Australian Securities and Investments Commission v Adler &4 Ors
[2001] NSWSC 777
•3 September 2001
Reported Decision:
(2001) 38 ACSR 216
New South Wales
Supreme Court
CITATION: ASIC v Adler &4 Ors [2001] NSWSC 777 revised - 5/09/2001 CURRENT JURISDICTION: Equity FILE NUMBER(S): SC 2753/01 HEARING DATE(S): 03/09/01 JUDGMENT DATE:
3 September 2001PARTIES :
In the matter of HIH Insurance Limited (in provisional liquidation) ACN 008 636 575 and HIH Casualty and General Insurance Limited (in provisional liquidation) ACN 008 482 291
Australian Securities & Investments Commission (Plaintiff)
Rodney Stephen Adler (First Defendant)
Raymond Reginald Williams (Second Defendant)
Domenic Fodera (Third Defendant)
Adler Corporation Pty Ltd (ACN 054 924 373) (Fourth Defendant)
Lynda Sharon Adler (Fifth Defendant)JUDGMENT OF: Santow J
COUNSEL : W Jacobs (Solicitor) (Third Defendant)
J Stoljar (Fifth Defendant)
M H Southwick (John Fairfax Publications Pty Ltd)SOLICITORS: Dibbs Crowther & Osborne (Third Defendant)
Speed and Stracy (Fifth Defendant)CATCHWORDS: PROCEDURE — Corporations — Release of pleadings to press before trial — Practice Note 97 — No prejudice to fair trial — Other defendants released their Defences. LEGISLATION CITED: Supreme Court Rules Practice Note 97 DECISION: Pleadings released despite objection.
REVISED — 5 September, 2001
IN THE SUPREME COURT
OF NEW SOUTH WALES
IN EQUITYNo. 2753/01SANTOW J
In the matter of HIH Insurance Limited (in provisional liquidation) ACN 008 636 575 and HIH Casualty and General Insurance Limited (in provisional liquidation) ACN 008 482 291
Australian Securities & Investments Commission
PlaintiffJUDGMENT — ex tempore
Rodney Stephen Adler
First Defendant
Raymond Reginald Williams
Second Defendant
Domenic Fodera
Third Defendant
Adler Corporation Pty Ltd (ACN 054 924 373)
Fourth Defendant
Lynda Sharon Adler
Fifth Defendant
1 HIS HONOUR: This is an application by John Fairfax Publications Pty Ltd on behalf of all of its publications though, initially, by the Sydney Morning Herald, for access to the defences filed by all five Defendants in these current proceedings. The application is put in terms of Practice Note 97 dated 9 March 1998 and more generally.
2 When the Sydney Morning Herald contacted my Associate on Friday, 31 August 2001, for access to all five defences, I caused my Associate to enquire of each of the Defendants and the Plaintiff, ASIC, whether each of those wished to object to the making available of the defences as sought.
3 In the events that have happened, the Plaintiff and all Defendants, save the Third Defendant, have consented to the making available of the relevant defences. In those circumstances, I have asked the Third Defendant to put to the Court as also the applicant, any matter which should affect the Court's consideration about releasing the Third Defendant's defence.
4 The Third Defendant, through his legal representative, Miss Jacobs, candidly acknowledged that there was no prejudice that she could identify in relation to a fair trial were the Third Defendant's defence made available to the applicant, nor did she put that there was any likelihood that that defence, in terms of paragraph 4 of the Practice Note, would not ultimately be "read in open court".
5 The applicant adds to this that, because the defence is verified, there is less likelihood that it might be subject to change with the consequence that any conceivable prejudice from that would be difficult to foresee. Whether that last factor really weighs in the balance I need not decide.
6 I am satisfied that, in all the circumstances, the stricture in paragraph 4 of the practice statement which, in any event, should not be treated as some rigid constraint, does not apply in the present circumstances.
7 I am satisfied, therefore, that the Third Defendant's defence should, in the interests of open justice, where no countervailing prejudice to a fair trial has been identified, be made available to the applicant, along with the other defences.
8 I should also say, for the future, that it may be that further pleadings or affidavits will be filed. It would assist the Court and its Public Information Officer if the person or entity filing such material would indicate to the Court at the same time by covering letter to my Associate:
(a) that the filing has taken place with a copy to my Associate;
(c) if objection to access is foreshadowed, the ground for such objection.(b) whether there is any objection to access being made available to the press if sought; and
9 In taking this step, I am aware that there is considerable public interest in these particular proceedings and I wish to make sure, not only that there is no inadvertent provision of access but, also, that access is not unreasonably impeded. While, in one sense, it is true that the applicant has the onus of establishing grounds for that access particularly where this is sought prior to the completion of the trial, in a very real sense, the Court must be the custodian of a responsibility to ensure that its processes are transparent and that justice occurs in a public way.
10 If reporting is to be informed the media do, generally speaking, need access to the underlying documents before the Court. That consideration though of great importance must not prejudice a fair trial. Short of that, it is difficult to see any circumstances where access should be denied in the present context.
11 I am not here dealing, for example, with an infant or some other like case where, self-evidently, there may be serious prejudice from premature publicity, or publicity which could be so damaging that it has led, exceptionally, to the Court allowing protection against such publication.
12 Accordingly, I hope that the regime that I have now put in place will obviate the need for urgent hearings of this sort and will suit the convenience of all parties, as well as the press.
13 I order that all defences by the First to Fifth Defendants be made available to the applicant as and when filed and that photocopies be made accordingly.
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