Ashton v Prentice [1999] FCA 1517

ANDREW CRAIG ASHTON

First Cross Respondent

ERIC ABRAHAM JURY (SNR)

Second Cross Respondent

SONIA SADIE JURY

Third Cross Respondent

WILLIAM ABRAHAM JURY

Fourth Cross Respondent

HOUDA JURY

Fifth Cross Respondent

JUDGE: HILL J

DATE: 25 OCTOBER 1999

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT 1 On 2 September 1999 the Australian Securities and Investment Commission ("the Commission") sought the Court's permission to have access to the Court's file in this matter and particularly to an affidavit of Mr Ashton of 5 November 1998, an affidavit of Mr Ashton's solicitor and a medical report from a neurologist, Dr Darveniza. 2 The purpose for which the Commission sought access to this material was consideration of whether Mr Ashton was not a fit and proper person to remain registered as an auditor and liquidator. The letter seeking access stated that the Commission was considering making application to the Companies Auditors and Liquidators Disciplinary Board ("CALDB") for the cancellation or suspension of Mr Ashton's registrations, as an auditor and liquidator, under s 129(2) of the Corporations Law. 3 The circumstances in which the material to which the Commission sought access was handed up are set out in a judgment of 20 November 1998. Shortly stated, I had delivered reasons for judgment in the main proceedings on 23 October 1998 indicating that I proposed to make orders adverse to Mr Ashton. Subsequently counsel for Mr Ashton moved the Court to reopen the hearing on the basis of medical evidence. I ordered that any evidence in support of that motion be filed on or before 9 November 1999 and stood the motion over until 16 November 1999. 4 In support of the motion the three documents to which I have referred were filed or handed up in open Court. No objection was taken to the material being read in support of the motion, no attempt was made on behalf of counsel for Mr Ashton to have a confidentiality order made in respect of the material. As appears in the judgment which I delivered on 20 November 1998 I dismissed the motion and refused to allow the case to be reopened. 5 I summarised in that judgment each of the documents in question, each of which was, in a formal sense, read in open Court. There can be no doubt that an affidavit read in open Court is freely available for inspection from the Court file by any member of the public and that would, of course, include the Commission. The same is true of other material that is read in open Court and relied upon by one or other party to a proceeding unless a confidentiality order has been made. 6 I nevertheless informed the legal representatives of Mr Ashton of the request and gave an opportunity for Mr Ashton to be heard in respect of the medical information, an opportunity he desired to exercise. At the time I did so, I had not had an opportunity to peruse the file and particularly the judgment to which I have referred. Counsel for Mr Ashton did not, as such, oppose the medical evidence being made available to the Commission. However, he submitted that I should make an order against the Commission in effect requiring the Commission to give limited evidentiary weight to the report because it was tendered in support of the interlocutory motion to reopen the substantive case. 7 I have some difficulty in understanding what such an order would achieve. However, counsel for Mr Ashton points out that the doctor was not the subject of cross-examination and that there was other material which had been the subject of a notice to produce from the solicitors for Mr Prentice, including reports of examinations to which the doctor referred in his report which might cast light on the report. No doubt that is a matter which would need to be considered by the Commission in connection with its inquiries.