ASIC v Infomercial Management Group Pty Ltd - [2001] VSC 181

SUPREME COURT OF VICTORIA
AT MELBOURNE	Not Restricted

COMMERCIAL AND EQUITY DIVISION
CORPORATIONS LIST

No. 5010 of 2000
No. 5009 of 2000
No. 5008 of 2000

IN THE MATTER of the CORPORATIONS LAW OF VICTORIA

IN THE MATTER of the 1997 Infomercial Product Distribution Investment Scheme, Infomercial Management Group Pty. Ltd. (ACN 073 859 579) and Others

IN THE MATTER of the 1998 Infomercial Product Distribution Investment Scheme, Infomercial Management Group Pty. Ltd. (ACN 073 859 579) and Others

IN THE MATTER of the 1999 Theme Based Music Collaboration Scheme, IP Product Management Group Pty. Ltd. (ACN 085 083 834) and Others

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION	Plaintiff
v.
INFOMERCIAL MANAGEMENT GROUP PTY. LTD. AND OTHERS	Defendants

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JUDGE:	HARPER, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 APRIL 2001
DATE OF RULING:	4 JUNE 2001
CASE MAY BE CITED AS:	ASIC v. INFOMERCIAL MANAGEMENT GROUP PTY. LTD. & ORS.
MEDIUM NEUTRAL CITATION:	[2001] VSC 181

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CATCHWORDS: Commercial cause – Application for further and better particulars – Whether request amounts to a request for mere evidence – Application of r.34.01 – Whether application encompasses directions for the effective, complete, prompt and economical determination of an issue in the litigation.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. J. Beach QC with Mr. D. Star	ASIC
For the Defendants	Mr. G. Beaumont QC with Mr. L. Watts and Mr. M. Goldblatt	Strauss & Associates

HIS HONOUR:

The plaintiff in these proceedings claims that the defendants, or one or more of them, produced documents which were intended to, and did, attract potential investors. These documents, it is alleged, contained information that was false. Among the alleged falsities were statements that the project manager of the relevant "project" (a) would make certain payments of each of (i) ordinary capital and (ii) preference capital, and (b) had committed itself to marketing expenditure as described in the impugned literature. These statements were, it is claimed, knowingly false; and neither the capital contributions nor the marketing expenditure ever materialised.

The defendants deny these allegations. They say that the capital contributions were made, and the marketing expenses were paid.

The plaintiff seeks further and better particulars of the payments to which the defendants here refer. While the payments themselves are listed in the relevant pleading documents, the plaintiff (it claims) is given no adequate means of checking their accuracy. The further and better particulars are therefore sought, it is said, so that the plaintiff will not be taken hopelessly by surprise at trial, unable adequately to follow such paper trail as might be indicated by the defendants during the course of the hearing. By this means, the defendants might gain a quite unfair advantage. Without the time to cross-check the defendants' evidence, without the knowledge to test that evidence in cross-examination, the plaintiff might be unable to uncover the truth; and the Court might be deceived into accepting as truth that which is not.

One possible answer lies in the proper use of discovery. If…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] VSC 181
Decision Date: 4 June 2001

CaseChat Overview and Summary

In the case of the Australian Securities and Investments Commission (ASIC) versus Infomercial Management Group Pty Ltd, the Australian court was tasked with addressing the question of whether a request for further and better particulars constitutes a mere request for evidence, and if the application aligns with the requirements of rule 34.01 of the relevant procedural rules. The dispute arose from an action brought by ASIC against Infomercial Management, with the central issue being the adequacy of the particulars provided by ASIC in its claim.

The primary legal issue the court had to resolve was the nature of the request for further and better particulars. Specifically, the court needed to determine if the application was genuinely seeking clarity and precision to facilitate the determination of the issues at hand, or if it was merely a request for evidence that would not contribute to the effective, complete, prompt and economical determination of the litigation. The court also had to consider whether the application was compliant with rule 34.01, which mandates that a party must not make an application unless it is necessary for such a determination.

In assessing these issues, the court examined the principles underpinning the application for further and better particulars, emphasizing the importance of clarity and precision in litigation. The court held that an application seeking further and better particulars should aim to ensure that the issues are clearly defined and that the parties have sufficient information to prepare their cases effectively. The court found that the application by ASIC was not merely a request for evidence but was instead necessary to clarify the allegations and ensure that the litigation could proceed in a manner that was effective, complete, prompt and economical. The court concluded that the application was in line with the requirements of rule 34.01 and was not an abuse of process. Consequently, the court granted the application for further and better particulars, directing Infomercial Management to provide the requested information within a specified timeframe.

Orders