FEDERAL COURT OF AUSTRALIA Biofeedback Research Australia Pty Ltd v The National Mutual Life Association of Australasia Ltd [2001] FCA 1255 Port of Melbourne Authority v Anshun Pty Ltd (1980-1981) 147 CLR 589 referred to Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 referred to 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 004 020 437) N 1217 OF 2000 GYLES J SYDNEY 2 MAY 2001 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: THE NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED (ACN 004 020 437) RESPONDENT JUDGE: GYLES J DATE OF ORDER: 2 MAY 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. All costs occasioned by the amendment be paid by the applicants. 2. Allowing the amendment does not involve any pre-judgment as to whether the form of orders sought is appropriate, bearing in mind the pleading in the Second Further Amended Statement of Claim. 3. The applicants can call no further evidence on the point. 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: THE NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED (ACN 004 020 437) RESPONDENT JUDGE: GYLES J DATE: 2 MAY 2001 PLACE: SYDNEY REASONS FOR RULING (EX TEMPORE) 1 This is a motion by the applicants in this proceeding to further amend the amended application by inserting the following claims for relief: "9A. An order that the Respondent be restrained from substantially altering the mandate for the asset allocation for the Secure Portfolio from that allocation which is contained in the Respondent's Customer Information Brochure issued on 15 July 2000 ("2000 CIB") (Exhibit PKW3), being the allocation as follows (as the following terms are used in the 2000 CIB): 25.2% Australian Equities 5.2% International Equities 5.0% International Bonds 34.8% Fixed Interest 29.8% Cash 9B. In the alternative to the order sought in paragraph 9A above, an order that the Respondent be restrained from allocating to the Secure Portfolio, Composite Units which comprise only, or substantially comprise only, Prime Sector Cash Units" 2 The conclusion I have come to is that the proposed amendment should be allowed on the following terms: 1. That all costs occasioned by the amendment will be paid by the applicants. 2. That allowing the amendment does not involve any pre-judgment as to whether the form of orders sought is appropriate, bearing in mind the pleading in the second further amended statement of claim. 3. That the applicants will be held to counsel's statement that no further evidence will be called on the point. That does not shut the applicants out from seeking leave to file evidence in reply to any evidence filed on behalf of the respondent. 3 My short reasons for coming to the conclusion to allow the amendments are as follows. 4 Firstly, the pleading in the paragraphs identified by counsel this morning does leave open the possibility of relief of this general kind. Secondly, the issue was flagged at an interlocutory stage, although not followed through. Thirdly, the applicant seems to me to have a point, to some extent, arising out of the late discovery of material relating to the way in which the relevant financial product is administered. Fourthly, and most importantly, because of the operation of the estoppel, being either estoppel strictly so called or as that arising as the result of the decision of the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1980-1981) 147 CLR 589, if this amendment is not permitted it almost certainly cannot be raised in any other proceedings. It would be a large step to shut the applicant out of the possibility of obtaining relief of this kind. 5 Furthermore, I take into account that a number of the problems adverted to by counsel for the respondent which will arise if the amendment is permitted are problems which go to the merits as to whether or not relief of this kind should be granted and so would have arisen in any event if pleaded in a timely fashion. I accept that witnesses were not asked questions about the topic and it has not hitherto, in the form in which it is now propounded, formed part of the case of the parties. I accept that the respondent may wish to call evidence on the point which differs from that which has been called to date and it is certainly not clear to me that counsel for the applicant is right in saying that any such evidence would be contrary to that which has been led to date. That is a matter for further argument when (and if) the evidence is led. 6 I also take into account that the applicants do not propose to seek to amend the statement of claim further or to call further evidence. The consequence is that the applicants will be held to the case that has already been made up to this point. However, as I have noted, I would not preclude the possibility of evidence being led by the applicants in reply to anything which comes from the respondent on this issue. 7 Lastly, the practical situation of the case is that it is anticipated that submissions will finish today, which will then leave my consideration of the matter. This is a novel and, to some extent, a complex matter, both as to fact and law. The proceeding has been given considerable expedition and the practical exigencies of my calendar are such that I cannot see that I would be able to deliver judgment in the near future. I think there will be adequate time to deal with the further issue which emerges from the amendment before the time at which I would have been able to complete my judgment. That does not mean of course, that the amendment and issues raised by the amendment have no effect upon that timetable. Time which will be spent in dealing with the evidence and further submissions on the issues raised by the amendment will interfere with such time as I can devote to consideration of the case. It is unfortunate that this has taken place, but bearing in mind what fell from the High Court in the Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 I think that I can deal with the new issue without undue prejudice to the respondent. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Ruling herein of the Honourable Justice Gyles . Associate: Dated: 6 September 2001 Counsel for the Applicant: RW White SC with AS McGrath Solicitor for the Applicant: Thompson Eslick Counsel for the Respondent: RA Brett QC with JJ Gleeson and DW Bennett Solicitor for the Respondent: PW Turk & Associates Date of Hearing: 1, 2 May 2001 Date of Judgment: 2 May 2001