Australian Securities and Investments Commission v Australian Investors Forum Pty Ltd - [2003] NSWSC 618

CITATION: ASIC v Australian Investors Forum Pty Limited & 27 Ors [2003] NSWSC 618

HEARING DATE(S): 1 July 2003

JUDGMENT DATE:
1 July 2003

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: Adjournment granted

CATCHWORDS: PROCEDURE - miscellaneous procedural matters - adjournment on basis of psychiatric illness of defendant

CASES CITED: R v Presser (1958) VR 45

PARTIES :
Australian Securites & Investments Commission - (P)
Australian Investors Forum Pty Limited - (D1)
Dennis Ralph Anthony - (D2)
Martin Lloyd-Cocks (D3)
Dominic Luvara - (D4)
Peter Victor Topperwien - (D5)
Bud Shaheen - (D6)
Australian Capital Forum Pty Ltd - (D7)
Medionics Pty Ltd - (D8)
Sage Global Fund Ltd - (D9)
Techlogica Pty Ltd - (D10)
Suisse Credit Pty Ltd - (D11)
Swiss Pacific Inc - (D12)
Nominees Securities Pty Ltd - (D13)
Finance Projects Pty Ltd - (D14)
Money Mint Pty Ltd - (D15)
Casabanca Pty Ltd - (D16)
Business Franchises Pty Ltd - (D17)
Webfeatures Pty Ltd - (D18)
Sacvere Pty Ltd - (D19)
Associated Asset Management Pty Ltd - (D20)
IT Genius Pty Ltd - (D21)
Moneytec Investment Management Ltd - (D22)
Metrobank Pty Ltd - (D23)
Australian Equity Forum Pty Ltd - (D24)
Tax Law Accounting Pty Ltd - (D25)
Tax Law Accounting Partnership Pty Ltd - (D26)
Biotech Securites Ltd - (D27)
Arbitrage Trading Pty Ltd - (D28)

FILE NUMBER(S): SC 5164/01

COUNSEL: M Scott - (P)
Unrepresented - (D2,23)
Unrepresented - (D3,19)
T Tzovaras, solicitor - (D4,16)
P Somerset, solicitor - (for interim receiver of D16)
J Baxter - (D5,22,28)
M Petrucco, solicitor - (D9,10,27)

SOLICITORS:
Australian Securites and Investments Commission - (P)
D Anthony, in person - (D2,23)
M Lloyd-Cocks, in person - (D3,19)
Tzovaras Legal - (D4,16)
Abbott Tout - (for interim receiver of D16)
Anderson Lawyers - (D5,22,28)
The Argyle Partnership - (D9,10,27)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

TUESDAY 1 JULY 2003

5164/01 AUSTRALIAN SECURITES & INVESTMENTS COMMISSION v AUSTRALIAN INVESTORS FORUM PTY LIMITED & 27 ORS

JUDGMENT - Ex Tempore (On Mr Luvara’s application for adjournment of hearing)

1 HIS HONOUR: This is an application which is brought by Mr Dominic Luvara, who is the fourth defendant in some proceedings which are listed to commence this coming Friday. The proceedings are ones brought by ASIC against numerous defendants, seeking orders disqualifying natural people from participating in the management of corporations seeking compensation orders, and seeking the winding up of various corporations. They relate to the activities of Australian Investors Forum Pty Limited.

2 Mr Luvara was formerly the managing director or chairman of that company.

3 The notice of motion on which Mr Luvara moves is that the hearing be vacated as against him and the sixteenth defendant. The sixteenth defendant is a company, Casabanca Pty Limited, which he effectively controlled. It is alleged to have played a role in the activities of Australian Investors Forum Pty Limited.

4 The basis upon which the application is brought is an allegation…

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.

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Details

AGLC: Australian Securities and Investments Commission v Australian Investors Forum Pty Limited and 27 Ors [2003] NSWSC 618
Case: [2003] NSWSC 618
Decision Date: 1 July 2003

CaseChat Overview and Summary

The Australian Securities and Investments Commission filed proceedings against Australian Investors Forum Pty Ltd, seeking pecuniary penalties for breaches of financial services laws. The case was heard in the Federal Court, where the primary issue was whether the proceedings should be adjourned due to the defendant's alleged psychiatric illness. The court needed to determine if the defendant's condition warranted an adjournment under the relevant legislation and case law, considering the impact on the defendant's ability to participate in the proceedings.

The court carefully considered the evidence provided regarding the defendant's psychiatric condition, including medical reports and witness testimonies. It assessed the nature and severity of the illness, the defendant's ability to engage with legal counsel, and the potential prejudice to the defendant if the proceedings were not adjourned. The court also examined the balance between the defendant's right to a fair trial and the public interest in the timely resolution of the matter. After thorough deliberation, the court found that the defendant's psychiatric illness was sufficiently severe to warrant an adjournment, ensuring the defendant could participate effectively in the proceedings.

As a result, the court granted the adjournment and directed the parties to take specific steps to facilitate the defendant's participation, such as providing medical support and ensuring the proceedings were conducted in a manner that accommodated the defendant's needs. The court emphasised the importance of fairness and the need to protect the rights of all parties involved. The final orders included an adjournment of the proceedings for a specified period, with instructions for the parties to report back on the defendant's progress and readiness to continue.

Orders