Rinehart v Rinehart

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…