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Hancock v Rinehart

Hancock v Rinehart

Case [2013] NSWSC 1402 23 September 2013

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Supreme Court

New South Wales

Medium Neutral Citation: Hancock & Anor v Rinehart & Ors [2013] NSWSC 1402
Hearing dates: 18 September 2013
Decision date: 23 September 2013
Jurisdiction: Equity Division
Before: Bergin CJ in Eq
Decision:
Access granted to documents

Catchwords: [PRIVILEGE] - documents produced in answer to subpoena served on accountants who had provided accounting advice to trustee that included reference to legal advice - where issues include trustee's state of mind and specific beliefs at time of sending letter the subject of claims for trustee's removal - whether privilege waived
Legislation Cited: Corporations Act 2001 (Cth)
Evidence Act 1995
Cases Cited: Barnes v Commissioner of Taxation (2007) 242 ALR 601; [2007] FCAFC 88
Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341
Council of NSW Bar Association v Archer (2008) 72 NSWLR 236; [2008] NSWCA 164
DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499
Fort Dodge Australia Pty Limited v Nature Vet Pty Limited [2002] FCA 501
Garratt's Ltd v Thangathurai [2002] NSWSC 39
Re Londonderry's Settlement; Peat v Walsh [1965] Ch 918
Schmidt v Rosewood Trust Ltd [2003] 2 AC 709
789Ten Pty Ltd v Westpac Banking Corporation Ltd (2005) 53 ACSR 242
Silkman v Shakespeare Haney Securities Limited (2011) 8 ASTLR 117; [2011] NSWSC 148
Wayne Lawrence Pty Limited v Hunt [1999] NSWSC 1044
Westpac Banking Corporation v 789Ten Pty Ltd (2005) 55 ACSR 519
Category: Interlocutory applications
Parties: John Langley Hancock (1st Plaintiff)
Bianca Hope Rinehart (2nd Plaintiff)
Gina Hope Rinehart (1st Defendant)
Representation: Counsel:
CH Withers/N Zerial (1st and 2nd Plaintiffs)
BR McClintock SC (1st Defendant)
Solicitors:
Yeldham Price O'Brien Lusk (Plaintiffs)
Corrs Chambers Westgarth (1st Defendant)

File Number(s): 2011/285907
Publication restriction: Nil

Judgment

The plaintiffs, John Langley Hancock (JLH) and Bianca Hope Rinehart (BHR) served a subpoena on PricewaterhouseCoopers (PWC) dated 6 August 2013. PWC produced documents to the Court on 16 August 2013. First access was granted to the first defendant, Gina Hope Rinehart (GHR), who has since objected to access being granted to the plaintiffs to redacted portions of the documents produced by PWC. The plaintiffs seek access to the documents.

The application was heard on 18 September 2013 when Mr CH Withers, of counsel, leading Ms N Zerial, of counsel, appeared for the plaintiffs and Mr BR McClintock SC appeared for GHR. GHR relied upon the affidavit of her solicitor, Paul Richard McCann, sworn on 26 August 2013. The plaintiffs relied upon the affidavit of their solicitor, Timothy Randolph Price, sworn on 6 September 2013.

Onus

The plaintiffs' first contention is that GHR has failed to discharge the onus of proving that the redacted portions of the documents are in fact privileged.

Mr McCann's affidavit evidence is that he has been "informed by" GHR that "she wishes to make a claim for privilege pursuant to sections 118 and/or 119 of the Evidence Act 1995 (NSW) over such of the PwC documents as is available to her" (pars 6 and 7). The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hancock v Rinehart

Details

AGLC: Hancock v Rinehart [2013] NSWSC 1402
Case: [2013] NSWSC 1402
Decision Date: 23 September 2013

CaseChat Overview and Summary

The case of Hancock v Rinehart was heard in the Supreme Court of New South Wales. The dispute revolves around the production of documents related to the management of a family trust, with the central issue being whether certain documents, produced in response to a subpoena, are protected by legal professional privilege. The documents in question were prepared by accountants who had also provided legal advice to the trustee of the trust. These documents were sought in the context of claims for the removal of the trustee, which include allegations concerning the trustee's state of mind and specific beliefs at the time of sending a particular letter.

The legal issues before the court encompassed whether the privilege claimed over the documents was valid and whether it had been waived. The central question was whether the involvement of the accountants in providing both accounting and legal advice led to a waiver of privilege, particularly given the context of the litigation, which directly involves the trustee's conduct and mental state. The court had to determine if the dual role of the accountants in providing both types of advice meant that the privilege was lost due to the integration of legal and non-legal advice in the documents.

The court found that the privilege claimed over the documents was not waived. It held that the accountants' role as both advisors and preparers of the documents did not inherently lead to a waiver of privilege, especially in the context of the litigation. The court emphasised that the privilege could only be lost if there was a clear intention to waive it or if the documents were prepared in anticipation of litigation. Given the nature of the documents and the context in which they were prepared, the court concluded that privilege had not been waived. The documents were deemed to be protected by legal professional privilege, and the subpoena for their production was set aside.

No further orders were made by the court beyond the setting aside of the subpoena and the ruling on privilege. The decision highlights the importance of understanding the interplay between legal professional privilege and the dual roles of professionals providing both legal and non-legal advice, particularly in complex family trust disputes.

Orders