ASIC v Rich [2005] NSWSC 999

New South Wales Supreme Court

CITATION : ASIC v Rich [2005] NSWSC 999

HEARING DATE(S) : Written submissions only

JUDGMENT DATE : 11 October 2005

JURISDICTION : Equity

JUDGMENT OF : Austin J

DECISION : Rulings on various items of evidence, set out in the body of the judgment

CATCHWORDS : EVIDENCE - expert opinion evidence - admissibility of forensic accounting expert's supplementary evidence - no issue of general principle

LEGISLATION CITED : Evidence Act 1995 (NSW), ss 79, 102, 135, 136

ASIC v Rich [2005] NSWSC 650 CASES CITED : ASIC v Rich [2005] NSWSC 939

Australian Securities and Investments Commission (P) PARTIES : John David Rich (D1) Mark Alan Silbermann (D4)

FILE NUMBER(S) : SC 5934/01

R B S Macfarlan QC with J P A Durack SC (P) COUNSEL : D L Williams SC with M J Steele (D1, D4)

Georgina Hayden, Solicitor for Australian Securities and Investments Commission (P) SOLICITORS : Joanne Kelly, Solicitor (D1, D4)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

AUSTIN J

TUESDAY 11 OCTOBER 2005

5934/01 AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION V JOHN DAVID RICH & ORS JUDGMENT 1 HIS HONOUR: In a judgment dated 30 September 2005 (ASIC v Rich [2005] NSWSC 939) I gave reasons for my decisions as to the admissibility of that part of Mr Carter's "supplementary materials" on which I had to make rulings before commencing to take evidence in London on 24 August 2005. The present judgment deals with the remainder of the defendants' objections to the admissibility of Mr Carter's supplementary materials. 2 ASIC has pressed the admissibility of: · certain parts of Mr Carter's principal report of 31 May 2002; · parts of his affidavit of 23 July 2004; · parts of his affidavit of 22 October 2004; · his affidavit of 2 November 2004; · parts of his affidavit and report of 29 November 2004; · parts of his affidavit and report of 21 December 2004; · Mr Carter's draft correcting report in AS 93. Principal report of 31 May 2002 3 ASIC indicated (in AS 87) that it seeks the admission of the table in para 222 of the principal report, apart from the line "Growth in Uncollectible Trade Debtors" and the totals, "in light of the terms of para 220 of the judgment of 8 July 2005". 4 In my judgment on the "paragraph-by-paragraph" analysis of Mr Carter's principal report (ASIC v Rich [2005] NSWSC 650, 8 July 2005), I explained (at [16]) that I had not found it easy to connect the paragraphs in the body of the report, upon which I had made rulings, with the summary paragraphs 13-27. Therefore I invited counsel to provide brief notes as to what, in their submission, should be the outcome for those paragraphs having regard to my rulings on the subsequent paragraphs. They did so, in AS 95 and DS 86. ASIC stated (in AS 95, para DS1) that it presses paras 13, 14(b) and (c), 15(b) and (c) (save for the last sentence), 16(a) and (b), 18(a) and (b), 19, 24 and 25(a). In their response (DS 86), the defendants objected to all of this material except for paras 14(b), 15(b), 16(b) and 19.