Supreme Court New South Wales Medium Neutral Citation: Hancock v Rinehart [2014] NSWSC 5 Hearing dates: In chambers Decision date: 20 January 2014 Jurisdiction: Equity Division Before: Brereton J Decision: Decline to grant leave to the Australian Taxation Office (Western Australia) to inspect the Court file. Catchwords: COURTS AND JUDGES - access to court file - application by non-party for leave to search court file - where proceedings incomplete Cases Cited: Hancock & anor v Rinehart [2013] NSWSC 1402 Category: Procedural and other rulings Parties: Australian Taxation Office (WA) (applicant) John Langley Hancock (first plaintiff) Bianca Hope Rinehart (second plaintiff) Gina Hope Rinehart (first defendant) Ginia Hope Frances Rinehart (second defendant) Hope Rinehart Welker (third defendant) Hancock Prospecting Pty Ltd (fourth defendant) Hope Downs Iron Ore Pty Ltd (fifth defendant) Representation: Counsel: Not applicable Solicitors: Not applicable File Number(s): 2011/285907 Judgment 1On 19 November 2013, officers of the Australian Taxation Office lodged with the Registry an application for access to the Court file in these proceedings, relevantly in the following terms: We hereby apply for leave to obtain access to the documents described below in the following proceedings in the NSW Court: Hancock & anor v Rinehart & Ors [2013] NSWSC 1402 File No 2011/ 285907 Identified documents Documents contained in the relevant court files and the transcript of proceedings in the NSW Supreme Court. 2The application was referred to me, as I am in the course of hearing the substantive proceedings, one part of which has been heard with judgment reserved, and another part of which stands adjourned to a date in March 2014. By email of 22 November 2013, my associate informed the ATO that I would hear the Commissioner's application when the matter was next listed on 27 November, and sought confirmation that the Commissioner would be making an application that day. In subsequent communications, further detail of the specific documents to which the ATO sought access was requested. The ATO responded on 26 November, outlining (by reference to their subject matter or contents) the classes of documents to which access was sought, but not specifying particular documents, and concluding: We would appreciate if the documents to which access is granted could be emailed to me in PDF files. We also have a secure bulk data exchange facility for transfer of sensitive materials. If this is not possible, please contact me to arrange other means. 3The ATO did not appear when the matter was before the Court on 27 November 2013, whereupon I made a direction in the following terms: Any application for access to the court file or documents in it is to be made on notice to the parties, such motion to be made returnable on 3 December at 10 am and must specify with particularity the documents or classes of documents to which access is sought. 4This direction was communicated to the relevant officer of the ATO by the Prothonotary by email on the day on which it was made. 5The ATO did not file a motion, but on 2 December 2013 sent to my associate by email another "Application for Access" form, copies of which were also sent to the parties, relevantly as follows: We hereby apply for leave to obtain access to the documents described below in the following proceedings in the NSW Court: Hancock & anor v Rinehart & Ors [2013] NSWSC 1402 File No 2011/ 285907 Identified documents The specific types of documents to which access is sought include: + Documents which refer to the consideration of taxation consequences of extending the vesting date of the trust and/or the vesting of the trust, including any tax advice provided by Pricewaterhouse Coopers; + Documents which disclose any actions of the trustee and/or beneficiaries of the trust since the vesting date of 30 April 2012; + Documents which refer to the powers and /or obligations of the trustee both before and after vesting; + Any correspondence to or from the trustee and/or beneficiaries regarding vesting of the trust; + Any correspondence to or from the trustee and/or beneficiaries regarding the beneficiaries rights or entitlements; + Any correspondence to or from the trustee and/or beneficiaries regarding the role of the trustee both before and after vesting; + Documents relating to any change or replacement of the trustee. Access is not sought to any documents to which privilege has not been waived. 6However, there was no appearance by the ATO before the Court when the matter was listed on 3 December. I indicated that I did not propose to have court staff inspect the files to ascertain what if any documents fell within the categories sought and accordingly would not accede to the application in its current form, and that if an application were made by the ATO, on notice to the parties, to inspect the court file, I would first afford the parties an opportunity to ensure that material that had not been read, or that was the subject of a confidentiality order, was segregated. 7In an email of 12 December 2013 to my associate, the ATO, having read a report of the outcome in the press, said that it was yet to be advised by the Court whether it had been granted access to any of the documents requested, and had not been advised of any expectation that it attend the hearing on 3 December. By email of 17 December 2012, the ATO asked that priority be given to advising whether its application had been considered; if not, why not; and whether the ATO was required to provide any further information for the court's consideration. On this occasion, there was an offer to "arrange for our NSW colleagues to attend the court and go through the documents to save the time and effort that would otherwise be required of your staff". 8Practice Note SC Gen 2 Supreme Court - Access to Court Files makes provision in respect of access to Court files by non-parties. Relevantly, it provides as follows: Search 5. A person may not search in a registry for or inspect any document or thing in any proceedings except with the leave of the Court. Access 6. Access to material in any proceedings is restricted to parties, except with the leave of the Court. 7. Access will normally be granted to non-parties in respect of: + pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential; + documents that record what was said or done in open court; + material that was admitted into evidence; and + information that would have been heard or seen by any person present in open court, unless the Judge or registrar dealing with the application considers that the material or portions of it should be kept confidential. Access to other material will not be allowed unless a registrar or Judge is satisfied that exceptional circumstances exist. ... 14. It should not be assumed that material held by the Court comes within paragraph 7. Affidavits and witness statements that are filed in proceedings are often never read in open court. This can occur because they contain matter that is objected to and rejected on any one of a number of grounds or because the proceedings have settled before coming on for hearing. Affidavits, statements, exhibits and pleadings may contain matter that is scandalous, frivolous, vexatious, irrelevant or otherwise oppressive. UCPR 4.15 allows the Court to order this type of matter to be struck out of a document. 15. If access to material were to be given prior to the conclusion of the proceedings to which it relates, material that is ultimately not read in open court or admitted into evidence would be seen. Thus, access will not normally be allowed prior to the conclusion of the proceedings. 16. Even where material has been read in open court or is included in pleadings, there may be good reason for refusing access. Material that has been rejected or not used or struck out as being scandalous, frivolous, vexatious, irrelevant or otherwise oppressive, may still be legible. Where access to material would be otherwise unobjectionable, it may concern matters that are required to be kept confidential by statute (eg the Criminal Records Act 1991) or by public interest immunity considerations (eg applications to authorise listening devices, affidavits in support of suppression orders). 17. Application by a person, who is not a party to proceedings, for access to material held by the Court in the proceedings shall be made in the attached form to the registrar of the appropriate Division, who will refer doubtful cases to the Chief Justice or to a Judge nominated by the Chief Justice. The registrar or Judge may notify interested parties before dealing with the application. The applicant must demonstrate that access should be granted in respect of the particular documents the subject of the application and state why the applicant desires access. Enquiries may be made to the Court's registry on (02) 9230 8111. 18. The person to whom access to material is granted normally may copy or take extracts from the material and the registry may assist with copying. 9The court file is large, including in excess of 30 lever arch folders. While the judgment mentioned in the application - [2013] NSWSC 1402 - has been delivered, the substantive proceedings have not been concluded, and are ongoing. Many of the affidavits and their annexures and exhibits filed in the proceedings have not been read in evidence, or have been read only in part. Others are the subject of confidentiality orders. 10In the application, the documents to which access is sought are described as classes of documents by reference to their content or subject matter. This means that the Court would not only have to segregate the documents which have been read in evidence from those that have not, and those the subject of confidentiality orders from those that are not, but also - in order to decide what if any documents in the file fall within a specified class - the Court would have to inspect and peruse each document in the file. This is not the Court's function. Moreover, it would consume the time of the Court, when priority must be given to considering and preparing the reserved judgment, over third party requests for access to the file for purposes extraneous to the proceedings in the Court. 11I am not prepared to have the Court undertake the exercise of identifying which of the documents in the file fall within the classes sought by the ATO. While in its communication of 17 December, the ATO offered to inspect the file itself, this does not overcome the difficulty that the court would still have to segregate documents that have been read in open court from those not yet in evidence and those that are subject to confidentiality orders. 12In accordance with paragraph 15 of the Practice Note, which provides that ordinarily access will not be allowed prior to the conclusion of the proceedings, I am not at this stage inclined to grant leave to the ATO to search the file generally prior to the conclusion of the proceedings. While, from time to time in the course of these proceedings, I have permitted media to have access to specified pleadings or affidavits, that has been upon a specific request for access to a particular pleading, affidavit or exhibit which has been read in open court. Because the request has been for a particular specified document, it has not involved granting general access to the Court file, nor has it required the Court to conduct a search of the file to ascertain what if any documents fall within a class requested. 13However, if the ATO wishes to inspect specific pleadings, affidavits, transcripts or exhibits of the type described in paragraph 7 of the Practice Note), defined in a manner that does not require the court to inspect them and form a view as to whether they fall within generic classes or not, I will consider granting access to them, after the parties have been afforded an opportunity to check that any material not in evidence or subject to confidentiality orders has been redacted. If the ATO wishes to do so, it should make an application specifying with particularity (and not merely by reference to their subject matter or content) the documents to which it seeks access, and serve notice of the application on the parties. Similarly, if the ATO wishes to pursue an application for leave to search the file generally and advance arguments in that respect, then it should do so on notice of motion. A return date for such motion may be obtained by arrangement with my Associate. In either case, if the ATO wishes its submissions to be considered, it should appear when its application is listed before the Court. 14At this stage, however, I decline to grant leave to the ATO to inspect the Court file. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 January 2014