstanding the absence of citation in the English authorities of any case in which this ground of jurisdiction has been contested and upheld after argument, I am of the view that I should follow them. Ordinarily a decision of the Court of Appeal of England and Wales on a common law question not affected by statutory interpretation or constitutional or other considerations special to Australia ought be followed unless there is some sound basis for concluding that it was erroneous. Justice Sully has followed Emanuel v Symon. I must respectfully say that I have not found the judgment of Davitt P in Rainford v Newell-Roberts persuasive to any extent which would justify my not following the opinion repeatedly expressed in England. Notwithstanding the absence of authority specifically deciding the point, it seems to me very unlikely that these repeated statements were made without reliance on knowledge of practice decisions which may not have attracted a great deal of attention or found their way into law reports but were known to those distinguished judges.
29 In my view I should recognise and give effect to the money judgment in para 8 of Justice Peter Smith's orders of 1 July 2010.
30 Adoption of the declaratory orders and orders to account does not raise quite the same point when I am asked to recognise and make orders based on them. The order which I am now asked to make is "an order that an account be taken before an Associate Justice, on the basis of wilful default, of the dealings by the defendant his servants and agents with the £52,000,000 paid out of the Impacted Schemes referred to in Order 1 of the High Court of Justice, Chancery Division of 1 July 2010 and the traceable proceeds thereof".
31 If the declarations and order to account had been made by this Court and there had not been compliance, such an order would be made as a matter of course to give effect to the earlier decision. The English declaratory orders establish finally that there have been dishonest assistance and knowing receipt, and the interlocutory character of the order for the now defendant to give an account does not diminish the final character of those determinations.
32 Still, the orders do not have the concrete form of money judgments addressed in the authorities I have so far referred to. Rather this Court is asked to take up the controversy determined as far as it has been in England and take the next steps, as it were, in the same litigation.
33 Counsel have referred me to authorities which show that a Court of Equity will lend assistance to the enforcement of a foreign judgment also in a Court of Equity, without requiring as a prerequisite of enforcement here that the foreign order be made a judgment of the court here, but requiring that the court here be satisfied that there is a sufficient connection between the defendant and the jurisdiction in which the foreign order was made to justify recognition of the foreign court's order. The law was, in my view, satisfactorily restated in White v Verkouille [1990] 2 Qd R 191 by Justice McPherson. His Honour made a characteristically careful review of instances in case law where equity courts had acted in this way. The case law is derived, not altogether clearly, from the decision of the House of Lords in Houlditch v Marquis of Donegal (1834) 2 Cl & F 470; 6 ER 1232.
34 In effect Justice McPherson decided to recognise the appointment by a court in Nevada in the United States of a receiver and to allow that receiver to pursue enforcement in Queensland of rights determined by the court in Nevada.
35 The concept of a sufficient connection to justify recognition is not at all a well defined concept but I have no doubt that it is satisfied in the present case where the now defendant is usually to be found in New South Wales and has been able to conduct legal business here for a limited purpose while the substantial merits of the litigation have been determined fully and carefully in the United Kingdom, a country whose citizenship he claims, actually has and at times relied on. I regard it as appropriate to take up enforcement of the decision already reached.
36 In this view I am fortified by observations of Justice Campbell in Davis v Turning Properties Pty Ltd [2005] NSWSC 642 at para 35.
37 For these reasons I propose to make the order and to take up in this Court the exercise of taking an account on the basis of wilful default which the decision already reached in the High Court of Justice in England and Wales fully justifies.
38 I turn to address the calculation of the amount of the money judgment which should now be entered. I would like counsel's assistance on this.