Hancock v Rinehart [2019] NSWSC 1451

Supreme Court New South Wales

Medium Neutral Citation: Hancock v Rinehart [2019] NSWSC 1451 Hearing dates: 1, 2, 13 May 2019, 26 and 27June 2019 Date of orders: 25 October 2019 Decision date: 25 October 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: (1) Order pursuant to r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW) or the inherent jurisdiction of the Court that the subpoena for production filed on behalf of the second plaintiff on 7 June 2019 which is addressed to the Proper Officer - Corrs Chambers Westgarth be set aside. (2) Order pursuant to r 21.11 or r 34.2 of the Uniform Civil Procedure Rules 2005 (NSW) or the inherent jurisdiction of the Court that the notice to produce dated 7 June 2019 and addressed to the fourth defendant, Hancock Prospecting Pty Limited, be set aside. (3) By consent, order that the provision of possible documents of the Trust to the first defendant or her lawyers by the fourth defendant or the fifth defendant in accordance with these orders will not bring those documents within the scope of the orders made by Brereton J on 5 November 2018 (2018 Orders) if they would not otherwise have been caught by those orders. (4) Further extend the time for compliance with Order 1 of the 2018 Orders to a date to be fixed after the fourth defendant has made available for inspection by the first defendant and her legal representatives the possible documents of the HMH Trust. (5) Order that Order 2 of the 2018 Orders be varied to require the first defendant to use her reasonable endeavours to procure the third parties identified in the Schedule to the 2018 Orders, to provide the first defendant all documents in their possession which are likely to be documents of the HMH Trust, so that they may be reviewed by the first defendant and her legal representatives and any Trust documents produced to the second plaintiff and extend time for compliance with Order 2 to a date to be fixed when these orders are made. (6) Direct that the parties provide agreed short minutes of order (or, failing agreement, separate proposed short minutes of order and submissions in support) within 14 days for a regime to permit access by a computer expert on behalf of the second plaintiff to any electronic database or electronic information retention system maintained by the fourth defendant in respect of documents of the HMH Trust for the purposes of compliance with Order 3 of the 2018 Orders. (7) Extend the time for compliance with Order 3 of the 2018 Orders to a date to be fixed after a regime of the kind contemplated by Order 6 above is implemented. (8) By consent, vary Order 1(iv)(a) of the 2018 Orders to permit the production of a copy of any such documents received or held by the first defendant in some capacity other than as trustee of the HMH Trust, including as a director of the fourth defendant, which were used in the administration of the HMH Trust. (9) The first defendant have liberty to apply to be relieved from Order 3 of the 2015 Orders made by Brereton J on 28 May 2015 in respect of any particular document or class of documents after the fourth defendant has made available for inspection by the first defendant and her legal representatives the possible documents of the Trust falling within Order 1(iv)(a) of the 2018 Orders, including by reason of the claims brought against the first defendant in the Proceedings referred to in Order 13 below. (10) Stand over the notice of motion filed 12 April 2019 by the fourth and fifth defendants for determination after the inspection by the first defendant and her legal representatives of the possible documents of the Trust made available to them by HPPL for that purpose. (11) Order (subject to any further order of the Court) that the first defendant be indemnified from the HMH Trust in respect of the reasonable costs incurred from today's date by her compliance with Orders 2 and 3 of the 2018 Orders and otherwise in relation to the production of documents of the HMH Trust. (12) Costs of the respective notices of motion be reserved. (13) For the avoidance of doubt, extend the time for compliance by the fourth and fifth defendants with any direction from the first defendant regarding compliance with Orders 1(a)(iv), 2 and 3 (insofar as Orders 2 and 3 concern documents referred to in Order 1(a)(iv)) of the orders of Brereton J in this proceeding dated 5 November 2018 (5 November 2018 Orders), with respect to documents relevant to the proceedings between, inter alia, the Companies and the first and second plaintiffs in Federal Court of Australia proceedings NSD 1124 of 2014 (Federal Court Proceedings) or in Supreme Court of Western Australia proceedings CIV 3041 of 2010 (consolidated with CIV 2617 of 2012) and CIV 2737 of 2013 (WA Proceedings) (or any arbitration in which any of the same allegations are litigated (Arbitration)), until the determination of the fourth and fifth defendants' 12 April 2019 notice of motion. Catchwords: EQUITY – Trusts and trustees – Where former trustee ordered by Court to deliver up to new trustee all documents of the trust within her possession, custody or control – where parties seeking further orders in relation to implementation of those orders – whether further orders sought amounted to an application for judicial advice – whether there was power to give a former trustee judicial advice – whether relief sought precluded by the principles of res judicata, issue estoppel or Anshun estoppel – whether further orders amounted to "working out" orders