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''Australian Securities and Investments Commission v Rich'' () (NSWSC 1229 ) was one of the biggest civil cases in NSW Supreme Court history in which the Australian Securities and Investments Commission accused former executive directors of One.Tel telecommunications company, Jodee Rich and Mark Silbermann of having failed to meet their duty of care in the months leading up to the company's collapse in May 2001. The legal process ran for almost nine years, took up 232 sitting days and generated 16,642 pages of transcripts.〔() 26 February 2010, ASIC will not appeal Jodee Rich decision, News.com.au〕 In November 2009, the NSW Supreme Court Justice Robert Austin comprehensively dismissed ASIC's case against the Rich and Silbermann, saying the corporate regulator had failed to prove any aspect of its pleaded case against either defendant.〔() Vanda Carson, 18 November 2009, One.Tel Shock ASIC loses case against Jodee Rich, Sydney Morning Herald.〕 ==Facts== One.Tel was a service provider of GSM mobile and long distance calls formed by Rich (with James Packer as a shareholder) in Australia in 1995. One.Tel expanded its operations overseas in 1998 and in 1999, Packer's Publishing and Broadcasting and News Corporation made a $600 million investment in the business as it committed to building Australia's fourth mobile network. One.Tel grew to become the fourth largest Australian Telco with 3 million subscribers, 3000 employees, operations in 7 countries and a $1 billion annual turnover with the market cap at peak standing at $5.4 billion. ===Trial=== In May 2001, Packer and Murdoch’s PBL and News Corporation withdrew their earlier stated support for an underwritten rights issue, the Telco then collapsed.〔() Andrew Main, 14 September 2010, ONE.TEL founder Jodee Rich today withdrew his court case against his former fellow directors, James Packer and Lachlan Murdoch, The Australian〕 They claimed One.Tel needed $300 million to survive and instructed Ernst and Young to write a report in 36 hours to test this claim. However, former One.Tel auditor and Ernst and Young chairman Brian Long who was responsible for this report, had parts of his evidence rejected by Justice Robert Austin. A file note belonging to Brian Long, “Extract from Underwriting”, taken during meetings with the Packers was disclosed during cross examination. Mr Long had a relationship with the Packer family over many years.〔() Paragraph 845, page 365 and paragraph 850, page 368 of Justice Robert Austin Judgment dated 18 Nov 2009〕 It was found that the Rights issue and the continued assistance of the major shareholders would have been enough to support One.Tel until November 2001, by which time the company’s businesses would have been generating a healthy group cash flow. The withdrawal of the support may have ensured the company's downfall.〔() Margot Saville, Thursday 19 November 2009, No Winners but Jodee Rich gets back on his bike, Crikey.com〕 One.Tel ceased operation in Australia in June 2001 and in the same month, ASIC obtained criminal warrants and raids the One.Tel executive directors’ houses. Shortly after, ASIC obtained a freezing order over all Jodee Rich’s assets and selected family assets, they did not raid the houses, freeze the assets or seize documents of Packer, Murdoch, Yates or any other PBL director. The Australian operations of the company, which were in Liquidation with 1 million One.Tel subscribers acquired for over $200 million, was sold to Optus and Telstra for a few million dollars in 2001. ASIC were unable to find minutes of the Commissioners (3 Dec 2001) meeting where the decision was made to launch proceedings against the defendants. Jan Redfern, ASIC’s Executive Director of Enforcement stated there was no formal record of the meeting.〔() Marcus Priest, 1 April 2003, ASIC did not release One.Tel documents to Rich, The Australian Financial Review〕 Jan Redfern〔() Jan Redfern, Ally Group〕 refused to provide important company documents. However, The Supreme Court ordered ASIC to provide adequate discovery.〔() hearing transcript, line 28-31 page 9,894〕 Packer flew a team around the world gathering evidence to assist ASIC with their case During this time, there were settlement discussions in which ASIC offered a compromise 20-year banning order against the directors. ;ASIC’s claim ASIC alleged that Rich and Silbermann failed to exercise due care and diligence by failing to keep the board of directors of One.Tel sufficiently informed of material information about the true financial condition, performance and prospects of One.Tel, especially in the period leading up to the cancellation of a proposed rights issue in May 2001. ASIC sought $92m in damages and a lifetime banning order against the former One.Tel directors. ;Trial Counsel * Robert MacFarlan QC- ASIC Barrister *Philip Durack, SC * David L Williams, SC J Rich Barrister 〔() David L Williams, Level Nine Wentworth Building〕 * Mark J Steele- J Rich Barrister 〔() Mark Steele, 7 Selborne〕 ;Plaintiffs and Defendants * David Knott- ASIC Chairman * Joanne Rees- ASIC Lawyer *Jan Redfern- Executive Director Enforcement 〔 * Jodee Rich * Mark Silbermann ;ASIC Witnesses *James Packer *Lachlan Murdoch *Guy Jalland *Peter Yates *Brian Long *Christopher Weston *Paul Carter PwC expert *Dick Warburton - Woolworths Chairman *Sam Randall - Jnr Treasury Manager *Jan Redfern - Director Enforcement *Joanne Rees *Geoff Kleemann PBL CFO *Chris Werner One.Tel UK CFO *Drew Boaden - One.Tel UK CFO *Paul Carter - PwC partner, Expert witness *Peter Yates - PBL Director ;The Stats * 67 interlocutory judgments. *16,642 pages of hearing transcript * 232 hearing days Including 9 days in London * 3000 page judgment * 104 affidavits *243 written submission documents 〔() Paragraph 23, page 11 & 12 of Justice Robert Austin's Judgment, dated 18 November 2009〕 ;ASIC’s $2m Expert Report PricewaterhouseCoopers Expert Paul Carter, provided evidence that Justice Robert Austin considered to be flawed. The report consisted of 402 paragraphs detailing One.Tel’s financial situation before its collapse, analysing thousands of documents and emails.〔() Reincarnated One.Tel report faces death by a thousand cuts〕 ;CGU CGU, the provider of the companies Director and Officers liability insurance, denied cover. As a result, John Greaves, One.Tel chairman and Brad Keeling, the joint managing Director, were unable to fund their defense. ;Packer’s evidence In Packer’s evidence, 1,951 questions were delivered in its cross-examination to which Mr Packer Jnr replied "I can’t recall”.〔() Packer’s inside view of One.Tel nightmare- Australian Financial Review 28 November 2005〕 Packer claimed that he couldn’t recall questions he had with his father, Kerry Packer about One.Tel or the details about several meetings.〔() Brigid Glanville, 30 November 2005, James Packer testifies in One.Tel case, ABC.net〕 Justice Robert Austin decided that his approach to the cross examination was misconceived and was reflected in occasionally aggressive answers.〔() Paragraph 754 & paragraph 755, page 327 of Justice Robert Austin Judgment dated 18 Nov 2009〕 ;Murdoch’s evidence Similarly, Murdoch responded with “I can’t recall” in 881 questions, a higher daily rate than Mr Packer Jnr.〔() Brigid Glanville, 22 November 2005, Murdoch testifies in One.Tel case, ABC.net〕 It was decided by Justice Robert Austin that there was a significant problem with the lack of recollection in his evidence which inevitably undermined its credibility.〔() Paragraph 796, page 347 of Justice Robert Austin Judgment dated 18 Nov 2009 and Paragraph 796, page 347 of Justice Robert Austin Judgment dated 18 Nov 2009〕 ;Brian Long’s evidence Brian Long had parts of his evidence rejected by Justice Robert Austin.〔 A file note belonging to Brian Long “Extract from Underwriting” taken during meetings with the Packers was disclosed during cross examination. Mr Long had a relationship with the Packer family over many years. ;Kleemann’s evidence Kleemann’s evidence was seen to be an attempt to minimize a role that was in reality, quite significant. It was therefore decided that Mr Kleemann’s evidence be treated with caution 〔() Paragraph 833, page 361 of Justice Robert Austin Judgment dated 18 Nov 2009 and Paragraph 833, page 361 of Justice Robert Austin Judgment dated 18 Nov 2009〕 ;Boaden’s evidence Boaden’s evidence was judged as unreliable due in part to his involvement as a paid consultant for the Packer interest 〔() Paragraph 2084, page 848, & paragraph 2089, page 851 of Justice Robert Austin Judgment dated 18 Nov 2009〕 ;Weston’s evidence Weston’s evidence was not accepted due to its inconsistency with the defendants evidence. Also Weston had a professed lack of recollection.〔() Paragraph 2074, page 845 of Justice Robert Austin Judgment dated 18 Nov 2009〕 ;Werner’s evidence Similarly, Werner’s evidence was described as unsatisfactory and implausible and vague.〔() Paragraph 2073, page 844 of Justice Robert Austin Judgment dated 18 Nov 2009〕 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Australian Securities and Investments Commission v Rich」の詳細全文を読む スポンサード リンク
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