Biofeedback Research Australia Pty Ltd v National Mutual Life Association of Australia Ltd

[2000] FCA 1754

FEDERAL COURT OF AUSTRALIA

Biofeedback Research Australia Pty Ltd v National Mutual Life Association of Australia Ltd
[2000] FCA 1754

BIOFEEDBACK RESEARCH AUSTRALIA PTY LIMITED (ACN 001 341 546), PETER WILLIAM KELLER and CONEVIEW PTY LIMITED (ACN 081 432 715) v THE NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED (ACN 004 020 47)
N 1217 OF 2000

GYLES J
SYDNEY
24 NOVEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1217 OF 2000

BETWEEN:

BIOFEEDBACK RESEARCH AUSTRALIA PTY LIMITED
(ACN 001 341 546)
FIRST APPLICANT

PETER WILLIAM KELLER
SECOND APPLICANT

CONEVIEW PTY LIMITED (ACN 081 432 715)
THIRD APPLICANT

AND:

NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED (ACN 004 020 437)
RESPONDENT

JUDGE:

GYLES J

DATE OF ORDER:

24 NOVEMBER 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Application for interlocutory relief dismissed

2.Costs reserved

3.Proceedings stand over for further directions to 30 November 2000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1217 OF 2000

BETWEEN:

BIOFEEDBACK RESEARCH AUSTRALIA PTY LIMITED
(ACN 001 341 546)
FIRST APPLICANT

PETER WILLIAM KELLER
SECOND APPLICANT

CONEVIEW PTY LIMITED (ACN 081 432 715)
THIRD APPLICANT

AND:

NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED (ACN 004 020 437)
RESPONDENT

JUDGE:	GYLES J
DATE:	24 NOVEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I am indebted to the submissions of counsel, both have given me a written outline and the transcript has recorded the debate which has taken place.  I refuse the interlocutory relief because, in my view, damages are an adequate remedy.  I do not discount a number of the difficulties which Mr White has outlined, but it seems to me that the effect of an injunction in this case would amount to specific performance of an executory contract of an unusual nature which is, if appropriate at all, appropriate only in very special circumstances, unless there is some underlying equity which can be clearly identified.  It does not seem to me that this claim is the equivalent of enforcing a negative stipulation. I have also been somewhat influenced by the fact that as a contract of life insurance there are statutory provisions which need to be borne in mind and there may be rights of others which are affected, although I am not yet convinced that they are, or that I fully understand how they might be.

2. I, however, am conscious of the fact that the factors to which Mr White points in relation to the position of his clients so far as others are concerned, is a relevant factor to be taken into account.  Therefore, having refused the interlocutory injunction I have, as the transcript will record, indicated that there should be some priority devoted to getting the case to a position where the applicants have a much clearer idea of their situation, and the only practical way of doing that is to order an early hearing of the principal question of construction which arises in the case to date.

3. I am conscious of the fact that that may involve some risk of wasted effort and time, but I think they are worth running under all the circumstances.  I  envisage that in addition to preparing for that matter and giving it as early a date as is reasonably practicable, the parties should set a timetable, of the kind that has been proposed by the respondent, to ready the matter as a whole for an earlier final hearing.

4. The application for interlocutory relief is dismissed.  Costs are reserved.  The matter will stand over for further directions to 30 November next.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             4 December 2000

Counsel for the Applicant:	R White SC and A Silink
Solicitor for the Applicant:	Thompson Eslick
Counsel for the Respondent:	S Crennan QC and J Gleeson
Solicitor for the Respondent:	PW Turk & Associates
Date of Hearing:	24 November 2000
Date of Judgment:	24 November 2000