Re Raffin, P.m. v Ex parte Australia & New Zealand Banking Group Ltd Re McCarron, D.H.H v Ex parte Australia & New Zealand Banking Group Ltd

[1994] FCA 162

PETER MARSHALL RAFFIN and DOUGLAS HUGH HUSTON McCARRON
EX PARTE: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
Nos. NN326 and NN327 of 1994
FED No. 162/94
Number of pages - 3
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA
BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES
GENERAL DIVISION
BEAUMONT J

CATCHWORDS

Practice and Procedure - order obtained on ex parte application - alleged failure to make full disclosure - renewal of previous application "on the merits" - meaning of "the merits" - whether evidence of alleged previous lack of candour to be taken into account on renewal application.

Thomas A. Edison Limited v Bullock (1912) 15 CLR 679 - cons.

HEARING

SYDNEY, 22 March 1994
#DATE 22:3:1994

Counsel and Solicitors Mr. D.B. McGovern instructed
for Debtors: by Mr. M.D. Nikolaidis

Counsel and Solicitors Mr. A.W. Street instructed by
for Creditor: Blake Dawson Waldron

JUDGE1

(On ruling that certain evidence was not admissible)
BEAUMONT J On 25 February 1984 a Deputy Registrar purported to extend the time allowed for compliance with the requirements of the bankruptcy notice to this day. It appears that the order was made pursuant to s.41(6B) of the Bankruptcy Act. The order was made on the footing that the debtor had made an application to set aside the bankruptcy notice. The matter is before me today on an application by the debtor for a further extension since, as has been noted, the order made by the Deputy Registrar expires today.

1. A preliminary point has been taken on behalf of the creditor that, in considering the present application for extension of time, that is to say, an application, in effect, to renew the previous order extending time, I should take into account what is claimed to be a failure on the part of the debtor to disclose material matters to the Deputy Registrar on the application for the previous order. The creditor now seeks to tender evidence of the debtor's alleged failure in this regard.

2. It is common ground between the parties, I think correctly so, that failure by an applicant in a case such as the present matter to make full disclosure to the Registrar of all relevant facts will necessitate the discharge of the order granted. This is a consequence of the general rule that an application made for any order ex parte imposes upon the party seeking it a duty to place before the court all relevant matters (see Thomas A. Edison Limited v Bullock (1912) 15 CLR 679 per Isaac J at 681 to 3. See also Town and Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Limited (1988) 20 FCR 540 at 543).

3. As the Full Court (Davies, Gummow and Lee JJ) said in the Town and Country case (at 543) the rationale behind the principle is that "it is of the utmost importance in the due administration of law that the Courts and the public are able to have confidence that an ex parte order has been made only after the party obtaining it has complied with its duty to disclose all relevant facts". The Full Court went on to say:
   

"The principle applies to an application to discharge or dissolve an ex parte interim injunction; the discharge of that injunction does not prevent a fresh application being heard and determined in the light of all relevant facts..."

1. Reference is made to a decision of Northrop J in Barneys Blucrete Pty Limited v Australian Workers Union (1979) 43 FLR 463 at 475. There, Northrop J said:
   

"The supression of the relevant facts does not prevent a

fresh application for an injunction being heard and

determined in the light of all relevant facts..."

1. His Honour referred in this connection to the judgment of Isaacs J in Bullock's Case at 683. Isaacs J said:
   

"In the ordinary course of events, therefore, the injunction of 16th September should be dissolved, and with costs.

This would not prevent the plaintiff's from applying de novo for an injunction upon the merits as they now appear (per

Lord Cottenham L.C., in Fitch v Rochfort ..."

1. In the reference to the reasons of Lord Cottenham in Fitch's Case (at page 460) the following appears:
   

"Mr Rolt and Mr Wright, for the defendant, insisted, first, that as the plaintiff had obtained one injunction, which had been dissolved, she ought not to be allowed to come a second time for the same purpose.

(The Lord Chancellor - A party who obtains an injunction through misrepresentation or concealment of the facts ought to lose it; but it can hardly be contended that when an injunction is

dissolved on those grounds, the party may not apply again upon the merits.)"

(Emphasis added)

1. It is now submitted on behalf of the creditor that the reference in the authorities to a fresh application being made upon "the merits" includes a reference to, amongst other things, the earlier conduct evidencing a lack of candour on the part of the party applying for the interim ex parte relief.

2. I have difficulty accepting this.

3. In my opinion, when the observations made by Lord Cottenham are read in their context it is clear that a distinction is being drawn between the past conduct of the applicant party on the one hand, and on the other, "the merits" in the sense of the matter of substance in dispute between the parties.

4. In the present case the matter of substance is whether, looking forward from today, an extension of time should be granted. This in my view constitutes "the merits" for present purposes. It follows that in the present application (which is in truth a fresh application, the previous order being about to expire) it is not open to the creditor to seek to rely upon the previous alleged lack of candour on the part of the debtor.

5. I should emphasise that I am not of course making any finding that there was in fact any lack of candour here. For the purposes of the argument, I have been prepared to assume, in the creditor's favour, that the creditor could establish that fact; but even on that assumption being made in favour of the creditor, it does not follow that such material can be taken into account for present purposes. I therefore propose to exclude any evidence sought to be tendered in that behalf.