Australian Broadcasting Corporation v Kane

The Australian Broadcasting Corporation (ABC) applied for leave to appeal against an interlocutory decision of the primary judge of the Federal Court of Australia. The primary judge had allowed the ABC to file an amended originating application, but had refused to allow the ABC to file a further proposed amended originating application. The ABC sought leave to appeal the refusal to allow the further proposed amendments. The ABC argued that the primary judge should have allowed the further proposed amendments because they clarified the existing pleading or were of a formal nature. The respondents argued that the further proposed amendments were not genuinely sought, but were an eleventh-hour attempt to reverse-engineer an application that would entitle the ABC to the documents it wanted.

The court held that the primary judge was correct to refuse to allow the further proposed amendments. The further proposed amendments were speculative and designed to obtain the search warrant application and related material without any proper basis being established. The ABC's submission that the allegation in proposed paragraph 20A was that Mr Kane did not have a proper basis to have concluded that there were reasonable grounds for suspecting that there was at the ABC's premises the "full scope of evidential material described in the warrant" was rejected. The primary judge's conclusion that the further proposed amendments were not genuine was unassailably correct.

The application for leave to appeal was dismissed. The ABC was ordered to pay the costs of the second and third respondents as agreed or assessed.