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ASIC v Rich

ASIC v Rich

Case [2002] NSWSC 198 18 March 2002

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CITATION: ASIC v RICH [2002] NSWSC 198

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 5934/01

HEARING DATE(S): 18/03/02

JUDGMENT DATE: 18 March 2002

PARTIES :

John Fairfax Publications Pty Limited and Nationwide News Pty Limited - Applicants
John David Rich - Respondent
Mrs Maxine Rich - by leave

JUDGMENT OF: Barrett J

COUNSEL : Mr K.P. Smark - Applicants
Mr D.L. Williams - Respondent
Mr C. Wood - Mrs Maxine Rich

SOLICITORS: Richard Coleman - Applicants
Ebsworth & Ebsworth - Respondent

CATCHWORDS: PROCEDURE - access to court file by non-parties - application by media for access to amended statement of claim - one defendant objecting - defences neither filed nor due for filing - defendant proposes to put plaintiff's allegations to vigorous test - access at such point not required by principles of open justice - potential prejudice to defendant - access refused

CASES CITED: Australian Securities and Investments Commission v Adler (2001) 39 ACSR 216
Australian Securities and Investments Commission v Rich (2001) 51 NSWLR 643
eisa Limited v Brady [2000] NSWSC 929
Hammond v Scheinberg (2001) 52 NSWLR 49
Home Office v Harman [1983] AC 280
Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 769
Stonham v Speaker of the Legislative Assembly of New South Wales (No 1) (1999) 90 IR 325

DECISION: Application refused

- 9 -

IN THE SUPREME COURT REVISED
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

MONDAY 18 MARCH 2002

5934/01 - AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v JOHN DAVID RICH & ORS

JUDGMENT

1 On 11 March, the plaintiff, Australian Securities and Investments Commission, filed an amended statement of claim in these proceedings. Also on the same day, two journalists, Ms Hepworth and Mr Barry, lodged, through the court’s Public Information Officer, applications for access to that amended statement of claim. An application by another journalist, Mr McDougall, was received by the Public Information Officer the following morning. All three applications were in the form set out in Practice Note 97. Because I had dealt with certain interlocutory aspects of the proceedings in the Corporations List on 11 March, the applications by the journalists were referred to me. The Chief Justice subsequently nominated me as the judge to deal with them, as contemplated by Practice Note 97.

2 After causing notice to be given to the parties to the proceedings and to the three journalist applicants, I directed that the applications to be listed for mention last Thursday, 14 March. Mr Smark of counsel appeared on that occasion for John Fairfax Publications Pty Ltd Limited and Nationwide News Pty Ltd, the employers of the journalist applicants. Those two companies elected to pursue the matter in the place of their employees. The two companies, instead of the individual journalists, have since then been regarded as the applicants.

3 In the course of the mention on 14 March, it became clear that the applications were neither consented to nor opposed by the plaintiff, ASIC, and that one of the defendants, the first…

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 [2002] NSWSC 198
Case: [2002] NSWSC 198
Decision Date: 18 March 2002

CaseChat Overview and Summary

The Australian Securities and Investments Commission (ASIC) filed a proceeding against Rich, an individual, alleging breaches of securities laws. The matter was heard in the Federal Court of Australia. The media sought access to an amended statement of claim, which had been filed in camera but not served on the defendant, due to an objection by the defendant. The legal issues before the court were whether the media could access the amended statement of claim before the defendant had filed any defences, and if such access was necessary in the interests of open justice.

The court held that access to the amended statement of claim by the media was not required by the principles of open justice at that stage of the proceedings. The court emphasised that the defendant had not yet filed any defences, and the plaintiff had not served the amended statement of claim on the defendant. The court noted that the defendant intended to subject the plaintiff's allegations to a vigorous test and that early disclosure could potentially prejudice the defendant. The court concluded that the potential prejudice to the defendant outweighed the need for open justice at that stage.

The court refused the media's application for access to the amended statement of claim. The decision highlighted the importance of balancing the principle of open justice with the need to protect the rights of defendants in the early stages of litigation. The court's ruling ensured that the defendant's right to a fair trial was preserved until such time as the defences were filed, and the amended statement of claim was served on the defendant.

Orders