Hancock v Rinehart

[2019] NSWSC 1451

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Hancock v Rinehart [2019] NSWSC 1451

Hearing dates:

1, 2, 13 May 2019, 26 and 27June 2019

Date of orders:

25 October 2019

Decision date:

25 October 2019

Jurisdiction:

Equity

Before:

Ward CJ in Eq

Decision:

(1) Order pursuant to r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW) or the inherent jurisdiction of the Court that the subpoena for production filed on behalf of the second plaintiff on 7 June 2019 which is addressed to the Proper Officer - Corrs Chambers Westgarth be set aside.
(2) Order pursuant to r 21.11 or r 34.2 of the Uniform Civil Procedure Rules 2005 (NSW) or the inherent jurisdiction of the Court that the notice to produce dated 7 June 2019 and addressed to the fourth defendant, Hancock Prospecting Pty Limited, be set aside.
(3)   By consent, order that the provision of possible documents of the Trust to the first defendant or her lawyers by the fourth defendant or the fifth defendant in accordance with these orders will not bring those documents within the scope of the orders made by Brereton J on 5 November 2018 (2018 Orders) if they would not otherwise have been caught by those orders.
(4)   Further extend the time for compliance with Order 1 of the 2018 Orders to a date to be fixed after the fourth defendant has made available for inspection by the first defendant and her legal representatives the possible documents of the HMH Trust.
(5)   Order that Order 2 of the 2018 Orders be varied to require the first defendant to use her reasonable endeavours to procure the third parties identified in the Schedule to the 2018 Orders, to provide the first defendant all documents in their possession which are likely to be documents of the HMH Trust, so that they may be reviewed by the first defendant and her legal representatives and any Trust documents produced to the second plaintiff and extend time for compliance with Order 2 to a date to be fixed when these orders are made.
(6)   Direct that the parties provide agreed short minutes of order (or, failing agreement, separate proposed short minutes of order and submissions in support) within 14 days for a regime to permit access by a computer expert on behalf of the second plaintiff to any electronic database or electronic information retention system maintained by the fourth defendant in respect of documents of the HMH Trust for the purposes of compliance with Order 3 of the 2018 Orders.
(7)   Extend the time for compliance with Order 3 of the 2018 Orders to a date to be fixed after a regime of the kind contemplated by Order 6 above is implemented.
(8)   By consent, vary Order 1(iv)(a) of the 2018 Orders to permit the production of a copy of any such documents received or held by the first defendant in some capacity other than as trustee of the HMH Trust, including as a director of the fourth defendant, which were used in the administration of the HMH Trust.
(9)   The first defendant have liberty to apply to be relieved from Order 3 of the 2015 Orders made by Brereton J on 28 May 2015 in respect of any particular document or class of documents after the fourth defendant has made available for inspection by the first defendant and her legal representatives the possible documents of the Trust falling within Order 1(iv)(a) of the 2018 Orders, including by reason of the claims brought against the first defendant in the Proceedings referred to in Order 13 below.
(10)   Stand over the notice of motion filed 12 April 2019 by the fourth and fifth defendants for determination after the inspection by the first defendant and her legal representatives of the possible documents of the Trust made available to them by HPPL for that purpose.
(11)   Order (subject to any further order of the Court) that the first defendant be indemnified from the HMH Trust in respect of the reasonable costs incurred from today’s date by her compliance with Orders 2 and 3 of the 2018 Orders and otherwise in relation to the production of documents of the HMH Trust.
(12)   Costs of the respective notices of motion be reserved.
(13)   For the avoidance of doubt, extend the time for compliance by the fourth and fifth defendants with any direction from the first defendant regarding compliance with Orders 1(a)(iv), 2 and 3 (insofar as Orders 2 and 3 concern documents referred to in Order 1(a)(iv)) of the orders of Brereton J in this proceeding dated 5 November 2018 (5 November 2018 Orders), with respect to documents relevant to the proceedings between, inter alia, the Companies and the first and second plaintiffs in Federal Court of Australia proceedings NSD 1124 of 2014 (Federal Court Proceedings) or in Supreme Court of Western Australia proceedings CIV 3041 of 2010 (consolidated with CIV 2617 of 2012) and CIV 2737 of 2013 (WA Proceedings) (or any arbitration in which any of the same allegations are litigated (Arbitration)), until the determination of the fourth and fifth defendants’ 12 April 2019 notice of motion.

Catchwords:

EQUITY – Trusts and trustees – Where former trustee ordered by Court to deliver up to new trustee all documents of the trust within her possession, custody or control – where parties seeking further orders in relation to implementation of those orders – whether further orders sought amounted to an application for judicial advice – whether there was power to give a former trustee judicial advice – whether relief sought precluded by the principles of res judicata, issue estoppel or Anshun estoppel – whether further orders amounted to “working out” orders

 

CIVIL PROCEDURE — Subpoenas — Notices to Produce – Issued during hearing – Application to set aside subpoena and notice to produce — where subpoena/notice to produce sought production of transcripts of examination of the first defendant in other proceedings – whether a legitimate forensic purpose – held to amount to a fishing expedition

  CIVIL PROCEDURE – Notice of Motion – application temporary dispensation from orders – whether application should be finally determined at this stage – whether principles of Anshun estoppel apply

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 14, 56, 135
Corporations Act 2001 (Cth), s 286
Evidence Act 1995 (NSW), s 91
Supreme Court Act 1970 (NSW), ss 22, 23, 101(2)(e)
Trustee Act 1925 (NSW), ss 5, 6, 63
Trustees Act 1962 (WA), ss 6, 7, 71, 92
Uniform Civil Procedure Rules 2005 (NSW), rr 21.11, 33.4, 34.2, 36.16, Pt 55, 55.1

Cases Cited:

Abigroup Limited v Abignano (1992) 39 FCR 74
Agusta Pty Ltd v Official Trustee in Bankruptcy as Trustee of Estates of Gustavo Ferella and Angelo Ferella [2009] NSWCA 129
Alphena Pty Ltd (in liq) v PS Securities Pty Ltd atf Joseph Family Trust [2013] NSWSC 447
Antov v Bokan [2018] NSWSC 1474
Application by Marilyn Joy Cottee [2003] NSWSC 47
Application of Macedonian Orthodox Community Church St Petka Inc (No 2) (2005) 63 NSWLR 441; [2005] NSWSC 558
Application of Uncle’s Joint Pty Ltd [2014] NSWSC 321
Armacel Pty Ltd v Smurfit Stone Container Corp (2008) 248 ALR 573; [2008] FCA 592
ASIC v Letten (No 17) (2011) 87 ACSR 155
Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317
Attorney-General v Murdoch (1856) 69 ER 910
Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201; [2007] NSWCA 104
Australian Pipeline Ltd [2006] NSWSC 1316; (2006) 60 ACSR 625
Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49
Barnden v Zulian; Barnden v Commissioner of Taxation [2018] NSWSC 1980
Blair & Perpetual Trustee Co Ltd v Curran (Adam’s will) (1939) 62 CLR 464; [1939] HCA 23
Blazevic Holdings Pty Ltd v Warwick S Grave [2011] NSWSC 1504
Brimaud v Honeysett Instant Print Pty Limited (1988) 217 ALR 44
Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
Camperdown Prime Pty Ltd [2018] NSWSC 106
Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853
Castillon v P&O Ports Ltd [2008] 2 Qd R 219; [2007] QCA 364
Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245; [2010] NSWCA 33
Chandless-Chandless v Nicholson [1942] 2 KB 321
Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226; [1998] HCA 4
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Dimitrovski v Australian Executor Trustees Ltd [2014] NSWCA 68
DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17
DSV Silo-und Verwaltungsgesellschaft mbH v Owners of The Sennar (The Sennar) (No 2) [1985] 1 WLR 490 (HL)
Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593
Hancock v Rinehart (Costs) [2016] NSWSC 11
Hancock v Rinehart (Trust documents) [2018] NSWSC 1684
Hancock v Rinehart [2015] NSWSC 646
Henderson v Henderson (1843) 3 Hare 100; 67 ER 313
In re Beddoe [1893] 1 Ch 547
In re Grimthorpe [1958] Ch 615
In the matter of Plantation Outdoor Kitchens Pty Ltd (In Liq) [2019] NSWSC 925
In the matter of the Bird Charitable Trust (2012) (1) JLR 62
Johnson v Gore Wood & Co [2002] 2 AC 1; [2002] 1 All ER 481
JW Broomhead (Vic) Pty Ltd (In Liq) v J W Broomhead Pty Ltd [1985] VR 891
Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213
Killen v Leigo (Supreme Court (NSW), Young J, 10 March 1997, unrep)
Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34
Ku-Ring-Gai Council v Labordus [2007] NSWLEC 834
Laratae v Deans Pty Ltd [2016] VSCA 71
Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd (2008) 74 NSWLR 550; [2008] NSWSC 1344
Lewis v Condon (2013) 85 NSWLR 99; [2013] NSWCA 204
Light v William West & Sons Ltd [1926] 2 KB 238
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar (2008) 237 CLR 66; [2008] HCA 42
Metwally v University of Wollongong (1985) 50 ALR 58
Muriti v Prendergast [2005] NSWSC 281
Nolan v Collie (2003) 7 VR 287; [2003] VSCA 39
Park & Muller (liquidators of LM Investment Management Ltd) v Whyte [2015] QSC 287
Penrice v Williams (1883) 23 Ch D 353
Phillips v Walsh (1990) 20 NSWLR 206
Polo Enterprises Australia Pty Ltd ABN 30117622 v Pinctada Hotels and Resorts Pty Ltd [2015] NSWSC 756
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45
Radmanovich v Nedeljkovic [2002] NSWSC 212
Re Baylily Pty Ltd [2010] NSWSC 6
Re Blundell (1899) 40 Ch D 370
Re Estate Late Chow Cho-Poon; Application for judicial advice [2013] NSWSC 844
Re Porteous [1949] VLR 383; [1950] ALR 89
Re Suco Gold Pty Ltd (In Liq) (1983) 7 ACLR 873
Reichel v Magrath (1889) 14 App Cas 665
Rinehart atf The Hope Margaret Hancock Trust v Rinehart [2017] NSWSC 803
Rinehart v Rinehart [2018] NSWSC 1102
Rinehart v Rinehart [2019] NSWCA 54
Rinehart v Rinehart [2019] NSWSC 759
Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; [2001] NSWCA 142
Rojo Building Pty Ltd v Jillcris Pty Ltd [2007] NSWCA 68
Ron Kingham Real Estate Pty Ltd v Edgar [1999] 2 Qd R 439
RWG Management Ltd v Commissioner for Corporate Affairs [1985] VR 385
Savage v Union Bank of Australia Ltd (1906) 3 CLR 1170; [1906] HCA 37
Schmidt v Rosewood Trust Ltd [2003] 2 All ER 76; [2003] 2 AC 709
Sertari Pty Ltd v Quakers Hill SPV Pty Ltd [2014] NSWCA 340
Telesto Investments Ltd v UBS AG [2012] NSWSC 44; (2012) 262 FLR 119
The Hancock Family Memorial Foundation Ltd v Fieldhouse (2005) 30 WAR 398; [2005] WASCA 93
Tiger v Barclays Bank Ltd [1952] 1 All ER 85
Timbercorp Finance Pty Ltd (In Liq) v Collins [2016] VSCA 128
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319; [1945] HCA 37
Woollahra Municipal Council v Baranov [2006] NSWLEC 97; (2006) 144 LGERA 96

Texts Cited:

A Zuckerman, Zuckerman on Civil Procedure: Principles of Practice (3rd ed, 2013, Sweet & Maxwell)
JD Heydon and MJ Leeming, Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis)

Category:

Procedural and other rulings

Parties:

John Langley Hancock (First Plaintiff)
Bianca Hope Rinehart (Second Plaintiff)
Gina Hope Rinehart (First Defendant)
Ginia Hope Frances Rinehart (Second Defendant)
Hope Rinehart Welker (third defendant) 
Hancock Prospecting Pty Ltd (fourth defendant) 
Hope Downs Iron Ore Pty Ltd (fifth defendant)

Representation:

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

  Solicitors:
Yeldham Price O’Brien Lusk (Plaintiffs)
Speed & Stracey (First Defendant)
Corrs Chambers Westgarth (Fourth and Fifth Defendants)

File Number(s):

2011/285907

Publication restriction:

Nil

Judgment

1. HER HONOUR: Before me for hearing commencing on 1 May 2019 (heard by me across the space of some four or five days and interspersed by other applications) were applications by each of the first defendant (Ms Gina Rinehart), on the one hand, and the fourth and fifth defendants (Hancock Prospecting Pty Ltd (HPPL) and Hope Downs Iron Ore Pty Ltd (HDIO)), on the other hand, seeking orders or directions in relation to certain orders made by Brereton JA (his Honour having heard the matter at first instance before his appointment as a judge of appeal) (the 2018 Orders) in relation to the production of documents to the second plaintiff (Ms Bianca Rinehart) in her capacity as trustee of the Hope Margaret Hancock Trust (the HMH Trust) (see Hancock v Rinehart (Trust documents) [2018] NSWSC 1684, to which I will refer as the 2018 Decision).

Background

2. The background to the present dispute has been set out in previous decisions (including a decision of the Court of Appeal earlier this year in Rinehart v Rinehart [2019] NSWCA 54, to which I will refer as the 2019 Appeal Decision) but it is useful here briefly to recap the events that have led to the present applications. In so doing, I will refer to the Rinehart family members by their first names (meaning no disrespect) and I will adopt the abbreviations used in my previous judgments in this and other proceedings between the parties (see Rinehart atf The Hope Margaret Hancock Trust v Rinehart [2017] NSWSC 803; Rinehart v Rinehart [2018] NSWSC 1102 (2018 Rinehart v Rinehart); Rinehart v Rinehart [2019] NSWSC 759 (2019 Rinehart v Rinehart)).

3. The HMH Trust was established in 1988. The nature of the HMH Trust was explained by Brereton J in Hancock v Rinehart [2015] NSWSC 646 (the 2015 Decision) (at [2]-[5]) as follows:

Under the Trust Deed, Mr Hancock was the trustee of the Trust during his lifetime; Mrs Rinehart [Gina] became trustee upon his death in March 1992. Prior to Mr Hancock’s death, the Trust held 3000 A class ordinary shares (representing 50% of the total issued ordinary shares) and 333 cumulative special shares (representing 50% of the total issued cumulative special shares) in HPPL, which had been transmitted to Mr Hancock from the estate of his late wife Hope Margaret Hancock. Upon his death, under clause 4 of the Trust Deed, the trustee stood possessed of such of those shares as comprised 17.7% of the total issued ordinary shares (which corresponds to 1062 of the A class shares) and 17.7% of the total issued cumulative special shares (corresponding to 118 of those shares) for Mrs Rinehart absolutely. Under clause 5, the income from the balance of the shares was to be applied by the trustee “for the education, advancement and benefit of the children of Mrs Rinehart”. Under clause 6, the Trust was to vest on the date on which the youngest of Mrs Rinehart’s surviving children attained the age of 25 years (which would have been 6 September 2011), whereupon the trustee was to stand possessed of the shares to which Mrs Rinehart had not become entitled under clause 4 (which by deduction ought to have been 1938 A class shares - representing 32.3% of the issued ordinary capital - and 215 cumulative special shares), for Mrs Rinehart’s children.

The deed of amendment of 24 August 1995 amended the Trust Deed extensively by inserting additional powers, discretions and protections for the trustee, but did not alter its substantive provisions.

The Trust property now comprises 1407 of the 3000 A class shares, 51,584 D class preference shares, and 156 cumulative special shares, in HPPL. Just how its shareholding came to be 1407 A class and 156 cumulative special shares, rather than 1938 and 215 respectively, is not explained by the evidence, but was not the subject of any issue in the proceedings. In round terms, the assets of the Trust are said to be worth about $5 billion.

The Trust’s only income of significance is dividends paid by HPPL in respect of those shares. In 2010-11, the Trust received dividends of $2,468,312; in 2011-12, $1,571,496 and in 2012-13, $3,498,423. The Trust made distributions to the beneficiaries of $1,589,473 in 2010-11, $1,286,570 in 2011-12, and $3,554,998 in 2012-13.

4. Gina submits that the activities of the HMH Trust have been limited, principally being the passive receipt of dividends from HPPL and the distribution of funds to, and payment of expenses for, beneficiaries (see T 26.25ff; and [27] of the affidavit sworn 18 April 2019 of Mr Hugh Robert Scott, a director of Speed and Stracey Lawyers, the solicitors retained to act on behalf of Gina in these proceedings). Bianca takes issue with that description of the HMH Trust but it is not disputed that the principal asset of the HMH Trust is a minority shareholding (about 24%) in HPPL, the ultimate holding company of HDIO. HDIO has an interest in an iron ore mining project in Western Australia. Gina is the majority shareholder of HPPL.

5. Until 29 May 2015, when she retired as trustee in the circumstances recounted by Brereton J in the 2015 Decision (at [32]-[38]; [43]; [223]-[232]), Gina was the trustee of the HMH Trust. Gina was replaced as trustee, by order of Brereton J made on 28 May 2015, by Bianca.

6. Bianca maintains that the decision of Gina, communicated to the Court on 1 October 2013 (one week before the hearing of proceedings seeking orders for her removal as trustee was to commence), to resign as trustee amounted to an implicit admission that Gina had engaged in “egregious misconduct” as trustee; and it is noted that Gina agreed to pay indemnity costs of the application to remove her as trustee. Gina cavils with the former but accepts the latter.

7. At the time Bianca was appointed as trustee of the HMH Trust (on 28 May 2015), an order was made by Brereton J (Order 3, which Gina accepts is a final order – T 20.44) that Gina deliver up to Bianca within 28 days all documents of the HMH Trust in her possession, custody or power (including all documents that had been referred to in paragraph 3 of the claims for relief in the third further amended statement of claim – see below at [8]). His Honour expressly gave Gina liberty to apply to be relieved from Order 3 in respect of “any particular document or class of documents” (Order 4). I refer to the orders made by Brereton J on 28 May 2015 as the 2015 Orders. Relevantly, they included orders in the following terms:

3.   The first defendant [Gina] deliver up to the second plaintiff [Bianca] 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.

4.   The first defendant have liberty to apply to be relieved from order 3 in respect of any particular document or class of documents.

5.   An account be taken of the property of the Trust for the period 1 September 2006 to date, including of all transactions entered into by the first defendant in her capacity as trustee of the Trust.

8. The claims for relief in paragraph 3 of the third further amended statement of claim were, in summary, for Gina to provide to the plaintiffs various accounts of the HMH Trust, accounts of HPPL, tax returns of the HMH Trust, resolutions executed by the trustee pursuant to particular clauses of the Trust Deed and “1995 Consolidation”, resolutions authorising the transfer of property the subject of the HMH Trust to Gina or any person or entity, and all documents otherwise referred to in [58] of the pleading (documents spanning the period from 1988 to date). Paragraph 58 of the pleading listed sixteen categories of documents with which it was alleged that the plaintiffs (and the third defendant to those proceedings), had an entitlement, as beneficiaries, to be furnished.

8. Following the making of the 2015 Orders, various documents were produced to Bianca. In this regard, Gina’s solicitor, Mr Scott, refers to an affidavit sworn 19 September 2015 in these proceedings (when the matter was before Brereton J) by Mr Bradley George Ross, the Chief Legal Counsel of HPPL, in which Mr Ross deposed to the process in which documents were collated and reviewed for the purpose of production in compliance with the 2015 Orders (the Ross Affidavit). In particular, he deposed to over 200 hardcopy boxes of documents and some 30,000 emails having been reviewed, with at least 78 folders of documents being produced.

9. Complaint was made by Bianca as to the adequacy of production by Gina (a recurrent complaint, as evident from the debate on the hearing of the present applications). On 3 September 2015, the plaintiffs filed a notice of motion seeking to enforce the delivery up order (the September 2015 Motion) on the basis that delivery up of the documents was incomplete. The hearing of the September 2015 Motion (and related applications) took place before Brereton J on seven hearing days over the following three years. Bianca says that the delays were occasioned primarily by new trust documents coming into the plaintiffs’ hands on successive occasions through the Court process, which documents were then relied upon to establish default by Gina in compliance with her obligation to produce the documents “notwithstanding her [Gina’s] insistence that production was nearly complete”. Whatever be the cause, it is fair to say that there was considerable argument over an extended period as to what was required by the production orders (much of the focus of which being, as was made clear by Brereton J in his subsequent reasons, on what constituted a “trust document”).

The 2018 Decision

11. In November 2018, Brereton J found that Gina had adopted and acted on a misconceived view of the scope of the delivery up obligation (see at [103] of the 2018 Decision) and in those circumstances, having regard to the complexity of the exercise as it appeared to his Honour, and to the issues that had arisen in respect of compliance with the delivery up order, his Honour concluded that an order that Gina verify her compliance with the delivery up order was “amply warranted” (see at [102]).

12. In the course of his Honour’s judgment, his Honour noted the evidence that the production of trust documents was complex, given that the documents spanned a period of more than 20 years (at [83]); and that the core of the dispute as to the adequacy of Gina’s compliance was the contention about what fell within the scope of the delivery up order (and, in particular, what is a “document of the Trust”). His Honour noted that no dispute had arisen about the classes of documents specifically referred to in the statement of claim, saying that the dispute related to the “more nebulous and wider description of “documents of the Trust””, the content of which class of document had not been comprehensively defined in the authorities (see at [30]).

13. His Honour eschewed a narrow view of the obligation of an outgoing trustee (i.e., here, Gina) to its successor in this regard (at [41]), summarising that obligation 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” and noting the rationale for this obligation as being 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 (at [41]).

14. Brereton J considered that Gina had proceeded on a misconceived basis insofar as she had proceeded on the basis that documents disclosing deliberations on her part in her trustee capacity, but which did not reflect or refer to a decision taken by her in that capacity, and documents recording communications of the trustee with beneficiaries (save where such a document records a decision made by the trustee), were not “documents of the Trust” which she must deliver up ([42]). His Honour also noted in that context various complexities that presented in the case (see [45]-[46]) and proceeded to address in some detail various classes of documents which had been the subject of contention (at [51]-[81]).

15. Relevantly, particularly in light of some of the argument on the present applications, his Honour considered that the determination that Mr Ross had made as to certain classes of documents not being trust documents was wholly or partly misconceived (at [83]-[84]) but that the search and review methodology that Mr Ross had established was a reasonable approach; that it was not reasonable to expect every document held by HPPL to be reviewed; and that it was inevitable that such an approach would “initially” not capture everything within the scope of the delivery up order (at [85]). It is useful here to set out precisely what his Honour said in that regard (at [85]):

Mr Ross … made inquiries as to where any such documents might be found. I accept that it is not reasonable to expect every document held by HPPL (stored in some 4,100 standard archive boxes) to be reviewed. Use of the filing system (albeit imperfect), and keywords to search it, to determine the likely location of potential trust documents, was a reasonable approach. Some 200 boxes of hard copy files and some 30,000 emails and attachments were searched, over approximately 2,500 hours of labour (not including external lawyers). Ultimately, a total of approximately 68 folders of documents has been produced, comprising approximately 30,000 pages, plus items such as cheque books and deposit books. Given the enormity of the exercise, the search and review methodology established was in my view a reasonable approach, and it is inevitable that it would initially not capture everything within the scope of the delivery up order. [my emphasis]

16. His Honour nevertheless found that it had wrongly been determined 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) (at [83]-[84]):

1. documents disclosing deliberations on the part of 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 against her or actual court proceedings against her by them, being documents the subject of legal professional privilege that belong to her in her capacity as trustee;

3. documents that are confidential in nature, in respect of which in her trustee capacity Gina did not hold the confidentiality on behalf of the plaintiffs as 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 HMHT Investments Pty Ltd (HMHTI) or the HMH Trust.

17. Also of relevance to the present application is that his Honour accepted that it was not unreasonable for Gina to have delegated the task of implementing the delivery up order to Mr Ross (see at [100]) (a criticism to that effect here seemingly being renewed by Bianca) and was not comfortably satisfied that there had not been a good faith attempt on the part of Gina at compliance, his Honour noting that such a finding is “a very serious one” (see at [101]).

18. His Honour nevertheless went on to state (and emphasis is placed by Bianca on this observation) (at [106]) that the obligation to comply with the delivery up order was that of Gina personally and that she could not delegate the responsibility of compliance, though accepting that it was reasonable for many of the tasks to be delegated. His Honour concluded in that regard that:

… the obligation to deliver up is an obligation of the trustee; and it is her personal obligation; and she must personally provide the affidavit verifying that it has been done, although it will necessarily to some extent be based on inquiries of and information provided by others.

19. His Honour expressly declined to make an order for production but, instead, required an affidavit verifying delivery up in compliance with the original order, and explained that in so doing this would clarify the scope of the order (see [110]). His Honour then set out, by reference to the claims made for production of documents, those falling within the scope of the description “documents of the Trust” (from [111]-[118]) and made further observations in relation to the documents (from [119]-[135]).

20. At [141], his Honour summarised 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.

21. Pausing here, a large part of the argument on the present application goes to the manner in which the task of determining what documents fall within the fourth of those categories (namely, identifying what documents falling within the category of documents received or held by Gina in some capacity other than as trustee were “used in the administration of the Trust”) is to be progressed consistently with the requirement that Gina verify that all reasonable searches and enquiries have been undertaken.

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

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 the first defendant 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 she 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 HMHT Investments Pty Ltd 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 the first defendant [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).

23. As I apprehend it (though I accept that Bianca is unlikely to share this characterisation of the position), the core of the issue that has arisen since the 2018 Decision in relation to the category of documents identified by his Honour at [141(4)] is as to how Gina can be confident that all reasonable enquiries and searches have been taken to identify and deliver up those documents so as to be able to be in a position properly to verify production in accordance with his Honour’s orders.

24. Such a concern is evident from the inference I was invited to draw in the context of the present applications that Bianca “is interested in making the production task as difficult and uncertain as possible for [Gina], with a view to seeking leave to cross-examine her, rather than facilitating the process in a way which would enable all trust documents to be produced sooner rather than later” and that Bianca, in effect, is here seeking to set Gina up to fail in that process. No doubt the concerns on the part of Gina’s side in this regard can only have been fuelled by submissions of the kind here made by Bianca emphasising that the orders requiring Gina to verify her compliance with the 2015 Order for production on affidavit were intended to ensure (in Brereton J’s words) that Gina “assiduously turn [her] mind to punctilious compliance with the order and verify such compliance, under penalty of perjury”.

25. I explain in due course the competing positions taken by the parties as to the process or methodology by which the production of documents in compliance with his Honour’s orders is proposed to be undertaken by Gina (with the advice and assistance of her legal representatives, of course). Suffice it here to note that I consider that there is some criticism that might fairly be levelled against both sides in relation to the current impasse but that the more pertinent issue is as to how best now to progress the production process (which has currently stalled and has been stalled – not least because of the present applications – for most of this year).

26. Turning back then to the orders made by Brereton J in November 2018 (the 2018 Orders), they were as follows (see at [145]):

1.   By 5 December 2018, the first defendant [Gina] make, file and serve an affidavit:

(a)   Verifying that (subject to any exceptions referred to in (b)) she has, having made all reasonable enquiries and searches, to the best of her knowledge, information and belief, delivered up or provided to the second plaintiff 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, which were:

(i)   documents received or held by her or on her behalf exclusively in her trustee capacity;

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

(iii)   documents received or held by her or on her behalf in her trustee capacity, jointly with another entity or entities (in respect of which copies will suffice); and

(iv)   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;

and including those described in this judgment as being within the scope of the delivery up order.

(b)   Stating any exceptions thereto, with as much particularity as possible;

(c)   Stating that she has not withheld, in whole or in part, any documents which otherwise satisfy the criteria in (a) on the basis that they are:

(i)   Documents which while disclosing deliberations on the part of the first defendant in her Trustee capacity, do not reflect or refer to a decision taken by her in that capacity;

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

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

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

(v)   Documents concerning only the affairs of companies and entitles in the HPPL Group other than HMHT Investments Pty Ltd or the Trust; and

(vi)   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 the first defendant 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).

2.   By 5 December 2018, the first defendant [Gina] procure that any third party who possesses or is likely to possess documents of the Trust, including those identified in the Schedule, deliver up such documents to the second plaintiff, including by providing a written direction and consent to them to do so, and provide to the second plaintiff a copy of such direction and any response thereto.

3.   By 5 December 2018, the first defendant [Gina] do all things, execute all documents, provide all information and give all directions and consents necessary or convenient to enable the second plaintiff to have access to any electronic database or other electronic information retention system that was maintained by or for the Trust.

4.   All parties have liberty to apply, by arrangement with my associate, in the event of any difficulty arising in the interpretation, application or implementation of orders (1), (2) and (3).

5.   The plaintiffs have liberty to apply to examine the first defendant [Gina] viva voce on her affidavit verifying compliance referred to in order (1).

6.   Time for the plaintiffs to apply to examine the first defendant viva voce or upon interrogatories in relation to the account furnished by her pursuant to order 6 made on 28 May 2015 be extended to a date 28 days after service of the affidavit referred to in order (1).

7.   The first defendant [Gina] pay the plaintiffs’ costs of the 3 September 2015 motion.

8.   The first defendant’s [Gina]’s motion filed on 23 September 2015 be dismissed with costs.

27. The Schedule to which reference is made in Order 2 listed sixteen different persons and firms, including PricewaterhouseCoopers (PwC), Sceales and Company (Sceales) and Freehill, Hollingdale & Page (Freehills); and various counsel (including Mr John Gilmour QC).

28. As adverted to earlier, a large part (though not all) of the relief now sought goes to the identification of the category of documents comprised in Order 1(a)(iv). It is complicated not least because it seems that most if not all of the documents now sought to be identified are in the possession of HPPL (and may, indeed, comprise its own documents); HPPL being a separate corporate entity (albeit one of which Gina is the majority shareholder) and HPPL currently being sued by Bianca (and her brother, John) in other proceedings brought by Bianca and John in their personal capacity. (Hence, the application now brought by HPPL, to which I will refer shortly.)

29. A feature of the hearing of the present applications was, on the one hand, the persistence of the plaintiffs in seeking the provision at this stage (i.e., prior to completion of the production of the documents – that being the time when this is presently required under the 2018 Orders) of an affidavit by Gina as to the documents used by her in the course of administration of the HMH Trust (as had been sought, unsuccessfully, when the matter was before Brereton J) and, on the other hand, the apparent concern by those representing Gina (understandable, given the requirement for verification in due course by her as to this issue and the recognition by his Honour that the plaintiffs may seek to cross-examine Gina on her verification affidavit – see Order 5 of the 2018 Orders) to be clear as to what is encompassed by the expression “all reasonable enquiries and searches” in the context of the requirement for verification of production by Gina of all documents “received or held by [Gina] in some capacity other than as trustee, including as a director of HPPL, which were used in the administration of the trust” (see Order 1(a)(iv)).

27. It is obvious that there is a great level of suspicion or mistrust harboured in the plaintiffs’ camp, so to speak, as to the process now proposed in relation to the production of documents by Gina (no doubt fuelled by deficiencies or inadequacies in relation to production of documents in the past, notwithstanding the explanation for those deficiencies or inadequacies which was accepted by Brereton J); and much emphasis was placed on the existing “information asymmetry” between the outgoing (Gina) and present (Bianca) trustees. However, while such suspicion may be understandable given the history of the matter to date, it is unhelpful insofar as any attempt now to put in place a regime (for what was recognised by Brereton J to be a complicated task in relation to the production of trust documents in the present case) is concerned. Further, it is difficult to avoid the conclusion that the plaintiffs are anxious for Gina to go on oath sooner rather than later in order to explain matters in relation to the administration of the HMH Trust since 1988 so that she may be cross-examined on that evidence (since otherwise there seems no reason for such a course again to have been urged upon the Court in the context of the present applications); though I accept that Counsel for the plaintiffs in the course of argument seemed to eschew any intention of ambush in that regard (Counsel accepting that issue could not reasonably be taken in cross-examination of Gina as to deficiencies in production of which the plaintiffs were aware but to which they had not drawn attention in the course of the production process).

28. On Gina’s part, her Counsel emphasised more than once a willingness for there to be an “open and transparent” process of production of documents (an “iterative process” as so described), about which it is fair to say that the plaintiffs exhibited no little scepticism but which seemed to me to be consistent with the manner in which the proposed regime for production had now been put forward and how the process was now being approached (whatever may have been the stance in the past – though in this regard it should be emphasised that even then Brereton J made clear that he considered the approach that had been taken by Mr Ross, though misconceived in part, to have been a reasonable approach). Counsel for Gina also fervently expressed the (understandable) wish that the process of reviewing (and to some extent re-reviewing) large numbers of documents for the purpose of compliance with the production orders should only be undertaken once (i.e., that, so far as possible, there be an avoidance of any need for a wholesale re-review of the process at some later point).

29. Another notable feature of the present applications is the extraordinary time and cost that it is now estimated will be required for the process of production of the documents to be undertaken if there is no modification of, or dispensation from, the orders as they presently stand (although for the plaintiffs’ part they do not accept that those estimates are reliable indications of the time and cost that would necessarily be involved in the review process and are critical of some of the assumptions there involved). I refer to this aspect of the matter in more detail in due course.

Application for leave to appeal from Brereton J’s orders

33. Following the making by Brereton J of the 2018 Orders, an application was foreshadowed by Gina for leave to appeal therefrom. In light of that anticipated application (and having regard to the time specified for compliance with the 2018 Orders), on 11 December 2018, I ordered that the operation of Orders 1, 2, 3 and 9 of the 2018 Orders be stayed until the later of 14 days after the determination of Gina’s application for leave to appeal and 14 days after any subsequent appeal (the latter alternative date being set against the possibility that there might not be a concurrent hearing of the application for leave to appeal and any appeal itself, since, at that stage, it was not known whether the matter would be dealt with by way of a concurrent hearing in the Court of Appeal).

34. On that occasion I noted (among other things) that, without admission and without prejudice to the contention of HPPL and HDIO, that the company documents were not documents of Gina or of the Trust, and that HPPL and HDIO would take steps to locate and collate those documents requested by Gina (without admission on Gina’s part), through her lawyers, to be made available in order to enable Gina to identify those documents in HPPL or HDIO’s custody which were received or created by her in any capacity while she was trustee of the HMH Trust (and which would fall within Order 1(a)(iv) of the 2018 Orders). (As explained by Mr Scott in his affidavit on the present applications, that process ceased once the likely cost of that process was appreciated – which appreciation then led to the making of the present applications.)

35. The application for leave to appeal from the 2018 Orders was heard on 20 March 2019; and leave to appeal was refused on 27 March 2019. Applications for special leave to appeal, filed by Gina and HPPL respectively, have since been refused by the High Court ([2019] HCASL 242; [2019] HCASL 243). Hence, the submissions made for Bianca to the effect that it is now too late to seek a variation of any final orders made by Brereton J in 2018, whether or not those orders may have been in error for any reason.

Present applications

36. It was against the above background that, on 12 April 2019, each of Gina, on the one hand, and HPPL/HDIO, on the other, filed the notices of motion that are presently before me.

Gina’s notice of motion filed 12 April 2019

37. The relief sought by Gina in her notice of motion filed 12 April 2019, as subsequently amended in the form of the amended short minutes of order handed up on 26 June 2019 during the course of the hearing of that notice of motion (and hence not as extensive in some respects as set out in the notice of motion itself), is as follows:

1.   Subject to further order, order that for the purposes of complying with the orders referred to in Schedule A [the 2018 Orders] the first defendant is justified in requesting the fourth defendant, Hancock Prospecting Pty Ltd (HPPL), to make available for inspection by her or her legal representatives the following classes of documents:

a.   the 200 boxes of hard copy files and 30,000 emails and attachments which are referred to at [85] of the 2018 Judgment; and

b.   any further boxes of hard copy files and electronic records created prior to 25 May 2015 that HPPL identifies as containing or possibly containing the following classes of documents:

i.   the classes of documents set out [at] [83] of the 2018 Judgment that were considered by the first defendant or her legal representatives not to be documents of the Trust;

ii.   the classes of documents addressed in [111]-[118] of the 2018 Judgment, insofar as Brereton J identifies those classes of documents as being documents of the Trust;

iii.   the classes of documents provided to the solicitors for the plaintiffs on 6 June 2019 pursuant to the orders of Ward CJ in Eq made 13 May 2019;

iv.   any other class of documents relating to transactions and other events, as notified to HPPL by the first defendant or her legal representatives, as being relevant to the Trust (as approved by the Court). [Prayer 1]

2.   Order that the provision of the documents referred to in Order 1, to the first defendant or her lawyers by HPPL or the fifth defendants in accordance with these orders will not bring those documents within the scope of the orders made by Brereton J on 5 November 2018 (2018 Orders) if they would not otherwise have been caught by those orders. [Prayer 4]

3.   Order that the first defendant be relieved from producing all documents of the Trust which are documents of the Trust only because they evidence or record communications between:

a.   the first defendant any [sic; and] any of the plaintiffs, second defendant and third defendant;

b.   the first defendant and any officer or employee of HPPL,

in relation to trust districutions [sic; distributions], save for distributions paid to the beneficiaries of the Trust in excess of $5,000 as referred to in:

c.   Annexures N, O, P, Q, R, T and V to the Sumner Hall Associated [sic; Associates] Pty Ltd report dated 18 September 2015; and

d.   Exhibit HRS-1 at pages 530 to 540 to the Affidavit of Hugh Robert Scott dated 18 April 2019. [Prayer 7]

4.   Vary order 2 of the 2018 Orders to read as follows:

“By [date to be specified], the first defendant use her reasonable endeavours to procure the third parties identified in the Schedule to the 2018 Orders, to provide the first defendant all documents in their possession which are likely to be documents of the Trust, so that they may be reviewed by the first defendant and her legal representatives and any Trust documents produced to the second plaintiff”.

[Prayers 9 and 10]

5.   Subject to further order, order or direct that for the purpose of complying with order 4, the first defendant is to write to each of the third parties identified in the Schedule to the 2018 Orders and Tottle Partners, in the terms set out in annexure A to these orders. [Prayer 11]

6.   Order that the first defendant is to be indemnified from the Trust in respect of her compliance with the orders made by Brereton J on 28 May 2015, the 2018 Orders and these orders, for all costs reasonably incurred from the date of these orders. [Prayers 13, 16, 19]

7.   Order that for the purposes of complying with order 1(a)(iv) of the 2018 Orders, the first defendant is justified in producing to the second defendant an electronic file of the full transaction listing of general ledger of the accounts of Trust which were maintained by HPPL. [Prayer 14]

8.   Order that the first defendant may produce copies of any documents of the kind identified in order 1(a)(iv) of the 2018 Orders. [Prayer 17]

9.   Liberty to apply, including to be relieved from order 3 of the 2015 Orders in respect of any particular document or class of documents at any time after HPPL has made available for inspection by the first defendant and her legal representatives the documents referred to in order 1 of these orders. [Prayer 18]

38. Of that relief, the relief claimed in prayers 4 and 17 of the 12 April 2019 notice of motion (i.e., the relief at items 2 and 8 above) was not ultimately contested by Bianca (see T 11.5ff) and those orders, the purpose of which I identify below, will now be made.

39. By prayer 4, Gina seeks a direction that the provision of the possible documents of the HMH Trust to her or her legal representatives would not render those documents as being trust documents, so as to bring them within the scope of the production orders, if those documents would not otherwise be within scope (consistent with the fourth notation to the orders that I made on 11 December 2018). The plaintiffs sensibly take no issue with such an order (describing it as being to the effect that the mere provision by HPPL of a document to Gina or her lawyers will not make the document a “Trust document”), though they considered it unnecessary in light of the notation made by me to the orders of 11 December 2018 (see [32] above). The order is sought by Gina for an abundance of caution and, lest there be any doubt in the future, I consider it appropriate formally to make the order sought.

40. By prayer 17, Gina seeks an order to the effect that documents falling within Order 1(a)(iv) of the 2018 Orders may be delivered by way of copy rather than the original. It is noted that, in the 2019 Appeal Decision, the Court (Basten JA and Simpson AJA) (at [47]) suggested that a variation could readily be sought such that only copies of document need be provided (such as, for example, where the originals might belong to HPPL). The position of the plaintiffs on the present application is that, while strictly speaking this is a variation of Brereton J’s orders, they are prepared to consent to that variation (which they accept is consistent with [47] of the 2019 Appeal Decision). HPPL/HDIO, for their part, support such an order, considering it to allow a practical position in which, if there is production, HPPL retains the documents and Gina causes a copy to be produced to Bianca. Again, I consider that such an order is sensible and will make it accordingly.

41. As to the other (contested) relief sought in Gina’s motion (as amended), it may be summarised as encompassing the following: first, a direction or order as to the means by which Gina may discharge the orders requiring her to deliver up to Bianca all documents of the HMH Trust by making reasonable enquiries and taking all reasonable steps (and concerning the scope of documents which Gina and her legal representatives must review to discharge the obligations under the 2015 Orders and 2018 Orders) (prayer 1); second, a direction or order concerning some dispensation as to the requirement for Gina to produce personal correspondence between Gina and her children (prayer 7); third, directions concerning communications with third parties (prayers 9-11); fourth, orders relating to the production of the electronic database of the HMH Trust (prayer 14); fifth, timetabling orders and the grant of liberty to apply (prayers 11 and 18); and, sixth, orders in relation to the costs of production for which Gina seeks indemnification (prayers 13, 16 and 19). As to the last, I note that Gina’s Counsel made clear during the course of the hearing of the present applications that she does not now press for an indemnity in relation to the past costs incurred in producing documents of the HMH Trust (i.e., in the process that was found by Brereton J to have proceeded in part on a misconception of what were “Trust documents”) (see T 74.15) and, hence, argument as to whether those costs have already been dealt with by Brereton J (as the plaintiffs maintain) does not now need to be determined.

42. As to the timetabling matters, prayer 8 of the 12 April 2019 motion has in effect been superseded by Order 2 of the orders made on 4 April 2019 (when I vacated the time for production until further order) (and in any event it was not included in the revised short minutes of order that updated the relief sought by Gina’s notice of motion – see below). It is submitted for Gina that before a time for compliance with the orders of production is set it will be necessary for the possible documents of the HMH Trust received from HPPL to have been made available to Gina and her legal representatives for inspection by them. Bianca does not accept this proposition. For Bianca, a very short timetable was put forward in this regard (largely corresponding to the timeframe originally contemplated by Brereton J).

HPPL/HDIO’s notice of motion filed 12 April 2019

43. HPPL/HDIO, by their corresponding notice of motion, filed on the same day as Gina’s notice of motion, seek what they describe as “temporary dispensation” from any requirement to comply with a direction from Gina regarding compliance with (or to relieve Gina from compliance with) Orders 1(a)(iv), 2 and 3 (insofar as Orders 2 and 3 overlap with Order 1(a)(iv)) of the 2018 Orders).

44. HPPL and HDIO’s primary contention is that their notice of motion should be stood over until such time as a sufficient selection of documents caught by Order 1(a)(iv) of the 2018 Orders have been identified; i.e., that it ought not be determined in the abstract, without evidence, and without reference to specific documents or classes of documents.

45. If, however, the motion is to be determined now, then HPPL and HDIO submit that it should be granted because: they have standing to bring the motion; the timing of the motion is appropriate in the sense that it has not been relevantly delayed; and, they submit, they should not be required to comply with any direction from Gina (or Gina should not be required to give a direction) which prioritises (over what they maintain are HPPL and HDIO’s own rights and best interests) the interests of an adverse litigant (i.e., Bianca) who is suing HPPL and HDIO in other litigation for all of their major assets.

20 June 2019 notice of motion by Gina to set aside subpoena/notices to produce issued by Bianca

46. In June 2019, at a time when the April notices of motion were part-heard but the hearing had been adjourned (in accordance with the regime that I had then envisaged might be able to be put in place to facilitate a more timely production of the HMH Trust documents), Bianca invoked the compulsory processes of the Court, issuing: a subpoena for production filed on 7 June 2019 addressed to the Proper Officer, Corrs Chambers Westgarth (Corrs); a notice to produce dated 7 June 2019 and addressed to HPPL; a notice to produce dated 14 June 2019 addressed to Gina; and a further notice to produce dated 19 June 2019 addressed to Gina.

47. Relevantly, the 7 June 2019 notice to produce to HPPL and the subpoena of that date to Corrs (who are the solicitors acting for HPPL and HDIO in these proceedings) both sought the production of “[a] full copy of the transcript of all examinations of Georgina Hope Rinehart which took place between 1 September 1999 and 28 February 2001 in proceedings in the Federal Court of Australia styled as Donnelly v Estate of Langley George Hancock with proceedings number NSD7840 of 1999” (those being bankruptcy proceedings in the Federal Court in Western Australia concerning the estate of Gina’s late father, Mr Lang Hancock); the 14 June 2019 notice to produce sought the production of certain correspondence between third parties and Gina’s representatives; and the 19 June 2019 notice to produce sought the production of “inventories” referred to in Mr Scott’s 18 April 2019 affidavit at [22].

48. Gina’s response, following correspondence between the respective solicitors, was to file a notice of motion on 20 June 2019 seeking to set aside the notices to produce and subpoena.

Hearing of the respective motions on 1-2 May, 13 May 2019

49. Returning to the chronology of the present applications, I commenced hearing the respective applications on 1-2 May 2019, following which (on 13 May 2019), as adverted to above, I made certain directions in an (as it transpired, forlorn) attempt to progress the delivery up of the relevant documents in an expeditious fashion. I proposed a process which involved that Gina, in the first instance, identify in consultation with her legal advisers what had been referred to in argument as the “universe of documents” (i.e., the universe of documents that might be held by HPPL and would need to be reviewed by Gina to see if they had been “used by” Gina in the administration of the Trust); that Bianca have an opportunity to comment thereon; and for the parties then to see if agreement could be reached at least as to some categories of documents so that steps could get underway in earnest for the production process (and thus to confine, if not wholly resolve, the present dispute).

50. Bianca’s position in regard to that proposed way of proceeding (as adverted to above) was that there should be an affidavit from Gina as part of the proposed “iterative process” (that being Gina’s description of the process). This was resisted by Gina, not least on the basis that such an application had been rejected by Brereton J and that this was an attempt to traverse the position to which his Honour had come (at [128], [130]-[131]) in the 2018 Decision.

51. What I had in contemplation as at May 2019 (as I had sought to make clear to the parties) was simply a process along the lines indicated above: that there would be consultation between Gina and her legal representatives as to the relevant classes of documents (including an attempt to identify all the transactions entered into and other significant events during the course of the time she was trustee of the HMH Trust); the outcome of that consultation (in the form of proposed classes of documents to be reviewed) would be provided to Bianca’s legal representatives for their input before it was provided to HPPL; and then HPPL would identify what documents held by it falling within those categories of documents and provide them to Gina’s solicitors so that instructions could be taken from Gina as to whether the documents so identified had in fact been used in some way in the administration of the HMH Trust and whether or not there was a belief that there might be other documents that had not been identified by HPPL. I was not there suggesting some process by which Bianca, or the plaintiffs, would not later be able to challenge the adequacy of production. Nor was I suggesting that there be some judicial imprimatur given to the categories of documents so identified. Moreover, I had envisaged that Gina would still in due course be required to verify compliance in accordance with Brereton J’s orders and the matter would proceed from there (with, were Bianca to be so advised, any application made for cross-examination of Gina on that verification affidavit in due course). This was simply an attempt to progress the production of documents in a more timely fashion than might otherwise be possible and was put forward having regard to the overriding statutory mandate for the just, quick and cheap resolution of the real issues in dispute (see s 56 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act)).

49. Perhaps unsurprisingly in this ongoing litigious saga, that attempt was not successful. Gina’s instructing solicitors did prepare a detailed letter dated 6 June 2019, to which I refer in due course, identifying various categories of documents and inviting a response thereto from Bianca’s instructing solicitors. Bianca’s solicitors responded (after having issued, among other things, the notice to produce and subpoena on 7 June 2019 which are the subject of the 20 June 2019 motion for them to be set aside) by letter dated 19 June 2019. That letter: set out at some length the history of the matter and the plaintiffs’ complaints as to the production process to date; complained (among other things) that Gina had never provided any description or explanation as to how she administered the HMH Trust or as to other matters; and culminated in a broad criticism of the categories put forward (but not to my mind, other than in a limited respect – see, for example, at [18] of the letter, engaging in the process that I had contemplated on 2 and 13 May 2019 of identifying categories of potential documents that had been used by Gina in the administration of the HMH Trust so as to progress the production of such documents). Bianca’s position, as stated in her solicitors’ letter, was that she “is not in a position to say whether the documents identified in your letter constitute the universe of documents potentially used by your client in the administration of the Trust”. Instead, Bianca there pressed for the approach for which she had argued (unsuccessfully) on 13 May 2019 to be adopted.

50. Relevantly, the 19 June 2019 letter from Bianca’s solicitors stated, among other things that:

6   The Court has now found that Trust documents includes documents used by your client in the administration of the Trust and requires your client to produce such documents to the second plaintiff. At the hearing on 30 April 2019, your client vigorously resisted an order that she provide an affidavit explaining, to the best of her knowledge and belief, the classes of documents which were used by her in the administration of the Trust.

7   She still has not done so. [Pausing here, that is hardly surprising, in that Gina was not ordered to do so and the production process is not complete.] The evidence provided by your client so far addresses the mechanical searching exercise undertaken by HPPL and the quantum of documents whilst avoiding giving any evidence about the subject matter, content or organisation and access to those documents.

8   Thus it remains the case that your client has never provided any description or explanation as to how she administered the Trust. She has never explained or identified the legal issues she encountered as Trustee of the Trust, the role of her various legal advisors, her interactions with HPPL in her capacity as Trustee and Chairman of HPPL, nor what information she obtained from HPPL that she considered as part of her administration of the Trust. She has not explained or identified the kinds of communications she had with all of the beneficiaries of the Trust nor how she made decisions about Trust distributions. She has not explained the events leading to her execution of various deeds with the beneficiaries of the Trust and has not identified any legal advice she received in relation to the same.

9   As a consequence, the second plaintiff has only been able to piece together an understanding of the history of the Trust from documents produced by your client thus far and documents obtained on subpoena. Our client’s understanding of the history of the Trust and the various activities it engaged in is therefore substantially incomplete. In other words, there is a very significant information asymmetry as between the second plaintiff and your client.

10   The second plaintiff is not in a position to say whether the documents identified in your letter constitute the universe of documents potentially used by your client in the administration of the Trust. Most tellingly, your letter does not state that your client has reviewed the categories of documents and holds the view that they represent the universe of the classes of documents potentially used by her in the administration of the Trust. Notably, nearly all of the categories of documents concern matters which have previously been identified by the second plaintiff as involving activities of the former trustee in relation to which documents have not been produced or the production has been deficient.

11   For that reason, the second plaintiff cannot approach the categories of documents identified in your letter as if it were a discovery exercise, i.e. identifying categories of documents by reference to their relevance to facts in issue in the proceedings, based on a set of pleadings. The second plaintiff is not in a position to say, with any confidence, that the categories of documents you have identified represent the universe of documents which may have been used by your client in the administration of the Trust. There may be activities that your client engaged in as the former Trustee which are not reflected in the categories of documents included on your list. Our client would have no way of knowing whether that is the case, i.e. she has no way of testing, in the abstract, whether the list encompasses all classes of documents potentially used by your client in the administration of the Trust.

12   That is why, as we have explained in our submissions to Ward CJ in Eq., our client will require the production to be completed and verified by your client, before she can test whether your client has complied with the Production Orders. That is the regime that Brereton J put in place, knowing the history of this matter and seeking to ensure that the second plaintiff would be given an adequate opportunity to test compliance in the way that she had done previously, through a process which revealed very substantial deficiencies in your client’s compliance with the Production Order.

13   In terms of the categories themselves, it is also evident that they have been very carefully crafted with the benefit of a detailed knowledge as to the subject matter and time frame. The reasons for that careful drafting or the particular timeframes are provided without any explanation. The second plaintiff is not in a position to assess whether any of the date ranges suggested in your letter is appropriate or reasonable.

14   The categories as drafted also suggest that your client is in fact seeking to vary Compliance judgment and orders through the making of an application for dispensation. For example, the phrase which is repeatedly used throughout the categories (see categories 1-4, 17-20, 22, 24-27, 29-32, 36-39, 47-63, 92-93, and 108 - 109) ‘concerning the affairs of the trust’ appears nowhere in the Compliance judgment and its deployment is plainly designed to act as a replacement for the requirement in the Compliance judgment orders for your client to produce documents ‘used in the administration of the trust’.

15.   Whilst the categories make reference to former third party service providers and advisors to the Trust (and only one such advisor not mentioned in the schedule to the Compliance orders), the documents sought (as mentioned above) are confined to specific dates and subject matter. Our client is not able to fairly assess the accuracy, reasonableness or completeness of these categories without knowledge of the circumstances in which each service provider was retained and/or provided advice to your client which in some cases we know from the limited information available was provided to your client in multiple capacities and/or used by your client in the administration of the Trust. Our client has not had copies of all of the documents which might inform the retainer of each of those service providers or other information which would allow a fair assessment of whether these categories would in fact capture the records of the Trust.

16.   The categories in relation to the service providers and advisors appear to ignore a number of important subjects on which your client received or considered advice relevant to the administration of the Trust. For example, there is no recognition in the categories that Corrs (who are not referred to at all) and Freehills acted for HFMF in proceedings and in connection with proceedings whilst HFMF was wholly owned by the Trust and controlled by your client as the former trustee.

17.   Many of the categories seek to confine the documents to ‘all documents, including file notes and correspondence ... which record or evidence consideration or discussion by the first defendant, on behalf of the Trust...’. This obviously further undermines the Compliance judgment and orders because it seeks to avoid the obligation of your client to produce all of the documents which were ‘used in the administration of the Trust’, as there may be numerous documents that your client received, considered and/or used in the administration of the Trust other than documents recording or evidencing her consideration or discussion and/or which are not referred to in documents such as file notes and correspondence. In any event, to the extent these descriptions are inconsistent with the Compliance judgment, the same observations as referred to in paragraph 14 above apply.

18.   The categories appear to avoid by omission a number of significant categories of documents which were identified by us in detailed correspondence and submissions in connection with the Production motion, and some of which have been dealt with in the Compliance judgment. As mentioned above, it is neither productive or necessary to now redebate or re-litigate the last four years other than to rely upon all of that material to demonstrate why the process you now advance is inappropriate and unproductive. With that qualification in mind and assuming the consultation process with your client was a genuine effort to provide a complete set of categories, by way of example, it appears that your client sought and obtained no legal or judicial advice (as the former trustee):

18.1   in respect of the so called constructive trust claim over the Hope Downs Tenements;

18.2   in respect of the ownership of other significant mining assets (including the Roy Hill tenements, Mulga Downs tenements and Nicholas Downs tenements);

18.3   In respect of the debt reconstruction transaction;

18.4   in respect of the sale of HMHT Investments Pty Limited to HPPL on 30 April 2012.

19   As you are aware your client (either directly or through her representatives) has made numerous robust and detailed denials of any wrongdoing by her (as trustee) or otherwise in respect of the implementation of the Plan of 1988, the mining tenements mentioned above and the debt reconstruction transaction. In advancing these denials (in writing and orally) she frequently refers to an asserted documentary record which she contends supports her position. Whilst some of the categories appear to be directed to communications with some of the advisors in relation to some aspects of those matters, none of the categories appear to be directed to the repository of documents upon which your client contends she relies upon to reject any allegations of past misconduct in relation to those matters.

20   For example, the categories do not refer to any hard copy set of such records and or any relational database (which your client (and those assisting her) has maintained and to which she has had access to over time).

21   Further, for the reasons explained to the Court, in respect of the communications with beneficiaries, the approach we have proposed on 13 May 2019 is the most cost efficient and appropriate way to deal with those communications and that separating out communications in respect of distributions (as the category set out in paragraph 6 of your letter) is likely to be a duplicative, unnecessary and inefficient exercise. Moreover, our understanding of the proposed categories is that your client is not proposing to produce any other communications with the beneficiaries unless they fall within the very narrow categories identified.

54. That exchange of correspondence then led to complaint by Gina, when the hearing of the present applications resumed, that there had not been compliance with Bianca with the directions I had made on 13 May 2019. Bianca denied any such failure and countered with the response that there is an “information asymmetry” between the parties; and the complaint that she should not be forced into a process of, in effect, agreeing to discovery categories. The plaintiffs also emphasised that, historically, there have been instances where the existence of documents had not been disclosed by Gina and was only discovered through other means (such as the Sceales advice, to which there was much reference in the course of argument). The plaintiffs argue that they did engage in the process I had envisaged, by suggesting a more limited and practical way (for example) of approaching the task of communications with beneficiaries (using suggested search terms) and by taking issue with the completeness of the categories insofar as they omitted reference to particular matters (see at [18] of the letter, for example).

55. Nevertheless, the plaintiffs’ position in oral argument was that they did not wish to have a debate in the abstract in advance of the production; and should not be required to do so. Among other things, complaint was made that there was no explanation by Gina (or her legal representatives) as to how the date ranges set out in some of the categories of documents had been selected (by Gina) nor did the plaintiffs have “any clue” as to whether those date ranges were correct. (Complaint was also made in the 19 June 2019 letter (at [14]) that the way in which certain of the categories were phrased – “concerning the affairs of the trust” – was an attempt to vary, or narrow, the description of trust documents as contained in the 2018 Decision.)

56. In my opinion, there is some force to the criticism made by both sides against the other: on the one hand, the criticism of Gina relating to deficiencies in production to date is founded on matters that have already been the subject of findings by Brereton J (and I do not need here to comment further thereon); on the other hand, the criticism by Gina’s side of Bianca’s response to the proposed categories of documents prepared following the directions I made in May 2019 has force at least to the extent that, while criticism was made by Bianca as to the completeness of what was proposed in the 6 June 2019 letter, there was little detail there given to support the complaint or to indicate the modification that might be needed to address the complaint (so, for example, there is an assertion that the categories in relation to service providers and advisors “appear to ignore a number of important subjects on which your client received or considered advice relevant to the administration of the Trust” but the letter gives little by way of indication as to those subjects); nor did the letter (other than implicitly in, say, [16] and [18]) identify any modifications or additions to the classes of documents proposed to be requested to be produced for inspection by Gina (for her then to review and give instructions as to whether the documents had been used by her)).

57. Complaint is made by the plaintiffs that they have raised issues as to deficiencies in the proposed production process (by seeking the production of the transcript of the WA bankruptcy examinations, for example) and that there was no attempt to amend the proposed categories to include this (placing reliance on the resistance in relation to production of that transcript as evidence in support of the submission that there has not been a genuine attempt (or there has been a lack of diligence) by Gina in relation to the identification of proposed categories). Gina’s response to that complaint is that it ignores what was said in the covering letter of 6 June 2019 itself as to this correspondence (and to emphasise the iterative nature of the proposed process).

58. I accept that the plaintiffs did consider and respond to the 6 June 2019 letter as had been directed and that there is an obvious information asymmetry between the parties; and I accept that it is not unreasonable that Bianca considers that she would require production to be completed and verified “before she can test whether [Gina] has complied with the production order” (though that is not, of course, the issue which the proposed consultation process between the legal representatives was intended to address). I would not, therefore, conclude that there has been a failure to comply with the directions that had been made (an accusation regarded by the plaintiffs as both serious and unfounded).

59. Moreover, I accept that the history of the matter to date is one where the attempt at production of documents was demonstrably not complete (albeit in a process that Brereton J accepted had been undertaken by way of a reasonable search and review methodology and where his Honour expressly disavowed any finding of lack of good faith on Gina’s part); and hence that there is some basis for the suspicions apparently still harboured by the plaintiffs as to the motivation behind any attempt here to limit in some way the categories of documents identified for production as “Trust documents”.

60. The upshot, however, is that the 19 June 2019 letter from the plaintiffs’ solicitors in essence seems to me to amount to little more than a five page excursus into the reasons why Bianca says she cannot (and should not be required to) engage in the process I had mooted when the matter was before me in May 2019.

61. It is manifest from what has occurred in the course of the present applications that there is little to be gained from seeking to procure a co-operative approach between the parties to the issues that have been raised (on both sides) in relation to production of documents. So be it. A trench warfare mentality is hardly consistent with the manner in which litigation in this Court is to be conducted but there is a limit to which the Court can properly intervene in that regard. That said, it should be noted that one of the ironies of the stance that has been adopted by Bianca (no doubt with the benefit of considered legal advice) is that, to the extent that Bianca is insistent upon completion of the process of production of trust documents within the extended definition in the 2018 Decision (and has not been able to assist meaningfully in limiting the scope of production even in the face of the evidence as to its likely exorbitant cost), then she can hardly be heard now to complain as to the time (and cost) required to complete the process of the wholesale review of documents and exhaustive production of the HMH Trust documents. In other words, her adamant position that Gina is to be held in compliance with the 2018 Orders without dispensation or variation (other than in minor respects) will have an obvious consequence on the time and cost of that process. In that regard, if nothing else, Bianca’s attitude to the timeframe for compliance with the 2018 Orders, once the present issues have been resolved, seems to me to be unreasonable.

62. I might add that when the rationale of the production of trust documents by an outgoing trustee, as explained by Brereton J in the 2018 Decision, is borne in mind it might be doubted as to whether the production of some of the documents raised as examples in the course of the present application – such as dry cleaning bills in minor amounts presented by beneficiaries for payment out of the HMH Trust fund – are documents required by the incoming trustee for the ongoing administration of the HMH Trust. However, where the incoming trustee has insisted on complete production of the HMH Trust records and the outgoing trustee has been ordered to produce them, there is much to be said for the proposition that there should be complete production as ordered albeit that I consider the incoming trustee’s insistence on complete production should be coupled with an indemnity in respect of those costs, something to which I will return in due course.

351. I do not read Brereton J’s Costs Judgment as having dealt with the question of costs of the future steps to be taken in relation to the production of trust documents; they were confined to the costs of the proceedings then before his Honour. Nor do I see it as necessary for the meaning of those costs orders to be clarified by his Honour in circumstances where Gina is not seeking orders in relation to the past costs of production but simply the cost of production going forward.

352. As to the proposition that Gina is disentitled to an indemnity in respect of the costs of production of the HMH Trust documents because of misconduct on her part, the circumstances in which she retired as trustee and the history of the litigation before Brereton J do not in my opinion inform the question as to whether she is entitled to an indemnity for the costs of future production. Costs of the delivery up of the trust documents are not costs that arise from any breach of duty by Gina as trustee in relation to contentious matters such as the vesting of the trust; nor am I persuaded that there should be any finding at this stage as to any breach of duty in the manner in which the trust documents were stored or filed. If, in due course, allegations of breach of trust in that regard are made and substantiated, then steps may be taken in relation to the recovery of any amounts now paid for the costs of production of documents established to have been caused by that breach of trust. (In this regard, I note that Gina submits that insofar as she is now only seeking indemnity for the future expense of complying with the 2015 Orders and 2018 Orders, it can safely be assumed that the past costs which will be borne by her personally account for any inefficiencies encountered by the intermingling of records.)

353. What is clear is that costs (and it would seem significant costs) will likely be incurred in production of the HMH Trust documents. In accordance with the principle in In re Grimthorpe, a trustee (by now, admittedly a former trustee) should not be required in the first instance to incur those costs and then seek later to recoup those costs out of the trust assets; rather, she should be indemnified now for those costs (subject to the possibility that in due course if it be found that the costs arose out of a breach of trust disentitling her to such an indemnity then she may be required to reimburse those costs).

354. As to the submissions for the plaintiffs that an order of this kind would visit unfairness on them, it should be noted that in a number of respects the need for such significant costs to be incurred arises from the insistence of Bianca (as she is, as trustee, entitled to insist upon) on the complete production of an enormous amount of documentation. Insistence upon the complete production of all personal communications between Gina and her children, to the extent those fall within the definition of “Trust documents”, is but one example. Bianca’s position is that Gina is required by the 2015 Orders, as clarified by the 2018 Orders, to produce all trust documents and that (given the information asymmetry, among other things) she cannot fairly be asked to comment on the adequacy of the categories of documents required to be reviewed for the purpose of compliance with those orders. As I have said earlier, so be it. However, it seems to me to be inconsistent with authority and principle to require Gina to bear the cost of such an exercise at least in the first instance, and the making of such an order does not preclude Bianca from making submissions in due course to vary such an order.

HPPL/HDIO’s notice of motion

357. HPPL/HDIO’s 12 April 2019 notice of motion seeks, in effect, a direction that they not be required to comply with any direction from Gina regarding compliance (or Gina be relieved from compliance) with Orders 1(a)(iv), 2 and 3 (insofar as Orders 2 and 3 concern documents referred to in Order 1(a)(iv)) of the 2018 Orders with respect to documents relevant to the Federal Court Proceedings (i.e., Federal Court of Australia proceedings NSD 1124 of 2014), WA Proceedings (i.e., Supreme Court of Western Australia proceedings CIV 3041 of 2010 (consolidated with CIV 2617 of 2012) and CIV 2737 of 2013) or any arbitration in which the same allegations are litigated, until the earlier of three alternative dates (as set out in the notice of motion).

358. Their primary position is that their motion ought not be determined now because the documents the subject of the motion are presently unknown and will not be known until Gina confirms that she received or held particular documents in her capacity as a director of HPPL and/or HDIO and “used” them in the administration of the HMH Trust.

359. It is noted that in the 2015 Decision (at [366]), Brereton J reserved liberty to (at least) Gina to be relieved of an obligation to deliver-up “any particular document” on the ground that it is one to which the plaintiffs and the new trustee were not entitled. It is submitted that his Honour’s reference to “any particular document” should be read as a requirement that the liberty be exercised in relation to specific documents, not in the abstract. HPPL and HDIO further note that, in the 2018 Decision, Brereton J emphasised the difficulty of discharging the relevant evidentiary burden in the abstract and in the absence of evidence, stating at [75]:

… [W]hile the Court has a discretion to direct that documents or information not be supplied where satisfied that that is the appropriate course, the onus lies on the outgoing trustee to show why that discretion should be exercised. A mere unproven assertion that there are among the trust documents some which are confidential or contain private information does not begin to discharge that onus. Insofar as the first defendant’s claim is based on “privacy” or “confidentiality”, no basis has been shown for depriving the replacement trustee on those grounds of trust documents to which she is prima facie entitled.

360. HPPL and HDIO point out that the Court of Appeal similarly noted the “fundamental” difficulty in formulating the test as to what should be provided to an incoming trustee in a vacuum, Basten JA and Simpson AJA (in the 2019 Appeal Decision) citing with approval at [36] the following passage from the English Court of Appeal in Tiger v Barclays Bank Ltd [1952] 1 All ER 85:

As the argument proceeded it became increasingly apparent to us that it was really impossible to evolve in vacuo and without evidence as to the particular documents in question in this particular case any general formula adequately defining the more restricted obligation as to the production of documents which the bank would have us substitute for the obligation imposed by the order under appeal.

361. It is noted that their Honours then made the following observations:

[37] …Tiger illustrates with clarity the fundamental difficulty of formulating a test as to what should be provided to an incoming trustee and what should not, in a vacuum, and without reference to specific documents. …

…

[41]    The attempt to formulate an abstract description of a category of documents which might fall within a subparagraph of order (1)(a) and assert overreach is, in effect, an invitation to this Court either to reformulate the orders in the abstract and without evidence or, in the alternative, to undertake that task by reference to a specific document or class of documents. The former exercise is fundamentally misconceived for the reasons explained in Tiger; the latter exercise is one which should be undertaken in the Court below under the liberty to apply.

…

[46]    … The ultimate question in each case will be whether the companies are entitled to assert ownership in a particular document or class of documents as against the Trust. … Significantly, the companies’ submissions with respect to ground 2 commenced “[i]f any of the databases … to which order 3 relates contain documents owned by [the companies], his Honour disregarded [the companies’] property rights in those documents”. The court is thus asked to address the question by reference to an hypothetical situation. As noted above, the alternative is to address the situation by reference to evidence and thus undertake precisely that exercise which should have been the subject of liberty to apply. [emphasis added]

362. It is submitted by HPPL/HDIO that, while the above observations relate to the scope of the delivery up obligation itself, they apply equally to the exercise of a discretion to be relieved of the delivery up obligation (because any exercise of the discretion to be relieved of a delivery up obligation is ultimately an extension of, or the final step in, the delivery-up process itself).

363. Consistent with the above authorities, HPPL and HDIO submit that their notice of motion should not be heard in the abstract. They argue that relief sought should only be determined by reference to evidence of particular documents or classes of documents; and that that exercise cannot be undertaken now because Gina has not yet identified documents falling within the scope of Order 1(a)(iv). In the absence of knowing what (if any) documents are caught by Order 1(a)(iv), it is submitted that HPPL and HDIO cannot “in a concrete manner” identify the particular basis or bases on which they seek relief in relation to particular documents or classes of documents (and this is the explanation proffered for the generality of the identification in the order sought in their notice of motion of documents “relevant to” the said proceedings or any arbitration involving the same allegations).

364. It is said that, once specific documents falling within the scope of Order 1(a)(iv) are identified, HPPL and HDIO will be in a position to identify, with greater precision, why particular documents or classes of documents relevant to the Federal Court Proceedings, the WA Proceedings or any arbitration should be excluded from the scope of the delivery-up order on discretionary grounds. More particular reasons could, it is said, potentially include legal professional privilege, or where the giving of a direction by Gina to HPPL or HDIO would place Gina in a position of conflict between her obligation as a director to act in their best interests on the one hand, and her obligation to comply with the delivery-up orders on the other.

365. It is therefore submitted that the most appropriate time to hear the notice of motion is after a sufficient sub-set of the documents in question have been collated and identified as responding to Order 1(a)(iv) so that it can be determined by reference to concrete examples. It is submitted that so doing would not add materially to the delivery-up timeframe; instead, once Gina has identified a tranche of documents falling within the scope of Order 1(a)(iv), HPPL and HDIO should be given a reasonably short timeframe in which to serve evidence and then move on the motion to be relieved of any obligation to comply with a direction from Gina to produce those documents. It is said that if no such application is made, or the application is unsuccessful, the documents could be disclosed immediately.

366. In the alternative, if the motion is now to be determined, HPPL and HDIO submit that the they ought not be required to deliver-up their documents to Bianca via Gina (at least until the earliest event listed in HPPL’s notice of motion occurs) in circumstances where Bianca is separately suing HPPL and HDIO for most, if not all, of their assets in other proceedings.

367. Insofar as a query was raised during the directions hearing on 4 April 2019 (at T 22.36) by Counsel for the plaintiffs as to their standing to make an application for dispensation (because they were not the subject of any kind of order), and again raised in a letter dated 18 April 2019 from Bianca’s solicitors to HPPL and HDIO’s solicitors, HPPL and HDIO’s position is as follows.

368. First, it is said that HPPL and HDIO are parties to the proceeding; and they “own” the documents the subject of the notice of motion and consequently are necessary parties (their rights being affected). While it is accepted that HPPL and HDIO are not the direct subjects of the delivery-up order, they note that the orders require Gina to take steps to obtain HPPL and HDIO’s documents (or at least copies of them) and deliver them to Bianca. It is submitted that HPPL and HDIO have standing to seek relief from the practical consequences of the delivery-up orders in circumstances where: they are already parties to the proceeding; they own the documents in question; and the orders require Gina to cause them to produce their documents for the ultimate purpose of being delivered-up to a litigant who, as noted above, is suing HPPL and HDIO for most, if not all, of their assets in other proceedings.

369. Second, it is said that Order 4 of the 2018 Orders granted liberty to apply to all parties to the proceeding (noting that the Court of Appeal accepted that this includes HPPL and HDIO – see the 2019 Appeal Decision at [61]); and that the liberty to apply extends to “any” difficulty arising in the “interpretation, application or implementation” of Brereton J’s orders. It is said that HPPL/HDIO’s motion which seeks, in effect, temporary relief from compliance, relates to the “application” or “implementation” of his Honour’s orders.

370. As to the timing of the notice of motion, and the suggestion made by the plaintiffs’ Counsel during the directions hearing on 29 April 2019 that such an application ought to have been brought following the original delivery-up order in May 2015 (and, as a consequence, might be the subject of an Anshun estoppel), HPPL and HDIO say that there was no reason, or legal basis, for HPPL and HDIO to seek dispensation prior to the issuance of Order 1(a)(iv) on 5 November 2018. They say (and it is hard to argue against the logic of this) that power to dispense with compliance with Order 1(a)(iv), or with compliance with a direction issued by Gina pursuant to Order 1(a)(iv), only arose once the order had been made.

371. It is noted that the original delivery-up order required Gina to deliver up to Bianca all “documents of the Trust in her possession, custody or power” (see the 2015 Decision at [365], and Order 3). It is said that the order extended only to trust property (that is, documents in which the HMH Trust had a proprietary interest – see at [365]) which were in the possession, custody or power of the outgoing trustee. It is said that there was, at that time, no suggestion that it included the documents now caught by Order 1(a)(iv) of the 2018 Orders; nor did any other aspect of his Honour’s reasons suggest that HPPL and HDIO’s property interests were affected by the delivery up order. (They say that, contrary to her current position, Bianca apparently shared HPPL and HDIO’s view that their property rights were not affected by the original delivery-up order, since Bianca did not name HPPL or HDIO as parties affected in the motion that ultimately led to the making of Order 1(a)(iv)).

372. HPPL and HDIO say that the 2018 Orders, for the first time, affected their rights by “expanding” the scope of the delivery up order (via Order 1(a)(iv)) to include documents: which are owned by HPPL and HDIO; in which the HMH Trust has no proprietary interest; which are not in Gina’s possession; and which require Gina to use her “non-trustee powers” to obtain. It is submitted therefore that no application for dispensation from Order 1(a)(iv) (or from any direction issued by Gina pursuant to Order 1(a)(iv)) could have been sought prior to 5 November 2018 when the order was first made.

373. In any event, for the reasons already put forward in support of their submission that the hearing of the notice of motion should be stood over, they say that there was (and remains) at least an element of prematurity; arguing that, without identification of particular documents the subject of Order 1(a)(iv), there is either no occasion or an incomplete factual foundation for HPPL and HDIO to seek dispensation.

374. As to the suggestion that an Anshun estoppel might apply, HPPL and HDIO maintain that an Anshun estoppel can only arise between two separate actions (citing Anshun at 597-603 per Gibbs CJ, Mason and Aickin JJ) noting that in this case the original delivery up order, the 2018 Orders, and the present notice of motion, all form part of the one proceeding. Further, it is noted that the 2018 Orders are interlocutory and that the Court retains control over its orders and the power to vary the orders (Brimaud v Honeysett Instant Print Pty Limited (1988) 217 ALR 44 at 46). It is said that there is a further reason for that conclusion, namely that liberty to apply was reserved and that the Court of Appeal has held that liberty to be available to HPPL and HDIO. It is said that the Court of Appeal’s reasons, in this respect, are consistent with the object of an order for liberty to apply (Abigroup Limited v Abignano (1992) 39 FCR 74 at 88) and it is that type of permissible order which is sought in the notice of motion filed by HPPL and HDIO.

375. As to why their motion, if determined now, should be granted, HPPL and HDIO submit the following.

376. First, they invoke the Court’s discretion to relieve a party from producing documents where it is satisfied that is the “appropriate course”; referring to the 2018 Decision at [39] and [41], citing In the matter of the Bird Charitable Trust at [29]. It is noted that Order 4 of the 2015 Orders expressly reserved to Gina liberty to apply to be relieved from the delivery up order in respect of any particular document or class of documents. It is said that that position applies a fortiori where the delivery-up order now requires the provision of a third party’s (HPPL or HDIO’s) documents.

377. Second, as noted already, that Bianca, in her personal capacity, is suing HPPL and HDIO for most, if not all, of their major assets in the Federal Court Proceedings, the WA Proceedings and related arbitrations. It is said that those “existential threats” place HPPL and HDIO in an entirely different position to Gina when considering the effect of Order 1(a)(iv). It is noted that, as things presently stand, Gina can direct HPPL and HDIO to disclose their documents for delivery up to Bianca in her capacity as trustee “without any of the basic protections and limitations that would form part of the usual discovery process (such as the right to assert privilege or the protection of the Harman undertaking), and despite the fact that [Bianca] in her personal capacity is suing them for all of their major assets”. It is submitted that those circumstances warrant the temporary dispensation sought by HPPL and HDIO in the notice of motion.

378. Third, that (although they maintain that the precise legal basis of Bianca’s right to obtain HPPL and HDIO’s documents pursuant to Order 1(a)(iv) is unclear) any such right is not absolute and can give way to HPPL and HDIO’s rights where that is the “appropriate course” (referring to the 2018 Decision at [39], [41]). They say that it is unclear whether Brereton J considered the right to be proprietary in nature (referring to his Honour’s reasons at [43] as suggesting that might be the case but submitting that if that were so, then Order 1(a)(iv) would be redundant as the documents would be captured by Order 1(a)(i) or 1(a)(iii) instead). It is said that the Court of Appeal similarly did not identify the legal basis of the right: that Basten JA and Simpson AJA suggested that Order 1(a)(iv) might not deprive HPPL and HDIO of their ownership rights, but that the incoming trustee nevertheless had a right (presumably in personam in nature) to obtain a copy of the documents from the outgoing trustee (referring to the 2019 Appeal Decision at [38], [46] and [49]). It is submitted that “that the appropriate course is not to allow an innominate right of inspection to cut across HPPL and HDIO’s property rights where the result would deliver HPPL and HDIO’s documents to a hostile litigant outside of the constraints of the usual discovery process”.

362. Fourth, HPPL and HDIO submit that the notice of motion should at least be granted in relation to two categories of documents: first, documents over which HPPL or HDIO have a claim for legal professional privilege; and, second, documents that Gina could only direct HPPL and HDIO to produce for delivery up to Bianca from a position of conflict.

363. As to the first such category, it is submitted that the absence of specific examples does not preclude the Court from temporarily relieving HPPL and HDIO of any future obligation to produce documents which are subject to legal professional privilege; and that what is contemplated is that HPPL and HDIO would produce an index of any such documents so Bianca will have an opportunity to test whether the excluded documents are in fact privileged (such a process operating in essentially the same way that privileged documents are treated in the discovery process).

364. As to the second such category, it is submitted that HPPL and HDIO should also be relieved from any obligation to produce documents where doing so would be against the companies’ interests. It is submitted that this limitation is justified because it appears that Gina is required to use her powers as a director of HPPL and HDIO to direct that the documents be produced (it being said that no other source of the power is identified). It is noted that Gina is also required, as a director of HPPL and HDIO, to act in good faith in HPPL and HDIO’s best interests. It is said that if Gina was obliged to direct HPPL or HDIO to produce documents against their interests (for example, because the documents were potentially adverse to HPPL or HDIO’s interests in any proceeding in which Bianca claims ownership of HPPL and HDIO’s assets), that would place Gina in a position of conflict. To protect HPPL and HDIO against the consequences of this conflict, it is submitted that the appropriate course is either to relieve Gina of the obligation to direct HPPL and HDIO to produce documents contrary to their best interests, or to relieve HPPL and HDIO from any obligation to comply with such a direction from Gina.

Plaintiffs’ submissions on the HPPL/HDIO motion

382. The plaintiffs resist the relief here sought and say that HPPL/HDIO has not identified any particular document that gives rise to concern. Insofar as HPPL/HDIO’s primary position is that its motion should be stood over to a future date, when it will have identified concrete documents in respect of which it seeks dispensation, the plaintiffs say that if HPPL/HDIO (having chosen to bring forward its motion now) has been unable to identify any document relating to other proceedings in respect of which it needs dispensation, despite having been involved in the task of collating and reviewing documents for some months, “that is its own fault”; and that the motion should be determined now (and should be dismissed).

383. The plaintiffs say that there is no basis for HPPL/HDIO’s motion, since the orders made in May 2015 and November 2018 do not require HPPL/HDIO to do anything (rather, they require Gina to produce HMH Trust documents, and to verify production on oath). It is submitted that Gina, as the executive chairman and majority shareholder of HPPL, has the ability to compel HPPL to make those documents available to her for that purpose and thus the documents are within her “control” but that this is a matter between HPPL and Gina.

384. As to the submissions made for HPPL/HDIO to the effect that were it (through Gina) to be compelled to produce documents to the plaintiffs which are relevant to other proceedings this would be “without any of the basic protections and limitations that would form part of the usual discovery process”, the plaintiffs say that this is no reason to “truncate” Bianca’s right, as new trustee of the HMH Trust, to HMH Trust documents (submitting that Brereton J’s reasons made clear that this is a proprietary right).

385. The plaintiffs argue that, by operation of the principles of Anshun estoppel, HPPL/HDIO cannot now seek relief which ought to have been sought before Brereton J, noting that: HPPL was a party to the proceedings and did not seek to take part in the hearing of the September 2015 Motion; HPPL was on notice of the issues raised by the plaintiffs on the September 2015 Motion and could have sought to participate (as, it is said, the Court of Appeal recognised); and that HPPL made but then withdrew its objection to Bianca’s appointment as trustee on the basis that she was a party adverse to HPPL and its interests.

Determination

386. I am of the view that the application by HPPL/HDIO for temporary dispensation from the relevant orders should not be finally determined at this stage. I am conscious of the observations made in the Court of Appeal as to the abstract nature of any consideration of issues without reference to particular documents or classes of documents and I do not consider that it is appropriate to proceed on the basis suggested by the plaintiffs that, in the absence of concrete examples, I should simply dismiss the notice of motion.

387. Nor do I consider that there is an Anshun estoppel that is here applicable (although I do not accept that such an estoppel could not have arisen in the same set of proceedings, as I have noted earlier). As is clear from the dispute that arose (and was determined in 2018) as to what constituted a trust document, it could not be said that HPPL and HDIO were on notice back in 2015 that their interests might be affected by the orders that were there being sought – those orders being referable to “trust documents”, which expression was considered by Mr Ross (albeit wrongly) not to include documents of the kind now covered by Order 1(a)(iv). I do not consider it to have been so unreasonable for HPPL/HDIO not to have raised an application for temporary dispensation in 2015 (from orders yet to have been made) in relation to documents that they would not necessarily have appreciated at that stage were or would be held to be “Trust documents”.

388. Were I to have considered the substance of the notice of motion at this stage, I would have been inclined to permit a temporary dispensation of the kind sought by HPPL/HDIO, not least because of the importance placed at common law on the fundamental principle of legal professional privilege but also because I consider that the question as to whether Bianca, as the new trustee, would be entitled to production to her of documents relevant to proceedings in which she has or may have an adverse personal interest to that of the trust estate (and to that of HPPL/HDIO) is an issue on which more considered argument would be warranted. As it is, however, I do not here proposed to explore the issues raised by the HPPL/HDIO motion any further.

Conclusion

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

1. Order pursuant to r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW) or the inherent jurisdiction of the Court that the subpoena for production filed on behalf of the second plaintiff on 7 June 2019 which is addressed to the Proper Officer - Corrs Chambers Westgarth be set aside.

2. Order pursuant to r 21.11 or r 34.2 of the Uniform Civil Procedure Rules 2005 (NSW) or the inherent jurisdiction of the Court that the notice to produce dated 7 June 2019 and addressed to the fourth defendant, Hancock Prospecting Pty Limited, be set aside.

3. By consent, order that the provision of possible documents of the Trust to the first defendant or her lawyers by the fourth defendant or the fifth defendant in accordance with these orders will not bring those documents within the scope of the orders made by Brereton J on 5 November 2018 (2018 Orders) if they would not otherwise have been caught by those orders.

4. Further extend the time for compliance with Order 1 of the 2018 Orders to a date to be fixed after the fourth defendant has made available for inspection by the first defendant and her legal representatives the possible documents of the HMH Trust.

5. Order that Order 2 of the 2018 Orders be varied to require the first defendant to use her reasonable endeavours to procure the third parties identified in the Schedule to the 2018 Orders, to provide the first defendant all documents in their possession which are likely to be documents of the HMH Trust, so that they may be reviewed by the first defendant and her legal representatives and any Trust documents produced to the second plaintiff and extend time for compliance with Order 2 to a date to be fixed when these orders are made.

6. Direct that the parties provide agreed short minutes of order (or, failing agreement, separate proposed short minutes of order and submissions in support) within 14 days for a regime to permit access by a computer expert on behalf of the second plaintiff to any electronic database or electronic information retention system maintained by the fourth defendant in respect of documents of the HMH Trust for the purposes of compliance with Order 3 of the 2018 Orders.

7. Extend the time for compliance with Order 3 of the 2018 Orders to a date to be fixed after a regime of the kind contemplated by Order 6 above is implemented.

8. By consent, vary Order 1(iv)(a) of the 2018 Orders to permit the production of a copy of any such documents received or held by the first defendant in some capacity other than as trustee of the HMH Trust, including as a director of the fourth defendant, which were used in the administration of the HMH Trust.

9. The first defendant have liberty to apply to be relieved from Order 3 of the 2015 Orders made by Brereton J on 28 May 2015 in respect of any particular document or class of documents after the fourth defendant has made available for inspection by the first defendant and her legal representatives the possible documents of the Trust falling within Order 1(iv)(a) of the 2018 Orders, including by reason of the claims brought against the first defendant in the Proceedings referred to in Order 13 below.

10. Stand over the notice of motion filed 12 April 2019 by the fourth and fifth defendants for determination after the inspection by the first defendant and her legal representatives of the possible documents of the Trust made available to them by HPPL for that purpose.

11. Order (subject to any further order of the Court) that the first defendant be indemnified from the HMH Trust in respect of the reasonable costs incurred from today’s date by her compliance with Orders 2 and 3 of the 2018 Orders and otherwise in relation to the production of documents of the HMH Trust.

12. Costs of the respective notices of motion be reserved.

13. For the avoidance of doubt, extend the time for compliance by the fourth and fifth defendants with any direction from the first defendant regarding compliance with Orders 1(a)(iv), 2 and 3 (insofar as Orders 2 and 3 concern documents referred to in Order 1(a)(iv)) of the orders of Brereton J in this proceeding dated 5 November 2018 (5 November 2018 Orders), with respect to documents relevant to the proceedings between, inter alia, the Companies and the first and second plaintiffs in Federal Court of Australia proceedings NSD 1124 of 2014 (Federal Court Proceedings) or in Supreme Court of Western Australia proceedings CIV 3041 of 2010 (consolidated with CIV 2617 of 2012) and CIV 2737 of 2013 (WA Proceedings) (or any arbitration in which any of the same allegations are litigated (Arbitration)), until the determination of the fourth and fifth defendants’ 12 April 2019 notice of motion.

390. I consider that costs of the respective notices of motion be reserved at this stage because there has been mixed success on the respective applications and because ultimately the costs of one or other of the motions might be influenced by the outcome of the review process.

391. Finally, I will stand the matter over for directions in a few weeks’ time to enable consideration by the parties of the appropriate timeframe for compliance with various of the orders (and, to the extent possible, production of the HMH Trust documents in tranches to minimise further delay).

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Decision last updated: 25 October 2019