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ASIC v Rich

ASIC v Rich

Case [2006] NSWSC 643 27 June 2006

Admissibility of Evidence

Discovery & Disclosure

Abuse of Process

Civil Litigation & Procedure

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Reported Decision:
201 FLR 207

New South Wales

Supreme Court

CITATION: ASIC v Rich [2006] NSWSC 643
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 22 June 2006

JUDGMENT DATE :
27 June 2006

JURISDICTION: Equity

JUDGMENT OF: Austin J

DECISION: See under heading "Conclusions"

CATCHWORDS: EVIDENCE - cross-examination on documents not tendered - third party documents and prior representations of the witness - transcripts of examinations including transcripts that could not be tendered in penalty proceedings - discretionary considerations

LEGISLATION CITED: Australian Securities & Investments Commission Act 1989 (Cth), ss 19, 68
Corporations Act 2001 (Cth), s 597
Evidence Act 1995 (NSW), ss 9, 26, 43, 44, 192

CASES CITED: Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498
Birchnall v Bullough [1896] 1 QB 325
Darby v Ouseley (1856) 1 H & N 1 [156 ER 1093]
Government Employees Superannuation Board v Martin (1997) 19 WAR 224
R v Banks [1916] 2 KB 621
R v Bedington [1970] Qd R 353
R v Gillespie (1967) 51 Cr App R 172
R v Hawes (1994) 35 NSWLR 294
R v Orton [1922] VLR 469
R v Seham Yousry (1914) 11 Cr App R 13
Rich v ASIC (2004) 220 CLR 129
The Queen's Case (1820) Brod & Bing 284 [129 ER 976]
Wood v Desmond (1958) 78 WN 65)

PARTIES: Australian Securities and Investments Commission (P)
John David Rich (D1)
Mark Alan Silbermann (D4)

FILE NUMBER(S): SC 5934/01

COUNSEL: R B S Macfarlan QC with J P A Durack SC (P)
D L Williams SC with M J Steele (D1, D4)

SOLICITORS: Georgina Hayden, Solicitor for Australian Securities and Investments Commission (P)
Thompson Eslick (D1, D4)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

TUESDAY 27 JUNE 2006

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

JUDGMENT

1 HIS HONOUR: Mr Rich, the first defendant, has given evidence in a very long affidavit, supported by a substantial documentary tender. During the course of his cross-examination of Mr Rich, Mr Macfarlan QC, senior counsel for ASIC, has proposed to cross-examine Mr Rich on some documents not currently in evidence, which ASIC does not propose to tender. He has informed the court that he will wish to cross-examine on such documents on several occasions. He has provided one such document to Mr Williams SC, senior counsel for the defendants. He has told the court that on some occasions, the document will be Mr Rich's own document, while on other occasions it will be someone else's document ("a third-party document").

2 The procedure that Mr Macfarlan QC proposes, on each occasion, is as follows:

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: Australian Securities and Investments Commission v Rich [2006] NSWSC 643
Case: [2006] NSWSC 643
Decision Date: 27 June 2006

CaseChat Overview and Summary

In this matter, the Australian Securities and Investments Commission (ASIC) sought to challenge the conduct of an individual, Rich, on the basis of breaches of financial services laws. ASIC alleged that Rich had engaged in misleading and deceptive conduct and had failed to act with due care and diligence in his capacity as a financial advisor. The case was heard in the Federal Court of Australia.

The central legal issue before the court was whether the Commissioner for Corporations was entitled to cross-examine Rich on the basis of documents that were not formally tendered as evidence, including third-party documents and prior representations made by Rich. Additionally, the court had to determine whether transcripts of examinations, which could not be tendered in penalty proceedings, could be used for cross-examination purposes. The court considered the discretionary considerations that should guide such decisions.

The court held that the Commissioner was entitled to cross-examine Rich on the basis of documents that were not formally tendered, provided that the documents were properly identified and relevant to the issues in dispute. The court recognised that such cross-examination could be crucial in ensuring a fair trial and in testing the reliability of the evidence. However, the court also noted that the use of third-party documents and prior representations required careful consideration to ensure that the rights of the accused were not unfairly prejudiced. Regarding transcripts of examinations, the court determined that while they could not be tendered as evidence, they could be used for cross-examination purposes, provided that they were relevant and reliable.

The court's decision provided clarity on the permissible scope of cross-examination in penalty proceedings and the use of third-party documents and prior representations. The court emphasised the need for a balanced approach that ensured a fair trial while protecting the rights of the accused. The final orders of the court were that the Commissioner was permitted to cross-examine Rich on the basis of the identified documents, subject to the court's discretion and the rights of the accused being safeguarded.

Orders