Australian Broadcasting Corporation v Kane [2019] FCA 1716

Australian Broadcasting Corporation v Kane [2019] FCA 1716

The application for leave to appeal was dismissed because the proposed amendments to the originating application were speculative, not genuinely sought, and would not justify discovery or notice to produce. There was no reasonably arguable error by the primary judge in exercise of her discretion. The applicant suffered no substantial injustice because issues of public importance could be ventilated on the pleadings which were allowed to proceed.

Parties
Applicant: Australian Broadcasting Corporation; First Respondent: Martin Kane; Second Respondent: Commissioner of the Australian Federal Police; Third Respondent: Agent Ian Brumby of the Australian Federal Police
Jurisdiction
Australia
Judgment Date
18 October 2019
Procedural Posture
Application for Leave to Appeal (interlocutory) / Determination of Leave to Appeal From Interlocutory Orders
Outcome
Application for leave to appeal dismissed with costs.
Legal Topics
Leave to Appeal, Interlocutory Orders, Amendment of Pleadings, Discovery, Judicial Review of Administrative Decisions, Search Warrants, Journalist Source Protection
Practice and Procedure Leave to Appeal Interlocutory Orders Amendment of Pleadings Discovery Judicial Review of Administrative Decisions Search Warrants Journalist Source Protection

Case Brief

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Parties

Australian Broadcasting Corporation

Applicant

Martin Kane

First Respondent

Commissioner of the Australian Federal Police

Second Respondent

Agent Ian Brumby of the Australian Federal Police

Third Respondent

Procedural Posture

Application for Leave to Appeal (interlocutory) / Determination of Leave to Appeal From Interlocutory Orders

Legal Issues

  1. 1 Whether leave to appeal should be granted from interlocutory orders refusing further amendments to originating application and setting aside notice to produce/refusing discovery.
  2. 2 Whether the proposed amendments to the originating application were genuine or speculative.
  3. 3 Whether the primary judge erred in setting aside the notice to produce and refusing discovery on the basis that the pleaded grounds were speculative or bare allegations.

Ratio Decidendi

The application for leave to appeal was dismissed because the proposed amendments to the originating application were speculative, not genuinely sought, and would not justify discovery or notice to produce. There was no reasonably arguable error by the primary judge in exercise of her discretion. The applicant suffered no substantial injustice because issues of public importance could be ventilated on the pleadings which were allowed to proceed.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal be dismissed.
  • The applicant pay the costs of the second and third respondents as agreed or assessed.