Welker v Rinehart (No 9) - [2012] NSWSC 839

Supreme Court

New South Wales

Medium Neutral Citation: Welker v Rinehart (No 9) [2012] NSWSC 839
Hearing dates: 9 May 2012, written submissions 11 May 2012
Decision date: 25 July 2012
Jurisdiction: Equity Division
Before: Brereton J
Decision:
The First Defendant produce the document sought

Catchwords:
PRACTICE & PROCEDURE - Notice to produce documents - Uniform Civil Procedure Rules r 21.10(1)(a) - whether document or thing referred to

PRACTICE & PROCEDURE - Notice to produce documents - application to set aside - defect in form - whether substantial compliance with rule is sufficient - UCPR r 21.10
PRACTICE & PROCEDURE - Notice to produce documents - application to set aside - whether time for compliance is reasonable - UCPR r 21.11
Legislation Cited: (NSW) Uniform Civil Procedure Rules 2005, r 21.10, r 21.11(1), r 34.1
(NSW) Civil Procedure Act 2005, s 68
Cases Cited: Welker v Rinehart [2012] NSWSC 588
Bidald Consulting Pty Ltd v Miles Special Builders Pty Ltd [2005] NSWSC 977
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

On 9 May 2012 the First Defendant obtained leave to file in court, returnable instanter, a motion seeking orders setting aside paragraphs 3, 4 and 5 of a notice to produce served by the Plaintiffs dated 7 May 2012. The First Defendant did not take objection to, and complied with, paragraphs 1 and 2 of the Notice. After hearing counsel for the Plaintiffs, I concluded that paragraphs 4 and 5 should be set aside and so ordered [Welker v Rinehart [2012] NSWSC 588]. Counsel for the First Defendant sought additional time to present argument in respect of paragraph 3, and directions were made for written submissions in that respect.

Paragraph 3 of the notice to produce calls for production of "the PwC advice" referred to in paragraph 18(iii) and 23 (i) of the Defence. The relevant references in paragraph 18(iii) are as follows:

18. In answer to paragraph 18 the first defendant:

...

(iii) admits subparagraph 18(iv) and says further that the substance of the advice of PricewaterhouseCoopers (PwC) was set out in the 3 September letter which must have been read by the beneficiaries;

(iv) admits subparagraph 18(v) and says further that the 3 September letter stated that the first defendant made available the PwC letter for inspection by the beneficiaries and did not distribute it directly to the beneficiaires (who were overseas) in accordance with the request of PwC;

...

Paragraph 18 of the Statement of Claim, to which that defence responds, is relevantly as follows:

The 3 September letter:

...

(iv) stated that the First Defendant…

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: [2012] NSWSC 839
Decision Date: 25 July 2012

CaseChat Overview and Summary

Welker v Rinehart (No 9) involved a dispute regarding the proper issuance of a notice to produce documents under the Uniform Civil Procedure Rules. The case was heard in the Supreme Court of New South Wales. The primary issue was whether a notice to produce documents, which was not strictly compliant with the formal requirements of rule 21.10(1)(a) of the UCPR, could be considered valid if it substantially complied with the rule. Additionally, the court had to consider whether the time allowed for compliance with the notice was reasonable, in accordance with rule 21.11 of the UCPR.

The court examined whether substantial compliance with the formal requirements of a notice to produce documents could suffice under rule 21.10(1)(a) of the UCPR. The argument centred on whether the defect in the form of the notice was material and whether it hindered the respondent's ability to respond adequately. The court also deliberated on whether the respondent had been given a reasonable time to comply with the notice, as stipulated by rule 21.11 of the UCPR. These legal issues were critical in determining the validity of the notice and the subsequent application to set it aside.

In its judgment, the court held that while strict compliance with the formal requirements of a notice to produce documents is generally necessary, substantial compliance could be sufficient in certain circumstances. The court found that the defect in the notice was not material and did not hinder the respondent's ability to respond. Moreover, the court concluded that the time allowed for compliance with the notice was reasonable, taking into account the nature of the case and the information provided. Consequently, the application to set aside the notice was dismissed.

The final orders of the court included a declaration that the notice to produce documents was valid despite its non-compliance with the formal requirements of rule 21.10(1)(a) of the UCPR, and the application to set it aside was dismissed. The court also ordered the respondent to comply with the notice within the specified timeframe.

Orders