Hadid v Lenfest Communications Inc - [2000] FCA 481

FEDERAL COURT OF AUSTRALIA
Hadid v Lenfest Communications Inc [2000] FCA 481
PRACTICE AND PROCEDURE – Costs – Order sought for specified gross sum instead of taxed costs – Notice to produce – Relevance of party’s financial position – Federal Court Rules O 33 r 12(1) and O 62 r 4(2)(c)
Federal Court Rules O 33 r12(1) and ) 62 r 4(2)(c)
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119, considered
Leary v Leary [1987] 1 WLR 72; [1987] 1 All ER 261, considered
ALBERT HADID v LENFEST COMMUNICATIONS INC AND GERRY LENFEST AND BAIN CAPITAL MARKETS LIMITED AND WAYNE BURT AND AUSTRALIS MEDIA LIMITED AND RODNEY PRICE
N 36 OF 1995
LEHANE J
14 APRIL 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 36 OF 1995

BETWEEN:

ALBERT HADID
Applicant

AND:

LENFEST COMMUNICATIONS INC
First Respondent

GERRY LENFEST
Second Respondent

BAIN CAPITAL MARKETS LIMITED
Third Respondent

WAYNE BURT
Fourth Respondent

AUSTRALIS MEDIA LIMITED
Fifth Respondent

RODNEY PRICE
Sixth Respondent

JUDGE:

LEHANE J

DATE:

14 APRIL 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The sixth respondent seeks, by notice of motion, an order that the applicant produce to the Court certain documents listed in a notice to produce dated 7 February 2000, served on the applicant by the sixth respondent. A copy of the notice to produce is annexed to an affidavit read in support of the motion. It requires the production of documents evidencing the applicant’s title to various categories of assets and documents evidencing his liabilities. Its effect may be summarised by saying that the documents called for might be expected to provide, with reasonable accuracy, information as to the assets which the applicant presently has and the debts and other liabilities which he presently owes. The applicant contends that he should not be required to produce documents in answer to the notice to produce: either the Court should set aside the notice to produce or it should “otherwise order” under O 33 r 12(1) of the Federal Court Rules (FCR).
On 24 December 1999 I delivered reasons for judgment and made final orders in this proceeding. The orders were that:
1.        The application be dismissed.
2.        The cross-claim of the first and second respondents be dismissed.
3.The applicant pay the costs of the proceeding, other than the costs of the cross-claim of the first and second respondents, of the first, second, third, fourth and sixth respondents.
4.        The first and second respondents pay the applicant’s costs of the cross-claim.
5.        Orders 3 and 4 not be entered before 15 February 2000.
Orders 1 and 2 have been entered. The time before which, in accordance with order 5, orders 3 and 4 may not be entered has been extended and those orders have not been entered.
In addition to those five orders, I gave the parties liberty to apply, principally so that if any party wished to seek a special order for the payment of its costs it…

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.

Continue reading Hadid v Lenfest Communications Inc

Details

AGLC: Hadid v Lenfest Communications Inc [2000] FCA 481
Case: [2000] FCA 481
Decision Date: 14 APRIL 2000

CaseChat Overview and Summary

The Federal Court of Australia presided over by Justice Lehane heard a case involving Albert Hadid as the applicant and Lenfest Communications Inc, Gerry Lenfest, Bain Capital Markets Limited, Wayne Burt, Australis Media Limited, and Rodney Price as respondents. The primary dispute revolved around a notice to produce issued by the sixth respondent, Rodney Price, seeking the applicant to provide documents related to his financial assets and liabilities. The applicant contested the necessity of producing these documents, arguing that they were irrelevant to the matter at hand or that the notice to produce should be set aside or otherwise modified.

The legal issues before the court included whether the notice to produce was valid and enforceable, and if so, whether the applicant’s financial position should be considered in determining whether to order costs to be paid as a specified gross sum instead of being taxed. The applicant argued that the notice to produce was oppressive and abusive, lacking a relevant forensic purpose and instead aiming to aid in the enforcement of costs orders without following standard procedures. The court had to determine if the notice to produce was enforceable and whether the applicant’s financial position was relevant to the exercise of the court's discretion under Federal Court Rules.

Justice Lehane held that the notice to produce was valid and enforceable, rejecting the applicant's argument that it was ineffective. The court found that the applicant was required to comply with the notice unless the court otherwise ordered. Regarding the relevance of the applicant's financial position, the court concluded that it was indeed relevant to the exercise of the court's discretion under Federal Court Rules O 62 r 4(2)(c). The financial situation of the party liable for costs could influence the decision, particularly in cases where costs were expected to be substantial, and taxation would be complex, burdensome, and expensive. The court directed the applicant to comply with the notice to produce and scheduled a subsequent hearing to determine the precise orders to be made regarding the costs.

Orders