Rinehart v Rinehart - [2015] NSWSC 205

Supreme Court

New South Wales

Medium Neutral Citation: Bianca Hope Rinehart v Georgina Hope Rinehart [2015] NSWSC 205
Hearing dates: 10 March 2015
Date of orders: 10 March 2015
Decision date: 10 March 2015
Jurisdiction: Equity Division
Before: Darke J
Decision:
Subpoena not set aside as an abuse of process. Notice to Produce set aside.

Catchwords:
PRACTICE AND PROCEDURE – subpoena issued by applicant for preliminary discovery – some overlap between documents sought on subpoena and documents sought on preliminary discovery – whether subpoena should be set aside as an abuse of process – no abuse of process shown – Uniform Civil Procedure Rules r 5.3
PRACTICE AND PROCEDURE – notice to produce – – non-compliance with Equity Division Practice Note 11 – defects in form of notice – notice set aside
Legislation Cited: Uniform Civil Procedure Rules r 5.3
Cases Cited: Glencore International AG v Selwyn Mines Ltd [2005] FCA 801; (2005) 223 ALR 238
Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69; (2010) 77 NSWLR 506
Ian Edward Morton & 5 Ors v Nylex Ltd & 1 Or [2007] NSWSC 562
Liu v The Age Company Ltd [2011] NSWSC 53
Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts [2007] FCA 1398
The Owners Strata Plan SP 69567 v Baseline Constructions Pty Ltd [2012] NSWSC 502
Tony Hassan Noun v Margaret Pavey [2014] NSWSC 429
Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd [2005] FCAFC 115; (2005) 142 FCR 428
Category: Procedural and other rulings
Parties:
Bianca Hope Rinehart (first plaintiff)
John Langley Hancock (second plaintiff)
Georgina Hope Rinehart (first defendant)
Hancock Prospecting Pty Limited (second defendant)
Representation:
Counsel: C Withers, A Hochroth (plaintiffs)
S Lawrance (first defendant)
D Studdy SC, A Shearer (second defendant)
Solicitors: Yeldham Price O’Brien Lusk (plaintiffs)
Speed and Stracey Lawyers Pty Limited (first defendant)
Corrs Chambers Westgarth (second defendant)

File Number(s): 2014/353713
Publication restriction: Nil

Judgment – EX TEMPORE

By a Summons filed 1 December 2014 the plaintiffs seek orders that the defendants provide preliminary discovery pursuant to Uniform Civil Procedure Rules r 5.3. The application is supported by affidavits sworn by the solicitor for the plaintiffs, Mr Timothy Price, on 1 December 2014 and 19 December 2014. A further affidavit sworn by Mr Price on 6 February 2015 was read today in relation to the interlocutory matters before the Court.
On 17 December 2014 the plaintiffs caused a subpoena to be issued, directed to a non-party, Wright Prospecting Pty Ltd (“Wright Prospecting”). On 23 December 2014 the second defendant issued a notice to produce directed to the plaintiffs. Before the Court today are notices of motion seeking the setting aside of the subpoena and the notice to produce.
Before dealing with the arguments raised in relation to the motions it is desirable to say something about the background to the disputes.
The plaintiffs are two of four beneficiaries of a trust known as the Hope Margaret Hancock Trust. Amongst the assets of the…

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: [2015] NSWSC 205
Decision Date: 10 March 2015

CaseChat Overview and Summary

In the Federal Court of Australia, Gina Rinehart sought to set aside a subpoena issued by her mother, Hancock Prospecting, for the purpose of preliminary discovery. The dispute arose from a complex family dispute involving allegations of breach of fiduciary duty and mismanagement of family assets. The court was tasked with determining whether the subpoena should be set aside as an abuse of process due to the overlap between the documents sought in the subpoena and those sought in the preliminary discovery process. Additionally, the court had to consider whether a notice to produce was properly issued under the Equity Division Practice Note 11.

The court found that there was no evidence of an abuse of process in the issuance of the subpoena. The overlap between the documents sought in the subpoena and those sought in the preliminary discovery did not, in itself, constitute an abuse of process. The court noted that the Uniform Civil Procedure Rules rule 5.3 permits the issuance of subpoenas for preliminary discovery to expedite the discovery process and avoid duplication. Furthermore, the court held that the notice to produce was defective in form, as it did not comply with the requirements of Equity Division Practice Note 11, and thus, the notice was set aside.

In summary, the court held that the subpoena was not an abuse of process, and therefore, it should not be set aside. However, the notice to produce was defective in form and was set aside. The court's decision reinforces the importance of adhering to procedural requirements in the context of family disputes and the need for parties to act in good faith when issuing subpoenas and notices to produce.

Orders