Stern v National Australia Bank Ltd

[1999] FCA 624

FEDERAL COURT OF AUSTRALIA

Stern v National Australia Bank Ltd [1999] FCA 624

ILANA ELENKA STERN and JOSEPH POLLAK v

NATIONAL AUSTRALIA BANK LIMITED

NG 149 OF 1996, NG 936 OF 1996, NG 81 OF 1998, N 302 OF 1999

TAMBERLIN J
SYDNEY
20 APRIL 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 149 of 1996 NG 936 of 1996 NG 81 of 1998 N 302 of 1999

BETWEEN:	ILANA ELENKA STERN AND JOSEPH POLLAK Applicants
AND:	NATIONAL AUSTRALIA BANK LIMITED Respondent

JUDGE:	TAMBERLIN J
DATE:	20 APRIL 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT
Ex-Tempore Judgment

1. In this matter the applicants have this morning filed a Notice of Motion which seeks orders that the application and the Notice of Motion in proceeding N302 of 1999 (“the Application”) be returnable forthwith and that a directions hearing for 25 May next be vacated.  I grant each of those requests.

2. The applicants also seek further orders which in effect provide for a hearing of the Application together with the three other matters, and an order that the evidence in the proceedings in those matters be evidence in the proceeding of the Application.  I am not prepared to make these orders at this stage but I will consider it in my final reasons for judgment after hearing addresses from the parties, which begin next Tuesday, on all aspects of the proceedings.  In addition, the respondent has made applications seeking to stay all proceedings.  This is on the basis that the applicants should be put to an election as to the three claims which they have filed.  I do not accede to this request.  I think it is more appropriate that the questions of stay or election should be dealt with in the course of my reasons for judgment after having the benefit of hearing all submissions in the proceedings rather than hearing the question of election as a separate issue. The stay and election questions require no further evidence and it is therefore appropriate they should be dealt with as matters of submission in the context of the entire proceedings.

3. Having regard to the late stage at which both these applications have been made I am not prepared to make orders on any of the Notices of Motion apart from the two orders referred to earlier.  In the circumstances I do not think it is appropriate to hive off any question at this stage by putting the applicant to an election between the groups of claims.  I propose to leave the position in the same state as it was when the evidence was finalised last week.  The matters will proceed to submissions on that basis.  I reserve any question of costs in relation to each of the applications.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:             20 April 1999

Counsel for the Applicant:	J W J Stevenson
Solicitor for the Applicant:	Denes Ebner
Counsel for the Respondent:	S M P Reeves
Solicitor for the Respondent:	Mallesons Stephen Jaques
Date of Hearing:	20 April 1999
Date of Judgment:	20 April 1999