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ASIC v Rich

ASIC v Rich

Case [2004] NSWSC 467 31 May 2004

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Reported Decision:
49 ACSR 578
(2004) 22 ACLC 1125

Supreme Court

CITATION: ASIC v Rich [2004] NSWSC 467

HEARING DATE(S): 24 May 2004

JUDGMENT DATE:
31 May 2004

JURISDICTION:
Equity

JUDGMENT OF: Austin J

DECISION: Orders to be made for the issue of a letter of request to the competent judicial authority in the United Kingdom for the examination of two witnesses in London, before the trial judge as examiner, and for the production by them of certain documents. Application dismissed so far as it relates to the taking of the evidence of those witnesses by audio visual facilities.

CATCHWORDS: PRACTICE AND PROCEDURE - whether evidence of two witnesses should be taken by use of audio visual facilities - relevant considerations - whether, in the alternative, orders should be made for the issue of a letter of request to the competent judicial authority in the United Kingdom for the examination of the witnesses before the trial judge as examiner

LEGISLATION CITED: Evidence (Audio and Audio Visual Links) Act 1998 (NSW) ss 5B, 5C, 5D
Evidence on Commission Act 1995 (NSW) ss 6, 7, 8
Foreign Evidence Act 1994 (Cth) ss 7, 8, 9
Supreme Court Rules Part 27, 36

CASES CITED: Asermeley-Rivera v Neffati (Supreme Court of New South Wales, Kirby J, unreported, 12 April 2001 - BC200101619)
Australian Competition & Consumer Commission v World Netsafe Pty Ltd [2002] FCA 526 (Spender J)
Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd (2001) 53 NSWLR 1 (Palmer J)
B v Dentists Disciplinary Tribunal [1994] 1 NZLR 95 (Williams J)
Bayer AG v Minister for Health of the Commonwealth (1988) 13 IPR 225
Cigna Insurance Australia Ltd v CSR Ltd (Supreme Court of New South Wales, Rolfe J, unreported, 29 November 1995)
Commissioner of Taxation v Grbich (1993) 18 AAR 74
DPP v Alexander (1993) 33 NSWLR 482
Garcin v Amerindo Investment Advisors Ltd [1991] 1 WLR 1140
Hardie Rubber Co Pty Ltd v General Tyre & Rubber Co (1973) 129 CLR 521
Henderson v SBS Realisations Ltd (English Court of Appeal, 1992, unreported, extracted in B v Dentists Disciplinary Tribunal)
ICI Australia Ltd v Commissioner of Taxation (Federal Court of Australia, Ryan J, unreported, 29 May 1992)
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 838 (Einstein J)
K v S (2001) 27 Fam LR 498 (Full Family Court)
Lamesa Holdings BV v Commissioner of Taxation (Federal Court of Australia, Sackville J, unreported, 30 June 1998)
McDonald v Commissioner of Taxation (2000) ATC 4271 (Finn J)
Meehan v GPR Management Services Pty Ltd (Federal Court of Australia, Einfeld J, unreported, 31 May 1994)
Mewett v Commonwealth of Australia [1998] FCA 1360 (Katz J)
Moyette Pty Ltd v Foundation Healthcare Ltd [2003] FCA 116 (Conti J)
Novotny v Todd [2002] WASCA 79 (Full Court of the Supreme Court of Western Australia)
Poschung v Jones (Supreme Court of New South Wales, Levine J, unreported, 25 October 1996, BC9606849)
Reinsurance Australia Corporation Ltd v HIH Casualty &…

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 [2004] NSWSC 467
Case: [2004] NSWSC 467
Decision Date: 31 May 2004

CaseChat Overview and Summary

In the matter of the Australian Securities and Investments Commission (ASIC) versus Rich, the case was heard in the Federal Court of Australia. The ASIC sought to bring proceedings against Rich for alleged breaches of financial laws. The primary issue before the court was whether the testimony of two witnesses, located overseas, could be presented via audio-visual link, and if not, whether alternative arrangements could be made for their examination by the trial judge.

The court was tasked with evaluating the procedural and practical considerations pertinent to the use of audio-visual facilities for witness testimony. It had to consider the availability of technology, the potential for delays, and the impact on the fairness and efficiency of the trial. Additionally, the court needed to assess whether, in the absence of satisfactory audio-visual options, it should order a letter of request to the UK judicial authority to examine the witnesses before the trial judge.

In its reasoning, the court found that the use of audio-visual facilities was not viable due to logistical challenges and potential technological issues. It concluded that issuing a letter of request to the UK judicial authority for the examination of the witnesses by the trial judge was the most appropriate course of action. This decision balanced the need for the witnesses' testimony with the procedural fairness required in the trial.

The court ordered that a letter of request be issued to the competent judicial authority in the United Kingdom, directing them to examine the witnesses in the presence of the trial judge. This ensures that the witnesses' testimonies will be admissible and reliable, while also maintaining the integrity of the proceedings.

Orders