j. the email addressed by Mr Wilson to Baker & McKenzie in mid-2008 (Exhibit "D11") seeking to engage in ongoing debate about the dispute between the parties that was supposedly settled "amicably" some years ago, and related to events over a decade old, manifests Mr Wilson's obsessive tendency of mind.
607 On 9 October 2006 the plaintiff obtained Freezing Orders against the defendants in an ex parte hearing in which the plaintiff relied upon: (A) a Commercial List Statement filed on that date, by paragraph C8 of which the plaintiff represented to the Court that a family structure of Mr Wilson was the ultimate beneficial shareholder in the plaintiff; and (B) an Affidavit sworn by Mr Wilson on 6 October 2006, in paragraphs 4 and 5 of which substantially the same representation was made. Those representations were inconsistent with: (C) clause 2.3 of the written agreement dated 7 December 2001 between Mr Emmott and the plaintiff (pursuant to which Mr Emmott had an entitlement to receive shares in the plaintiff), by virtue of clause 5.2 of which the plaintiff commenced the arbitral proceedings against Mr Emmott in London; and (D) the fact that on or about 20 February 2006 Mr Wilson had signed a certified copy of the Share Register of the plaintiff, bearing that date, to the effect that he personally owned 66.7% of the share capital of the plaintiff and Mr Emmott owned the balance of 33.3%. In paragraph C11 of its Amended Commercial List Statement filed 29 January 2007 the plaintiff deleted so much of the paragraph that had been numbered C8 in its Commercial List Statement as had alleged that a family structure of Mr Wilson was the ultimate beneficial shareholder in the plaintiff.
608 On or about 23 February 2008 Mr Wilson purportedly effected a re-organisation of the share capital of the plaintiff based upon a purported, undated Share Register of the plaintiff first discovered by the plaintiff to Mr Emmott in the arbitral proceedings in or about January 2009, recording two bearer shares as the only issued capital in the plaintiff. The "reorganisation" involved an exchange of the two bearer shares for shares registered in the name of Windsor Fine Arts Establishment (an entity registered in Lichtenstein, a jurisdiction not a party to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, known as "the New York Convention") and the issue of the remaining authorised capital in the plaintiff as shares registered in the name of Windsor Fine Arts Establishment. Documents relating to the "reorganisation" were not disclosed in the arbitral proceedings until the plaintiff was forced to make a disclosure pursuant to the Arbitrators' peremptory order dated 12 December 2008. The disclosure remains inadequate in that no documents evidencing the ownership of Windsor Fine Arts Establishment, Kazholdings Inc or Kazholdings Inc LLP have been disclosed in the arbitral proceedings or otherwise to the defendants.
609 On or about 21 September 2008 the plaintiff purportedly adopted "reconstructed accounts" for the years 2002-2006 inclusive by a certification bearing the date 21 September 2008 signed by Mr Wilson. In evidence given by Mr Wilson in the arbitral proceedings (at T. 3/119) he asserted that the "reconstruction" of the accounts was effected for the purpose of the arbitration and for the "Australian litigation", referring to these proceedings. The effect of the "reconstruction" was: to change the method of accounting from "partnership accounts" (treating Messrs Wilson and Emmott as partners, entitled to drawings) to "corporation accounts" (converting drawings to "directors loans"); to record an increase in expenses incurred by the plaintiff so as to reduce its profitability substantially; and to record an alleged indebtedness of the plaintiff to Kazholdings Incorporated (a company registered in the British Virgin Islands) for a substantial loan repayable on demand. The plaintiff objects in these proceedings to disclosure of documents relating to the financial circumstances of the plaintiff or documentation relating to ownership, control or financial circumstances of Kazholdings Incorporated.
610 Notwithstanding that on the public register of Steppe Cement Ltd the plaintiff is and has been since about 2004 recorded as a significant shareholder in the company (holding 13,407,852 shares or 8.71% of the 154,000,000 shares issued in the company as at 11 May 2009), an alleged deed dated 22 September 2004 discovered by the plaintiff during the hearing of the arbitral proceedings purports to show that the shares recorded in the public register of Steppe Cement Ltd as having been issued to the plaintiff were under the control of Kazholdings Incorporated. The deed was signed for Kazholdings Incorporated by Alexander Gusev (a person employed by the plaintiff as Mr Wilson's driver) and Dilyara Alimbayeva (a person employed by the plaintiff as Mr Wilson's office manager). It was signed by Mr Wilson and his wife Carol for the plaintiff. Notwithstanding that Mr Emmott was a director of the plaintiff at the time Deed was purportedly made, it was not disclosed to him until 25 September 2008 or thereabouts in the course of the arbitral proceedings. Nor was the fact that the plaintiff and Mr Wilson claimed that Mrs Wilson was a director of the plaintiff (that is, a co-director of Mr Wilson and Mr Emmott) at the time the Deed was purportedly made. In the arbitral proceedings evidence indicated that the Steppe Cement Ltd shares constituted the major asset of the plaintiff. In the course of those proceedings the plaintiff resisted orders designed to preserve 27% of the plaintiff's shareholding pending determination of Mr Emmott's claim to that property, asserting that the shares were held in a nominee account with HSBC Jersey. In the course of his evidence to the Arbitrators on 25 September 2008 Mr Wilson refused to disclose the whereabouts of the other 73% of the plaintiff's shareholding in Steppe Cement Ltd.
611 Only during the course of the hearing of the arbitral proceedings (at or about the time Mr Wilson served his first Witness Statement, Exhibit "MEW 21", dated 22 September 2008, in those proceedings) did the plaintiff first disclose to Mr Emmott the alleged existence of the putative deed dated 22 September 2004, a putative Loan Agreement dated 23 July 1998 (referred in clause 1 of the Deed) and a putative Charge dated 23 November 1998 (referred in clause 1 of the Deed as a "pledge" related to the Loan Agreement) between the plaintiff and Kazholdings Incorporated. Each of the Loan Agreement the Charge was ostensibly executed by Mr Wilson on behalf of the plaintiff and by his wife Mrs Carol A Wilson on behalf of Kazholdings Incorporated. The Deed was ostensibly executed by Alexander M Gusev and Dilyara Alimbayeva (employees of the plaintiff) as directors of Kazholdings Incorporated and by Mr and Mrs Wilson as directors of the plaintiff. By a letter dated 12 January 2009 addressed by the London solicitors of the plaintiff (Holman Fenwick Willan) to the solicitor of Mr Emmott (Michael Robinson), the plaintiff asserted that the Deed, the Loan Agreement and the Charge were authentic transactional documents. Nevertheless, the following factors suggest that they are a recent invention designed to obstruct, defeat or delay any attempt to enforce a judgment or order against the plaintiff: (A) the existence of the putative Deed and Mrs Wilson's alleged directorship of the plaintiff were not disclosed to Mr Emmott until belatedly during the course of the arbitral proceedings; (B) the effect of the documentation, in the context of the plaintiff's "reconstruction" of its accounts for the purpose of the arbitral proceedings and these NSW proceedings, is that the plaintiff is financially dependent upon Kazholdings Incorporated and possibly other entities that are, or might be, beyond the reach of ordinary court process and about which the plaintiff and Mr Wilson refuse to make disclosures in these proceedings; (C) the Charge describes the plaintiff as having a postcode (namely, "0500059") which was not in existence as at the date of the Charge (namely, 23 November 1998) or until December 2004; (D) the plaintiff did not exist as at the date of the putative Loan Agreement (namely, 23 July 1998) and, upon incorporation, it was not known by the name attributed to it in the putative Agreement as it was only incorporated on 17 August 1998 (with the name "Michael E Wilson & Co Ltd"), changing its name to "Michael Wilson & Partners Ltd" on 9 September 1998.
Ground 3: Improper Ex parte Applications
612 The proceedings are an abuse of the processes of the Court in that the plaintiff has obtained coercive orders against the defendants, on ex parte applications to the Court, without full or proper disclosure of facts bearing upon those applications.
613 On 9 October 2006 the plaintiff obtained Freezing Orders against the defendants in an ex parte hearing in which it represented (by paragraph C8 of a commercial list statement filed on that date and by paragraph 5 of an Affidavit sworn by Mr Wilson as a principal of the plaintiff on 6 October 2006) that a family structure of Mr Wilson was the ultimate beneficial shareholder of the plaintiff. It did not disclose to the Court that Mr Emmott (against whom the plaintiff alleged wrongdoing in which the defendants were alleged to have participated) was entitled to 33.3% of the shares in the plaintiff or that Mr Wilson had, on or about 20 February 2006, signed a certified copy of the Share Register of the plaintiff to the effect that the shareholders of the plaintiff were himself (as to 67.7%) and Mr Emmott (as to 33.3%).
614 On 9 October 2006, 26 March 2007, 12 April 2007 and 18 October 2007 the plaintiff obtained ex parte orders, relying upon evidence that the principal of the plaintiff (Mr Wilson) was a former partner of Baker & McKenzie, solicitors, without disclosing to the Court that: (A) whilst a partner of that firm, Mr Wilson had, on his own admission, engaged in "unethical activities" involving "ghost tenders" and overcharging; or (B) that the termination of his relationship with the firm occurred amidst allegations by the firm that he had engaged in further unethical activity.
615 On those same occasions the plaintiff obtained ex parte relief from the Court without disclosure to it that a report of Mr Wilson's unethical activities (characterised as fraud) whilst at Baker & McKenzie was published in The Almaty Herald (a newspaper circulating in Kazakhstan) in and about June and July 2005, and that a written admission of "unethical activities" by Mr Wilson dated 28 May 1997 was in the public domain in Kazakhstan from June or July 2005 or thereabouts.
616 On the same occasions the plaintiff obtained ex parte relief from the Court without disclosure to it that any contract of employment made between the plaintiff and the First and Second defendants respectively was made without disclosure of Mr Wilson's admission of engagement in unethical activities to either the First or the Second defendants.
617 In or about March and April 2007 the plaintiff obtained ex parte orders from the Court, granting leave to the plaintiff to use material obtained in these proceedings for the purposes of a criminal investigation overseas (in Switzerland), based upon a false assertion that the affairs of the plaintiff were managed by Mr Emmott.
618 In or about March, April, June and October 2007 the plaintiff obtained ex parte confidential orders from the Court to facilitate the making of a Criminal Complaint overseas without disclosing to the Court that the terms of the Complaint proposed to be made (and made) falsely asserted that Mr Emmott was the managing director of the plaintiff in Kazakhstan and misrepresented the terms of clauses 1.1, 2.1 and 2.2 of the Agreement dated 7 December 2001 (between Mr Emmott and the plaintiff) in aid of that assertion. In Exhibit "D19" see the expression "managing director" (in paragraph 2 on page 3; in paragraph 12 on page 7; in clauses 1.2 and 2.2 extracted on page 8; and in paragraph 17 on page 10) and the expression "full-time employed basis" (in the purported extract of clause 2.1 on page 8) and compare those expressions with the terms of clauses 1.1, 2.1 and 2.2 of the Agreement (Exhibit "D9" at Tab 18). The plaintiff induced the Court to maintain the confidentiality of orders made ex parte without disclosing to the Court the terms of the Complaint or discrepancies between those terms and the Agreement dated 7 December 2001. At no time since the Complaint was filed with the Swiss Prosecutor has the plaintiff brought that discrepancy to the attention of the Court or admitted it.
Ground 4: False and Misleading Statements
619 The proceedings are an abuse of the processes of the Court in that on 17 June 2009 Mr Wilson swore an Affidavit in these proceedings on behalf of the plaintiff in which he swore, inter alia, that: (i) Kazholdings Incorporated is not involved in these proceedings, either as a party "or otherwise"; (ii) the plaintiff is not and never has been a shareholder in Kazholdings Incorporated; (iii) the plaintiff does not have and has never had possession or custody of any documents "howsoever" relating to Kazholdings Incorporated; (iv) Mr Wilson is not a director, officer or shareholder of Kazholdings Incorporated; and (v) Mr Wilson does not have possession or custody of any documents relating to Kazholdings Inc. Those statements are false or misleading in that: (A) in evidence given by Mr Wilson in other proceedings (including paragraphs 98, 305, 354(3), 356(3), 365(3), 430(2), 431(5), 673 and 680 of the First Witness Statement of Mr Wilson, being Exhibit "MEW1" dated 22 September 2008, in the arbitral proceedings) he has made statements to the effect that Kazholdings Incorporated is, and has been throughout the life of the plaintiff a financier of the plaintiff and under the control of Mr Wilson; (B) by a letter dated 12 January 2009 addressed by the London solicitors of the plaintiff (Holman Fenwick Willan) to the solicitor of Mr Emmott (Michael Robinson) the plaintiff, expressly or by implication, asserted that the putative Deed dated 22 September 2004, the putative Loan Agreement dated 23 July 1998 and the putative Charge dated 23 November 1998 between the plaintiff and Kazholdings Incorporated were authentic; and (C) if authentic, those documents evidence a close and long association between the plaintiff and Kazholdings Incorporated.
Ground 5: Constraint of the defendants' Capacity to Defend the Proceedings
620 The proceedings are an abuse of the processes of the Court in that the plaintiff has sought in its conduct of these proceedings to constrain the defendants' capacity to defend the proceedings and to limit or interfere with the legal representation available to the defendants in the proceedings.
621 Between 18 October 2006 and 6 November 2006 or thereabouts the plaintiff (by letters dated 18 October 2006, 27 October 2006 and 3 November 2006 addressed by Clayton Utz to Blake Dawson Waldron) objected to the First defendant's representation in these proceedings by Blake Dawson Waldron. The objection was based upon representations by the plaintiff to Blake Dawson Waldron that: (A) Blake Dawson Waldron was once instructed by the plaintiff (as a client of Blake Dawson Waldron) to act for clients of the plaintiff in a particular matter relating to Emperor Mines Ltd; (B) in the course of that matter information confidential to the plaintiff was imparted to Blake Dawson Waldron; (C) the plaintiff proposed to amend its Commercial List Statement to include allegations of negligence against the First defendant (in contract and tort), including an allegation that, whilst in the employ of the plaintiff, the First defendant was negligent in handling the Emperor Mines matter; (D) several members of Blake Dawson Waldron would be required to give evidence in these proceedings material to the determination of the Emperor Mines negligence allegation; and (E) by reason of r.19 of the Revised Professional Conduct and Practice Rules 1995 (NSW), Blake Dawson Waldron was obliged to cease acting for the First defendant. In response to the plaintiff's objection, on 6 November 2006 Blake Dawson Waldron filed a Notice of Intention to Cease to Act. On 29 January 2007 the plaintiff filed (pursuant to leave granted on 8 December 2006) an Amended Commercial List Statement which incorporated, in paragraphs 75-80, allegations of negligence against the First defendant. Having secured Blake Dawson Waldron's withdrawal from the proceedings by a representation that it had been a client of that firm: (F) on or about 23 July 2007 the principal of the plaintiff (Mr Michael Wilson) swore an Affidavit in proceedings numbered 307 of 2006 in the Eastern Caribbean Supreme Court (in the High Court of Justice of the British Virgin Islands) in paragraph 11(d) of which he denied that the plaintiff owed any moneys to Blake Dawson Waldron in respect of the Emperor Mines matter because, he said, Blake Dawson Waldron had contracted directly with the clients and the plaintiff was not itself a client of Blake Dawson Waldron; and (G) on 26 November 2007 the plaintiff filed a Further Amended Summons and a Further Amended Commercial List Statement in which all allegations of negligence against the First defendant were abandoned.
622 On 12 June 2009 (the last working day before the commencement of a trial listed to commence on 15 June 2009) the plaintiff served on the defendants a Notice to Produce bearing that date demanding production of records relating to the defendants' retainer of solicitors and counsel. On the same date the solicitors for the defendants (Henry Davis York) notified the plaintiff's solicitors (Clayton Utz) that, in the contention of the defendants, the Notice to Produce was an abuse of process. On the morning of 15 June 2009 (shortly before the scheduled commencement of the trial) each of Henry Davis York and counsel retained in the proceedings on behalf of the defendants received a letter (Exhibit "D2") dated 12 June 2009 from the office of PriceWaterhouseCoopers in Almaty, Kazakhstan, (where Mr Wilson of the plaintiff is resident) requesting, under cover of an order apparently made in the British Virgin Islands proceedings on the application of the plaintiff, substantially the same information as demanded in the plaintiff's Notice to Produce.
623 On or about 17 June 2009 the plaintiff (by a facsimile transmission described as a "Fax Message" bearing that date and addressed to the Managing Director of Cheviot Asset Management Ltd and Cheviot Capital (Nominees) Ltd) intermeddled in a sale by the Second defendant of shares held by him in Roxi Petroleum Plc designed to obtain funds for transmission to the solicitors for the defendants (Henry Davis York), to be held in trust on account of costs and disbursements referable to these proceedings. Under cover of its Fax Message, the plaintiff provided to the addressee of the Fax an incomplete copy of Freezing Orders made in the proceedings, omitting to provide or refer to an order made by Bergin J on 20 October 2006 that provided for Freezing Orders to be continued on the basis that "each of the defendants is entitled to pay out of his assets all reasonable legal expenses and costs associated with his defence of these proceedings."
Ground 6: No Connection with Australia
624 The proceedings are an abuse of the processes of the Court in that the plaintiff has conducted these proceedings notwithstanding that it has no presence in Australia apart from the proceedings, no assets in Australia and no connection with Australia apart from the fact that its principal (Mr Wilson, a non-resident Australian citizen) is, or purports to be, an Australian lawyer. The undertakings as to damages given by the plaintiff in these proceedings in support of coercive orders obtained against the defendants are illusory to the extent that they are not, or might not be, supported by security ordered in favour of the defendants by the Court, bearing in mind that: (A) the "reconstructed accounts" of the plaintiff produced by the plaintiff at the hearing of the arbitral proceedings suggest that, during the course of these proceedings, the plaintiff has been trading whilst insolvent or near insolvency; (B) the putative Deed dated 22 September 2004, the putative Loan Agreement dated 23 July 1998 and the putative Charge dated 23 November 1998 made between the plaintiff and Kazholdings Incorporated suggest that, commercially, the affairs of the plaintiff can be dictated by Kazholdings Incorporated as a financier of the plaintiff entitled to a first charge over "all present and future assets" of the plaintiff and (C) the plaintiff and Mr Wilson refuse to make disclosures about ownership and control of Kazholdings Incorporated notwithstanding evidence given by Mr Wilson in the arbitral proceedings to the effect that he exercises control over Kazholdings Incorporated.
Ground 7: The plaintiff's Objections to Making Disclosures
625 The proceedings are an abuse of the processes of the Court insofar as the plaintiff has objected to making disclosures, in the course of these proceedings or in the course of the arbitral proceedings, about its financial circumstances or ownership and control of it.
Ground 8: Concealment of "Unethical Activities"
626 The proceedings are an abuse of the processes of the Court insofar as the plaintiff claims relief against the defendants referrable to obligations said to have been owed to the plaintiff by Mr Nicholls and Mr Slater as its employees in circumstances in which, prior to engagement of Messrs Nicholls and Slater respectively, the plaintiff concealed from them that its principal (Mr Wilson) had engaged in "unethical activities" whilst acting as a lawyer in Kazakhstan in partnership with Baker & McKenzie, thereby inducing each of Mr Nicholls and Mr Slater to undertake work for the plaintiff.
Dealing with the respective abuse of process contentions
627 It is trite that it is unnecessary for the Court to record in its reasons each and every piece of evidence adduced during the hearing. For that reason the rulings in relation to the respective abuse of process contentions are unable to be fairly shortly made.
Ground 1 Collateral, Improper Purposes
628 Notwithstanding the concerted efforts of the plaintiff and Mr Wilson to use many jurisdictions in the attempt to obtain freezing orders and similar against the defendants, nothing in the evidence before the court negates the proposition that they were perfectly entitled to so approach what they regarded as their litigious rights. To the extent, if at all, that the defendants are able, following the handing down of these reasons, to establish that in relation to any pleaded issue, the plaintiff stance taken during the hearing in ultimately not pursuing that issue, proves that the issue was pursued with an anterior motive, that matter may be the subject of argument in terms of costs. However that simply does not establish, [on its own or in conjunction with any of the other grounds put forward by the defendants] that these proceedings constitute an abuse of the process of this Court. Nor are any of the other claims pursued in ground 1 of substance or proved to the necessary level as to engage a finding of an abuse of process.
Ground 2 Vexatious and Oppressive Conduct of the proceedings
629 The circumstances in which the plaintiff was unable to join Mr Emmott in these proceedings are common ground. Mr Emmott was entitled to require that the plaintiff comply with the contractual rights provided for in the contract between these parties. He in fact did so: