Australian Securities and Investments Commission v Whyte Corporation Pty Ltd
[2009] FCA 674
•18 June 2009
FEDERAL COURT OF AUSTRALIA
Australian Securities and Investments Commission v Whyte Corporation Pty Ltd; In the Matter of Whyte Corporation Pty Ltd [2009] FCA 674
IN THE MATTER OF WHYTE CORPORATION PTY LTD (ACN 114 604 714)
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v WHYTE CORPORATION PTY LTD (ACN 114 604 714) and GAVIN WHYTE
NSD 1752 of 2008
FOSTER J
18 JUNE 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1752 of 2008
IN THE MATTER OF WHYTE CORPORATION PTY LTD (ACN 114 604 714)
BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Plaintiff
AND: WHYTE CORPORATION PTY LTD (ACN 114 604 714)
First DefendantGAVIN WHYTE
Second Defendant
JUDGE:
FOSTER J
DATE OF ORDER:
18 JUNE 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The adjournment application made by the defendants be refused.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1752 of 2008
IN THE MATTER OF WHYTE CORPORATION PTY LTD (ACN 114 604 714)
BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Plaintiff
AND: WHYTE CORPORATION PTY LTD (ACN 114 604 714)
First DefendantGAVIN WHYTE
Second Defendant
JUDGE:
FOSTER J
DATE:
18 JUNE 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
When the matter was called on for hearing this morning the defendants made an application to adjourn the proceedings.
The basis of that application was two-fold.
First, on 16 June 2009 the Australian Securities and Investments Commission (ASIC), which is the plaintiff in the proceedings, notified the defendants that it would not be reading the affidavits of Alistair Newton Jones affirmed on 3 February 2009 and Robert Herman Schempp affirmed on 4 February 2009. These witnesses are dissatisfied customers of the first defendant. Counsel for the defendants has submitted that the defendants have prepared their case upon the basis that those affidavits would be read and that he would have an opportunity of cross-examining those two witnesses.
Further, Counsel submitted that, had he known earlier that these two witnesses were not to be called, he may have taken a different course in terms of the witnesses that he would have called in defence of the proceedings. In particular, he has informed me that he may have wished to call what he termed some “satisfied customers” in his own case.
The second matter concerns the late service of the affidavit of Conor Brennan sworn on 16 June 2009. That affidavit provides evidence by way of illustration of the way in which the product marketed by the defendants would have worked by reference to the circumstances of Mr Jones and Mr Schempp. It is said that there is a great deal of material in that affidavit which requires checking by those in the defendants’ camp and that there has not been, and will not be, sufficient time for that process to be completed if the hearing date is to be maintained.
As to the first matter, I do not think that the decision by ASIC not to call the two witnesses concerned is a good ground for an adjournment in the present case. The defendants took the risk that the two witnesses may not be called and that they might be denied the opportunity to cross-examine them. The decision not to call positive customer evidence seems to me to be a separate matter.
Counsel for ASIC has indicated that his client would be prepared to allow the affidavits of the two persons concerned to be read on the basis that he would not cross-examine either of them so that any benefits which the defendants sought to get from having the evidence of those two persons before the Court can still be obtained. ASIC’s solution is not entirely satisfactory from the defendants’ point of view. However, it does ameliorate the position somewhat.
Counsel for the defendants requires an opportunity to consider whether the defendants will take up the offer made by ASIC. It seems to me, in the circumstances, that that opportunity should be afforded to the defendants.
As far as the second matter is concerned, that is to say the recently served affidavit of Mr Brennan, the evidence on the adjournment application indicates that some 20 hours might be required, on the part of the defendants, to deal with that material. I am not convinced that that is really so. In any event, the defendants had all of yesterday to consider Mr Brennan’s material and I am of the view that the material is not as difficult to master as the defendants would have me accept. I have indicated to ASIC that I expect ASIC to cooperate with the defendants and their representatives by providing spreadsheets and other formula-like material to the defendants in electronic form so that the process of reviewing and considering the Brennan material can be expedited.
In all the circumstances, and for the reasons which I have outlined, I propose to do the following.
First, I will hear ASIC’s opening and, if the defendants wish, the defendants’ opening. I will also deal today with all objections to affidavits other than those of Messrs Jones, Schempp and Brennan, but reserving to the defendants the opportunity to consider their position in relation to the affidavits of Messrs Schempp and Jones and reserving to them a further opportunity to make such further application as they may be advised in light of what transpires during the course of today and before Court tomorrow in respect of the Brennan material. After those steps have been taken, I will adjourn the proceedings until 10.15 am tomorrow, at which time I will expect the defendants to proceed with the matter unless, for good reason, they wish to make a further application for adjournment. What I envisage occurring tomorrow is that any further evidence-in-chief will be led viva voce and that all cross-examination will take place. I will also expect to hear final submissions. That is the course I propose to take.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 19 June 2009
Counsel for the Plaintiff: Mr J Clarke with Ms V Thomas Solicitor for the Plaintiff: Mr Conrad Gray, Solicitor for Australian Securities and Investments Commission Counsel for the Defendants: Mr M Bloom Solicitor for the Defendants: Mr T Morgenstern
Date of Hearing: 18 June 2009 Date of Judgment: 18 June 2009
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