Searle, B.A. v Keayes, P - [1995] FCA 406

LIMITED DISTRIBUTION
CATCHWORDS

PRACTICE and PROCEDURE - form of short minutes of orders following publication of reasons for judgment - no discussion of principles.

COSTS - indemnity costs - whether conduct of party so unsatisfactory that it calls out for a special costs order - whether action has been commenced or continued in circumstances where respondents should have known they had no prospect of success.

Packer v Meagher [1984] 3 NSWLR 486

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397

Degmam Pty Ltd (In Liq) v Wright [1983] 2 NSWLR 348

Baltic Shipping Company v Dillon (1991) 22 NSWLR 1

Jackson v Sterling Industries Ltd (1987) 162 CLR 612

BRONWYN ANN SEARLE v
PETER KEAYES & ORS

No NG 309 of 1994

Tamberlin J
Sydney
26 May 1995

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 309 of 1994
GENERAL DIVISION )

BETWEEN: BRONWYN ANN SEARLE
Applicant

AND: PETER KEAYES
First Respondent

RICHARD KEAYES
  Second Respondent
BRISALEBE AG LIMITED
  (ACN 060 401 827)
  Third Respondent
BRISALEBE AG
  Fourth Respondent
WSB (No 15) PTY LIMITED
   Fifth Respondent
WSB (No 17) PTY LIMITED
  Sixth Respondent
THE GOOD OF THE WORLD
  FOUNDATION LTD
  (ACN 067 152 541)
  Seventh Respondent

CORAM:       TAMBERLIN J
PLACE:       SYDNEY
DATED:       26 MAY 1995

REASONS FOR JUDGMENT

In this matter I published my reasons for decision on 19 May 1995 and stood the matter over until today so that the applicant could bring in draft orders and submissions could be made on those draft orders.

The purpose of the hearing this morning was to settle the terms of orders appropriate to be made in this matter. The applicant's counsel has submitted draft orders. He made submissions and all other parties have made submissions. I will turn to the draft orders.

Draft order 1 deals with the appropriate declarations. In relation to this draft order I am satisfied that the declarations are appropriate and should be made. This case is not concerned with the value or merits of the technology, but rather with the contractual arrangements which control its ownership. Accordingly, if the patents or any of them are challenged or are objected to, that is not relevant to the matter presently before me.

In relation to draft order 3, the second respondent, Richard Keayes, submits that he has no legal or equitable interest in the patents or the confidential information. However, I am told that he is named as a co-inventor in relation to two of the patents, namely, the Convention applications. It is evident from the hearing that he was at all times closely associated with and acted in the same interest as his brother, Peter Keayes, and in these circumstances it is highly probable in my view, that he was privy to confidential information relating to the patents. It is therefore appropriate that he should be required to co-operate in the transfer of the technology to those…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1995] FCA 406
Decision Date: 26 MAY 1995

CaseChat Overview and Summary

The case of Searle v Keayes involved a dispute over ownership and contractual arrangements related to certain patents and confidential information. The applicant, Bronwyn Ann Searle, sought various declarations and orders regarding the patents and the ownership of certain interests. The respondents included Peter and Richard Keayes, as well as several companies associated with them. The matter was heard in the Federal Court of Australia, specifically in the New South Wales District Registry.

The legal issues before the court included whether certain declarations and orders should be made concerning the patents and ownership of interests. The court also needed to determine whether any party's conduct warranted an indemnity costs order. Additionally, the court had to decide if a Mareva injunction should be granted to restrain one of the respondents from dealing with his interest in the patents.

The court found that the declarations and orders proposed by the applicant were appropriate and should be made. The court considered that Richard Keayes, although not named as a party to the agreement, was closely associated with the other respondents and likely privy to confidential information. Therefore, he should be required to cooperate in the transfer of the technology to the entitled parties. The court rejected the notion that there was any "doubling up" of interests among the parties. Regarding costs, the court found that while some of the respondents' conduct was unsatisfactory, it did not warrant an indemnity costs order. The court held that the first to sixth respondents should bear the applicant's costs of the action. The court also decided against granting a Mareva injunction, as there was no evidence that the respondent would dispose of his interest in the patents to avoid paying costs.

In conclusion, the court made several orders, including appropriate declarations, restraining orders for the respondents, and an order for the first to sixth respondents to pay the applicant's costs. The court did not grant an indemnity costs order or a Mareva injunction. The security provided by the applicant was to be released, and all previous injunctions and undertakings were dissolved.

Orders