Rinehart v Rinehart

THE COURT: These are the Court’s reasons for dismissing an application for leave to appeal against Order (1) made by Ward CJ in Eq on 17 December 2020 in long-running principal proceedings to which the parties to the present application are parties. Macfarlan JA described the circumstances of the principal proceedings at [17]-[23] of this Court’s judgment in Rinehart v Rinehart [2020] NSWCA 221. This judgment assumes familiarity with that description.

The order sought to be appealed against was as follows:

The “Bankruptcy Transcripts” referred to in the order are transcripts of the first respondent’s evidence as a witness in public examinations between 1999 and 2001. Although the transcripts were presumably publicly available at some stage, the applicant has been unable to obtain them through public sources. Her Honour accepted that certain of the transcripts are held by the second respondent (“HPPL”) which prima facie is their owner. The applicant’s complaint is that the order did not require delivery to her of those transcripts in HPPL’s possession.

The applicant argued below that two companies (sufficiently referred to for present purposes as HMHTI and HFMF) owned or controlled by the first respondent in her then capacity as trustee of the HMH Trust acquired joint ownership of the transcripts because those companies, jointly inter alia with HPPL, retained the law firm Freehills to prepare a summary analysis of them. The applicant submitted that it was obvious that Freehills must have been supplied with a copy of the transcripts (by whom is not made explicit) and asserted that each of the clients must have acquired an ownership interest in the documents supplied to the jointly instructed law firm.

Consideration of the argument required her Honour to address a number of factual and legal issues. The applicant’s detailed submissions challenging the steps in her Honour’s reasoning rejecting the argument cannot be regarded as more than arguable.

As the first respondent pointed out, her Honour’s order was made in the course of a “working out” of the original orders for production of trust documents made by Brereton J (as his Honour then was) by his Honour’s judgments of 2015 and 2018 ([2015] NSWSC 646 and [2018] NSWSC 1684). As such, it was an interlocutory order in respect of which the Court would be disinclined to grant leave to appeal in the absence of an important issue of principle or a question of public importance being identified, or good prospects of success on appeal being demonstrated. As the applicant was able to do neither of these, the Court determined that her application for leave to appeal should be dismissed.