Shurat HaDin, Israel Law Center v Lynch

REASONS FOR JUDGMENT 1 These proceedings were commenced on 29 October 2013. There have been a series of interlocutory orders and I have given two interlocutory judgments, one on 13 March 2014 and the other on 24 April 2014: Shurat HaDin, Israel Law Center v Lynch [2014] FCA 226 and Shurat HaDin, Israel Law Center v Lynch (No 2) [2014] FCA 413. 2 Consent short minutes to dispose of the proceedings were forwarded to my Chambers on 8 July 2014. Those consent short minutes were signed by Mr Marcus Solomon SC, senior counsel for the first applicant, and Mr Yves Hazan, lawyer for the respondent. 3 I considered it important to pronounce those orders in open court, in pursuance of the principle that, so far as possible, judicial power should be exercised in public. 4 I pronounced the following orders: By consent, the Court orders: 1. The Amended Originating Application filed by the First Applicant on 24 June 2014 is dismissed for lack of standing. 2. The First Applicant pay the Respondent's costs, on the party/party basis in such amount as is agreed or taxed, of and incidental to: (a) the Interlocutory Application filed 30 June 2014; and (b) the proceedings to the extent that those costs are not the subject of orders for costs previously made in the proceedings. 3. The hearing date on 26 August 2014 is vacated. 5 After I had made those orders, Mr Hamilton, purportedly on behalf of the fifth applicant, made an oral application for the matter to be stood over for a period of six weeks, in which period the fifth applicant would either file an amended statement of claim or a notice of discontinuance. 6 The basis for that application was, Mr Hamilton submitted, that the second, third and fourth applicants had, but the fifth applicant had not, filed a notice of discontinuance on 14 July 2014. 7 That position can only be understood against the background of the interlocutory hearing on 25 June 2014 and certain orders I made on 3 July 2014. 8 At that interlocutory hearing, counsel for the second, third, fourth and fifth applicants submitted as follows: HIS HONOUR: Are your clients seeking to discontinue or - - - MR CONNELL: Well, your Honour, it seems to me that the simplest way to deal with it is this. The second to fifth applicants applied first to be removed as representative parties. If your Honour deals with that first and removes them as representative parties, then we can toddle off and your Honour can deal with the other matters. Your Honour has already made orders as to costs which will, of course, remain in effect irrespective of that removal of them as parties and as for any other cost matters, your Honour has a continuing applicant who has given security. HIS HONOUR: Well, subject to one question. Are your clients - because this wasn't clear to me from the exchanges - are your clients content for the proceeding not to continue as a representative proceeding? I ask that question because it was one thing for your clients no longer to be representative parties. MR CONNELL: Yes. Your Honour, we would accept if we cease to be representative parties then we have no control over that matter and whatever happens, happens. HIS HONOUR: All right. All right. Thank you. Thank you for that. So on that basis then, your clients would cease to be parties and wouldn't have any interest in this question of standing that I've just been discussing with Mr Hazan and Mr Solomon. MR CONNELL: Quite so. Quite so, your Honour. … HIS HONOUR: All right. Thank you. And I think the effect of that is that one of the orders I made was that an application that your clients had be stood over to today and that, plainly, falls away. MR CONNELL: Yes, your Honour. What happened on the last occasion, that was an application which was made on behalf of all applicants and I had the benefit - Mr Solomon was kind enough to provide a transcript to me of the last occasion and it's apparent that Mr Hamilton said that the first applicant may wish to continue. He did not know because counsel who appeared on the day was - had barely received instructions. HIS HONOUR: Yes. MR CONNELL: So he said it should stand over because it really was a matter for the first applicant but, as I understand it, that the first applicant doesn't intend to pursue that application. HIS HONOUR: Well, all right. Thank you, Mr Connell. And then I think it's common ground that I should make an order the proceeding - I'm speaking generally now, Mr Connell - the proceeding no longer continue as a representative proceeding under Part IVA of the Federal Court of Australia Act. The effect of that order being that the first applicant continues the proceedings on its own behalf, subject to Mr Hazan's standing application. But otherwise, subject to that, the first applicant continues the proceedings on its own behalf against the respondent. MR CONNELL: Yes. Well, if your Honour removes us as representative parties - - - HIS HONOUR: Yes. MR CONNELL: - - - as the first step then the next step, as I say, your Honour - - - HIS 5 HONOUR: Yes. MR CONNELL: - - - is just simply not a matter for us. HIS HONOUR: All right. MR CONNELL: We're out and have no say in it. 9 The orders I made on 3 July 2014 were as follows: THE COURT ORDERS THAT: … 9. The proceeding no longer continue as a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth). 10. Without prejudice to the respondent's interlocutory application referred to in order 3, the first applicant shall continue the proceedings on its own behalf against the respondent. 11. Subject to orders 14 to 18 of these orders in relation to costs, grant leave to the second to fifth applicants to discontinue their application and remove those applicants as parties. 12. For the purposes of s 33V of the Federal Court of Australia Act 1976 (Cth), the discontinuance referred to in order 11 be approved and, to the extent necessary, compliance with the requirements of s 33X(1) be dispensed with. 10 In my opinion it is clear that the filing of a notice of discontinuance by the second to fifth applicants was procedural only and order 11 had a substantive operation which was that the second to fifth applicants were removed as parties. This gave effect to the submissions made by Mr Connell of counsel on behalf of those applicants. 11 In those circumstances, I refuse the application made this morning on behalf of the purported fifth applicant. The fifth applicant, so called, is no longer a party. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.