ASIC v Rich [2004] NSWSC 951

New South Wales Supreme Court

CITATION : ASIC v Rich [2004] NSWSC 951 HEARING DATE(S) : 12 October 2004 JUDGMENT DATE : 13 October 2004 JURISDICTION: Equity JUDGMENT OF : Austin J DECISION : Question and line of questioning disallowed.

CATCHWORDS : EVIDENCE - admissibility of evidence in cross-examination - documents allegedly obtained improperly and in contravention of Crimes Act 1914 (Cth) - whether, for purposes of ss 135 and 138 of Evidence Act 1995 (NSW), question about plaintiff's state of knowledge up to three years after evidence was obtained is relevant and should be allowed - discretionary considerations LEGISLATION CITED : Evidence Act 1995 (NSW), ss 135, 138 Australian Securities and Investments Commission (P) PARTIES : John David Rich (D1) Mark Allen Silbermann (D4) FILE NUMBER(S) : SC 5934/01 COUNSEL : R B S Macfarlan QC with J P A Durack SC, N J Beaumont and J E O'Sullivan (P) D L Williams SC with M J Steele and S A Goodman (D1, D4) SOLICITORS : Jan Redfern, Solicitor for Australian Securities and Investments Commission (P) Joanne Kelly, Solicitor (D1, D4)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

AUSTIN J

WEDNESDAY 13 OCTOBER 2004

5934/01 AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION V JOHN DAVID RICH & ORS JUDGMENT (Revised on 15 October 2004, to take into account submissions made on 14 October 2004, and for typographical errors) 1 HIS HONOUR: These reasons for judgment relate to whether I should disallow a question directed by senior counsel for the defendants to ASIC's witness, Ms Redfern, on 12 October 2004. 2 In reasons for judgment that I delivered in chambers on 24 September 2004, I explained some of the background to problems that have emerged in this trial as follows: The plaintiff, ASIC, has prepared a set of lever-arch folders of documents which it wishes to tender at the final hearing, which commenced on 6 September 2004. It also proposes to read some affidavits by Paul Carter, a forensic accountant from PricewaterhouseCoopers, and to tender his reports as expert opinion evidence, and to tender the exhibits to his affidavits. Together, the tender bundle and the exhibits to Mr Carter's affidavits and reports add up to a very substantial quantity of documents. ASIC has undertaken the major exercise of proving, by reading some 60 affidavits and tendering exhibits, the "provenance" of the documentary evidence upon which it proposes to rely. It has prepared indices to summarise the provenance evidence. According to the indices, a very large amount of the documentary evidence is sourced in the "Ferriers' I-drive", a copy of the I-drive in One.Tel's computer system, which was made on the instructions of the liquidators of One.Tel (who are partners of Ferrier Hodgson). A much more limited number of documents is said to be sourced in materials obtained by the execution of a search warrant by the Australian Federal Police on 1 June 2001.