HIS HONOUR: On 26 August 2015, the plaintiffs caused to be issued a subpoena for production addressed to the proper officer of Sceales & Company, lawyers in Perth, requiring production to the Court of the following documents and things:
All documents including but not limited to all correspondence, file notes, invoices, retainers (draft and final), memoranda, briefs to counsel, written advice and/or opinions from counsel (including, but not limited to written advice and/or opinions from Myers QC and/or Forsyth QC), agreements and any associated documents relating to your files identified as:
1.1 Reference number RWS 06-0262, 'Trust Advice'; and/or
1.2 Reference number RWS 06-0365, 'HPPL - Ruling Application - Status of Assets'; and/or
1.3 Reference number RWS 05-0708, 'Proposed Amendments to Constitution of Hancock Prospecting Pty Ltd';
Including, but not limited to:
1.4 Brief to counsel in regard to supplementary questions perused by Robert Sceales on or about 18 July 2006;
1.5 Myers QC opinion perused by Robert Sceales on or about 18 July 2006;
1.6 Further brief to counsel in regard to 'Risk Factors' perused by Robert Sceales on or abou 20 July 2006;
1.7 Letters to Myers QC in regard to instructions attended to by Alex Sceales on or about 21 July 2006; and/or
1.8 Any document recording or referring to any communication (written or oral) with Gina Hope Rinehart and/or a representative of Gina Hope Rinehart and/or Hancock Prospecting Pty Limited and/or a representative of Hancock Prospecting Pty Limited in respect of the files referred to in 1.1 to 1.3 above.
Any document recording or referring to any communication (written or oral) with Gina Hope Rinehart and/or a representative of Gina Hope Rinehart and/or Hancock Prospecting Pty Limited and/or a representative of Hancock Prospecting Pty Limited from 3 September 2011 to date.
The schedule proceeds to define the term "document" as having the meaning provided in (NSW) Evidence Act 1995. Though issued on 26 August, the subpoena was apparently served on the recipient on 3 September 2015. Neither Sceales & Company as the recipient party, nor the first defendant, nor for that matter any other defendant, made an application to set aside the subpoena.
Sceales & Company have produced to the Court documents in response to the subpoena. The documents produced have now been categorised by the first defendant into three categories, which have been scheduled and enumerated. The first category, contained in Schedule 1, comprises some 59 enumerated documents, which are said to be "privileged/non-trust" documents. In respect of this, the essential issue is whether those documents are trust documents (which the first defendant is obliged to deliver up), or whether they are non-trust documents in respect of which the first defendant is entitled to maintain a claim of legal professional privilege. That claim will be resolved at the hearing, which has now been appointed for 4 November. It seems that the crucial question will be whether or not the documents are properly characterised as personal legal advice of the first defendant, as distinct from trust documents.
The second category, contained in Schedule 2, comprises 182 documents said to be "non-trust" documents which, with the exception of a sub-category to which I shall come, are not the subject of a claim for privilege. The first defendant neither consents to nor opposes the plaintiffs having access to these documents. Whether the plaintiffs should be granted access is presently before the Court for resolution, and I shall shortly return to it.
The third category - contained in Schedule 3 - comprises 43 enumerated documents, in respect of which the first defendant does not object to the plaintiffs having access.
The sub-category to which I have referred in respect of Schedule 2 arises from the recent identification by the first defendant's counsel of some documents in that Schedule which are said more properly to reside in Schedule 1 - that is, to be placed in the category of personal documents of the first defendant, as distinct from trust documents, in respect of which there is a claim for privilege. As I have indicated in the course of argument, and as these issues are to be resolved on 4 November, it seems to me that the preferable course is to allow the first defendant the opportunity to revise Schedule 2 by transferring from it to Schedule 1 those documents in respect of which there is a bona fide contention that the documents are privileged documents of the first defendant.
I turn then to the second category of documents. In order to deal with the arguments, it is necessary to appreciate the proceeding in connection with which the subpoena has been issued. It is not permissible to issue a subpoena in proceedings merely for the purpose of ascertaining whether some further application of some description or another might be made. It is fundamental that a subpoena be in aid of some proceeding before the Court. In this case, it is, as I understand it, said to be in aid of the motion filed by the plaintiffs on 3 September this year, whereby they seek orders specifying in greater detail what the first defendant is to do by way of delivering up trust documents to the plaintiff, as required under the substantive orders made in May. The subpoena is intended to elicit documents for use in evidence on that application, on which there will be, relevantly, issues:
1. as to whether certain documents are trust documents or not;
2. as to whether the first defendant can be shown not to have complied with her obligation to produce trust documents; and
3. so the plaintiff suggests, to demonstrate that if certain documents are not trust documents but have been charged to the trust, that that would support a falsification in the pending accounting process.
While it is not necessary to resolve it for present purposes, I doubt that the third of those matters would support the present subpoena, as the documents production of which it requires do not seem likely to cast light, or any further light at least, on whether the advice in question was charged to the trust. But that can be left, if necessary, for another day. It is in relation to the first two issues that the argument chiefly depends.
Whether documents - particularly documents prepared by legal advisers for a person who happens to be the trustee of a trust - are to be characterised as trust documents or as personal documents of that person, is likely to be informed by a range of evidence casting light on the person or persons who gave the instructions, the person or persons to whom the advice was provided, the purpose for which the advice or legal work was sought and provided, and the person who paid for it. The files of the solicitors acting in matters, in respect of which the trust paid for the legal advices in question is likely to contain relevant evidence of that kind.
Against the proposition that the plaintiffs should be granted access to the Schedule 2 documents, the first defendant, while not formally opposing the grant of access, drew attention to a number of matters. The first was the potential rights of confidentiality of a third party, Hancock Prospecting Pty Ltd ("HPPL"). The Court has been informed that, conformably with its practice, the subpoena was served on and notified to all the parties to the proceedings, of which HPPL is one. If HPPL wished to take some objection to the production of or access being granted to documents caught by the subpoena, it had its opportunity to appear on the return date of the subpoena and announce its objection then. It has not at any stage done so, though it remains a party to the proceedings. It also cannot be overlooked that while HPPL is a distinct legal entity from the first defendant, the connection between the two is obvious enough from the earlier proceedings. In any event, private rights of confidentiality do not override the Court's subpoena, and while they may be taken into account in granting access to documents produced on subpoena, often sufficient protection is afforded, as in my judgment it is in this case, by the implied undertaking of a party granted access to subpoenaed documents to use them only for the purpose of the proceedings. In my view, any possible private right of confidentiality of HPPL is, in the context where it has, with notice of the subpoena, not appeared to oppose access, no reason now to decline making an order for access.
Next, the first defendant drew attention to a number of matters concerning the issue and breadth of the subpoena. It was suggested that the subpoena might be an abuse of process as not having been issued for the purpose of a pending hearing. In this respect, it was observed that the subpoena was issued on 26 August, whereas the motion in aid of which it is said to be deployed was not filed until 3 September 2015. Moreover, it was said that as at 26 August the first defendant had not yet alleged that her production of documents in response to the substantive order for production of trust documents was complete.
Although the subpoena was issued on 26 August, it was, as I have said, not served until 4 September, after the motion in question had been issued. It was I think plainly enough issued in contemplation of that motion, even if the motion had not yet been filed. And even if the first defendant had not at that stage contended that production of the documents she was required to produce was complete, it was plainly apparent that there would be a contest over the characterisation and categorisation of what did and did not fall within the description of trust documents that she was required to produce. In those circumstances, at least in the absence of any formal application to set aside the subpoena as an abuse of process, I am not inclined to decline access on the basis that it might be an abuse of process, as to do so would simply invite the issue of a further subpoena, the motion since having been, obviously enough, filed.
Next, the first defendant draws attention to the fact that the classes of documents sought by the subpoena are broader than those the first defendant is required to produce under the substantive orders of 28 May. That is so, but it seems to me to be beside the point. The purpose of this subpoena is not to require, by another means, production of the documents by the first defendant that were required to be produced by order 3 of 28 May, but to obtain evidence for use on the argument as to whether there are documents that the first defendant has not so far produced that fall within the category of trust documents. Essentially, the purpose is, as I apprehend it, to elicit communications and documents which will cast light on the purpose for which, and persons for whom, the relevant disputed documents were prepared. In that setting, it must be permissible to seek a wider category of documents than what falls within the category of trust documents captured by the order of 28 May. Thus, the circumstance that the subpoena will on any view capture some documents which are not "documents of the trust" does not make it impermissible - because the documents it seeks to capture are for use on the issue of proving, inter alia, whether or not other documents are "documents of the trust".
Next, the first defendant observed that a subpoena had been issued without first requesting Sceales & Company to provide access to the documents voluntarily. This point is said to be founded on the observations of Harrison J in Frontier Assets Pty Ltd v Fishburn [2011] NSWSC 334 (at [35]). In my view, there is no general rule - indeed, I doubt that there is any rule at all - that a subpoena is an abuse of process if issued without first voluntarily requesting production of the documents sought. It is notorious that most organisations, particularly in an era in which laws about privacy and protection of information are prevalent, will refuse to provide access to documents unless compelled to do so by a court order. It may be different where the party from whom production is sought is another party to the proceedings with an obligation to cooperate in the conduct of the proceedings, but the idea that a firm of solicitors or senior counsel would produce documents at the request of someone other than their client, other than under the compulsion of a court order, is somewhat fantastic.
Next, the first defendant observed that the subpoenaed parties had produced documents to which the plaintiffs are not entitled, including documents which on no view were documents of the trust or documents which a trustee could require its legal adviser to produce. Again, that seems to me to be beside the point. The question is not whether the documents called for by the subpoena are trust documents or documents to which the new trustee is entitled, but whether it is on the cards that such documents will add in some way to the evidence available to the Court on the issues to be tried: namely, whether the first defendant has produced all trust documents and whether certain documents are or are not trust documents. It is true that item 2 in the schedule to the subpoena is wide and, had it been impugned on an application to set aside the subpoena, might have been vulnerable. It is conceivable that it calls for documents (for example, communications between Sceales & Company and HPPL) in connection with matters totally unrelated to the issues with which this Court is concerned. But if in practice it had that effect, it was open to the recipient of the subpoena or to any other party to the proceedings, including the first defendant, to apply to set the subpoena aside on that basis. As I have said, no such application has been pressed.
Once documents are produced to the Court, as they have been, the Court retains a discretion as to whether or not to grant access to the documents produced. However, at that point, the balancing of the issues on questions of relevance in particular is rather different from the so-called first stage, namely, before the documents are produced to the Court on an application to set aside the subpoena. At the first stage, the Court is concerned on the one hand with the potential relevance of the documents sought to the issues in the case and, on the other hand, the inconvenience and burden cast by the subpoena on the producing party, and is involved in a balancing exercise in deciding whether the breadth of the subpoena is oppressive, having regard to the relevance of what is sought, against the burden it casts on the recipient. Once the documents have been produced and the question is only one of granting access, the burden on the subpoena recipient ceases to be a relevant consideration. Once documents are available and in court, there is a strong predilection in favour of granting access so that parties can put before the Court all relevant evidence and thoroughly investigate their case. If a claim for confidentiality can be made out in respect of particular documents and it can be shown that those documents are irrelevant, then it may well be that access would be withheld. It is uncommon at the required stage, however, to withhold documents purely on the grounds of relevance.
The approach of the Court is similar to that which it takes in respect of the masking of individual documents. Except where matters of privilege are concerned, masking is a matter in the discretion of the Court and generally permitted only where there is a sound claim for confidentiality and it can be shown that the matter to be masked is irrelevant. Mere irrelevance of particular pages, paragraphs, sentences or words in correspondence, for example, is no basis for permitting it to be masked. Similarly, the mere irrelevance of particular documents, folios or notes in a file which is within the legitimate ambit of a subpoena does not justify excluding from access and inspection those individual documents, folios or pages. One important reason for this is that to understand transactions - and, in particular in the context of this case, to appreciate the purpose for which a document was brought into existence - much may be learnt from the whole chronology, sequence and content of a file that cannot be derived from examination of a series of individual documents filleted from it. For those reasons, the circumstance that some of the individual documents in the files, production of which has been required, might, viewed on their own, be irrelevant is not a good reason for withholding access, at least once they have been produced to the Court.
For those reasons, I am disposed to make an order granting the plaintiffs access to the Schedule 2 documents, subject to the amendment of Schedule 2 in the way in which I have described.
The Court therefore orders that:
1. The first defendant produce to the Court by noon on 16 October 2015 printouts of the documents produced on a USB by Sceales & Company Lawyers pursuant to a subpoena and provided by the Court to the first defendant's legal representatives on 29 September 2015, in folders entitled "privileged/non-trust", "non-trust" and "other" in accordance with the schedule initialled by me, dated this day and placed with the papers, provided that the first defendant may, prior to noon on 16 October 2015, amend those schedules by transferring from Schedule 2 to Schedule 1 such of the documents enumerated in Schedule 2 as are the subject of a bona fide claim for privilege on behalf of the first defendant personally.
2. The second plaintiff be given access to the printouts of the documents listed in Schedules 2 and 3 and contained in the folders entitled "non-trust" and "other".
3. The first defendant file and serve any evidence upon which she proposes to rely in support of her claims in respect of the privileged/non-trust documents listed in Schedule 1 and contained in the folder entitled "privileged/non-trust" by 22 October 2015.
4. The second plaintiff file and serve any evidence upon which she proposes to rely in opposition to the claims made for privileged/non-trust documents listed in Schedule 1 and contained in the folder entitled "privileged/non-trust" by 29 October 2015.
5. Until further order, the plaintiffs and their representatives not have access to the USB stick produced by Sceales & Co or the documents contained in the folder entitled "privileged/non-trust".
6. The application for access to the Privileged/Non-trust documents be listed for hearing on 3 November 2015 before me.
7. Each party serve on the other and lodge with my associate an outline of submissions not exceeding 10 pages in length, in the case of the first defendant by Wednesday 28 October, and in the case of the second plaintiff, by Monday 2 November.
8. Costs of today will be reserved to 4 November.
9. In connection with the gross sum costs application, time for lodgement and service of the plaintiffs' submissions and evidence is extended to Monday 19 October.
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Decision last updated: 22 September 2017