EBOS Group Pty Ltd v Team Medical Supplies Pty Ltd

Consideration 12 I reject those arguments. An applicant for an ex parte order before a Court must comply with a high standard of candour and responsibility. It is an ordinary incident of the administration of justice that no person should have orders made against them by the Court when they have not been given an opportunity to be heard in their own defence. However, as Isaacs J said in Thomas A. Edison Limited v Bullock (1912) 15 CLR 679 at 681-682, instances occur where justice cannot be done unless the subject matter of the suit is preserved and if there is a danger of destruction by one party or irremediable or serious damage is imminent, the other party may come to Court and ask for its interposition, even in the absence of an opponent, on the ground that delay would involve greater injustice than instant action. But, as his Honour pointed out, when that occurs, the usual requirement of hearing the other side cannot occur and the party seeking the order incurs what he called "a most serious responsibility". 13 In such a case, it is the duty of a party asking for ex parte relief to bring to the notice of the Court all facts material to the determination of the right to that relief, and it is no excuse for a failure to do so, to say that he or she was unaware of the importance of the facts. The utmost good faith, or uberrima fides, is required and a party who induces the Court to act in the absence of the other party, fails in that obligation unless he or she brings forward all the material facts which the absent party would presumably have brought forward in its defence to the application. These principles were applied by Mahoney A-P with whom Clarke JA agreed in Garrard (trading as Arthur Anderson and Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 676B-677F. 14 In my opinion, EBOS drew to Flick J's attention the whole of the passage relied on by Team and Marijke Vriens. Indeed, the very passage which set out the investigator's assertion that Mrs Vriens must have had the wrong person, was preceded by her assertion to the investigator that she had been to the police station. EBOS discharged their obligation to bring to his Honour's attention all facts material to the determination of their right to ex parte relief in this respect. 15 The other grounds for the application to set aside the ex parte orders should also be rejected. The first elided the distinction between the cause of action based on the statutory norm of conduct established by s 18 of the Australian Consumer Law, for which EBOS did not seek orders for preliminary discovery, and their uncertainty as to whether or not they had sufficient information for the purposes of r 7.23, after making reasonable inquiries, to decide whether to commence proceedings in this Court to obtain relief in respect of their suspicions concerning the possible use of confidential information and breaches by their former employees of their fiduciary duties. Rule 7.23(1) provides: "7.23 Discovery from prospective respondent (1) A prospective applicant may apply to the Court for an order under subrule (2) if the prospective applicant: (a) reasonably believes that he or she may have the right to obtain relief in the Court from a prospective respondent whose description has been ascertained; and (b) after making reasonable inquiries, does not have sufficient information to decide whether to start a proceeding in the Court to obtain that relief; and (c) reasonably believes that: (i) the prospective respondent has or is likely to have or has had or is likely to have had in the prospective respondent's control documents directly relevant to the question whether the prospective applicant has a right to obtain the relief; and (ii) inspection of the documents by the prospective applicant would assist in making the decision." (emphasis added) 16 When r 7.23(1)(b) refers to "that relief" it is referring back to the particular relief referred to in sub-rule (a). EBOS had not asserted that they had insufficient material to commence proceedings based on their allegations of misleading or deceptive conduct engaged in by Team and its associates. To the contrary, they told his Honour that they had sufficient material to commence proceedings for contravention of s 18. Rather, EBOS distinguished the basis on which they propounded that claim from what they asserted they required in order to be able to decide whether to commence proceedings to obtain other relief in respect of the suspicions that they entertained concerning misuse of confidential information and breaches of fiduciary duty. 17 The reliance on Marijke Vriens' affidavit today to discharge the ex parte orders is also misconceived. That affidavit may or may not consist of evidence that is relevant to the ultimate exercise by the docket judge of her discretion to grant final relief on an application for preliminary discovery under Div 7.3 of the Rules. However, it provides an insufficient foundation to justify setting aside the ex parte orders for production of the documents to the Court that were made by Flick J on 1 August. Those orders simply sought to preserve the subject matter so that if the docket judge ultimately determines that preliminary discovery ought be granted, documents within the categories of documents ordered to be produced on 1 August 2011 will be available to be inspected. Team and Marijke Vriens accepted that no order should now be made in respect of the documents that they permitted be inspected by EBOS. 18 In my opinion, none of the three grounds on which the Team or Marijke Vriens sought that the ex parte orders for production of documents be set aside are sufficient either alone, or in combination, to warrant that relief being granted. I reject the oral application. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.