Rinehart v Rinehart

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Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Rinehart v Rinehart [2016] NSWCA 58
Hearing dates:22 March 2016
Decision date: 24 March 2016
Before: Beazley P;
Leeming JA;
Simpson JA
Decision:

Summons seeking leave to appeal filed on 16 February 2016 dismissed with costs.

Catchwords: APPEAL – application for leave – documents produced on subpoena by solicitors for former trustee – former trustee claimed documents were privileged in her personal capacity as opposed to her capacity as trustee – primary judge rejected claim – challenge to finding that no evidence supporting claim had been adduced – challenge to primary judge's declining to inspect the documents – no prospect of any different result – leave refused
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-59
Evidence Act 1995 (NSW), ss 118, 119 and 136
Uniform Civil Procedure Rules 2005 (NSW), rr 1.8, 51.53
Cases Cited: Hancock v Rinehart [2016] NSWSC 116
Category:Principal judgment
Parties: Gina Hope Rinehart (Applicant)
Bianca Hope Rinehart (First Respondent)
John Langley Hancock (Second Respondent)
Representation:

Counsel:
B R McClintock SC, R Mansted (Applicant)
C H Withers, A M Hochroth (Respondents)

  Solicitors:
Speed & Stracey Lawyers (Applicant)
Yeldham Price O’Brien Lusk (Respondents)
File Number(s):2016/49482
Publication restriction:Nil
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity Division
Citation:
[2016] NSWSC 12
Date of Decision:
2 February 2016
Before:
Brereton J
File Number(s):
2011/285907

Judgment

  1. THE COURT: The question sought to be raised on this application for leave to appeal is whether there was appellable error in the decision by the primary judge to reject a claim of privilege by a former trustee against the current trustee. It will be convenient, without conveying any disrespect, to refer to the applicant, Mrs Gina Rinehart, and the respondents, who are her children, Ms Bianca Rinehart and Mr John Hancock, by their given names.

  2. Bianca has been appointed the new trustee of the Hope Margaret Hancock Trust, in place of Gina. There is a dispute as to whether Gina has delivered all trust documents to Bianca. In connection with that dispute, a subpoena for production was issued at Bianca’s request to Sceales & Company, a law firm, which has produced documents to the court.

  3. First access was given to Gina. An affidavit sworn by her current solicitor identified some 64 documents which were said to be documents in respect of which Gina made a claim of privilege personally, as opposed to in her capacity as a trustee. Bianca and John contended that Gina had not established her claim.

  4. It is accepted by all parties that Gina, as the former trustee, is not able to maintain a claim of privilege as against the current trustee Bianca, in respect of privileged documents where her privilege is held in her capacity as a trustee. Hence, in order to resist production, it was necessary for Gina to establish not merely that the documents were privileged, and not merely that the privilege was that of…

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Details
Case
[2016] NSWCA 58
Decision Date

CaseChat Overview and Summary

This appeal concerned an application for leave to appeal a decision of the primary judge regarding claims of privilege over documents. The applicant, Mrs Rinehart, sought to appeal the primary judge's rejection of her claim that certain documents, produced by her former solicitors pursuant to a subpoena, were privileged in her personal capacity, rather than in her capacity as a former trustee.

The central legal issues before the Court of Appeal were whether the primary judge erred in finding that no evidence had been adduced to support Mrs Rinehart's claim of privilege in her personal capacity, and whether the primary judge wrongly declined to inspect the documents in question. The applicant argued that the primary judge's findings were erroneous and that a different outcome would have been reached had the documents been inspected.

The Court of Appeal found no prospect of a different result. It reasoned that the primary judge's conclusion that no evidence supported the claim of personal privilege was sound, and that the refusal to inspect the documents was therefore not an error. The Court applied the principles governing the assessment of privilege claims and the discretion of a judge to inspect documents, finding no basis to interfere with the primary judge's decision.

Consequently, the summons seeking leave to appeal was dismissed with costs.

Orders

Orders of the court

Summons seeking leave to appeal filed on 16 February 2016 dismissed with costs.

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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