Hancock v Rinehart

[2020] NSWSC 1853

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Hancock v Rinehart [2020] NSWSC 1853

Hearing dates:

29 May and 5 August 2020

Decision date:

17 December 2020

Jurisdiction:

Equity

Before:

Ward CJ in Eq

Decision:

1.   Dismiss the application by Bianca for delivery up of the Bankruptcy Transcripts, other than in respect of any Bankruptcy Transcripts presently in the actual possession of Gina.

2.   Order the delivery up to Bianca by Gina of the Sceales Files and any Bankruptcy Transcripts referred to in Order 1, but stay the execution of this order pending determination of the Martin Arbitration.

3.   To the extent necessary, dispense with the requirement for production by Gina of the Sceales Files and any Bankruptcy Transcripts referred to in Order 1 until after the determination of the Martin Arbitration.

4.   Dismiss the application for an injunction to restrain Bianca from taking steps to pursue the WA Access Application.

5.   Direct the parties to file brief written submissions within 7 days as to costs with a view to dealing with that issue on the papers.

6.   Liberty to apply on 7 days’ notice.

Catchwords:

EQUITY — Trusts and trustees — Proceedings between trustees and beneficiaries — Administration of trust — Access to trust documents

CIVIL PROCEDURE — Stay — Pending proceedings in other court — Arbitration — Comity and other considerations

Legislation Cited:

Bankruptcy Act 1966 (Cth), ss 81, 120

Civil Procedure Act 2005 (NSW), s 61

Commercial Arbitration Act 2010 (NSW), s 27E

Court Suppression and Non-publication Orders Act 2010 (NSW)

Evidence Act 1995 (NSW), ss 138, s 140(2)(c)

Rules of the Supreme Court 1971 (WA), O 67B, Div 7, r 16(2)

Uniform Civil Procedure Rules 2005 (NSW), r 2.1

Cases Cited:

Addstead Pty Ltd (in liq) v Simmons (No 2) (2005) 238 LSJS 189; [2005] SASC 25

Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 1) (1996) 64 FCR 1

Beneficial Finance Corporation Limited v Price Waterhouse (1996) 68 SASR 19

Breen v Williams (1996) 186 CLR 71; [1996] HCA 57

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Broad Construction Services (WA) Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133

Butt v Kelson [1951] 1 Ch 197

Commonwealth Bank of Australia v ACN 076 848 112 Pty Limited [2015] NSWSC 666

CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345

CSR Ltd v New Zealand Insurance Co Ltd (1994) 36 NSWLR 138

Evans v Davantage Group Pty Ltd (No 2) [2020] FCA 473

Grimwade v Federal Commissioner of Taxation (Cth) (1949) 78 CLR 199; [1949] HCA 9

Hancock Family Memorial Foundation v Fieldhouse (2005) 30 WAR 398; [2005] WASCA 93

Hancock Family Memorial Foundation v Fieldhouse (No 5) [2013] WASC 121

Hancock Family Memorial Foundation v Fieldhouse [2004] WASC 59

Hancock Family Memorial Foundation v Lowe [2015] WASCA 38; (2015) 320 ALR 337

Hancock Prospecting Pty Ltd v Estate of Hancock [1999] FCA 295

Hancock v Rinehart (Freehills Subpoena) [2017] NSWSC 530

Hancock v Rinehart (Trust Documents) [2018] NSWSC 1684

Hancock v Rinehart [2013] NSWSC 1402

Hancock v Rinehart [2015] NSWSC 646; (2015) 106 ACSR 207

Hancock v Rinehart [2019] NSWSC 1451

Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405

Hilton v Guyot (1895) 159 US 113

In the matter of the Bird Charitable Trust (2012) (1) JLR 62

Kraft Foods Group Brands LLC v Bega Cheese Ltd [2018] FCA 549; (2018) 358 ALR 1

Kriewaldt v Independent Direction Ltd (1995) 14 ACLC 73

Maclachlan v Browne & Fairfax Media Publications Pty Ltd [2018] NSWSC 1976

McGuirk v University of New South Wales [2010] NSWCA 104

National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209

Rambal v Oswal [2014] WASC 86

Re Siromath Pty Ltd (No 3) (1991) 25 NSWLR 25

Rinehart v Rinehart (No 2) [2020] NSWSC 235

Rinehart v Rinehart [2019] NSWCA 54

Rinehart v Rinehart [2020] NSWSC 68

Robertson v Federal Commissioner of Taxation (1952) 86 CLR 463; [1952] HCA 71

Salomon (Pauper) v A Salomon and Co Ltd [1897] AC 22

Short v Treasury Commissioners [1948] 1 KB 116

Short v Treasury Commissioners [1948] AC 534

South Australia v Barrett (1995) 64 SASR 73

Tiger v Barclays Bank Ltd [1952] 1 All ER 85

Waterhouse v Waterhouse (1998) 46 NSWLR 449

Wentworth v De Montfort (1988) 15 NSWLR 348

Wigmans v AMP Ltd [2018] NSWSC 1118

Wileypark Pty Ltd v AMP Ltd (2018) 265 FCR 1; [2018] FCAFC 143

Wollongong Coal Ltd v Gujarat NRE Properties Pty Ltd [2020] NSWSC 254

Wright v Lemon [2020] WASC 33

Texts Cited:

Davies, M, A S Bell, P L G Brereton and M Douglas, Nygh’s Conflict of Laws in Australia (10th ed, 2020, LexisNexis)

Horne, F T, Cordery on Solicitors (8th ed, 1988, Butterworth & Co)

Tucker, L, N Le Poldevin and J Brightwell in Lewin on Trusts (20th ed, 2020, Sweet & Maxwell)

Category:

Procedural and other rulings

Parties:

John Langley Hancock (Second Plaintiff)
Bianca Hope Rinehart (Third Plaintiff)
Gina Hope Rinehart (First Defendant)
Ginia Hope Frances Rinehart (Second Defendant)
Hancock Prospecting Pty Ltd (Third Defendant)
Hope Rinehart Welker (Fourth Defendant)

Representation:

Counsel:
CH Withers with AM Hochroth (Plaintiffs)
CN Bova SC with TE O’Brien (First Defendant)
J Giles SC with C Mitchell (Second and Third Defendants)

Solicitors:
YPOL Lawyers (Second Plaintiff)
Speed and Stracey Lawyers (First Defendant)
Corrs Chambers Westgarth (Second and Third Defendants)

File Number(s):

2011/00285907

Publication restriction:

Nil

Judgment

1. HER HONOUR: This is yet another unedifying interlocutory application in the ongoing litigious saga between members of the Rinehart family. I have set out the background to the substantive dispute between the parties in previous judgments (see, for example, Rinehart v Rinehart [2020] NSWSC 68 (the February Judgment) and Rinehart v Rinehart (No 2) [2020] NSWSC 235 (the March Judgment)) and I do not propose here to revisit much of that, although some brief reprisal of the background will assist in explaining some of the documents the subject of the present applications. Unless otherwise here recorded, I will adopt the same abbreviations as in previous judgments in this matter and I do so without intending any disrespect.

2. Now before me are a number of notices of motion: an amended notice of motion filed on 29 May 2020 by Bianca, the trustee of the HMH Trust, seeking orders for the delivery up of certain documents (the nature of which I will describe in due course); a notice of motion filed on 2 April 2020 (after Bianca’s now amended notice of motion was first filed on 18 March 2020) by Gina, the former trustee of the HMH Trust, seeking to stay Bianca’s notice of motion and to restrain Bianca from taking certain steps in relation to an application made by Bianca for access to Court documents in relation to other earlier proceedings in the Supreme Court of Western Australia; and a notice of motion filed by Gina on 30 June 2020, seeking dispensation from the requirement to produce the documents sought by Bianca.

3. I here note that, when the motions (in their then form) were first listed for hearing on 29 May 2020, there was much debate about the order in which the motions should be heard and whether Bianca should be permitted to amend her motion to seek production of additional documents (the Sceales Files), the most unfortunate result of which was that the hearing of the applications barely commenced (let alone concluded) during the day. The hearing then resumed on 5 August 2020, following which I reserved judgment.

Motions for determination

4. I now turn to adumbrate in some further detail the motions now before me.

Bianca’s “delivery up” motion

5. By her amended notice of motion (as noted, filed on 29 May 2020) (the “delivery up” motion), Bianca seeks, inter alia, delivery up of:

1. transcripts of the examination of Gina in public examinations conducted on various dates between September 1999 and February 2011 by the trustee in bankruptcy of the late Lang Hancock (Bankruptcy Transcripts); and

2. eight files (the Sceales Files) described in [1.1]-[1.8] of a letter most likely sent on 24 October 2006 by Mr Robert Sceales of Sceales & Co, solicitors, addressed to Gina as trustee of the HMH Trust (care of Mr Terry Solomon, who was HPPL’s General Counsel at the time).

Gina’s “stay” motion

6. By her notice of motion filed on 2 April 2020 (the “stay” motion), which HPPL supports, Gina seeks orders:

1. to stay Bianca’s “delivery up” motion pending the determination of the Martin Arbitration (an arbitration being conducted before the Honourable Wayne Martin AC QC and others, to which the parties to the present proceeding and others are party); and

2. to restrain Bianca from taking any further steps, directly or indirectly, to obtain or request from the Supreme Court of Western Australia access to documents held on the Court file in proceeding CIV 1802 of 1995 (the Fieldhouse Proceeding).

Gina’s “dispensation” motion

7. Finally, by notice of motion filed on 30 June 2020 (the “dispensation” motion), in the event that the documents are held to be Trust documents and the “stay” motion does not succeed, Gina seeks dispensation from the requirement to produce the documents sought by Bianca.

8. I now turn to outline the background in which these motions have been brought.

Background

9. I note that the following background is taken from the submissions of the respective parties on the present applications and should not be taken as amounting to any finding of disputed facts herein contained (or that might otherwise be disputed in the future). That said, there was some common ground as to the background facts, albeit that the characterisation by Bianca of some of the factual matters was not accepted by HPPL and Gina.

10. HFMF was incorporated in 1972 as a company limited by guarantee. In accordance with its articles of association, there were four classes of member, with the class A member holding the right to exercise 15 out of 20 votes at the general meeting (the class B member holding that right if there were no class A member).

11. Until 22 December 1989, when he resigned his membership, the late Lang Hancock was the only class A member of HFMF. On his resignation as controlling member, there was then no class A member and Zamoever Pty Ltd (Zamoever) was the class B member (and hence held the controlling membership rights).

12. In July 1995, Gina ceased to be a director of HFMF.

13. Then, in October 1995 (by letters variously dated 23 and 25 October 1995), Gina, in her then capacity as trustee of the HMH Trust (a position Gina held at all material times until 2015), wrote to the directors of HFMF, contending that a 1988 contract between her and Lang Hancock (the Plan of 1988, also referred to in places as the June 1988 Plan) required that the HMH Trust, or a similarly constituted trust, own the shares in Zamoever (which, as noted above, then held the controlling membership of HFMF); and demanding that steps be taken to ensure that Gina’s nominee, HMHT Investments Pty Ltd (HMHTI), be appointed as a class A member of HFMF.

14. Following that demand, on or about 24 October 1995, HMHTI became a class A member of HFMF. HMHTI held the controlling A Class membership of the HFMF Trust from 24 October 1995 until April 2012.

15. HMHTI was, until April 2012, wholly owned by Gina, in her capacity as trustee of the HMH Trust.

16. Pausing here, I note that Bianca’s contention is that because (until April 2012) HFMF was controlled by HMHTI, which in turn was owned by Gina as trustee of the HMH Trust, the controlling membership of HFMF was a trust asset of the HMH Trust; and Bianca maintains that this is consistent with how Gina and her advisers “saw the matter” at the relevant time. Gina here contests the premise of this contention, as does HPPL (referring to Salomon (Pauper) v A Salomon and Co Ltd [1897] AC 22 (Salomon v Salomon) and the fact that HFMF and HMHTI have separate legal personalities and separate property from their shareholders and ultimate shareholders). Gina says (and I agree) that rights (such as the right to control HFMF) do not become “assets” of the HMH Trust simply because HFMF’s sole member was HMHTI (the sole shareholder of which was Gina as trustee of the HMH Trust). Gina says that the HMH Trust’s interest in HFMF was merely as the shareholder of its controlling member, HMHTI. Thus, it is said that Bianca’s contention involves the piercing of two corporate veils: that of HFMF and that of HMHTI.

17. It is said that, from July 1995, the only “control” Gina exercised over HFMF was the ability to control the majority of votes in its general meetings, as opposed to controlling its day-to-day management.

18. In April 2012, all of the issued shares in HMHTI were transferred to HPPL. I understand that, at the present time, HPPL continues to own those shares.

Bankruptcy Transcripts

19. On or about 23 May 1995, prior to HMHTI’s appointment as class A member and acquisition of the controlling membership of HFMF, solicitors in Perth (Freehill, Hollingdale & Page, to which I will refer as Freehills) were retained to advise Gina, in her capacity as trustee of the HMH Trust, in connection with the estate and affairs of Lang Hancock (and the companies which he founded). Bianca says that, apparently pursuant to that retainer, an advice was provided to Gina “in her personal capacity and in her capacity as trustee of certain trusts” as to the implications of her petitioning Lang Hancock’s estate in bankruptcy, that advice noting that one issue to be determined before such an analysis was when Lang Hancock became insolvent and, particularly, whether he was solvent at the time of the settlements following the HPPL share transfer and the Plan of 1988.

20. HPPL ultimately petitioned for Lang Hancock’s estate to be administered in bankruptcy (see Hancock Prospecting Pty Ltd v Estate of Hancock [1999] FCA 295); and, on 8 April 1999, the Federal Court of Australia (Tamberlin J) made orders that the late Lang Hancock’s estate be administered in bankruptcy and that Mr Max Donnelly be appointed trustee.

21. In June 1999, Mr Donnelly announced that he had started “a complex review” of Lang Hancock’s personal financial position before he died; and that he would be looking at “the disposition of assets prior to bankruptcy”. In July 1999, Mr Donnelly announced that he was finalising court orders to conduct examinations under s 81 of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act) and that he “hoped to gather evidence” from the public examinations of Gina, Mrs Rose Porteous (Lang Hancock’s widow) and others, to assist in the “multimillion dollar Federal Court recovery actions” that he planned to launch under s 120 of the Bankruptcy Act. The recovery actions there foreshadowed appear to have been predicated on a conclusion by Mr Donnelly as to Lang Hancock’s insolvency before he died in March 1992.

22. It is not, as I understand it, now disputed that Gina was a witness in public examinations conducted by Mr Donnelly on 16 September 1999, 14 February 2000, 8 November 2000, 10 November 2000, 19 February 2001 and 20 February 2001 (although this, or at least the existence of those transcripts, had apparently not been conceded until the matter was before me in May this year). In the course of debate in May this year (see at T 26.14-21), Senior Counsel for HPPL informed the Court that HPPL had in its possession copies of a “small number” of pages of transcript from the bankruptcy examinations. Gina’s position is that she does not have copies of those transcripts “in her custody or control that came into her possession during her time as trustee”, although it appears from the events to which I refer below that Gina may have come into possession of at last part of those transcripts in the course of other matters (and hence the position taken in correspondence on this issue may simply have been as to the capacity in which she obtained those documents).

23. In any event, Bianca says that she has not been able to obtain copies of the transcripts through publicly available sources and is here seeking delivery up of those transcripts (that being the first category of documents here sought) (the Bankruptcy Transcripts). Bianca says that it is “obvious” that the Bankruptcy Transcripts will contain evidence of matters relevant to the administration of the HMH Trust. Pausing here, in submissions on the present application, Bianca’s purpose (though said not to be relevant to the issues for determination) was put, at least in part, by reference to the need to understand the complex history to this trust.

24. HPPL has relied on an affidavit sworn by Mr David Gordon Anthony of Corrs Chambers Westgarth (Corrs), on 12 May 2020 in its opposition to Bianca’s delivery up motion. In that affidavit, Mr Anthony deposes that five of the six Bankruptcy Transcripts were sent to HPPL by its lawyers (or the transcription company, Sparkes & Cannon) within days of the relevant examination.

25. Mr Anthony has deposed that HPPL was represented by Corrs in the first two examinations on 16 September 1999 and 15 February 2000 (see Mr Anthony’s affidavit sworn on 12 May 2020 at [8]). It appears that the Bankruptcy Transcript of 16 September 1999 was sent by email from Corrs to HPPL on 20 September 1999.

26. HPPL was represented by Arnold Bloch Leibler in the remaining four examinations on 8 November 2000, 10 November 2000, 19 February 2001 and 20 February 2001 (see Mr Anthony’s affidavit sworn on 12 May 2020 at [10](a)). It appears that three of these four transcripts were sent by email by Arnold Bloch Leibler to HPPL and the fourth transcript was provided to HPPL directly by the transcription company (again, Sparkes & Cannon).

27. Pausing here, HPPL says that these five Bankruptcy Transcripts (received by HPPL from lawyers acting on its behalf in the bankruptcy examinations or from the transcription service) are the property of HPPL. There appears to be no evidence as to how the sixth Bankruptcy Transcript (from 15 February 2000) came into HPPL’s possession. HPPL submits that it should be inferred that it is likely to have done so in the same manner as the other five transcripts. In any event, it is said that the sixth transcript is in HPPL’s possession and consequently it is HPPL’s property, absent evidence showing that it holds the transcript in some other capacity.

28. Mr Anthony’s evidence is that the Bankruptcy Transcripts remain in HPPL’s possession, located in the document archive at HPPL House; that the archive is maintained by employees of HPPL; and that the Bankruptcy Transcripts are “organised” within HPPL’s records, not within the records of any other entity (see Mr Anthony’s affidavit sworn on 12 May 2020 at [7](a)-(c)).

29. At some stage thereafter, Freehills prepared an analysis of at least some of the bankruptcy examinations (the Transcript Analysis).

30. The Transcript Analysis (not in evidence on the basis, it is said, that it is the subject of legal professional privilege) is described as an 89-page document comprising of a series of transcript analyses of 47 different days of the examinations conducted by Mr Donnelly. There is an issue concerning pursuant to what retainer of Freehills the Transcript Analysis was produced. The firm was retained, for example, in other proceedings, including in the Supreme Court of Western Australia (the Porteous Proceedings) (more specifically, by retainer commencing on or about 2 August 2000, for HPPL, HFMF and Gina (in CIV 2121 of 1992) and for HPPL, HFMF, HMHTI, Gina and Mr Gary Schwab (in CIV 1716 of 1996). Each of those proceedings was brought by Mrs Porteous and ultimately settled in September 2003 by a document referred to as the Porteous Settlement Deed. Bianca says that the Porteous Settlement Deed was apparently negotiated by Freehills on behalf of, inter alios, HPPL, HFMF and HMHTI. The precise retainer pursuant to which the Transcript Analysis was prepared is an issue that I cannot determine on the material before me on the present application.

31. On 30 August 2006, a solicitor at Cocks Macnish, the solicitors acting for HFMF in the Fieldhouse Proceeding, emailed the Transcript Analysis to Counsel acting for HFMF in the Fieldhouse Proceeding (Mr Gilmour QC and Mr Hershowitz) and copied this, inter alios, to Gina and to HPPL’s general counsel. That email was subsequently forwarded to Bianca who, at the time, was a director of HFMF and HPPL. The email (with the subject reference “FIELDHOUSE”) attached two documents, one of which bearing the file name “Analysis of all Bankruptcy Transcript by Freehills.doc” (i.e., the Transcript Analysis).

19. Pausing here, there is a complaint by HPPL as to how Bianca still has the Transcript Analysis in her possession. HPPL says that it is the property of one or more of Freehills’ clients (referring, by way of example, to Wentworth v De Montfort (1988) 15 NSWLR 348 (Wentworth v De Montfort)); and that it is also the subject of joint privilege held by, inter alios, HPPL and HFMF. HPPL contends that Bianca’s receipt of the document as a director of HPPL or HFMF does not give her an ongoing right to “hold onto” the document (referring to Kriewaldt v Independent Direction Ltd (1995) 14 ACLC 73). Further, HPPL says that privilege (namely, its privilege and that of HFMF) can be asserted against Bianca (referring to Wright v Lemon [2020] WASC 33 at [22]-[28] per Martin J, applying South Australia v Barrett (1995) 64 SASR 73).

20. In these circumstances, it is said that Bianca should return the company property and that she should not be permitted to tender it in these proceedings (HPPL here invoking s 138 of the Evidence Act 1995 (NSW) (Evidence Act)). I note, however, that Bianca has not sought to tender the Transcript Analysis, so that it is not necessary here to delve into the s 138 issue (and, on any view of things, it is difficult to see how it could be said that the Transcript Analysis was unlawfully or improperly obtained, when it was sent to Bianca in her capacity as a director, although that does not address whether she can now properly refuse to return it).

Sceales Files

34. The second category of documents sought by Bianca on her “delivery up” motion are documents referred to in the October 2006 letter from Mr Sceales addressed to Gina, as trustee of the HMH Trust, care of Mr Terry Solomon. It is said by Bianca that that letter was plainly written in the course of Mr Sceales’ retainer by Gina as trustee, noting that it is addressed to “The Trustee of the Hope Margaret Hancock Trust” and it bears the subject line “TRUST ADVICE”.

35. Relevantly, Mr Sceales there wrote:

TRUST ADVICE

1.   As these matters are finalised, we return the following files to you:

1.1   Volume 1 - Statements, Transcripts and Briefs;

1.2   Volume 2 - Documents May 1981 to June 1988;

1.3   Volume 3 - Documents July 1988 to December 1988;

1.4   Volume 4 - Documents January 1989 to May 1989;

1.5   Volume 5 - Documents June 1989 to May 1990;

1.6   Volume 6 - Documents June 1990 to May 1992 and undated;

1.7   Folder entitled “Hope Downs”;

1.8   White folder containing miscellaneous documents in relation to Grant of Probate.

[My emphasis]

36. The letter (which was produced by Mr Sceales electronically) does not bear an accurate date. Rather, it is on the basis that its electronic properties indicate that it was last modified on 24 October 2006 that the parties appear to have proceeded on the basis that it is likely that this is when it was sent.

37. The letter refers to eight Sceales Files. However, HPPL cannot locate the last two of those files (see Annexure B to the affidavit sworn on 30 June 2020 by Mr Hugh Robert Scott, Gina’s solicitor). Accordingly, the debate here is as to the six files that have been able to be located.

38. Mr Scott has deposed, on information and belief from Mr Bickerton (the Information Manager at HPPL), that: in the 1990s and early 2000s, Mr Bickerton compiled the first six of the Sceales Files as files which Mr Bickerton considered to be relevant to the Plan of 1988 (see Mr Scott’s affidavit sworn on 30 June 2020 at [8](a), [8](e)) (the Plan of 1988 Files); in or about 2005, Mr Solomon asked Mr Bickerton to deliver a copy of the Plan of 1988 Files to Sceales & Co (see Mr Scott’s affidavit sworn on 30 June 2020 at [9](a)); Mr Bickerton did so, after adding additional documents that related to one of the Porteous Proceedings (CIV 2121 of 1992 in the WA Supreme Court) (see Mr Scott’s affidavit sworn on 30 June 2020 at [9](b)); and the Plan of 1988 Files were delivered to Sceales & Co under cover of a letter dated 23 June 2006 (Annexure A to Mr Scott’s affidavit sworn on 30 June 2020).

39. Mr Scott has deposed that he has reviewed the Plan of 1988 Files and that the documents are “almost without exception, relevant to the origin and performance, up to May 1992, of the arrangement variously known as the Plan of 1988, or the Agreement of June 1988, or the 22 June 1988 Agreement”’ (see Mr Scott’s 30 June 2020 affidavit at [11](b)). Mr Scott has also deposed that the documents include extracts from the Bankruptcy Transcripts (see Mr Scott’s affidavit sworn on 30 June 2020 at [13]).

Fieldhouse Proceeding

40. A third category of documents (not the subject of Bianca’s “delivery up” motion but part of Gina’s “stay” motion) relates to litigation commenced in the Supreme Court of Western Australia in August 1995 by HFMF against Mr Carnegie Richmond Hallet Fieldhouse (CIV 1802 of 1995) (the Fieldhouse Proceeding). Mr Fieldhouse was a former solicitor and legal adviser to Mr Lang Hancock, and from time to time the companies that Mr Hancock controlled. HFMF’s claim, as I understand it, related to the alleged breach by Mr Fieldhouse of a fiduciary duty owed to HFMF (the breach being in connection with the sale to HFMF of Lang Hancock’s “Life Governor’s Share” in HFMF).

41. The Fieldhouse Proceeding was initially struck out for want of prosecution in 2004 (see Hancock Family Memorial Foundation v Fieldhouse [2004] WASC 59), but was reinstated on appeal (see Hancock Family Memorial Foundation v Fieldhouse (2005) 30 WAR 398; [2005] WASCA 93). Mr Fieldhouse died in 2007 and the claim was then pursued against his insurers. The Fieldhouse Proceeding was dismissed in 2013 (see Hancock Family Memorial Foundation v Fieldhouse (No 5) [2013] WASC 121) in a decision confirmed on appeal (see Hancock Family Memorial Foundation v Lowe [2015] WASCA 38; (2015) 320 ALR 337). Bianca here notes that HFMF was the sole plaintiff in the Fieldhouse Proceeding.

42. On 8 January 2020 (complaint here being made that this was without notice to either Gina or HPPL), Bianca made an application to the Principal Registrar of the Supreme Court of Western Australia for leave to access various documents on the court file in the Fieldhouse Proceeding.

43. Pursuant to orders that were made by the Registrar on 1 May 2020, on 8 May 2020, that application was progressed by the filing of a chambers summons (the WA Access Application). As I understand it, determination of Bianca’s application has been deferred pending the outcome of the present applications.

44. Gina maintains (see at [261] below) that the Fieldhouse Proceeding is not relevant to the administration of the HMH Trust, but says that it is manifest that the Fieldhouse Proceeding is relevant to the personal claims that Bianca makes in the Martin Arbitration, which (if successful) would have the result of significantly reducing the value of the HMH Trust’s principal asset (namely, its shareholding in HPPL). Meanwhile, Bianca cavils with the proposition that these documents are not relevant to the administration of the HMH Trust; and says that there is no basis on which an improper purpose on her behalf in seeking these documents can properly be alleged.

45. It is next convenient, with that background, to adumbrate in some greater detail the issues raised by the various motions now before me.

Summary of issues

46. The parties filed a plethora of submissions and supplementary submissions on the present applications. There is an obvious overlap between the respective applications. I propose to deal with the issues for determination in the following sequence.

47. First, whether the Bankruptcy Transcripts and Sceales Files are documents of the Trust within the meaning accorded to that expression by Brereton J, as his Honour then was, in Hancock v Rinehart (Trust Documents) [2018] NSWSC 1684 (Hancock v Rinehart (Trust Documents)) or otherwise are documents which Gina is or should be obliged to deliver up either in her capacity as outgoing trustee or by reference to case management principles.

48. Second, whether, if Gina is obliged to deliver up the said documents, there should there be a stay of that obligation pending the determination of the Martin Arbitration (or otherwise on the basis that the “delivery up” motion is an abuse of process).

49. Third, whether, if Gina is obliged to deliver up the said documents, there should be dispensation from that obligation (including on the basis that any of those documents remain(s) the property of HPPL) (noting the liberty granted by Brereton J in that regard in the orders made in 2015).

50. Fourth, whether there should be an order restraining Bianca from pursuing her WA Access Application. Pausing here, in effect, what is now being sought by Gina is an anti-suit injunction, including on the basis that the application amounts to a circumvention of this Court’s processes insofar as the document production regime ordered late last year is concerned (and to this, conversely, whether (as Bianca contends) the principle of comity should restrain the making of such an order).

Whether the documents are “Trust documents” and/or is there an obligation to deliver up the documents

51. Turning then to the first issue identified above, in summary, the position of the parties is as follows.

52. Bianca’s position is that the respective documents should be delivered up for the following reasons. First, that they are Trust documents (the Bankruptcy Transcripts because they were provided to the solicitors for HFMF, for use in litigation to which HFMF was a party at a time when HFMF was controlled by Gina as trustee of the HMH Trust, and the Sceales Files because they were held by the HMH Trust’s solicitor and returned to Gina in her capacity as trustee of the HMH Trust). Second, that, even if the documents are not Trust documents, they should be produced pursuant to Gina’s obligation to co-operate in the transfer of the trusteeship. Third, as a means of addressing the “information asymmetry” (to which I have previously referred) between the parties, in circumstances where it was submitted that this is likely to assist both in the mediation in which I had ordered the parties to participate (which, as at the time of the hearing of the application before me, was then upcoming but which has since been commenced and the status of which I am unaware – though I apprehend that it has not formally been terminated as the Court has received no communication from the mediator or parties to that effect so far as I am aware) and with the ongoing iterative process of production of Trust documents.

53. HPPL (as does Gina) says to this that the Bankruptcy Transcripts are not Trust Documents (being, instead, the property of HPPL in which neither HMHTI nor HFMF has any interest); that they are not required to be produced pursuant to any ongoing obligation of co-operation owed by Gina to the HMH Trust; and that HPPL’s fundamental property rights cannot be abrogated under general case management principles.

“Documents of the Trust”

54. As adverted to above, the expression “documents of the Trust” was considered in detail and the subject of comprehensive rulings in Hancock v Rinehart (Trust Documents).

55. Pausing here, Gina says that this judgment is interlocutory in nature and cannot be relied upon for factual findings or estoppels. It is not necessary here to enter into debate between interlocutory and final judgments; rather, what is here relevant is the reasoning by his Honour as to what is a document of the Trust, as well as the orders that his Honour made.

56. In that connection, his Honour summarised (see at [41]) the obligation of an outgoing trustee to its successor in relation to the production of documents of the trust as being (subject to the court’s discretion to mitigate it) “to hand over to an incoming trustee all documents which relate to the administration of the trust so as to enable the incoming trustee to fulfil his duties” (citing, inter alia, Tiger v Barclays Bank Ltd [1952] 1 All ER 85 at 88 per Jenkins LJ (Tiger v Barclays Bank)), noting that the rationale for this obligation is that the new trustee is prima facie entitled to be placed in just as good a position as the outgoing trustee in relation to all aspects of the administration of the trust.

57. In relation to the present dispute, specifically, his Honour found (see at [83]-[84]) that it had wrongly been determined by Gina’s solicitors when they first reviewed and produced documents that the following classes of documents were not Trust documents (and, therefore, it had wrongly been considered that they would not need to be produced):

(1)   Documents disclosing deliberations on the part of the [Gina] in her capacity as [trustee] which did not reflect or refer to a decision taken by her in that capacity;

(2)   Documents relating to advice obtained by [Gina] in response to allegations or threats made against her by one or more of the beneficiaries or threatened or actual court proceedings against her by them, being documents the subject of legal professional privilege that belongs to her in her capacity as [trustee];

(3)   Documents that are confidential in nature, in respect of which in her trustee capacity [Gina] does not hold the confidentiality on behalf of [the beneficiaries];

(4)   Personal documents of [Gina] as [trustee], including communications with the beneficiaries (whether individually or otherwise), unless including a decision made by her as trustee; and

(5)   Documents concerning only the affairs of companies and entitles in the HPPL Group other than [HMHTI] or the Trust.

58. His Honour set out, by reference to the claims made for production of documents, those documents falling within the scope of the description “documents of the Trust” (see at [111]-[118]) and made further observations in relation to the documents (see at [119]-[135]).

59. Following, his Honour summarised (see at [141]) his conclusions as to what the “documents of the Trust” which Gina was obliged to deliver up comprised, as follows:

(1)   all documents received or held by her or on her behalf exclusively in her trustee capacity (in which the Trust alone has a proprietary interest);

(2)   all documents received or held by her or on her behalf jointly in her trustee capacity and also in another capacity;

(3)   all documents received or held by her or on her behalf in her trustee capacity, in which the Trust and another entity or entities also have a proprietary interest, provided that where the original is not in her possession or control a copy must be provided; and

(4)   all documents received or held by her in some capacity other than as trustee, including as a director of HPPL, which were used in the administration of the Trust.

60. His Honour went on to make clear (at [142]) that:

142.   Documents which satisfy those criteria are for relevant purposes (namely, delivery up to an incoming trustee) documents of the Trust, notwithstanding that they are:

(1)   documents which while disclosing deliberations on the part of [Gina] in her trustee capacity, do not reflect or refer to a decision taken by her in that capacity;

(2)   documents which record communications of the trustee with some or all of the beneficiaries but do not record a decision made by the trustee;

(3)   documents that were merely subject of the trustee’s consideration in making a decision or administering the trust;

(4)   documents that are confidential in nature, in respect of which in her trustee capacity [Gina] does not hold the obligation of confidence on behalf of the beneficiaries as a whole (such as private information about a particular beneficiary);

(5)   documents concerning only the affairs of companies and entitles in the HPPL Group other than [HMHTI] or the Trust; and

(6)   legal advice and related documents sought or obtained by her in her trustee capacity, whether or not also in some other capacity (other than advice obtained by [Gina] for the sole purpose of responding to allegations or threats made against her by one or more of the beneficiaries or threatened or actual court proceedings against her by them, being documents the subject of legal professional privilege that belongs to her personally and is not held on behalf of the beneficiaries).

61. Orders were made on 5 November 2018 (the 2018 Orders) (as set out at [145]). Since then, and notwithstanding his Honour’s comprehensive reasons in relation to the issue of what comprise documents of the Trust which Gina is obliged to deliver up, there has been ongoing dispute as to the implementation of the 2018 Orders (as addressed in, for example, my earlier judgments).

62. Relevantly, the 2018 orders included liberty to apply for dispensation in relation to the obligation to deliver up particular documents or classes of document.

63. Again, as I have said, the two categories of documents now in issue (at least vis-à-vis Bianca’s “delivery up” motion) are the Bankruptcy Transcripts and the Sceales Files. I deal with each in turn.

Bankruptcy Transcripts

64. It is convenient first to consider the submissions for Bianca.

Bianca’s submissions re Bankruptcy Transcripts

65. Bianca submits that the Bankruptcy Transcripts are documents of the HMH Trust for the following reasons.

66. First, Bianca maintains (as seems unarguable as a matter of logic) that Freehills must have had the Bankruptcy Transcripts in its possession in order to prepare the Transcript Analysis. It is said that (accepting for this purpose the position put by HPPL that the Transcript Analysis was prepared pursuant to the Freehills retainer of 2 August 2000 – see at [30] above), as two of Freehills’ clients under that retainer were HFMF and HMHTI, the Transcript Analysis and the Bankruptcy Transcripts used to produce that analysis are thus documents that were held by Freehills on behalf of, inter alios, those clients.

67. Bianca maintains that a document of HMHTI must be a “Trust document”, referring to what was said in Hancock v Rinehart (Trust Documents) (at [111](5)(h)):

… As [HMHTI] was wholly owned by the Trust, any concern of [Gina] with it in this respect must have been in her trustee capacity, and such documents as are in her control are trust documents, within the scope of the delivery up order…

68. It is said that Gina herself accepted at an earlier stage of this litigation that “[d]ocuments and accounts relating to [HMHTI]” were Trust documents within the scope of the delivery up order. Bianca says that it does not matter if Gina also has an interest in such documents in some other capacity, noting that Brereton J went on to say (at [111](5)(i)) that:

… As [HMHTI] was wholly owned by the Trust, communications with [Gina] concerning [HMHTI] must have been made or received by her in her trustee capacity, even if also in other capacities, and such documents as are in her control are trust documents, within the scope of the delivery up order…

69. Nor, Bianca says, does it matter that other entities (in particular, HPPL) may have an interest in the documents, pointing to what his Honour said (at [45]):

… where there is joint ownership, the document does not cease to be a trust document just because someone else has an interest in it…

70. It is noted that his Honour found that documents held by an external consultant pursuant to a joint retainer by Gina in her trustee capacity and other Hancock entities were nonetheless Trust documents (see at [55]) and that all documents created pursuant to the joint retainer of Freehills by Gina and other entities were Trust documents (see at [70]).

71. It is further noted that, in his Honour’s earlier judgment on privilege, his Honour held that Gina and HPPL could not maintain privilege against Bianca as trustee of the HMH Trust in respect of such documents on the basis of joint privilege, as “[t]he holders of a joint privilege have no confidence against each other” (see Hancock v Rinehart (Freehills Subpoena) [2017] NSWSC 530 at [38] (Hancock v Rinehart (Freehills Subpoena))).

72. Bianca here says that the same analysis applies with respect to a document of HFMF. In this regard, Bianca points to the fact that, at the time the Transcript Analysis was created, HFMF was controlled by HMHTI (which in turn, as I have noted, was wholly owned by Gina as trustee of the HMH Trust). It is said that HMHTI’s control of HFMF had come about precisely because Gina had asserted that Lang Hancock had promised that control of HFMF would vest in the HMH Trust. Thus, it is submitted that a document of HFMF is, on the same basis, a document of the HMH Trust.

70. Bianca thus argues that, when the Bankruptcy Transcripts were provided to the solicitors for HFMF and HMHTI for the purpose of preparing the Transcript Analysis, they became Trust documents within the scope of the delivery up order.

71. Bianca says that Mr Scott’s evidence also assists the conclusion that the Bankruptcy Transcripts are Trust documents within the scope of the delivery up order. It is noted that Mr Scott has confirmed that some of the Bankruptcy Transcripts were provided to Sceales & Co for the purposes of its retainer on behalf of Gina as trustee of the HMH Trust and it is said that this undoubtedly makes them Trust documents.

72. Bianca says that Mr Scott’s evidence also confirms, as Mr Price has deposed, that the examinations of Gina recorded in the Bankruptcy Transcripts contain sworn testimonial evidence relating to the creation of the HMH Trust. It is said that this must be so, given Mr Scott’s evidence that the Plan of 1988 Files are “almost without exception, relevant to the origin and performance, up to May 1992” of the June 1988 Plan, and his evidence that some of the Bankruptcy Transcripts are contained in those files.

73. Bianca argues that documents which concern the very foundation of the HMH Trust were given to the HMH Trust’s lawyer, for the purpose of the trustee obtaining advice from that lawyer about the affairs of the trust. Bianca maintains that the documents that constitute the Sceales Files (which I consider at [146] below), including the Bankruptcy Transcripts, are therefore trust property and are required to be delivered up to her.

74. Bianca says that it cannot be correct to contend that any document held by a subsidiary of a trust (or an entity in which the HMH Trust had controlling ownership) is, by virtue of being held by a separate legal entity, not a Trust document because that would enable a trustee, by operating through a subsidiary, to denude itself of any Trust documents, thereby denying the rights of beneficiaries to access Trust documents and, if the subsidiary were to be sold prior to a transfer of trusteeship (as in the present case), denying such documents to the new trustee.

75. I interpose here to note that Gina says that this is a non sequitur; and that the fact that companies may be able to be used in order to avoid obligations is insufficient to deny them legal personhood (pointing to Salomon v Salomon and Waterhouse v Waterhouse (1998) 46 NSWLR 449 (Waterhouse)).

76. Insofar as HPPL suggests that the copies of the Bankruptcy Transcripts in its possession are not Trust documents because they are “organised within HPPL’s records relating to the bankruptcy of the estate of Lang Hancock, and not within the records of any entity other than HPPL”, Bianca says that the evidence establishes that there is no one repository of Trust documents within HPPL, and that just because a document is found in a file not relating to the HMH Trust does not mean it is not a trust document. Bianca points out that Brereton J found that Gina “did not maintain a rigorous separation between trust documents and documents held by her in other capacities, or for that matter HPPL documents; trust documents apparently reside in or with records of HPPL” (see Hancock v Rinehart (Trust Documents) at [47]).

77. I now turn to consider HPPL’s submissions.

HPPL’s submissions re Bankruptcy Transcripts

81. HPPL submits that Bianca’s contention that the Bankruptcy Transcripts are documents of the HMH Trust fails for three reasons: first, that HPPL owns the Bankruptcy Transcripts which are in its possession; second, that neither HMHTI nor HFMF has any interest in the Bankruptcy Transcripts; and, third, that, even if HFMF or HMHTI has such an interest, that does not make the Bankruptcy Transcripts the property of the HMH Trust.

82. As to the first, HPPL relies on the evidence of Mr Anthony (referred to above) as to the circumstances in which HPPL received the Bankruptcy Transcripts, which (as I have noted) remain in HPPL’s possession. HPPL maintains that it has the right to refuse to produce them (citing Breen v Williams (1996) 186 CLR 71 at 80 per Brennan CJ, at 101 per Gaudron and McHugh JJ and at 126 per Gummow J; [1996] HCA 57).

83. As to the second, HPPL says that HMHTI and HFMF did not obtain any interest in the Bankruptcy Transcripts by reason of the fact that they were supplied to and analysed by Freehills under a joint retainer between HPPL, HMHTI and HFMF (citing Wentworth v De Montfort at 355 per Hope JA for the proposition that, where a solicitor receives documents created prior to the retainer from a client or third party in the course of a retainer, those documents remain the property of the client or third party). Insofar as Bianca’s submission that HMHTI and HFMF have an ownership interest in the Bankruptcy Transcripts derives from their inferred use in the creation of the Transcript Analysis, HPPL says that such a proposition is contrary to the principle in Wentworth v De Montfort.

84. As to the third, HPPL invokes the long established principle of law that a company is a separate and distinct legal entity from its shareholders and its officers (citing Salomon v Salomon); and the proposition that a shareholder (including a trustee shareholder) has no legal or equitable interest in the property of the company (citing Short v Treasury Commissioners [1948] AC 534 at 545 per Lord Porter (Short v Treasury Commissioners), where Lord Porter said that “’a shareholder has no direct share in the assets of a company, he has such rights as the memorandum and articles give him and nothing more’”, as quoted by Williams J in Grimwade v Federal Commissioner of Taxation (Cth) (1949) 78 CLR 199 at 206; [1949] HCA 9 (Grimwade v FCT), Robertson v Federal Commissioner of Taxation (1952) 86 CLR 463 at 479-480; [1952] HCA 71 per Williams J; and Waterhouse at 484 per Windeyer J).

85. HHPL says that the fact that some pages of the Bankruptcy Transcripts were copied, and that those copies were placed into the Sceales Files, does not alter this analysis. It is said that that process did not destroy, limit or otherwise affect HPPL’s proprietary rights in the underlying Bankruptcy Transcripts; nor does it mean that the underlying Bankruptcy Transcripts become “documents of the Trust”. It is said that (whatever may be the correct analysis in relation to the copy), the act of copying does not change or detract from HPPL’s proprietary interest in the document which is (partially) copied.

86. Applying these principles to this case, HPPL submits that it is plain that the HMH Trust does not have any legal or equitable interest in the assets of HMHTI or HFMF merely by virtue of the ownership chain, including their documents. It is said that no aspect of the reasons in Hancock v Rinehart (Trust Documents) contradicts those fundamental principles; nor could his Honour have so decided (since to do so would have been inconsistent with base principle and would, on this hypothesis, have affected the rights of HFMF and HMHTI which are not parties to the proceedings).

87. It is noted that Brereton J said (at [111](5)(h)):

Any document relating to the making of political donations by HMHT Investments Pty Ltd. As [HMHTI] was wholly owned by the Trust, any concern of [Gina] with it in this respect must have been in her trustee capacity, and such documents as are in her control are trust documents, within the scope of the delivery up order. [Gina] submits that such transactions were reversed, and so documents relating to them are not trust documents. I do not accept this: documents which record the making of the payments and their later reversal are part of the accounting records of the Trust, within the scope of the delivery up order.

88. HPPL says that, read in context, these observations were limited to a particular type of document (relating to political donations) and that the chapeau (at [111](5)) contains a further limitation on this category, namely that it only included documents “used” by Gina in the administration of the HMH Trust. Thus, it is said that there was no finding made by his Honour that mere ownership of a document by HMHTI (or HFMF) meant it was the property of the HMH Trust. It is submitted that if mere ownership was enough then the criterion of “use” by Gina would have no relevance at all to a document owned by HMHTI or HFMF. Furthermore, reference is also made to what was said at [49], and it is said that there is no evidence that the documents were “received and held” by Gina and “used in the administration of the trust”.

89. Further, HPPL makes the following additional submissions.

90. First, that insofar as Bianca relies on a statement by Mr Bradley Ross in an earlier affidavit that the initial process of identifying Trust documents proceeded on the basis that Trust documents included “documents and accounts relating to HMHTI”, HPPL says that this is irrelevant. It is said that that is the very process which Bianca successfully challenged before Brereton J and which his Honour clarified (at, inter alia, [111] of Hancock v Rinehart (Trust Documents)). In any event, it is said that the present application demonstrates that the initial process of identifying the Trust documents did not include the Bankruptcy Transcripts.

91. Second, as to the submission that, where the HMH Trust owns a document jointly with another entity, the joint interest cannot prevent production to Bianca, HPPL says that this is not to the point. HPPL says that the HMH Trust does not have any interest in the Bankruptcy Transcripts; that this is not a case where Gina held the Bankruptcy Transcripts in multiple capacities; nor is it a case where all of HPPL, HMHTI and HFMF and the HMH Trust each has an ownership interest.

92. Third, HPPL emphasises (as adverted to above) that HFMF and HMHTI were not, and are not, party to these proceedings and that their rights cannot be affected by Hancock v Rinehart (Trust Documents).

93. For these reasons, it is submitted that Bianca’s claim that the HMH Trust has a proprietary interest in the Bankruptcy Transcripts, through HMHTI and HFMF’s alleged ownership, fails; and it is noted that Bianca does not suggest that Gina herself “used” the Bankruptcy Transcripts in the administration of the HMH Trust.

Gina’s submissions re Bankruptcy Transcripts

94. Gina, for the same or relevantly similar reasons, maintains that the Bankruptcy Transcripts are not Trust documents.

95. Gina observes that Bianca, as trustee of the HMH Trust, has made numerous attempts to obtain the Bankruptcy Transcripts. Gina maintains that the basis upon which Bianca has asserted they are Trust documents has been “constantly shifting”, here referring to Bianca’s attempt to obtain those documents through subpoena to HPPL’s solicitors, Corrs Chambers Westgarth, and the issue of a notice to produce to HPPL (see Hancock v Rinehart [2019] NSWSC 1451 (the 2019 Judgment) at [46]-[47]), when it was submitted that Gina was a central potential witness in the examinations, being a party to the Plan of 1988 and the admission of HMHTI as a member of the HFMF as a precondition to the “debt reconstruction” (see the 2019 Judgment at [81]); to the contention in submissions that the Bankruptcy Transcripts were HMH Trust documents on the basis that during the examinations Gina was giving evidence in her capacity as trustee and therefore that the documents are trust documents; and the suggestion in Mr Price’s affidavit sworn on 7 April 2020 (see at [49]-[50]) that Gina may have been examined about the Plan of 1988.

96. Gina complains that Bianca is seeking the Bankruptcy Transcripts as Trust documents in circumstances where they are clearly relevant to her personal claims in the Martin Arbitration and of no apparent relevance to the administration of the HMH Trust. Gina says that this is illustrated by the commonality of search terms Bianca nominated for the purpose of the trust document production orders made on 5 December 2019 in this proceeding with her claims in the Martin Arbitration (including the following search terms: “Debt Reconstruction”, “Hancock Family Memorial Foundation” or “HFMF“, “Hancock Mining Limited” or “HML”, “Hancock Resources Ltd” or “HRL”, “Petition” or “Plan of 22 June 1988”, “Templeman” and “Zamoever”). I address this contention further in due course.

97. As to Bianca’s contention that the Bankruptcy Transcripts are Trust documents, Gina says that for this to succeed Bianca must establish both that: Freehills, when acting for HPPL, HMHTI and HFMF (but not the HMH Trustee), held the Bankruptcy Transcripts for, inter alios, HFMF and HMHTI; and that documents of HMHTI or HFMF were “necessarily” HMH Trust documents (on the basis that Gina, as trustee of the HMH Trust, owned the shares of HMHTI and it became the controlling member of HFMF on 24 October 1995).

98. As I have said, Gina makes the same argument as HPPL that the Bankruptcy Transcripts are not documents of HMHTI or HFMF by reason of HPPL’s provision of them to Freehills (even if Freehills was relevantly jointly retained by HPPL, HMHTI and HFMF), pointing to the evidence that the Bankruptcy Transcripts were obtained by HPPL for its own purposes (being for the purpose of obtaining legal advice in relation to legal proceedings) and are thus HPPL’s documents (referring to Mr Anthony’s affidavit sworn on 12 May 2020 at [7]-[11]) and relying (as does HPPL) on what was said by Hope JA (Samuels and Mahoney JJA agreeing) in Wentworth v De Montfort at 355 (his Honour there citing F T Horne, Cordery on Solicitors (8th ed, 1988, Butterworth & Co) at 89), to the effect that documents in existence before the solicitor’s retainer commences which are sent to the solicitor by the client or by a third party during the currency of the retainer are held by the solicitor as agent for the client or third party. Gina says that, on that basis, if the Bankruptcy Transcripts were provided by HPPL to Freehills under the joint retainer, they remained HPPL’s property.

99. As to the proposition that documents of HMHTI or HFMF were necessarily Trust documents because of Gina’s ownership of the shares in HMHTI, Gina similarly relies on Salomon v Salomon and says that Bianca’s contention involves piercing two corporate veils: that of HFMF and that of HMHTI. Gina points also to the authorities relied on by HPPL to the effect that a shareholder has no interest in the legal or equitable interest in the property of the company (see particularly Grimwade v FCT at 206 per Williams J), regardless of whether the shareholder holds the shares on trust (see also Waterhouse at 484 per Windeyer J and Short v Treasury Commissioners [1948] 1 KB 116 at 122 per Evershed LJ, as his Lordship then was, reading the judgment of the Court of Appeal).

100. Thus it is submitted that it is incorrect to suggest that HFMF (or its membership which was held by HMHTI) was a trust asset.

101. It is said that the copies of the transcripts that were contained in the Sceales Files were taken by HPPL’s information manager (Mr Bickerton) for the purpose of producing a bundle of documents relevant to litigation in which HPPL was involved (not on instruction from Gina) (referring to Mr Scott’s affidavit sworn on 30 June 2020 at [8]); and therefore it is said that the “complete” Bankruptcy Transcripts were not used by the trustee (Gina) in the administration of the HMH Trust in any sense. Further, it is said that, even if the extracts from the Bankruptcy Transcripts contained in the Sceales Files were copied for the HMH Trust, that is insufficient to result in the Bankruptcy Transcript having been “used” in the requisite sense within the meaning of Hancock v Rinehart (Trust Documents).

102. Insofar as Bianca places reliance upon the obiter comments of Brereton J in Hancock v Hancock (Trust Documents) (see at [111](5)(h)), Gina (again, as did HPPL) points to the context in which those observations were made. It is emphasised that his Honour there observed that mere consideration or reliance upon a document in Gina’s capacity as trustee of the HMH Trust was insufficient to render it an HMH Trust document and that such a document would only be a Trust document if: it was in the trustee’s possession or control in the capacity as trustee; or it would have been obtained in that capacity if it were not for the trustee’s control in some other capacity. I note that similar comment is made as to Bianca’s reliance on his Honour’s observations at [111](5)(i) of Hancock v Rinehart (Trust Documents). Again, it is submitted that this does not support the conclusion that all of HFMF’s documents are Trust documents.

103. Gina further notes that even if (which she disputes) shareholders have some proprietary interest in the documents of the company, HMHTI ceased to be owned by the HMH Trust in 27 April 2012, (well before any obligation to provide Trust documents to Bianca arose). It is said that any ownership interest the HMH Trust had in documents of HMHTI and HFMF by reason of its shareholding in HMHTI ceased at that point in time.

104. As to the reliance placed by Bianca upon Gina’s letter requesting that HMHTI be admitted as the controlling member of HFMF, Gina complains that Bianca is here advancing inconsistent contentions as to which trust had the interest in HFMF (the HMH Trust or the HFMF Trust). It is submitted that, if Bianca’s contentions to the effect that it was for the latter are correct, then the Bankruptcy Transcripts could not be HMH Trust documents.

105. As to the other matters raised by Bianca, Gina says that Brereton J’s observations concerning Gina having a proprietary interest in a document both as trustee of the HMH Trust and in another capacity and as to the HMH Trust jointly owning documents with HPPL do not here apply because Bianca has failed to establish that the HMH Trust had any proprietary interest, jointly or otherwise, in the Bankruptcy Transcripts; and that the position adopted by an officer of HPPL (Mr Ross) concerning whether HMHTI’s documents were HMH Trust documents is irrelevant (particularly given that it preceded Hancock v Rinehart (Trust Documents)).

106. I now turn to the Sceales Files.

Sceales Files

107. Again, it is convenient first to consider the submissions made for Bianca.

Bianca’s submissions re Sceales Files

108. As to the Sceales Files, Bianca submits that they fall within the third, or alternatively, fourth of the categories of Trust documents identified by Brereton J in (see Hancock v Rinehart (Trust Documents) at [49]), namely, documents received or held by Gina in her trustee capacity, in which the HMH Trust and another entity or entities also have a proprietary interest (category 3); and, documents received or held by Gina in some capacity other than as trustee, which were used in the administration of the Trust (category 4).

109. As to the first of those categories, Bianca points to the finding (which Bianca submits is determinative of the issue) by Brereton J that Sceales & Co was retained by Gina in her capacity as trustee of the HMH Trust. In this regard, Bianca says that whether or not HPPL has a proprietary interest in the documents as it claims, the documents were received on Gina’s behalf by the solicitors acting for her in trustee capacity. Specifically, his Honour said (at [65]) that:

65.   … Sceales were expressly retained by Mrs Rinehart “as trustee of the Hope Margaret Hancock Trust” to provide legal advice in respect of “the affairs of HPPL, and in particular its Articles of Association”, and there is no evidence of any other retainer by Mrs Rinehart of Sceales…

110. His Honour had earlier noted (at [64]) the matters on which Sceales & Co advised Gina, those being: advice from Sceales & Co and Senior Counsel in relation to a series of proposals to remove John Hancock as a beneficiary, or to exclude him from any substantial benefit (and, in particular, whether Gina could effect such proposals through amendments of the HMH Trust consistently with her duties as trustee, along with the taxation consequences of doing so); and advice provided by Sceales & Co as to whether Gina would breach her duties as trustee of the HMH Trust if she were to execute the Hope Downs Deed.

110. Bianca points out that Gina has not filed any evidence on the present applications of any other retainer with Sceales & Co nor as to any other matters on which Sceales & Co advised her. Bianca emphasises that the letter returning the Sceales Files to HPPL is headed “TRUST ADVICE’’ and is addressed to “The Trustee of the Hope Margaret Hancock Trust”.

111. Pausing here, I note that, at least at first blush so to speak, it is difficult to say that these are not documents “received” by Gina in her trustee capacity; not least given that the letter was expressed to be sent to the trustee of the HMH Trust (albeit care of Mr Solomon).

112. Bianca thus says that Sceales Files are Trust documents, relying particularly upon the contents of Mr Sceales’ letter (and the absence of any contrary evidence) for the inference that the Sceales Files were provided to Sceales & Co in the course of its retainer as legal advisers to Gina as trustee of the HMH Trust. Bianca says that, for that reason, they are Trust documents.

113. In the alternative, it is said that, even if the Sceales Files were not received by Gina in her capacity as trustee, they were nonetheless used by her as trustee. It is said that the concept of “use” here must include use by the trustee’s legal advisers.

114. In this regard, Bianca says that the documentary evidence (exhibited to Mr Price’s affidavit sworn on 30 July 2020) establishes: that in the course of giving Gina legal advice about whether the HPPL shares held by the Trust were pre-CGT assets, on 13 June 2006, Mr Sceales requested further information as to the background to the declaration of 27 December 1988 which created the HMH Trust; that the six “Plan of 1998 Files” provided by Mr Bickerton to Mr Sceales on 23 June 2006 comprised that further information, which Mr Sceales then spent “a considerable amount of time perusing”; and that the final advice issued by Mr Sceales to Gina on the capital gains tax (CGT) issue, dated 29 June 2006, made reference to the information which had been provided (i.e., the Plan of 1988 Files).

115. It is said that Gina had available to her a “convenient repository” of the documents forming the background to the creation of the HMH Trust in the Plan of 1988 Files which Mr Bickerton had compiled but that, even had she not had access to those files in that form, it would have been expected that, as trustee, Gina would have in her possession the documents which led to the creation of the Trust, which she would have provided to Mr Sceales.

116. Insofar as Mr Scott deposes that Mr Bickerton was instructed by Mr Solomon to send the Plan of 1988 to Sceales & Co, Bianca says that it should be inferred that Gina directed Mr Solomon to give that instruction to Mr Bickerton. Again, it is noted that no evidence has been led as to the purpose for which the files were provided to Sceales & Co (despite it being within Gina’s ability to provide that evidence) and no evidence has been led as to Gina’s instructions to Mr Solomon. Bianca argues that this allows for the inference more confidently to be drawn that the Sceales Files were provided to Sceales & Co in the course of that firm’s retainer on behalf of Gina as trustee (that being the only retainer that existed between Sceales & Co and Gina).

117. Indeed, Bianca here seeks that an inference be drawn (in the absence of evidence to the contrary) that Gina received the eight Sceales Files in her capacity as trustee of the HMH Trust and has been in possession of those files as trust records since that time.

118. Bianca thus contends that the documents which had been provided to Mr Sceales are Trust documents within the scope of the delivery up order (referring to Hancock v Rinehart (Trust Documents) at [66]). It is said that, had Sceales & Co retained the documents, those documents would have been within the scope of documents held by third parties in respect of whom Gina was required to direct that they provide such documents to Bianca; and that, having been returned to Gina, she must produce them. It is noted that the description of the Sceales files includes not only historical documents from the late 1980s and early 1990s, but also reference to a file titled “Statements, Transcripts and Briefs”.

119. Bianca says that the contention that the Sceales Files are not Trust documents because they “are HPPL’s property” involves a fundamental misapprehension of the finding in Hancock v Rinehart (Trust Documents) as to what documents will be Trust documents, but that, in any event, the contention that HPPL has a proprietary interest in the documents should be rejected.

120. In that regard, Bianca emphasises that, while Gina was trustee, HPPL staff managed the affairs of the Trust; and that Mr Solomon (HPPL’s General Counsel) acted on behalf of Gina as trustee in dealing with Mr Sceales. It is noted that communications from Mr Sceales, including his advices, were addressed to Mr Solomon or sometimes to “The Trustee of the Hope Margaret Hancock Trust (Attention: Mr Terry Solomon)”. Bianca points to the finding of Brereton J that Mr Solomon “provided legal and other advice to [Gina] in connection with her administration of the Trust, and acted as a point of contact between the first defendant and her external advisers” (see Hancock v Rinehart (Trust Documents) at [111](11)).

121. Thus, Bianca argues that the mere fact that a particular action may have been taken by a HPPL employee is not probative as to whether the action was taken on behalf of HPPL, as opposed to being taken on behalf of the Trust. It is said that, given that HPPL never retained the services of Sceales & Co, the inference to be drawn is that, whenever a HPPL employee interacted with Mr Sceales (giving instructions to him or providing him with documents), that employee was so doing so on behalf of the HMH Trust (not HPPL).

122. As to the submission by Gina that the Plan of 1988 Files were created “for litigation to which HPPL was a party” and not under her instruction, Bianca points to the fact that both HFMF (at the time controlled by the HMH Trust) and Gina were parties to proceedings CIV 2121 of 1992 (in addition to HPPL). It is said that Gina, HFMF and HPPL all retained common solicitors and that the evidence does not establish that Mr Bickerton created the set of documents for the benefit of HPPL alone, to the exclusion of the other parties who were in common cause with HPPL in those proceedings.

123. As to who directed Mr Bickerton to compile the Plan of 1988 Files, Bianca says that Mr Scott’s evidence (as I have said, on information and belief) that Mr Bickerton was not instructed to compile the set of documents by or on behalf of Gina and does not recall discussing its existence with Gina can establish only that Mr Bickerton does not recall discussing the files directly with Gina, does not identify who instructed Mr Bickerton to create the files (and Bianca contends that the likelihood is that it was Mr Solomon who instructed Mr Bickerton to prepare the files under Gina’s instruction). It is once more noted that there is no evidence from Gina, even on information and belief, to suggest otherwise.

124. Bianca further says that it was not the original set of Plan of 1988 Files that was sent to Mr Sceales (rather, it was a copy of those files with additional documents) and it is said that the evidence does not establish any proprietary interest of HPPL’s in that copy of the Plan of 1988 Files. Bianca points to the evidence that Mr Solomon asked Mr Bickerton to provide a copy of the folders to Mr Sceales. It is said that, in making that request, Mr Solomon must have been acting on behalf of Gina as trustee, pursuant to the request which Sceales & Co, as the Trust’s lawyers, had made of Mr Solomon for further information. Bianca maintains that when Mr Bickerton then took a copy of the Plan of 1988 Files, added documents thereto and provided that copy to Mr Sceales he was not acting on behalf of HPPL (rather, he was simply assisting in the administration of the HMH Trust, consistently with the role that HPPL played managing the HMH Trust’s affairs).

125. Bianca says that it is consistent with this that the Plan of 1988 Files were returned by Mr Sceales to Gina (as trustee), not to HPPL (and that this was neither a mistake nor inappropriate (rather, it reflected that the documents were owned by the HMH Trust). It is said that it evidently reflected Mr Sceales’ belief that the documents had been provided to him by or on behalf of the HMH Trust.

126. As to the reliance placed by HPPL (and Gina) on Wentworth v De Montfort, Bianca says that this principle applies when a third party supplies documents created prior to the existence of a retainer to a solicitor; whereas, here, it was Gina as trustee (not HPPL), who supplied the Plan of 1988 Files to Mr Sceales, and the copy supplied to Mr Sceales did not pre-exist the retainer (rather, it was created in the course of the retainer through Mr Bickerton copying and adding to the original Plan of 1988 Files held by HPPL).

HPPL’s submissions re Sceales Files

128. HPPL also opposes the production of the Sceales Files to Bianca on the basis that they are HPPL’s property and not “documents of the Trust” within the scope of the delivery up order.

129. As to its proprietary interest in the files, reference is made to the evidence of Mr Scott (in his affidavit sworn on 30 June 2020) as to the process by which the documents were compiled and forwarded to Sceales & Co (again, see above) and as to the retention by HPPL of the Plan of 1988 Files. It is noted that the Sceales Files were accompanied by a cover letter dated 23 June 2006, which was on HPPL letterhead and was signed by Mr Bickerton as HPPL’s information manager (again see Annexure A to Mr Scott’s affidavit sworn on 30 June 2020).

130. HPPL, as does Gina, again relies on the principle in Wentworth v DeMontfort. It is said that the effect of Mr Scott’s evidence is that the Sceales Files were received and held by Sceales & Co thereafter as agent for HPPL; and that the HMH Trust did not acquire a proprietary interest in the Sceales Files merely because HPPL provided them to Sceales & Co in the course of Sceales & Co’s retainer with the trustee of the HMH Trust.

131. HPPL says that there is no evidence that Sceales & Co considered or consulted the Sceales Files in the course of giving advice to the HMH Trust (a proposition that seems to me to be inconsistent with the evidence that Sceales & Co “perused” the documents and asked for additional information at one stage in relation to the documents); but HPPL says that, even if that was the case, such consultation or consideration would not confer a proprietary interest in the Sceales Files on the HMH Trust. HPPL says that, as HPPL’s agent, Sceales & Co could not destroy or qualify HPPL’s proprietary right merely by considering or consulting the Sceales Files in the course of giving advice to the HMH Trust. It is submitted that this is consistent with the reasoning of Brereton J in Hancock v Rinehart (Trust documents) (at [76]).

132. HPPL says that the fact that Sceales & Co returned the Sceales Files to HPPL’s then general counsel under cover of a letter addressed to the Trustee of the HMH Trust (which it argues was an error) did not destroy HPPL’s proprietary interest in the Sceales Files. HPPL says that Sceales & Co should not have addressed its cover letter to the Trustee of the HMH Trust when it held the Sceales Files as agent for HPPL; but that the error was immaterial in circumstances where the documents were physically returned to HPPL’s then general counsel. Further, it is said Sceales & Co could not (as the firm had no authority) create an interest in the documents inconsistent with or in derogation of HPPL’s interest. HPPL argues that its substantive proprietary rights are not abrogated merely because HPPL’s agent used the wrong title in a cover letter returning the documents to HPPL’s then general counsel.

133. Pausing here, there is to my mind a distinction between the issue as to whether HPPL has proprietary rights in the documents – which might go to the question whether there should be dispensation from the orders requiring production – and the issue as to whether these documents fall within the description of documents of the Trust under the reasons of Brereton J in Hancock v Rinehart (Trust Documents) in the first place. In other words, I do not see those two factual scenarios as mutually exclusive. A document might be both a document in which HPPL has a proprietary interest and one which is required (subject to an application for dispensation) to be delivered up in accordance with his Honour’s orders – say, because it is a document held by or received by Gina in her capacity as trustee albeit that the proprietary interest in the document lay in a third party.

134. HPPL, however, says that, while Brereton J considered a class of documents described as the “Sceales documents” and concluded that these were documents of the HMH Trust (see at [62]-[67]), his Honour made clear (see at [62]) that these were documents retained by Sceales & Co in its files. HPPL says that his Honour did not there consider documents that were provided to Sceales & Co by a third party, then held by Sceales & Co as agent for the third party and not retained on the HMH Trust file. HPPL says that Brereton J’s reasons in the Trust Documents Judgment regarding the “Sceales documents” (again, at [62]-[67]) relate only to documents retained by Sceales & Co in its files.

135. HPPL’s position is that the Sceales Files do not fall within the categories of documents his Honour set out, being: legal retainers (see at [111](8)); documents which record or refer to communications between Gina or her representatives and Sceales & Co (see at [111](9)); or any file or files maintained by Gina or Sceales & Co in relation to work for which the HMH Trust was charged (see at [111](10)). Further, it is noted that (unlike the documents described at [111](10)), the Sceales Files were not retained by Sceales & Co or Gina (as opposed to HPPL) as part of a file relating to work for which the HMH Trust was charged.

136. As to the four categories of “trust documents’’ identified by Brereton J in his Honour’s orders (see at [145]), HPPL says that the Sceales Files do not meet the description of the first three categories identified at [145](1)(a)(i)-(iii), as the Sceales Files were not received or held by Sceales & Co on behalf of Gina exclusively in her trustee capacity, jointly in her trustee capacity and another capacity or in her trustee capacity and jointly with another entity (rather, it is said, the Sceales Files were held by Sceales & Co exclusively as agent for HPPL); and nor do they meet the description of the category identified at [145](1)(a)(iv) (which is said to be limited to documents received or held by Gina personally in some capacity other than as trustee).

137. HPPL says that, in contrast to the first three categories identified at [145](1), category 1(a)(iv), does not extend to documents received or held by another person on Gina’s behalf; nor, it is said, is there any evidence that Sceales & Co reviewed or considered the Sceales Files, let alone “used” them “in the administration of the Trust”.

138. Once more, pausing here, there is evidence to the extent that there is evidence that Sceales & Co “perused” the Sceales Files. To my mind, this would amount to relevant “use” and the only question then would be whether that was use by them on behalf of the trustee in the course of administration of the Trust (which would in my opinion be the case if Sceales & Co were advising as to the responsibilities of the trustee or the like).

Gina’s submissions

139. Gina submits that the Sceales Files are not trust property because they were created within HPPL, from HPPL’s own records (and so were HPPL’s property); and, again, says that documents provided to a lawyer by a third party (here, HPPL) remain the property of the third party, and are to be returned to the third party by the lawyer in accordance with Wentworth v De Montfort (again, see at 355).

140. Gina contends that the HMH Trust has no proprietary interest in the Sceales Files and that the documents could only be “documents of the Trust”, in accordance with Hancock v Rinehart (Trust Documents) if they are documents which were “used in the administration of the Trust”. In this regard, reference is made to what was said by Brereton J by reference to Tiger v Barclays Bank (at [48]):

48.   … The point of Tiger v Barclays Bank Ltd is that, where the outgoing trustee had acted as both trustee and banker, and so did not separately maintain banking records relevant to the trust, the incoming trustee should be entitled to receive those banking records which, had the outgoing trustee not also been the banker, it would have received from the bank. Applied to this case, Bianca is entitled to have provided to her documents received and held by Mrs Rinehart in her capacity as a director of HPPL but used in relation to the administration of the Trust, if they are documents which, but for being a director of HPPL, she would have obtained in her trustee capacity. As it may be assumed that a diligent trustee would have obtained for the purposes of the Trust any document which was in fact used in the administration of the Trust, though it was received in another capacity, that means any document which was received or held in her capacity as a director of HPPL (or in some other capacity), which she in fact used in the administration of the Trust.

[My emphasis]

141. Gina says that there are thus two requirements that must be met before a document, which is not the property of the HMH Trust, will fall within the “used in the administration of the Trust” category: first, that it must have been used in the administration of the Trust; and, second, that it must have been a document which would have been acquired by a third-party trustee who did not occupy a dual role (such as a bank account statement for the Trust’s bank accounts). Gina says that neither requirement is satisfied in respect of the Sceales Files.

142. First, Gina says that the Sceales Files were not relevantly “used” in the administration of the HMH Trust. Gina says that the fact that they were provided to Sceales & Co does not mean they were “used” in the administration of the Trust. It is noted that (at [43]) Brereton J observed that merely because a document was considered or adverted to by the trustee in the course of making a decision did not mean the document has been “used”. Gina says that this must apply a fortiori to third party advisers of the trustee.

143. Second, it is said that the extended category of “documents of the Trust” only applies to documents which, but for the dual role held by the trustee, the trustee would have acquired for the purpose of the trust. Gina argues that, if a third party had been the trustee, that third party would not have been able to acquire the Plan of 1988 Files or the additional documents inserted to compile the Sceales Files and, in any event, the Sceales Files (being the property of HPPL) would have been returned to HPPL with the third party trustee having no access to those documents.

Determination re whether “Trust documents”

144. At this point, it is convenient to delineate this aspect of the matter into a more, narrow, anterior issue, being whether the Bankruptcy Transcripts and Sceales Files fall within the expression “documents of the Trust” which Brereton J ordered Gina to deliver up (subject to any application for dispensation). As may be observed, the preceding has been directed to this question. Once this discrete issue is determined, I will then turn to consider the alternative bases on which it is said the documents should be delivered up.

145. More specifically then, the resolution of the question as to whether documents are “Trust documents” does not turn on whether Gina has a proprietary interest in the documents (whether jointly or solely), since his Honour’s description of the documents of the Trust (see at [141]) included documents in respect of which there is no reference to the entity or entities having a proprietary interest in the documents (see, in particular, the fourth category).

258. I now turn to Gina’s submissions.

Gina’s submissions re WA Access Application

261. As an initial matter, I note that Gina contends that the Fieldhouse Proceeding (which concerned a claim against a solicitor in relation to the sale of the controlling share in HPPL to HFMF in 1991) is not relevant to the administration of the HMH Trust.

262. As to the making of the WA Access application, Gina notes that Bianca asserted that she has a legitimate interest in doing so as the trustee of the HMH Trust for the following stated reasons:

The reasons for the Trustee’s application can be briefly stated as follows:

5.1   We understand these proceedings were conducted between about 21 August 1995 to 2017;

5.2   The plaintiff in these proceedings is the Hancock Family Memorial Foundation Limited (HFMF);

5.3   From about 24 October 1995 to about 30 April 2012, the sole member of HFMF was HMHT Investments Pty Ltd (HMHTI);

5.4   At all material times, HMHTI was wholly owned and controlled by and was the property of the Trust;

5.5   The Trustee was appointed to the Trust on 28 May 2015 by order of Justice Brereton of the Supreme Court of New South Wales: see Hancock v Rinehart [2015J NSWSC 646. One of the orders made by Justice Brereton on the appointment of the Trustee was an order in the following terms:

(3)   The first defendant deliver up to the second plaintiff within 28 days all documents of the Trust in her possession custody or power, including all those referred to in paragraph 3 of the claims for relief in the third further amended statement of claim.

(Production Order);

5.6   The Production Order has been the subject of a number of subsequent judgments of the Supreme Court of New South Wales and the Court of Appeal of the Supreme Court of New South Wales: Hancock v Rinehart (Trust documents) [2018) NSWSC 1684, Rinehart v Rinehart [2019) NSWCA 54, Hancock v Rinehart [2019) NSWSC 1451;

5.7    The Trustee is presently continuing to pursue compliance with the Production Order and investigate the administration of the Trust by the former trustee. Those investigations include obtaining records relating to HMHTI and the conduct of these proceedings, HFMF and the conduct of these proceedings in circumstances where these proceedings represented a purported asset in which only the former trustee held in that capacity;

5.8   Pursuant to the Production Order, the former trustee has not produced to the Trustee any records relating to the conduct of these proceedings. Notwithstanding the above reasons, the Trustee apprehends that such records will be in the control of the former trustee; and

5.9   Based on the information available to the Trustee, including the publically available information about the subject matter of these proceedings (which have been the subject of a number of public judgments of the Supreme Court of Western Australia), the Trustee apprehends that the documents described in the enclosed schedule are likely to assist and inform the Trustee’s further enquiries and Investigations concerning the records of the Trust and the administration of the Trust by the former trustee.

263. Gina says that the Fieldhouse Proceeding, and documents filed in relation to it, cannot be assets of the HMH Trust simply because HFMF’s sole member was HMHTI, the sole shareholder of which was Gina as trustee of the HMH Trust (again referring to Salomon v Salomon). Further, Gina maintains that it cannot be said that the Fieldhouse Proceeding was being conducted for the HMH Trust, as the evidence demonstrates that the proceeding was being conducted for the benefit of HFMF’s funding creditor (HPPL), that its net asset position was negative $18.4 million, that it owed $15 million to HPPL and that that amount was secured by a fixed and floating charge over all the assets and undertakings of HFMF (see HFMF’s 2003 Annual Report at 14.17 and 23).

264. Gina says that the subject of the Fieldhouse Proceeding will be an important issue in the Martin Arbitration, noting that Mr Fieldhouse raised the Plan of 1988 by his defence in the Fieldhouse Proceeding. Indeed, it is said that this is of central relevance to the Martin Arbitration. Gina has referred to the allegations made by Bianca (which, again, I do not set out) in the Martin Arbitration and to the contentions that it is said Gina will raise in relation thereto.

265. Gina says that, in circumstances where it does not appear that the HMH Trust had an interest in the Fieldhouse Proceeding (and the explanation proffered by Bianca of that interest does not, Gina submits, withstand scrutiny), it should be found that Bianca is using her position as trustee of the HMH Trust to attempt to establish that she has a legitimate interest in obtaining documents from the court file, whereas the true purpose of the WA Access Application is to assist her in pursuing her claims in the Martin Arbitration.

266. Further, Gina maintains that the WA Access Application is an abuse of process for two reasons.

267. First, that it is an attempt to circumvent the orders made by this Court on 5 December 2019, which provide for a regime pursuant to which access to Trust documents can be provided; and that, under that regime, Gina and HPPL are able to apply for dispensation from the obligation to produce any such documents including by reason of those documents being relevant to Bianca’s personal claims in the Martin Arbitration.

268. It is noted that, as agreed between the parties, the 5 December 2019 Orders required HPPL to run keyword searches across electronic databases, including the “Fieldhouse Proceeding Repository”, which was maintained for the Fieldhouse Proceeding. It is submitted that the search terms nominated by Bianca appear to be directed at capturing documents relevant to the claims Bianca brings in her personal capacity concerning the HFMF Trust, the June 1988 Plan, Zamoever and the Debt Reconstruction.

269. Gina says that a preliminary review of the documents that HPPL has provided to her representatives pursuant to order 8 reveals that many of the documents which Bianca seeks in the WA Access Application were retrieved when those terms were searched across the “Fieldhouse Proceeding Repository” (see Mr Scott’s affidavit sworn on 20 May 2020 at [16]) and that Bianca has not elected for Gina to review the documents provided to her legal representatives by HPPL pursuant to order 9 (see Mr Scott’s affidavit sworn on 20 May 2020 at [13]).

270. It is said that, to the extent that any requested documents have not been provided, Gina is willing to request them from HPPL or the Supreme Court of Western Australia, and to produce such of them as are Trust documents in accordance with the regime established in this Court, subject to any dispensation applications.

271. Furthermore, and as adverted to above, complaint is made that the WA Access Application was made without notice to Gina or HPPL, shortly after the 5 December 2019 Orders were made. It is noted that the regime under those orders provided for Gina to have the opportunity to review the documents to determine whether or not they are Trust documents and, if they are, to apply for dispensation before any such documents are produced to Bianca (including, for example, by reason of the personal claims she brings in the Martin Arbitration). It is submitted that if Bianca is permitted to obtain (via the WA Access Application) documents the subject the of regime established by the 5 December 2019 Orders, then the regime and protections it established will be “interfered” with in the sense referred to by Gummow J, his Honour then a Justice of the Federal Court of Australia, in National Mutual v Sentry Corporation (as cited in CSR).

272. Second, it is said that, in making the WA Access Application, Bianca is asserting that she has a legitimate interest on the basis that HFMF was “owned and controlled by the former trustee”. It is submitted that this gives rise to the spectre of inconsistent factual findings (by reference to Bianca’s position in the Martin Arbitration concerning control of HFMF and the HFMF Trust). Gina submits that an anti-suit injunction would prevent the vexation which occurs from the pursuit of the determination of common factual issues in different fora.

273. Finally, Gina says that another reason why the relief sought may be granted is that Bianca has not sought judicial advice concerning the WA Access Application in circumstances where she gave an undertaking “not to commence or continue proceedings on behalf of the Trust in a court” without judicial advice. It is said that the WA Access Application arguably constituted a proceeding; and that, although notified of the issue in prosecuting both her delivery up motion and the WA Access Application (by letter dated 7 February 2020), Bianca persisted in both prosecutions without judicial advice (cf March Judgment at [148]-[152]).

Bianca’s submissions re WA Access Application

274. Bianca says that there was nothing improper in her making the WA Access Application without notice to Gina or HPPL, pointing to O 67B, Div 7, r 16(2) of the Rules of the Supreme Court 1971 (WA), which provides that an application by a non-party for access to a document on the Court’s file “need not be served on any person”.

275. Bianca submits that it would be inappropriate (and inconsistent with comity), for this Court to issue an anti-suit injunction prohibiting Bianca from seeking access to a file in another Australian court. It is submitted that, to the extent that there is any substance to Gina’s objections, the appropriate forum in which those objections should be brought is the Supreme Court of Western Australia.

276. Bianca invokes in this regard the observations made in Wigmans v AMP Ltd [2018] NSWSC 1118 (Wigmans) (at [18]) and to the endorsement thereof by Allsop CJ in Wileypark Pty Ltd v AMP Ltd (2018) 265 FCR 1; [2018] FCAFC 143 at [11]). In particular, reference is made to the remarks of the plurality in CSR (at 395-396), in turn citing the United States Supreme Court’s decision of Hilton v Guyot (1895) 159 US 113 (at 163-164 per Gray J, delivering the opinion of the Court) in relation to the principle of comity:

“Comity”, in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.

277. Bianca submits that the observations made in Wigmans (at [18]) (to the effect that this Court should not, as a matter of policy, take steps that may interfere with or undermine the integrity of the processes of the Federal Court) are equally applicable to an application for an anti-suit injunction sought in relation to a process before the Supreme Court of another state; particularly where it is said that the injunction would undermine principles of open justice that apply in the Supreme Court of Western Australia and “the unquestionable and absolute entitlement of Supreme Court judges to determine who should have access to documents in the custody of that court”.

278. Insofar as Gina submits that Bianca is using her position as trustee to attempt to establish that she has a legitimate interest in obtaining documents from the court file (whereas the true purpose of the WA Access Application is to assist in pursuing her claims in the Martin Arbitration), Bianca says that, again, this is a serious allegation (amounting to a claim that Bianca is not being candid with the Supreme Court of Western Australia) which must be proved to a Briginshaw standard; and that the evidence does not establish this.

279. Bianca says that Gina’s submissions misapprehend the basis on which the WA Access application has been brought. Bianca says that she does not need to establish that the documents on the court file in the Fieldhouse Proceeding are Trust documents in order to obtain an order for access, noting that in Broad Construction Services (WA) Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133, Le Miere J said (at [46]):

46.   The principle of open justice does not require that all documents on the court file should be open to inspection to any person. The principle applies to the judicial process not to the court file. In general, the Court should favour allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence, whether in the course of a trial or an interlocutory hearing. There may be reasons for refusing to exercise the court’s discretion in favour of access but in the absence of any good reason to refuse access the principle of open justice favours access. All the more so when the material has been read by the judge in private and is not read out in court. If that material is not made available for inspection then the manner in which the case has been conducted will only be known to the parties. That is contrary to the principle that court proceedings should be conducted publicly and in open view.

280. Furthermore, reference is also made to Rambal v Oswal [2014] WASC 86, where Le Miere J held (at [8]):

8.   … [T]he principle of open justice is a strong reason for allowing access to documents that have been read by the court as part of the decision-making process, including the process of determining pre-trial applications. In such cases the court should lean in favour of disclosure if a legitimate interest can be shown for obtaining the documents and there is no good reason to refuse access.

281. Thus, Bianca says that, in order to obtain access to the documents on the court file in the Fieldhouse Proceeding, she need show no more than that she has a “legitimate interest” in obtaining the documents and that those documents will be produced as an incident of the open justice principle unless there is a good reason to refuse access. It is submitted that, irrespective of whether these are Trust documents, Bianca, in her capacity as trustee of the HMH Trust, plainly has a legitimate interest in obtaining the documents because those documents were read in litigation in which HFMF was the plaintiff, at a time when HFMF was controlled by HMHTI, which was an asset of the HMH Trust.

282. For that reason, it is submitted that Gina’s submissions that the documents in the Fieldhouse Proceeding are not Trust documents (because of the separate legal identity of HFMF and HMHTI, and because the Fieldhouse Proceeding was being conducted for HPPL’s benefit) are beside the point. In any event, Bianca relies on her submission as to these being Trust documents and says that there is no evidence that the Fieldhouse Proceeding was being conducted for HPPL’s benefit, to the exclusion of the HMH Trust (which is what Bianca says Gina would need to prove for the submission to have any relevance).

283. As to Gina’s contention that the documents on the court file in the Fieldhouse Proceeding will be relevant to the Martin Arbitration, Bianca says that, aside from the general contention that the Plan of 1988 was involved in the Fieldhouse Proceeding, there is nothing to support that proposition. It is submitted that, if the documents are relevant to a defence that as at the time of the present application had yet to be advanced by Gina, this could not found any inference of an improper purpose by Bianca.

284. As to the submission that the WA Access application is an “attempt to circumvent” the orders made on 5 December 2019, Bianca says that those orders put in place an iterative regime for the production of the balance of Trust documents by Gina to Bianca, but that those orders did not prohibit Bianca from seeking to obtain documents relevant to the administration of the HMH Trust (whether or not Trust documents) from other (public) sources and that the power to provide “dispensation” from Gina having to produce documents herself is not a power to “block” Bianca obtaining documents from other publicly available sources.

285. Bianca says that the WA Access Application is made not on the basis that the documents are Trust documents but, rather, on the basis that she has a legitimate interest in access (the proceedings being proceedings in which, again, a company controlled by the HMH Trust was the plaintiff) and because there is no good reason to refuse access (again, the documents comprising evidence read in open court).

286. Furthermore, it is submitted that the WA Access Application: does not involve Bianca being required to expend substantial Trust funds in obtaining copies of the documents (the expenses being limited to the prescribed fees for access and photocopying); and may well be resolved faster than any application for the same documents in this Court (not requiring any review by Gina to identify which documents if any are Trust documents, nor any potential application for dispensation in relation to production).

287. In the circumstances, it is submitted that it was entirely legitimate and consistent with Bianca’s duties as trustee to pursue the access application. It is said that, should she be granted access to the documents on the court file in the Fieldhouse Proceeding, that may have the effect of narrowing the dispute over access to documents in this Court, which should be encouraged.

288. Insofar as Gina submits that the “spectre of inconsistent findings” arises from the WA Access application, given Bianca’s position in the Martin Arbitration, Bianca says that there is no inconsistency (for reasons that I will not here set out but I have otherwise adverted to throughout the preceding).

289. Finally, insofar as Gina contends that Bianca should be restrained from pursuing the WA Access application because she did not seek judicial advice before commencing it and has not sought judicial advice on it since commencement, Bianca says that the access application does not constitute “proceedings on behalf of the Trust in a court” within the meaning of the undertaking Bianca gave to the Court on her appointment as trustee; rather, that it is an administrative process (referring, by way of example, to Maclachlan v Browne & Fairfax Media Publications Pty Ltd [2018] NSWSC 1976 at [3] per McCallum J, as her Honour then was). Accordingly, Bianca says that she was not required to seek judicial advice.

Determination re WA Access Application

290. I remain very firmly of the views that I expressed in Wigmans as to the importance of comity. Those views are only reinforced by the observations of Allsop CJ in Wileypark. I do not accept that there is an improper purpose in the making of the WA Access Application, nor do I consider that it is an attempt to circumvent the operation of the regime in place in this Court in relation to document production. To the contrary, to my mind, if it is open to Bianca through other avenues to obtain the documents sought by her (particularly where it seems to do so may be at less cost to the Trust than would otherwise be the case), then I have no difficulty with her attempting to do so. Nor do I think that it unduly vexes Gina and HPPL to be required to resist the WA Access Application in the jurisdiction in which it is made (as opposed to the vexation caused by overlapping substantive proceedings, which was the issue considered in my earlier judgment to be an abuse of process).

291. To my mind, it is a matter for the Supreme Court of Western Australia to determine whether it is appropriate to permit access by Bianca to documents on the court file in the Fieldhouse Proceeding. I will not presume to interfere with the jurisdiction of the Court in that regard.

Orders

292. For the above reasons, I make the following orders:

1. Dismiss the application by Bianca for delivery up of the Bankruptcy Transcripts, other than in respect of any Bankruptcy Transcripts presently in the actual possession of Gina.

1. Order the delivery up to Bianca by Gina of the Sceales Files and any Bankruptcy Transcripts referred to in Order 1, but stay the execution of this order pending determination of the Martin Arbitration.

2. To the extent necessary, dispense with the requirement for production by Gina of the Sceales Files and any Bankruptcy Transcripts referred to in Order 1 until after the determination of the Martin Arbitration.

3. Dismiss the application for an injunction to restrain Bianca from taking steps to pursue the WA Access Application.

4. Direct the parties to file brief written submissions within 7 days as to costs with a view to dealing with that issue on the papers.

5. Liberty to apply on 7 days’ notice.

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Decision last updated: 17 December 2020