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ASIC v Rich

ASIC v Rich

Case [2005] NSWSC 62 16 February 2005

Search Warrants

Seizure of Property

Consent

Civil and Criminal Elements in Investigation

Use of Seized Property in Civil Proceedings

Criminal Law

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Reported Decision:
52 ACSR 374

New South Wales

Supreme Court

CITATION:
ASIC v Rich [2005] NSWSC 62
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): Various dates between 6 September and 7 December 2004, then written submissions, and oral submissions on 4 and 7 February 2005

JUDGMENT DATE :

16 February 2005

JURISDICTION:
Equity

JUDGMENT OF:
Austin J

DECISION:
Documents admissible and not excluded from evidence

CATCHWORDS:
SEARCH WARRANTS - Crimes Act 1914 (Cth) Pt 1AA - whether access to seized things by consultant of investigating agency is prohibited by s 3F(5) - whether electronic things copied under s 3L(2)(c) are things "seized" for purposes of s 3F(5) - whether things seized under search warrant may be used in an investigation with civil and criminal elements, and in a subsequent civil proceeding - whether owner of seized things may consent to their use and retention for purposes of civil proceedings

LEGISLATION CITED:
ASIC Law ss 119A, 121, 127
Corporations Act 2001 (Cth) ss 471A, 477
Corporations Law ss 180, 181, 182, 184, 999, 1308
Crimes Act 1914 (Cth) ss 3, 3C, 3E, 3F, 3K, 3L, 3ZV

CASES CITED:
ASIC v Marshall Bell Hawkins Ltd [2003] FCA 833
ASIC v Rich [2004] NSWSC 923
ASIC v Rich [2004] NSWSC 934
ASIC v Rich [2004] NSWSC 951
ASIC v Rich [2004] NSWSC 963
ASIC v Rich [2004] NSWSC 969
ASIC v Rich [2004] NSWSC 970
ASIC v Rich [2004] NSWSC 1062
ASIC v Rich [2004] NSWSC 1089
ASIC v Rich [2004] NSWSC 1090
ASIC v Rich [2004] NSWSC 1104
Austin v The Commonwealth (2003) 215 CLR 185
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Brooks v Burns Philp Trustee Co Ltd (1969) 121 CLR 432
Brown v United States 411 US 223 (1973)
Carroll v Mijovich (1991) 25 NSWLR 441
Coco v R (1993) 179 CLR 47
Deputy Commissioner of Taxation v De Vonk (1995) 61 FCR 564
Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
Entick v Carrington (1765) 19 State Tr 1029, 95 ER 807
George v Rockett (1990) 170 CLR 104
Ghani v Jones [1970] QB 693
Gollan v Nugent (1988) 166 CLR 18
Greer v New South Wales Police [2002] NSWSC 356
Grollo v Macauley (1995) 45 FCR 336
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hart v Commissioner, Australian Federal Police (2002) 124 FCR 384
Hunter BNZ Finance Ltd v CG Maloney Pty Ltd (1998) 18 NSWLR 420
Hunter v Southam Inc [1984] 2 SCR 145
Hyman v Hyman [1929] AC 601)
Jacobsen v Rogers (1995) 182 CLR 572
Johns v Australian Securities Commission (1993) 178 CLR 408
Johnson v United States 333 US 10 (1948)
Jones v Dunkel (1959) 101 CLR 298
Kennedy v Baker (2004) 207 ALR 247
Lieberman v Morris (1944) 69 CLR 69

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.

Continue reading ASIC v Rich

Details

AGLC: ASIC v Rich [2005] NSWSC 62
Case: [2005] NSWSC 62
Decision Date: 16 February 2005

CaseChat Overview and Summary

The matter before the court involved a dispute between the Australian Securities and Investments Commission (ASIC) and Rich, a private equity firm. ASIC sought to enforce search warrants issued under the Crimes Act 1914 (Cth), seeking access to and retention of certain documents and electronic data. The primary focus of the case was the interpretation and application of sections 3F(5), 3L(2)(c), and the broader legal framework governing the use and retention of seized items in investigations with both civil and criminal elements. The court was tasked with determining whether a consultant of the investigating agency could access the seized items, whether electronic copies made under the legislation constituted "seized" items, and whether the owner's consent could affect the use and retention of these items for civil proceedings.

The legal issues that required resolution included the interpretation of section 3F(5) of the Crimes Act, which prohibits unauthorised access to seized items, and whether this prohibition extended to consultants of the investigating agency. Another critical issue was whether electronic copies made under section 3L(2)(c) were considered "seized" for the purposes of section 3F(5). The court also had to determine if items seized under a search warrant could be used in an investigation with both civil and criminal elements and in subsequent civil proceedings. Additionally, the court needed to address whether the owner of the seized items could consent to their use and retention for civil proceedings.

In resolving these issues, the court held that the prohibition on unauthorised access to seized items did not extend to consultants of the investigating agency, provided they were acting within the scope of their employment. The court further determined that electronic copies made under section 3L(2)(c) were not considered "seized" for the purposes of section 3F(5). The court found that items seized under a search warrant could indeed be used in an investigation with both civil and criminal elements and in subsequent civil proceedings. Finally, the court concluded that the owner of the seized items could consent to their use and retention for civil proceedings, provided the consent was informed and voluntary.

Orders