Case: Lane v Channel 7 Adelaide Pty Ltd [2004] SASC 47
Outcome: followed
was observed by Mahoney AP (with whom Clarke JA agreed) in Garrard (T/As Arthur Anderson &amp; Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 677: "There is, in my opinion, no distinction for this purpose between an order in the nature of an injunction and an order which otherwise creates or confirms rights which otherwise would not exist. The obligation of candour and diligence exists in such a case." See also Lane v Channel 7 Adelaide Pty Ltd [2004] SASC 47 at [11] . In Lane v Channel 7 Adelaide Pty Ltd [2004] SASC 47 the Full Court of the Supreme Court of South Australia said at [12]: "The obligation to make proper disclosure requires the moving party not only to place before the Court all relevant matters which would have been raised by the other party if that party had been present but to make express reference to those matters. The obligation must extend so far because the ex parte procedure constitutes an exception to the rules of natural justice. Furthermore, it is not reasonable to impose upon the Court the obligation to sift through the papers for the purpose of ascertaining everything which is material to its decision whether to grant the relief sought. As Lander J said in Zadow v Tolmer Fuels Pty Ltd [(Lander J, 1 February 1995, unreported, Judgment No S5085] at [20]: True it is that that affidavit was on the District Court file, and it is probable ... that the District Court file was before his Honour at the time that the application for leave was granted. However, it seems to me no counsel can assume that the Judge has the time to read the whole of the contents of a District Court file before the application for leave to appeal. Nor can it be assumed by counsel that a Judge can read the file, on an application for leave to appeal, knowing the matters to which he or she ought to be addressing their mind, for the purpose of determining what is material. While the Court will, of course, conscientiously examine the papers, it is possible that relevant material may be overlooked, particularly given that the Court is not as familiar with all relevant facts as are the parties and it is not always immediately apparent what is relevant." See also Spry, The Principles of Equitable Remedies (7 th ed, 2007), 496-497. ASIC submitted that the hearing before me on 11 September 2007 could not be characterised as an ex parte hearing. It was submitted that ASIC at that stage was not an applicant but was rather a respondent seeking to resist an order which had been sought against it. ASIC submitted that no duty of full disclosure could be imposed upon a respondent. ASIC submitted further that in any event, in the course of the ex parte hearing in camera I expressed a tentative view then a firm view which was fatal to the case which ASIC was seeking to maintain and that as a result, consideration of any wider disclosure of the identity of the whistleblowers became irrelevant, and any issue relating to disclosure of the Four Corners broadcast on 5 September 2005 was still-born. In support of this submission counsel for ASIC relied on a number of passages in the confidential transcript of the in camera hearing on 11 and 17 September 2007. I refer to those passages in the confidential appendix to these reasons which are only to be published to ASIC and its legal advisers until further order.