Sharkey v Mayahi-Nissi (No 3)

The plaintiff, Mr Sharkey, commenced these proceedings against the defendant, his former partner, Ms Mayahi-Nissi. He claimed, among other things, that Ms Mayahi-Nissi held certain property on trust for him. Ms Mayahi-Nissi filed a cross-claim against Mr Sharkey. The proceedings were heard by Robb J on 16-20 February and 9 March 2015.

His Honour delivered judgment on 2 September 2015: Sharkey v Nissi [2015] NSWSC 1266. Mr Sharkey’s claim was dismissed. However, the proceedings continue before Robb J in relation to the assessment of damages to which his Honour held Ms Mayahi-Nissi was entitled from Mr Sharkey on her cross-claim.

This judgment deals with an application by Mr Sharkey in relation to events which occurred during the hearing in February 2015 before Robb J.

By amended notice of motion filed by leave on 23 March 2016, Mr Sharkey invokes the exceptional supervisory jurisdiction of the Court over its own officers to apply for orders that Ms Mayahi-Nissi’s legal representatives be restrained from continuing to act for her in these proceedings.

The firstnamed respondents to Mr Sharkey’s motion are five solicitors who trade as the firm Eakin McCaffery Cox (the “EMC Respondents”), although only two of them – Messrs Eakin and Doble – actually had anything to do with the matter. The secondnamed respondent is Mr J Hyde of Counsel. The third respondent is Ms Mayahi-Nissi.

By notice of motion filed in Court on 4 April 2016, the EMC Respondents pray for orders that certain correspondence and submissions prepared by Mr Sharkey’s solicitors and counsel in connection with his amended notice of motion should be removed from the Court file as scandalous or oppressive. The EMC Respondents also seek an order that Mr Sharkey’s amended notice of motion be summarily dismissed as against them.

During the course of the hearing before Robb J, Mr Hyde (on the instructions of Messrs Eakin and Doble) obtained an ex parte order on behalf of Ms Mayahi-Nissi on 18 February 2015 from McDougall J (sitting as Duty Judge) restraining Mr Sharkey from leaving Australia to return to the United States, where he was then living, and requiring him to deliver up his passport: Sharkey v Mayahi-Nissi [2015] NSWSC 104 (the “Restraint Judgment”). That application was initiated on the basis, in the first instance, of Mr Eakin’s perception that during the course of his opening before Robb J, Mr Sharkey’s counsel had informed the Court that Mr Sharkey would be leaving Australia immediately upon the conclusion of his cross-examination.

Whatever may have been the perception of Mr Eakin and subsequently others involved in the application to McDougall J, it proved to be incorrect. On 25 February 2015, after a contested hearing, McDougall J discharged the orders which he had made ex parte on 18 February 2015: Sharkey v Mayahi-Nissi No 2 [2015] NSWSC 132 (the “Discharge Judgment”). McDougall J ordered Ms Mayahi-Nissi to pay Mr Sharkey’s costs on the indemnity basis (a course which Mr Hyde did not submit anything against). Importantly for the purposes of the present application, in the Discharge Judgment McDougall J said:

The “relevant fact” was the allegation that Mr Sharkey intended to leave Australia immediately upon the conclusion of his cross-examination before Robb J.

In the period leading up to the hearing before me, a number of very serious allegations were made against the EMC Respondents and Mr Hyde both in correspondence from Mr Sharkey’s solicitors and in his counsel’s submissions. Most of those allegations were ultimately not pressed, although it was nevertheless vigorously contended that what had occurred before McDougall J was sufficiently serious to warrant the EMC Respondents and Mr Hyde being restrained from further involvement in the substantive proceedings.

The Court does not accept the submissions made on behalf of Mr Sharkey, even in the less inflammatory form in which they were ultimately pressed. The proper characterisation of what occurred is, with respect, accurately and appropriately captured by McDougall J in the Discharge Judgment quoted in paragraph [8] above. What occurred was regrettable. Nevertheless, the facts do not approach the level of seriousness that would warrant the extraordinary interference sought by Mr Sharkey in respect of Ms Mayahi-Nissi’s legal representation. Furthermore, the joinder of three of the EMC Respondents (being those other than Messrs Eakin and Doble) was misconceived. Mr Sharkey’s amended notice of motion will be dismissed with costs.

On the other hand, the EMC Respondents succeed on their motion. Where the allegations made in the relevant documents were very serious but ultimately not pursued, they will be sealed in the Court’s file as scandalous or oppressive pursuant to UCPR Part 4 Rule 4.15 in an envelope marked “not to be opened without further order of the Court”. Given the possibility of the matter going elsewhere, that is a more practical outcome than expunging them completely from the Court’s file.

At the hearing before me, Mr P E King of Counsel appeared for Mr Sharkey. Mr G Curtin of Senior Counsel appeared with Dr R P Austin of Counsel for the EMC Respondents. Mr D A McLure of Senior Counsel and Mr D F Villa of Counsel appeared for Mr Hyde. Mr T Lynch of Senior Counsel appeared for Ms Mayahi-Nissi.

The facts were not in dispute, not least because at the hearing before me (if not at the time of the subject events) transcripts of all the relevant hearings before the Court were available.

On 18 December 2014 Mr Sharkey made an application to the Court to take the evidence of four witnesses from the United State by videolink, none of whom included himself. The application was stood over to 2 February 2015 before Robb J.

On 23 January 2015 Mr Sharkey’s then solicitor, Mr Sperber, wrote to Mr Eakin, Mr Doble and their employed solicitor with the day to day carriage of the matter, Ms Beegum, informing them that arrangements had been made for the four United States witnesses to travel to Australia on the basis that their cross-examination would be confined to one day during the trial, being Tuesday, 17 February 2015.

On 27 January 2015 Mr Eakin responded to Mr Sperber, including (emphasis added):

On 30 January 2015, Mr A Fernon of Counsel, who was briefed for Mr Sharkey, emailed Robb J’s chambers and the other parties (emphasis added):

As will be seen, by the time of the hearing only three of those witnesses was required to come from the United States. However, the reduction from four to three contributed to the ensuing misunderstanding.

The hearing began before Robb J on Monday, 16 February 2015. Mr D L Cook of Counsel appeared for Ms Mayahi-Nissi. Page 1 of the transcript records Mr Fernon’s opening as including (emphasis added):

Mr Eakin was in court during Mr Fernon’s opening. While he was not an addressee of Mr Fernon’s email of 30 January 2015 (see paragraph [18] above) it had been copied to Ms Beegum and Mr Eakin was aware of its contents. In particular, he recalled while listening to Mr Fernon’s opening that the email referred to travel arrangements being made for four US based witnesses to return to the United States on a 2.30pm flight on Wednesday, 18 February 2015.

Mr Eakin’s evidence was that he took what he heard Mr Fernon say in opening, together with his recollection of what he knew about Mr Fernon’s email of 30 January 2015, to mean that Mr Sharkey was in all likelihood going to be flying out of Australia on a 2.30pm flight on Wednesday, 18 February with the three other witnesses, being his two brothers and his sister-in-law. He also thought that it was possible that Mr Sharkey might even fly out of Australia on Tuesday, 17 February 2015 if his evidence concluded earlier. Mr Eakin was cross-examined before me, but he adhered to his evidence and I accept it.

Mr Doble was not in Court for Mr Fernon’s opening. Sometime before 1.00pm Mr Eakin spoke to Mr Doble in person or by telephone. Topics they discussed included:

On the afternoon of Monday, 16 February 2015 both Mr Doble and Mr Eakin made inquiries concerning the availability of counsel to advise and perhaps conduct the application for orders to restrain Mr Sharkey. Either as a result of discussions between Mr Eakin and Mr Doble that afternoon, or certainly as a result of a conference the next morning (see paragraph [25] below), they had come to the view that any application should be brought before a judge other than Robb J. This was so that his Honour would not be put in a position where it could be said he had become prejudiced by reason of any findings he might have to make in dealing with the interlocutory application. Alternative counsel was required because Mr Cook was engaged in the main proceedings before Robb J.

Before court on the morning of Tuesday, 17 February 2015 Messrs Eakin and Doble conferred, with Mr Cook participating by telephone. They discussed the issue of making the application before a judge other than Robb J and the retainer of separate counsel. There was also discussion of the fact that Mr Sharkey had admitted in his defence to Ms Mayahi-Nissi’s cross-claim that if he was successful, he would have to do equity by repaying Ms Mayahi-Nissi what she had paid to discharge a mortgage taken out to secure a loan that had been made to Mr Sharkey. That understanding correctly reflected the relevant pleadings. During the conference Mr Doble also began doing some preliminary online research about what could be done. He identified an order in the nature of a writ which was subsequently referred to by McDougall J as the writ of ne exeat colonia. Furthermore, both Messrs Eakin and Doble had been instructed that Mr Sharkey had no assets in Australia likely to be able to satisfy any judgment debt that would be owed to Ms Mayahi-Nissi.

At the conclusion of the conference, Mr Eakin began drafting observations to counsel while Mr Doble continued to research the matter.

Mr Doble’s unchallenged evidence about the research he undertook was:

Mr Eakin then attended court between 10.00am and 12.15pm for the second day of the hearing before Robb J. He returned to his office and continued to draft the observations. At some point during the morning Ms Mayahi-Nissi gave instructions for an urgent application to be made to, as it was perceived at the time, protect her position in circumstances where her legal advisers understood from Mr Fernon’s opening that there was a possibility that Mr Sharkey would return to America at 2.30pm the next day.

Sometime between 11.00am and midday Mr Doble received and read a copy of the transcript of the hearing before Robb J of the day before. Mr Doble’s affidavit evidence before me in relation to his reading of the passage set out in paragraph [20] above was:

Mr Sharkey’s cross-examination began at 9.40am on Tuesday 17 February 2015. It continued all morning. The last few questions immediately before the luncheon adjournment were:

At the start of the luncheon adjournment around 1.00pm either Mr Cook or Ms Beegum rang Mr Eakin to inform him of the evidence referred to in the preceding paragraph. Mr Doble received a transcript of that evidence shortly before 6.00pm that evening and read it later that evening.

Immediately after speaking either to Mr Cook or Mr Beegum, Mr Eakin finalised his observations and emailed them to counsel at 1.40pm. At 2.49pm that counsel emailed Mr Eakin to say that the brief had been passed to Mr Hyde. Mr Hyde had been approached by his clerk, who had said that Eakin McCaffery Cox were urgently looking for a barrister to appear in an application before the Duty Judge the following day. Mr Hyde told his clerk that he (Mr Hyde) was available to appear.

Having learned that the brief had been passed to Mr Hyde, Mr Eakin then left Mr Doble to instruct in relation to the application so that Mr Eakin could continue to attend to the proceedings before Robb J.

Insofar as those proceedings were concerned, immediately after the luncheon adjournment the three United States witnesses were interposed. They had completed giving their evidence by 3.02pm, at which time Mr Sharkey’s cross-examination resumed and was quickly concluded. The proceedings were adjourned at about 3.10pm part heard to Wednesday, 18 February 2015, including for Mr Sharkey’s re-examination.

Later that afternoon, Mr Hyde received a telephone call from Mr Doble. Mr Doble gave Mr Hyde a brief explanation of the proceedings before Robb J and the proposed application to be made the next day as the Duty Judge.

Also later that afternoon Mr Hyde had a short telephone conversation with Mr Cook in which the latter gave Mr Hyde a brief outline of the case before Robb J and some explanation as to why it was necessary for separate counsel to appear on the application before the Duty Judge. Mr Cook said to Mr Hyde words to the effect “The application is urgent because we understand that Mr Sharkey will return to the US tomorrow after he finishes giving evidence”.

At about 5.16pm Mr Hyde received an email from Mr Doble attaching various documents for his brief, including two pages of observations prepared by Mr Eakin. Those observations included a statement that “Mr Sharkey will return to California immediately his evidence in the proceedings is completed. This is likely to be as early as this afternoon”. (The last sentence had clearly been overtaken by events.)

At 8.09pm Mr Hyde sent a draft outline of submissions to Mr Doble.

At 10.05pm Mr Doble sent an email to Ms Beegum asking “Can I have yesterday’s (Monday’s) transcript as soon as possible? (Marked up with the pertinent passages) Thanks”.

At 7.49am Ms Beegum sent an email to Mr Doble, copied to Mr Eakin saying:

At 7.58am Mr Doble emailed the marked-up transcript to Mr Hyde, saying “I will have clean copies of each transcript for Court”.

The marked-up transcript was in evidence before me. The highlighted sections included the passage from Mr Fernon’s opening set out in paragraph [20] above. The other highlighted passages related to evidence given by Mr Sharkey in cross-examination on the topic of asset planning, asset protection and discretionary trusts.

In relation to that part of Mr Fernon’s opening which is set out in paragraph [20] above, Mr Hyde’s affidavit evidence before me was:

At 8.30am Mr Hyde emailed his draft submissions to Mr Cook, copied to Mr Doble under cover of an email saying “Attached are my written submissions. Is there anything I have omitted or overstated or something you think I should add?”. He did not receive a response to that email from either Mr Cook or Mr Doble. Nor did Mr Doble suggest to Mr Hyde that there was anything in the submissions that was incorrect or required qualification when they met outside McDougall J’s court at approximately 10.00am. Unbeknown to Mr Hyde, his email to Mr Cook had bounced.

The proceedings before Robb J recommenced at 10.00am. The re‑examination of Mr Sharkey commenced at 10.30am and was concluded within 10 minutes.

In the meantime, Mr Hyde appeared in the Duty List before McDougall J. His Honour heard the application later that morning.

The transcript of the hearing before McDougall J includes this exchange:

Ms Mahayi-Nissi’s notice of motion (the “Restraint Motion”) sought these orders:

McDougall J read Mr Hyde’s outline of submissions. That outline included:

Mr Hyde then took McDougall J through the court book which had been provided to his Honour. The transcript of the hearing before McDougall J includes:

The transcript quoted in the preceding paragraph reveals one matter of considerable significance for the application before me. McDougall J is, with the greatest of respect, one of the most senior and experienced commercial judges in this Court. His Honour was taken to the relevant part of Mr Fernon’s opening and did not demur from the characterisation of that opening ascribed to it in paragraph 9 of Mr Hyde’s outline of submissions (see paragraph [49] above).

His Honour proceeded to deliver the Restraint Judgment ex tempore, which included (emphases added):

The formal orders giving effect to his Honour’s reasons issued at 11.40am. They included:

Having obtained McDougall J’s order at 11.40am, Mr Eakin proceeded to serve Mr Sharkey immediately with a copy of that order. That service was effected in the precincts of Robb J’s court during the morning tea adjournment of the proceedings before Robb J. Mr Sharkey’s case before his Honour had closed shortly before that adjournment.

The transcript of the proceedings before Robb J discloses that after the short adjournment Mr Fernon made an application to adjourn the proceedings, noting that Mr Sharkey had just been served with McDougall J’s orders and the application before McDougall J had been stood down before his Honour until 2.00pm. Mr Cook suggested that Robb J adjourn the proceedings to 3.00pm. In acceding to that application, this exchange ensued between Robb J and Mr Cook:

At 12.45pm Mr Sperber emailed Mr Doble:

At 2.00pm the Restraint Motion was mentioned again before McDougall J. Mr Fernon now appeared for Mr Sharkey. Mr Hyde appeared for Ms Mayahi-Nissi. Mr Fernon submitted that the Restraint Motion could be dealt with by Robb J. There was then an exchange between McDougall J and Mr Hyde:

The parties then debated before his Honour some aspects of the terms of the orders that had been made. The transcript finally records:

The proceedings then returned to Robb J. Mr Fernon began by saying to his Honour:

Mr Fernon then went on to submit to Robb J that his Honour should deal with the Restraint Motion. In doing so, Mr Fernon said (emphasis added):

Mr Fernon then delivered up Mr Sharkey’s passport to his Honour. Just before doing so, Mr Fernon made this submission (emphasis added):

There then followed an extensive exchange between Robb J and Mr Fernon about the desirability of Robb J dealing with the Restraint Motion. His Honour summarised the position to which he had come:

One of the matters which was discussed between counsel and his Honour was the potential impact on the ability of the proceedings before Robb J to be concluded within the time allotted (by Friday, 20 February 2015) if the parties were diverted by having to argue the merits of the Restraint Motion on a contested basis. That issue resulted in the following exchange just before his Honour adjourned for the day:

Robb J adjourned the proceedings part heard to Thursday, 19 February 2015.

By email sent at 5.57pm to the Associate to Robb J and copied to the parties, Mr Fernon informed the Associate:

For the purposes of the present application, it is important to note that while those representing Mr Sharkey disputed the basis on which McDougall J’s orders had been made (see, in particular, paragraph [60] above), no application was made that afternoon for the immediate discharge of the orders. The reason for that is apparent from the transcript of the proceedings before Robb J, namely that there was a real question as to whether or not his Honour should hear such an application both as a matter of principle and in circumstances where the parties accepted the practical difficulty that it would jeopardise the main proceedings being completed in the time allotted.

When the proceedings resumed before Robb J on the morning of Thursday, 19 February 2105, Mr Fernon did make an application to discharge the orders made by McDougall J on the basis of a material non-disclosure and misstatement to his Honour. Notwithstanding his email of the previous evening (see paragraph [65] above), Mr Fernon made his application on the basis of something which had only become more apparent to him that morning in relation to how his opening had been understood.

Mr Fernon foreshadowed that there were two bases for his application. The first was to remind his Honour of what he had said in his opening regarding the witnesses to which McDougall had been taken (see paragraph [20] above). Mr Fernon went on to submit to Robb J (emphasis added):

As the last paragraph of transcript extracted in the previous paragraph records, the second basis of the application was the non-disclosure to the Court of Mr Fernon’s email of 30 January 2015 recording the arrangement that had been reached between the parties about the United States witnesses (see paragraph [18] above). In relation to this it should be noted that there is, and can be, no suggestion that Mr Hyde had been briefed or knew of that email.

Having heard Mr Fernon, Robb J said (emphases added):

Pausing for a moment in the narrative, it is the words italicised in the transcript set out in the previous paragraph which Mr King forcefully submitted created what he described as the locus poenitentiae for the respondents to the present application. The Court understands his submission to be that at that point the respondents (including Mr Hyde) should have immediately conceded that the application had been ill-founded and that the orders made by McDougall J should have there and then been revoked.

His Honour gave the parties the opportunity of a short adjournment for an inquiry to be made of McDougall J as to when McDougall J could hear Mr Sharkey’s application to set aside the orders. After a short adjournment, the transcript records Mr Fernon telling Robb J:

Robb J then immediately continued to hear the main proceedings. The orders which Robb J made by consent stood over the Restraint Motion subject to any further orders McDougall J might make – of which there were none and there is no evidence that any were sought - to McDougall J on the following Wednesday, 25 February 2015. That date, as appears from the transcript in the preceding paragraph had initially been propounded to suit Mr Fernon’s convenience and Mr Hyde’s availability on that day was subsequently confirmed before Robb J made the orders.

At some point after Robb J made the orders by consent fixing Mr Sharkey’s discharge application before McDougall J on the following Wednesday, but when exactly the evidence does not disclose, Ms Mayahi-Nissi instructed her lawyers to oppose McDougall J’s orders being set aside.

On the fifth day of the hearing before Robb J, the evidence concluded. His Honour made directions for the exchange of closing submissions and adjourned the hearing to 9 March 2015.

McDougall J heard Mr Sharkey’s application to discharge the ex parte orders his Honour had made on 18 February 2015. Mr Fernon appeared for Mr Sharkey and Mr Hyde appeared for Ms Mayahi-Nissi.

Mr Fernon’s submissions raised the matters which he had foreshadowed to Robb J (see paragraph [68] above), namely the incorrect interpretation of what he (Mr Fernon) had said in his opening and the non-disclosure of the email of 30 January 2015. Mr Fernon also challenged the jurisdictional basis on which the order had been made.

As the argument fell out, his Honour expressed the view that it was not going to be necessary for him “to look too long at the jurisdictional basis”. Mr Hyde then sought to deal with the allegation of non-disclosure and this exchange ensued:

There was also a further exchange:

His Honour then delivered the Discharge Judgment ex tempore. That judgment included:

It is notable for the purposes of assessing the present application (see paragraph [150(3)] below) that while an indemnity costs order was made (and not resisted), no application was made on behalf of Mr Sharkey that the relevant lawyers pay those costs personally.

The transcript of the ex parte hearing before McDougall J became available to the parties later on the same day after the Discharge Judgment had been delivered. After receiving that transcript Mr Hyde wrote on the same day to the Associate to McDougall J:

That evening, Mr Sharkey attempted to leave Australia. He was detained at the airport by immigration as a result of the ex parte order that had been made by McDougall J. He was delayed, and nearly missed his plane, until a copy of the discharge order was provided to the authorities. While Mr Sharkey was ultimately allowed to leave and caught his scheduled (albeit delayed) flight, his luggage was lost for about 30 days. Mr Sharkey, understandably, found those events to be humiliating and distressing.

Robb J delivered judgment in the substantive proceedings on 2 September 2015. As at the date of these reasons the substantive proceedings continue before his Honour on the question of damages owing by Mr Sharkey to Ms Mayahi-Nissi pursuant to her cross-claim.

On 29 September 2015 Mr Sharkey filed and served a notice of intention to appeal from Robb J’s dismissal of his claim. A notice of appeal was filed on 3 December 2015. The filing of the notice of intention to appeal and subsequent notice of appeal ultimately came to be acknowledged as being misconceived and the purported appeal was discontinued by notice filed on 17 February 2016.

However, on 23 October 2015 (four weeks after the notice of intention to appeal was filed), Mr Sharkey’s new solicitors (Bransgroves Lawyers) wrote to Mr Doble (the “Bransgroves Letter”). That letter set out the basis of what became the present application and is further considered in paragraphs [162] to [164] below. It concluded:

By letter dated 12 November 2015 Mr Sharkey’s solicitors informed the EMC Respondents that a motion to disqualify them and Mr Hyde would be filed with their client’s Notice of Appeal. While the Notice of Appeal was filed on 3 December 2015 (see paragraph [85] above), it was not until 26 February 2016 that the notice of motion commencing the present application was filed. The amended notice of motion on which Mr Sharkey moves was filed in Court by leave on 23 March 2016.

Mr Hyde was briefed solely in relation to the application made to McDougall J. He has had no involvement in any other aspect of the matter and currently does not hold a brief in the matter. Mr Lynch SC informed me that it was “unlikely” that Mr Hyde would be retained in the matter again.

Through his affidavit sworn on 30 March 2016, Mr Doble informed the Court that “without making any admissions on this application or in the proceedings, my Firm has decided that, going forward, I will not be further involved with this case.” That position was formalised while this judgment was reserved by the filing of a notice of change of solicitor on 7 April 2016 notifying that Ms Mayahi-Nissi has appointed Ms Jennifer Shaw of Eakin McCaffery Cox to act as her solicitor in the substantive proceedings in the place of Mr Doble.

Mr Sharkey’s amended notice of motion invites the Court to exercise its inherent jurisdiction identified by Brereton J in Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561 (“Kallinicos”). In an extensive consideration of the authorities, Brereton J identified three bases on which the Court would intervene to restrain a legal practitioner from acting for a particular client:

His Honour summarised the current law (citations omitted):

Mr King accepted that his client’s application was to be determined by the application of the principles set out in the last four dot points of Brereton J’s summary reproduced in the preceding paragraph. In particular, a number of Mr King’s submissions were directed to the example of a case noted by Brereton J in Kallinicos:

Mr King, as part of his argument, invited the Court to conclude that on the basis of the conduct of those involved in the application to McDougall J, the Court could not be satisfied they had the independence and objectivity which they would otherwise be presumed to have so that the integrity of the judicial process was undermined.

By the time Mr Sharkey’s amended notice of motion came on for hearing before me, the parties had been conducting their preparation for the hearing by reference to the allegations in the Bransgroves Letter and, once they were provided, the Submissions. However, a matter of considerable concern to the Court during the course of the hearing, given the seriousness of the allegations, was the need for precision on the part of Mr Sharkey as to the nature of the case being made against each respondent.

While the circumstances in which the Court’s inherent jurisdiction to control its officers will be exercised it is not to be confined to particular circumstances, where that jurisdiction is invoked by reference to allegations of misleading conduct, misconduct and the like, precision in the case is required so the respondents know exactly what it is they have to answer and the Court understands what findings of fact it is being invited to make, including the extent to which the statutory enactment of the principle in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 in s 142 of the Evidence Act 1995 (NSW) may need to be applied. For example, was the conduct which is now criticised innocent, deliberate, fraudulent, reckless or negligent? Where a respondent’s knowledge is relevant, is it alleged that the respondent had actual knowledge of something or that, while they did not actually know, they ought to have known?

In an endeavour to dispel any doubt about exactly how Mr Sharkey’s case was put, immediately after the luncheon adjournment on the first day of the hearing the Court invited Mr King to prepare a schedule setting out exactly what the findings of fact were that his client submitted the Court should make and against whom, which, taken individually or together, justified the relief sought by Mr Sharkey in his amended notice of motion. That document was provided the next day and was ultimately entitled “Revised List of Applicant’s Proposed Findings”. It became Exhibit 8P in the application (the “Revised List”).

Almost at the end of his final submissions, Mr King and I had the following exchange (T123: 24-47):

The matter in relation to Mr Hyde was that, for reasons which it is unnecessary for me to record, it was submitted that Mr Hyde could not obtain any forensic advantage from the fact that he had not been cross-examined before me. Mr King also submitted that the application against Mr Hyde should be decided against the background of an undertaking which had been sought from Mr Hyde’s representatives during the morning of the first day of the hearing before me that Mr Hyde take no further part in the substantive proceedings, which undertaking Mr Hyde had declined to give.

Furthermore, during the course of the hearing Mr King helpfully clarified his client’s submissions in certain respects:

Accordingly, the Court will approach Mr Sharkey’s amended notice of motion by reference to the Revised List, understood, insofar as it might be necessary, by reference to the matters set out in the preceding paragraph.

Without intending any disrespect to the respondents’ careful submissions (and ignoring that each respondent’s submission was tailored to his or her interests), the totality of the respondents’ submissions in answer to Mr Sharkey’s amended notice of motion may be summarised as:

Three matters relied upon by Mr Sharkey may be disposed of at the outset.

First, the Court does not accept that any valid criticism can be made of the respondents for not providing McDougall J at the ex parte hearing with a copy of Mr Fernon’s email of 30 January 2015 (see paragraph [18] above). As McDougall J noted in paragraph [10] of the Discharge Judgment, there was no need to do so because that email did not say anything about the intended movements of Mr Sharkey. Putting that email into its context at the time of the relevant events (and without suggesting any criticism of him), it appears that even Mr Fernon had to be reminded by his solicitors of its existence (see paragraph [68] above) when he addressed Robb J the morning after the ex parte orders had been made.

Quite apart from the conclusion reached in the preceding paragraph, Mr Hyde has a further and complete answer to this part of Mr Sharkey’s complaint. That answer is that there is no suggestion that Mr Hyde knew of the existence of that email. His evidence is that he did not know of it at the time of the ex parte application. The Court finds that he was unaware of the existence of that email at any time up to and including when the ex parte application was made

Second, the Court does not accept that any valid criticism could be made of the respondents by reason of the fact that the application to McDougall J was made ex parte. It was an urgent application of a kind frequently made ex parte given it invoked the Court’s jurisdiction to make an asset freezing order. Inevitably, a judge sitting in a busy duty list will give consideration to whether or not a matter presented as an ex parte matter should be permitted to proceed in that manner. McDougall J, by entertaining the application, appears to have accepted that it was a proper matter for an ex parte application.

Insofar as the reason for urgency depended upon what Mr Fernon had said in his opening (see paragraph [20] above), while the respondents’ understanding of what had been said (including as recorded in the transcript) was ultimately shown to be in error, the Court is satisfied that the understanding of Messrs Eakin, Doble and Hyde was genuinely and innocently held and not attributable to recklessness or negligence. The Court accepts that, in the heat of the moment, Mr Eakin thought he heard what he did during Mr Fernon’s opening and that, with that mindset, the transcript could be read in the way it was.

Third, the Court does not accept that any criticism can properly be made of the respondents for the fact that the ex parte application was made to a judge other than Robb J. For precisely the reasons articulated in Mr Hyde’s submissions (see paragraph [49] above), the matters identified by Robb J as being of concern to him (see paragraphs [62] and [70] above) and as accepted by McDougall J in paragraph [14] of the Restraint Judgment, the Court concludes that it was proper and appropriate for the ex parte application to be made to a judge other than Robb J, who was then the part heard trial judge.

In paragraph 15 of the Revised List, Mr King submits that “no satisfactory explanation has been provided to the Court on the following key issues by the respondents”. The Court will consider each of those “key issues” in turn.

The evidence is clear that Mr Eakin was in Court, but not Mr Doble, to hear Mr Fernon’s opening. The Court accepts Mr Eakin’s explanation of what occurred (see paragraph [22] above) as inherently credible and truthful. It is, regrettably, an all too common experience for solicitors, counsel and even judges to think they heard something said in court which is ultimately not borne out by the transcript (assuming that the transcript is not itself in error). Context and preconceptions brought about by which side of the record someone is representing can have a powerful influence on the way something said in court may be heard. Different people will hear different things. Furthermore, particularly in circumstances of urgency, one person’s account of what they heard if given to another may create a predisposition in that other to read the transcript in a particular way. That is what occurred in this case.

Mr Eakin has explained how he arrived at his interpretation of what Mr Fernon said in opening. He told Mr Doble. Mr Doble naturally accepted what Mr Eakin said and his perception of the transcript, along with that of Mr Hyde and, finally, McDougall J was coloured by the assertion (ultimately demonstrated to be wrong) that Mr Fernon had said Mr Sharkey would be leaving at the conclusion of his evidence. The Court is satisfied that the respondents’ interpretation of what Mr Fernon said (and as subsequently set out in the transcript) was innocently arrived at and maintained by Messrs Eakin, Doble and Hyde up to and including the time of the ex parte application before McDougall J. Nothing in those events as the Court has found them to be warrants the exercise of the exceptional jurisdiction invoked by Mr Sharkey.

The Court adheres to the view expressed in paragraph [107] above that no criticism is to be made for the matter not having been raised before Robb J or the matter proceeding ex parte before another judge.

Given that the application of McDougall J was premised upon what the Court is satisfied was an innocently held wrong belief of a risk of imminent flight by Mr Sharkey, that is and of itself sufficient explanation as to why no attempt was made to raise the matter with Mr Fernon or Mr Sharkey’s lawyers. It is in the nature of asset freezing orders and ancillary orders that they will often have to be made in urgent circumstances where, at least as far as the applicant for the orders is concerned, forewarning the respondent to those orders (or that person’s legal advisers) may defeat the purpose of the orders themselves.

The Court does not understand any of the respondents to be “blaming” Mr Fernon for the application that was made to McDougall J.

The “ready answer” referred to in the issue is what Robb J said which is reproduced in paragraph [70] above.

The Court has already accepted (see paragraph [107] above) that it was appropriate not to have raised with Robb J the matters which informed the ex parte application to McDougall J. Accordingly, Mr Eakin’s and Mr Doble’s concern that Robb J not be compromised by the issue being raised is a sufficient answer to this criticism. Furthermore, it cannot be relevant to Mr Sharkey’s application as against Mr Hyde because the latter was not briefed in the substantive proceedings before Robb J.

Rule 19 of the New South Wales Professional Conduct Practice Rules 2013 (Solicitor’s Rules) falls within the section headed “Advocacy and Litigation” and the subheading “Frankness in Court”. The rule includes (emphasis added):

Mr Sharkey’s criticism here is misconceived because neither Mr Eakin nor Mr Doble had made any statement to McDougall J (or, for that matter, to Robb J). Nor, if it applied would rule 19 require Messrs Eakin and Doble to do anything more than correct the allegedly misleading statement. That is not to say, however, that the correction of a misleading statement made on an ex parte application will not then have the consequence of an ex parte order being set aside (including by the Court of its own motion).

Quite apart from the application of rule 19, if this complaint is to be understood as raising the question as to why no steps were taken to set aside the order upon Robb J saying what he did (see paragraph [70] above), then the answer is in the sequence of events. It is sufficient to draw attention to two matters.

First, Robb J’s “response to the factual basis of the orders” was made in the course of an application by Mr Fernon that McDougall J’s orders be discharged (see paragraph [67] above). There was nothing for the respondents to do because Mr Sharkey, by his Counsel, was taking steps to set aside the order including on the express basis that there had been a misunderstanding of what Mr Fernon had said in opening.

Second, Robb J’s observation (see paragraph [70] above) concluded with “Whether any of this information could cause the judge who made the orders to revoke any of them or to make some sort of alternative arrangement for hearing the matter I think is a matter for McDougall J”. That is ultimately what occurred. Given that indication it was inappropriate for the respondents to do any more before Robb J.

Finally, the Court notes that this aspect of Mr Sharkey’s complaint is not couched in terms as being against Mr Hyde. Nor could it be. Mr Hyde was not in Court when Robb J made his observations. No sensible criticism can be made of Mr Hyde in relation to his subsequent conduct. He acted in accordance with his instructions to resist the discharge of McDougall J’s orders but did not cross-examine Mr Sharkey or otherwise submit contrary to the position that had by then emerged as to the proper construction of what Mr Fernon had said in opening.

The relevant parts of this letter are set out in paragraph [56] above.

This complaint can only relate to Mr Doble, to whom the email was sent. There is no suggestion that it was seen by Mr Eakin.

Although he had no independent recollection of it, Mr Doble accepted he would have seen the emailed letter. He had no recollection of whether or not he had replied to it. No reply was produced in answer to a call by Mr King. The Court finds that there was no reply.

The difficulty for Mr Sharkey on this point is that while the email was sent at 1245pm on 18 February 2015 there is no evidence whether it actually came to Mr Doble’s attention at a time when a response would have been called for. Given the press of events, including the fact that the matter was back before McDougall J at 2.00pm and then returned to Robb J (see paragraphs [57] to [64] above), the Court is not satisfied that the failure to respond to the email is sufficient to found any criticism of Mr Doble when it is clear that the letter was rapidly superseded by events, not least because the matters raised in it were ventilated between the parties in the subsequent court appearances that day.

In any event, in and of itself a failure to respond to that email would be insufficient to justify the Court’s exercise of the jurisdiction invoked by Mr Sharkey in his amended notice of motion.

The Revised List also invites the Court to make certain findings about breaches of the duty of candour and misleading the Court.

Three matters are raised in relation to the duty of candour.

It is first suggested that the EMC Respondents failed to disclose to the Court at the time of the ex parte application to McDougall J that there was no evidence that Mr Sharkey had any intention to abscond from the jurisdiction on completion of his evidence. It is correct to say that the EMC Respondents failed to make that disclosure. However, there was no breach of any duty of candour where the Court is satisfied that Mr Doble and Mr Eakin, innocently and subjectively, believed there to be such evidence, namely what they understood Mr Fernon to have said in opening and was then recorded in the transcript.

Next it is suggested that all of the respondents failed to disclose to the Court “that there was any evidence that the applicant had the intention of never returning to Australia”. The Court assumes this should read “not any evidence”. The allegation is misconceived because the application to McDougall J was not made on the basis that Mr Sharkey would never return to Australia but rather, referring to Mr Sharkey’s own evidence before Robb J, that he had no immediate intention of returning to Australia and not earlier than two years (see paragraph 12 of Mr Hyde’s submissions set out in paragraph [49] above).

Third, it is suggested that the respondents failed to disclose to McDougall J that Mr Sharkey did have assets within the jurisdiction, namely his chose in action which was his primary claim in respect of the relevant property. However, the existence of the property and the claim was disclosed to, and taken into account by, McDougall J. His Honour said in the Restraint Judgment:

The balance of Mr Sharkey’s submissions in relation to the alleged breaches of the duty of candour cannot succeed because the Court has not accepted the three fundamental matters on which the alleged breaches are based (see paragraphs [103] to [107] above). Furthermore, having regard to the seriousness of the allegations made (see s 142 of the Evidence Act 1995 (NSW)) the Court is not satisfied that the respondents’ conduct was anything more or less than the product of innocent error. The more sinister explanations advanced by Mr Sharkey are not made out.

The findings sought in relation to the allegation of “misleading the Court” squarely bring Mr Hyde into their scope along with the EMC Respondents. It was submitted that Mr Hyde and, through him, the EMC Respondents, wrongly represented to the Court both that it had jurisdiction to make orders in the nature of a writ of ne exeat colonia and that the orders sought were “ancillary” orders under UCPR Part 25, r 25.14.

It is a very serious matter to suggest that counsel or solicitors misled the Court. In relation to either a submission of fact or law, a court could be misled innocently or deliberately. An example of being innocently misled, whether through genuine inadvertence or incompetence, might be a submission that a court had a particular power under a statute which had, in fact, been repealed. To develop that example further, it would be a case of being deliberately misled if counsel or the solicitors in fact knew of the repeal of the relevant legislation.

Mr King properly eschewed any suggestion that he was inviting the Court to find that Mr Hyde positively knew that what he was submitting to McDougall J about the Court’s jurisdiction was wrong (see paragraph [99(2)] above). Mr King was right to make that point clear, as there is absolutely no evidence that could have supported such a submission. While the same qualification was not expressly made in relation to the EMC Respondents, the same conclusion follows because there is no suggestion that either Mr Eakin or Mr Doble actually knew or even believed that the Court did not have the requisite jurisdiction. On the contrary, Mr Doble had undertaken research which satisfied him there was a basis for the orders sought (see paragraph [27] above).

Mr Sharkey’s case on this point therefore turns on the Court being satisfied that, as a matter of law, the Court does not have the power to make the orders made by McDougall J and that, innocently, the contrary submission was put by Mr Hyde. Even if that were the case, the Court is well satisfied that it would not be sufficient to warrant the EMC Respondents and Mr Hyde being prevented from continuing to represent Ms Mahayi-Nissi. That must especially be the case where, as here, it has not been suggested on Mr Sharkey’s behalf that no counsel or solicitor acting reasonably could have responsibly made the relevant submissions to McDougall J.

Mr Hyde and the EMC Respondents sought to meet this allegation head on by seeking to persuade the Court that it clearly did, as a matter of law, have the power to make the orders which were made ex parte by McDougall J. It does not seem to me to me to be necessary or (in the context of an application of this kind) desirable for the Court to come to a final view on this question and the Court expressly refrains from doing so. However, it is a sufficient answer to Mr Sharkey’s complaint if the Court is satisfied that it was reasonably open for Mr Hyde to submit to McDougall J that his Honour had the necessary power. Counsel cannot be criticised for putting any submission that was reasonably open to be put. The Court has no difficulty in concluding that it was strongly arguable that his Honour had the requisite power on the basis of the following three arguments put on behalf of Mr Hyde and the EMC Respondents.

First, the Court has statutory jurisdiction to grant relief by way of order (rather than writ) to the same effect as the writ of ne exeat colonia and for delivery up of the passport: Supreme Court Act, 1970 (NSW), s 69(1) applying the principles set out in Glover v Walters [1950] HCA 1; (1950) 80 CLR 72; see also Danieletto v Khera, SCNSW, unreported, Bryson J, 17 February 1995, BC9504240; Cardile v Led Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380 at [39] (“Cardile”).

Second, noting that the Restraint Motion sought orders for the payment in or securing of an amount of $547,090 (see paragraph [48] above), the Court had inherent jurisdiction also to make the order in the nature of ne exeat colonia and for delivery up of the passport to prevent abuse of its own processes including the frustration of any potential judgment. That jurisdiction was confirmed by Supreme Court Act 1970, s 23, continued by Civil Procedure Act 2005 (NSW), s 5(1); see Jackson v Sterling Industries Limited (1987) 162 CLR 613 at 623 per Deane J (“Jackson”); Cardile at [26]; Bayer AG v Winter [1986] 1 WLR 497; [1986] 1 AllER 733; Talacko v Talacko (No 2) [2009] VSC 444; (2009) 25 VR 613 at [46].

Payment into court can be ordered as ancillary to Mareva or asset freezing type relief: Jackson at [625]; Millennium Federation Pty Ltd v Bigjig Pty Ltd [1998] QCA 432; [2000] 1 QdR 275 at [14]-[15]; Sleiman v Afeich [2005] NSWSC 1063.

Third, the Court’s power can be found in UCPR Part 25, r 25.14. Order 5 sought in the Restraint Motion, which prayed for the deposit of money into a trust account, satisfies the definition of a freezing order under r 25.11(1). The orders in the nature of the writ of ne exeat colonia and for the delivery up of the passport fell within the definition of an ancillary order in r 25.12(1) to a freezing order or prospective freezing order. In any event, the orders could be made as freezing orders or ancillary orders if the Court considered it “in the interests of justice to do so” pursuant to r 25.14(6).

In reaching the conclusion set out in paragraph [137] above, the Court does not overlook that, because it was an ex parte application, Mr Hyde was under an obligation under Rules 29 (a) and (c) of the NSW Barristers’ Rules to disclose to the Court any “legal matters which are within the barrister’s knowledge… and the barrister has reasonable grounds to believe would support an argument against granting the relief or limiting its terms adversely to the client”. While Mr King submits in the Revised List that Mr Hyde was wrong to submit to McDougall J that the Court had jurisdiction to make an order in the nature of the writ of ne exeat colonia, there is no specific criticism in terms that, in breach of his obligations on an ex parte application, Mr Hyde had some particular legal matters that were within his knowledge which he failed to disclose to McDougall J.

However, the Revised List does submit that the orders obtained from McDougall J had not been lawful in New South Wales since 1970 by reason of (currently) s 129 of the Civil Procedure Act 2005 (NSW) which provides that “No person is to be arrested on mesne process issued by the court”. That section is no answer to the orders made by McDougall J because they were not for the arrest of Mr Sharkey. Section 129 does not prevent orders of the kind made by McDougall J and, insofar as it might be suggested on behalf of Mr Sharkey, assuming Mr Hyde knew of s 129 he had no obligation to draw it to his Honour’s attention at the time of the ex parte hearing.

Mr Sharkey’s amended notice of motion unequivocally invoked the test identified by Brereton J in Kallinicos at [76]:

For the reasons set out above, Mr Sharkey has not established any of the criticisms of the conduct of the EMC Respondents and Mr Hyde which were deployed as being matters which would compel the archetypal member of the public to reach the conclusion referred to in the test quoted in the preceding paragraph. On the contrary, the Court is positively satisfied that the archetypal member of the public, appraised of the matters recorded in these reasons, would reach the conclusion that what occurred was accurately, succinctly but nevertheless compendiously explained by McDougall J in the Discharge Judgment and that, as such, there is no basis to prevent the EMC Respondents (and, if she wished, Mr Hyde) from continuing to act for Ms Mayahi-Nissi. At the risk of repetition, McDougall J’s explanation was:

It follows that the Court declines to exercise what was recognised in Kallinicos as an exceptional jurisdiction to be exercised with caution.

For completeness, and by way of further support for the conclusion which the Court has reached in the preceding paragraph, it is necessary to address seven additional matters.

First, the EMC Respondents and Mr Hyde submitted that the amended notice of motion was brought after an unexplained and unsatisfactory delay. The Discharge Judgment was delivered on 25 February 2015. However, the first complaint (being the Bransgroves Letter) was not made until 23 October 2015 and required a response by 30 October 2015, failing which a motion would be filed. However, that motion initiating the present application was not filed until 26 February 2016 – one year and a day after the Discharge Judgment.

There is no evidence explaining the delay other than that Bransgroves, Mr Sharkey’s current solicitors, were not retained until 8 September 2015. Mr King submitted that “it was legitimately thought that when the matter was reserved, that it wasn’t appropriate to bring such an application” (T80:27-29).

To the extent those matters may be considered an explanation for the delay in bringing the application, the Court does not accept them for three reasons:

Quite apart from the fundamental failure to make out the grounds for the relief sought, the unexplained delay in bringing the present application is an additional factor which militates, albeit not conclusively, against the success of the amended notice of motion. In addition to the matters identified in paragraph [150(1)] above, a third reason why any application such as the present should be brought promptly is that the longer a lawyer remains instructed in a case, the more there is likely to be to hand over and explain to a new lawyer (and hence greater expense incurred by that lawyer’s client) if the Court restrains the first lawyer from continuing to act.

Second, the allegations made against Mr Doble recorded in paragraphs [99 (3) and (4)] above are rejected. Mr Doble made reasonable and appropriate inquiries by speaking to Mr Eakin (who was a firsthand witness to what Mr Fernon had said in opening) and then reviewing the transcript of the opening himself (see paragraph [29] above). Although Mr Doble’s understanding of what Mr Fernon had said was ultimately demonstrated to be in error, the Court is satisfied it was an innocent error. Neither that conduct nor anything else put by Mr Sharkey against Mr Doble (or against Mr Hyde to the extent any such allegation is made against him) meets the “unsatisfactory professional conduct” or “gross negligence” tests which Mr King urged upon the Court.

Third, the Court finds there is no basis in the evidence to support Mr Sharkey’s submission that the ex parte application before McDougall J was brought for some ulterior or improper purpose. Nor has the allegation recorded in paragraph [93] above (that the respondents lacked the requisite independence and objectivity) been made out.

Fourth, Mr Sharkey criticised the scope of Mr Hyde’s apology (see paragraph [82] above) and submitted that it was inadequate. The Court rejects that submission. Mr Hyde’s apology was entirely proper, was directed precisely to the only matter which required a communication with McDougall J by way of an apology and demonstrated a correct understanding by Mr Hyde of his obligations to the Court and his opponent pursuant to Rule 27 of the NSW Barristers’ Rules to correct any misleading statement “as soon as possible after the barrister becomes aware that the statement was misleading”.

Fifth, an attempt was made during the course of the hearing to criticise Mr Doble for “continued involvement” in the proceedings when his affidavit evidence had indicated that, without admissions, he and his firm had decided that he would have no further involvement in the substantive proceedings. The criticism of Mr Doble was misconceived. It was based on two pieces of correspondence that related to the present application and not the substantive proceedings. It was neither improper nor inappropriate for Mr Doble to engage in that correspondence in relation to this application in which he was intimately involved. It was certainly not inconsistent with his stated position, now confirmed by a notice of change of solicitor (see paragraph [89] above) that he was to have no further involvement with the substantive proceedings.

Sixth, having regard to the seventh of the matters summarised by Brereton J in Kallinicos (see paragraph [91] above), Mr Sharkey has not demonstrated any due cause which would displace the public interest in Ms Mayahi-Nissi not being deprived of the lawyers of her choice. She wishes now to retain Ms Shaw as her solicitor for the balance of the substantive proceedings and there is no reason for the Court to interfere with that choice. It seems inevitable that there will also be an appeal (see paragraph [85] above). Nor has any reason been shown why she should not retain Mr Hyde if, in the future, she wished to do so.

Seventh, Mr King submitted that because Messrs Eakin and Doble had not called Mr Cook “to demonstrate that he had the same misconceived view as them” in circumstances where Mr King submitted Mr Cook could not possibly have had that view, a Jones v Dunkel inference should be drawn against Messrs Eakin and Doble. That submission is rejected. Mr Cook’s view was not in issue before me and, therefore, he is not a witness who the Court would have expected to be called by the EMC Respondents or Mr Sharkey. In the absence of some other evidence that could have supported a finding that Mr Cook did not share Messrs Eakin’s and Doble’s view of what Mr Fernon had said, what Mr Cook thought or did not think is irrelevant to the determination of how Messrs Eakin and Doble understood matters at the time of the ex parte application to McDougall J.

The primary relief sought in this notice of motion:

In relation to the prayer for summary dismissal of Mr Sharkey’s amended notice of motion, the Court is satisfied that application is well founded in the case of those EMC Respondents who had absolutely nothing to do with the relevant events, namely Mr Cox, Mr Stafford and Mr Sarah. At least as an ordinary incident of partnership law, where a firm of solicitors is sought to be restrained from acting by reference to its fiduciary duty to its client or in reliance on confidential information, it is both necessary and correct for the entire partnership to be joined to such an application. However, the present application, properly understood, could only have been directed against those individual officers of the Court about whose conduct complaint was made. Neither the evidence nor the submissions advanced on behalf of Mr Sharkey disclosed any factual or legal basis for relief against those three of the EMC Respondents who played no part in the proceedings before Robb J. They have an entitlement to have the proceedings summarily dismissed as against them.

On the other hand, while Messrs Eakin and Doble have also succeeded in resisting Mr Sharkey’s amended notice of motion, their involvement in the relevant events meant that they could not have satisfied the very high threshold for summary dismissal of the amended notice of motion against them.

Insofar as the relief sought in relation to the Bransgroves Letter and the Submissions is concerned, UCPR Part 4 r 4.15 provides:

The Bransgroves Letter commenced:

Because Mr King ultimately did not rely on the Bransgroves Letter for the formulation of his case on this application, the Court does not propose to compound the vice in that letter by recording it in any detail. It makes serious allegations against the solicitors and counsel who were involved in the application before McDougall J on behalf of Ms Mayahi-Nissi. However something of its contents must be described, if only so that a reader of these reasons can understand why the Court has determined that the Bransgroves Letter should be sealed. It includes allegations such as “grave misstatement of the law”, “recklessness”, “professional misconduct”, “complete fabrication”, “wilful deception” and “connivance”.

After rereading the Bransgroves Letter several times and allowing the maximum latitude possible in favour of its author, the Court nevertheless concludes that many parts of the letter can fairly be described as hectoring and hyperbolical in their criticisms of the respondents. The Bransgroves Letter does not display the sober and dispassionate examination of the readily available objective facts that the Court would expect to have been undertaken before such serious allegations could be properly made.

Mr King’s submissions (the “Submissions”) are dated 30 March 2016. While more temperate in tone than the Bransgroves Letter, the Submissions nevertheless repeat in terms many of the serious allegations made in the Bransgroves Letter.

The fact that Mr King did not ultimately rely on the Bransgroves Letter and the Submissions would not in and of itself be sufficient to grant the relief sought by the EMC Respondents. However, when that is combined with the serious nature of the allegations made in those documents (most of which were not pressed through the Revised List) and the extraordinarily inappropriate tone of the Bransgroves Letter (see paragraph [164] above), the Court is satisfied that those documents meet the description of scandalous or oppressive. But for the possibility that this matter may go further, the Court would have acceded to the application that those documents be removed from the Court file. However, taking that possibility into account, the Court will exercise the power conferred by UCPR Part 4, r 4.15(b) to order that those documents be placed in a sealed envelope in the Court file marked “Not to be opened without further order of the Court”.

Subject to the following paragraph, the orders of the Court will be:

I have not overlooked that the EMC Respondents sought in their motion that Mr Sharkey pay their costs on the indemnity basis and forthwith and that Mr Hyde also wished to be heard on costs. If any special costs applications are to be pressed, the Court will require further submissions. The Court will hear the parties as to how any such applications should be progressed.