Case: Seven Network Ltd v News Limited (No 9) [2005] FCA 1394
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. 16 The principles governing access to affidavits which have been received into evidence were discussed recently by Sackville J in Seven Network Ltd v News Limited (No 9) [2005] FCA 1394 , a judgment which was delivered on 5 October 2005. The point of departure adopted by his Honour was the proposition stated by the Full Court in R v Davis (1995) 57 FCR 412 at 514: 'Whatever [the media's] motives in reporting, their opportunity to do so arises out of a principle that is fundamental to our society and method of government: except in extraordinary circumstances, the courts of the land are open to the public. This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers. As few members of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them.' His Honour referred to other authorities to like effect. 18 I agree, with respect, with the following observation by Sackville J at [27]: '...unless the interests of justice require otherwise, this Court would ordinarily take the view that a non-party should have access to all non-confidential documents and other material admitted into evidence. I say 'ordinarily' because the circumstances of each case will vary and the exercise of the discretion under FCR O 46 r 6 will have to take into account the particular circumstances of the case. I agree ... that a convenient touchstone for determining the question of access by non-parties is whether the documents or other material have been admitted into evidence. In general, the application of this principle will serve the interests of open justice. In particular, access to the documentary evidence can be expected to be helpful to a person seeking to understand or explain the proceedings, or to evaluate the court's determination of the issues arising the proceedings (cf Evidence Act 1995 (Cth), ss 55 , 56 (stating the test of relevance)).' His Honour went on to say that in exercising the discretion conferred by O 46 r 6(iv) he considered that considerable weight should be given to the principle of open justice. 19 In that case however, his Honour recognised that there was a significant risk that if non-confidential exhibits were released to the media as soon as they were admitted into evidence some parties might be subjected to a forensic disadvantage. Thus the publication in the media of the substance of some exhibits might deprive a party of a legitimate forensic advantage when it came to cross-examination of particular witnesses.