Case: Thomas A Edison Ltd v Bullock [1912] HCA 72 ; (1912) 15 CLR 679
Outcome: followed
extent of the duty and responsibility imposed upon a party seeking an ex parte order was explained by Isaacs J in Thomas A Edison Ltd v Bullock [1912] HCA 72 ; (1912) 15 CLR 679 at 681-682: " Dalglish v. Jarvie , a case of high authority, establishes that it is the duty of a party asking for an injunction ex parte to bring under the notice of the Court all facts material to the determination of his right to that injunction, and it is no excuse for him to say he was not aware of their importance. Uberrima fides is required, and the party inducing the Court to act in the absence of the other party, fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application. Unless that is done, the implied condition upon which the Court acts in forming its judgment is unfulfilled and the order so obtained must almost invariably fall. I add the word "almost" in deference to such an exceptional case as Holden v. Waterlow . The obligation is stated by Turner L.J. in that case to be to "state their case fully and fairly," and so by Sugden L.C. in Dease v. Plunkett ...(at p.261), where he said:- "The plaintiff had not fully and fairly disclosed the entire facts of the case." Lord Cottenham L.C., in Brown v. Newall ... (at p. 579) observes that the power to grant such an injunction should exist is indispensable, but, from the liability to injustice, must be exercised with caution. Then he says:- "The Court can have no ground upon which it can proceed, in granting an ex parte injunction, but a faithful statement of the case." The learned Lord Chancellor distinguishes between mis-statement, or suppression likely to influence the Court in acceding to the application, and that which is immaterial. In the present instance the admitted circumstances are most material: no order could have been made had they been stated, without considering and weighing them, and therefore the order for injunction was improperly obtained." This duty of full disclosure and candour is usually found in the context of an application for an injunction but the principles and jurisprudence which underlie and warrant the performance of the duty are, in my view, equally applicable to any application made to a court ex parte for an order against a party who is either not put on notice of the application or who is excluded for one reason or another from participating in the hearing. The performance of the duty of full disclosure by a party moving a court ex parte for orders was recently restated by Allsop J (as he then was) in Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955 at [38] : "In an ex parte hearing, it is the obligation of the party seeking orders, through its representatives, to take the place of the absent party to the extent of bringing forward all the material facts which that party would have brought forward in defence of the application: Thomas A Edison Ltd v Bullock (1912) 15 CLR 678 at 681-82 per Isaacs J. That does not mean stating matters obliquely, including documents in voluminous exhibits, and merely not mis-stating the position. It means squarely putting the other side's case, if there is one, by coherently expressing the known facts in a way such that the Court can understand, in the urgent context in which the application is brought forward, what might be said against the making of the orders. It is not for the Court to search out, organise and bring together what can be said on the respondents' behalf. That is the responsibility of the applicant, through its representatives ." (emphasis added) Allsop J's observation that matters should not be stated "obliquely" is of particular relevance in the present context where it is put against the applicants that they should have realised what Senior Counsel for ASIC meant when he referred "delphically" to "means and sources". See also Grant Matich &amp; Co Pty Ltd v Toyo Menka Kaisha Ltd (1978) 3 ACLR 375 at 376.