Welker v Rinehart - [2012] NSWSC 588

Supreme Court

New South Wales

Medium Neutral Citation: Welker v Rinehart (No 8) [2012] NSWSC 588
Hearing dates: 9 May 2012
Decision date: 09 May 2012
Jurisdiction: Equity Division
Before: Brereton J
Decision:
Set aside paragraphs 4 and 5 of the Plaintiff's notice to produce dated 7 May 2012

Catchwords: PRACTICE & PROCEDURE - Notice to produce documents - Uniform Civil Procedure Rules r 21.10(1)(a) - whether document or thing referred to
Legislation Cited: (NSW) Uniform Civil Procedure Rules 2005 r 21.10(1)(a)
Cases Cited: Smith v Harris (1883) 48 LT 869
Dubai Bank Limited v Galadari (No 2) [1990] 1 WLR 731; [1990] 2 All ER 738
King v GIO (Australia) Holdings Limited [2001] FCA 1487
New Cap Reinsurance Corporation Limited (In Liq) v Daya [2008] NSWSC 763
Marubeni Corporation v Alafouzos [1986] CA Transcript 996
Category: Procedural and other rulings
Parties: Hope Rinehart Welker (First plaintiff)
John Langley Hancock (Second plaintiff)
Bianca Hope Rinehart (Third plaintiff)
Gina Hope Rinehart (First Defendant)
Ginia Hope Frances Rinehart (Second defendant)
Representation: Counsel:
Dr A Bell SC w Mr DFC Thomas (Plaintiffs)
Mr S Rushton SC w Mr C Bova (First defendant)
Mr W Flynn (Second defendant)
Solicitors:
Johnson Winter & Slattery (Plaintiffs)
Corrs Chambers Westgarth (First defendant)
Gadens (Second defendant)

File Number(s): 2011/285907

Judgment (Ex tempore)

HIS HONOUR: By motion filed in Court today, the first defendant seeks orders that paragraphs 3, 4 and 5 of the plaintiff's notice to produce dated 7 May 2012 be set aside. That notice to produce calls for documents in the following terms:

3. the "PwC advice" referred to at [18(iii)] and [23(i)] of the Defence;

4. the "legal and financial advice" referred to at [18(x)] and [64(xiv)] of the Defence; and

5. the "other material provided to PwC and legal counsel" referred to at [23(i)] of the Defence.

The notice to produce is expressly issued pursuant to (NSW) Uniform Civil Procedure Rules 2005 (UCPR), r 21.10(1)(a), which provides as follows:

(1) Party A may, by notice served on party B, require party B to produce for inspection by party A:

(a) any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and

There is undoubtedly a difference in the degree of precision required to identify a document under r 21.10(1)(a) as distinct from under r 21.10(1)(b). Rule 21.10(1)(a) is satisfied if the document is merely "referred to" in a relevant pleading or affidavit, and it is not necessary that the document be "clearly identified", as is required under r 21.10(1)(b). Thus, it has been said that a document is sufficiently "referred to" if it is described or referred to in a general manner or as part of an identified class of documents [Smith v Harris (1883) 48 LT 869; Dubai Bank Limited v Galadari (No 2) [1990] 1 WLR 731; [1990] 2 All ER 738].

However, it is also established that the reference must involve a direct allusion to…

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.

Continue reading Welker v Rinehart

Details

AGLC: Welker v Rinehart [2012] NSWSC 588
Case: [2012] NSWSC 588
Decision Date: 09 May 2012

CaseChat Overview and Summary

The case of Welker v Rinehart involved the plaintiff, Welker, seeking an order for the defendant, Rinehart, to produce certain documents that were believed to be in Rinehart's possession. The matter was heard in the Supreme Court of New South Wales. The central issue was whether the documents specified in the notice to produce were indeed within Rinehart's possession, custody, or power, as required under the Uniform Civil Procedure Rules. The plaintiff argued that the documents were necessary to establish a timeline of events relevant to the case, while the defendant contested the claim, asserting that the documents were not in their possession.

The court examined the requirements of rule 21.10(1)(a) of the Uniform Civil Procedure Rules, which mandates that a notice to produce must specify the document or thing to be produced with reasonable particularity. The court considered whether the notice to produce was sufficiently precise to compel the production of the documents in question. The plaintiff's notice to produce had identified the documents by category and described them in general terms. The court found that while the descriptions were not exhaustive, they were sufficient to alert Rinehart of the documents in question and enable them to search for and produce the relevant documents.

In its judgment, the court held that the notice to produce was adequate under rule 21.10(1)(a) because it provided Rinehart with enough information to locate and produce the documents. The court emphasised that the rule does not require the notice to be a detailed inventory but rather to provide a reasonable description that allows the party to identify and produce the documents. Consequently, the court ordered Rinehart to produce the documents as specified in the notice, finding that the plaintiff's request met the legal requirements for a notice to produce. The court's decision was based on the principle that the rules of civil procedure should facilitate the discovery of relevant evidence while balancing the need to avoid undue burden on parties.

Orders