Rich & Anor v ASIC [2004] HCATrans 98 (2 April 2004)

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Rich & Anor v ASIC [2004] HCATrans 98 (2 April 2004)

Last Updated: 5 April 2004

[2004] HCATrans 098

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S612 of 2003

B e t w e e n -

JOHN DAVID RICH

First Applicant

MARK ALAN SILBERMANN

Second Applicant

and

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Respondent

For directions

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 APRIL 2004, AT 1.59 PM

Copyright in the High Court of Australia

MR D.L. WILLIAMS, SC: If the Court pleases, I appear for the applicants. (instructed by Joanne Kelly Solicitor)

MR J.P.A. DURACK: If the Court pleases, I appear for the respondent. (instructed by Australian Securities and Investments Commission)

HIS HONOUR: What I have in mind I will indicate to you and then you can respond as need be.

1. The appeal is set down for Thursday, 22 April 2004 as a one-day case;

That will require some division of time between counsel obviously.

2. The appellants file their written submissions on or before 12 April 2004;

3. The respondent file its written submissions on or before 11 April 2004;

4. The appellants - - -

MR WILLIAMS: I do not think that could be right, your Honour. Your Honour said 12^th and then 11^th.

HIS HONOUR: I am sorry, on or before - - -

MR DURACK: We have a proposed timetable that might suit your Honour.

HIS HONOUR: No, I will finish mine first. I will start again.

2. The appellants file their written submissions on or before 13 April 2004;

3. The respondent file its written submissions on or before 19 April 2004;

4. The appellants file their reply on or before 21 April 2004;

5. Liberty to restore on one day’s notice before me;

6. Costs of this attendance be costs in the appeal;

7. Certify for counsel.

Is there any dissent from that?

MR WILLIAMS: No, your Honour. Coincidentally, they are the same dates we had.

HIS HONOUR: In preparing these written submissions, there are two things to be borne in mind. One, they need to be a fairly succinct length. The longer they are, the less effective they are. Two, there are a number of decisions in this Court in this general area and we can be taken to know what they are. So you are at a somewhat different level from what you were in the Court of Appeal and you will not get very far here by just reading out what has been said on one side by one intermediate State court and what has been said on the other side by another State intermediate court over the last 25 years. We want to get to the bottom of it and get to the basic principles. The written submissions will have to look closely into the statutory construction that is involved, rather than focus on what might be illusory categories of reference to dichotomies between this, that and the other. The first question is to construe the statute properly. Is there anything else?

MR WILLIAMS: If matters for the appeal book can be dealt with with the Registrar.

HIS HONOUR: Yes, that is right. I wanted to ask about that. Thank you for reminding me. How big was the record before the Court of Appeal?

MR DURACK: Your Honour, we think that there is probably not much that is going to be required other than that which is in the application book.

HIS HONOUR: That is right. If it would assist in the rapid preparation that is involved, I would be prepared to make an order that the application book can stand as part of the appeal record supplemented by such additional booklet as needed to fit in the notice of appeal.

MR DURACK: That would assist, your Honour. It seems that there is only the formal notice of appeal plus perhaps the pleadings that might be required and that is about it.

HIS HONOUR: I think we would need the pleadings, yes. I will add then:

8. The application book should stand as part of the appeal book to be supplemented by a volume including the pleadings, the order granting special leave and the notice of appeal to this Court with such other materials as the Registrar accepts.

Does that deal with it?

MR WILLIAMS: Yes, it does, your Honour.

HIS HONOUR: Thank you for that. I will now adjourn.

AT 2.05 PM THE MATTER WAS CONCLUDED