Keayes, Peter John & Ors v Searle, Bronwyn Ann & Ors [1995] FCA 921

CATCHWORDS

PRACTICE AND PROCEDURE - Leave to recall witnesses for further cross-examination refused - No denial of fair trial.

APPEALS - Whether leave should be given to adduce fresh evidence - Reasonable diligence of the party would have enabled discovery of the evidence at trial.

APPEALS - Power of appellate court to set aside findings of fact - Findings of fact not glaringly improbable nor inconsistent with facts incontrovertibly established by the evidence.

JUDGMENTS AND ORDERS - Orders made by trial judge inconsistent with findings of fact - Denial of opportunity to be heard to persons affected by the orders - Uncertainty as to the effect of foreign law on enforceability - Orders set aside.

GPI Leisure Corp. Ltd v Herdsman Investments Pty Ltd (No.3) (1990) 20 NSWLR 15.

Devries v Australian National Railways Commission (193) 177 CLR 472.

Orr v Holmes (1948) 76 CLR 632.

Commonwealth Bank of Australia v Quade (1991) 178 CLR 134.

Ware v Cumberlege (1855) 20 Beav. 503; 52 ER 697.

Uniting Church in Australia Property Trust (NSW) v Monsen [1978] 1 NSWLR 575.

PETER JOHN KEAYES & ORS v BRONWYN ANN SEARLE & ORS

NG 424 of 1995

Davies, Burchett, Sackville JJ.

Sydney

17 November, 1995

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) No. NG 424 of 1995

GENERAL DIVISION )

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF

AUSTRALIA

BETWEEN:

PETER JOHN KEAYES

First Appellant

WSB NO. 15 PTY LIMITED

Second Appellant

WSB NO. 17 PTY LIMITED

Third Appellant

AND:

BRONWYN ANN SEARLE

First Respondent

THE GOOD OF THE WORLD FOUNDATION LIMITED

Second Respondent

BRISALEBE AG

Third Respondent

BRISALEBE AG LTD

Fourth Respondent

RICHARD GERARD KEAYES

Fifth Respondent

CORAM: DAVIES, BURCHETT, SACKVILLE JJ.

PLACE: SYDNEY

DATE: 17 NOVEMBER, 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. Paragraphs 1, 2, 3, 4, 5, 6 and 10 of the orders made by Tamberlin J. on 26 May 1995 be set aside.

2. These proceedings be remitted to Tamberlin J. for determination in accordance with these reasons for judgment.

3. The appellants pay three-quarters of the costs of the first respondent, Bronwyn Ann Searle, and the second respondent, The Good of the World Foundation Ltd, of this appeal.

NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) NG 424 of 1995

)

GENERAL DIVISION )

On appeal from a single judge of the Federal Court of Australia

BETWEEN: PETER JOHN KEAYES

First Appellant

WSB NO. 15 PTY LIMITED

(ACN 055 949 016)

Second Appellant

WSB NO. 17 PTY LIMITED

(ACN 058 901 170)

Third Appellant

AND: BRONWYN ANN SEARLE

First Respondent

THE GOOD OF THE WORLD FOUNDATION LIMITED

(ACN 067 152 541)

Second Respondent

BRISALEBE AG

Third Respondent

BRISALEBE AG LIMITED

(ACN 060 401 827)

Fourth Respondent

RICHARD KEAYES

Fifth Respondent

Coram:Davies, Burchett & Sackville JJ.

Date: 17 November 1995

Place: Sydney

REASONS FOR JUDGMENT

Davies J: I have had an opportunity to read the reasons for judgment of Burchett & Sackville JJ. I agree with them but would add a few words of my own on the issue as to the orders made by the learned trial Judge. At the hearing below, Mr P.J. Keayes represented himself, WSB (No. 15) Pty Limited ("WSB 15") and WSB (No. 17) Pty Limited ("WSB 17"). Mr G. Peat, a director of Brisalebe AG Limited ("BAGL"), represented that company. Neither Mr Keayes nor Mr Peat was a lawyer. Mr R. Keayes was represented by counsel, but the trial Judge found against him and we are not further concerned with his position. Mrs B.A. Searle, the successful party, was represented by counsel.

Issues were presented to the trial Judge principally by reference to conversations which had taken place between Mrs Searle, Mr P.J. Keayes and Mr R. Keayes and by reference to actions which each of them had taken. The main thrust of the evidence concluded with the making of what was called the Mankato declaration on 13 December 1993. Evidence was given that Mrs Searle had initiated the idea of testing animals, such as beef cattle, for meat tenderness by the use of ultrasound, eye characteristics and computer programming. Over a period of time, a system of testing the tenderness of meat, using these methods and others including iridology, was developed and it became known as the "Eye Key Livestock Evaluation System". Applications seeking patents for the process were lodged in the name of Brisalebe AG ("BAG").

The trial Judge held that Mr P.J. Keayes, by, inter alia, repudiating the Mankato declaration in early 1994, had breached duties of fiduciary obligation which had arisen
out of the arrangements he had made with Mrs Searle and others.

Had the trial Judge limited his orders to enforcing the Mankato declaration and to ensuring that Mr P.J. Keayes rearranged the shareholdings in BAG, BAGL, WSB 15 and WSB 17 in the manner specified in the Mankato declaration, I would have seen no error in the judgment.

However, the trial Judge made the following orders, inter alia:-

1. Declares that the fourth respondent, Brisalebe AG, holds the following assets on trust for The Good of the World Foundation Ltd, Australian Company Number 067 152 541 and has so held such assets at all times:

(a) Patent application PL 8583/93;

(b) Patent application PM 0101/93

(d) Patent application PCT AU 94/00231; and together with

(e) all confidential information relating to the above applications.

2. Orders that the fourth respondent, Brisalebe AG, transfer to The Good of the World Foundation Ltd all assets the subject of the declaration in (1.)

...

6. Declares that The Good of the World Foundation Limited:

(i) holds all income deriving from property and assets the subject of the declaration in (1.) on trust, and

(ii) on the occurrence of any sale or transfer by the seventh respondent of the said property and assets, holds the proceeds therefrom on trust,

as follows:

(a) as to 75% beneficially;

(b) as to 5%, for the first respondent, Mr Peter Keayes;

(d) as to 2%, for Mr Craig Jones;

(e) as to 2%, for Mr Warwick Fulton;

(f) as to 1/2%, for Ms Carla Harper; and

(g) as to 12 1/2% for the third respondent, Brisalebe AG Limited."

The Good of the World Foundation Limited, which was referred to in these orders, had
been set up by Mrs Searle and others late in 1994. It was not in existence when the dispute arose or when the proceedings were instituted.

In formulating these orders, the trial Judge was undoubtedly influenced by the importance of the part he considered that Mrs Searle had played in the development of the Eye Key Livestock Evaluation System. The trial Judge specifically held that "Searle was the originator and inventor of the technology." But the matter was more complex than that sentence suggested. The Eye Key Livestock Evaluation System had been developed over a period of time with inputs from various sources and, so far as the evidence disclosed, it was a process which was still in the course of development.

Even by the time of the Mankato declaration in December 1993, the corporate structure which was involved in one way or another with the Eye Key Livestock Evaluation System was complex and widespread. BAG, which was the company in whose name the patent applications had been lodged, was a Swiss company. BAGL, WSB 15 and WSB 17 held shares in BAG. The Mankato declaration referred to "any other company associated with the Eyekey Livestock Evaluation System. For example, Cattle Rush Pty Ltd." The Mankato declaration also made provision for shareholdings "in the following Keayes Group Companies:- `Global Keys', WSB 15, WSB 17, Enterprise 2010, Tax Made Easy, Business Systems." The significance of each of these companies and what each had to do with the Eye Key Livestock Evaluation System or with persons such as Mrs Searle was not explained.

By the time of the trial, Mr Keayes or BAGL had raised substantial sums of
money. In late 1993 and early 1994, Mr Keayes raised several hundred thousand dollars from relatives and others and used these moneys in relation to the development and promotion of the System. Later in 1994, a prospectus was issued and more than $3 million was raised from members of the public, both in Australia and overseas. The trial Judge held:-

"The identity and interest of each individual investor in BAGL is far from clear. From the company structure produced by Keayes there are said to be approximately 135 shareholders who have contributed $3 million collectively."

However, the evidence about this matter was sparse. There was no clear evidence as to what happened to the $3 million, whether it still existed and if so by whom it was held or whether it had been spent and if so how and by whom. If substantial sums were spent in the development of the Eye Key Livestock Evaluation System, it may be that the part which Mrs Searle played in the development of the asset was perhaps of less significance than some passages in the trial Judge's reasons for judgment would seem to suggest. In fact, Mrs Searle, who was for much of the time on the payroll of one of Mr Keayes' companies, claimed for herself only the small personal interest which she was awarded by the trial Judge.

In my opinion, the orders made by the trial Judge, which were intended to have the effect of transferring all the assets related to the Eye Key Livestock Evaluation System from BAG to The Good of the World Foundation Limited, ought not to have been made without, in the first place ensuring that the Attorney-General for the State of New South Wales, who has a supervisory interest over charities in that State, was given notice of the proceedings and secondly, that the many people who invested more than
$3 million in the enterprise were adequately represented, or at least given an opportunity to be adequately represented before the Court. It is worth noting that the interests of the investors may not coincide with those of BAGL, which was established by Mr P.J. Keayes. The investors may possibly consider that BAG and BAGL or their agents misled investors.

Natural justice demands that all those persons who have an interest in the proceedings and in the subject matter of the orders sought should be afforded an adequate opportunity to put forward those points which they wish to raise in their own interests. The proceedings below concentrated on issues arising as between Mrs Searle, Mr P.J. Keayes and Mr Richard Keayes. Insofar as the judgment dealt with them, no error has been shown. But the orders of the trial Judge had a much wider effect and, in my opinion, ought not to have been made without notice being given to the Attorney-General and to the investors, and, preferably without more information being obtained as to the present state of the enterprise and of the assets sought to be transferred to The Good of the World Foundation Ltd.

Particularly is this so as there is an element of incompatibility between the concept of a public charitable trust and the raising of more than $3 million in share capital from members of the public. It may become necessary to ascertain to what extent moneys contributed by way of loan or share capital can be traced into or were expended in relation to the assets sought to be transferred to The Good of the World Foundation Ltd. There are many possible issues which could arise. I do not attempt to foreshadow them.

I agree with Burchett & Sackville JJ that the orders made by the trial Judge should be set aside and that the matter should be remitted to him for further consideration. I agree with the orders which their Honours propose.

I certify that this and the preceding 5 pages

are a true copy of the reasons for judgment of

the Honourable Justice Davies.

Associate:

Date: 17 November 1995

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) No. NG 424 of 1995

GENERAL DIVISION )

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF

AUSTRALIA

BETWEEN:

PETER JOHN KEAYES

First Appellant

WSB NO. 15 PTY LIMITED

Second Appellant

WSB NO. 17 PTY LIMITED

Third Appellant

AND:

BRONWYN ANN SEARLE

First Respondent

THE GOOD OF THE WORLD FOUNDATION LIMITED

Second Respondent

BRISALEBE AG

Third Respondent

BRISALEBE AG LTD

Fourth Respondent

RICHARD GERARD KEAYES

Fifth Respondent

CORAM: DAVIES, BURCHETT, SACKVILLE JJ.

PLACE: SYDNEY

DATE: 17 NOVEMBER 1995

REASONS FOR JUDGMENT

BURCHETT AND SACKVILLE JJ:

Introduction

This is an appeal from declarations made by Tamberlin J. that Brisalebe AG ("BAG"), a Swiss corporation, holds certain assets in trust for The Good of the World Foundation Ltd

("GOWFL"), an Australian company. Tamberlin J. also ordered BAG to transfer those assets to GOWFL and made declarations concerning the beneficial interests in the assets to be transferred.

The proceedings arise out of an agreement relating to the development of processes intended to predict meat tenderness in live cattle and other animals. These processes were described, in somewhat general terms, in certain patent applications to which we refer later. An examiner of patents conveniently summarised the concept underlying the claimed inventions as follows:

"The concept of both inventions relates to a grading system for the tenderness of meat from live animals, by a non-intrusive method. They both require singly, or in combination, the performance of three tests which comprise:

Ultrasonic testing of the animal.

Visual observation/testing of the animal's eye.

Visual observation of one, or more, other parts of the animal.

One, or a combination, of these tests, and a comparison of the results with previously acquired animal data, allow the animal to be graded according to meat tenderness, and thus commercial value.

The applicant in the proceedings below was Mrs B.A. Searle, one of the parties to the agreement to which we have referred. The respondents to the proceedings below were the following:

First Respondent Mr P.J. Keayes

Second Respondent Mr R. Keayes (the brother of Mr P.J. Keayes)

Third Respondent Brisalebe AG Ltd

Fourth Respondent BAG

Fifth Respondent WSB (No.15) Pty Ltd

Sixth Respondent WSB (No.17) Pty Ltd

Seventh Respondent GOWFL

The Parties to the Appeal

The present appeal is brought against the orders of the trial judge by Mr P.J. Keayes ("Mr Keayes") and two companies controlled by him, namely, WSB No. 15 Pty Ltd ("WSB15") and WSB No. 17 Pty Ltd ("WSB17"). Mr Keayes represented himself and the two companies during part of the hearing before the trial judge. Mr Keayes also prepared the appeal, without legal assistance, until shortly before the hearing. However, Mr Robberds QC appeared for the three appellants on the hearing of the appeal. Mr Robberds substantially refined the issues to be argued.

Mrs Searle, who was the applicant below, is the first respondent to the appeal. The second respondent is GOWFL, which was added as a respondent in the course of the proceedings at first instance.

BAG, the Swiss corporation, was the fourth respondent to the proceedings below. It was named as one of the appellants in the amended notice of appeal filed by Mr Keayes. However, we were informed from the bar table that BAG had been placed into the equivalent of provisional liquidation under Swiss law,
although there was no evidence as to when this had occurred, nor of the precise consequences of liquidation under Swiss law. Be that as it may, it would seem clear that Mr Keayes had no authority to include BAG as an appellant in the notice of appeal or amended notice of appeal. In the event, on the application of Mr Robberds, with the consent of Mr McGrath, who appeared for Mrs Searle and GOWFL, BAG was deleted as an appellant and added as a respondent to the appeal.

On Mr McGrath's application and with Mr Robberds' consent, Brisalebe AG Ltd ("BAGL") was added as a respondent to the appeal. BAGL had been a respondent to the proceedings below, but had not been named as either an appellant or as a respondent in the amended notice of appeal. Mr Robberds informed us, without objection from Mr McGrath, that the directors of BAGL had resolved to consent to the joinder.

Mr R. Keayes, the brother of Mr Keayes, was a respondent in the proceedings below. He did not appeal. However, by consent, he was joined as a party to the appeal at the same time as BAGL.

It is appropriate to say something about each of the parties to the appeal.

Mrs Searle

Mrs Searle was trained as a nurse and midwife. In the course of her work she became familiar with the uses and operation of ultrasound equipment. Her case before the trial judge rested in large measure on the terms of agreements entered into in 1992 and 1993 between her, on the one hand, and Mr Keayes and companies controlled by him, on the other. Mrs Searle's evidence and that of Mr Keayes were in direct conflict on a number of critical issues. The trial judge ultimately preferred Mrs Searle's account and found (among other things) that Mrs Searle was, to use his Honour's terms, the "inventor" of the "technology" for predicting meat tenderness. His Honour also preferred Mrs Searle's account of the discussions leading to the agreements for the exploitation of the technology "invented" by her.

GOWFL

GOWFL is a company limited by guarantee. It was not incorporated until 23 November 1994, nearly six months after the proceedings were commenced. GOWFL was added as a respondent to the proceedings below in order (as the trial judge said) to give effect to the orders sought by Mrs Searle. At an early stage in Mrs Searle's dealings with Mr Keayes, according to the trial judge's findings, she had indicated that she wanted the earnings from the inventions (which the parties contemplated, more than a little optimistically, would amount to billions of dollars) to be spent on the protection of the environment and assisting needy people. The concept of a Good of the World Foundation grew out of this desire, although Mrs Searle and Mr Keayes gave conflicting evidence as to the arrangements relating to the Foundation and when the concept was first mentioned.

The trial judge described GOWFL as a "charitable corporation". Its principal objects are to:

"(a)Provide resources to enhance the education of gifted children as well as children with learning difficulties, eg: Dyslexia, and advancement of ethical and moral teachings.

(b) Promote and fund ecologically sustainable projects, eg: reforestation, land rehabilitation, sustainable food production, research into renewable power.

(d) Such objectives of public benefit which are also charitable and which are beneficial to the community, not specified above and which the Directors in their discretion decide, shall be an object...

...

(g) To...take or hold any property which may be subject to any trusts...".

The subscribers to GOWFL's Memorandum of Association included Mrs Searle and two witnesses who were called in her case, namely Mr Craig Jones and Mr A.J. Paterson. Mr Jones was an investor in the project and, for some time, was engaged as an assistant to Mrs Searle. Mr Paterson was also an investor in the project. Mr Jones and Mr Paterson were named, respectively, as the President and Vice-President of GOWFL and as members of the committee responsible for managing the company's business. The remaining member of the committee was the Honorary Treasurer, Ms C. Harper. Ms Harper was employed at various times by Mr Keayes as a private secretary.

Mr Keayes

Mr Keayes is an accountant. It was common ground that he met Mrs Searle in October 1992, when she sought taxation advice from him. Mr Keayes claimed to be the sole "inventor" of the technology that was the subject of the patent application, albeit with some assistance from his brother, Mr R. Keayes. On Mr Keayes' version, Mrs Searle's role in the arrangements for the development of the technology was largely that of an employee. Mr Keayes claimed that Mrs Searle had been engaged by reason of her professed skills as a clairvoyant, in order to predict the most appropriate persons to contact regarding the funding and marketing of the technology. Mr Keayes' version of the discussions with Mrs Searle was very different from hers. The trial judge rejected Mr Keayes' account insofar as it conflicted with that of Mrs Searle.

BAGL

The evidence before the trial judge suggested that some 135 investors had subscribed some $3 million for shares in BAGL. This amount corresponded with the terms of a prospectus issued by or on behalf of BAGL in December 1993. The prospectus stated that BAGL proposed to raise up to $3 million, through the issue of up to 1.5 million shares each paid to $1.00 together with a premium of $1.00 per share. The prospectus stated that the subscription moneys would be wholly utilised to acquire a shareholding in BAG and that Australian investors would acquire "an interest of at least 10%" in BAG. It also added that the principal asset of BAG was a "revolutionary new technology" which could measure the relative tenderness and yield of beef cattle and other meat producing livestock.

An investor list, which was in evidence, showed that most of the investors had invested moneys in the venture before December 1993, that is, before the date of the prospectus. In addition, the prospectus revealed that BAGL had undertaken to allot an aggregate 1.167 million ordinary $1.00 shares to 13 individuals, who had agreed to accept the shares as payment for services in developing the "Eyekey System" (as it came to be called). Whatever the circumstances in which the investors subscribed for shares in BAGL, or otherwise contributed funds, we were informed from the bar table that the moneys invested had been lost. On the trial judge's findings, to which we shall refer later, Mr Keayes himself spent some $400,000 of the funds, a considerable proportion of this sum being for private purposes of his own.

We have already referred to the fact that BAGL had been named as a respondent to the proceedings below and was added as a respondent to the appeal. On 21 December 1994, the eleventh day of the trial, counsel sought leave to file a defence and cross claim on behalf of BAGL. This application was refused by the trial judge and there was no appeal from that refusal. However, Mr Peat, a director and secretary of BAGL, did make submissions to the trial judge as to the form of orders appropriate to give effect to his Honour's judgment.

No application was made by or on behalf of BAGL to make submissions on the hearing of the appeal. However, in the course of the hearing of the appeal, the Court pointed out to Mr Robberds that (as we shall explain later) he was suggesting an alternative form of order to that made by the trial judge. Since the form of order proposed by him might have affected the interest of BAGL and its shareholders, the Court suggested that those instructing Mr Robberds should advise the directors of BAGL, so that their attitude might be ascertained.

In response to the advice given in accordance with the Court's suggestion, Mr Peat informed the Court of the attitude of the then directors of BAGL. Mr Peat stated that the directors had resolved that, if Mr Keayes was unsuccessful in the challenge to the findings of the trial judge, they would accept the alternative orders proposed by Mr Robberds. Subsequently, and without objection from Mrs Searle or GOWFL, Mr Peat lodged a written submission, on behalf of BAGL, supporting the contentions put forward by Mr Robberds. We have taken these into account. Some six weeks after the hearing, solicitors for BAGL wrote a letter to the Court in which they stated that they had received instructions to seek orders enabling them to make written submissions. Having regard to the delay in the making of this request and the fact that submissions had already been made on behalf of BAGL, we do not think it appropriate to accede to the request.

The Other Companies

WSB15 and WSB17 were companies controlled by Mr Keayes. According to Mr Keayes' evidence, which his Honour appears to have accepted on this issue, WSB15 and WSB17 held at the material times 77% of the shareholding in BAG, the Swiss corporation. The remaining 23% of the shareholding in BAG was said by Mr Keayes to be held by BAGL, the Australian corporation. BAG itself was incorporated in Switzerland on 22 April 1993, and, as we have mentioned, has since been placed in provisional liquidation under Swiss law.

The Patents

On 4 May 1993, a provisional specification for a patent was lodged on behalf of "Brisalebe Ltd". This was said to be an invention relating to a method and apparatus for evaluating the meat characteristics of animals. A second provisional specification was lodged in July 1993, also on behalf of "Brisalebe Ltd". The title of the second specification was "evaluating animal characteristics". This was also concerned with evaluating meat characteristics and included the use of ultra-sound techniques and what was described as "iridology".

It appears to have been accepted before Tamberlin J. that "Brisalebe Ltd" was intended by Mr Keayes to be a reference to Brisalebe AG, the Swiss corporation which he had caused to be created in about April 1993. Mr Keayes was the instigator of the patent applications. The trial judge found that Mrs Searle permitted Mr Keayes to take this course because she believed his representations that it was better for him to "take the heat", rather than expose her to the security risk involved in being the "front person" for the project.

Mrs Searle subsequently filed a patent application in her own name, covering similar processes which were said to constitute inventions. An examiner of patents has reported that there is a close similarity between the patent application filed by Mrs Searle and those filed in the name of Brisalebe Ltd. This dispute has not been resolved.

The evidence does not establish whether either set of applications will be accepted. Nor does it establish whether the processes described in the patent applications will ultimately prove to have any commercial value.

The Claim Pleaded

Mrs Searle pleaded that in October 1992 she and Mr Keayes entered a joint venture to develop, patent and exploit the technology conceived by her prior to her first meeting with Mr Keayes. Initially, according to the statement of claim, it was agreed that Mrs Searle and Mr Keayes would each receive a 2% interest in the patent and income derived therefrom; "external investors" would receive 6%; and the remaining 90% would be vested in a foundation to be established and known as "The Good of the World Foundation". The foundation was to have a board of directors independent of both Mrs Searle and Mr Keayes.

The statement of claim alleged that the agreement was varied on about 17 March 1993, so that Mrs Searle and Mr Keayes (or their nominees) would each have a 4% interest; the investors would have 17%; and the Foundation would have 75%. Shortly thereafter it was agreed that Mr Keayes would apply for the patents in his own name, but as nominee on a temporary basis for Mrs Searle. According to the pleadings, Mr Keayes, in breach of his fiduciary obligations, caused the two 1993 patent applications to be lodged in the name of BAGL and later to be transferred to, or held on behalf of, BAG.

The Judgment Below

The trial judge identified the primary issue as the "ownership of the technology". This involved examining the identity of the "inventor" of the technology and the arrangements governing ownership. In addition, a question arose as to how any arrangements agreed between the parties could be put into effect.

It must be said that much of the judgment addresses the question of whether Mrs Searle or Mr Keayes (with assistance from his brother) conceived the "technology" outlined in the patent applications. As we have noted, his Honour used the term "inventor" to describe Mrs Searle's role in the development of the technology. Both counsel appearing on the appeal agreed, however, that the case presented to the trial judge did not raise for determination an issue as to whether the processes described in the patent applications were aptly characterised as "inventions". The question of who conceived and developed the idea reflected in the patent applications was obviously of considerable importance on issues of credit. But both counsel accepted that the trial judge's findings on this question were not intended to and could not pre-empt any issue as to the identity of the originators of the processes described in the patent applications, should that question arise for determination in other proceedings.

The trial judge examined the course of dealings between Mrs Searle and Mr Keayes in considerable detail. Both gave evidence before him and were cross-examined. Having regard to a number of factors, his Honour was not prepared to accept the uncorroborated evidence of Mr Keayes. The trial judge considered that Mrs Searle's evidence should be approached with caution, "given her involvement and strong financial commitment to her version". He also took into account "some unusual aspects of her evidence as to clairvoyant forecasting". Nonetheless, his Honour accepted Mrs Searle as "generally" a truthful witness. He found that Mr Keayes was neither an inventor nor a co-inventor of the technology or any part of it.

In making findings as to the various conversations that took place relating to the "technology", the trial judge took into account his conclusions as to the credibility of Mrs Searle and Mr Keayes, as well as the evidence of a number of other witnesses. The trial judge found that in October 1992 a discussion took place in Tasmania (where Mrs Searle was working at the time) between Mrs Searle and Mr Keayes. The substance of the discussion was that 90% of the ownership and income from the technology was to serve the purposes of the proposed body to be known as the Good of the World Foundation and was to be used for charitable purposes. A 2% interest in the technology was to go to Mrs Searle; 2% was to go to Mr Keayes; and 6% to investors who funded the project. Mr Keayes was to work out the terms of a joint venture for the project, which at the time was thought by the parties to be capable of generating revenue of $4 billion per annum.

On 27 March 1993, a meeting took place between Mrs Searle and Mr Keayes in Brisbane. During this discussion reference was made to the need for more funding for the project. Agreement was reached that Mrs Searle and her brother would take a 4% interest in the "patent and confidential information"; Mr Keayes and his brother would take 4%; investors would receive 17%; and the foundation (which, of course, did not then exist) would receive 75%. Mr Keayes proposed that, in order to throw people "off the scent" of the ultrasound trail, the project should be called the "Eyekey Project". Mr Keayes also agreed to set up a company, which would be known as Brisalebe, a derivative of the names of Mr Keayes' children. Shortly afterwards Mr Keayes took steps to incorporate BAG in Switzerland.

In May and July 1993 the two patent applications were lodged in the name of "Brisalebe Ltd". At about this time, in circumstances not explored by the trial judge, a number of investors invested substantial sums in the project.

During the period February 1993 to October 1993, Mr Keayes incurred substantial expenses in connection with overseas travel, the renting of a villa in Switzerland and the purchase of vehicles. In October and November 1993 disputes arose about a number of matters. These included what was said to be excessive expenditure by Mr Keayes; the share to be allocated to Mr Jones (who had been employed by Mrs Searle since June 1993); and the refusal by Mr Keayes to allow Mrs Searle to be a director of BAGL. The result was a series of meetings which occurred from 11 to 13 December 1993, at Mankato in Minnesota, USA. The participants were Mrs Searle, Mr Keayes, Mr Jones and Mr Paterson.

At the meetings allegations were made that Mr Keayes had used investors' money to prop up his private company and to enable him to travel around the world in a lavish style with a large entourage. The upshot of the Mankato meetings was that Mr Keayes signed a series of declarations, as follows:

"This declaration details the changes to the company structure of Brisalebe AG, Brisalebe AG Ltd and associated companies agreed to by Peter John Keayes. These changes are to be enacted upon as of 13th December 1993 and are to be completed as soon as practically possible. These changes have been freely entered into by Peter John Keayes.

...

I Peter John Keayes agree that the patent pertaining to the 'Eye Key Livestock Evaluation System' be changed to reflect that Bronwyn Ann Searle and Peter John Keayes are co-inventors of the said system.

...

I Peter John Keayes agree that any prospectus pertaining to the BRISALEBE AG reflect the original purpose of the BRISALEBE venture, namely that 75% of Brisalebe AG shares and Brisalebe AG Ltd shares be vested in a foundation whose purpose is to fund projects for 'The Good of the World'.

...

I Peter John Keayes agree that the board vested with the responsibility to administer the 'Good of the World Foundation' be made up of eminent persons with no vested interests in either BRISALEBE or any other 'Keayes Group Company'.

...

I Peter John Keayes agree to the following share holdings in BRISALEBE AG, BRISALEBE AG LTD, EyeKey Livestock Evaluation Inc and any other company associated with the 'Eyekey Livestock Evaluation System'. For example, Cattle Rush Pty Ltd:

'Good of the World Foundation' 75%

Peter John Keayes 5%

Bronwyn Ann Searle 3%

Craig Jones 2%

Warwick Fulton 2%

Carla Harper ½%

...

I Peter John Keayes agree that the membership of the board of this group of Companies including Brisalebe AG Ltd, but excluding Brisalebe AG be as follows:

Peter John Keayes Joint managing director

Bronwyn Ann Searle Joint managing director

Warwick Fulton director

Craig Jones director

Chris Paterson director

...

I, Peter John Keayes agree that all shareholders in Brisalebe AG Ltd be issued with shares in the following Keayes Group Companies:- 'Global Keys', WSB 15, WSB 17, Enterprise 2010, Tax Made Easy, Business Systems. The shareholding within these companies shall be determined by the following formula:

1% shareholding in BRISALEBE is equivalent to 4% in the other "Keayes Group Companies". Only to be enacted if after independent audit there is found to be fraud taken place.

...

I Peter John Keayes agree that whilst working on the 'EYEKEY LIVESTOCK EVALUATION SYSTEM', I be paid the same pay as the other co-inventor, namely Bronwyn Searle. This pay shall be backdated to the same commencement date as Bronwyn Searle."

Mr Keayes contended before the trial judge that these declarations were signed under duress and, in any event, could
not bind BAG and BAGL. The trial judge rejected these contentions.

The trial judge expressed the following conclusions relating to the agreement between Mrs Searle, Mr Keayes and the Keayes companies:

"In my opinion, the Mankato statement accurately represented in substance the final agreed position between Keayes and Searle in respect of ownership of the interests in the technology. I consider that Keayes had the necessary authority to bind the companies interested in the patent on his side of the arrangement, namely BAG, BAGL, WSB15 and WSB17. I consider that the arrangement was that the respective proprietary interests as to the capital and income in the technology should be shared in the percentages set out in the Mankato statement. Apart from variations as to percentages I am of the view that as from October-November 1992 onwards there was an agreement in force whereby Keayes agreed that Searle was entitled to be treated as originator and inventor of the technology and as a co-inventor and that steps would be taken by him to enable the agreed arrangement to be implemented. In effect, Keayes agreed to ensure that whatever form the arrangements finally took, the property in the technology should be held on behalf of the named persons and bodies in the proportions agreed and as finally varied at Mankato. The undertaking between Keayes and Searle was to co-operate effectively in a joint venture to bring about the result that the technology would be developed and marketed and that the property in it would be beneficially vested as agreed.

My conclusions are:

1. Searle was the originator and inventor of the technology.

2. Keayes was not the inventor or originator of the technology. His role was as promoter, developer, marketer and protector of the technology and in return for his work in that role it was agreed that he was to receive a 5% interest in the technology.

3. R Keayes did some research work but made no original or inventive contribution.

4. There was and is a binding agreement between Searle and Keayes and the third, fourth, fifth and sixth respondents as from about 18 October 1992 which was varied in March 1993 as to the ownership of and income from the technology. The final agreement as embodied in the Mankato statement was that the proprietary interest in and income relating to the technology was for the benefit of the persons and bodies listed therein in the percentages agreed in that statement.

5. The Mankato statement was not made under duress or undue excessive pressure."

The trial judge then set out a number of principles relating to fiduciary relationships and constructive trusts. Applying those to the case before him, he reached the following conclusions:

l In October 1992, Mrs Searle and Mr Keayes had entered into a joint venture agreement for the development, marketing and ownership of the technology in accordance with the terms then discussed. The terms of this agreement were varied in March 1993 and in December 1993.

l The arrangement gave rise to a fiduciary relationship between Mrs Searle, Mr Keayes and the Keayes companies.

l Mr Keayes breached his duty under the fiduciary relationship, by asserting that the technology was not subject to the agreement between the parties.

l BAG "was vested with the property in the technology" but, through Mr Keayes, was on notice of his breach of fiduciary duties. Thus BAG was subject to a constructive trust to give effect to the arrangements, enforceable at the suit of Mrs Searle "and the other beneficiaries".

l BAG therefore held "the technology" in trust for the persons and in the proportions set out in the Mankato declarations of December 1993.

l In order to give effect to BAG's obligations, it should be ordered to transfer the technology to GOWFL, to be held by that company on trust in accordance with the terms set out in the Mankato declarations.

In relation to the discussions concerning The Good of the World Foundation, the trial judge said this:

"On the evidence it is my view that the reference to [the foundation] in the arrangement and the Mankato statement was intended to express an intention to benefit public charitable purposes generally, and in particular, purposes with respect to the protection and enhancement of the environment and ecology; the relief of poverty; the care of the aged, infirm and/or sick; children's education and/or medical research."

The trial judge observed that there were about 135 investors in the project, whose interests were held by way of shareholdings in BAGL. Although the Mankato declarations made no reference to the investors, his Honour considered that it was clear from prior discussions between Mrs Searle and Mr Keayes that any residual property in the technology, after all other beneficiaries had received their share, was to vest in the BAGL investors. Accordingly, the remaining 12.5% interest was to be held for BAGL.

The Orders

Following argument about the form of relief, the trial judge made the following declarations and orders:

"THE COURT:

(a) Patent application PL 8583/93;

(b) Patent application PM 0101/93;

(d) Patent application PCT AU 94/00231; and together with

(e) all confidential information relating to the above applications.

2. Orders that the fourth respondent, Brisalebe AG, transfer to The Good of the World Foundation Ltd all assets the subject of the declaration in (1).

3. Orders that each of the first, second, third, fourth, fifth and sixth respondents respectively does all such things as may be necessary to procure permit and facilitate the transfer to The Good of the World Foundation Ltd of all assets the subject of the declaration in (1).

4. Orders that each of the first, second, third, fourth, fifth and sixth respondents is restrained from dealing with any of the assets the subject of the declaration in (1) in any way inconsistent with these Orders.

5. Orders that The Good of the World Foundation Ltd be joined to these proceedings as the seventh respondent.

6. Declares that The Good of the World Foundation
Limited:

(i) holds all income deriving from property and assets the subject of the declaration in (1) on trust, and

(ii)on the occurrence of any sale or transfer by the seventh respondent of the said property and assets, holds the proceeds therefrom on trust,

as follows:

(a) as to 75% beneficially;

(b) as to 5% for the first respondent, Mr

Peter Keayes;

(d) as to 2% for Mr Craig Jones;

(e) as to 2% for Mr Warwick Fulton;

(f) as to ½% for Ms Carla Harper; and

(g) as to 12½% for the third respondent,

Brisalebe AG Limited."

...".

The effect of these orders, if carried out, is that the identified assets would be transferred by BAG to GOWFL. GOWFL would then presumably be responsible for carrying forward the project. Assuming the project has any commercial value, this might involve (among other things) raising finance, pursuing the patent applications, undertaking further research and development and marketing the processes described in the patent applications. GOWFL would hold the trust property specified in paragraph 6 of the orders for itself and the other named persons (three of whom are not parties to the litigation).

The Appellant's Contentions

Mr Robberds reduced the argument to four issues. First, he contended that the trial judge erred in refusing to grant leave to counsel for Mr Keayes to recall certain witnesses for further cross-examination. Secondly, Mr Robberds argued that a number of findings adverse to Mr Keayes were incorrect, either because there was no evidence to support them or because the findings contradicted other facts "incontrovertibly established by the evidence". Thirdly, he sought leave to adduce fresh evidence on certain issues dealt with at the trial.

Fourthly, Mr Robberds submitted that the orders made by the trial judge did not accord with the reasons for judgment. The trial judge had found that the Mankato declarations reflected the agreed position between the parties. Those declarations contemplated simply that 75% of the shares in BAG and BAGL would be vested in a foundation, while the other shareholdings would be allocated to the named individuals, in the proportions specified. Mr Robberds argued that the orders made by the trial judge did not reflect the Mankato declarations, because they required BAGL to transfer property in the patent applications and confidential information to a newly created company, GOWFL. Mr Robberds proposed an alternative form of order (assuming his other submissions were not accepted) as follows:

"ORDER that Mr Keayes, BAGL, BAG, WSB17 and WSB15 procure, permit and facilitate the issue or transfer of shares in Brisalebe AG so that the shares issued in Brisalebe AG are held by the following companies and persons in the following percentage:

The Good of the World Foundation Limited 75.0%

Peter John Keayes 5.0%

Bronwyn Ann Searle 3.0%

Craig Jones 2.0%

Warwick Fulton 2.0%

Carla Harper 0.5%

Brisalebe AG Limited 12.5%

Refusal to Allow Further Cross-Examination

In the course of the hearing, the trial judge refused an application by counsel for Mr Keayes and his companies to recall Mrs Searle and Mr Paterson for further cross-examination. The background to this application was that the then legal advisers to Mr Keayes withdrew from the proceedings about a week before the hearing commenced on 26 September 1994. For the first five days of the hearing, Mr Keayes acted on his own behalf and on behalf of WSB15 and WSB17. During that time, Mr Keayes himself cross-examined a number of witnesses at length, including Mrs Searle and Mr Paterson. After five hearing days, the case was adjourned until 21 November 1994. At that time, Mr Keayes and his companies were represented by counsel, pursuant to the pro bono legal assistance scheme provided by the New South Wales Bar Association.

Shortly after the resumption of the case, freshly briefed counsel applied to recall Mrs Searle and Mr Paterson for further cross-examination, substantially on issues that had already been canvassed. The trial judge recognised that he had a discretion (see Trade Practices Commission v Arnotts Ltd (No.3) (1989) 21 FCR 316), but declined to exercise it in favour of Mr Keayes. He took account of a number of factors:

l the need to avoid the continuous re-opening and prolongation of litigation;

l the long tradition that, ordinarily, only one counsel should question a witness;

l Mrs Searle could not be compensated in costs for the additional expense and disruption that would be occasioned by the further cross-examination, because Mr Keayes did not have the resources to do so.

l although Mr Keayes was not legally qualified, he was a professional accountant who had already exercised a "free and unrestricted right" of cross-examination.

The trial judge concluded his analysis as follows:

"It is essential to balance the detriment and strain to the parties and their witnesses in relation to the litigation and the obvious delay, stress, expense and disruption which will be visited on the parties and witness are factors of major importance in deciding whether there are special circumstances which warrant departure from the normal practice.

I have taken these matters into account, and in all the circumstances I am not disposed to allow any further cross-examination of the applicant or of witnesses called on behalf of the applicant, because in my opinion the first respondent has had a more than adequate and fair opportunity to interrogate the applicant and the witnesses called in her case and to test the evidence."

Mr Robberds relied on the observations of Young J. in GPI Leisure Corp. Ltd v Herdsman Investments Pty Ltd (No.3) (1990) 20 NSWLR 15 (NSW S Ct/Young J.). That was a case in which an issue arose as to whether more than one counsel could cross-examine a witness. In the course of stating the principles, Young J. (at 22) said this:

"(1)The only actual "right" is the right to have a fair trial.

(2)It is the duty of the trial judge to ensure that all parties have a fair trial.

(3)In carrying out his duties the trial judge must so exercise his discretion in and about the examination and cross-examination of witnesses that a fair trial is assured."

We see no reason to disagree with the general thrust of Young J.'s observations. But in the present case the trial judge clearly paid close regard to the question whether Mr Keayes had had a fair opportunity to cross-examine the witnesses and test the evidence. These issues are explicitly referred to in the judgment and his Honour concluded that Mr Keayes did indeed have a fair opportunity to put matters in cross-examination. Mr Robberds did not suggest that the factors the trial judge took into account in the exercise of his discretion were irrelevant or factually inaccurate. In these circumstances, assuming the question is properly before us without a grant of leave to bring an interlocutory appeal or that leave should be granted, the exercise of the trial judge's discretion should stand; House v King (1936) 55 CLR 499, at 504-5; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, at 177; Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, at 398-400. This ground therefore fails.

Challenge to Findings on Credit

Mr Robberds took issue with a number of findings made by the trial judge. All these findings provided support for his Honour's decision to prefer Mrs Searle's evidence to that of Mr Keayes. The fundamental difficulty confronting Mr Robberds' submissions is the proposition recently restated by Brennan, Gaudron and McHugh JJ. in Devries v Australian National Railways Commission (1993) 177 CLR 472, at 479:

"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable".

Even if Mr Robberds had succeeded in pointing to particular issues on which the trial judge had mis-stated the position, the conclusions as to the credit of Mrs Searle and Mr Keayes were based on the trial judge's observations of the witnesses during extensive cross-examination. The evidence of Mrs Searle, which was accepted by the trial judge, was not glaringly improbable. Nor was it inconsistent with facts incontrovertibly established by the evidence. On any view, there was ample evidence to support the trial judge's conclusions on credit and on the critical conversations which were the subject of disputed evidence.

In any event, in our opinion, the specific criticisms put forward by Mr Robberds of the trial judge's findings cannot be sustained. We give three illustrations.

Mr Robberds took issue with the trial judge's finding that Mr Keayes had charged some $400,000 of expenses, including private expenses for his own family's travel, to the credit cards used to pay for the expenses of the project. Mr Robberds also took issue with the trial judge's finding that Mr Keayes had made an arrangement between one of his companies, Global Keys Pty Ltd and BAG (which, at the time, he also controlled), whereby Global Keys Pty Ltd received as commission 20% of expenditure on the project. Thus (so the trial judge found) the more money that was spent on the project, the greater the commission payable to Global Keys Pty Ltd. The trial judge regarded each of these matters as reflecting adversely on Mr Keayes' credit.

Despite Mr Robberds' criticisms, the findings by the trial judge relating to the expenditure by Mr Keayes are supported by his own evidence. Mr Keayes initially denied charging personal expenses to the credit card. However, he subsequently resiled from this position, but claimed that the private expenses were in lieu of salary. Among other things, he admitted charging the costs of a trip by his daughter to Australia "to see her friends, attend the U2 concert and sort out some things for University". He also gave evidence that he determined the limit on his own salary, which he claimed that he set at $150,000 per annum. This evidence amply supported the trial judge's findings and provided support for the adverse view he formed as to Mr Keayes' credit.

Similarly, Mr Keayes' own evidence was consistent with the conclusion that the arrangements he had made meant that the more Global Keys Pty Ltd spent, the more it would recoup from BAG.

"The more Global Keys ran up in expenses the more it would get back from the Swiss company, is that not right?---Depending on what - I don't like - the question is trying to infer other than fact. The fact is that whatever the credit cards ran up for the development of the technology would be paid by Brisalebe AG.

The more you spent the more Global Keys could charge the Swiss company, is that not right?---Well, Global Keys did not act in that way, whatever it spent it would claim."

In addition, the terms of the agreement, which was apparently intended to regularise retrospectively the payment of commission to Global Keys Pty Ltd, were in evidence. The agreement supported the trial judge's assessment of the arrangements.

The third illustration concerns Mr Robberds' attack on the trial judge's finding that a contemporaneous note made by a patent attorney was consistent with Mrs Searle having played an important role in the "discovery" of the new technology. The trial judge viewed the note, which recorded observations made to the patent attorney by Mr Keayes, as inconsistent with the suggestion that Mrs Searle's role in the project was solely as a clairvoyant. But the note itself, and Mr Keayes' cross-examination, supports the conclusion reached by the trial judge. It is perfectly true, as Mr Robberds pointed out, that the note does not of itself demonstrate that Mrs Searle played the role that she claimed in the development of the processes for measuring the tenderness of meat. However, the note was inconsistent with the case being put by Mr Keayes and consistent with Mrs Searle's case.

For these reasons we consider that there is no basis for overturning the trial judge's conclusions as to credit. Nor is there any basis for overturning the critical findings of fact, insofar as they depended on the trial judge's assessment of the credit of Mrs Searle and Mr Keayes.

Fresh Evidence

The general principle governing the circumstances in which fresh evidence will be received was stated by Dixon J. in Orr v Holmes (1948) 76 CLR 632, at 640:

"If a trial has been regularly conducted and the party against whom the verdict has passed cannot complain that evidence has been wrongly received or rejected or that there has been a misdirection or that he has not been fully heard or has been taken by surprise or that the result is not warranted by the evidence, the successful party is not to be deprived of the verdict he has obtained except to fulfil an imperative demand of justice. The
discovery of fresh evidence makes no such demand upon justice unless it is almost certain that, if the evidence had been available and had been adduced, an opposite result would have been reached and unless no reasonable diligence upon the part of the defeated party would have enabled him to procure the evidence."

See also Council of the City of Greater Wollongong v Cowan (1954) 93 CLR 435, at 444-445, per Dixon CJ. In Commonwealth Bank of Australia v Quade (1991) 178 CLR 134, at 141-142, the judgment of the Court includes the following passage:

"In cases where all that is involved is the discovery by the unsuccessful party of fresh evidence, Orr v Holmes and Greater Wollongong Corporation v Cowan establish that the reconciliation of "the demands of justice" and the "policy" that there be an end to litigation at least prima facie (or "generally") dictate that the successful party should be deprived of the verdict in his favour only if the unsuccessful party persuades the appellate court that there was no lack of reasonable diligence on his part and that it is reasonably clear that the fresh evidence would have produced an opposite verdict. Such a stringent rule in that ordinary class of case is supported by considerations of both justice and public interest. Considerations of justice support it in that it would be unfair to the successful party if he were to be deprived of a verdict obtained after a trial on the merits and be subjected to the expense, inconvenience and uncertainty of a further trial merely because some relevant evidence had, without fault on his part, been unavailable to the unsuccessful party at the time of the trial. Considerations of public interest support it in that it is desirable in the public interest that there be finality in litigation in other than the truly exceptional casse. If all that was necessary to procure the setting aside of a regularly obtained verdict was that the unsuccessful party show that fresh evidence which might have affected the outcome of the trial has become available after the trial, the verdicts of the courts would be of a provisional character only, being subject to the discovery of further relevant evidence."

The first item of evidence sought to be adduced consisted of notes prepared by Mr Keayes, which were provided to the patent attorneys who prepared the patent applications of May and June 1993. Not only was this material prepared by Mr Keayes himself, but the transcript makes it clear that Mr Keayes had access during the trial to the file of which the notes formed part. The file had been produced under subpoena by the patent attorneys and Mr Keayes inspected the file and marked certain documents, access to which he wished to have restricted for reasons of commercial confidentiality. Indeed the notes were actually marked for identification in the course of the trial. Thus the requirement that there be no lack of reasonable diligence in relation to the production of the document at trial is not satisfied.

The second item consisted of statements prepared by Mrs Searle and Mr Jones in January 1994, for the Australian Securities Commission. However, these documents were part of document number 390, discovered by Mrs Searle. The document was described in Mrs Searle's affidavit of discovery as follows:

"390. Letter A. Paterson to P. McNamara of ASC"

Although Mr Keayes claimed in an affidavit that he did not see the statements when undertaking inspection, we would not be prepared to infer, without more evidence, that the statements were not annexed to document 390 at the time of inspection. Moreover, the first page of document 390, which was a letter that Mr Keayes saw, made it clear that there was a document annexed to the letter. Even if it was not annexed to the copy of the letter seen by Mr Keayes, he took no steps to obtain the annexure.

In any event, Mr Keayes acknowledged in his affidavit, prepared for the motion to adduce further evidence, that he had seen the statements of Mrs Searle and Mr Paterson in October 1994. He had done so when "flicking through" a folder belonging to senior counsel for Mrs Searle which one of Mr Keayes' team had inadvertently taken from court. Although Mr Keayes said he did not read the statements at the time, it is clear that he knew of their existence before the hearing before the trial judge resumed in November 1994.

Indeed, Mr Keayes also acknowledged that he had actually read a copy of Mrs Searle's statement in January 1995. This copy was said by Mr Keayes to have been made, without his knowledge, by his sister and retained by her. The last two hearing days before the trial judge did not take place until 3 and 4 April 1995. Thus, Mr Keayes had read the statement before the conclusion of the case and could have sought, through his counsel, to adduce it in evidence had he not (as he said) forgotten about reading it. Accordingly, the requirements for the reception of the statements have not been met and Mr Keayes' application should be refused.

The Orders

The substance of Mr Robberds' submission was that the Mankato declarations, which the trial judge found represented the final agreed position between the parties, did not address the question of property in the so-called technology - that is, in the ideas described in the patent applications. Accordingly, the orders made by the trial judge went beyond the terms of the Mankato declarations. There is very considerable force in this submission.

The Mankato declarations included an agreement by Mr Keayes

"that any prospectus pertaining to [BAG] reflect the original purpose of the BRISALEBE venture, namely that 75% of [BAG] shares and [BAGL] shares be vested in a foundation whose purpose is to fund projects for "The Good of the World". [Emphasis added.]

This language suggests that the foundation was to be a vehicle to receive income from its shareholdings, rather than the body which owned any relevant patents or confidential information. This view is reinforced by the next declaration, which records Mr Keayes' agreement that the board administering the foundation be made up of eminent persons with "no vested interests in BRISALEBE (sic) or any other 'Keayes Group Company'". Such a foundation would not ordinarily be expected to hold or exploit patents, let alone develop and finance a "revolutionary new technology" (as the BAGL prospectus described the idea). At the time the Mankato declarations were finalised (13 December 1993) a copy of the BAGL prospectus had already been lodged with the Australian Securities Commission. That prospectus stated that BAG's principal asset was the "revolutionary new technology" known as the Eyekey Livestock Evaluation System. The trial judge did not make a finding as to whether Mrs Searle was aware of the terms of the prospectus at the time of the Mankato meetings. However, in her affidavit, Mrs Searle stated that, on 18 November 1993, she had received a letter advising her that she had been issued 200,000 shares in BAGL "in acknowledgment of the valuable assistance" she had given Mr Keayes. Whatever her state of knowledge, we would infer that some investors acquired shares in BAGL on the faith of the statement in the prospectus that the "technology" was owned by BAG.

The nature of the "final agreed position" reached at the Mankato meetings is further elucidated by Mr Keayes' agreement as to the shareholdings in BAG and BAGL. This specified the foundation's shareholding to be 75%, while Mr Keayes was to receive 5%, Mrs Searle 3% and others 4.5%. Mr Keayes (and presumably Mrs Searle) also agreed that the membership of the board of this group of companies, including BAGL but excluding BAG, was to comprise five named persons, with Mrs Searle and Mr Keayes to act as joint managing directors. Although BAG was excluded from the declaration concerning membership of the board of the companies within the group, there is nothing in the trial judge's findings or the documentation to suggest that the parties contemplated that the "eminent persons" who were to administer the foundation would also conduct the affairs of BAG.

Mr McGrath correctly pointed out that the trial judge found that the "final agreed position" reached at Mankato was "in respect of ownership of the interests in the technology". The trial judge also concluded that the final agreement, as embodied in the Mankato statement, was that

"the proprietary interest in and income relating to the technology was for the benefit of the persons and bodies listed therein in the percentages agreed in that statement".

This language is somewhat inexact. Mr McGrath submitted that it was a reference to evidence given by Mrs Searle about a discussion with Mr Keayes in October 1992. In that discussion she claimed to have said that the

"technology itself is to be owned by the board of the Good of the World Foundation...I think it is important that the company have the income but not actually the technology itself."

Although the trial judge preferred Mrs Searle's account over that of Mr Keayes, he made no specific finding that this comment was made or agreed to by Mr Keayes.

Once the finding is made that the Mankato declarations reflected the final agreed position of the parties, some care needs to be taken before orders are made which depart substantially from the terms of the agreement, at least unless the departure is necessary to protect the legitimate interests of third parties. Under the Mankato declarations, the interest of the foundation in the project was to be constituted by its shareholding in BAG, BAGL "and any other company associated with the Eyekey Livestock Evaluation System". The interests of all of the named individuals in the project were to be constituted by their shareholdings in the companies, as specified in the declarations. The agreement did not address ownership of the "patents" or confidential information, except that the patent applications were to be changed to reflect the role of Mrs Searle and Mr Keayes as the "co-inventors of the said systems".

The trial judge found that the references to the Good of the World Foundation in the dealings between the parties, including the Mankato declarations, were intended to express a desire to benefit public charitable purposes generally. It would seem to go well beyond the expression of a public charitable purpose to vest in the foundation not merely shares, but processes which are the subject of patent applications and which require further development and refinement.

In this connection, we note that the Attorney-General of New South Wales was not a party to the proceedings below. The general principle is that the Attorney-General represents all absent charities and that, where a gift is to charity generally, no-one can represent it but the Attorney-General: Ware v Cumberlege (1855) 20 Beav. 503, at 510; 52 ER 697, at 700, cited in Uniting Church in Australia Property Trust (NSW) v Monsen [1978] 1 NSWLR 575, at 590. The orders were made by the trial judge without the Attorney-General of New South Wales having had the opportunity to make submissions as to whether those orders are an appropriate means of giving effect to the public charitable purpose identified in the judgment.

The orders made by the trial judge imposed a constructive trust on BAG, because the Swiss corporation was controlled by Mr Keayes and it had acquired property in the technology in circumstances where Mr Keayes had breached his fiduciary duty to Mrs Searle. We accept, having regard to the trial judge's findings, that it would be unconscionable for any entity controlled by Mr Keayes to act in a manner inconsistent with the arrangement ultimately embodied in the Mankato declarations. However, we think there are a number of serious difficulties with the orders made by his Honour, some of which flow from what we have already said.

First, the orders travel beyond the arrangements embodied in the Mankato declarations and beyond what would seem to be appropriate to give effect to the public charitable purpose identified by his Honour. As we have said, the Mankato declarations did not envisage that the ideas described in the patent applications, or the confidential information, would be vested in a foundation. Much less did the arrangements contemplate that the "technology" would vest in a company which was not in existence at the time of the declarations and the board of which did not comprise the "eminent persons" identified in the declarations. Nor did the arrangements envisage that a charitable corporation would be responsible for developing, financing and exploiting the ideas described in the patent applications.

Secondly, it is not clear how the trial judge's orders, which require the patent applications and confidential information to be transferred to GOWFL, can be enforced having regard to the fact that BAG is a Swiss corporation. We have been told that BAG is in provisional liquidation, but we do not know the effect of liquidation under Swiss law, nor whether the creditors of BAG would be adversely affected by the order that BAG transfer the specified assets to GOWFL. As far as we are aware, the liquidator (or equivalent officer under Swiss law) has not had an opportunity to put submissions in these proceedings.

A third difficulty is that the orders might adversely affect the investors in the project who have subscribed for shares in BAGL. As we noted earlier, the current directors of BAGL have informed the Court that, if orders are to be made, they prefer the form of order proposed by Mr Robberds. It is by no means clear whether the current directors of BAGL can claim to represent the interests of all investors. (We were informed that there had been a change of directors in the course of the proceedings). It does not appear that the investors, as distinct from the directors of BAGL, have been given an opportunity to express their views as to the appropriate form of order, having regard to the trial judge's findings of fact. As Davies J. points out in his judgment, the investors may wish to demonstrate that some of the moneys invested (in whatever form) can be traced into assets which Mrs Searle and GOWL seek to have vested in GOWL.

It is undesirable that this litigation should be prolonged. However, we do not think that we are in a position to make final orders in place of those made by the trial judge, whether in the form proposed by Mr Robberds or some other form. We take this view for several reasons.

l The parties should have an opportunity to put on evidence as to the current position of BAG in Switzerland and to make submissions as to what effect, if any, BAG's position has on the orders that should be made. This opportunity should include evidence as to the effect of the appointment of a liquidator under Swiss law (assuming that has actually occurred). Moreover, the liquidator (or equivalent) of BAG should be given an opportunity to make submissions on the form of any orders.

l The parties should also have an opportunity to put on evidence as to the current position of BAGL and to make submissions on what effect, if any, that position has on the orders that should be made. We refer specifically to BAGL because there was a suggestion from the bar table that it may be the subject of an application for winding up.

l Having regard to the trial judge's findings that the Mankato arrangement was intended to benefit a public charitable purpose, directions should be given for the Attorney-General of New South Wales to be notified of the proceedings. The Attorney-General may or may not wish to make submissions as to the form of order, or to join in the proceedings, but it is appropriate that he be given the opportunity to do so.

l An opportunity should be provided by the trial judge for investors in the project (other than the directors of BAGL, which is already a party) to put on evidence and make submissions as to the form of orders. It will be necessary for the trial judge to make directions for the investors to be notified of this opportunity and for any evidence and submissions to be presented in an orderly and timely fashion. A representative order may be appropriate, but this is a matter for the trial judge.

Accordingly, the proceedings should be remitted to the trial judge for the purpose of framing orders consistent with these reasons. The further hearing should not canvass the findings of fact already made by his Honour as to the terms of the agreement, ultimately reflected (as he found) in the Mankato declarations. Subject to what we have said, the further conduct of the matter should be subject to the direction of the trial judge. Any other orders made by the trial judge should be framed so as not to affect the rights of persons or corporations who are not parties to the proceedings.

Orders

Paragraphs 1, 2, 3, 4, 5, 6 and 10 of the orders made by the trial judge should be set aside. The proceedings should be remitted to his Honour for the making of final orders consistent with these reasons. Since the challenges by Mr Keayes and his companies to the trial judge's findings of fact and their application to adduce further evidence have failed, the appellants should pay three-quarters of the costs of the appeal of Mrs Searle and GOWFL.

I certify that this and the preceding

40 pages are a true copy of the

Reasons for Judgment of Burchett and

Sackville JJ.

Associate:

Dated: 17 November, 1995

Heard: 18-19 September, 1995

Place: Sydney

Decision: 17 November, 1995

Appearances: Mr L. Robberds QC, appeared for the appellants.

Mr G.M. McGrath, instructed by Aitken and Magney, Solicitors, appeared for the first and second respondents.

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