ASIC v Rich [2005] NSWSC 256

ASIC v Rich [2005] NSWSC 256

Appendix L could not be admitted separately from the Carter Report merely as calculations and source references because, when viewed as a whole, it included matters of inference, judgment and opinion, including overstatement/understatement characterisations and source identifications that depended on judgment. Given Mr Carter's prior exposure to ASIC information and the absence of clearly stated assumed facts, admission would reproduce the Makita problem identified in the earlier judgment and would also create confusion and potential waste of time, warranting rejection of ASIC's application so far as it related to appendix L.

Jurisdiction
Australia
Judgment Date
22 March 2005
Procedural Posture
Evidence Ruling in Equity Division Proceedings / ASIC Application for a Ruling on Admissibility of Parts of the Carter Report and Appendices After Reasons in ASIC V Rich [2005] NSWSC 149
Outcome
Evidence inadmissible; ASIC's application was rejected so far as it related to appendix L.
Legal Topics
['expert Opinion Evidence' 'expert Evidence of Fact' 'forensic Accounting Evidence' 'admissibility' 'evidence Act 1995 (nsw) S 135' 'makita Requirements' 'unstated Assumed Facts']
['evidence' 'civil Procedure'] ['expert Opinion Evidence' 'expert Evidence of Fact' 'forensic Accounting Evidence' 'admissibility' 'evidence Act 1995 (nsw) S 135' 'makita Requirements' 'unstated Assumed Facts']

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Procedural Posture

Evidence Ruling in Equity Division Proceedings / ASIC Application for a Ruling on Admissibility of Parts of the Carter Report and Appendices After Reasons in ASIC V Rich [2005] NSWSC 149

Legal Issues

  1. 1 ['Whether material identified by ASIC in appendix B to AS56, including appendix L to the Carter Report, stood on a different footing from the Carter Report previously found inadmissible.' 'Whether appendix L could be tendered in a disembodied fashion as mathematically correct calculations and accurately sourced figures rather than opinion evidence.' 'Whether the proposed evidence involved judgment, inference, or unstated assumed facts so as to fail the requirements in Makita (Australia) Pty Limited v Sprowles.' 'Whether the evidence should be rejected on Makita principles and, if necessary, under Evidence Act 1995 (NSW) s 135 because of confusion and potential waste of time.']

Ratio Decidendi

Appendix L could not be admitted separately from the Carter Report merely as calculations and source references because, when viewed as a whole, it included matters of inference, judgment and opinion, including overstatement/understatement characterisations and source identifications that depended on judgment. Given Mr Carter's prior exposure to ASIC information and the absence of clearly stated assumed facts, admission would reproduce the Makita problem identified in the earlier judgment and would also create confusion and potential waste of time, warranting rejection of ASIC's application so far as it related to appendix L.

Court Disposition

Evidence inadmissible; ASIC's application was rejected so far as it related to appendix L.

Orders

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