Hancock v Rinehart (Errata)

[2016] NSWSC 72

Supreme Court

New South Wales

Medium Neutral Citation:	Hancock v Rinehart (Errata) [2016] NSWSC 72
Hearing dates:	3 November 2015
Decision date:	16 February 2016
Jurisdiction:	Equity
Before:	Brereton J
Decision:	Application denied
Catchwords:	PROCEDURE – judgments and orders – correction of alleged misstatements of fact – alleged errors immaterial to decision – where no appeal from judgment – where judgment already reported
Cases Cited:	Hancock v Rinehart [2015] NSWSC 646; (2015) 106 ACSR 207 Hancock v Rinehart (Privilege) [2016] NSWSC 12
Category:	Procedural and other rulings
Parties:	John Langley Hancock (1st plaintiff) Bianca Hope Rinehart (2nd plaintiff) Gina Hope Rinehart (1st defendant)
Representation:	Counsel: C Withers w P. Meagher (plaintiffs) BR McClintock w S.A. Lawrance (1st defendant)   Solicitors: Yeldham Price O’Brien Lusk (plaintiffs) Speed and Stracey (1st defendant)
File Number(s):	2011/285907

Judgment

1. The substantive judgment in these proceedings was delivered, and orders made, on 28 May 2015. [1] It has since been reported. [2] On 3 November 2015 – although the intention to do so had been foreshadowed some time earlier – when the court was about to embark on the hearing of the plaintiffs’ application for access to certain documents in respect of which the first defendant claimed legal professional privilege, [3] senior counsel for the first defendant handed to the court a document entitled “First Defendant’s Errata Schedule”, which proposed for consideration ten “typographical amendments” to the first five paragraphs of the substantive judgment, as follows:

   1. Hancock v Rinehart [2015] NSWSC 646.

   2. (2015) 106 ACSR 207.

   3. See Hancock v Rinehart (Privilege) [2016] NSWSC 12.

1. “24% shareholding” in paragraph [1] to be changed to “23.45% shareholding”;

2. The Trust owning “50%” of the total issued cumulative special shares in paragraph [2] to be changed to “33⅓%”;

3. 17.7% corresponding to “1062” A class shares in paragraph [2] to be changed to “1593” of the A class shares;

4. 17.7% corresponding to “118” cumulative special shares in paragraph [2] to be changed to “177” cumulative special shares;

5. “1938” A class shares in paragraph [2] to be changed to “1407” A class shares;

6. “215” cumulative special shares in paragraph [2] to be changed to “156” cumulative special shares;

7. “32.3%” of the issued ordinary capital in paragraph [2] to be changed to “15.63%”;

8. The Trust being said to being “worth about $5 billion” in paragraph [4] being changed to being “worth about $5 billion in or about June 2014”;

9. The distributions made by the trust in 2011-12 of “$1,286,570” in paragraph [5] being changed to “$2,022,164”; and

10. The distributions made by the Trust in 2012-13 of “$3,554,998” in paragraph [5] being changed to “$3,554,999”.

2. The amendments proposed are not in fact typographical, but – to varying degrees – would change matters of history recorded in the judgment.

3. Some of the matters raised (for example, (a) - the reference in [1] to a “24% shareholding”, which the first defendant proposes be changed to “23.45% shareholding”), reflect no more than rounding in the judgment to avoid unnecessary complexity: all that was potentially relevant was that the holding was less than the 25% which could have defeated a special resolution. Others (for example, (j)) are plainly de minimis.

4. Most of the others (in particular, (b) through (g)) are said to reflect the circumstance that it is said that at the time of Mr Lang Hancock’s death, there were 9000 ordinary (A, B and C class) shares in HPPL, and 999 CS shares, whereas the current structure is 6000 ordinary (A and B class) and 666 CS shares. However, I do not believe that this was apparent from the evidence before the court in the substantive hearing, or if it was it was not adverted to; thus the comment in [4] of the substantive judgment to the effect that the ultimate state of the shareholding was not explained by the evidence but was not the subject of any issue in the proceedings.

5. As the substantive hearing concluded in June 2014, one might have thought that (h) was self-evident. As to (i), it appears that the sum of $1,286,570 referred to in the judgment was the amount of distributions that had been paid; the further $735,594 (being the difference between that and the figure of $2,022,164 proposed by the defendant) was said (by the defendant) to remain unpaid and to be the subject of a lien claimed by the trustee [CB5/3724].

6. No party suggests that the matters in question would have made any difference to any issue decided in the substantive proceedings. No appeal has been brought from the substantive judgment. The plaintiffs agreed that they would not contend that any issue estoppel arose from the matters in questions.

7. In those circumstances, it is neither useful nor appropriate to “correct” the matters mentioned. I am unpersuaded that they involve any material inaccuracy in the facts as revealed by the evidence that was before the court. Moreover, even if they did, although there is attraction in the view that a judgment should be an accurate historical record, it must always be based on the evidence in the case, and should reflect the basis on which the court proceeded, even if that does not entirely accord with facts that might be demonstrated extraneously.

8. I decline to “correct” the reasons for judgment as requested.

**********

Endnotes

Decision last updated: 16 February 2016