Case: Australian Securities and Investments Commission v Rich [2001] NSWSC 496
Outcome: cited
Securities and Investments Commission, inthe matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 2) [2006] FCA 407 (11 April 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here: &nbsp; AustLII &gt;&gt; Databases &gt;&gt; Federal Court of Australia &gt;&gt; 2006 &gt;&gt; [2006] FCA 407 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Australian Securities and Investments Commission, inthe matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 2) [2006] FCA 407 (11 April 2006) Last Updated: 12 April 2006 FEDERAL COURT OF AUSTRALIA Australian Securities and Investments Commission, in the matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 2) [2006] FCA 407 PRACTICE AND PROCEDURE - media access to affidavits in evidence affidavits filed in ex parte proceedings for interim preservation orders exhibiting transcripts of examinations under s 19 of the ASIC Act principle of open justice objections based on speculative risks access permitted Corporations Act 2001 (Cth) s 1323(3) Federal Court of Australia Act 1976 (Cth) s 50 Australian Securities and Investments Commission Act (Cth) ss 19, 68 Australian Securities and Investments Commission v Rich [2001] NSWSC 496 cited Seven Network Ltd v News Limited (No 9) [2005] FCA 1394 cited R v Davis (1995) 57 FCR 412 cited John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101 cited Gangemi v Australian Securities and Investments Commission [2003] FCA 494 ; (2003) 129 FCR 284 cited Federal Court Rules O 46 r 6 IN THE MATTER OF RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968); WESTPOINT REALTY PTY LTD (ACN 050 218 954); BOWESCO PTY LTD (ACN 008 915 357); REDCHIME PTY LTD (ACN 117 947 805) AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v NORMAN PHILLIP CAREY, GRAEME JOHN RUNDLE, CEDRIC RICHARD PALMER BECK, JOHN NORMAN DIXON, RICHSTAR ENTERPRISES PYT LTD (ACN 099 071 968), WESTPOINT REALTY PTY LTD (ACN 050 218 954) and BOWESCO PTY LTD (ACN 008 915 357) and REDCHIME PTY LTD (ACN 117 947 805) WAD 83 OF 2006 FRENCH J 11 APRIL 2006 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 83 OF 2006 IN THE MATTER OF RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968) WESTPOINT REALTY PTY LTD (ACN 050 218 954) BOWESCO PTY LTD (ACN 008 915 357) REDCHIME PTY LTD (ACN 117 947 805) BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION PLAINTIFF AND: NORMAN PHILLIP CAREY FIRST DEFENDANT GRAEME JOHN RUNDLE SECOND DEFENDANT CEDRIC RICHARD PALMER BECK THIRD DEFENDANT JOHN NORMAN DIXON FOURTH DEFENDANT RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968) FIFTH DEFENDANT WESTPOINT REALITY PTY LTD (ACN 050 218 954) SIXTH DEFENDANT BOWESCO PTY LTD (ACN 008 915 357) SEVENTH DEFENDANT REDCHIME PTY LTD (ACN 117 947 805) EIGHTH DEFENDANT JUDGE: FRENCH J DATE OF ORDER: 11 APRIL 2006 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. John Fairfax Holdings Limited, Nationwide News Ltd and West Australian Newspapers Ltd have leave to inspect the following documents filed in these proceedings: (i) The affidavits of Richard Warren Gomm sworn on 29 March 2006. (ii) The affidavit of Oran Zohar sworn on 29 March 2006. (iii) The affidavit of Kevin Chin sworn on 30 March 2006. (iv) The affidavit of Marcus Essex Claridge sworn on 30 March 2006. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 83 OF 2006 IN THE MATTER OF RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968) WESTPOINT REALTY PTY LTD (ACN 050 218 954) BOWESCO PTY LTD (ACN 008 915 357) REDCHIME PTY LTD (ACN 117 947 805) BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION PLAINTIFF AND: NORMAN PHILLIP CAREY FIRST DEFENDANT GRAEME JOHN RUNDLE SECOND DEFENDANT CEDRIC RICHARD PALMER BECK THIRD DEFENDANT JOHN NORMAN DIXON FOURTH DEFENDANT RICHSTAR ENTERPRISES PTY LTD (ACN 099 071 968) FIFTH DEFENDANT WESTPOINT REALITY PTY LTD (ACN 050 218 954) SIXTH DEFENDANT BOWESCO PTY LTD (ACN 008 915 357) SEVENTH DEFENDANT REDCHIME PTY LTD (ACN 117 947 805) EIGHTH DEFENDANT JUDGE: FRENCH J DATE: 11 APRIL 2006 PLACE: PERTH RULING ON APPLICATION BY NON-PARTIES FOR ACCESS TO AFFIDAVITS Introduction 1 The Australian Securities and Investments Commission (ASIC) has commenced proceedings in this Court for the appointment of receivers to the property of various persons and companies associated with the Westpoint Property and Finance Group of Companies. On 30 March 2006, Siopis J made orders, on an ex parte application, for the interim preservation of the defendants' assets and other incidental orders. The substantive application for the appointment of receivers is to be heard tomorrow. Certain media organisations have requested leave to inspect the affidavits filed to date including those relied upon in the ex parte proceedings. That access is opposed by the defendants. For the reasons now published I will allow the media organisations to inspect the affidavits in evidence in the ex parte proceedings. 10 On behalf of the media organisations requesting access it was submitted that the principle of the open administration of justice requires that the proceedings be conducted in public which in turn enables fair and accurate reports of the proceedings to be published. The risk of dissipation of assets is a fundamental consideration when an application is made under s 1323 of the ASIC Act. The principle of open justice, it was said, requires the evidence for the cause of the apprehension to be made available unless there are specific and compelling reasons for suppressing it. In this respect reliance was placed upon Australian Securities and Investments Commission v Rich [2001] NSWSC 496 per Austin J at [36]. 11 In answer to the defendants' arguments about the admissibility of the s 19 transcripts, the media organisations contended that the issue of admissibility was not relevant to the question of access. It was submitted that s 68(3) of the ASIC Act would apply in circumstances where before the making of the statement or signing of a record the person claims the statement or signing of the record may tend to incriminate that person. Reliance was placed upon s 68(2) of the ASIC Act in that respect. 12 In answer to the contention that the transcripts should not be available for inspection because ss 22 and 25 of the ASIC Act had indicated a legislative intention to protect the secrecy of the examination, it was submitted that the fact a process conducted under statute prescribes privacy does not mean that privacy prevails when the matter becomes subject to the jurisdiction of the Court. 20 In connection with ex parte proceedings I refer also to the observation by Austin J in Rich at [26] that: 'The principle of open justice entails, in my view, that when the Court makes quite significant orders on an ex parte application, the basis for the making of those orders must be available so that the court is accountable for what it has done after it has considered the information provided to it. In my view, that is so important a consideration that, unless there is some specific or obvious prejudice of another kind, the mere consideration of prematurity, in the sense that the plaintiff's evidence has not been tested or answered, is insufficient to prevent the Court from making available to outsiders, including in particular the media, the affidavits relied upon in ex parte circumstances leading to significant relief.' 21 The question whether affidavit evidence relied upon in ex parte proceedings may or may not be admissible in later proceedings or in criminal or penalty proceedings has little bearing, of itself, on the question of access. There may be issues of unfair prejudice that might be advanced but there is nothing specific upon which to base any such apprehension in this case. There are no criminal proceedings, nor any penalty proceedings pending. It is a speculative exercise to weigh the possibility of prejudice by reference to the possibility of such proceedings in the future. 22 It is not unusual that criminal proceedings, in matters of great public interest, are preceded by publicity about the events that led to their institution. To the extent that such proceedings are conducted before a jury, appropriate directions can be given by the judge. If the publicity is of such proximity in time and of such a character that the prejudice cannot be overcome by judicial direction and that a fair trial is not possible, then a stay can be sought. It is, however, not a matter for the Court to anticipate, on entirely speculative grounds, that this is an element of a generalised risk which will operate as an effective bar to the application of the principle of open justice in this case.