New South Wales Supreme Court CITATION : ASIC v Adler & 4 Ors [2001] NSWSC 644 revised - 27/07/2001 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 2753/01 HEARING DATE(S) : 27/07/01 JUDGMENT DATE : 27 July 2001 In the matter of HIH Insurance Limited (in provisional liquidation) ACN 008 636 575 and HIH Casualty and General Insurance Limited (in provisional liquidation) ACN 008 482 291 Australian Securities & Investments Commission (Plaintiff) Rodney Stephen Adler (First Defendant) PARTIES : Raymond Reginald Williams (Second Defendant) Domenic Fodera (Third Defendant) Adler Corporation Pty Ltd (ACN 054 924 373) (Fourth Defendant) Lynda Sharon Adler (Fifth Defendant) JUDGMENT OF : Santow J A J L Bannon, SC/D R Stack (Plaintiff) S D Glass (Sol.) (First and Fourth Defendants) COUNSEL : L Zwier (Sol.) (Second Defendant) W E Jacobs (Sol.) (Third Defendant) J Stoljar (Fifth Defendant) Australian Securities and Investments Commission (Plaintiff) Gilbert & Tobin (First and Fourth Defendants) SOLICITORS : Sparke Helmore as agents for Arnold Block Leibler (Second Defendant) Dibbs Crowther & Osborne (Third Defendant) Speed and Stracy (Fifth Defendant) CATCHWORDS : PROCEDURE — Practice Note No. 97 dated 9 March 1998 — Availability of Statement of Claim filed prior to any Defence being filed when requested by newspaper — Relevance that Statement of Claim already made available by the party filing the Statement of Claim — Interests of justice not prejudiced and openness of court's processes vindicated by release in those circumstances and where readers will appreciate likelihood of Defences being filed and that allegations may or may not be ultimately substantiated. DECISION : Statement of Claim released. IN THE SUPREME COURT OF NEW SOUTH WALES IN EQUITY SANTOW J No. 2753/01 In the matter of HIH Insurance Limited (in provisional liquidation) ACN 008 636 575 and HIH Casualty and General Insurance Limited (in provisional liquidation) ACN 008 482 291 Australian Securities & Investments Commission Plaintiff Rodney Stephen Adler First Defendant Raymond Reginald Williams Second Defendant Domenic Fodera Third Defendant Adler Corporation Pty Ltd (ACN 054 924 373) Fourth Defendant Lynda Sharon Adler Fifth Defendant JUDGMENT — ex tempore 27 July 2001 1 This matter arises in the context where the Sydney Morning Herald contacted the Supreme Court's Public Information Officer seeking a copy of the Statement of Claim filed by ASIC on 25 July 2001 in the proceedings abovementioned. This occurred following the release by ASIC of that same Statement of Claim to the Financial Review who have published two articles, the second comprehensive, on 26 and 27 July 2001. 2 Acting as a Judge nominated by the Chief Justice pursuant to paragraph 6 of Practice Note No. 97 dated 9 March 1998, I have determined that in all the circumstances the interests of justice would not be prejudiced and the openness of the court's processes vindicated were the Statement of Claim now released. In so doing after hearing from all of the Defendants, I should record that it can be expected that a Defence would be filed certainly by the First and Fourth Defendant and in all probability by the other Defendants, though noting that the Second Defendant has stated that it does not wish to be placed in a position where it is compelled to file a Defence. 3 Essentially the reason why there could be no material prejudice to a fair trial is that the subject matter of the Statement of Claim is now in the public domain. Most of it had earlier been released, when ASIC's original summons was made available either by consent or without opposition. The Statement of Claim now pleads the allegations in the Summons with somewhat greater particularity, adds new allegations of breach of the Corporations Law and expands the relief sought. But most of that became clear from the Financial Review articles. Moreover a fair-minded reader of any press report will appreciate that there is the likelihood that Defences will be filed and the allegations may or may not be ultimately substantiated. 4 I have been asked by Second Defendant to direct that ASIC should be directed to file an affidavit explaining the circumstances of its release of the Statement of Claim. This is not an appropriate proceeding for me to make any such direction. ********** Last Modified: 07/30/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.