ASIC v Adler & 4 Ors

This matter arises in the context where the Sydney Morning Herald contacted the Supreme Court’s Public Information Officer seeking a copy of the Statement of Claim filed by ASIC on 25 July 2001 in the proceedings abovementioned. This occurred following the release by ASIC of that same Statement of Claim to the Financial Review who have published two articles, the second comprehensive, on 26 and 27 July 2001.

Acting as a Judge nominated by the Chief Justice pursuant to paragraph 6 of Practice Note No. 97 dated 9 March 1998, I have determined that in all the circumstances the interests of justice would not be prejudiced and the openness of the court’s processes vindicated were the Statement of Claim now released. In so doing after hearing from all of the Defendants, I should record that it can be expected that a Defence would be filed certainly by the First and Fourth Defendant and in all probability by the other Defendants, though noting that the Second Defendant has stated that it does not wish to be placed in a position where it is compelled to file a Defence.

Essentially the reason why there could be no material prejudice to a fair trial is that the subject matter of the Statement of Claim is now in the public domain. Most of it had earlier been released, when ASIC’s original summons was made available either by consent or without opposition. The Statement of Claim now pleads the allegations in the Summons with somewhat greater particularity, adds new allegations of breach of the Corporations Law and expands the relief sought. But most of that became clear from the Financial Review articles. Moreover a fair-minded reader of any press report will appreciate that there is the likelihood that Defences will be filed and the allegations may or may not be ultimately substantiated.

I have been asked by Second Defendant to direct that ASIC should be directed to file an affidavit explaining the circumstances of its release of the Statement of Claim. This is not an appropriate proceeding for me to make any such direction.