Hancock v Rinehart - [2015] NSWSC 896

Supreme Court

New South Wales

Medium Neutral Citation: Hancock v Rinehart [2015] NSWSC 896
Hearing dates: 24 June 2015
Date of orders: 24 June 2015
Decision date: 24 June 2015
Jurisdiction: Equity Division
Before: White J
Decision:
1. Order that the plaintiffs’ notice of motion filed 23 December 2014 be dismissed;
2. Order that the plaintiffs pay the first defendant’s costs;
3. Stand over notice to produce to the Registrar’s list on 8 July 2015.

Catchwords: PRACTICE AND PROCEDURE – application to set aside notice to produce – plaintiffs applied for gross sum costs order – first defendant seeks production of tax invoices, itemised bills and funding agreements relating to the plaintiffs’ legal costs – whether it must appear likely that the documents will materially assist the applicant – held, dismissing the plaintiffs’ application: the “on the cards” test applies in New South Wales and, in any event, the question is whether disclosure is necessary for the resolution of the real issues in dispute
Legislation Cited: Civil Procedure Act 2005 (NSW)
Legal Profession Act 2004 (NSW)
Cases Cited: Shaw v Yarranova Pty Ltd [2011] VSCA 55
Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 Crim R 536
Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2011] NSWSC 11
Category: Procedural and other rulings
Parties: John Langley Hancock (1st Plaintiff)
Bianca Hope Rinehart (2nd Plaintiff)
Gina Hope Rinehart (1st Defendant)
Ginia Hope Frances Rinehart (2nd Defendant)
Hope Rinehart Welker (3rd Defendant)
Hancock Prospecting Pty Ltd (4th Defendant)
Hope Downs Iron Ore Pty Ltd (5th Defendant)
Representation:
Counsel:
C H Withers with P A Meagher and A Hochroth (Plaintiffs)
B McClintock SC with S Lawrance (1st Defendant)
Solicitors:
Yeldham Price O’Brien Lusk (Plaintiffs)
Corrs Chambers Westgarth (1st Defendant)

File Number(s): 2011/285907

Judgment

HIS HONOUR: The plaintiffs move to set aside a notice to produce dated 5 December 2014. The notice to produce was served by the first defendant in connection with a notice of motion filed by the plaintiffs on 2 December 2014 in which the plaintiffs seek a gross sum costs order in respect of a costs order made by Brereton J against the first defendant on 9 October 2013. His Honour made an order by consent that the first defendant pay the plaintiffs' costs on the indemnity basis of their application to remove her as trustee of the Hope Margaret Hancock Trust.
The plaintiffs have served an affidavit of their solicitor, Mr Price, dated 2 December 2014 in support of the application under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) for a gross sum costs order. The amount sought is $2,445,492.76 or such other amount as the Court deems fit. An order is also sought that the first defendant pay interest on those costs at the rate set out in rule 36.7 of the Uniform Civil Procedure Rules from the date of payment of costs by the plaintiff until such time as the costs are paid by the first defendant.
Mr Price exhibits to…

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 Hancock v Rinehart

Details

AGLC: Hancock v Rinehart [2015] NSWSC 896
Case: [2015] NSWSC 896
Decision Date: 24 June 2015

CaseChat Overview and Summary

The matter between Hancock and Rinehart arose in the Supreme Court of New South Wales. The plaintiffs, Hancock, applied to set aside a notice to produce documents from the defendant, Rinehart. The dispute centred on the production of tax invoices, itemised bills, and funding agreements relating to the plaintiffs' legal costs. The plaintiffs sought a gross sum costs order, arguing that the application for these documents was an abuse of process. The court had to decide whether the threshold test for the application to set aside a notice to produce was satisfied and whether the on the cards test or a necessity test applied.

The primary legal issue was the applicable test for setting aside a notice to produce documents in New South Wales. The court considered whether the on the cards test, which requires the disclosure to appear likely to materially assist the applicant, applied, or whether a necessity test, where disclosure is necessary for the resolution of the real issues in dispute, was more appropriate. The court noted that in New South Wales, the on the cards test is the prevailing standard, but also evaluated the necessity of the documents for resolving the substantive issues.

The court held that the plaintiffs' application was dismissed. It found that the on the cards test applied in New South Wales and, further, that the necessity test was not engaged. The court concluded that disclosure of the documents was not necessary for the resolution of the real issues in dispute, as the plaintiffs' reliance on the documents to challenge the application was speculative and not directly linked to the merits of the case. The plaintiffs' application to set aside the notice to produce was thus rejected.

The final orders of the court were that the plaintiffs' application to set aside the notice to produce was dismissed. The plaintiffs were to pay the defendant's costs of the application on an indemnity basis. This decision underscored the stringent criteria for setting aside a notice to produce in New South Wales and reinforced the importance of demonstrating a direct link between the requested documents and the resolution of the substantive issues in dispute.

Orders