Guglielmin v Trescowthick (No 4)

FEDERAL COURT OF AUSTRALIA

Guglielmin v Trescowthick (No 4) [2006] FCA 1036

PRACTICE AND PROCEDURE - suppression of material - allegation material would affect a party's capacity for fair trial of criminal proceedings - discretionary considerations

HELD -  application for suppression orders refused

ELEANOR GUGLIELMIN v ADAM JOHN TRESCOWTHICK, JOHN MAURICE PATTEN, ROSS GRAHAM OAKLEY, ROBERT DAVID MATTINGLY, ROGER ANDREW CURTIS AND MARK CHARLES TRESCOWTHICK

SAD 153 OF 2002

MANSFIELD J
10 AUGUST 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 153 OF 2002

BETWEEN:

ELEANOR GUGLIELMIN
Applicant

AND:

ADAM JOHN TRESCOWTHICK
First Respondent

JOHN MAURICE PATTEN
Second Respondent

ROSS GRAHAM OAKLEY
Third Respondent

ROBERT DAVID MATTINGLY
Fourth Respondent

ROGER ANDREW CURTIS
Fifth Respondent

MARK CHARLES TRESCOWTHICK
Sixth Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	10 AUGUST 2006
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The first respondent’s motion of 1 August 2006 is refused.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 153 OF 2002

BETWEEN:

ELEANOR GUGLIELMIN
Applicant

AND:

ADAM JOHN TRESCOWTHICK
First Respondent

JOHN MAURICE PATTEN
Second Respondent

ROSS GRAHAM OAKLEY
Third Respondent

ROBERT DAVID MATTINGLY
Fourth Respondent

ROGER ANDREW CURTIS
Fifth Respondent

MARK CHARLES TRESCOWTHICK
Sixth Respondent

JUDGE:	MANSFIELD J
DATE:	10 AUGUST 2006
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The first respondent seeks an order pursuant to s 33ZF of the Federal Court of Australia Act 1976 (Cth), or alternatively under the inherent power of the Court, that a letter proposed to be sent by the applicant’s solicitors to group members on 16 August 2006 be treated as confidential by group members and not disclosed to any other person save for the express purposes of obtaining legal or financial advice, or other necessary advice regarding settlement of the proceeding. Additionally, he seeks an order prohibiting the publication by any other person of the proposed letter or the contents of the proposed letter.

2. The proceeding is a representative proceeding under Pt IV(A) of the Act.  The group members were originally defined as all persons or bodies corporate who acquired and held shares in Harris Scarfe Holdings Limited (Holdings) up to and including 3 April 2001.  On 31 July 2002, the Court gave directions in relation to the ‘opt out’ procedure required by s 33J of the Act.  On 18 April 2006, to identify those group members who had not opted out, and who remained positively interested in making claims, the Court ordered that those persons register with the solicitors for the applicant.  Those who did not register would remain group members for the purposes of being bound by any outcome to the proceedings, but would not participate in any distribution of a settlement sum or damages.

3. The recent application is prompted by the insurer of the respondents, the directors of Holdings from time to time, having made an offer to the applicant to settle the representative proceeding.  On the evidence, the offer…