New South Wales Supreme Court CITATION : ASIC v Australian Investors Forum Pty Ltd & Ors [2003] NSWSC 562 HEARING DATE(S) : 13 June 2003 JUDGMENT DATE : 13 June 2003 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : Order varied to permit applicant to leave Australia during a specified period CATCHWORDS : CORPORATIONS - supervision, regulation and correction - offences - generally - order prohibiting person from leaving Australia without the consent of the Court LEGISLATION CITED : Corporations Act 2001 (Cth) CASES CITED : ASIC v Australian Investors Forum Pty Ltd [2001] NSWSC 1180 PARTIES : Australian Securities & Investment Commission - Plaintiff Dennis Anthony - Applicant/Second Defendant FILE NUMBER(S) : SC 5164/01 COUNSEL : D Stack - Plaintiff D Anthony, in person - Applicant/Second Defendant SOLICITORS : Australian Securities & Investment Commission - Plaintiff Unrepresented - Applicant/Second Defendant IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST CAMPBELL J FRIDAY 13 JUNE 2003 5164/01 AUSTRALIAN SECURITIES & INVESTMENT COMMISSION v AUSTRALIAN INVESTORS FORUM PTY LIMITED & ORS JUDGMENT – Ex Tempore 1 HIS HONOUR: This is an application which is made by Dennis Anthony to leave the jurisdiction for the purpose of travel to the Philippines. Mr Anthony is presently the subject of an order which prevents him from leaving Australian and requiring him to surrender his passport. Those orders are orders which were made under section 1323(1)(c) of the Corporations Act and 1323(1)(j) and (k). 2 Mr Anthony is one of twenty-eight defendants in a complex litigation which has been brought by ASIC, which after many vicissitudes is now fixed for trial for fifteen court days starting on 4 July. The orders which are sought against Mr Anthony in these proceedings include orders for disqualification from holding corporate office and compensation orders. 3 The application that is made today arises from the fact that an adopted daughter of Mr Anthony has died in the Philippines in the last few days. Mr Anthony has domestic arrangements which were described by Hamilton J in a judgment which he delivered on 11 December 2001 (ASIC v Australian Investors Forum Pty Ltd [2001] NSWSC 1180) as being that he lives between Sydney and Manila but in Australia he has grown up children, a grandchild and an aged mother with whom he spends considerable time when in Australia. 4 In the Philippines he has a wife, a six year old son and some foster children who are relatives of his wife and who live with her. He also has business dealings there and at least in December 2001 he had some litigation in the Philippines. 5 Mr Anthony says that his wife is in considerable distress as a result of the death and needs immediate support as does the rest of his family. At the time of Hamilton J's decision a section 19 examination was still pending. Now, while the section 19 examination has not been formally concluded, ASIC is not pressing for any further steps to be taken concerning it. At the time of Hamilton J's decision there was some possibility of Mr Anthony being charged with criminal offences. Nothing has happened about that in the course of the last year and a half. 6 The allegations which are made against Mr Anthony are serious ones; however, the immediate occasion for Hamilton J coming to the conclusion which he did has now passed. It is true that there are other considerations arising from the civil proceedings which have been brought against him not at present being concluded. However the exercise of the power to restrict a person's freedom of movement is a particularly serious one – see the cases collected by Hamilton J in ASIC v Australian Investors Forum Pty Ltd [2001] NSWSC 1180 at [4]. 7 The circumstances of the death of the child and the long absence of Mr Anthony from his Philippines family are together, it seems to me, matters which justify the revocation of the orders that were made. Mr Anthony continues to have the family connections in Australia that were recorded by Hamilton J. 8 He proffers to the court an undertaking that he will return by 25 June 2003. 9 The attitude of ASIC is that it did not seek to put on any specific evidence showing the risk of Mr Anthony not returning. Rather, it chose to rely upon the inherent tendency of the situation in which he is now placed, where serious allegations are made against him which concern a lot of money, where he has a family in the Philippines and assets in the Philippines. 10 While there is force in that argument from inherent tendency, it does not seem to me that the risk is demonstrated to be so great that it overrides the important private right of being able to travel. 11 Upon Dennis Anthony giving to the court an undertaking that he will return by 25 January 2003 to New South Wales, I vary the order made by Hamilton J so that it will not be a breach of that order for him to be out of Australia at any time during the period 14 June 2003 to 25 June 2003. I order that his passport be returned to him. ********** Last Modified: 06/24/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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