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Endnotes

^[1] New Zealand Law Commission Arbitration (NZLC R20, Wellington, 1991). The draft statute recommended by the Commission is set out in para 13 of that report at pages 6–57 (inclusive). See also the discussion paper which preceded the Commission’s report: New Zealand Law Commission Arbitration (NZLC PP7, Wellington, 1988).

^[2] Model Law on International Commercial Arbitration; the Model Law can be accessed at <http://www.uncitral.org> under the heading Adopted Texts. Section 3 of the Act makes it clear that the material to which an arbitral tribunal or a court may refer in interpreting the Act includes the documents relating to the Model Law and originating from UNCITRAL or the Working Group of UNCITRAL which prepared the Model Law. These materials are referred to as travaux préparatories. The travaux préparatories for the Model Law can be found at <http://www.uncitral.org> under the heading Travaux Préparatories.

^[3] New Zealand Law Commission Improving the Arbitration Act 1996 (NZLC PP46, Wellington, 2001) para 2.

^[4] New Zealand Law Commission, above n 3, para 3.

^[5] David Williams QC and Fred Thorp Arbitration for the 21st Century – A Practical Guide (New Zealand Law Society Seminar, 2001).

^[6] Arbitration Act 1996, s 5(a).

^[7] Lord Cooke of Thorndon put the point in this way:

The new-found emphasis on party autonomy represents a far cry from the days when Scrutton LJ recoiled from the thought that an English arbitration could be conducted without the possibility of the court being entitled to exercise its statutory power to require the arbitrators to state a special case. In his famous analogy of Alsatia the Lord Justice in effect likened an area of arbitration immune from that power as a haunt of thieves. Since then the pressures of judicial workloads have led the courts to entertain towards arbitrators a sense of gratitude rather than rivalry, of respect rather than content.
Lord Cooke of Thorndon "Party Autonomy" (1999) 30 VUWLR 257, 258_259.

^[8] Section 14 of the Act is set out in para 11 of Preliminary Paper 46 and is reproduced in para 9 below.

^[9] Dolling-Baker v Merrett [1991] 2 All ER 890, 899 (CA).

^[10] Esso Australia Resources Ltd v Plowman (1995) 128 ALR 391 (HCA).

^[11] See Ali Shipping Corp v Shipyard Trogir [1998] 2 All ER 136 (CA).

^[12] Lord Saville "The Arbitration Act 1996" [1997] LMCLQ 503, 507.

^[13] Arbitration Act 1996, first sch, arts 34_36.

^[14] Arbitration Act 1996, second sch, cl 5.

^[15] Scott v Scott [1913] AC 417 (HL).

^[16] McPherson v McPherson [1936] AC 177 (PC).

^[17] Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA).

^[18] Allan v Clibbery [2002] 1 All ER 865 (CA).

^[19] Television New Zealand Ltd v Langley Productions Ltd [2000] 2 NZLR 250 (CA).

^[20] Television New Zealand Ltd v Langley Productions Ltd, above n 19, 255, para 38.

^[21] Television New Zealand Ltd v Langley Productions Ltd, above n 19, 255, para 39.

^[22] Occasionally, it may be that the arbitral tribunal could issue an injunction exercising powers under s 12(1)(a) of the Act.

^[23] As an example of the above, in M v Bank of New Zealand (25 May 1998) Court of Appeal CA 48/98, the Bank of New Zealand had been held to be in breach of a confidential settlement agreement by providing details of it to a firm of accountants that it had contracted to monitor the settlement. The proceeding was then remitted to the High Court to consider the appropriate remedy. The plaintiffs sought repayment of all settlement repayments it had made, rather than damages. Chambers J rejected this argument (which was based on the particular wording of the clause), but went on to say that even if damages had been sought, they would not have been awarded because the plaintiffs had failed to prove any harm; in particular, Chambers J noted that the firm of accountants instructed had themselves entered into a confidentiality agreement with the Bank of New Zealand, and that there was no evidence that the accountants had used the information contrary to the plaintiffs' interests. (See M v Bank of New Zealand (17 March 2000) High Court Auckland CP 572/96 Chambers J).

^[24] For a discussion of this topic see the judgment of Dame Elizabeth Butler-Sloss P in Allan v Clibbery, above n 18, paras 51_66 (CA); compare with the judgment of Thorpe LJ. These issues are discussed further in chapter 3 below.

^[25] Arbitration Act 1996, s 14(1).

^[26] Arbitration Act 1996, s 14(2).

^[27] Arbitration Act 1996, s 2(1).

^[28] K/S Norjarl A/S v Hyundai Heavy Industries Co Ltd [1991] 3 All ER 211, 228 (CA).

^[29] Esso v Plowman above n 10, 398_399 (HCA).

^[30] See also Arbitration Act 1996, first sch, art 19.

^[31] See also, Arbitration Act 1996, first sch, art 24 which contemplates disputes being determined on the papers or by oral hearing.

^[32] New Zealand Law Commission Arbitration, above n 1, para 358.

^[33] New Zealand Law Commission Arbitration, above n 1. The Commission said:

The legislation adopting the Model Law in British Columbia and in California includes a provision to the effect that, subject to the agreement of the parties, arbitral proceedings are to be held in camera. On the basis that this is the traditional practice in arbitration proceedings in New Zealand, is often an explicit term of an arbitration agreement, and in some situations may be an implied term of an arbitration agreement, we do not recommend any substantive alteration or addition to article 24.

^[34] Esso v Plowman, above n 10, 404 (Brennan J), 409 (Dawson J), 409_11 (Toohey J) and 416 (McHugh J) (HCA).

^[35] Hassneh Insurance Co of Israel v Mew [1993] 2 Lloyd's Rep 243, 246_247.

^[36] For example, see Yves Derains and Eric A Schwartz, A Guide to the New ICC Rules of Arbitration (Kluwer Law International, The Hague, London, Boston, 1998) 12. When the International Chamber of Commerce Rules were revised the option of including a general provision requiring the parties to respect the confidentiality of the arbitration was expressly rejected.

^[37] We express our gratitude to David Williams QC, Pierre Bienvenue of Ogilvy Renaud, and Audley Sheppard of Clifford Chance, London for supplying this information to us.

^[38] For example, the International Court of Arbitration in Paris, the London Court of International Arbitration or the International Centre for Dispute Resolution.

^[39] For example, art 34 of the International Arbitration Rules of the International Centre for Dispute Resolution which provides: "Confidential information disclosed during the proceedings by the parties or by witnesses shall not be divulged by an arbitrator or by the administrator. Unless otherwise agreed by the parties, or required by applicable law, members of the tribunal and the administrator shall keep confidential all matters relating to the arbitration or the award." A useful summary of the various positions on confidentiality adopted by international bodies is set out in David AR Williams QC and Amy Buchanan "The Confidentiality of Arbitral Proceedings: Where to Next?" (AMINZ Annual Conference, Hamilton, 27_29 July 2001).

^[40] The protocol can be obtained from AMINZ.

^[41] This is also consistent with the philosophy underpinning arts 19 and 24 of the first sch to the Act which deal, respectively, with the procedure to be followed in conducting the proceedings and whether the hearings are held orally or on the papers. In each case, the arbitrating parties are free to choose their own procedure: only if they have failed to mandate a particular procedure will the arbitral tribunal have a discretion to conduct the proceedings as it thinks fit.

^[42] Dolling-Baker v Merrett, above n 9.

^[43] Esso v Plowman, above n 10, 392.

^[44] Esso v Plowman, above n 10, 401_402.

^[45] For example, Industrotech Constructors Inc v Duke University (1984) 314 SE 2d 272, 274; Giacobazzi Grandi Vini SpA v Renfield Corp [1987] US Dist Lexis 1783; USA v Panhandle Eastern Corp (1988) 118 FRD 346 and Alliance Petroleum Australia NL v Australian Gaslight Co (1983) 34 SASR 215,

229_232.

^[46] Esso v Plowman, above n 10, 400.

^[47] Several briefs of evidence from expert witnesses, relied upon in the course

of the litigation, are set out in full in (1995) 11 Arbitration International

265_298.

^[48] In fact, there is English authority holding that expert witnesses and arbitrators do owe duties of confidentiality to the parties to an arbitration. (See London v Leeds Estates [1995] 2 EG 134, 137 (HC)). This decision was premised on the fact that they were taken to have impliedly agreed to such duties. However, it is not necessary for there to be agreement. Persons who receive information, knowing it to be confidential, also have a duty of confidence imposed upon them, whether or not they agreed to respect the confidence. Thus, in Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109, 281 (HL) Lord Goff stated:

... a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he be precluded from disclosing the information to others ... The existence of this broad general principle reflects the fact that there is such a public interest in the maintenance of confidences, that the law will provide remedies for their protection.

^[49] Esso v Plowman, above n 10, 401.

^[50] For example, see Home Office v Harman [1983] 1 AC 280 (HL).

^[51] Esso v Plowman, above n 10, 403_404.

^[52] Esso v Plowman, above n 10, 406; as to the banker's duty see Tournier v National Provincial and Union Bank of England [1924] 1 KB 461, 473 Bankes LJ (CA).

^[53] Esso v Plowman, above n 10, 411.

^[54] Esso v Plowman, above n 10, 411.

^[55] Arbitration Bill 1996, no 117_2 (the Government Administration Committee Report) vi. On the second and third readings of the Bill, Peter Hilt, the Member of Parliament who introduced the Bill, referred specifically to the clause that became the present s 14 stating:

There is now also a clause in the Bill providing that, unless the parties otherwise agree, an arbitration agreement is to be taken to include a term that the parties will keep confidential any information disclosed in the course of the arbitration proceedings and any award arising out of the arbitration. This clause is meant to confirm that privacy is one of the essential attributes of arbitration. It should negate the effects of the finding in a recent Australian case that confidentiality is not an assured characteristic of arbitration. (See Peter Hilt, (21 August 1996) 557 NZPD 14247).

^[56] Williams and Thorp, above n 5, 20.

^[57] Lord Saville, above n 12. Lord Saville was the Chairman of the Departmental Advisory Committee which prepared the Bill on which the United Kingdom Arbitration Act 1996 was based.

^[58] Dolling-Baker v Merrett, above n 9. See para 7 of Preliminary Paper 46 (New Zealand Law Commission), above n 3.

^[59] Ali Shipping Corp v Shipyard Togir, above n 11.

^[60] Ali Shipping Corp v Shipyard Togir, above n 11, 146_154.

^[61] Lord Neil QC "Confidentiality in Arbitration" (1996) 12 Arbitration International 287, 316.

^[62] Hon Andrew Rogers QC and Duncan Miller "Non-Confidential Arbitration Proceedings" (1996) 12 Arbitration International 319, 344.

^[63] New Zealand Law Commission, above n 3.

^[64] For example, because they are parties to an arbitration agreement contained in a substantive contract and cannot, after the dispute has arisen, agree on the way in which confidentiality is to be addressed.

^[65] Arbitration Act 1996, s 5(a).

^[66] New Zealand Law Commission, above n 1, para 358.

^[67] As set out in footnote 55, Peter Hilt, on the second and third readings of the Bill, stated that a major purpose of s 14 was to "negate the effects of the finding in a recent Australian case that confidentiality is not an assured characteristic of arbitration". He went on to refer to the speed with which the Bill was (finally) brought before Parliament: "I also want to thank the parliamentary counsel Jenny Walden for the immense amount of work that she has done under incredible pressure over the past few weeks to get this Bill back into the House in time for its passage before the House rises." (See Hilt, above n 55.)

^[68] See paras 36 and 35 above. As a way of assessing the importance of confidentiality in arbitrations to potential parties, rather than arbitrators or lawyers, we thought it would be useful to carry out a review of non-legal magazines and journals that have discussed arbitration from the stand-point of participants. To do so we searched a commercial database of approximately 3000 full text magazines and journals (typically of a business, trade or general interest nature) for articles that contained a general discussion on arbitration. Of the 27 that fit this criteria, all expressly mentioned confidentiality and/or privacy as a key advantage of arbitration. (The other advantages mentioned were speed and cost.) See Timothy S Bland "What's the Verdict on Arbitration" (January 2002) Security Management 85; David Rubenstein "Steering Clear of the Courtroom: Alternative Dispute Resolution Gaining Ground" (January 2002) Corporate Legal Times International 14; Mark Bourrie "The Verdict is In" (19 February 2001) Canadian Business Canada 60; Carolyn Hong "Getting Arbitration Back on Track" New Straits Times-Management Times Malaysia; Stuart Markus "Better than Court" (2 February 2002) Long Island Business News New York 1A; Louis Lavelle "Happy Endings Not Guaranteed" (20 November 2000) Business Week 69; James A Calderwood "Alternative Dispute Resolution" (October 1999) Transportation and Distribution 140; Erik K Blatt and Larry Wollert II "Resolving Disputes" (September/October 1999) Journal of Property Management 46; Gerald M Levy "Resolving Real Estate Disputes" (Autumn 1999) Real Estate Issues 1; Maxine Lans Retsky "Dispute does not a lawsuit have to make" (24 May 1999) Marketing News 5; Paul D Winston "ADR Should be Considered to Settle Claims" (1 March 1999) Business Insurance 29; Susan Pemberton "See You Out of Court?" (24 December 1998) People Management 20; Andrew Wood "Legal Costs Too High?" (4 November 1998) Chemical Week 33; Paul Geoghan "Stay Out of Court" (September 1998) Journal of Accountancy United States 77; David L Coleman "I'll See You Out of Court" (February 1998) Physician's Management 54; Alison Staniforth "Building and Engineering Disputes: Changing Resolutions: Part 1" (1997) Credit Control 4; James A Calderwood "Arbitrate Rail Disputes" (December 1997) Transportation and Distribution United States 99; Robert Y Knowlton "When is Arbitration the Right Choice for Your Business?" (October 1997) South Carolina Business Journal 12; Heber Simmons II "Alternative Dispute Resolution: A Growing and Attractive Option" (31 March 1997) Mississippi Business Journal 12; Louis B Kushner "Lawsuit Alternatives" (December 1996) Executive Report 52; Katharine F Braid "Arbitrate or Litigate: A Canadian Corporate Perspective" (1991) Canada-United States Law Journal 465; Richard M Reilly "Litigation is Going Out of Style ... Here are the Alternatives" (February 1994) Directorship United States 3; Theresa Donahue Egler "The Benefits and Burdens of Arbitration" (July 1995) HR Magazine 27; James F Henry "Alternative Dispute Resolution for Executive Lawsuits" (January/February 1996) Corporate Board United States 15; "Charles E Davis and Richard D Faulkner "Avoid the Courts" (April 1996) Florist United States 62; Robert V Kuenzel "Alternative Dispute Resolution: Why All the Fuss?" (July/August 1996) Compensation and Benefits Review United States 43; Jan Sheehan "Having Your Day Out of Court" (August 1996) Colorado Business 80.

^[69] See in particular, para 29 above.

^[70] For example, see Re Dickinson [1992] 2 NZLR 43 (CA) and Wattie v Commissioner of Inland Revenue (1997) 18 NZTC 13,297, 13,299 (CA). In Wattie the Court of Appeal declined to uphold a confidentiality order made at first instance ((1996) 17 NZTC 12,712) on the grounds that it was contrary to the public interest for information bearing upon rent fixing processes to be concealed from the public. Although Wattie v Commissioner of Inland Revenue was ultimately determined by the Privy Council [1999] 1 NZLR 529, the Privy Council expressed no views on the confidentiality issue.

^[71] New Zealand Law Commission, above n 3, para 12.

^[72] For example, if a regulatory authority was seeking information.

^[73] Courts are given a discretion to compel witnesses to reveal information provided in confidence in certain prescribed circumstances. See, in particular, s 35 of the Evidence Amendment Act (No 2) 1980. In deciding whether to compel a witness to give information or to produce a document which would be a breach of confidence the court is required to have regard: (a) to the special relationship existing between that person and the person from whom he or she obtained the information or document; (b) the likely significance of the evidence to the resolution of the issues to be decided in the proceedings; (c) the nature of the confidence and of the special relationship between the confidante and the witness; and (d) the likely effect of the disclosure on the confidante or any other person: see s 35(1) and (2) Evidence Amendment Act (No 2) 1980. Proposals for reform of this area of the law were made by the Law Commission in its report New Zealand Law Commission Evidence _ Reform of the Law (NZLC R55 _ vol 1, Wellington, 1999) paras 260_274 and draft s 67 of the Evidence Code (set out in New Zealand Law Commission Evidence: Evidence Code and Commentary (NZLC R55 _ vol 2, Wellington, 1999) 174. Section 67 reverses the effect of the discretion by enabling a judge to order that the information not be disclosed in a proceeding if satisfied that the public interest in the communication or information being disclosed is outweighed by the public interest in preventing harm to a person or in preventing harm to the particular relationship in the course of which the information was obtained or relationships of a similar kind or maintaining activities which contribute to or rely upon the free flow of information.

^[74] In the context of the analogous obligation arising out of a banker/customer relationship it has been held, by the Privy Council, that there is no absolute duty on a bank to inform the customer of the existence of the subpoena; the obligation imposed on a bank is to do no more than to use its best endeavours to inform its customer of the subpoena. See Robertson v Canadian Imperial Bank of Commerce [1995] 1 All ER 824, 829_831 (PC).

^[75] We use the term "private" deliberately to exclude litigation in the courts so that the open justice principle is not relevant to this inquiry.

^[76] New Zealand Law Commission, above n 1, para 360.

^[77] Television New Zealand Ltd v Langley Productions Ltd, above n 19. There are other New Zealand and English authorities where information disclosed at arbitrations was required to be produced at subsequent court hearings; none of these decisions, however, expressly considered the issue in the context of balancing confidentiality against open justice; see Rawstone v Preston Corp (1885) 30 Ch D 116 (shorthand notes taken by a party's agent at an arbitration were required to be produced at a court hearing); Duke of Buccleuch v Metropolitan Board of Works (1872) LR 5 HL 418; Attorney-General for Manitoba v Kelly [1922] 1 AC 268 (PC) and Perriam v Newmans Tours Ltd [1991] 2 NZLR 663 (CA) (all holding that an arbitrator can be required to give evidence at a subsequent hearing as to the subject matter of the arbitration); Shearson Lehman v Maclaine Watson & Co [1989] 1 All ER 1056 (HC) and Dolling-Baker v Merrett, above n 9, 899 (holding that documents produced in an arbitration could be ordered to be produced at a subsequent court hearing).

^[78] See also, para 7 above. It is of interest to note that once this ruling had been given the appeal was abandoned.

^[79] 887574 Ontario Inc v Pizza Pizza Ltd (1994) BLR(2d) 239.

^[80] See also s 137(2) of the Courts of Justice Act RSO 1990 cC-43 (Ontario).

^[81] See James Veach "The Law and Practices on the Confidentiality of Reinsurance Arbitration Awards _ How Courts View Applications to Seal" [2000] Insurance Advocate 22. Usually, the court will be dealing with applications to stay or to enforce an award as, in many jurisdictions, the courts do not exercise appellate jurisdiction over arbitral awards.

^[82] Feffer v Goodkind (1991) NY Misc LEXIS 737.

^[83] Ashley Gauthier "Secret Justice: Alternative Dispute Resolution" (2001) 25 News Media and the Law 1.

^[84] Television New Zealand Ltd v Langley Productions Ltd, above n 19, para 39 (HC).

^[85] We deal later with a change in emphasis which seems to have been adopted in New Zealand from frustration of `the administration of justice' to taking account of the (more broader) `interests of justice'. See para 86 below. See also Morag McDowell "The Principle of Open Justice in a Civil Context" [1995] NZ Law Rev 214 and Claire Baylis "Justice Done and Justice Seen to be Done _ The Public Administration of Justice" (1991) 21 VUWLR 177.

^[86] See for example R v Mahanga [2001] 1 NZLR 641 (CA).

^[87] Based on the rationale that a right to express opinions carries with it a right to obtain information upon which to form opinions. Edmonton Journal v Attorney-General for Alberta (1989) 64 DLR (4th) 577 (SCC); Richmond Newspapers v Virginia (1980) 448 US 555. The principle has been accepted virtually worldwide, and by differing cultures. For example, in Repeta v The Japanese Government (8 March 1989) Supreme Court of Japan (O)-436 of 1988, the Supreme Court of Japan stated: "Paragraph 1, Article 82 of the Constitution provides that hearings and confrontations in the trials shall be open to the public. The gist of the matter is to guarantee the conducting of hearings open to the general public in a fair manner as an established system, thus in turn securing the confidence of the people in regard to the trials."

^[88] Lewis v Wilson & Horton, above n 17.

^[89] Scott v Scott, above n 15. Plainly, however, the principle predates Scott v Scott. In Richmond Newspapers v Virginia, above n 87, 565_571 Burger CJ traces its history back to before the Norman Conquest.

^[90] McPherson v McPherson, above n 16.

^[91] An excellent summary of the views of the Law Lords is to be found at paras 32_41 (inclusive) of the judgment of Dame Elizabeth Butler-Sloss P in Allan v Clibbery, above n 18. Additional historical information which puts the judgment in Scott v Scott in context is to be found in paras 87_88 of Thorpe J's judgment in the same case.

^[92] Scott v Scott, above n 15.

^[93] Scott v Scott, above n 15, 437.

^[94] Scott v Scott, above n 15, 437_438.

^[95] Scott v Scott, above n 15, 436 (Viscount Haldane LC) and 442 (Earl of Halsbury).

^[96] Scott v Scott, above n 15, 436.

^[97] G. Coop. Cas in Ch 106.

^[98] 6 Times LR 38.

^[99] Scott v Scott, above n 15, 441_442.

^[100] Neither of the authorities cited seem to support the proposition. The first, in the matter of Lord Portsmouth (1815) G Coop 106; 35 ER 495 held that it had always been Chancery practice to hear family disputes in private if both parties consented. But the report of the case does not refer to the Lord Chancellor sitting as an arbitrator. The second case, Malan v Young (1889) 6 Times LR 38, appears to have involved an arbitrator but was not a family dispute. The action concerned a claim against the headmaster of Sherborne School in libel, brought by an assistant master. By consent, counsel requested that the hearing be in private. It appears, from the report, that Denman J was referred to some case law but was unsure whether he should properly make the direction and so left court to consult with other judges. On his return he directed that the trial be held in private. The report indicates that a barrister present in court objected to this course of action but was ordered to leave by the judge. The report then states that the hearing proceeded in camera. Nothing is said in the report about the judge sitting as an arbitrator. It does appear, however, that one of the counsel appearing before Their Lordships in Scott v Scott was familiar with the Sherborne School case: Sir R Finlay KC is reported in argument as having said that the case was heard in private before the judge as arbitrator: Scott v Scott, above n 15, 423.

^[101] Scott v Scott, above n 15, 439.

^[102] Scott v Scott, above n 15, 476.

^[103] Scott v Scott, above n 15, 477.

^[104] Jeremy Bentham Benthamiana or Select Extracts from the Works of Jeremy Bentham (1843) 115.

^[105] Home Office v Harman [1983] AC 280, 303C (HL).

^[106] Lilly Icos Ltd v Pfizer Ltd [2002] 1 All ER 842, para 25(i) (CA).

^[107] Allan v Clibbery, above n 18, para 16 (Dame Elizabeth Butler-Sloss P).

^[108] Lilly Icos v Pfizer, above n 106.

^[109] Effectively reversing Home Office v Harman, above n 105, on that particular point.

^[110] Lilly Icos v Pfizer, above n 106, para 9.

^[111] Allan v Clibbery, above n 18, para 20 (CA).

^[112] Allan v Clibbery, above n 18, paras 21_28

^[113] Allan v Clibbery, above n 18, paras 29_42 (discussion of Scott v Scott) and 43_49 (procedures used in family proceedings).

^[114] Rule 2(5).

^[115] R v Mahanga, above n 86.

^[116] R v Mahanga, above n 86, 652_653 paras 38_40.

^[117] R v Mahanga, above n 86, 653 paras 41_43.

^[118] R v Mahanga, above n 86, 653 para 44.

^[119] Director of Proceedings v Nursing Council of New Zealand [1999] 3 NZLR 360, 381 (HC). See also P v Wellington Newspapers Ltd [2002] NZAR 337 (HC) Ellis J.

^[120] Broadcasting Corp of New Zealand v Attorney-General [1982] 1 NZLR 120,

131_132 (CA) Cooke J.

^[121] See High Court Rules, r 66 and District Courts Rules 1992, r 69.

^[122] The Laws of New Zealand (Butterworths, Wellington, 1992) Courts, para 31.

^[123] Disputes Tribunals Act 1988, s 39(1).

^[124] Alcoholism and Drug Addiction Act 1966, s 35(1).

^[125] Adoption Act 1955, s 22.

^[126] Mental Health (Compulsory Assessment and Treatment) Act 1992, s 24.

^[127] Domestic Violence Act 1995, s 83, Family Proceedings Act 1980, s 159(2), Guardianship Act 1968, s 27, and Property (Relationships) Act 1976, s 35.

^[128] Children, Young Persons, and Their Families Act 1989, ss 166 and 329.

^[129] Crimes Act 1961, s 375A and Summary Proceedings Act 1957, s 185C(s).

^[130] Courts Martial Appeals Act 1953, s 17.

^[131] See The Laws of New Zealand, above n 122, para 30.

^[132] Broadcasting Corp v Attorney-General, above n 120, and Scott v Scott, above n 15.

^[133] Criminal Justice Act 1985, s 138(5). The judgments in Broadcasting Corp v Attorney-General, above n 120, must be read subject to this provision.

^[134] Criminal Justice Act 1985, s 138(2), (3) and (6). These provisions do not apply to preliminary hearings in a Youth Court: Children, Young Persons, and Their Families Act 1989, s 274(2)(b).

^[135] Coroners Act 1988 s 25(2).

^[136] Commerce Act 1986, s 96(1).

^[137] Agricultural Compounds and Veterinary Medicines Act 1997, s 96. Despite the repeal of the Animal Remedies Act 1967 by s 86(1) and sch 3 of the 1997 Act, the Animal Remedies Board continues to exist under s 96 of the 1997 Act for three years after the date of commencement of that Act or until such earlier date as the Governor-General may fix by Order in Council.

^[138] Taylor v Attorney-General [1975] 2 NZLR 675 (CA); R v Hughes [1986] 2 NZLR 129, 134 (CA) Cooke P.

^[139] Broadcasting Corp v Attorney-General, above n 120.

^[140] Evidence Act 1908, s 13A. This section replaces the procedure evolved in R v Hughes, above n 138.

^[141] Evidence Act 1908, ss 13B_13J, as inserted by s 3 of the Evidence (Witness Anonymity) Amendment Act 1997.

^[142] See the summary of such restrictions set out in The Laws of New Zealand, above n 122, para 32.

^[143] See s 375 of the Crimes Act 1961 and the decision of the Court of Appeal in Broadcasting Corp v Attorney-General, above n 120. Section 375 of the Crimes Act was repealed in 1985 and substituted by s 138 of the Criminal Justice Act 1985. These provisions apply only to criminal proceedings.

^[144] Broadcasting Corp v Attorney-General, above n 120.

^[145] Broadcasting Corp v Attorney-General, above n 120, 122.

^[146] Report on the Powers of Appeal Courts to Sit in Private and the Restrictions Upon Publicity in Domestic Proceedings (1966) Cmnd 3149.

^[147] Report on the Powers of Appeal Courts to Sit in Private and the Restrictions Upon Publicity in Domestic Proceedings, above n 146, 14.

^[148] Arbitration Act 1996, s 5(a).

^[149] See para 35 above.

^[150] Lord Cooke of Thorndon, above n 7, 264.

^[151] Lewis v Wilson & Horton Ltd, above n 16, 566, para 79 (CA).

^[152] Under r 880 of the High Court Rules it is necessary to file in the High Court as an exhibit to an affidavit in support of an application to enforce an award a copy of the award. Thus, unless the rule made it clear that it also referred to enforcement proceedings the purpose of the rule could be undermined.

^[153] An example of a case reported in this way was O v SM [2000] 3 NZLR 114 (HC).

^[154] New Zealand Law Commission, above n 3, paras 18_26.

^[155] Gold and Resource Developments (NZ) Ltd v Doug Hood Ltd [2000] 3 NZLR 318 (CA).

^[156] Arbitration Act 1996 second sch, cl 5(1)(c).

^[157] New Zealand Law Commission, above n 3, para 27.

^[158] Gold and Resource Developments (NZ) Ltd v Doug Hood Ltd, above n 155.

^[159] Pioneer Shipping Co v BTP Tioxide [1982] AC 724 (HL).

^[160] Gold and Resource Developments (NZ) Ltd v Doug Hood Ltd, above n 155.

^[161] Gold and Resource Developments (NZ) Ltd v Doug Hood Ltd, above n 155,

333_335, para 54.

^[162] Gold and Resource Developments (NZ) Ltd v Doug Hood Ltd, above n 155, 334, para 54.

^[163] The New York Convention is incorporated into the Act as the Third Schedule.

^[164] CBI NZ Ltd v Badger Chiyoda [1989] 2 NZLR 669 (CA).

^[165] See also Derek S Firth "A Clever Curved Ball" [2000] NZLJ 370, 373.

^[166] CBI NZ Ltd v Badger Chiyoda, above n 164, 675.

^[167] This chapter is not directly concerned with appeals on questions of mixed fact and law; that is, where it is alleged that the facts found by the arbitral tribunal cannot support the legal description given to them. Such appeals do not challenge the tribunal's findings of fact; rather its application of the law to these facts. Not every appeal involving an allegedly erroneous legal conclusion will involve an error of law. This is because it is possible (and not uncommon) for judges and arbitrators to come to different legal conclusions on the same facts, without making any error of law. Whether there will be an error of law depends on the reasonableness of the legal conclusion. As to the test to be applied see Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, 36 (HL) Lord Radcliffe: there would be an error of law if "the true and only reasonable conclusion contradicts the determination"; Australian Gas Light Co v Valuer-General (1940) 40 SR(NSW) 126, 138 Jordan CJ: "If the facts inferred ... from the evidence ... are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law". See also Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547, 557 Mason JA (NSW CA); Vetter v Lake Macquarie City Council (2001) 202 CLR 439, 450_451 (HCA); Housen v Nikolaisen (28 March 2002) Supreme Court of Canada No 27826.

^[168] Gold and Resource Developments (NZ) Ltd v Doug Hood Ltd, above n 155, 335 (CA).

^[169] Edwards (Inspector of Taxes) v Bairstow, above n 167. It is questionable whether the decision is really authority for this proposition. The passage usually cited is an extract from Viscount Simonds's speech at page 29. The passage states: "... it [the finding of fact] may be set aside ... if it appears that the commissioners have acted without any evidence or upon a view of the facts which could not reasonably be entertained".

Read in isolation the passage does indicate that findings of fact can be challenged. We consider, however, reading his speech as a whole, that in referring to "facts" he actually meant legal conclusions drawn from facts; and in referring to "evidence", he meant factual findings drawn from the evidence. We say this, firstly, because of the context of the decision: the House of Lords decided the appeal purely on a statement of factual findings from a tribunal; it did not consider the evidence adduced at all. Further, whenever Viscount Simonds referred to his jurisdiction to review the "evidence" (which he did on several occasions), he followed up the statement by proceeding to ascertain whether the statement of facts found by the tribunal supported its legal conclusion; for example, immediately following the quote set out above, Viscount Simonds said "It is for this reason that I thought it right to set out the whole of the facts as they were found by the commissioners ... having read and re-read them ... I find myself [unable to support the determination]" [our emphasis added].

Read in this way, Viscount Simonds's speech is not authority for the principle that a perverse factual finding is a mistake of law; simply that reaching an incorrect legal conclusion from factual findings may be. We note that Mustill and Boyd interpret the speech in much the same way as we have stating: "Edwards v Bairstow was not concerned with the relationship between `raw' evidence and the tribunal's findings of primary fact" (Michael Mustill and Stewart Boyd The Law and Practice of Commercial Arbitration in England (2edn, Butterworths, London, 1989) 593); similarly in Fence Gate Ltd v NEL Construction (5 December 2001) English and Welsh High Court HT 01 000088, Judge Thornton QC sitting in the Technology and Construction Court on an appeal from an arbitration, classified Bairstow as a case "involving the application of the facts to a relevant statutory or contractual label such as `adventure in the nature of trade' or `frustration'".

^[170] See Wellington Free Ambulance Service Inc v Ross (29 May 2001) Court of Appeal CA 181/00, para 29; Webb v Dunedin City Council (29 May 2001) Court of Appeal CA 196/00, para 14 and Coutts Cars Ltd v Baguley (21 December 2001) Court of Appeal CA 102/01, paras 19_31.

^[171] Stefan v The General Medical Council (6 March 2002) Privy Council 92/2001, para 6.

^[172] Stefan v The General Medical Council, above n 171, para 6.

^[173] Geogas SA v Trammo Gas Ltd [1993] 1 Lloyd's Rep 215, 231 (CA).

^[174] Gold and Resource Developments (NZ) Ltd v Doug Hood Ltd, above n 155,

335_336, paras 56_60 (CA) and Part 17 of the High Court Rules which came into force on 1 August 2000. The provisions in the High Court Rules dealing with applications for leave to appeal are, to our knowledge, the only procedural rules in force in New Zealand which specify the amount of time each counsel has to address the court on a particular issue.

^[175] Pupuke Service Station Ltd v Caltex Oil (NZ) Ltd [2000] 3 NZLR 338n, 339 (PC).

^[176] Geogas SA v Trammo Gas Ltd, above n 173, 228 (CA).

^[177] See Arbitration Act 1908, second sch, cl 2, and Arbitration Amendment Act 1938, s 7.

^[178] Arbitration Act 1996, first sch, arts 10, 11, and 29.

^[179] Con Dev Construction Ltd v Financial Shelves No 49 Ltd (22 December 1997) High Court Christchurch CP 179/97 Master Venning.

^[180] Con Dev Construction Ltd v Financial Shelves No 49 Ltd, above n 179, 4.

^[181] Con Dev Construction Ltd v Financial Shelves No 49 Ltd, above n 179, 5. The passage of the report that he relied upon is: Arbitration Bill 1996, no 117_2 (the Government Administration Committee Report) viii_ix.

^[182] Granadilla Ltd v Berben (1998) 12 PRNZ 371 (HC).

^[183] Granadilla Ltd v Berben, above n 182, 376.

^[184] Granadilla Ltd v Berben (1999) 4 NZ Conv C 192,963 (CA).

^[185] Bowport Ltd v Alloy Yachts International Ltd (14 January 2002) High Court Auckland CP 159-SD01 Elias CJ.

^[186] Bowport Ltd v Alloy Yachts International Ltd, above n 185, paras 19_43.

^[187] If this is correct, it raises the issue as to what the need was for s 19(3)(b) (which provides that the 1908 Act will continue to apply in whole), since s 19(3)(a) resolves the problem of deadlock by itself. We suggested in para 36 of the preliminary paper that the reason was that the Government Administration Committee had doubts as to whether the 1996 Act accommodated umpires, and so thought it wise that the 1908 Act continue to apply. On this issue Elias CJ says: "Why it was thought necessary to retain the preexisting legislation in whole, is not clear." (Bowport Ltd v Alloy Yachts International Ltd, above n 185, para 40.)

^[188] Bowport Ltd v Alloy Yachts International Ltd, above n 185, paras 30_33. We made similar comments in para 38 of our preliminary paper; see para 141 below.

^[189] Bowport Ltd v Alloy Yachts International Ltd, above n 185, para 42.

^[190] As to which, see para 128 above.

^[191] For example, the Marine Farming Act 1971, s 39.

^[192] For example, the South Canterbury Catchment Board Act 1958, s 6, the Tokoroa Agricultural and Pastoral Association Empowering Act 1968, s 6, the Land Drainage Amendment Act 1908, s 5, the Building Societies Act 1965, s 109, and the Building Research Levy Act 1969, s 6.

^[193] Section 19(1)(b) is expressly subject to s 19(3) at the present time.

^[194] Apart from arbitrations started before the commencement of the Act under s 19(2).

^[195] The submission also touched on questions of jurisdiction, in particular, whether the District Court should be given extended jurisdiction to deal with matters arising out of an arbitration which are currently within the exclusive jurisdiction of the High Court. All issues were, however, addressed from the stand point of a consumer.

^[196] The nature and scope of this Draft Convention is discussed in: New Zealand Law Commission International Trade Conventions (NZLC SP5, Wellington, 2000) paras 167_174. See also, the definition of "consumer" in art 2 of the Vienna Sales Convention which has been adopted in New Zealand by the Sale of Goods (United Nations Convention) Act 1994. The full text of the most recent draft for art 7 is as follows. (Three alternatives are currently being considered; we have only included the first four paragraphs which are common to all three.):

Article 7 Contracts concluded by consumers
1. This Article applies to contracts between a natural person acting primarily for personal, family or household purposes, the consumer, and another party acting for the purposes of its trade or profession, [unless the other party demonstrates that it neither knew nor had reason to know that the consumer was concluding the contract primarily for personal, family or household purposes, and would not have entered into the contract if it had known otherwise].
2. Subject to paragraphs [5_7], a consumer may bring [proceedings][an action in contract] in the courts of the State in which the consumer is habitually resident if the claim relates to a contract which arises out of activities, including promotion or negotiation of contracts, which the other party conducted in that State, or directed to that State, [unless [that party establishes that] _
a) the consumer took the steps necessary for the conclusion of the contract in another State; [and
b) the goods or services were supplied to the consumer while the consumer was present in the other State.]]
[3. For the purposes of paragraph 2, activity shall not be regarded as being directed to a State if the other party demonstrates that it took reasonable steps to avoid concluding contracts with consumers habitually resident in the State.]
4. Subject to paragraphs [5_7], the other party to the contract may bring proceedings against a consumer under this Convention only in the courts of the State in which the consumer is habitually resident.
(Hague Conference on Private International Law Summary of the Outcome of the Discussion in Commission II of the First Part of the Diplomatic Conference: Jurisdiction and Foreign Judgments in Civil and Commercial Matters: 19th Session (6_20 June 2001); available at <http://www.hcch.net>.)

^[197] Marnell Corrao Associates Inc v Sensation Yachts Ltd (22 August 2000) High Court Auckland CP 294-SW100 Wild J.

^[198] Bowport Ltd v Alloy Yachts International Ltd, above n 185.

^[199] Bowport Ltd v Alloy Yachts International Ltd, above n 185, para 54. The evidence was further that the owner only used the corporate structure because of his "personal desire for privacy" (para 53). The owner acknowledged that the yacht had been let out on charter. Elias CJ, however, held that the section 11 protection would not be lost unless the commercial use was "clearly material" (para 71). And, on the facts, she accepted that it was not since "the charter use is equivalent to renting out a holiday home for a few weeks a year" (para 73).

^[200] Bowport Ltd v Alloy Yachts International Ltd, above n 185, para 74.

^[201] Bowport Ltd v Alloy Yachts International Ltd, above n 185.

^[202] But, see also Money v Ven-Lu-Ree Ltd [1989] 3 NZLR 129 (PC).

^[203] New Zealand Law Commission Improving the Arbitration Act 1996, above n 3, para 44.

^[204] Disputes Tribunals Act 1988, s 16.

^[205] DF Dugdale "Arbitration as Oppression" [1992] NZLJ 135, 136.

^[206] Hitex Plastering Ltd v Santa Barbara Homes Ltd [2002] 3 NZLR 695.

^[207] Hitex Plastering Ltd v Santa Barbara Homes Ltd, above n 206, 698_699.

^[208] Hitex Plastering Ltd v Santa Barbara Homes Ltd, above n 206, 700.

^[209] Hitex Plastering Ltd v Santa Barbara Homes Ltd, above n 206, 701_702.

^[210] Section 7 of the 1908 Act provided:

7 Power For Parties To Supply Vacancy
(1) Where a submission provides that the reference shall be to 2 arbitrators, one to be appointed by each party, then, unless the submission expresses a contrary intention,—
(a) If either of the appointed arbitrators fails to act, or is or becomes incapable of acting, or dies, the party who appointed him may appoint a new arbitrator in his place; and
(b) If one party fails to appoint an arbitrator, either originally or by way of substitution as aforesaid, for 7 days after the other party, having appointed his arbitrator, has served the party making default with notice to make the appointment, the party who has appointed an arbitrator may appoint that arbitrator to act as sole arbitrator in the reference, and his award shall be binding on both parties as if he had been appointed by consent.
(2) The Court may set aside any appointment made in pursuance of this section.

For cases on s 7(2) see Bell v Connolly and Kemp [1968] NZLR 13 (HC); Ronke v King (1990) 4 PRNZ 346 (HC) and Gillies v Beryl's Emporium Ltd (29 August 1997) High Court Rotorua M 107/97 Master Kennedy-Grant.

^[211] Arbitration Act 1996, first sch, art 33(1)(b).

^[212] Arbitration Act 1996, first sch, art 33(1).

^[213] Pursuant to s 68 of the District Courts Act 1947, High Court judgments may be transferred to a District Court simply by filing a sealed certificate of judgment in the District Court. This is a purely administrative act which can be done by mail.

^[214] Arbitration Act 1996, first sch, art 19(1).

^[215] Arbitration Act 1996, first sch, art 19(2).

^[216] There was division amongst delegates in the UNCITRAL Working Group that drafted the Model Law as to the proper role of the arbitral tribunal in issuing subpoenas. Some delegates considered that only the tribunal should be permitted to apply for a subpoena, in order to prevent parties using the process to delay the arbitration. Others considered that the tribunal should have no role, as this would imply an investigative role for arbitrators, inconsistent with the adversarial system. In the end, the present Article 27 was a compromise between those two positions. Thus, the Commission report states:

It was noted that the current provision was a compromise between those legal systems in which only the arbitral tribunal might request the court for assistance and those legal systems in which a party might request the court for assistance.
(United Nations Commission on International Trade Law Commission Report (A/40/17, Vienna, 1985) para 226.)

A detailed history of the discussions which led to the compromise is set out in Howard M Holtzmann and Joseph E Neuhaus A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Comentary (Kluwer Law and Taxation Publishers, Deventer, the Netherlands, 1989) 734_762.

^[217] The Working Group also gave detailed consideration as to the issue of subpoenas to witnesses in other jurisdictions. Ultimately, for a variety of reasons, it was decided that Article 27 should not deal with the matter. (See Holtzmann and Neuhaus, above n 216, 734_762.)

^[218] In seeking submissions on whether appointing authorities should be granted immunity we noted that the scope for work by appointing authorities may increase under the Construction Contractors Bill which will enable adjudicators to be appointed to determine cash flow issues affecting those working in the construction industry.

^[219] Arbitration Act 1996 (UK), s 74(1).

^[220] Arbitration Act 1996 (UK), s 74(2).

^[221] Arbitration Act 1996 (UK), s 74(3).

^[222] Departmental Advisory Committee on Arbitration Law Report on the Arbitration Bill (February 1996) paras 299_301.

^[223] Departmental Advisory Committee on Arbitration Law, above n 222, para 301.

^[224] Arthur Hall v Simons [2000] 3 All ER 673 (HL).

^[225] Generally, see Arthur Hall v Simons, above n 224, 685 Lord Browne-Wilkinson, 689 Lord Hoffmann, 710 Lord Hope of Craighead, 726 Lord Hutton, 735 Lord Hobhouse of Woodborough and 750 Lord Millett.

^[226] Generally, see Harvey v Derrick [1995] 1 NZLR 314 (CA) 317 Cooke P,

324_325 Richardson J and 335_337 Fisher J.

^[227] See in particular Arthur Hall v Simons, above n 224, 688, 699_707 Lord Hoffmann.

^[228] Hedley Byrne and Co v Heller [1964] AC 465 (HL).

^[229] Doleman & Sons v Ossett Corp [1912] 3 KB 257, 267 (CA) Fletcher Moulton LJ and Bulk Chartering v T & T Metal Trading (1993) 31 NSWLR 18 (NSW CA).

^[230] Doleman & Sons v Ossett Corp, above n 229, and Novamaze v Cut Price Deli (1995) 128 ALR 540 (FCA).

^[231] The technique was upheld in Scott v Avery [1855_56] HLC 811 (HL).

^[232] Doleman & Sons v Ossett Corp, above n 229, 267_268 and Bulk Chartering v T & T Metal Trading, above n 229, 34 (NSWCA) Sheller JA; see also Rhidian Thomas "Scott v Avery Agreements" [1991] LMCLQ 508, 526_527.

^[233] The power was recognised in modern times in Channel Group v Balfour Beatty Ltd [1993] AC 334 (HL); however, it appears that as early as the nineteenth century courts also utilised their inherent jurisdiction to stay proceedings brought in breach of arbitration agreements (see Law Commission of New South Wales Working Paper on Commercial Arbitration (NSW, 1973) paras 103_106).

^[234] In the Parliamentary debates that preceded the passing of the Arbitration Act, strong emphasis was given to the desirability of replacing the old law with a modern Act. Peter Hilt, in introducing the Bill, said "The aim of the Bill is to facilitate the use of arbitration in New Zealand. The existing ... law ... fails in that respect as it is hopelessly out of date and difficult to follow." Hon David Caygill added "The importance of this subject is a good example of why it is necessary to keep New Zealand's commercial law up to date" (See Peter Hilt (21 August 1996) 557 NZPD 14245, 14247.)

^[235] In Tutty v AC Blackmore [1999] 1 ERNZ 587, the Employment Court considered whether, under the Employment Contracts Act 1991, a submission to arbitration in an employment contract was enforceable. On the wording of the particular contract, it held that it was not, since the relevant clause did not provide for personal grievances. The judgment, however, contemplated that a submission to arbitration, which did provide an effective procedure, may be enforceable. The Court gave specific attention to the question of provisions in the Arbitration Act 1996 providing for applications and appeals to the High Court, noting, without deciding the question, that these may be able to be dealt with by the Employment Tribunal or Court (607_608).

^[236] Gold & Resource Developments (NZ) Ltd v Doug Hood Ltd, above n 155,

322_323 (CA).

^[237] New Zealand Law Commission, above n 1, paras 262_264.

^[238] Todd Energy Ltd v Kiwi Power (1995) Ltd (29 October 2001) High Court Wellington CP 46/01 Master Thomson.

^[239] Todd Energy Ltd v Kiwi Power (1995) Ltd, above n 238, 9, 10.

^[240] Todd Energy Ltd v Kiwi Power (1995) Ltd, above n 238, 22.

^[241] Todd Energy Ltd v Kiwi Power (1995) Ltd, above n 238, 10 para 34.

^[242] See Lapine Technologies Corp v Cyocera (1997) 130 F3d 884; Owen v Amoco Pipeline Co (2001) 245 F3d 925; Gateway Technologies Inc v MCI Telecommunications Corp (1995) 64 F3d 993.

^[243] Roadway Package System v Kayser (2001) 257 F3d 287.

^[244] Syncor International v McLeland (11 August 1997) US App Lexis 21248, No 96-2261. In footnote 3 of Roadway Package System v Kayser, above n 243, a number of other cases from Federal District Courts, which have considered the issue, are cited. For a recent review of the cases and literature on the topic, see Robert T Greig and Inna Reznik "Current Developments in Enforcement of Arbitration Awards in the United States" (2002) 68 Arbitration 120, 122_126.

^[245] There is a useful discussion of the meaning of the term "chambers" in this context in the judgment of Dame Elizabeth Butler-Sloss P in Allan v Clibbery, above n 18, paras 17_19 (CA). See also the discussion of "chambers" hearings in Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056 (CA) Lord Woolf MR and Re PB (Hearings in Open Court) [1996] 2 FLR 765, 769 and Forbes v Smith [1998] 1 FLR 835.

^[246] District Courts Rules 1992, r 74; High Court Rules, r 72A.

^[247] Re E [1958] NZLR 532 (HC).

^[248] See also Director General of Social Welfare v TVNZ (1989) 5 FRNZ 594 (HC) in which Gault J reached a similar conclusion with regard to s 24 of the Children and Young Persons Act 1974.

^[249] Commissioner of Inland Revenue v Dick (2000) 14 PRNZ 378 (HC).

^[250] The relevant rule is r 718(7) of the High Court Rules on which r 889 of the High Court Rules (dealing with appeals from arbitral tribunals) is based. The Court is given all powers and discretions of the tribunal, or person whose decision is appealed from, to hold the hearing or any part of it in private and to make orders prohibiting the publication of any report or description of the proceedings or any part of them.

^[251] Trustees of the Auckland Medical Aid Trust v Commissioner of Inland Revenue (1979) 4 NZTC 61,404 (HC).

^[252] See also ss 6 and 6A Tax Administration Act 1994.

^[253] P v Commissioner of Inland Revenue (1997) 18 NZTC 13,487 (HC).

^[254] On the facts, however, Neazor J, although favouring open justice, granted the application for confidentiality, while Chilwell J, favouring confidentiality, denied the application; cf Wattie v Commissioner of Inland Revenue, above n 70.