(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
[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.
Continue reading Hancock v Rinehart (Privilege)
Sign in free to access the full text
Details
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.