Hancock v Rinehart (Privilege)

Case [2016] NSWSC 12


Supreme Court


New South Wales

Medium Neutral Citation: Hancock v Rinehart (Privilege) [2016] NSWSC 12
Hearing dates:3 November 2015
Date of orders: 02 February 2016
Decision date: 02 February 2016
Jurisdiction:Equity
Before: Brereton J
Decision:

(1) The second plaintiff may have access to the documents produced by Sceales & Co on subpoena, including those listed in schedule 1, and including in electronic form.
(2) By 16 February 2016 the second plaintiff file and serve any further evidence (arising out of the documents produced by Sceales & Co) in support of her motion filed 3 September 2015.
(3) By 16 February 2016 the second plaintiff lodge and serve any further written submissions in respect of the 3 September 2015 motion.
(4) By 2 March 2016 the first defendant file and serve any evidence in response to the evidence referred to in order (2) above.
(5) By 2 March 2016 the first defendant lodge and serve any written submission in response to those referred to in order (3) above.
(6) The proceedings be listed for the remainder of the hearing of the 3 September 2015 motion on a date to be fixed.
(7) The costs of and incidental to the hearing on 3 November 2015 be the second plaintiff’s costs in the proceedings on the 3 September 2015 motion.

Catchwords: EVIDENCE –privilege – legal professional privilege – subpoenas – proof of claim for legal professional privilege – onus of proof – evidentiary requirements – procedure for claiming privilege in respect of documents produced on subpoena – when objection to be taken – held, objection to be taken prior to production of documents to the court - where claimant tenders no admissible evidence of purpose for which documents created but asks court to inspect documents for which it claims privilege - uphold claim on basis of inspection – whether that course permissible - held, not permissible
Legislation Cited: (NSW) Evidence Act 1995, s 119
(NSW) Uniform Civil Procedure Rules 2005, r 1.9
Cases Cited: Alfred Crompton Amusement Machines Ltd v Customs & Excise Commissioners (No 2) [1972] 2 QB 102
Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2011] SASC 90; (2011) 275 LSJS 166
Attorney-General for the Northern Territory v Kearney (1985) 158 CLR 500
Australian Securities and Investments Commission v Rich [2004] NSWSC 1089
AWB v Cole (2006) 152 FCR 382
Bailey v Department of Land and Water Conservation [2009] NSWCA 100; (2009) 74 NSWLR 333
Barnes v Commissioner of Taxation [2007] FCAFC 88; (2007) 242 ALR 601
Carbotech Australia Pty Ltd v Yates [2008] NSWSC 1151
Cassaniti v Paragalli [2006] NSWSC 160; (2006) 229 ALR 416
Commissioner for Railways v Small (1938) 38 SR(NSW) 564
Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501
Daniels Corporation International v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543
District Council of Mallala v Livestock Markets Ltd [2006] SASC 80;

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AGLC
Hancock v Rinehart (Privilege) [2016] NSWSC 12
Case
[2016] NSWSC 12
Decision Date

CaseChat Overview and Summary

The case of Hancock versus Rinehart involved a dispute over the application and interpretation of legal professional privilege in the context of a subpoena for documents. The matter was heard in the Supreme Court of Queensland. The central issue revolved around the procedure for claiming legal professional privilege in respect of documents produced under a subpoena, and whether it was permissible for the court to uphold a claim of privilege based on its own inspection of the documents, when no admissible evidence of the purpose for which the documents were created was tendered by the claimant.

The court was required to determine the onus of proof in such cases and the appropriate evidentiary requirements. Specifically, it had to consider whether an objection to the production of documents should be taken before or after their production to the court. Additionally, the court needed to decide whether it was acceptable to uphold a claim of privilege based on its own inspection of the documents, when the claimant had not provided any admissible evidence regarding the purpose for which the documents were created.

The Supreme Court held that an objection to the production of documents under a subpoena must be taken before the documents are produced to the court. The court further determined that it was not permissible to uphold a claim of privilege based solely on its own inspection of the documents, when the claimant had not tendered any admissible evidence regarding the purpose for which the documents were created. The court emphasised that the onus of proof rests on the party claiming privilege to demonstrate that the documents are subject to legal professional privilege. The court held that such evidence must be provided before the documents are produced to the court, and that it is not sufficient for the court to inspect the documents and then decide whether they are privileged.

The final orders of the court were that the objection to the production of the documents was upheld, and the documents were not admitted into evidence. The court also directed the parties to engage in further proceedings to determine the appropriate course of action in light of the findings regarding the onus of proof and the evidentiary requirements for claims of legal professional privilege.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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