Shurat HaDin, Israel Law Center v Lynch

[2014] FCA 226

FEDERAL COURT OF AUSTRALIA

Shurat HaDin, Israel Law Center v Lynch [2014] FCA 226

Citation:	Shurat HaDin, Israel Law Center v Lynch [2014] FCA 226
Parties:	SHURAT HADIN – THE ISRAEL LAW CENTER, DAVID HANS LANGE, JONATHAN ROSE, ANDREW HAMILTON and GREEN FREEDOM LIMITED (ISRAEL COMPANY NUMBER 514 331 479) v JAKE LYNCH
File number:	NSD 2235 of 2013
Judge:	ROBERTSON J
Date of judgment:	13 March 2014
Legislation:	Federal Court of Australia Act 1976 (Cth) s 37M Federal Court Rules 2011 (Cth) r 1.31
Cases cited:	Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474
Date of hearing:	26 February 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	10
Solicitor for the Applicants:	Mr APS Hamilton
Solicitor for the Respondent:	Mr YR Hazan of Hazan Hollander

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2235 of 2013

BETWEEN:

SHURAT HADIN – THE ISRAEL LAW CENTER
First Applicant

DAVID HANS LANGE
Second Applicant

JONATHAN ROSE
Third Applicant

ANDREW HAMILTON
Fourth Applicant

GREEN FREEDOM LIMITED (ISRAEL COMPANY NUMBER 514 331 479)
Fifth Applicant

AND:

JAKE LYNCH
Respondent

JUDGE:	ROBERTSON J
DATE OF ORDER:	26 FEBRUARY 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applicants’ notice to produce dated 25 February 2014 be set aside.

2.The sealed envelope containing documents produced by the respondent in answer to the notice to produce be returned to the respondent.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2235 of 2013

BETWEEN:

SHURAT HADIN – THE ISRAEL LAW CENTER
First Applicant

DAVID HANS LANGE
Second Applicant

JONATHAN ROSE
Third Applicant

ANDREW HAMILTON
Fourth Applicant

GREEN FREEDOM LIMITED (ISRAEL COMPANY NUMBER 514 331 479)
Fifth Applicant

AND:

JAKE LYNCH
Respondent

JUDGE:	ROBERTSON J
DATE:	13 MARCH 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. These are my reasons for the orders I made on 26 February 2014 setting aside the applicants’ notice to produce dated 25 February 2014.

2. The background to the present interlocutory application is that there is listed for hearing on 13 March 2014 an application by the respondent that the applicants provide security for costs of the respondent in the amount of some $338,000. The applicants also apply for a costs capping order.

3. By notice to produce dated 25 February 2014 the applicants require the respondent to produce:

   1.Any costs agreements under the Legal Profession Act 2004 (NSW) between the Respondent and the Respondent’s solicitors in these proceedings, Hazan Hollander.

   2.Any costs agreements under the Legal Profession Act 2004 (NSW) between the Respondent or the Respondent’s solicitors and Mr Stuart Littlemore QC and/or Mr Daniel Joyce.

4. In substance the respondent seeks to set aside the notice to produce or to be excused from compliance with it.

5. The respondent submitted that relevance has not been established and, in the alternative, that the documents caught by the notice are the subject of legal professional privilege.

6. The applicants submitted that they were entitled to confirm that the respondent was legally liable for the costs of the legal services being provided to him. The applicants referred to Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474 at [45] and [102] to the effect that if a party is under no legal obligation to pay lawyers’ fees, no amount can be recovered from the unsuccessful party.

7. I am not persuaded that the material sought by the notice to produce has been shown to be sufficiently relevant to the security for costs application or indeed, if the applicants so contend, to the applicants’ interlocutory application for a costs capping order, which is another interlocutory application to be heard on 13 March 2014.

8. I have not therefore found it necessary to examine the documents produced in answer to the notice to produce and placed in a sealed envelope as claimed to be the subject of legal professional privilege. I direct that that envelope be returned to the respondent.

9. Having regard to the nature and complexity of the proceeding and what is proportionate to that nature and complexity (r 1.31 of the Federal Court Rules 2011 (Cth)) and also having regard to the overarching purpose of the civil practice and procedure provisions of the Federal Court of Australia Act 1976 (Cth), s 37M, my order is that the applicants’ notice to produce dated 25 February 2014 be set aside.

10. I make no order as to costs as the matter was argued at the same time as the applicants’ corresponding interlocutory application and bearing in mind the mixed success of the parties.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Associate:

Dated:       13 March 2014