Hancock v Rinehart - [2016] NSWSC 116

Supreme Court

New South Wales

Medium Neutral Citation: Hancock v Rinehart [2016] NSWSC 116
Hearing dates: Tuesday, 16 February 2016
Date of orders: 16 February 2016
Decision date: 16 February 2016
Jurisdiction: Equity
Before: Brereton J
Decision:
Application for stay pending appeal refused. Short stay granted to permit application for stay to be made to Court of Appeal.

Catchwords: PROCEDURE – Judgments and orders – order made granting stay pending appeal – where leave to appeal sought – where failure to grant stay would render appeal nugatory – where prospects of ultimate success in disturbing discretionary aspect of judgment appear remote – where stay will delay completion of part-heard application for enforcement of principal judgment.
Cases Cited: Hancock v Rinehart (Privilege) [2016] NSWSC 12
House v The King (1936) 55 CLR 499
Welker v Rinehart (No 2) [2011] NSWSC 1238
Westminster Airways Limited v Kuwait Oil Company Limited [1951] 1KB 134 at 146
Category: Procedural and other rulings
Parties: John Langley Hancock (first plaintiff)
Bianca Hope Rinehart (second plaintiff)
Gina Hope Rinehart (first defendant)
Representation:
Counsel:
CH Withers w AM Hochroth and PA Meagher (plaintiffs)
B McClintock SC w SA Lawrence and R Mansted (first defendant)
Solicitors:
Yeldham Price O’Brien Lusk (plaintiffs)
Speedy and Stracey (first defendant)

File Number(s): 2011/285907

Judgment (EX TEMPORE)

HIS HONOUR: On 2 February 2016, I gave judgment rejecting Mrs Rinehart's claim of privilege in respect of certain documents and granting Bianca access to them. [1] At that time, I stayed the operation of the order to 5pm on Friday, 5 February 2016. That stay was extended, first, to 8 February 2016, and then further extended to today. In the meantime, Mrs Rinehart has filed, in the Court of Appeal on 16 February 2016, a summons seeking leave to appeal from that decision, which is returnable before the Court of Appeal for directions on 4 April 2016. By the application presently before the court, she seeks a continuation of the stay pending the hearing and determination of the judgment of the Court of Appeal.
1. Hancock v Rinehart (Privilege) [2016] NSWSC 12
As I indicated at a much earlier stage of these proceedings, in Welker v Rinehart(No 2) [2011] NSWSC 1238 (at [57]):

The Court of Appeal encourages trial judges to determine stay applications pending the determination of an appeal…whether the trial judge grants a short stay only until the matter can be brought to the Court of Appeal for consideration by a judge of appeal, or a stay pending the determination of the appellate proceedings but subject to such order as the appellate Court may make, usually depends on the view of the Court at first instance as to the prospects of the appeal. Even where the primary judge very much doubts that there is an arguable case of error, a prospective appellant will often be afforded a short stay to enable the matter to be agitated in the Court of Appeal, at least if refusal of a stay in the meantime might render…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2016] NSWSC 116
Decision Date: 16 February 2016

CaseChat Overview and Summary

Hancock and Rinehart appeared before the court in a dispute concerning enforcement of a principal judgment. The respondents sought a stay of the appellant's appeal, pending the outcome of an enforcement application. The appellant had already appealed the enforcement application, but this appeal was dependent on the outcome of the principal appeal. The respondents argued that without a stay, the appeal would become nugatory and the enforcement application would be delayed.

The legal issues before the court were whether the appeal should be stayed and if the appellant's prospects of success in the appeal were remote. The court needed to determine if the stay would delay the enforcement application and if the appellant's chances of success were so slim that the appeal would effectively be rendered meaningless. The court also needed to consider the balance of convenience and the impact of the stay on the enforcement of the principal judgment.

The court considered the balance of convenience, noting that the enforcement application was already part-heard. A stay would delay the completion of this application and potentially cause significant harm to the respondents. The court also assessed the appellant's prospects of success in the appeal, finding them to be remote. The court concluded that the appeal should be stayed pending the outcome of the enforcement application, as failure to grant the stay would render the appeal nugatory.

The court granted the stay, pending the outcome of the enforcement application. The appellant's appeal was stayed, and the enforcement application was allowed to proceed. The court's decision balanced the need for finality in the enforcement of the principal judgment against the appellant's right to appeal. The stay was intended to prevent the appeal from becoming nugatory and to ensure that the enforcement application could be completed without undue delay.

Orders