Hancock v Rinehart

[2015] NSWSC 2148

Supreme Court

New South Wales

Medium Neutral Citation:	Hancock v Rinehart [2015] NSWSC 2148
Hearing dates:	3 November 2015
Date of orders:	03 November 2015
Decision date:	03 November 2015
Jurisdiction:	Equity
Before:	Brereton J
Decision:	Defendant’s notice to produce set aside.
Catchwords:	PROCEDURE – notices to produce – application to set aside notice to produce – legal professional privilege – whether legal professional privilege waived by production of documents – where production of documents inadvertent or unintentional – where lengthy passage of time and failure to raise question of inadvertence.
Cases Cited:	Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538
Category:	Procedural and other rulings
Parties:	John Langley Hancock (first plaintiff) Bianca Hope Rinehart (second plaintiff) Gina Hoper Rinehart (first defendant)
Representation:	Counsel: C Withers w P Meagher (plaintiffs) B R McClintock w S A Lawrance (first defendant)   Solicitors: Yeldham Price O’Brien Lusk (plaintiffs) Speed and Stracey (first defendant)
File Number(s):	2011/285907

Judgment (ex tempore)

1. HIS HONOUR: The plaintiffs have served on the defendant a notice to produce documents relating to an email from John Gilmore to Terry Solomon dated 31 July 2006. The first defendant has produced documents to the Court in answer to that notice but objects to access being granted claiming that they are the subject of her legal professional privilege and in addition applies in effect to set aside the notice on the basis that the subject email may have been disclosed unintentionally or by accident and ought to be retrieved and the notice to produce founded on it set aside. In connection with that application, the first defendant has given to the plaintiffs a notice to produce documents which tend to evidence how they or their representatives came to be in possession or control of the 31 July 2006 email, and, in turn, in effect, move to set aside that notice, on the basis that it is issued for no legitimate forensic purpose, given that the subject email has been tendered and admitted into evidence in other proceedings between the parties in the Federal Court of Australia, as part of a file of solicitors who in 2006 acted for the second plaintiff Bianca in connection with the Hope Downs deed.

2. It is no doubt the case that, where documents are produced inadvertently in circumstances where there is an accelerated process of disclosure and an oversight or mistake is understandable, the Court may treat any privilege in connection with that document as not having been intentionally waived [see Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538 (Rogers J)]. On the other hand, where there is a lengthy passage of time and where earlier opportunities to raise a question of inadvertence have not been availed of, the appropriateness of such a course becomes increasingly dubious.

3. In 2006, when the Hope Downs deed was negotiated and made, the interests of Bianca and the first defendant were more or less aligned; at least, they were not at odds. It is clear, from other material, that the first defendant communicated with Bianca about matters relating to the allegations then propounded by John. In that context it is quite unsurprising that Bianca, then more or less an ally of the first defendant, might be in possession of a communication relating to advice received by the first defendant concerning John's allegations. If the circumstances were more sinister, one might explore the issue at greater length; but in my view the circumstance that Bianca's representatives in 2006 were in possession of this email does not call for explanation.

4. Given the time that has passed since 2006 and the opportunities that have arisen earlier to protest that the email was disclosed inadvertently, it seems to me that to allow this issue, which is adjectival to another notice to produce, which is adjectival to a motion for production for inspection of documents, which in turn is adjectival to the plaintiffs' motion for further orders to give effect to the orders of last May, would be allowing the issues to be unnecessarily expanded into yet another rabbit hole in the burrow.

5. The Court orders that the defendant's notice to produce of 3 November 2015 be set aside.

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Decision last updated: 22 September 2017