Stern, I E v National Australia Bank

[1996] FCA 146

IN THE FEDERAL COURT OF AUSTRALIA )   
NEW SOUTH WALES DISTRICT REGISTRY )    No. NG 149 of 1996
GENERAL DIVISION                 )

BETWEEN:               ILANA ELENKA STERN &
  JOSEPH POLLAK
  Applicants

AND:                   NATIONAL AUSTRALIA BANK
  LIMITED
  Respondent

CORAM:       TAMBERLIN J
PLACE:       SYDNEY
DATED:       6 MARCH 1996

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1.

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

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )    No. NG149 of 1996
GENERAL DIVISION                 )

BETWEEN:               ILANA ELENKA STERN &
  JOSEPH POLLAK
  Applicants

AND:                   NATIONAL AUSTRALIA BANK
  LIMITED
  Respondent

CORAM:       TAMBERLIN J
PLACE:       SYDNEY
DATED:       6 MARCH 1996

REASONS FOR JUDGMENT

In this matter I am asked to grant leave to appeal to the Full Court from a judgment which was delivered last Thursday, 29 February, the reasons for which were handed down today.

The principles relevant to this application are those set out in the decision of Decor Corporation Pty Ltd v Dart Industries Inc. (1991) 33 FCR 397 at 388 to 399. This decision was followed by the Full Court in Jarrett, Elliott and Cam v Seymour (1993) 46 FCR 557 at 559 to 560. Those principles are, firstly, that in all the circumstances the decision must be shown to be attended with sufficient doubt to warrant it being reconsidered by the Full Court and secondly, whether substantial injustice would result if leave were refused in
circumstances where the decision is later held to be incorrect.

In relation to the first test the trial judge is in a somewhat invidious position in relation to determining the question whether there is sufficient doubt and in many instances it is more appropriate for a Full Court to determine this question.  However, in my view there are arguments open of sufficient force, in relation to the correctness of the decision to warrant it being considered by the Full Court.

Minds may well differ on this and I make appropriate allowance for the fact that I have heard the matter and formed a definite view on it, but nevertheless, it is a situation in which I think it is open to other minds to be persuaded by arguments to the contrary.  As a result, it is my view that there is enough doubt to warrant consideration by the Full Court.

The second matter is whether substantial injustice would result if leave were refused in the event that the decision is later overturned. On the assumption that the decision is incorrect the situation which arises is that the Californian court would proceed to give judgment and it may well be, although I do not of course make a decision in this regard that any rights which the applicants might have had under the Trade Practices Act 1974 (Cth) in Australia arguably, might merge and be lost.
Although, an anti-suit injunction is interlocutory, in the sense that it does not resolve the dispute on a final basis its practical effect may, in this case, have the result that the proceeding to judgment in California could affect the substantive rights of the applicants. Accordingly, I am of the view that there is a real possibility of substantial injustice resulting if leave were refused, on the assumption that the decision is later held to be wrong.

Accordingly, I propose to grant leave in this matter to appeal to the Full Court.  I bear in mind particularly the fact that there is a very substantial sum of money involved,  which on its face would have the capacity to cause enormous detriment to the applicants and I think that they should be given a chance to air their arguments, such as they are, before the Full Court.  Accordingly, I grant the leave.

I certify that this and
the preceding two (2)
pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.

Associate:

Date:  6 March 1996  

Counsel for Applicant:               Mr C Einstein QC
  Mr Shields
  Mr Gray

Solicitor for Applicant:              Denes Ebner

Counsel for Respondent:               Mr S Reeves  

Solicitor for Respondent:             Malleson Stephen Jaques

Date of Hearing:  6 March 1996  

Date Judgment Delivered:              6 March 1996