The Hancock Family Memorial Foundation Ltd v Fieldhouse [No 6] - [2021] WASC 210

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   THE HANCOCK FAMILY MEMORIAL FOUNDATION LTD -v- FIELDHOUSE [No 6] [2021] WASC 210
CORAM:   LE MIERE J
HEARD:   12 APRIL 2021
DELIVERED          :   2 JULY 2021
FILE NO/S:   CIV 1802 of 1995
BETWEEN:   THE HANCOCK FAMILY MEMORIAL FOUNDATION LTD
Plaintiff
AND
CARNEGIE RICHMOND HALLETT FIELDHOUSE
First Defendant
MARTIN LAWRENCE BENNETT
GARY RICHARD SCHWAB
GEORGINA HOPE RINEHART (as Executors of the Estate of LANGLEY GEORGE HANCOCK)
Second Defendants

Catchwords:

Practice and procedure - Production and inspection - Access to documents - Non-parties

Legislation:

Corporations Act 2001 (Cth)
Federal Court Rules 1979 (Cth)
Insurance Contracts Act 1984 (Cth)
Rules of the Supreme Court 1971 (WA)

Result:

Leave given to inspect certain documents

Category: B

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendants	:	No appearance
Applicant	:	Mr A Hochroth
First Respondent	:	Mr C Bova SC & Mr T O'Brien
Second Respondents	:	Mr J Hutton

Solicitors:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendants	:	No appearance
Applicant	:	YPOL Lawyers
First Respondent	:	Speed & Stracey Lawyers
Second Respondents	:	Corrs Chambers Westgarth

Case(s) referred to in decision(s):

Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd [No 3] [2002] FCA 609; (2002) ATPR 41-873
Broad Construction Services (WA) Pty Ltd v The Construction Forestry Mining & Energy Union of Workers [2007] WASC 133
Dian AO v Davis Frankel & Mead [2004] EWHC 2662 (Comm); [2005] 1 WLR 2951
Dring (on behalf of the Asbestos Victims Support Groups Forum UK) v Cape Intermediate Holdings Ltd (Media Lawyers Association Intervening) [2019] UKSC 38; [2020] AC 629
Dring (on behalf of the Asbestos Victims Support Groups Forum UK) v Cape Intermediate Holdings Ltd [2020] EWHC 1873 (QB); [2021] 1 All ER (Comm) 848
Hancock Family Memorial Foundation Ltd v Fieldhouse [No 4] [2012] WASC 176
Hancock Family Memorial Foundation Ltd v Fieldhouse [No 5] [2013] WASC 121
Hancock v Rinehart (Trust Documents) [2018] NSWSC 1684
Hancock v Rinehart [2015] NSWSC 646; (2015) 106 ACSR 207
Hancock v Rinehart [2020] NSWSC 1853
The Chartered Institute of Arbitrators v B [2019] EWHC 460 (Comm); [2019] WLR (D) 146
Universal Music Australia Pty Ltd v Sharman Licence holdings Ltd, ex parte Merlin BV [2008] FCA 783; (2008) 222 FCR 580
Vikas Rambal (atf The Vikas Rambal Family Trust) v Pankaj Oswal (atf The Burrup Trust) [2014] WASC 86

LE MIERE J:

Summary

In 1995, the plaintiff, the Hancock Family Memorial Foundation Ltd (HFMF), commenced this proceeding against Carnegie Fieldhouse. Mr Fieldhouse died in 2007. His estate took no part in the action after his death. In 2010, I joined representatives of five Lloyd's syndicates as defendants. The trial took place over five days in 2012. In 2013, I delivered reasons for judgment[1]. I dismissed the plaintiff's claim against the Lloyd's syndicates.
[1] Hancock Family Memorial Foundation Ltd v Fieldhouse [No 5] [2013] WASC 121.
The applicant, Bianca Hope Rinehart (Bianca), is the trustee of the Hope Margaret Hancock Trust (HMH Trust). HMHT Investments Pty Ltd (HMHTI) is, and has been since 24 October 1995, the controlling member of HFMF. From 24 October 1995 until 27 April 2012, HMHTI was wholly owned by Ms Gina Rinehart (Gina) as trustee of the HMH Trust. On 27 April 2012, Gina, as trustee of the HMH Trust, ceased to hold shares in or be a member of HMHTI, and Hancock Prospecting Pty Ltd (HPPL) became a shareholder in and the controlling member of HMHTI. Bianca was appointed trustee of the HMH Trust by order of the Supreme Court of New South Wales on 28 May 2015[2].
[2] Hancock v Rinehart [2015] NSWSC 646; (2015) 106 ACSR 207.
Bianca, as trustee of the HMH Trust, has applied for leave to inspect certain documents held by the court in these proceedings.
For the reasons which follow, Bianca, as trustee of the HMH Trust, will be given leave to inspect and copy the documents referred to in [56] of my reasons.

The action

Prior to his death in 1992, Lang Hancock (Lang) controlled a group of companies which included the plaintiff, HFMF, and HPPL. Lang held a share, called the Life Governor's Share No 1 (Life Governor's Share), in HPPL. That share gave him effective control of HPPL and its board. Shortly before his death, Lang sold this Life Governor's Share to HFMF for $20 million. HFMF alleged that the price it paid for the share was far in excess of its actual worth.
The first defendant, Mr Fieldhouse, was a solicitor who had been employed by and worked for Lang and his group of companies. In 1995, HFMF commenced proceedings against Mr Fieldhouse alleging that he was in a position of conflict in acting as a solicitor for both Lang and HFMF in connection with the sale of the Life Governor's Share to HFMF. In the action, HFMF asserted that Mr Fieldhouse breached fiduciary and common law duties he owed to it, and acted negligently in advising it.
Mr Fieldhouse died in 2007. I subsequently ordered that the five Lloyd's syndicates be joined as defendants. HFMF asserted that the Lloyd's syndicates were parties to a contract of liability insurance that provided insurance cover in respect of Mr Fieldhouse's liability to HFMF. It further asserted that, if HFMF could prove that Mr Fieldhouse was liable in damages to it, then it might recover from the Lloyd's syndicates an amount equal to their liability under the contract, or contracts in respect of Mr Fieldhouse's liability in damages to HFMF by reason of s 51 of the Insurance Contracts Act1984 (Cth).
The action proceeded to trial in 2012. Mr Fieldhouse's estate took no part in the trial. Indeed, Mr Fieldhouse's estate had taken no part in the action.
I found that the Lloyd's syndicates were not liable under the contracts of liability insurance between them and Mr Fieldhouse in respect of Mr Fieldhouse's liability and damages to HFMF. Accordingly, I found that HFMF was not entitled to recover from the Lloyd's syndicates under s 51(1) of the Insurance Contracts Act.
It was unnecessary to consider whether Mr Fieldhouse, or his estate, was liable in damages to HFMF. However, in case the matter went on appeal, I set out my findings in relation to the liability of Mr Fieldhouse to HFMF. I found that Mr Fieldhouse did not owe any relevant duty of care to HFMF. I further found that, if Mr Fieldhouse owed the alleged duty to exercise reasonable care in acting for HFMF in the transaction concerning the sale of the Life Governor's Share, he breached that duty and the breach caused HFMF to suffer loss and damage of at least $16 million.

Documents which Bianca seeks to inspect

On 20 December 2019, the solicitors for Bianca, in her capacity as trustee of the HMH Trust, wrote to the court seeking access to documents on the court file. At the direction of the court, Bianca issued her chamber summons of 8 May 2020, by which she seeks access to inspect a large number of documents in Annexure A and Annexure C to her chamber summons. Annexure A listed 46 affidavits and three witness statements which were recorded on the index to the court file as having been filed. Annexure C listed 78 documents derived from the list of exhibits issued by the court. Each of the exhibits was admitted into evidence.
Bianca seeks access only to the documents which were received in evidence as exhibits at the trial of the action and affidavits read in the course of the proceedings.
I caused my associate to review the transcript of the trial to try and identify which, if any, of the affidavits to which Bianca seeks access were read during the trial.
On my instructions, my associate informed the parties by letter of 19 April 2021 as follows:
In relation to the application to inspect documents filed on behalf of Bianca Hope Rinehart in her capacity as Trustee of the Hope Margaret Hancock Trust, the court's current understanding is as follows:
The parties agree the following affidavits were read during the course of the matter:
•Folio document 12: Affidavit of D Neill sworn 11 October 2002
•Folio document 15: Affidavit of D Neill sworn 19 September 2003
•Folio document 17: Affidavit of CRH Fieldhouse sworn 31 October 2003
•Folio document 87: Affidavit of NH Brown sworn 22 May 2008
•Folio document 214: Affidavit of RFF Edwards sworn 17 April 2015
•Folio document 220: Affidavit of RFF Edwards sworn 20 July 2015
After reviewing the transcript of proceedings, the court understands the following affidavits were referred to during the proceedings:
•Folio document 199 and Exhibit 200: Affidavit of Bradley George Ross sworn 30 April 2012
•At pp 792-3 of transcript.
•Folio document 35: Affidavit of discovery of CRH Fieldhouse sworn 7 April 2006
•At p 912 of transcript.
•Folio document 41: Affidavit of discovery of Watroba sworn May 2006
•At p 922 of transcript.
•Exhibit 202: Affidavit of CRH Fieldhouse sworn 7 May 2002
•At p 943 of transcript.
With reference to Attachment 2 of the Affidavit of Timothy Randolph Price sworn 16 February 2021, the court has identified the following affidavits which contain documents referred to in Fieldhouse Judgments:
•Folio document 89: Affidavit of Mr Brown sworn 28 May 2008
•Containing document 14 of Attachment 2: a letter to HFMF's solicitor dated 30 April 2008.
•Folio document 90: Affidavit of Mr Edwards sworn 4 June 2008
•Containing document 17 of Attachment 2: a letter from LawCover to Foundation's solicitors dated 4 June 2008.
•Folio document 92: Affidavit of Mr Brown sworn 9 June 2008
•Containing:
•document 15 of Attachment 2: a letter to Nicholas Brown dated 6 June 2008; and
•document 16 of Attachment 2: a letter to defendant's solicitors dated 6 June 2008.
Senior counsel for Gina, Mr Bova SC, accepted that the affidavits identified as folio documents 12, 15, 17, 87, 214 and 220 in my associate's letter were read in court during the course of the matter. In relation to the affidavits identified in my associate's letter as folio documents 199, 35, 41 and 202, Mr Bova accepted that the affidavits which are folio document 199 and exhibit 202 were tendered and received as evidence. Mr Bova accepted that the affidavits identified as folio documents 35 and 41 were referred to during the course of the proceedings, but submits that Bianca has not discharged her onus of demonstrating that they were read or received in evidence. Mr Bova did not accept that the affidavits referred to as folio documents 89, 90 and 92 were read or received in evidence in the proceedings.

The HMH Trust

The HMH Trust was established in 1988. Until 29 May 2015, when she retired as trustee in the circumstances recounted by Brereton J in Hancock v Rinehart [2015] NSWSC 646; (2015) 106 ACSR 207, Gina was the trustee of the Trust. Gina was replaced as trustee, by order of Brereton J made on 28 May 2015, by Bianca. At that time, an order was made that Gina deliver up to Bianca all documents of the HMH Trust in her possession, custody or power, but with liberty to Gina to apply to be relieved from that order in respect of any particular document or class of document. Following the making of the orders in 2015, various documents were produced to Bianca. However, complaint was made by Bianca as to the adequacy of production by Gina.
On 3 September 2015, Bianca filed a notice of motion seeking to enforce the delivery up order (the September 2015 motion) on the basis that delivery up of the documents was incomplete.
The hearing of the September 2015 motion (and related application) took place before Brereton J. In November 2018, Brereton J delivered reasons identifying categories of documents that were held to be HMH Trust documents and which were required to be produced.[3] Since that time, there have been various interlocutory disputes in relation to the delivery up of documents. The task of delivery up is complex, in part because a large number of documents of the HMH Trust are held in the possession of HPPL, with the HMH Trust records not having been kept separate.[4] By motion of 29 May 2020, Bianca sought orders for the delivery up of transcripts of the examination of Gina by the trustee in bankruptcy of Lang and files of documents from Sceales & Co, Solicitors, addressed to Gina as trustee of the HMH Trust (the Sceales files). By motion of 2 April 2020, Gina sought a stay of Bianca's delivery up motion and an injunction to restrain Bianca from taking any further steps to obtain or request from this court access to filed court documents in this proceeding. Gina also sought dispensation from the requirement to produce the documents sought by Bianca in the event that they were held to be HMH Trust documents and the stay motion was not granted.
[3] Hancock v Rinehart (Trust Documents) [2018] NSWSC 1684.
[4] Hancock v Rinehart [2020] NSWSC 1853.
On 17 December 2020, Ward CJ in Eq found that the Sceales files are documents of the HMH Trust falling within the delivery up order. The court found that copies of the bankruptcy transcript held by HPPL are not documents of the HMH Trust falling within the delivery up order, but that any copies held by Gina are such documents. However, the court determined that the order up for delivery of these documents should be stayed pending the determination of the arbitration being conducted before the Hon Wayne Martin AC QC and others, to which the parties to the present proceedings and others are party (the Martin Arbitration). Furthermore, the court determined that to the degree necessary, there should be a dispensation from the requirement to produce until the Martin Arbitration has been determined.[5]
[5] Hancock v Rinehart [2020] NSWSC 1853.
In relation to the application by Bianca to access the court files of this court, which is the application I am now dealing with, Ward CJ in Eq determined that an injunction restraining Bianca from taking steps to pursue the application should not be granted.

Access to information, records and things held by the court

The rights of a non-party to inspect and copy information or a record or other thing held by the court in respect of a proceeding commenced before 1 March 2018 are set out in O 67B div 7 of the Rules of the Supreme Court1971 (WA) (RSC).[6] Order 67B r 16, in div 7, provides a bifurcated framework for access to court documents. Some documents may be accessed as of right; others require permission to be accessed. Rule 16(1)(a) - (d) provides that a non-party is, on payment of the prescribed fee, entitled to inspect and be given a copy of a writ, a statement of claim, an originating application under the Corporations Act 2001 (Cth), an appeal notice, a judgment, or an order. Rule 16(1)(e) provides that any other filed document may only be accessed with the leave of the court. None of the documents which Bianca seeks to inspect are documents which a non-party is entitled to inspect as of right. Accordingly, Bianca seeks leave of the court to inspect and copy those documents.
[6] Rules of the Supreme Court 1971 (WA) O 67B r 15.
The major difference between the parties as to the principles to be applied by the court in exercising its discretion is whether it is necessary, before access is granted, for the applicant to show that they have a legitimate interest for inspecting the document. Counsel for Bianca, Mr Hochroth, submitted that the court should adopt the approach that access should be granted to any member of the public who wishes to inspect a document put into evidence, unless there is good reason to do otherwise.
RSC O 67B r 16(1)(e) does not state the factors that the court is to take into account in exercising its discretion to grant leave. The discretion, like every statutory discretion, is limited by the subject matter, scope and purpose of the statute under which it is considered. In Universal Music v Sharman,[7] Jacobson J said in relation to the provision in the Federal Court Rules 1979 (Cth) which is similar to RSC O 67B r 16(1)(e), that the discretion is to be exercised in the interests of justice, having regard to all the circumstances.
[7] Universal Music Australia Pty Ltd v Sharman Licence holdings Ltd, ex parte Merlin BV [2008] FCA 783; (2008) 222 FCR 580 [42].
A non-party does not have a right to inspect documents on the court file, other than those specified in r 16(1)(a) - (d), even when the document has been adduced in evidence or referred to in a hearing before the court. It is for the person seeking access to explain why they seek it and how granting them access is in the interests of justice. The court would not grant access to a person who did not have a legitimate purpose for accessing the document.
Counsel for Bianca referred to my decision in Broad Construction Services (WA) Pty Ltd v The Construction Forestry Mining & Energy Union of Workers[8] (Broad Construction Services) in which I considered whether a non-party should be given leave to access filed documents pursuant to the predecessor to RSC O 67B r 16(1)(e). The issue in Broad Construction Services was whether media organisations should be given access to an affidavit, including a video tape which was an annexure to the affidavit, filed and subsequently relied upon by the plaintiff in the proceedings in the course of its application for an interlocutory injunction. I had read the affidavit and viewed the video in the course of my decision‑making on the application for an interlocutory injunction, but the affidavit had not been read out loud and the video has not been shown in the oral hearing before the court. In the course of my reasons I stated that:[9]
I did not require the affidavits to be read out loud or the videos to be played in court. However, the affidavit and videos were received in evidence and should be treated as if the affidavit had been read and the videos had been played in open court. In those circumstances, it is not a necessary condition of leave being granted to inspect and copy the documents that the applicants state on oath the purpose or purposes for which they seek access. That is because the principle of open justice favours the grant of leave to inspect and copy the affidavit and annexures [36].
[8] Broad Construction Services (WA) Pty Ltd v The Construction Forestry Mining & Energy Union of Workers [2007] WASC 133.
[9] Broad Construction Services (WA) Pty Ltd v The Construction Forestry Mining & Energy Union of Workers [2007] WASC 133.
That passage must be read in context. The applicant sought access to the affidavit and videos to assist the media to obtain a full and fair understanding of what had transpired. This was so that informed reporting could occur without incomplete appreciation of source materials, and in a way which enabled the various matters which had come out in court, whether or not actually spoken out loud, to be understood in the full context of the case. Indeed, I went on to state that the media organisation sought access for proper purposes and the principle of open justice favours giving the applicants leave to inspect and copy the affidavits for those purposes.[10]
[10] Broad Construction Services (WA) Pty Ltd v The Construction Forestry Mining & Energy Union of Workers [2007] WASC 133 [37].
In Hancock Family Memorial Foundation Ltd v Fieldhouse [No 4][11] (Hancock Family Memorial [No 4]) I said:
As a general rule, in furtherance of the principle of open justice, the court will grant non-parties access to material that has been admitted into evidence or referred to, or considered by, the judge in the course of a hearing to which the public are admitted [8].
[11] Hancock Family Memorial Foundation Ltd v Fieldhouse [No 4] [2012] WASC 176.

Broad Construction Services and Hancock Family Memorial [No 4] were both cases in which media organisations sought access to documents which had been read or referred to in court. In general, media organisations are better placed than others to demonstrate a good reason for seeking access. That is because, in general, granting access to media organisations advances the open justice principle.
In delivering the judgment of the United Kingdom Supreme Court in Dring v Cape Intermediate Holdings Ltd,[12] Baroness Hale explained that there are two principal purposes of the open justice principle. The first is to enable public scrutiny of the way in which courts decide cases - to hold judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly. The second is to enable the public to understand how the justice system works and why decisions are taken. For this they have to be in a position to understand the issues and the evidence adduced in support of the parties' cases.
[12] Dring (on behalf of the Asbestos Victims Support Groups Forum UK) v Cape Intermediate Holdings Ltd (Media Lawyers Association Intervening) [2019] UKSC 38; [2020] AC 629 [42] - [43].
A court may grant a non-party access to court filed documents pursuant to statutory provisions, including its rules, or pursuant to its inherent power. In Dring v Cape Intermediate Holdings Ltd,[13] the England and Wales High Court was required to determine, following the decision of the Supreme Court, whether the interested party (Cape) should be required to provide the applicant, the Asbestos Victims Support Groups Forum UK, with copies of certain documents placed before the judge and referred to in the course of a trial in which Cape had been the defendant and the applicant had not been a party. After referring to the authorities and the judgment of Baroness Hale in the Supreme Court in Dring v Cape Intermediate Holdings Ltd to which I have referred, Picken J explained that, in exercising its inherent power, the court is concerned not merely with whether access is in accordance with the open justice principle but whether access will advance that principle. Picken J explained the exercise of the court's inherent power to grant access to court filed documents:
I am quite clear, in the circumstances, that a third party should not merely show that access to documents would be in accordance with the open justice principle but also that such access would advance the open justice principle. If the position were otherwise, and an applicant could merely insist on production of documents on the basis that this would be in accordance with the open justice principle, there would be nothing to stop anybody making an application and doing so in overly wide terms. That clearly is not what the Supreme Court (whether in this case or in Kennedy or A v BBC) can have contemplated would justify an application under the inherent jurisdiction [78].
[13] Dring (on behalf of the Asbestos Victims Support Groups Forum UK) v Cape Intermediate Holdings Ltd [2020] EWHC 1873 (QB); [2021] 1 All ER (Comm) 848.
In general, granting access to a media organisation will not merely be in accordance with the open justice principle but also advance the open justice principle. In this context, advancing the open justice principle is the paradigm example of a legitimate interest. In Broad Construction Services and Hancock Memorial Foundation [No 4], the circumstances made it quite clear that granting access was not merely in accordance with the open justice principle but would also advance the open justice principle.
To grant Bianca access to the document sought may be in accordance with the open justice principle, but it would not advance the open justice principle in the way I have explained. It is for Bianca to show that access is necessary for the purpose of the legitimate interest pursued by Bianca. 'Necessary' in this context means convenient or useful, or calculated to produce that end.
A legitimate interest in this context includes a wide range of interests. It includes a private interest but it does not extend to personal curiosity (ie, what is of interest to know; that which gratifies curiosity or merely provides information or amusement).
An application for access for the purposes of collateral investigation or litigation may be in pursuit of a legitimate interest. This is illustrated by Dian AO v Davis Frankel & Mead,[14] Universal Music Australia Pty Ltd v Sharman Licence Holdings Ltd, ex parte Merlin BV,[15] Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd [No 3],[16] Vikas Rambal (atf The Vikas Rambal Family Trust) v Pankaj Oswal (atf The Burrup Trust)[17] and The Chartered Institute of Arbitrators v B.[18] It is in the interests of justice that evidence which has been deployed by a party to advance a case in court should be available for deployment in another court, tribunal or arbitral proceeding where it is relevant.
[14] Dian AO v Davis Frankel & Mead [2004] EWHC 2662 (Comm); [2005] 1 WLR 2951.
[15] Universal Music Australia Pty Ltd v Sharman Licence Holdings Ltd, ex parte Merlin BV [2008] FCA 783; (2008) 222 FCR 580.
[16] Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd [No 3] [2002] FCA 609; (2002) ATPR 41-873.
[17] Vikas Rambal (atf The Vikas Rambal Family Trust) v Pankaj Oswal (atf The Burrup Trust) [2014] WASC 86.
[18] The Chartered Institute of Arbitrators v B [2019] EWHC 460 (Comm); [2019] WLR (D) 146.
It is in the interests of justice that evidence of matters which are relevant to the conduct of a trustee be available to a successor trustee. There is a general public interest in scrutinising and maintaining the standards and conduct of a trustee which extends beyond the interests of the parties to a particular case.
The court will exercise the discretion in the interests of justice, having regard to all the circumstances. The court will carry out a fact specific balancing exercise. The factors which the court will take into account will include the open justice principle, the potential value of the information in advancing the purpose and legitimate interest of the applicant, and any risks of harm which its disclosure may cause to the maintenance of an effective judicial process or the legitimate interests of the owner of the information or others.

Reasons Bianca seeks access

Bianca advances three reasons for, or legitimate interests in, obtaining access to the documents sought in her application. The three reasons are interrelated. First, Bianca is the trustee of a trust (HMH Trust) which held, by a subsidiary (HMHTI), a controlling interest in the plaintiff, HFMF, when the proceedings were commenced and until immediately before the trial commenced. Secondly, Bianca is investigating the administration of the HMH Trust by Gina as the former trustee. Bianca apprehends that the documents that she has requested access to are likely to assist in those investigations. Thirdly, the documents to which Bianca seeks access may include copies of trust records which have not yet been produced by Gina pursuant to orders to produce documents in proceedings in the New South Wales Supreme Court.
On the face of it, those are proper and sufficient reasons for permitting Bianca to access the documents. However, Gina and HPPL submit that Bianca does not have legitimate interest in obtaining the documents and that there is good reason to refuse her access.

Gina submits no legitimate interest and good reason to refuse access

First, Gina submits that the fact that Bianca was the trustee of a trust which held, by a subsidiary, a controlling interest in HFMF is not a legitimate interest in accessing the documents for the following reasons.
(a)As a shareholder in HMHTI, the trustee of the HMH Trust had no legal or equitable interest in the property of HMHTI, and by extension, HFMF. The HMH Trust interest in HFMF was merely as a shareholder of its controlling member.
(b)A shareholder's right to inspect the books and records of the company is limited, relevantly being governed by s 247A of the Corporations Act 2001 (Cth) which requires shareholders to demonstrate that access is sought in good faith and for a proper purpose.
(c)A shareholder is not entitled to access all books and records of the company (let alone a shareholder of a member of the company, such as the HMH trustee), so it cannot be the case that such a shareholder has a legitimate interest in such information.
(d)HPPL became the sole shareholder of HMHTI on 27 April 2012, at which time the interest of the HMH Trust in HFMF (via its shareholding in HMHTI) ceased. That was prior to the final hearing of the proceeding at which the documents and affidavits contained in the exhibit list were read or tendered.
Those matters do not result in the current trustee not having a proper reason for, or a legitimate interest in, accessing the documents sought by this application. It is not a prerequisite for a person being given leave to access documents that the person have a legal or equitable interest in the documents, the owner of the documents or any property involved in the proceedings. The HMH Trust had an economic interest in, and control of, HFMF during the relevant period. Nor is it a prerequisite that the person seeking access have a legal right to inspect the documents.
The present trustee of the HMH Trust has a legitimate interest in the conduct of the previous trustee in relation to HFMF during the time the trust had an economic interest in, and control of, HFMF. Ford and Lee say:
… new trustees should investigate the conduct of the trust prior to their appointment and the trust documents, which they are entitled to do since they belong to them jointly with the continuing trustees.[19]
[19] Ford H, et al, The Law of Trusts: Ford & Lee (online edition, 2012) [9.2210].
The trustee does not cease to have a legitimate interest in proceedings brought by the company in which the trust had an economic interest and control because, at a later time in the proceedings, the previous trustee transferred the shares in the company through which the trust had an economic interest in and control of HFMF, to another company.
Secondly, Gina submits that Bianca has not established that the proceeding was being conducted for the benefit of HMH Trust. HFMF had net assets of $18.4 million. It owed HPPL $18.3 million. HFMF was dependent on the support of HPPL. The proceedings were funded by HPPL. HMH Trust did not stand to gain if HFMF's claim was successful.
The facts asserted by Gina, assuming them to be accurate, form part of the context in which the previous trustee's conduct in relation to HFMF and this action occurred. It does not lessen the interest of the present trustee in investigating the conduct of the previous trustee in relation to HFMF and this action.
Thirdly, Gina submits that Bianca has not demonstrated how the documents on the court file are relevant to her investigations of the administration of the trust by the former trustee. The action concerned the conduct of the solicitor, Mr Fieldhouse, in relation to the sale of Lang's Life Governor's Share in HPPL to HFMF which occurred at a time before HMHTI was a member of HFMF.
Bianca's application is to obtain documents relevant to her investigation of the conduct of the previous trustee. This action was brought and conducted for the most part during the time when HMHTI was a member of HFMF and was owned and controlled by the previous trustee of the HMH Trust.
Fourthly, Gina submits that Bianca has not demonstrated that the documents to which she seeks access include HMH Trust records which have not been produced. Gina further submits that the Supreme Court of New South Wales is managing the provision of HMH Trust documents by Gina to Bianca and has created a regime pursuant to which access to HMH Trust documents will be provided.
That the documents sought include, or are likely to include, HMH Trust documents is not the sole reason for which Bianca seeks access. It is an aspect of her interest to investigate the conduct of the previous trustee during the relevant period. It is likely that the documents sought will include HMH Trust documents because those documents were adduced or read in litigation in which HFMF was the plaintiff at a time when HFMF was controlled by HMHTI which was an asset of the HMH Trust.
In the New South Wales proceedings, Ward CJ in Eq said:
I do not accept that there is an improper purpose in the making of the WA Access Application, nor to I consider that it is an attempt to circumvent the operation of the regime in place in this Court in relation to document production. To the contrary, to my mind, it was open to Bianca through other avenues to obtain the documents sought by her (particularly where it seems to do so may be at less cost to the Trust than would otherwise be the case), then I have no difficulty with her attempting to do so (290).
An order giving Bianca leave to access the documents will not interfere with the proceedings in the Supreme Court of New South Wales. This application is not an improper attempt to circumvent the operation of the regime put in place by the Supreme Court of New South Wales.
Fifthly, Gina submits that Bianca was seeking documents which are relevant to claims Bianca brings in her personal capacity in the Martin Arbitration, but contrary to the interests of the HMH Trust. Senior counsel for Gina, Mr Bova SC, referred to the statement by Ward CJ in Eq:[20]
... I am concerned that there is the spectre that documents sought in the present application may be relevant to (and available for use) in the Martin Arbitration to the detriment of the interests of the HMH Trust (insofar as the release that is sought by Bianca in her personal capacity in the Martin Arbitration would, as I understand it, be to strip the HMH Trust of value of its main asset, namely a shareholding in HPPL) [232].
[20] Hancock v Rinehart [2020] NSWSC 1853.
In the New South Wales proceedings, Ward CJ in Eq held that Gina had not established that Bianca has an improper purpose in seeking the delivery up of the documents, nor that Bianca was seeking the documents in order to progress her personal claims in the Martin Arbitration. Her Honour accepted that Bianca does not consider that the allegations made in the Martin Arbitration are inconsistent with the allegations made in the context of her applications for delivery up of the documents. Her Honour said:[21]
I also accept that Bianca is concerned to ensure that she complies with her duties as trustee of the HMH Trust to obtain a complete understanding of the complex history of the Trust [231].
[21] Hancock v Rinehart [2020] NSWSC 1853.
The evidence does not establish that Bianca is seeking access to the documents for the purpose of using them to pursue her personal interests in the Martin Arbitration. Her solicitor's letter of 20 December 2019 seeking access to the documents stated that Bianca sought the documents in her capacity as trustee of the HMH Trust and the interests of the trustee in the documents. In his affidavit sworn on 20 April 2021 Timothy Price, the solicitor for Bianca in her capacity as trustee of the HMH Trust, swore that he is informed by the trustee and verily believes that the trustee:
(a)is investigating the administration of the trust by Gina as the former trustee and those investigations include the administration of the HMH Trust from its creation in 1988; and
(b)apprehends and believes that the documents she has requested access to from the court file in these proceedings are likely to assist in those investigations and/or may include copies of trust records which have not yet been produced.
There is no reason not to accept the statements in the solicitor's letter and the statements of information and belief in Mr Price's affidavit.
Furthermore, it is not for this court, on this application, to determine whether there is a conflict between Bianca's duty as trustee and her interest in her personal claims in the Martin Arbitration. Bianca was appointed trustee by the Supreme Court of New South Wales and that court exercises a supervisory jurisdiction over the administration of the HMH Trust.

Leave should be granted

In determining whether to give leave to access the court filed documents, the court undertakes a fact specific balancing exercise. In this case, I find that the applicant has a proper reason for, and a legitimate interest in, accessing the documents sought. Taking into account the open justice principle, the potential value of the information in advancing the legitimate interests of the applicant, and any risks of harm which its disclosure may cause to the maintenance of an effective judicial process or a legitimate interest of the owner of the information or others, I find that the applicant should be granted access to the documents sought that were adduced in evidence and became exhibits or were affidavits read in the proceedings.
I will give leave to Bianca, in her capacity as trustee of the HMH Trust, to inspect and copy the documents in Annexure C to her summons and the following affidavits:
D Neill, sworn 11 October 2002 (folio 12);
D Neill, sworn 19 September 2003 (folio 15);
CRH Fieldhouse, sworn 31 October 2003 (folio 17);
M H Brown, sworn 22 May 2008 (folio 87);
RFF Edwards, sworn 17 April 2015 (folio 214); and
RFF Edwards, sworn 20 July 2015 (folio 220).
I am not persuaded that any of the other affidavits, other than the affidavit of B G Ross, sworn 30 April 2012, and the affidavit of C R H Fieldhouse, sworn 7 May 2002, which are exhibits listed in Annexure C to Bianca's application, were read in the course of the proceedings. Bianca does not press for leave to inspect documents that were not received as exhibits, or affidavits that were not read and became evidence in the proceeding.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BR
Associate to the Honourable Justice Le Miere
2 JULY 2021