Australian Securities and Investments Commission v Rich

[2004] NSWSC 750

CITATION:	ASIC v Rich [2004] NSWSC 750
HEARING DATE(S):	In Chambers
JUDGMENT DATE:	17 August 2004
JURISDICTION:	Equity
JUDGMENT OF:	Austin J
DECISION:	Certificate issued under Pt 27 r 1C that the amount that should be paid into court as provision for the court's expenses in relation to the examination of witnesses outside Australia is $37,795
CATCHWORDS:	PRACTICE AND PROCEDURE - procedure for issuing a certificate for provision of the court's expenses with respect to an examination of witnesses outside Australia
LEGISLATION CITED:	Supreme Court Rules Pt 27 r 1C
CASES CITED:	ASIC v Rich [2004] NSWSC 467
PARTIES :	Australian Securities and Investments Commission (P/A) John David Rich (D1/R1) John Huyshe Greaves (D3/R3) Mark Allen Silbermann (D4/R4)
FILE NUMBER(S):	SC 5934/01
COUNSEL:	R B S Macfarlan QC with A J Abadee (A) D L Williams SC (R1/R4) M J Steele (R3) (At hearing on 24 May 2004)
SOLICITORS:	Jan Redfern, Solicitor for Australian Securities and Investments Commission (A) Joanne Kelly, Solicitor (R1/R4) Watson Mangioni (R3) (At hearing on 24 May 2004)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

TUESDAY 17 AUGUST 2004

5934/01 AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION V JOHN DAVID RICH & ORS

JUDGMENT

1 HIS HONOUR: The plaintiff has made a successful application for the issue of a letter of request for the examination of witnesses in London before me, as examiner. I dealt with that application in reasons for judgment published on 31 May 2004: ASIC v Rich [2004] NSWSC 467. As I explained in my reasons for judgment (at [74]), the plaintiff’s application was an application for an order for examination under Pt 27 r 1A.

2 Part 27 rule 1C states that a judge of this court must not act as examiner otherwise than with the concurrence of the Chief Justice. In my reasons for judgment I proposed that the Chief Justice’s formal concurrence should be sought only when the form of a letter of request had been settled and the financial arrangements contemplated by Pt 27 r 1C had been finalised, so that the full proposal could be put before him (see [75]).

3 The form of the letter of request has been settled and the letter has been issued to the UK authorities. As to the financial arrangements, Pt 27 r 1C sets out a procedure under which the applicant requests the proposed examiner to certify the amount, which in the examiner’s opinion, should be paid into court as provision for expenses in relation to the examination. If the amount paid into court is insufficient, the Registrar may make an application for an order to increase the amount. If the amount paid into court exceeds the amount expended, the rule provides for a refund to be paid, upon the examiner certifying that there are no more expenses to be met.

4 In my reasons for judgment I expressed my desire and intention that the rule be followed meticulously and in a fully transparent fashion (at [79]). I said that while the rule provides for the examiner to certify the amount to be paid into court as provision for expenses, I thought it desirable in this case that the amount be determined by a judicial officer other than me, to avoid any perceived conflict of interest (at [80]).

5 As foreshadowed at paragraph [80] of my reasons for judgment, I have asked the Chief Judge in Equity to appoint another judicial officer to make a determination of the amount to be paid into court, on the basis that I would then formally certify, for the purposes of the rule, the amount so determined. The Chief Judge has nominated Windeyer J.

6 I have received a memorandum from Windeyer J dated 13 August 2004 in the following terms:

In accordance with paragraph 80 of your judgment of 31 May 2004 and as requested by the Chief Judge in Equity I consider the following amounts are proper to be certified by you for payment into Court on account of expenses to be incurred in your taking evidence on commission in London. Any amounts not expended will of course be refunded to ASIC. ASIC will be required to pay any expenses in excess of the amount paid in. The accommodation and allowance figures are for 14 days.
Judge Associate Total
Return airfares $8,028 $7,235 $15,263
Accommodation $8,036 $7,098 $15,134
Daily allowance (meals, fares,
laundry, telephone calls, etc) $4,382 $3,016 $ 7,398
$37,795

7 It seems to me that it is appropriate for me to issue a certificate under Pt 27 r 1C that the amount to be paid into court to make provision for the court’s expenses of taking evidence by examinations in London is $37,795.

8 In response to a query from Windeyer J, I indicated that on my understanding, it was likely that my Associate and I would depart for London on about 19 November 2004, and that he should make provision for 14 nights in London, although the parties hope that the examination process may not take quite so long. I have subsequently received a memorandum from the legal representatives of the plaintiff indicating that the departure to London might be delayed until about 6 December. I mention that only because travel and accommodation costs might be higher than estimated if the examination takes place closer to the Christmas vacation, and if that happens, a supplementary certificate might be needed.

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Last Modified: 08/25/2004