Uniting Church in Australia Property Trust (NSW) v Allianz Australia Insurance Limited (No 2) [2021] FCA 532

Federal Court of Australia

Uniting Church in Australia Property Trust (NSW) v Allianz Australia Insurance Limited (No 2) [2021] FCA 532 File number: NSD 1144 of 2019

Judgment of: ALLSOP CJ

Date of judgment: 19 May 2021

Catchwords: PRACTICE AND PROCEDURE – interlocutory application for non-party discovery – where non-party refused to produce documents informally – where non-party holds documents as former agent of a party to the proceeding – whether non-party's reasonable legal costs incurred in complying with non-party discovery order should be borne equally by the parties to the proceeding – whether non-party's reasonable costs of production should be costs in the cause

Legislation: Federal Court Rules 2011 (Cth) rr 20.23 and 20.24

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance – Insurance List

Number of paragraphs: 17

Date of last submissions: 17 May 2021

Date of hearing: Determined on the papers

Counsel for the Applicant: Mr D L Williams SC with Mr P Mann

Solicitor for the Applicant: Clayton Utz

Counsel for the Respondent: Mr J C Conde

Solicitor for the Respondent: HWL Ebsworth Lawyers

ORDERS NSD 1144 of 2019

BETWEEN: UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (NSW) Applicant

AND: ALLIANZ AUSTRALIA INSURANCE LIMITED Respondent

order made by: ALLSOP CJ DATE OF ORDER: 19 MAY 2021

THE COURT ORDERS THAT:

1. Subject to Order 2, by 20 May 2021, in accordance with rr 20.23 and 20.24 of the Federal Court Rules 2011 (Cth), Marsh Pty Ltd (Marsh) is to give discovery of the documents identified in the Schedule to the interlocutory application filed by the respondent on 19 May 2021. 2. Subject to further order, Marsh is to be paid its reasonable legal costs of complying with Order 1 (estimated to be not more than $60,000–$70,000). 3. Subject to further order, the costs in Order 2: (a) are to be paid, in the first instance, by the respondent directly to Marsh; and (b) are then to be borne 50% by the applicant and 50% by the respondent, to be effected by the applicant paying the respondent 50% of the costs in Order 3(a) within 21 days after the respondent presents the applicant with written confirmation of having made payment of those costs, such costs to be costs in the cause for each party in the suit. 4. The requirement in rr 20.23(2) and 20.23(3) to file and serve an affidavit accompanying the application for non-party discovery be dispensed with. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.