ASIC v Rich [2005] NSWSC 1022

ASIC v Rich [2005] NSWSC 1022

Applying the earlier exclusionary criteria and the discretion under s 135, most remaining smaller overseas and smaller Australian creditor communications were admissible on the limited basis because they were relevant to ASIC's mosaic case about One.Tel's financial position and the process had reduced the risk of undue waste of time. However, Alcatel, Kitson, Interspace Manufacturing, MTB 1404 and MTB 1608 were excluded because their probative value was slight or absent and, for Alcatel in particular, admission would likely require disproportionate inquiry into broader disputes and negotiations. MTB 1680 was admitted, with limitation only on its second paragraph as to proof of the listed...

Jurisdiction
Australia
Judgment Date
11 October 2005
Procedural Posture
Evidence Admissibility of Documents and Discretionary Exclusion / Interlocutory Evidentiary Ruling on Tender of Creditor Communications and Additional Documents
Outcome
Documents admitted in part and rejected in part.
Legal Topics
['admissibility of Documents' 'discretionary Exclusion' 'creditor Communications' 'limited Use of Evidence' 'hearsay' 'probative Value' 'undue Waste of Time']
['evidence' 'corporations'] ['admissibility of Documents' 'discretionary Exclusion' 'creditor Communications' 'limited Use of Evidence' 'hearsay' 'probative Value' 'undue Waste of Time']

Case Brief

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Procedural Posture

Evidence Admissibility of Documents and Discretionary Exclusion / Interlocutory Evidentiary Ruling on Tender of Creditor Communications and Additional Documents

Legal Issues

  1. 1 ['Whether creditor communications with smaller overseas creditors listed in AS 69 should be received into evidence on the limited basis or excluded under the criteria stated in ASIC v Rich [2005] NSWSC 491.' 'Whether creditor communications with smaller Australian creditors, including Alcatel, Kitson and Interspace Manufacturing, should be excluded despite satisfying the earlier exclusionary criteria.' 'Whether additional documents listed in DS 71, including MTB 1404, MTB 1608 and MTB 1680, should be treated as creditor communications and admitted or rejected.' 'Whether particular documents should be admitted only for the fact and nature of communications and not for the truth of asserted debts.']

Ratio Decidendi

Applying the earlier exclusionary criteria and the discretion under s 135, most remaining smaller overseas and smaller Australian creditor communications were admissible on the limited basis because they were relevant to ASIC's mosaic case about One.Tel's financial position and the process had reduced the risk of undue waste of time. However, Alcatel, Kitson, Interspace Manufacturing, MTB 1404 and MTB 1608 were excluded because their probative value was slight or absent and, for Alcatel in particular, admission would likely require disproportionate inquiry into broader disputes and negotiations. MTB 1680 was admitted, with limitation only on its second paragraph as to proof of the listed...

Court Disposition

Documents admitted in part and rejected in part.

Orders

  • ['Creditor communications for the smaller overseas creditors listed in AS 69 are received into evidence on the limited basis, except those listed in AS 91 as not pressed by ASIC or excluded by the 25 May judgment.' 'Creditor communications for the smaller Australian creditors listed in AS 69 are received into...