Hancock v Rinehart

The 2018 Decision

1. In November 2018, Brereton J found that Gina had adopted and acted on a misconceived view of the scope of the delivery up obligation (see at [103] of the 2018 Decision) and in those circumstances, having regard to the complexity of the exercise as it appeared to his Honour, and to the issues that had arisen in respect of compliance with the delivery up order, his Honour concluded that an order that Gina verify her compliance with the delivery up order was "amply warranted" (see at [102]).
2. In the course of his Honour's judgment, his Honour noted the evidence that the production of trust documents was complex, given that the documents spanned a period of more than 20 years (at [83]); and that the core of the dispute as to the adequacy of Gina's compliance was the contention about what fell within the scope of the delivery up order (and, in particular, what is a "document of the Trust"). His Honour noted that no dispute had arisen about the classes of documents specifically referred to in the statement of claim, saying that the dispute related to the "more nebulous and wider description of "documents of the Trust"", the content of which class of document had not been comprehensively defined in the authorities (see at [30]).
3. His Honour eschewed a narrow view of the obligation of an outgoing trustee (i.e., here, Gina) to its successor in this regard (at [41]), summarising that obligation as being (subject to the court's discretion to mitigate it) "to hand over to an incoming trustee all documents which relate to the administration of the trust so as to enable the incoming trustee to fulfil his duties" and noting the rationale for this obligation as being that the new trustee is prima facie entitled to be placed in just as good a position as the outgoing trustee in relation to all aspects of the administration of the trust (at [41]).
4. Brereton J considered that Gina had proceeded on a misconceived basis insofar as she had proceeded on the basis that documents disclosing deliberations on her part in her trustee capacity, but which did not reflect or refer to a decision taken by her in that capacity, and documents recording communications of the trustee with beneficiaries (save where such a document records a decision made by the trustee), were not "documents of the Trust" which she must deliver up ([42]). His Honour also noted in that context various complexities that presented in the case (see [45]-[46]) and proceeded to address in some detail various classes of documents which had been the subject of contention (at [51]-[81]).
5. Relevantly, particularly in light of some of the argument on the present applications, his Honour considered that the determination that Mr Ross had made as to certain classes of documents not being trust documents was wholly or partly misconceived (at [83]-[84]) but that the search and review methodology that Mr Ross had established was a reasonable approach; that it was not reasonable to expect every document held by HPPL to be reviewed; and that it was inevitable that such an approach would "initially" not capture everything within the scope of the delivery up order (at [85]). It is useful here to set out precisely what his Honour said in that regard (at [85]): Mr Ross … made inquiries as to where any such documents might be found. I accept that it is not reasonable to expect every document held by HPPL (stored in some 4,100 standard archive boxes) to be reviewed. Use of the filing system (albeit imperfect), and keywords to search it, to determine the likely location of potential trust documents, was a reasonable approach. Some 200 boxes of hard copy files and some 30,000 emails and attachments were searched, over approximately 2,500 hours of labour (not including external lawyers). Ultimately, a total of approximately 68 folders of documents has been produced, comprising approximately 30,000 pages, plus items such as cheque books and deposit books. Given the enormity of the exercise, the search and review methodology established was in my view a reasonable approach, and it is inevitable that it would initially not capture everything within the scope of the delivery up order. [my emphasis]
6. His Honour nevertheless found that it had wrongly been determined that the following classes of documents were not trust documents (and therefore it had wrongly been considered that they would not need to be produced) (at [83]-[84]): 1. documents disclosing deliberations on the part of Gina in her capacity as trustee which did not reflect or refer to a decision taken by her in that capacity; 2. documents relating to advice obtained by Gina in response to allegations or threats made against her by one or more of the beneficiaries or threatened against her or actual court proceedings against her by them, being documents the subject of legal professional privilege that belong to her in her capacity as trustee; 3. documents that are confidential in nature, in respect of which in her trustee capacity Gina did not hold the confidentiality on behalf of the plaintiffs as beneficiaries; 4. personal documents of Gina as trustee, including communications with the beneficiaries (whether individually or otherwise), unless including a decision made by her as trustee; and 5. documents concerning only the affairs of companies and entitles in the HPPL Group other than HMHT Investments Pty Ltd (HMHTI) or the HMH Trust.
7. Also of relevance to the present application is that his Honour accepted that it was not unreasonable for Gina to have delegated the task of implementing the delivery up order to Mr Ross (see at [100]) (a criticism to that effect here seemingly being renewed by Bianca) and was not comfortably satisfied that there had not been a good faith attempt on the part of Gina at compliance, his Honour noting that such a finding is "a very serious one" (see at [101]).
8. His Honour nevertheless went on to state (and emphasis is placed by Bianca on this observation) (at [106]) that the obligation to comply with the delivery up order was that of Gina personally and that she could not delegate the responsibility of compliance, though accepting that it was reasonable for many of the tasks to be delegated. His Honour concluded in that regard that: … the obligation to deliver up is an obligation of the trustee; and it is her personal obligation; and she must personally provide the affidavit verifying that it has been done, although it will necessarily to some extent be based on inquiries of and information provided by others.
9. His Honour expressly declined to make an order for production but, instead, required an affidavit verifying delivery up in compliance with the original order, and explained that in so doing this would clarify the scope of the order (see [110]). His Honour then set out, by reference to the claims made for production of documents, those falling within the scope of the description "documents of the Trust" (from [111]-[118]) and made further observations in relation to the documents (from [119]-[135]).
10. At [141], his Honour summarised his conclusions as to what the "documents of the Trust" which Gina was obliged to deliver up comprised, as follows: (1) all documents received or held by her or on her behalf exclusively in her trustee capacity (in which the Trust alone has a proprietary interest); (2) all documents received or held by her or on her behalf jointly in her trustee capacity and also in another capacity; (3) all documents received or held by her or on her behalf in her trustee capacity, in which the Trust and another entity or entities also have a proprietary interest, provided that where the original is not in her possession or control a copy must be provided; and (4) all documents received or held by her in some capacity other than as trustee, including as a director of HPPL, which were used in the administration of the Trust.
11. Pausing here, a large part of the argument on the present application goes to the manner in which the task of determining what documents fall within the fourth of those categories (namely, identifying what documents falling within the category of documents received or held by Gina in some capacity other than as trustee were "used in the administration of the Trust") is to be progressed consistently with the requirement that Gina verify that all reasonable searches and enquiries have been undertaken.
12. His Honour went on to make clear (at [142]) that: Documents which satisfy those criteria are for relevant purposes (namely, delivery up to an incoming trustee) documents of the Trust, notwithstanding that they are: (1) documents which while disclosing deliberations on the part of the first defendant in her trustee capacity, do not reflect or refer to a decision taken by her in that capacity; (2) documents which record communications of the trustee with some or all of the beneficiaries but do not record a decision made by the trustee; (3) documents that were merely subject of the trustee's consideration in making a decision or administering the trust; (4) documents that are confidential in nature, in respect of which in her trustee capacity she does not hold the obligation of confidence on behalf of the beneficiaries as a whole (such as private information about a particular beneficiary); (5) documents concerning only the affairs of companies and entitles in the HPPL Group other than HMHT Investments Pty Ltd or the Trust; and (6) legal advice and related documents sought or obtained by her in her trustee capacity, whether or not also in some other capacity (other than advice obtained by the first defendant [Gina] for the sole purpose of responding to allegations or threats made against her by one or more of the beneficiaries or threatened or actual court proceedings against her by them, being documents the subject of legal professional privilege that belongs to her personally and is not held on behalf of the beneficiaries).
13. As I apprehend it (though I accept that Bianca is unlikely to share this characterisation of the position), the core of the issue that has arisen since the 2018 Decision in relation to the category of documents identified by his Honour at [141(4)] is as to how Gina can be confident that all reasonable enquiries and searches have been taken to identify and deliver up those documents so as to be able to be in a position properly to verify production in accordance with his Honour's orders.
14. Such a concern is evident from the inference I was invited to draw in the context of the present applications that Bianca "is interested in making the production task as difficult and uncertain as possible for [Gina], with a view to seeking leave to cross-examine her, rather than facilitating the process in a way which would enable all trust documents to be produced sooner rather than later" and that Bianca, in effect, is here seeking to set Gina up to fail in that process. No doubt the concerns on the part of Gina's side in this regard can only have been fuelled by submissions of the kind here made by Bianca emphasising that the orders requiring Gina to verify her compliance with the 2015 Order for production on affidavit were intended to ensure (in Brereton J's words) that Gina "assiduously turn [her] mind to punctilious compliance with the order and verify such compliance, under penalty of perjury".
15. I explain in due course the competing positions taken by the parties as to the process or methodology by which the production of documents in compliance with his Honour's orders is proposed to be undertaken by Gina (with the advice and assistance of her legal representatives, of course). Suffice it here to note that I consider that there is some criticism that might fairly be levelled against both sides in relation to the current impasse but that the more pertinent issue is as to how best now to progress the production process (which has currently stalled and has been stalled - not least because of the present applications - for most of this year).
16. Turning back then to the orders made by Brereton J in November 2018 (the 2018 Orders), they were as follows (see at [145]): 1. By 5 December 2018, the first defendant [Gina] make, file and serve an affidavit: (a) Verifying that (subject to any exceptions referred to in (b)) she has, having made all reasonable enquiries and searches, to the best of her knowledge, information and belief, delivered up or provided to the second plaintiff all documents of the Trust in her possession custody or power, including all those referred to in paragraph 3 of the claims for relief in the third further amended statement of claim, which were: (i) documents received or held by her or on her behalf exclusively in her trustee capacity; (ii) documents received or held by her or on her behalf jointly in her trustee capacity and also in another capacity; (iii) documents received or held by her or on her behalf in her trustee capacity, jointly with another entity or entities (in respect of which copies will suffice); and (iv) documents received or held by her in some capacity other than as trustee, including as a director of HPPL, which were used in the administration of the Trust; and including those described in this judgment as being within the scope of the delivery up order. (b) Stating any exceptions thereto, with as much particularity as possible; (c) Stating that she has not withheld, in whole or in part, any documents which otherwise satisfy the criteria in (a) on the basis that they are: (i) Documents which while disclosing deliberations on the part of the first defendant in her Trustee capacity, do not reflect or refer to a decision taken by her in that capacity; (ii) Documents which record communications of the trustee with some or all of the beneficiaries but do not record a decision made by the trustee; (iii) Documents that were merely subject of the trustee's consideration in making a decision or administering the trust; (iv) Documents that are confidential in nature, in respect of which in her trustee capacity she does not hold the obligation of confidence on behalf of the beneficiaries as a whole (such as private information about a particular beneficiary); (v) Documents concerning only the affairs of companies and entitles in the HPPL Group other than HMHT Investments Pty Ltd or the Trust; and (vi) Legal advice and related documents sought or obtained by her in her trustee capacity, whether or not also in some other capacity (other than advice obtained by the first defendant for the sole purpose of responding to allegations or threats made against her by one or more of the beneficiaries or threatened or actual court proceedings against her by them, being documents the subject of legal professional privilege that belongs to her personally and is not held on behalf of the beneficiaries). 2. By 5 December 2018, the first defendant [Gina] procure that any third party who possesses or is likely to possess documents of the Trust, including those identified in the Schedule, deliver up such documents to the second plaintiff, including by providing a written direction and consent to them to do so, and provide to the second plaintiff a copy of such direction and any response thereto. 3. By 5 December 2018, the first defendant [Gina] do all things, execute all documents, provide all information and give all directions and consents necessary or convenient to enable the second plaintiff to have access to any electronic database or other electronic information retention system that was maintained by or for the Trust. 4. All parties have liberty to apply, by arrangement with my associate, in the event of any difficulty arising in the interpretation, application or implementation of orders (1), (2) and (3). 5. The plaintiffs have liberty to apply to examine the first defendant [Gina] viva voce on her affidavit verifying compliance referred to in order (1). 6. Time for the plaintiffs to apply to examine the first defendant viva voce or upon interrogatories in relation to the account furnished by her pursuant to order 6 made on 28 May 2015 be extended to a date 28 days after service of the affidavit referred to in order (1). 7. The first defendant [Gina] pay the plaintiffs' costs of the 3 September 2015 motion. 8. The first defendant's [Gina]'s motion filed on 23 September 2015 be dismissed with costs.
17. The Schedule to which reference is made in Order 2 listed sixteen different persons and firms, including PricewaterhouseCoopers (PwC), Sceales and Company (Sceales) and Freehill, Hollingdale & Page (Freehills); and various counsel (including Mr John Gilmour QC).
18. As adverted to earlier, a large part (though not all) of the relief now sought goes to the identification of the category of documents comprised in Order 1(a)(iv). It is complicated not least because it seems that most if not all of the documents now sought to be identified are in the possession of HPPL (and may, indeed, comprise its own documents); HPPL being a separate corporate entity (albeit one of which Gina is the majority shareholder) and HPPL currently being sued by Bianca (and her brother, John) in other proceedings brought by Bianca and John in their personal capacity. (Hence, the application now brought by HPPL, to which I will refer shortly.)
19. A feature of the hearing of the present applications was, on the one hand, the persistence of the plaintiffs in seeking the provision at this stage (i.e., prior to completion of the production of the documents - that being the time when this is presently required under the 2018 Orders) of an affidavit by Gina as to the documents used by her in the course of administration of the HMH Trust (as had been sought, unsuccessfully, when the matter was before Brereton J) and, on the other hand, the apparent concern by those representing Gina (understandable, given the requirement for verification in due course by her as to this issue and the recognition by his Honour that the plaintiffs may seek to cross-examine Gina on her verification affidavit - see Order 5 of the 2018 Orders) to be clear as to what is encompassed by the expression "all reasonable enquiries and searches" in the context of the requirement for verification of production by Gina of all documents "received or held by [Gina] in some capacity other than as trustee, including as a director of HPPL, which were used in the administration of the trust" (see Order 1(a)(iv)).
20. It is obvious that there is a great level of suspicion or mistrust harboured in the plaintiffs' camp, so to speak, as to the process now proposed in relation to the production of documents by Gina (no doubt fuelled by deficiencies or inadequacies in relation to production of documents in the past, notwithstanding the explanation for those deficiencies or inadequacies which was accepted by Brereton J); and much emphasis was placed on the existing "information asymmetry" between the outgoing (Gina) and present (Bianca) trustees. However, while such suspicion may be understandable given the history of the matter to date, it is unhelpful insofar as any attempt now to put in place a regime (for what was recognised by Brereton J to be a complicated task in relation to the production of trust documents in the present case) is concerned. Further, it is difficult to avoid the conclusion that the plaintiffs are anxious for Gina to go on oath sooner rather than later in order to explain matters in relation to the administration of the HMH Trust since 1988 so that she may be cross-examined on that evidence (since otherwise there seems no reason for such a course again to have been urged upon the Court in the context of the present applications); though I accept that Counsel for the plaintiffs in the course of argument seemed to eschew any intention of ambush in that regard (Counsel accepting that issue could not reasonably be taken in cross-examination of Gina as to deficiencies in production of which the plaintiffs were aware but to which they had not drawn attention in the course of the production process).
21. On Gina's part, her Counsel emphasised more than once a willingness for there to be an "open and transparent" process of production of documents (an "iterative process" as so described), about which it is fair to say that the plaintiffs exhibited no little scepticism but which seemed to me to be consistent with the manner in which the proposed regime for production had now been put forward and how the process was now being approached (whatever may have been the stance in the past - though in this regard it should be emphasised that even then Brereton J made clear that he considered the approach that had been taken by Mr Ross, though misconceived in part, to have been a reasonable approach). Counsel for Gina also fervently expressed the (understandable) wish that the process of reviewing (and to some extent re-reviewing) large numbers of documents for the purpose of compliance with the production orders should only be undertaken once (i.e., that, so far as possible, there be an avoidance of any need for a wholesale re-review of the process at some later point).
22. Another notable feature of the present applications is the extraordinary time and cost that it is now estimated will be required for the process of production of the documents to be undertaken if there is no modification of, or dispensation from, the orders as they presently stand (although for the plaintiffs' part they do not accept that those estimates are reliable indications of the time and cost that would necessarily be involved in the review process and are critical of some of the assumptions there involved). I refer to this aspect of the matter in more detail in due course.

Application for leave to appeal from Brereton J's orders

1. Following the making by Brereton J of the 2018 Orders, an application was foreshadowed by Gina for leave to appeal therefrom. In light of that anticipated application (and having regard to the time specified for compliance with the 2018 Orders), on 11 December 2018, I ordered that the operation of Orders 1, 2, 3 and 9 of the 2018 Orders be stayed until the later of 14 days after the determination of Gina's application for leave to appeal and 14 days after any subsequent appeal (the latter alternative date being set against the possibility that there might not be a concurrent hearing of the application for leave to appeal and any appeal itself, since, at that stage, it was not known whether the matter would be dealt with by way of a concurrent hearing in the Court of Appeal).
2. On that occasion I noted (among other things) that, without admission and without prejudice to the contention of HPPL and HDIO, that the company documents were not documents of Gina or of the Trust, and that HPPL and HDIO would take steps to locate and collate those documents requested by Gina (without admission on Gina's part), through her lawyers, to be made available in order to enable Gina to identify those documents in HPPL or HDIO's custody which were received or created by her in any capacity while she was trustee of the HMH Trust (and which would fall within Order 1(a)(iv) of the 2018 Orders). (As explained by Mr Scott in his affidavit on the present applications, that process ceased once the likely cost of that process was appreciated - which appreciation then led to the making of the present applications.)
3. The application for leave to appeal from the 2018 Orders was heard on 20 March 2019; and leave to appeal was refused on 27 March 2019. Applications for special leave to appeal, filed by Gina and HPPL respectively, have since been refused by the High Court ([2019] HCASL 242; [2019] HCASL 243). Hence, the submissions made for Bianca to the effect that it is now too late to seek a variation of any final orders made by Brereton J in 2018, whether or not those orders may have been in error for any reason.

Present applications

1. It was against the above background that, on 12 April 2019, each of Gina, on the one hand, and HPPL/HDIO, on the other, filed the notices of motion that are presently before me.

Gina's notice of motion filed 12 April 2019

1. The relief sought by Gina in her notice of motion filed 12 April 2019, as subsequently amended in the form of the amended short minutes of order handed up on 26 June 2019 during the course of the hearing of that notice of motion (and hence not as extensive in some respects as set out in the notice of motion itself), is as follows: 1. Subject to further order, order that for the purposes of complying with the orders referred to in Schedule A [the 2018 Orders] the first defendant is justified in requesting the fourth defendant, Hancock Prospecting Pty Ltd (HPPL), to make available for inspection by her or her legal representatives the following classes of documents: a. the 200 boxes of hard copy files and 30,000 emails and attachments which are referred to at [85] of the 2018 Judgment; and b. any further boxes of hard copy files and electronic records created prior to 25 May 2015 that HPPL identifies as containing or possibly containing the following classes of documents: i. the classes of documents set out [at] [83] of the 2018 Judgment that were considered by the first defendant or her legal representatives not to be documents of the Trust; ii. the classes of documents addressed in [111]-[118] of the 2018 Judgment, insofar as Brereton J identifies those classes of documents as being documents of the Trust; iii. the classes of documents provided to the solicitors for the plaintiffs on 6 June 2019 pursuant to the orders of Ward CJ in Eq made 13 May 2019; iv. any other class of documents relating to transactions and other events, as notified to HPPL by the first defendant or her legal representatives, as being relevant to the Trust (as approved by the Court). [Prayer 1] 2. Order that the provision of the documents referred to in Order 1, to the first defendant or her lawyers by HPPL or the fifth defendants 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. [Prayer 4] 3. Order that the first defendant be relieved from producing all documents of the Trust which are documents of the Trust only because they evidence or record communications between: a. the first defendant any [sic; and] any of the plaintiffs, second defendant and third defendant; b. the first defendant and any officer or employee of HPPL, in relation to trust districutions [sic; distributions], save for distributions paid to the beneficiaries of the Trust in excess of $5,000 as referred to in: c. Annexures N, O, P, Q, R, T and V to the Sumner Hall Associated [sic; Associates] Pty Ltd report dated 18 September 2015; and d. Exhibit HRS-1 at pages 530 to 540 to the Affidavit of Hugh Robert Scott dated 18 April 2019. [Prayer 7] 4. Vary order 2 of the 2018 Orders to read as follows: "By [date to be specified], the first defendant 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 Trust, so that they may be reviewed by the first defendant and her legal representatives and any Trust documents produced to the second plaintiff". [Prayers 9 and 10] 5. Subject to further order, order or direct that for the purpose of complying with order 4, the first defendant is to write to each of the third parties identified in the Schedule to the 2018 Orders and Tottle Partners, in the terms set out in annexure A to these orders. [Prayer 11] 6. Order that the first defendant is to be indemnified from the Trust in respect of her compliance with the orders made by Brereton J on 28 May 2015, the 2018 Orders and these orders, for all costs reasonably incurred from the date of these orders. [Prayers 13, 16, 19] 7. Order that for the purposes of complying with order 1(a)(iv) of the 2018 Orders, the first defendant is justified in producing to the second defendant an electronic file of the full transaction listing of general ledger of the accounts of Trust which were maintained by HPPL. [Prayer 14] 8. Order that the first defendant may produce copies of any documents of the kind identified in order 1(a)(iv) of the 2018 Orders. [Prayer 17] 9. Liberty to apply, including to be relieved from order 3 of the 2015 Orders in respect of any particular document or class of documents at any time after HPPL has made available for inspection by the first defendant and her legal representatives the documents referred to in order 1 of these orders. [Prayer 18]
2. Of that relief, the relief claimed in prayers 4 and 17 of the 12 April 2019 notice of motion (i.e., the relief at items 2 and 8 above) was not ultimately contested by Bianca (see T 11.5ff) and those orders, the purpose of which I identify below, will now be made.
3. By prayer 4, Gina seeks a direction that the provision of the possible documents of the HMH Trust to her or her legal representatives would not render those documents as being trust documents, so as to bring them within the scope of the production orders, if those documents would not otherwise be within scope (consistent with the fourth notation to the orders that I made on 11 December 2018). The plaintiffs sensibly take no issue with such an order (describing it as being to the effect that the mere provision by HPPL of a document to Gina or her lawyers will not make the document a "Trust document"), though they considered it unnecessary in light of the notation made by me to the orders of 11 December 2018 (see [32] above). The order is sought by Gina for an abundance of caution and, lest there be any doubt in the future, I consider it appropriate formally to make the order sought.
4. By prayer 17, Gina seeks an order to the effect that documents falling within Order 1(a)(iv) of the 2018 Orders may be delivered by way of copy rather than the original. It is noted that, in the 2019 Appeal Decision, the Court (Basten JA and Simpson AJA) (at [47]) suggested that a variation could readily be sought such that only copies of document need be provided (such as, for example, where the originals might belong to HPPL). The position of the plaintiffs on the present application is that, while strictly speaking this is a variation of Brereton J's orders, they are prepared to consent to that variation (which they accept is consistent with [47] of the 2019 Appeal Decision). HPPL/HDIO, for their part, support such an order, considering it to allow a practical position in which, if there is production, HPPL retains the documents and Gina causes a copy to be produced to Bianca. Again, I consider that such an order is sensible and will make it accordingly.
5. As to the other (contested) relief sought in Gina's motion (as amended), it may be summarised as encompassing the following: first, a direction or order as to the means by which Gina may discharge the orders requiring her to deliver up to Bianca all documents of the HMH Trust by making reasonable enquiries and taking all reasonable steps (and concerning the scope of documents which Gina and her legal representatives must review to discharge the obligations under the 2015 Orders and 2018 Orders) (prayer 1); second, a direction or order concerning some dispensation as to the requirement for Gina to produce personal correspondence between Gina and her children (prayer 7); third, directions concerning communications with third parties (prayers 9-11); fourth, orders relating to the production of the electronic database of the HMH Trust (prayer 14); fifth, timetabling orders and the grant of liberty to apply (prayers 11 and 18); and, sixth, orders in relation to the costs of production for which Gina seeks indemnification (prayers 13, 16 and 19). As to the last, I note that Gina's Counsel made clear during the course of the hearing of the present applications that she does not now press for an indemnity in relation to the past costs incurred in producing documents of the HMH Trust (i.e., in the process that was found by Brereton J to have proceeded in part on a misconception of what were "Trust documents") (see T 74.15) and, hence, argument as to whether those costs have already been dealt with by Brereton J (as the plaintiffs maintain) does not now need to be determined.
6. As to the timetabling matters, prayer 8 of the 12 April 2019 motion has in effect been superseded by Order 2 of the orders made on 4 April 2019 (when I vacated the time for production until further order) (and in any event it was not included in the revised short minutes of order that updated the relief sought by Gina's notice of motion - see below). It is submitted for Gina that before a time for compliance with the orders of production is set it will be necessary for the possible documents of the HMH Trust received from HPPL to have been made available to Gina and her legal representatives for inspection by them. Bianca does not accept this proposition. For Bianca, a very short timetable was put forward in this regard (largely corresponding to the timeframe originally contemplated by Brereton J).

HPPL/HDIO's notice of motion filed 12 April 2019

1. HPPL/HDIO, by their corresponding notice of motion, filed on the same day as Gina's notice of motion, seek what they describe as "temporary dispensation" from any requirement to comply with a direction from Gina regarding compliance with (or to relieve Gina from compliance with) Orders 1(a)(iv), 2 and 3 (insofar as Orders 2 and 3 overlap with Order 1(a)(iv)) of the 2018 Orders).
2. HPPL and HDIO's primary contention is that their notice of motion should be stood over until such time as a sufficient selection of documents caught by Order 1(a)(iv) of the 2018 Orders have been identified; i.e., that it ought not be determined in the abstract, without evidence, and without reference to specific documents or classes of documents.
3. If, however, the motion is to be determined now, then HPPL and HDIO submit that it should be granted because: they have standing to bring the motion; the timing of the motion is appropriate in the sense that it has not been relevantly delayed; and, they submit, they should not be required to comply with any direction from Gina (or Gina should not be required to give a direction) which prioritises (over what they maintain are HPPL and HDIO's own rights and best interests) the interests of an adverse litigant (i.e., Bianca) who is suing HPPL and HDIO in other litigation for all of their major assets.

20 June 2019 notice of motion by Gina to set aside subpoena/notices to produce issued by Bianca

1. In June 2019, at a time when the April notices of motion were part-heard but the hearing had been adjourned (in accordance with the regime that I had then envisaged might be able to be put in place to facilitate a more timely production of the HMH Trust documents), Bianca invoked the compulsory processes of the Court, issuing: a subpoena for production filed on 7 June 2019 addressed to the Proper Officer, Corrs Chambers Westgarth (Corrs); a notice to produce dated 7 June 2019 and addressed to HPPL; a notice to produce dated 14 June 2019 addressed to Gina; and a further notice to produce dated 19 June 2019 addressed to Gina.
2. Relevantly, the 7 June 2019 notice to produce to HPPL and the subpoena of that date to Corrs (who are the solicitors acting for HPPL and HDIO in these proceedings) both sought the production of "[a] full copy of the transcript of all examinations of Georgina Hope Rinehart which took place between 1 September 1999 and 28 February 2001 in proceedings in the Federal Court of Australia styled as Donnelly v Estate of Langley George Hancock with proceedings number NSD7840 of 1999" (those being bankruptcy proceedings in the Federal Court in Western Australia concerning the estate of Gina's late father, Mr Lang Hancock); the 14 June 2019 notice to produce sought the production of certain correspondence between third parties and Gina's representatives; and the 19 June 2019 notice to produce sought the production of "inventories" referred to in Mr Scott's 18 April 2019 affidavit at [22].
3. Gina's response, following correspondence between the respective solicitors, was to file a notice of motion on 20 June 2019 seeking to set aside the notices to produce and subpoena.

Hearing of the respective motions on 1-2 May, 13 May 2019

1. Returning to the chronology of the present applications, I commenced hearing the respective applications on 1-2 May 2019, following which (on 13 May 2019), as adverted to above, I made certain directions in an (as it transpired, forlorn) attempt to progress the delivery up of the relevant documents in an expeditious fashion. I proposed a process which involved that Gina, in the first instance, identify in consultation with her legal advisers what had been referred to in argument as the "universe of documents" (i.e., the universe of documents that might be held by HPPL and would need to be reviewed by Gina to see if they had been "used by" Gina in the administration of the Trust); that Bianca have an opportunity to comment thereon; and for the parties then to see if agreement could be reached at least as to some categories of documents so that steps could get underway in earnest for the production process (and thus to confine, if not wholly resolve, the present dispute).
2. Bianca's position in regard to that proposed way of proceeding (as adverted to above) was that there should be an affidavit from Gina as part of the proposed "iterative process" (that being Gina's description of the process). This was resisted by Gina, not least on the basis that such an application had been rejected by Brereton J and that this was an attempt to traverse the position to which his Honour had come (at [128], [130]-[131]) in the 2018 Decision.
3. What I had in contemplation as at May 2019 (as I had sought to make clear to the parties) was simply a process along the lines indicated above: that there would be consultation between Gina and her legal representatives as to the relevant classes of documents (including an attempt to identify all the transactions entered into and other significant events during the course of the time she was trustee of the HMH Trust); the outcome of that consultation (in the form of proposed classes of documents to be reviewed) would be provided to Bianca's legal representatives for their input before it was provided to HPPL; and then HPPL would identify what documents held by it falling within those categories of documents and provide them to Gina's solicitors so that instructions could be taken from Gina as to whether the documents so identified had in fact been used in some way in the administration of the HMH Trust and whether or not there was a belief that there might be other documents that had not been identified by HPPL. I was not there suggesting some process by which Bianca, or the plaintiffs, would not later be able to challenge the adequacy of production. Nor was I suggesting that there be some judicial imprimatur given to the categories of documents so identified. Moreover, I had envisaged that Gina would still in due course be required to verify compliance in accordance with Brereton J's orders and the matter would proceed from there (with, were Bianca to be so advised, any application made for cross-examination of Gina on that verification affidavit in due course). This was simply an attempt to progress the production of documents in a more timely fashion than might otherwise be possible and was put forward having regard to the overriding statutory mandate for the just, quick and cheap resolution of the real issues in dispute (see s 56 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act)).
4. Perhaps unsurprisingly in this ongoing litigious saga, that attempt was not successful. Gina's instructing solicitors did prepare a detailed letter dated 6 June 2019, to which I refer in due course, identifying various categories of documents and inviting a response thereto from Bianca's instructing solicitors. Bianca's solicitors responded (after having issued, among other things, the notice to produce and subpoena on 7 June 2019 which are the subject of the 20 June 2019 motion for them to be set aside) by letter dated 19 June 2019. That letter: set out at some length the history of the matter and the plaintiffs' complaints as to the production process to date; complained (among other things) that Gina had never provided any description or explanation as to how she administered the HMH Trust or as to other matters; and culminated in a broad criticism of the categories put forward (but not to my mind, other than in a limited respect - see, for example, at [18] of the letter, engaging in the process that I had contemplated on 2 and 13 May 2019 of identifying categories of potential documents that had been used by Gina in the administration of the HMH Trust so as to progress the production of such documents). Bianca's position, as stated in her solicitors' letter, was that she "is not in a position to say whether the documents identified in your letter constitute the universe of documents potentially used by your client in the administration of the Trust". Instead, Bianca there pressed for the approach for which she had argued (unsuccessfully) on 13 May 2019 to be adopted.
5. Relevantly, the 19 June 2019 letter from Bianca's solicitors stated, among other things that: 6 The Court has now found that Trust documents includes documents used by your client in the administration of the Trust and requires your client to produce such documents to the second plaintiff. At the hearing on 30 April 2019, your client vigorously resisted an order that she provide an affidavit explaining, to the best of her knowledge and belief, the classes of documents which were used by her in the administration of the Trust. 7 She still has not done so. [Pausing here, that is hardly surprising, in that Gina was not ordered to do so and the production process is not complete.] The evidence provided by your client so far addresses the mechanical searching exercise undertaken by HPPL and the quantum of documents whilst avoiding giving any evidence about the subject matter, content or organisation and access to those documents. 8 Thus it remains the case that your client has never provided any description or explanation as to how she administered the Trust. She has never explained or identified the legal issues she encountered as Trustee of the Trust, the role of her various legal advisors, her interactions with HPPL in her capacity as Trustee and Chairman of HPPL, nor what information she obtained from HPPL that she considered as part of her administration of the Trust. She has not explained or identified the kinds of communications she had with all of the beneficiaries of the Trust nor how she made decisions about Trust distributions. She has not explained the events leading to her execution of various deeds with the beneficiaries of the Trust and has not identified any legal advice she received in relation to the same. 9 As a consequence, the second plaintiff has only been able to piece together an understanding of the history of the Trust from documents produced by your client thus far and documents obtained on subpoena. Our client's understanding of the history of the Trust and the various activities it engaged in is therefore substantially incomplete. In other words, there is a very significant information asymmetry as between the second plaintiff and your client. 10 The second plaintiff is not in a position to say whether the documents identified in your letter constitute the universe of documents potentially used by your client in the administration of the Trust. Most tellingly, your letter does not state that your client has reviewed the categories of documents and holds the view that they represent the universe of the classes of documents potentially used by her in the administration of the Trust. Notably, nearly all of the categories of documents concern matters which have previously been identified by the second plaintiff as involving activities of the former trustee in relation to which documents have not been produced or the production has been deficient. 11 For that reason, the second plaintiff cannot approach the categories of documents identified in your letter as if it were a discovery exercise, i.e. identifying categories of documents by reference to their relevance to facts in issue in the proceedings, based on a set of pleadings. The second plaintiff is not in a position to say, with any confidence, that the categories of documents you have identified represent the universe of documents which may have been used by your client in the administration of the Trust. There may be activities that your client engaged in as the former Trustee which are not reflected in the categories of documents included on your list. Our client would have no way of knowing whether that is the case, i.e. she has no way of testing, in the abstract, whether the list encompasses all classes of documents potentially used by your client in the administration of the Trust. 12 That is why, as we have explained in our submissions to Ward CJ in Eq., our client will require the production to be completed and verified by your client, before she can test whether your client has complied with the Production Orders. That is the regime that Brereton J put in place, knowing the history of this matter and seeking to ensure that the second plaintiff would be given an adequate opportunity to test compliance in the way that she had done previously, through a process which revealed very substantial deficiencies in your client's compliance with the Production Order. 13 In terms of the categories themselves, it is also evident that they have been very carefully crafted with the benefit of a detailed knowledge as to the subject matter and time frame. The reasons for that careful drafting or the particular timeframes are provided without any explanation. The second plaintiff is not in a position to assess whether any of the date ranges suggested in your letter is appropriate or reasonable. 14 The categories as drafted also suggest that your client is in fact seeking to vary Compliance judgment and orders through the making of an application for dispensation. For example, the phrase which is repeatedly used throughout the categories (see categories 1-4, 17-20, 22, 24-27, 29-32, 36-39, 47-63, 92-93, and 108 - 109) 'concerning the affairs of the trust' appears nowhere in the Compliance judgment and its deployment is plainly designed to act as a replacement for the requirement in the Compliance judgment orders for your client to produce documents 'used in the administration of the trust'. 15. Whilst the categories make reference to former third party service providers and advisors to the Trust (and only one such advisor not mentioned in the schedule to the Compliance orders), the documents sought (as mentioned above) are confined to specific dates and subject matter. Our client is not able to fairly assess the accuracy, reasonableness or completeness of these categories without knowledge of the circumstances in which each service provider was retained and/or provided advice to your client which in some cases we know from the limited information available was provided to your client in multiple capacities and/or used by your client in the administration of the Trust. Our client has not had copies of all of the documents which might inform the retainer of each of those service providers or other information which would allow a fair assessment of whether these categories would in fact capture the records of the Trust. 16. The categories in relation to the service providers and advisors appear to ignore a number of important subjects on which your client received or considered advice relevant to the administration of the Trust. For example, there is no recognition in the categories that Corrs (who are not referred to at all) and Freehills acted for HFMF in proceedings and in connection with proceedings whilst HFMF was wholly owned by the Trust and controlled by your client as the former trustee. 17. Many of the categories seek to confine the documents to 'all documents, including file notes and correspondence ... which record or evidence consideration or discussion by the first defendant, on behalf of the Trust...'. This obviously further undermines the Compliance judgment and orders because it seeks to avoid the obligation of your client to produce all of the documents which were 'used in the administration of the Trust', as there may be numerous documents that your client received, considered and/or used in the administration of the Trust other than documents recording or evidencing her consideration or discussion and/or which are not referred to in documents such as file notes and correspondence. In any event, to the extent these descriptions are inconsistent with the Compliance judgment, the same observations as referred to in paragraph 14 above apply. 18. The categories appear to avoid by omission a number of significant categories of documents which were identified by us in detailed correspondence and submissions in connection with the Production motion, and some of which have been dealt with in the Compliance judgment. As mentioned above, it is neither productive or necessary to now redebate or re-litigate the last four years other than to rely upon all of that material to demonstrate why the process you now advance is inappropriate and unproductive. With that qualification in mind and assuming the consultation process with your client was a genuine effort to provide a complete set of categories, by way of example, it appears that your client sought and obtained no legal or judicial advice (as the former trustee): 18.1 in respect of the so called constructive trust claim over the Hope Downs Tenements; 18.2 in respect of the ownership of other significant mining assets (including the Roy Hill tenements, Mulga Downs tenements and Nicholas Downs tenements); 18.3 In respect of the debt reconstruction transaction; 18.4 in respect of the sale of HMHT Investments Pty Limited to HPPL on 30 April 2012. 19 As you are aware your client (either directly or through her representatives) has made numerous robust and detailed denials of any wrongdoing by her (as trustee) or otherwise in respect of the implementation of the Plan of 1988, the mining tenements mentioned above and the debt reconstruction transaction. In advancing these denials (in writing and orally) she frequently refers to an asserted documentary record which she contends supports her position. Whilst some of the categories appear to be directed to communications with some of the advisors in relation to some aspects of those matters, none of the categories appear to be directed to the repository of documents upon which your client contends she relies upon to reject any allegations of past misconduct in relation to those matters. 20 For example, the categories do not refer to any hard copy set of such records and or any relational database (which your client (and those assisting her) has maintained and to which she has had access to over time). 21 Further, for the reasons explained to the Court, in respect of the communications with beneficiaries, the approach we have proposed on 13 May 2019 is the most cost efficient and appropriate way to deal with those communications and that separating out communications in respect of distributions (as the category set out in paragraph 6 of your letter) is likely to be a duplicative, unnecessary and inefficient exercise. Moreover, our understanding of the proposed categories is that your client is not proposing to produce any other communications with the beneficiaries unless they fall within the very narrow categories identified.
6. That exchange of correspondence then led to complaint by Gina, when the hearing of the present applications resumed, that there had not been compliance with Bianca with the directions I had made on 13 May 2019. Bianca denied any such failure and countered with the response that there is an "information asymmetry" between the parties; and the complaint that she should not be forced into a process of, in effect, agreeing to discovery categories. The plaintiffs also emphasised that, historically, there have been instances where the existence of documents had not been disclosed by Gina and was only discovered through other means (such as the Sceales advice, to which there was much reference in the course of argument). The plaintiffs argue that they did engage in the process I had envisaged, by suggesting a more limited and practical way (for example) of approaching the task of communications with beneficiaries (using suggested search terms) and by taking issue with the completeness of the categories insofar as they omitted reference to particular matters (see at [18] of the letter, for example).
7. Nevertheless, the plaintiffs' position in oral argument was that they did not wish to have a debate in the abstract in advance of the production; and should not be required to do so. Among other things, complaint was made that there was no explanation by Gina (or her legal representatives) as to how the date ranges set out in some of the categories of documents had been selected (by Gina) nor did the plaintiffs have "any clue" as to whether those date ranges were correct. (Complaint was also made in the 19 June 2019 letter (at [14]) that the way in which certain of the categories were phrased - "concerning the affairs of the trust" - was an attempt to vary, or narrow, the description of trust documents as contained in the 2018 Decision.)
8. In my opinion, there is some force to the criticism made by both sides against the other: on the one hand, the criticism of Gina relating to deficiencies in production to date is founded on matters that have already been the subject of findings by Brereton J (and I do not need here to comment further thereon); on the other hand, the criticism by Gina's side of Bianca's response to the proposed categories of documents prepared following the directions I made in May 2019 has force at least to the extent that, while criticism was made by Bianca as to the completeness of what was proposed in the 6 June 2019 letter, there was little detail there given to support the complaint or to indicate the modification that might be needed to address the complaint (so, for example, there is an assertion that the categories in relation to service providers and advisors "appear to ignore a number of important subjects on which your client received or considered advice relevant to the administration of the Trust" but the letter gives little by way of indication as to those subjects); nor did the letter (other than implicitly in, say, [16] and [18]) identify any modifications or additions to the classes of documents proposed to be requested to be produced for inspection by Gina (for her then to review and give instructions as to whether the documents had been used by her)).
9. Complaint is made by the plaintiffs that they have raised issues as to deficiencies in the proposed production process (by seeking the production of the transcript of the WA bankruptcy examinations, for example) and that there was no attempt to amend the proposed categories to include this (placing reliance on the resistance in relation to production of that transcript as evidence in support of the submission that there has not been a genuine attempt (or there has been a lack of diligence) by Gina in relation to the identification of proposed categories). Gina's response to that complaint is that it ignores what was said in the covering letter of 6 June 2019 itself as to this correspondence (and to emphasise the iterative nature of the proposed process).
10. I accept that the plaintiffs did consider and respond to the 6 June 2019 letter as had been directed and that there is an obvious information asymmetry between the parties; and I accept that it is not unreasonable that Bianca considers that she would require production to be completed and verified "before she can test whether [Gina] has complied with the production order" (though that is not, of course, the issue which the proposed consultation process between the legal representatives was intended to address). I would not, therefore, conclude that there has been a failure to comply with the directions that had been made (an accusation regarded by the plaintiffs as both serious and unfounded).
11. Moreover, I accept that the history of the matter to date is one where the attempt at production of documents was demonstrably not complete (albeit in a process that Brereton J accepted had been undertaken by way of a reasonable search and review methodology and where his Honour expressly disavowed any finding of lack of good faith on Gina's part); and hence that there is some basis for the suspicions apparently still harboured by the plaintiffs as to the motivation behind any attempt here to limit in some way the categories of documents identified for production as "Trust documents".
12. The upshot, however, is that the 19 June 2019 letter from the plaintiffs' solicitors in essence seems to me to amount to little more than a five page excursus into the reasons why Bianca says she cannot (and should not be required to) engage in the process I had mooted when the matter was before me in May 2019.
13. It is manifest from what has occurred in the course of the present applications that there is little to be gained from seeking to procure a co-operative approach between the parties to the issues that have been raised (on both sides) in relation to production of documents. So be it. A trench warfare mentality is hardly consistent with the manner in which litigation in this Court is to be conducted but there is a limit to which the Court can properly intervene in that regard. That said, it should be noted that one of the ironies of the stance that has been adopted by Bianca (no doubt with the benefit of considered legal advice) is that, to the extent that Bianca is insistent upon completion of the process of production of trust documents within the extended definition in the 2018 Decision (and has not been able to assist meaningfully in limiting the scope of production even in the face of the evidence as to its likely exorbitant cost), then she can hardly be heard now to complain as to the time (and cost) required to complete the process of the wholesale review of documents and exhaustive production of the HMH Trust documents. In other words, her adamant position that Gina is to be held in compliance with the 2018 Orders without dispensation or variation (other than in minor respects) will have an obvious consequence on the time and cost of that process. In that regard, if nothing else, Bianca's attitude to the timeframe for compliance with the 2018 Orders, once the present issues have been resolved, seems to me to be unreasonable.
14. I might add that when the rationale of the production of trust documents by an outgoing trustee, as explained by Brereton J in the 2018 Decision, is borne in mind it might be doubted as to whether the production of some of the documents raised as examples in the course of the present application - such as dry cleaning bills in minor amounts presented by beneficiaries for payment out of the HMH Trust fund - are documents required by the incoming trustee for the ongoing administration of the HMH Trust. However, where the incoming trustee has insisted on complete production of the HMH Trust records and the outgoing trustee has been ordered to produce them, there is much to be said for the proposition that there should be complete production as ordered albeit that I consider the incoming trustee's insistence on complete production should be coupled with an indemnity in respect of those costs, something to which I will return in due course.

Resumption of hearing of motions on 26/27 June 2019

1. The hearing of the motions then resumed on 26/27 June 2019, albeit with a revised form of the orders sought by Gina (taking into account the exercise that had been carried out, as encapsulated in her solicitors' 6 June 2019 letter) being handed up.
2. By that time, as noted above, the plaintiffs had issued the subpoena to Corrs and the respective notices to produce, seeking the production of further documents (including the transcript of compulsory examinations believed to have been conducted of Gina in relation to the WA bankruptcy proceedings referred to above); and there was an application for those to be set aside. I heard argument on that application as well as hearing the conclusion of the submissions on the 12 April 2019 notices of motion. I reserved judgment on the respective motions on that occasion.

Application to set aside subpoena/notice to produce

1. It is convenient to deal first with the application to set aside the Corrs subpoena and the notice to produce addressed to HPPL, since the legitimate forensic purpose of those compulsory processes was said, at least in part, to be to produce documents in order to test the position taken by Gina on the present applications in relation to the production of HMH Trust documents.
2. In resisting the application to set aside the notice to produce and subpoena, Bianca relied upon an affidavit sworn 30 April 2019 by her solicitor, Mr Timothy Randolph Price, (read at the hearing on 1 May 2019) and the exhibits to that affidavit; as well as correspondence in which Bianca's solicitors had requested certain documents from Corrs and other communications between the parties to these proceedings, for the purpose of establishing the likelihood of the existence of such transcripts.
3. In his affidavit, Mr Price deposes to the making of certain findings by Brereton J and to the evidence upon which it is said that those findings were based, relating to attempts by Corrs (the solicitors acting for HPPL and the Hancock Family Memorial Foundation (HFMF) in 1997-2000) in 2015 to retrieve the files of two firms (Cocks MacNish and Freehills) who had been involved in certain of the Rinehart matters; and to correspondence from late May 2019 in relation to a request by Bianca's solicitors for production to her, as trustee, of all documents held by Corrs in respect of that firm's retainer in relation to certain litigation in the Supreme Court of Western Australia (see The Hancock Family Memorial Foundation Ltd v Fieldhouse (2005) 30 WAR 398; [2005] WASCA 93) (the Fieldhouse proceedings).
4. It is noted that Corrs' retainer was confirmed in an email sent 26 November 2004 to Bianca (reference being made to a letter dated 31 May 2019 from Mr Price to Corrs and copied to HPPL's solicitors in the present proceedings). Bianca's solicitors had sought an explanation from Corrs (if the documents relevant to those retainers were no longer held by the firm) as to "all of the circumstances and timing of how those documents cease to be in your control or possession".
5. The correspondence to which reference was made by Bianca in resisting the setting aside of the subpoena comprised: the letter dated 6 June 2019 from HPPL's solicitors (Speed & Stracey) to Bianca's solicitors (referred to above), attaching proposed categories of documents (for Bianca, it is noted that the solicitors there acknowledged that they had not addressed the 31 May 2019 letter to Corrs in which request was made for information as to Corrs' retainer - see above); a letter dated 17 June 2019 from Corrs to Bianca's solicitors in relation to the subpoena (Exhibit E on the present applications); an email dated 17 June 2019 from Mr Price to Mr Dallen of Corrs; a letter dated 19 June 2019 from Bianca's solicitors to Corrs and attachments thereto (Exhibit D on the present applications); the letter dated 19 June 2019 from Bianca's solicitors to Speed & Stracey responding to the categories of documents that had been proposed by the latter (to which I have already referred; Exhibit 4 on the present applications) (reference being made in particular to the complaint at [16] of the letter to the effect that the proposed categories did not include all of the service providers, including Corrs and Freehills, in relation to HFMF); and a letter dated 20 June 2019 from Corrs to Bianca's solicitors noting that Gina had filed a notice of motion seeking to set aside both the subpoena and the notice to produce.

Bianca's submissions as to the subpoena/notice to produce

1. Bianca's position is that there is no dispute that Gina was examined in Federal Court proceedings number NSD7840/1999 (pointing to a print out from the Federal Court website that shows that examinations were conducted between September 1999 and 20 February 2001 before Registrar Tesoriero in various court rooms in the Federal Court) (Exhibit F on the present applications).
2. Pausing here, Gina takes issue "for the sake of completeness" with the sufficiency of the evidence relied upon by Bianca in this regard. In particular, it is said that there is no admission that such a transcript exists (it being pointed out that the Federal Court Registry print out relied upon by Bianca (Exhibit F) does not show any names of any examinees); and it being noted, as a general observation, that much of the asserted "key" background facts rely on findings in judgments in other proceedings (which it is said highlights the insufficient evidentiary basis on which Bianca's ultimate submissions on legitimate forensic purpose for the impugned compulsory processes are based).
3. As to the "key" background facts identified by Bianca as relevant on the application to set aside the compulsory processes, these are that: until the sale of Hope Margaret Hancock Trust Investments Pty Ltd (HMHTI) to HPPL in April 2012, HMHTI was wholly owned by the trustee of the HMH Trust; through HMHTI, the trustee controlled HFMF; and HMHTI came to control HFMF by a Debt Reconstruction transaction dated 24 May 2017 (Bianca referring in this regard to her submissions concerning the "Debt Reconstruction" transaction at [10], [17] and [35]-[40when the matter was before Brereton J in 2017; and noting that the Debt Reconstruction was described by Brereton J in the 2018 Decision as "a significant and controversial transaction to which the Trust was a party in the mid-1990s" ([94] of the 2018 Decision)). It is said for Bianca that there does not appear to be any dispute that HMHTI acquired an interest in HFMF (reference being made to categories 8, 10 and 11 of the suggested categories of documents put forward by Gina in her 6 June 2019 letter in this regard).
4. I interpose to note that Gina cavils with the proposition that Bianca has adduced any evidence that she (Gina) as trustee, through HMHTl, controlled HFMF; and points out that, at [71] of the 2018 Decision, Brereton J said it was unnecessary to consider "elaborate arguments" about the Debt Reconstruction and simply held that Gina was acting in her trustee capacity when she demanded that HFMF admit HMHTl as a member. Gina says that this is not proof that HMHTl controlled HFMF. As to those parts of the 2018 Decision concerning control of HMHTl (not HFMF), reliance is placed on s 91 of the Evidence Act 1995 (NSW) (Evidence Act) for the proposition that those paragraphs may not be used as factual findings on the present applications. Similarly, Gina notes that the submissions made by Bianca when the matter was before Brereton J as to the HMH Trust's involvement in the Debt Reconstruction transaction do not amount to evidence (and she says that they did not go to the issue as to control by HMHTl of HFMF in any event).
5. Insofar as Bianca points to categories 8, 10 or 11 of the 6 June 2019 letter, it is submitted that none of these amounts to evidence or admission that HMHTl controlled HFMF; it being noted that the covering letter which proposed those categories stated: 1. The attached categories of documents is aimed to facilitate the fourth defendant (HPPL) making available for inspection by the first defendant and her legal representatives all documents which could possibly be trust documents. Upon HPPL making all documents which fall within the categories available for inspection, they will he reviewed to identify any Trust documents. Thus, obviously not all documents made available for inspection will be Trust documents and the attached list includes categories of documents which may ultimate[ly] not yield any Trust documents or over which privilege may be claimed. The first defendant makes no admission that the categories or documents answer the categories, by definition, are Trust documents and reserves her rights to claim privilege where applicable.
6. For Gina, it is further said that, insofar as Bianca relies on an assumption that anything concerning HFMF is a trust matter, that would involve the piercing of two corporate veils (and has not been proven).
7. Returning to the factual basis put forward in Bianca's submissions, Bianca refers to two sets of proceedings: the Fieldhouse proceedings and related proof of debt proceedings which resulted in a judgment by Stone J in the Federal Court on 8 July 2002 (the proof of debt proceedings).
8. Bianca says that the investigations and conduct of the Fieldhouse proceedings (which she says appear to have commenced in about 1992) were things done by and for the benefit of the HMH Trust and she notes that HFMF was the plaintiff in those proceedings. Bianca says that: the trustee in bankruptcy for the estate of Mr Lang Hancock commenced with a creditors' petition issued by HPPL on 8 April 1999; the bankruptcy proceedings subsequently involved the lodging of a proof of debt on behalf of HFMF on 4 August 1999; that, in September 1999, Mr Fieldhouse gave evidence in trustee examinations into matters including the circumstances which gave rise to the creation of the HMH Trust and the ownership and control of HFMF; and that Cocks MacNish, Mr Gilmour QC and Mr Hersowitz appeared on behalf of HFMF in the Fieldhouse proceedings but that Corrs (which was also acting for HFMF in other Hancock litigation) was retained in June 1997 to instruct counsel in Sydney to review a draft statement of claim against Mr Fieldhouse and to instruct counsel in Sydney to review the pleadings; and that briefs were forwarded to Corrs in or about November 1997.
9. Bianca says that HFMF was the second respondent to the proof of debt proceedings, by reference to the judgment in which it is said that those proceedings involved similar facts and issues to the Fieldhouse proceedings (particularly in relation to the creation of the HMH Trust and the ownership and control of HFMF). It is said that Freehills acted on the record for HFMF in the proof of debt proceedings and that Mr Hayes QC and Mr Martindale appeared as counsel for HFMF.
10. Bianca also notes that the Fieldhouse proceedings and the proof of debt proceedings were described by the Court of Appeal of Western Australia (at [7] of the judgment in the Fieldhouse proceedings) as follows: Following Mr Hancock's death, a series of complex legal actions was commenced by the companies, under the control of Ms Rinehart, to attack the impugned transactions and clawback the value to it said to have been lost by the companies. Essentially there were three sets of proceedings.
11. Bianca says that the Corrs retainer for HFMF appears to have ceased in about March 2000 but that the apparent period of the Corrs retainer (1997 to 2000) significantly coincides with the period over which the examinations took place (September 1999 to February 2001).
12. What Bianca draws from the above recitation of "key" facts is the submission that Gina was a central potential witness to the issues in both the Fieldhouse proceedings and the proof of debt proceedings, being a party to the "Plan of 1988" (which it is said was the precursor for the creation of the HMH Trust); and that Gina was acting in her capacity as trustee when in 1995 she demanded that HFMF admit HMHTI to membership as a precondition to the debt reconstruction (referring to the recognition by the Western Australian Court of Appeal that Gina controlled all of the relevant companies (including HFMF)).
13. Bianca thus submits that in that context there "can be little doubt that given the issues in the interlocking and related proceedings a prudent trustee in bankruptcy conducting examinations would have sought to examine Gina about those issues and her evidence will be consistent with or touch upon the findings sought and obtained by HFMF in the Fieldhouse Proceedings, the proof of debt proceedings, the documents so far produced by Freehills in answer to a subpoena issued in these proceedings (notably, the letter[s] from Gina to HFMF dated 25 and 23 October 1995 and the Deed of Release and Discharge dated 24 October 1995)".
14. Gina, again, cavils with the reliance placed by Bianca on findings or matters referred to in the respective judgments noted above (including as to the accuracy of the summary by Bianca as to the findings reported in those judgments). I do not propose here to set out the matters to which attention was drawn by Gina in the respective judgments in this regard. More relevant is the proposition (which I accept) that they do not establish that (nor, it seems, do they make reference to this) Gina was examined in the bankruptcy proceedings in question; nor do they establish Gina's role with or conduct concerning HFMF; and they cannot be relied upon as evidence of the facts there found in any event. For Gina, it is said that whatever findings were made by Brereton J in relation to HMHTl and the HMH Trust, it does not mean such findings apply, mutatis mutandis to HFMF, "particularly in circumstances devoid of evidence".
15. Leaving aside the contest as to what the "key background facts" have been established to be, I turn to the two bases on which Bianca submits that the notice to produce and subpoena have a legitimate forensic purpose for the application currently before the Court for the following reasons.
16. First, she submits that the tender of the transcripts will demonstrate that Gina has not included in her 6 June 2019 list of proposed categories a "very obvious" category of documents (namely, documents related to the bankruptcy litigation in which HFMF participated, when it is said it was controlled by HMHTI (which was wholly owned by the HMH Trust at the time of the litigation)). Insofar as Gina disputes that this is an omission from the list of categories, it is said for Bianca that the transcript will shed light upon whether that is the case (and that, if it is, then this would indicate that Gina has not undertaken "the diligent exercise for which she contends and which she says supports the relief claimed in the motion").
17. Second, she says that the transcript will shed light upon the activities of the trustee that were the subject of the examination (by way of example, the activities of HFMF, "as controlled" by Gina as trustee of the HMH Trust) as well as the underlying transactions which caused Gina to lodge a proof of debt on behalf of HFMF in the bankruptcy proceedings. It is contended that this in turn will shed light upon the identification of trust records and, again, whether the list of categories supplied by Gina omits important and obvious categories.
18. Bianca argues that the documents sought (transcripts of "open court proceedings") are readily identifiable, specific in character and could not justifiably be the subject of a claim for privilege. It is submitted that there is no reasonable basis to resist the production of the documents. Bianca relies upon the resistance thereto (both in respect of the request for the Corrs files in which it is said the documents are likely to be retained and the application to set aside the notice to produce and subpoena) as conduct that "speaks against many of the submissions made by the defendants in support of the application for dispensation including in particular the submission that there is a genuine desire for transparency and cooperation". It is submitted that: Given the background (and the ongoing proceedings) it is extremely unlikely that Gina or those assisting her have forgotten or overlooked the fact that she gave public evidence on oath on matters central to the issues in dispute and to the administration of the Trust.
19. In respect of Corrs, it is said that the firm has three relevant known roles: a retainer by HFMF from 1997 to 2000 which included reviewing the pleading for the claim by HFMF against Mr Fieldhouse; acting for Gina in defence of the application in these proceedings for her removal (and in that context advising her at the time of the sale of HMHTI to HPPL in 2012); and being involved in 2015 with efforts to retrieve the documents held by Cocks MacNish and Freehills including in their respective roles as the solicitors on the record for HFMF in the Fieldhouse proceedings and the bankruptcy proceedings. It is submitted that it is reasonable to infer that Corrs would have reviewed the transcripts (in their role in reviewing and advising on the proposed pleading by HFMF against Mr Fieldhouse) and that Corrs would have had cause to have considered that evidence again in 2012 and more recently in the context of the production of the HMH Trust records (or the expectation of an order for production) in 2015.
20. Bianca argues that there is no foundation for the submission by the defendants (in support of their applications for dispensation in relation to the production of documents) that Bianca has failed genuinely to engage in the identification (through the categories) of potential trust records or is holding back information "to catch Gina out in cross-examination"; and that the pursuit by Bianca of the documents in relation to Corrs and the conduct of the proceedings by HFMF is a powerful example in response to those submissions.
21. Bianca contends that the resistance to the production of the transcript from the Corrs files (which she argues is a matter over which Gina could plainly exercise her control to address) is "of itself troubling" but also says that there has been "no engagement (and indeed avoidance) by the defendants in respect of this issue in the conduct of their applications for dispensation". In particular, Bianca says that: in proposing the categories, recognition was given to the fact that they did not address the Corrs files as raised in Bianca's solicitors' letter dated 31 May 2019; that in her solicitors' letter dated 19 June 2019 to Speed & Stracey there was reference (at [16], as extracted above) to the lack of recognition in the categories of Corrs and Freehills acting for HFMF in the proceedings referred to earlier; but that there has been no attempt since then by Gina to modify the categories to accommodate the matters raised at [16] of that letter or to address those matters on the application for dispensation. In this regard, it is submitted that: Notably, the proposed categories remain silent on the role of Corrs, Freehills and Cocks MacNish, Gilmour QC, Hayes QC, Hersowitz and Martindale for HFMF in or in connection with the conduct of the proceedings referred to above. Instead, to the extent those service providers are referred to in the categories, there has been careful drafting (by the selection of date ranges and subject matters) which would avoid the production of these documents and that position is apparently maintained notwithstanding Bianca's efforts to point out those deficiencies.
22. Bianca emphasises the history of the production of documents to date as demonstrative of the "forensic benefits of actual example trust records". In particular, reference is made to the observations by Brereton J (at [93]-[95] of the 2018 Decision), noting that those findings arise from and are informed by specific examples of documents obtained by Bianca on subpoena. It is submitted that "[g]iven the significance of the dispensation sought, the Court should be cautious not to shut Bianca out of advancing the evidence sought"; and that the question of the legitimate forensic purpose of the subpoena and notice to produce is also to be considered against the so-called "iterative approach" that Bianca perceives the Court to be "contemplating encouraging to address the issues which have now arisen".
23. Bianca maintains (as already adverted to) that there is an "information asymmetry" in favour of the defendants which hampers productive engagement and that, when issues of that nature remain under consideration, the documents sought on the subpoena and notice to produce are of a nature which is very likely to assist in the process and will aid in addressing this information asymmetry. In those circumstances, it is submitted that there is plainly a legitimate forensic purpose in requiring specific trust records to be produced as a matter of fairness in any ongoing case management of the issues.
24. Finally, and in the alternative, it is submitted that the Court could examine the transcript of the examination(s) of Gina which are sought through the subpoena and notice to produce and form a view as to whether they are in fact trust documents and/or do in fact shed light upon the activities of the former trustee which in turn sheds light on the kinds of documents used in the administration of the HMH Trust.

Gina' submissions as to subpoena/notice to produce

1. Gina maintains that the compulsory processes issued by Bianca seeking the production of the transcript amount to an abuse of process. As already noted, she takes issue with the evidentiary basis for the submissions made by Bianca, describing many of those submissions as little more than bald assertion; and she emphasises that there has been no admission either as to the occurrence of any such examinations or as to the existence of any such transcript.
2. Emphasis is placed on the chronology of events in the course of which the notice to produce and subpoena were issued, including that: the issue was raised in correspondence on 31 May 2019 by the plaintiffs' lawyers to HPPL's lawyers (Corrs) as to Corrs acting for HPPL and HFMF between 1997 and 2000 in connection with WA proceedings involving HFMF (this letter being sent after the hearing of the 12 April motions had been adjourned and after the 13 May 2019 directions had been made); that in the 6 June 2019 in which the proposed categories were set out, Gina's lawyers stated: Please note we have not sought to address the matters raised in your correspondence of last Friday, 31 May 2019, but suggest if there are additional categories arising from that correspondence you should include them in your response, that the subpoena and notice to produce were then issued on 7 June 2019; that Corrs wrote on 13 June 2019 to Bianca's solicitors seeking advice as to how the documents sought were relevant to the issues outstanding regarding the dispensation motion; subsequent notices to produce were served on Gina; and then on 19 June 2019, Bianca's lawyers sent the letter in which they declined to propose any changes to the proposed categories (such as, Gina points out, any request for inclusion of a category which would have captured the WA transcript).
3. It is submitted for Gina that on 26 and 27 June 2019 at the hearing Bianca accepted that the process for production of trust documents will involve, first, the production of documents and that, after review, she will engage with Gina regarding any deficiencies that the plaintiffs envisage (see 26/10/19 T 31.12-25, T 32.30-34, T 40.3-10). In the circumstances, it is submitted that, by the Corrs subpoena and the HPPL notice, Bianca is seeking to circumvent the production process which is the subject of the 12 April 2019 dispensation motion. It is said that Bianca could have included a category seeking the WA transcript in the proposed categories but, instead, has sought to obtain the WA transcript on the basis that it "will demonstrate that Gina has not included in the [proposed categories] a very obvious category of documents" and that this would demonstrate a lack of diligence by Gina (see Bianca's supplementary submissions at [5]).
4. Gina argues that this is an abuse of process in four respects.
5. First, that it is an attempt to bypass the production exercise by obtaining the very documents which are the subject of it. It is said that there is no reason to believe that the WA transcript is a "Trust document" but, assuming that it was, once it is produced to Bianca, she will then be able to assess whether further production is required and inform Gina of the same, as her Counsel conceded would happen.
6. Second, that it demonstrates that, rather than seeking to take steps to assist with the production task, such as suggesting additional categories of possible "Trust documents" for provision by HPPL, Bianca's aim is to demonstrate non-production and to avoid Gina "obtaining the assistance of the Court" so as properly to comply with the 2015 Orders and 2018 Orders and so produce all trust documents (an approach contrary, it is said, to the process established by the orders made on 13 May 2019).
7. Third, that it is pure speculation that the WA transcript (assuming it exists) would assist in the manner asserted by Bianca and that, in this respect, the notice to produce and subpoena amount to a fishing expedition.
8. Fourth, that the WA transcript (if it exists) cannot now assist with the 12 April "dispensation motion", which has now been heard and on which I reserved judgment on 27 June 2019 (albeit awaiting receipt of final supplementary submissions).
9. It is submitted that Bianca has not established the factual basis to discharge her onus in respect of legitimate forensic purpose. Thus, it is submitted that the Corrs subpoena and the HPPL notice should be set aside as an abuse of process. (No separate submissions were addressed to the 14 June and 19 June 2019 notices to produce.)

Determination as to Corrs subpoena/HPPL notice to produce

1. I have considered the principles relevant to the requirement that there be a legitimate forensic purpose for the invocation of the compulsory processes of the Court in other decisions involving the protagonists to the present applications (2018 Rinehart v Rinehart at [43]-[54]; 2019 Rinehart v Rinehart at [25]-[27]) and it is not necessary here to revisit those principles (with which the parties have no dispute); beyond noting that it is for Bianca to show that it is likely that there is reason to believe that the documents sought under these compulsory processes exist and that they will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely they will do so.
2. The two bases on which it is submitted that there is a legitimate forensic purpose for the plaintiffs (or Bianca) to seek the production of transcripts of any examination of Gina in the WA bankruptcy proceedings to which they have referred, as set out above, in essence go to the same issue - the completeness of the categories of documents proposed by Gina's lawyers as part of their proposed iterative process of production of HMH Trust documents pursuant to the 2015 Orders as clarified by the 2018 Orders (relevantly, as requiring the production (among other things) of documents used by Gina in her position as trustee in the administration of the HMH Trust).
3. I do not consider that it is necessary for the purpose of determining the 12 April 2019 motions to form a present view as to the completeness or otherwise of the categories of documents proposed by Gina's lawyers in their letter dated 6 June 2019 (not least because, as will be made clear when I turn to those motions, I accept that it is not possible at this stage to reach any conclusion as to whether or not the proposed steps will ultimately be found to satisfy the description of all reasonable enquiries and searches - having regard to what might be discovered during the course of the production process itself); and I accept that Bianca should not be compelled to agree to participate in what has been categorised by her as akin to a discovery process (albeit that I remain of the view that a sensible approach was to try to reach some agreement on aspects of the exercise proposed to be carried out so that delay in the process could be minimised).
4. I consider that there is force to the complaint that this is just a fishing expedition insofar as it seems to be suggested that a review of the transcripts - assuming they exist - may disclose that Gina has omitted "important and obvious categories" of documents. Insofar as the transcripts are sought to be obtained in essence to bolster Bianca's argument that she has not failed to engage in the process that I had envisaged (or perhaps that, to the extent that she has not done so, it has been with some justification due to an information asymmetry or otherwise). It seems to me that that submission can be made (for what it is worth) by reference to the making of requests for the transcripts and the responses thereto, without the need to review the transcripts themselves. Moreover, if the purpose is to see whether there may be other documents or categories of documents that can be identified as HMH Trust documents and that are omitted from the proposed categories, then there is a reasonable argument that the effect of the invocation of the compulsory processes of the Court is to bypass or circumvent the very applications here being made.
5. I do not make any finding as to abuse of process in relation to the timing of the issue of the subpoena and notice to produce but I do consider there to be no legitimate forensic purpose that would now be served by compelling the production of any such transcripts as do exist (and noting that there is nothing to permit me to conclude on the evidence before me that such examinations did in fact take place or that there are transcripts available to be produced - that simply being the assumption, well-founded as it might perhaps be, that this occurred).
6. However, I do not consider it conducive to the overriding purpose mandated under the Civil Procedure Act, to which I have already referred, that the present application be permitted (as has unfortunately already occurred) to spawn satellite contests over the subpoena and notice to produce issued for the main purpose of showing that the "iterative process" proposed by Gina's legal representatives is or may not be comprehensive or may otherwise be open to criticism; and it is hardly an answer to suggest that it was necessary in order to meet anticipated criticism of a response to that iterative process when that response was not sent until 19 June 2019, some two weeks after the subpoena and notice to produce were issued.
7. Therefore, I will make the order sought for the setting aside of the subpoena to produce issued to Corrs and the notice to produce issued to HPPL. It is not clear to me whether the motion, insofar as it seeks to set aside the 14 and 19 June 2019 notices to produce, was ultimately pressed. I will therefore defer making any ruling on those notices to produce but nothing turns on them for the purposes of the remaining notices of motion.

Gina's 12 April 2019 notice of motion

1. Turning then to the notice of motion filed by Gina on 12 April 2019, the first matter to consider is the dispute between the parties as to the power here being sought to be exercised; and as to whether Gina is estopped from seeking the relief now sought even if that relief is within power.
2. Bianca submits that there is no power to grant the relief sought as this would amount to a variation of final orders of the Court (invoking the principle of finality of judgments and res judicata or issue estoppel) and argues that, insofar as what was here being sought is properly characterised as judicial advice, there is no power to give such advice in circumstances where Gina is no longer a trustee. Bianca also invokes the principles of Anshun estoppel in this regard (so called by reference to Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 (Anshun)).
3. Gina, while initially seeming to disavow the making of an application for judicial advice as such (and certainly there was no formal application as would ordinarily be made under the rules for such advice) maintains that there is power to give judicial advice to a former trustee (whether under the Trustees Act 1962 (WA) (the WA Trustees Act) or otherwise in the inherent jurisdiction of the Court) but in any event seeks to support the claim for relief in her notice of motion by reference to the liberty granted for an application to dispense with the requirement for production of particular documents or classes of documents and/or as part of the working out or implementation of the orders made by Brereton J.

Plaintiffs' submissions as to power and estoppel issues

1. The plaintiffs note that final judgments of this Court, with very limited exceptions, may not be varied by later order, referring to DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17, where a majority of the High Court (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) cited with approval (at [38]) the observations of Barwick CJ in Bailey v Marinoff (1971) 125 CLR 529 at 530; [1971] HCA 49 that: Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed. The plaintiffs also refer to the observations of the majority of the High Court in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [34] (Gleeson CJ, Gummow, Hayne and Heydon JJ) that: A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding. [references omitted]
2. They point to the recognition by the High Court in Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 at [16] as to the value and importance of the principle of finality: … [T]he principle of finality serves not only to protect parties to litigation from attempts to re-agitate what has been decided, but also has wider purposes. In particular, the principle of finality serves as the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time. Later correction of error is not always possible. If it is possible, it is often difficult and time-consuming, and it is almost always costly. and to the reflection of that principle in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) (referring to r 36.16).
3. The plaintiffs note that reservation of liberty to apply does not alter the finality of an entered judgment or order; and refer to Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213, where Campbell AJA (McColl and Leeming JJA agreeing) said at [81] that "the reservation of the liberty to apply provided no foothold for varying or revoking" a final judgment, his Honour there repeating observations made earlier in Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201; [2007] NSWCA 104 (Australian Hardboards v Hudson) (at [50]-[54]) that: When final relief has been granted in a suit, an order granting liberty to apply enables further orders to be made which are necessary for the purpose of implementing and giving effect to the principal relief already pronounced or, as it is sometimes called, "working out the order" … In Abigroup Ltd v Abignano (1992) 39 FCR 74 at 88, the Full Federal Court (Lockhart J, Morling and Gummow JJ) held that an order that a particular sum of money be paid to a particular party was a final order, notwithstanding that the order also reserved liberty to apply. Their Honours gave a general indication of where and how reservation of liberty to apply operates: The reservation of liberty to all parties to apply to a court is a provision directed essentially to questions of machinery which may arise from the implementation of a court's orders. They include cases where a court may need to supervise the enforcement of orders after they have been made. … Historically orders reserving liberty to apply are for limited purposes. … Liberty to apply cannot be used to alter the substance of an order already made: Dowdle v Hillier (1949) 66 WN (NSW) 155 at 156; Cristel v Cristel [[1951] 2 KB 725]; Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd [(1988) 14 NSWLR 552] (at 559). … In Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593 at 598, McPherson SPJ considered what is involved in "working out" an order: … a judgment or order that expressly reserves to parties a leave or liberty to apply can be varied on an application pursuant to such leave only so far as may be necessary for the purpose of working out the actual terms of the order so as to make it more efficacious in matters of detail. What is meant in this context by "working out" the terms of an order is considered in some of the cases on the point. In Cristel v Cristel [1951] 2 KB 727, 728, Somervell LJ said it "involves matters on which it may be necessary to obtain the decision of the court. Prima facie, certainly, it does not entitle people to come and ask that the order itself shall be varied" …
4. The plaintiffs also invoke the principle of res judicata or cause of action estoppel (i.e., that where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action), noting that the estoppel may arise where the substance, if not the form, of the two causes of action is the same; and the principle of issue estoppel (i.e., that a judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies), noting that, to identify the issues and questions determined by a prior judgment, reference may be made to the terms of the judgment or order as well as to the pleadings or other material showing the issues that were raised and decided and that the estoppel applies to any matter "which it was necessary to decide and which was actually decided on the groundwork of the decision itself, though not then directly the point at issue".
5. The plaintiffs rely upon the principle of finality (and res judicata) both in relation to the 2015 Orders and in relation to the 2018 Orders. In response to the submissions made in oral argument by Counsel for Gina on 1 May 2019 (to the effect that the plaintiffs' submissions as to lack of power to vary the orders, res judicata, issue estoppel and Anshun estoppel, should be rejected on the basis that the 2018 Orders were interlocutory orders), in supplementary submissions served by leave after judgment was reserved, the plaintiffs emphasise that the grant of liberty to apply in the 2015 Orders was framed in restrictive terms (that Gina "have liberty to apply to be relieved from order 3 in respect of any particular document or class of documents") and was described in the 2015 Decision as a grant of liberty to apply "to be relieved from producing any particular document on the ground that it is one to which the plaintiffs and the new trustee ought not be entitled" (at [366]); and they argue that the 2018 Orders were, for the purposes of finality and estoppel, final orders of the Court (even though they were interlocutory for the purposes of appeal).
6. The debate as to whether the 2018 Orders are, for present purposes, to be treated as final (i.e., for the purposes of considering whether res judicata or other estoppel arises) notwithstanding that the orders were an interlocutory judgment for the purposes of s 101(2)(e) of the Supreme Court Act 1970 (NSW) (see the 2019 Appeal Decision at [1]) raised consideration of the discussion in Rojo Building Pty Ltd v Jillcris Pty Ltd [2007] NSWCA 68 (Rojo v Jillcris), where a question arose as to whether an interlocutory judgment given in the course of proceedings gave rise to an estoppel.
7. As the plaintiffs note, in Rojo v Jillcris, Hodgson JA (with whom Mason P and Ipp JA agreed) (at [14]) said that the primary judge (McDougall J) had correctly held that, ordinarily, interlocutory decisions do not give rise to estoppels but that they can do so, for example, when there is an order for separate determination of a question in the proceedings; and that the primary judge was also correct to say that there can be cases where the conduct of interlocutory proceedings and the order made pursuant to them are such that they can be regarded as a determination of a separate question.
8. Reference is also made by the plaintiffs in this regard to what was said by Holmes JA, as her Honour then was, (Wilson J agreeing) in Castillon v P&O Ports Ltd [2008] 2 Qd R 219; [2007] QCA 364 (Castillon v P&O Ports) at [49]; [55]-[58]; and to the decision of the Victorian Court of Appeal in Laratae v Deans Pty Ltd [2016] VSCA 71 at [29] (Warren CJ, Tate and Beach JJA) and decisions of this Court in Telesto Investments Ltd v UBS AG [2012] NSWSC 44; (2012) 262 FLR 119; and Barnden v Zulian; Barnden v Commissioner of Taxation [2018] NSWSC 1980.
9. The plaintiffs contend that, as a matter of substance, the 2018 Orders finally resolved the rights of the parties in relation to the matters determined in the 2018 Decision; and that it would not now be permissible for Gina, having been refused leave to appeal, to contend before this Court that Brereton J was in error in some respect (but that because the judgment is interlocutory, it can be varied). The plaintiffs say that the 2018 Decision was intended to be, and was, a final determination of the parties' rights in that respect; and that the 2018 Orders, in that same respect, are final and properly give rise to res judicata and other estoppels.
10. It is submitted that the fact that the 2018 Orders were objectively intended finally to resolve the issues determined in the 2018 Orders is underscored by Gina's "repeated assurances" to the Court that she would fully comply with the orders of the Court if it were found that she had misapprehended her duties. Thus, it is submitted that Gina's submission that the 2018 Orders are interlocutory should be rejected.
11. As to the invocation of the principles of Anshun estoppel, which prevent a party from raising, in subsequent proceedings, matters which it ought reasonably to have raised in prior proceedings, reference is made to what was said in Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 (at 319) by Wigram VC; and to statements by the High Court in Metwally v University of Wollongong (1985) 50 ALR 58 (at 71) and by the Victorian Court of Appeal in Timbercorp Finance Pty Ltd (In Liq) v Collins [2016] VSCA 128 (Timbercorp Finance) (Warren CJ, Santamaria and McLeish JJA) (at [136]- [137]).
12. The plaintiffs submit that whether or not an Anshun estoppel could arise in the context of later proceedings in the one suit was left open by Campbell JA (Tobias JA agreeing) in Australian Hardboards v Hudson at [86] and point to the obiter observations made in Antov v Bokan [2018] NSWSC 1474 (Antov v Bokan) at [309] to the effect that there is scope for the application of the principles relating to Anshun estoppel even where there are no separate proceedings, having regard to the interests of finality and fairness underlying the doctrine of Anshun estoppel (there referring to Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28); where in the existing proceedings orders have been made disposing finally of discrete issues.
13. The plaintiffs also point to the decision of the Victorian Court of Appeal in Timbercorp Finance at [138] in this regard, which cited the House of Lords' decision in Johnson v Gore Wood & Co [2002] 2 AC 1 at 31; [2002] 1 All ER 481, explaining that the public interest underlying the Anshun doctrine is "reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole".
14. It is submitted that it would not serve the public interest to confine Anshun estoppel artificially to situations where there are different sets of proceedings, as opposed to successive proceedings in the one suit; and that there is no reason of principle to do so. It is further submitted that to confine Anshun estoppel in this way is inconsistent with the nature of the estoppel as founded on notions of abuse of process. It is noted that cases where Anshun estoppel does not strictly apply (for example, because the subsequent suit is between different parties who are not privies) may nevertheless be held to constitute an abuse (reference here being made to Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; [2001] NSWCA 142 in which Handley JA (Mason P, as his Honour then was, and Heydon JA agreeing) held the subsequent suit to be an abuse of the kind described in Reichel v Magrath (1889) 14 App Cas 665).
15. Thus, it is submitted that the principles of Anshun estoppel, or abuse of process more generally, are applicable in considering whether arguments now raised by Gina cannot be raised because they ought reasonably to have been raised before Brereton J at an earlier stage.
16. In that regard, the plaintiffs maintain that the time for seeking orders of the kind sought by Gina's notice of motion is "long past". Their position is that some of the orders seek to re-agitate arguments which Gina advanced (and lost) before Brereton J and that it is contrary to the principle of finality and res judicata to permit her to agitate those matters now; and that, to the extent that the orders go beyond the matters raised before Brereton J, they were matters which could have been (but were not) raised before his Honour.
17. Insofar as the present application is based on the task of searching HPPL's records and reviewing documents which Gina used in the administration of the HMH Trust being oppressive, the plaintiffs say that it was made clear by them from the outset that the fact that Gina did not keep discrete records, and the intermingling of trust documents with HPPL records (and the multiple roles held by Gina, as trustee, HPPL majority shareholder and HPPL director), meant that the obligation to produce trust documents would involve production of all documents contained in HPPL's records which were used in the administration of the HMH Trust by Gina. They say that it was not suggested before Brereton J that it would be oppressive for Gina to produce such documents (as opposed to the argument there being raised as to whether such documents were trust documents).
18. The plaintiffs refer to the submission made for Gina before Brereton J to the effect that the interests of justice would not be served by "requiring her to undertake a wholesale re-review of the 200 boxes of hardcopy documents and 30,000 odd emails and attachments which have already been reviewed" and that more "targeted and specific relief" should be granted (a submission that at least on one view does seem to me to raise the spectre of oppression), which they submit was rejected by Brereton J on the basis that his orders "will not necessarily require [Gina] to undertake a "wholesale re-review"", as pointing to the fact that Gina knew what the task of production would require (because she knew, based on the Ross Affidavit, of the intermingling of trust and HPPL documents and of the number of boxes of documents that were potential repositories of documents).
19. It is said that, notwithstanding this, Gina made repeated submissions to the Court that any failure on her part to deliver up HMH Trust documents was a product of her having innocently misconceived her obligations, rather than deliberately withholding material, and that she pledged fully to comply with the production order if the Court found that she had not done so.
20. The plaintiffs say that it was never suggested by Gina that she could not do the task which would be required; nor that it would be oppressive; nor that the task would take four years to complete. The plaintiffs say that they raised on multiple occasions the fact that Gina, save in one limited respect, had not sought to exercise the liberty to apply to be relieved of her obligation to deliver up particular documents or classes of documents; and they submit that if Gina was going to apply for relief in relation to HPPL records which she had used in the administration of the HMH Trust on the grounds of oppression, then the time so to do was at the hearing of the September 2015 Motion before Brereton J. The plaintiffs argue that such an application would plainly have been closely related to the matters raised by Gina in the course of that hearing.
21. The plaintiffs maintain that the course taken in the hearing by Gina before Brereton J (of assuring his Honour that if there had been non-compliance with the Court's orders it was only because of a misconception as to what was a trust document and she would ensure that any error was corrected) is "diametrically opposed" to the relief she now seeks. It is said that Gina's submission to that effect before Brereton J was deployed in aid of an unsuccessful attempt by Gina to avoid having to verify the completion of production on oath "and in aid of a (successful) attempt to avoid a finding that she had deliberately failed to produce trust documents and to avoid paying costs on an indemnity basis". The plaintiffs submit that Gina is bound by the conduct of her case and that she cannot "now turn around and seek to persuade this Court that she should be substantially relieved of the burden imposed on her, having previously assured the Court that she would fully comply" with the Court's orders.
22. As to certain of the relief sought, the plaintiffs argue that the form in which the orders are couched (see for example prayer 1) is suggestive that the order is sought by way of judicial advice. The plaintiffs contend that there is no power to give such advice in circumstances where Gina is no longer a trustee (or, they say, an outgoing trustee); rather, she is a former trustee.
23. Reference is made to the observation by Palmer J in Application of Macedonian Orthodox Community Church St Petka Inc (No 2) (2005) 63 NSWLR 441; [2005] NSWSC 558 (Application of Macedonian Church (No 2)) to the effect that the jurisdiction to give judicial advice is an exception to the Court's ordinary function of deciding disputes between competing litigants (at [23]) and that to "avail oneself of that special assistance from the Court, one has to show that one is entitled to it" (at [24]). The plaintiffs say that this requires Gina to show that she is a trustee and that the advice sought relates to the management or administration of trust property or the interpretation of a trust instrument (at [24]).
24. The plaintiffs maintain that Gina was an "outgoing trustee" between 1 October 2013 when she indicated her desire to be discharged as trustee and 28 March 2015 when Bianca was appointed as trustee (and that she could have sought judicial advice at that time, having regard to her "inevitable" obligation to produce trust documents) but that she failed to do so and now is no longer entitled to apply for judicial advice. The plaintiffs further argue that s 92 of the WA Trustees Act does not assist Gina in that regard because that legislation refers to "[a]ny trustee" and Gina is no longer a trustee.
25. The second difficulty to which the plaintiffs point in this regard is that they say the advice sought does not relate to the management or administration of trust property nor to the interpretation of the trust instrument.

Gina's submissions as to power/estoppel

1. In her initial written submissions, Gina characterises the directions sought in her notice of motion filed 12 April 2019 as directions concerning dispensation from, and minor variations to, Order 3 of the 2015 Orders and Order 1 of the 2018 Orders. The relief is said to be pursuant to the Court's inherent jurisdiction to supervise, and if necessary to intervene in, the administration of trusts (reference being made to In the matter of the Bird Charitable Trust (2012) (1) JLR 62 (In the matter of the Bird Charitable Trust) at [25(iii)]; and Schmidt v Rosewood Trust Ltd [2003] 2 All ER 76; [2003] 2 AC 709 at [51]); noting that the 2015 Orders gave Gina liberty to apply "to be relieved from Order 3 in respect of any particular document or class of document" and that the 2018 Orders gave the parties liberty to apply "in the event of any difficulty arising in the interpretation, application or implementation" of the 2018 Orders.
2. That said, the form of certain of the relief sought (in particular see prayer 1 but also prayer 14) is certainly couched in the language of a judicial advice application (i.e., that Gina would be "justified in …"); and in her submissions in reply, Gina's submission was that the Court has power to make the orders sought in prayers 1, 11 and 14 of the notice of motion on any of the following four bases: first, that as an outgoing or former trustee she is entitled to seek judicial advice pursuant to s 92 of the WA Trustees Act; second, that as an outgoing trustee she is entitled to judicial advice in the Court's inherent jurisdiction; third, that the relief sought is effectively a "working out" of the orders previously made in this proceeding, pursuant to the liberty to apply; and, fourth, though as I understand the claim for declaratory relief is not pressed, that the relief is effectively declaratory relief, to which Gina is entitled (and that the Court has jurisdiction to supervise the administration of a trust).
3. Reliance is placed on the proposition articulated by JD Heydon and MJ Leeming in Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis) (Jacobs' Law of Trusts) (at [21-31]) that: A trustee is not obliged to take any risks by deciding in a doubtful case what are the respective rights of the beneficiaries, or by performing acts which, however advantageous, is strictly a breach of trust, or even by exercising a power or discretion where there is a possibility that the propriety of such exercise might afterwards be called in question by the beneficiaries. In all these cases, the trustee is entitled to approach the court and to ask it to determine the beneficiaries' rights, or for authority to perform the necessary act, or for advice upon the exercise of the power or discretion. …
4. It is submitted that that approach applies equally to outgoing trustees and that Gina, as an outgoing non-professional (and thus unpaid) trustee, should not be forced to risk inadvertently failing to comply with the production orders, but "should be assisted with appropriate directions to ensure that the production orders are complied with in a reasonable manner", which will result in relevant HMH Trust documents being made available to Bianca.
5. As to the reliance placed on s 92 of the WA Trustees Act, Gina submits that she is a trustee within the meaning of the Act, noting that the definition of "trustee" in s 6 of that Act provides that: Trust does not include the duties incidental to an estate conveyed by way of mortgage, but with that exception trust extends to implied and constructive trusts, and to cases where the trustee has a beneficial interest in the trust property, and to the duties incidental to the office of a personal representative; and trustee has a corresponding meaning and includes a trustee corporation and every other corporation in which property subject to a trust is vested and every person who immediately before the commencement of this Act was a trustee of the settlement or in any way a trustee under the Settled Land Act of 1892 and, where the context admits, includes a personal representative; and new trustee includes an additional trustee[.] [footnote omitted]
6. It is submitted that the obligation upon Gina to deliver the HMH Trust documents is a duty "incidental to the office of a personal representative" within the meaning of that definition, being an incidental obligation to her leaving that office. Further, it is submitted that a "trustee" within the meaning of the WA Trustees Act is not confined to express trustees; and that an "implied" or "constructive" trustee must at least entail a bare trustee in possession of property that belongs in equity to another person (here, the HMH Trust documents), and a constructive trustee in possession of property in respect of which there continues to exist a duty to deliver the HMH Trust documents. It is submitted that Gina plainly holds the HMH Trust documents for the benefit of the HMH Trust.
7. Gina also points to the decision of Harrison J in Re Baylily Pty Ltd [2010] NSWSC 6 (Re Baylily) as an example of a situation where a former trustee sought and obtained judicial advice under s 63 of the Trustee Act 1925 (NSW) (NSW Trustee Act), noting that in that case, his Honour expressly held that the applicant was no longer the trustee of the trust (as the trustee had been validly replaced by the appointor) but nevertheless acceded to the application and gave judicial advice in answer to all questions posed by the former trustee. It is submitted that it can be inferred that his Honour considered that it was appropriate for the former trustee to have the benefit of judicial advice in relation to questions concerning his exit from that role.
8. For Gina, it is submitted that Harrison J's approach is consistent with the "broad, protective approach to judicial advice applications" propounded by the High Court in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar (2008) 237 CLR 66; [2008] HCA 42 (Macedonian Church case); noting that in that case the majority held that grants of power to courts (in particular s 63 of the NSW Trustee Act) should be construed broadly, and that s 63 should not be read as subject to any implied limitations, whether in relation to power to make the order or in relation to discretionary factors (see at [55]-[60]). It is noted that the High Court held that the provision exists "in recognition of both the fact that the office of trustee is ordinarily a gratuitous office and the fact that a trustee is entitled to an indemnity for all costs and expenses properly incurred in performance of the trustee's duties" (see at [71]).
9. It is submitted that, reading s 92 of the WA Trustees Act in light of Macedonian Church case, the term "trustee" must extend to outgoing or former trustees insofar as they are seeking advice concerning the discharge of any residual obligations still owed by them in connection with their removal as trustee; on the basis that those obligations are an incident to their duties as trustee (and in the present case relate to the HMH Trust documents in respect of which Gina does not have any beneficial interest).
10. As to Bianca's submission that s 92 of the WA Trustees Act does not avail Gina, as she is "not seeking directions concerning trust property", this submission is said to be inconsistent with Bianca's later reference to Gina's acknowledgement that trust documents are the property of the trust but that in any event, the matter is put beyond doubt by reference to the 2019 Appeal Decision (at [47]). It is submitted that Gina is here seeking directions concerning trust property (i.e. directions concerning her compliance with Order 3 of the 2015 Orders requiring her to delivery up trust property and her compliance with Order 1 of the 2018 Orders requiring her to verify that she has delivered up trust property) which is sufficient to satisfy the first limb of the jurisdictional requirement set out in s 92 (directions can be sought "concerning any property subject to a trust") and that it is unnecessary for Gina also to satisfy the second, alternative limb (directions can be sought "respecting the management or administration of that property"). Nevertheless, Gina submits (and I accept) that there can be no doubt that the issues raised in the proceeding concern the administration of the HMH Trust.
11. It is accepted that Gina is not a "personal representative" but it is said that this does not alter the fact that Gina falls within another limb of the definition of "trustee" contained in s 6 of the WA Trustees Act, by virtue of her current status as a bare or constructive trustee (reference there being made to In the matter of Plantation Outdoor Kitchens Pty Ltd (In Liq) [2019] NSWSC 925 at [99]).
12. As to the complaint by Bianca that Gina has not complied with r 55.1(1) of the UCPR in respect of a judicial advice application, Gina does not accept that her application is non-compliant insofar as prayers 1, 3 (no longer sought pursuant to the short minutes of order amending the notice of motion), 11 and 14 in her notice of motion filed on 12 April 2019 are said clearly to raise a question for the Court; and it is submitted that the statement of facts is to be found in the 2018 Decision and Mr Scott's affidavits. However, if that is not accepted, it is submitted that the discretion in s 14 of the Civil Procedure Act to dispense with that rule should be exercised in this particular case.
13. Gina also contends that the relief she seeks is not exclusively in the nature of judicial advice, rather it also invokes the express liberty granted to vary (referring to prayer 10) or to be relieved from producing particular types of documents (referring to prayer 18), as she says was expressly provided for in the 2015 Orders (Order 4) and 2018 Orders (Order 4). It is said that the propriety of this approach has been confirmed by the 2019 Appeal Decision at [41] (and that it is too late for a submission of this kind to be made by Bianca and that acceptance of it is contrary to s 56 of the Civil Procedure Act and would "see a triumph of form over substance").
14. As to the basis on which Bianca seeks to distinguish Re Baylily, Gina submits that the facts of that case (though different) are not relevantly distinguishable and that it is not correct to treat the decision as one that was made per incuriam. Emphasis is placed on the fact that, in Re Baylily, a former trustee sought and obtained judicial advice pursuant to s 63 of the NSW Trustee Act. It is submitted that, at [7], Harrison J gave consideration to the leading authority on s 63 (Macedonian Church Case) and his Honour plainly had regard to the jurisdiction he was exercising as (at [27]) his Honour declined to give judicial advice about whether Mr Baylily would be justified in defending the proceeding, because "if it were no longer the trustee that any decision by it to defend the proceedings would be a commercial decision for it to make and not a question properly the subject of judicial advice". Thus, it is submitted that his Honour was alive to the limits of the jurisdiction being exercised, and that in his Honour's view, the relevant limit was a substantive one (whether the question relate to the administration of the trust) rather than a formalistic one. It is submitted that that substantive limitation is consistent with Macedonian Church case at [71] and that the "formalistic" view advanced by Bianca is "merely arbitrary".
15. As to the third basis propounded, that the relief sought is a "working out" of the orders previously made, Gina's position in this regard is that only the 2015 Orders were final and that the 2018 Orders were merely working out orders (referring to the 2019 Appeal Decision at [1]). Gina submits that the authorities relied upon by the plaintiffs in the context of the construction of bare "liberty to apply" orders do not here assist, in circumstances where the grants of liberty in this case expressly allow the very type of application that has been made by Gina. It is submitted that, in granting that liberty, Brereton J was mindful of the supervisory role of the Court in relation to the "transfer of the trusteeship" from outgoing trustee to incoming trustee, as outlined in In the matter of the Bird Charitable Trust (see the 2018 Decision at [39]).
16. It is further submitted that, even without express liberty to apply, there would be room for the "working out" of these orders, pursuant to s 135 of the Civil Procedure Act or in the inherent jurisdiction of the Court (noting that this was how Brereton J proceeded in the 2018 Decision at [3]).
17. Gina disavows here seeking any variation to the 2015 Orders. Rather, she contends that the 2018 Decision and 2018 Orders make plain that Order 3 of the 2015 Orders (for production of the HMH Trust documents) will be discharged by undertaking reasonable searches (see [85]; and Order 1, which speaks of "reasonable enquiries and searches").
18. It is said that Bianca does not grapple with any of Gina's submissions in relation to "working out", and particularly does not engage with the fact that Order 4 of the 2018 Orders specifically provides that all parties have liberty to apply "in the event of any difficulty arising in the interpretation, application or implementation" of Orders 1 to 3. It is submitted that Gina has the benefit of a specific order authorising the very application she has made and outgoing trustees are in a very different position to "any litigant" (referring to In the matter of the Bird Charitable Trust, extracted in the 2018 Decision at [39]). Gina submits that the relief sought could be granted pursuant to the inherent power to supervise, and if necessary, intervene in the administration of the HMH Trust.
19. As to delay, it is submitted that there is no substance to this complaint, noting that: the 2018 Orders were made in November 2018 and were followed by an application for leave to appeal, which was dismissed on 27 March 2019; the notice of motion was filed on 12 April 2019.
20. Emphasis is placed on the evidence of Mr Scott that it was only after the enormity of the "HPPL Production Task" became clear (which had been continuing while the application for leave to appeal was being made and determined) that Mr Scott became concerned and took steps to make this application (see Mr Scott's affidavit sworn 18 April 2019 at [15]-[18] and [25]-[26]).
21. In response to the plaintiffs' submission that the 2015 Orders and 2018 Orders were both final, and that an Anshun estoppel arises to prevent Gina seeking the relief she seeks in her motion, Gina makes three submissions.
22. First, that each of the 2015 Orders and 2018 Orders provides her with liberty to apply to make the very application she has made. It is submitted that it cannot be the case that at the same time as granting that liberty, the Court extinguished any right to do so and it is submitted that the Court of Appeal saw the liberty granted as enabling an application of this kind to be made (see the 2019 Appeal Decision at [41] and [61]). It is submitted that this provides a sufficient basis to reject Bianca's contention that an estoppel arises.
23. Second, that there should be no debate that the 2018 Orders were interlocutory, noting that the Court of Appeal characterised the orders as being "working out" orders (the 2019 Appeal Decision at [1]) and referring to the statement of Brereton J at [3] of the 2018 Decision that: There was no suggestion that the Court could not make the orders sought, or orders to like effect. Insofar as it is necessary, the requisite jurisdiction and power may be found in (NSW) Civil Procedure Act 2005, s 135(1), which empowers the court to give directions with respect to the enforcement of its orders; and in the inherent jurisdiction of the Court to ensure that its orders are complied with. [footnotes omitted]
24. Third, that interlocutory decisions do not ordinarily give rise to estoppels (citing Rojo v Jillcris at [8] and [14]). It is accepted that there are some interlocutory decisions which are for some purposes final, such as the determination of separate questions (Rojo v Jillcris at [8] and [14]) but emphasis is placed on the statement by Hodgson JA at [15] and [17] that: In this case, however, although some of the statements by Einstein J, both in the transcript and in the judgment, suggest that he was finally determining a separate question, there is no order showing that such a determination had been made. … There is a helpful discussion of circumstances in which decisions on fact or law in interlocutory matters, which are not given effect to by an order, may stand as final decisions, in Landsal Pty Limited v REI Building Society (1993) 41 FCR 421. In my opinion, that discussion confirms that generally, in the absence of an order for separate determination, an interlocutory decision will finally determine an issue only if it gives rise to an order that shows that an issue was finally determined. ….
25. Gina submits that there is no such order in this case; rather, to the contrary, there was liberty to apply.
26. Insofar as Bianca argues that the 2018 Orders are final by posing the question whether Gina could now seek to vary Brereton J's determination of what a "Trust document" was (supplementary submissions at [21]), without having successfully appealed the same, it is submitted that this is premised on the assumption that one may appeal from reasons for judgments rather than from orders (Lewis v Condon (2013) 85 NSWLR 99; [2013] NSWCA 204 at [117] (Leeming JA; McColl JA and Sackville AJA agreeing). It is noted that Brereton J expressly refused to order production of any particular documents on the basis of his survey of what a "Trust document" is (see the 2018 Decision at [110]).
27. Gina accepts that, in an appropriate case, Anshun estoppel may operate within the one suit, such as where, in substance, an entirely new claim is commenced in the same proceedings despite final orders having been made (referring to Antov v Bokan at [309]) but says that this is not such a case. It is said that there can be no suggestion that Gina has not acted reasonably in seeking to exercise a grant of liberty to apply after it has been granted, rather than before.

Determination as to issues raised re power/estoppels

1. It is convenient first to deal with the bases on which Gina contends that there is power for the relief she is here seeking, noting that not all of the relief sought can fairly be characterised in my opinion as judicial advice (for example, the orders sought in relation to the personal communications with beneficiaries and the electronic database seem to me clearly to fall within the rubric of an application for dispensation from the production orders). Nevertheless, to the extent that any of the relief sought is tantamount to an application for judicial advice (and prayers 1 and 11 of the notice of motion (as updated) certainly have that flavour), it is necessary to consider the contention by the plaintiffs that there is no power to give judicial advice to a former trustee.
2. The first basis put forward is the WA Trustees Act, the substantive law of Western Australia being applicable as the proceedings are brought in the cross-vested jurisdiction of the Supreme Court of Western Australia. Section 92(1) of that Act provides that "[a]ny trustee may apply to the Court for directions concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or discretion vested in the trustee".
3. As already noted, s 6(1) of the WA Trustees Act defines a trustee as including "a trustee corporation and every other corporation in which property subject to a trust is vested and every person who immediately before the commencement of this Act was a trustee of the settlement or in any way a trustee under the Settled Land Act of 1892 and, where the context admits, includes a personal representative" (footnotes omitted).
4. Section 7 of the WA Trustees Act deals with the appointment of a new trustee. Every new trustee appointed under s 7 has "the same powers, authorities, and discretions and may in every respect act, as if he had originally been appointed a trustee by the instrument (if any) creating the trust, both before and after all the trust property becomes by law or by assurance or otherwise vested in him" (s 7(6)).
5. Like s 92(1) of the WA Trustees Act, s 63(1) of the NSW Trustee Act states that "[a] trustee may apply to the Court for an opinion advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument". Relevant terms are defined in s 5 of the NSW Trustee Act. Trustee is defined as having "a meaning corresponding with that of trust; and includes legal representative and NSW Trustee and a trustee company" and legal representative means "executor or administrator".
6. Pursuant to s 6(2)(d) of the NSW Trustee Act, a new trustee may, by registered deed, be appointed in place of a trustee, in circumstances where "a trustee desires to be discharged from all or any of the trusts or powers reposed in or conferred on the trustee". Every new trustee appointed under s 6, "as well before as after all the trust property becomes by law or by conveyance or otherwise vested in the new trustee, shall have the same powers and authorities and discretions, and may in all respects act as if the new trustee had been originally appointed a trustee by the instrument, if any, creating the trust" (s 6(8)). The language of this section reinforces the conclusion that the overriding purpose of the legislation is to facilitate the continued management of the trust. Under this section, it appears that a new trustee can receive advice even if the trust property has not yet been vested in them (despite that being a fundamental feature of being a trustee).
7. Part 55 ('Matters arising under the Trustee Act 1925') of the UCPR says nothing about who can apply for judicial advice under s 63.
8. The relevant sections in the NSW legislation allowing for judicial advice (and equally those in the WA legislation) are recognised as being rooted in the historical practice of the Court of Chancery to give directions and advice to those entrusted with the administration of property under control of the Court who have assumed, and continue to assume, the onerous obligation of administering the trust for the benefit of others (see Application of Macedonian Church (No 2) per Palmer J at [40]).
9. Nevertheless, the legislation in its terms is focussed on the applicant for the judicial advice being a "trustee". Despite the High Court in Macedonian Church case (see [55]-[57]) attributing a broad and flexible operation to s 63 of the NSW Trustee Act, and notwithstanding that the rationale underlying the statutory jurisdiction to give judicial advice to a trustee would equally seem to apply to a situation where a former trustee is seeking advice as to how to discharge duties arising out of and incidental to the office of trustee formerly held by him or her, it is doubtful that the legislation extends to enable a former trustee to obtain judicial advice.
10. While the issue as to whether a former trustee has standing to seek or obtain judicial advice does not appear to have been dealt with directly by the Courts (other than insofar as it was dealt with in Re Baylily), it seems likely that the legislature (by predicating the power to give judicial advice on there being a trustee) contemplated that only a current trustee could obtain such advice (in respect of trust property and/or in respect of the management and administration of the trust).
11. In Application of Macedonian Church (No 2), Palmer J considered an application for judicial advice by an "alleged trustee" who denied that it was a trustee. It was there submitted (see his Honour's reasons noting this submission at [15]) that s 63 "is a beneficial provision and should be given a liberal construction" in light of the definition of trustee in s 5 of the NSW Trustee Act. However, Palmer J held that the advisory jurisdiction of the Court of Equity as encapsulated now in s 63 of the NSW Trustee Act was "never intended to be exercised where there was any doubt as to whether the person applying for advice was a trustee administering a trust estate" (at [19]).
12. His Honour (at [19]) stated that: The researches of counsel and my own researches have found no case in which the Court, in exercise of either its statutory jurisdiction or its general jurisdiction to give judicial advice, has given advice concerning a trust to a person who positively asserts that he or she is not a trustee…
13. Palmer J emphasised the exceptional nature of the Court's jurisdiction to give judicial advice and stressed that an individual seeking judicial advice must show an entitlement to receive it. His Honour (at [23]-[24]) stated: …This exceptional jurisdiction, which is derived from the practice of the Court of Chancery under the general law in giving directions to those entrusted with the administration of property under the control of the Court, may now be regarded as affording special assistance to those, such as trustees, liquidators, bankruptcy trustees and receivers, who have no direct pecuniary interest in a fund but have assumed the onerous obligation of administering it for the benefit of others: see e.g. Re G.B. Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674, at 677; Gardner v London Chatham & Dover Railway Company (No 1) (1867) LR 2 Ch App 201, at 211. To avail oneself of that special assistance from the Court, one has to show that one is entitled to it. In my opinion, the Court has no power to give judicial advice under s.63 Trustee Act to a person who does not establish to the Court's satisfaction that he or she is, in fact, a trustee and that the advice sought relates to the management or administration of trust property or the interpretation of a trust instrument.
14. This view was adopted by Brereton J in Application of Uncle's Joint Pty Ltd [2014] NSWSC 321 (see at [17]).
15. In the High Court (in Macedonian Church case), the decision of Palmer J at first instance in Application of Macedonian Church (No 2) was affirmed. While the High Court did not consider directly the question of standing, the following obiter dicta is instructive. The High Court (Gummow A-CJ, Kirby, Hayne and Heydon JJ) stated that the "[o]nly one jurisdictional bar to s 63 relief exists: the applicant must point to the existence of a question respecting the management or administration of the trust property or a question respecting the interpretation of the trust instrument" (at [58]). While the High Court also said that no implied limitations should be read into the power to give judicial advice by implication (see at [55]-[56]), this should not be read as suggesting that there is a broad and unlimited standing to apply for judicial advice as the High Court was there referring to the fact that there is "nothing in s 63 which limits its application to 'non-adversarial' proceedings, or proceedings other than those in which the trustee is being sued for breach of trust, or proceedings other than those in which one remedy sought is the removal of a trustee from office".
16. At [65], the High Court discussed the history of s 63, stating that: … The possibility that the rights of beneficiaries under private trusts could be affected by judicial advice led the New South Wales Parliament in 1925 to introduce the protections given by s 63(8)-(11) and in that sense to strike a compromise. However, those protections did not alter the primary function of s 63 as creating a procedure for private advice to trustees. … Section 63 reflects a compromise between a procedure for affording private advice to trustees and the need for affected persons to be given a hearing in some cases.
17. At [196], Kiefel J, as her Honour then was, observed that: … The principal purpose of the section, and the opinion, advice or direction given under it, is the protection of the interests of the trust. Another purpose is the protection of a trustee who is acting in that regard and upon advice. Securing the latter purpose may ensure the attainment of the principal purpose, by removing the concern of a trustee about exposure beyond their usual indemnity. [footnote omitted]
18. Given that Palmer J found that the advisory jurisdiction of the Court did not extend to alleged trustees, by the same token, the better view seems to be that judicial advice cannot be obtained by former trustees (at least via the avenue of s 63 or its equivalent in the Western Australian legislation). The statements of the High Court emphasise that the purpose of judicial advice is to protect the interests of the trust and the trustee. This is on one view inconsistent with the section extending to cover former trustees. Such an understanding of s 63, in my mind, would render the protections in s 63(8)-(11) unnecessary. It is unclear that it would be in the best interests of the trust going forward for the Court to give judicial advice to a former trustee (although perhaps where that relates to the performance of duties that would benefit the trust this could be so). Further, a former trustee is not ordinarily exposed to personal liability for breach of trust in circumstances where the former trustee no longer has any responsibilities or bears any risks relating to the trust (see also [31] of Re Estate Late Chow Cho-Poon; Application for judicial advice [2013] NSWSC 844 (Chow Cho-Poon)).
19. Re Baylily is the only case in this jurisdiction that has been located where someone held to be a former trustee in fact obtained judicial advice; that judicial advice going to the extent of ascertaining whether the applicant was the trustee of the trust and, if not, what was the scope of its duty to account to the beneficiaries of the trust in circumstances where it may no longer be the trustee, where it has no financial or other means of its own to do so and where it may not have any right of indemnity from trust property (at [6] and [25]).
20. Harrison J allowed the application for judicial advice on the basis of the statement by the High Court in Macedonian Church case (at [74]) that "[a] necessary consequence of the provisions of s 63 of the Act is that a trustee who is sued should take no step in defence of the suit without first obtaining judicial advice about whether it is proper to defend the proceedings. In deciding that question a judge must determine whether, on the material then available, it would be proper for the trustee to defend the proceedings…".
21. His Honour appears to have been of the view that it was open to a former trustee to obtain judicial advice (albeit that this was not directly addressed in the written reasons). However, it is noteworthy that a key reason for the judicial advice was that the applicant was unclear as to whether it was still in fact the trustee. Therefore, the issue of standing was in that sense subsumed in the application for judicial advice. In the present case, Gina is well aware, that she is no longer the trustee, her appointment as trustee having been validly discharged and orders having been made for her replacement by Bianca in 2015.
22. The position is, however, further complicated by the argument that, to the extent that Gina is in possession of trust property (the HMH Trust documents), then she is an implied or constructive trustee (holding the documents as bare trustee with a duty to deliver up the documents to the trustee). As submitted for Gina, the term "trustee" within the meaning of the WA Trustees Act is not confined to express trustees; and therefore Gina argues that on that basis there is power under the legislation to give the judicial advice here sought. As noted earlier, it is submitted that Gina "plainly holds the HMH Trust documents for the benefit of the Trust". Of course, that points to another complication, namely that the documents the subject of the present application are (or at least to a large extent include) documents in fact held by HPPL (and which, HPPL maintains, are its property).
23. Ultimately, it is not necessary to reach a concluded view as to the question whether there is power under the WA Trustees Act to give judicial advice to a former trustee (which I consider is doubtful) or to give judicial advice to a constructive trustee (which I consider is the case) (and, if so, whether and to what extent Gina is a constructive trustee in respect of trust property in her possession). Not only is that because I consider there to be inherent jurisdiction to give such advice (see below) but also because I do not consider that it is appropriate to give the advice sought in any event and will confine the relief now to be granted to aspects of the matter that involve the "working out" of the relevant orders or dispensation therefrom.
24. As to the second of the bases on which it is said that there is power to give the judicial advice that has been sought, Gina invokes the inherent jurisdiction of the Court. In that context, it is relevant to note the underlying purpose of obtaining and receiving judicial advice, as considered in Chow Cho-Poon.
25. In Chow Cho-Poon, no issue as to power was raised, as the application for judicial advice was brought by the current trustees. However, in the course of his judgment, Lindsay J relevantly provides an overview of the legislative context of an application for judicial advice in New South Wales, commenting (at [23]) as to the purpose of s 63 of the NSW Trustee Act as follows: Section 63 provides a flexible means (and not the only means) by which the Court's jurisdiction relating to trusts can be enlivened. That jurisdiction includes as one of its purposes the due administration of trusts, including the protection of trust property and, incidentally, protection of trustees who, on the other side of the ledger, are subject to obligations enforceable by the Court.
26. Lindsay J noted (at [45]) that the Court must "be guided by what it perceives to be in the best interests of the trust estate" (citing Application by Marilyn Joy Cottee [2003] NSWSC 47 at [35]). In the present case, it is at least arguable that it is in the best interests of the trust estate for the Court to permit a former trustee (here, Gina) to obtain judicial advice as to how best to comply with the obligation to deliver up trust documents to the incumbent trustee.
27. That said, in Australian Pipeline Ltd [2006] NSWSC 1316; (2006) 60 ACSR 625, Barrett J (as his Honour then was) observed that the case law on judicial advice suggested that the proper province of judicial advice was an "element of guidance for the future" (at [17]). His Honour (at [23]) stated that: [t]he pre-occupation of the court is with those who have the stewardship of property for the benefit of others. In terms of s.63, the court's role, consistently with that pre-occupation, is concerned with "the management or administration of the trust property" and "the interpretation of the trust instrument"… and at [25]: It is necessary to bear in mind that an order under s.63 of the Trustee Act by which the court gives to a trustee its opinion, advice or direction produces the statutory consequence stated in s.63(2). If the trustee, having received judicial advice, acts in accordance with it, the trustee is "deemed to have discharged the trustee's duty as trustee in the subject matter of the application". The statute thus assumes that the matter on which judicial advice is sought will be one that involves some aspect of "the trustee's duty as trustee" as it relates to future conduct of the trustee. …
28. Those observations would tend to reinforce the conclusion that s 63 was not intended to extend to former trustees who are not concerned with the management or the administration of the trust into the future and who are not exposed to personal liability flowing from decisions made concerning the trust and trust property. Similarly, in Camperdown Prime Pty Ltd [2018] NSWSC 106, Pembroke J stated (at [3]) that it is clear that the purpose of the jurisdiction is to "provide protection to a trustee" "in advance of, and having regard to the possibility of a claim against it for breach of duty".
29. As to the inherent jurisdiction of a court of equity to give judicial advice, in Chow Cho-Poon, Lindsay J noted (at [172]) that the High Court in Macedonian Church case "expressly did not consider how far this Court may have jurisdiction to give judicial advice by reason of the inherent jurisdiction of a court of equity, or by reason of the Supreme Court Act 1970 NSW, s 22 or s 23".
30. Thus, while the better view appears to be that judicial advice is not available to a former trustee pursuant to the NSW Trustee Act (or the corresponding WA Trustees Act), advice arguably may still be given by a court to a former trustee in the court's inherent jurisdiction (though I note that in Application of Macedonian Church (No 2), Palmer J appears to have been of the opinion that the advisory jurisdiction of the court did not cover "non-trustees"); the inherent jurisdiction of this Court being broad and not confined to defined and closed categories, but being limited only by the requirements of the administration of justice.
31. Had it been necessary to determine (which for the reasons above it is not), I would have considered that the giving of advice to a former trustee as to that former trustee's obligation to deliver up trust property in his or her possession custody or control (being an obligation that derives from the fact that the former trustee formerly held trust documents as a consequence of his or her office as trustee) would fall within the inherent jurisdiction of the Court and in an appropriate case that jurisdiction should be exercised. I see, relevantly, no material distinction between the position of an "outgoing" trustee (who the plaintiffs appear to acknowledge could seek judicial advice as to the obligation to deliver up trust documents) and a "former" trustee.
32. Finally, as to the relief sought being within power as an instance of the "working out" of the respective orders, broadly speaking I accept the submissions put for Gina to the effect that what is here sought by way of judicial advice (in particular, prayer 1) can properly be characterised as a working out of the delivery up orders; and it is evident that some of the relief is directed at seeking dispensation from the orders (and hence falls within the liberty to apply in any event).
33. This is because, without any criticism of Brereton J, the complexity of the task involved in the delivery up process (which his Honour himself acknowledged) has led to room for debate as to the ambit of the process now to be undertaken - in particular, as to the basis on which it is to be determined whether a document received by Gina other than in her capacity as trustee was "used" by her in some way in the administration of the trust and as to what is meant by "all reasonable searches and enquiries". In circumstances where Gina is required by the 2018 Orders to verify on oath or affirmation the completeness of the delivery up of trust documents based on a belief formed having made all reasonable searches and enquiries, it is not unreasonable for her to seek certainty as to what such searches and enquiries would comprise.
34. To the extent that some of the relief sought goes beyond an order sought in the invocation of the liberty that was granted to Gina to apply for dispensation in respect of particular documents or classes of documents, I consider that the application is within power in that it is part of the "working out" of the delivery up orders that have been made.
35. That conclusion in my opinion addresses the complaint made by the plaintiffs to the effect that the principle of finality here applies and that there is no longer the ability to vary or set aside the orders (a qualification to that general law principle being that the court has the power, albeit limited, to "work out the order" where final orders have been made).
36. There is no doubt as to the general rule, namely that "[o]nce a judgment has been perfected, the court's jurisdiction is exhausted and the court no longer possesses the power to vary or set aside its judgment, subject to certain exceptions" (see Adrian Zuckerman, Zuckerman on Civil Procedure: Principles of Practice (3rd ed, 2013, Sweet & Maxwell) at [23.59]). Zuckerman notes the reasons that ground the principle (at [23.59]): … Both justice and public policy demand that once a dispute has been determined by judgment, the parties and the community should be able to proceed on the assumption that the matter has been conclusively settled once and for all. Justice requires that there should be a limit to the uncertainty created by legal disputes. Rights that are capable of being continually challenged are robbed of their practical value. [footnotes omitted]
37. See the statement by McLelland J (as his Honour then was) in Phillips v Walsh (1990) 20 NSWLR 206 (Phillips v Walsh) at 209 (cited in Australian Hardboards v Hudson by Campbell JA (with whom Tobias JA agreed; Young CJ in Eq dissenting, though agreeing with the principles relating to the working out of orders)): [A] principle of the general law is that when proceedings have been disposed of by a final order which has been entered, the proceedings are at an end and cannot be revived: see generally Bailey v Marinoff (1971) 125 CLR 529; Gamser v Nominal Defendant (1977) 136 CLR 145; and FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268.
38. His Honour noted that a qualification to this general principle is that further orders can be made for the "purpose of dealing with a matter involved in, or arising in the course of, working out that order" (Phillips v Walsh at 209-210). Examples of permitted further orders for working out the original order include: orders which make more specific provision for the original order's implementation or orders modifying the operation of the original order to take account of some subsequent change of circumstance or by enforcing it (Phillips v Walsh at 210).
39. White J, as his Honour then was, observed in Muriti v Prendergast [2005] NSWSC 281 (at [158]) that: An order may be a final order for the disposition of proceedings, even though subsequent orders may need to be made finally to work out the rights of the parties under that final order (Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146 at 153), or to adjust the rights of the parties under the final order by reason of subsequent events…
40. In Australian Hardboards v Hudson, his Honour summarised the exception (at [50]): When final relief has been granted in a suit, an order granting liberty to apply enables further orders to be made which are necessary for the purpose of implementing and giving effect to the principal relief already pronounced or, as it is sometimes called, "working out the order": Poisson and Woods v Robertson and Turvey (1902) 50 WR 260 at 261; Cristel v Cristel [1951] 2 KB 725 at 729, 730; Nicholson v Nicholson [1974] 2 NSWLR 59 at 63; Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 at [97].
41. Similarly, in Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593 (Fylas), McPherson SPJ considered exhaustively what is involved in "working out" an order, stating (at 598): [A] judgment or order that expressly reserves to parties a leave or liberty to apply can be varied on an application pursuant to such leave only so far as may be necessary for the purpose of working out the actual terms of the order so as to make it more efficacious in matters of detail. What is meant in this context by "working out" the terms of an order is considered in some of the cases on the point. In Cristel v Cristel [1951] 2 K.B. 727, 728, Somervell L.J. said it "involves matters on which it may be necessary to obtain the decision of the court. Prima facie, certainly, it does not entitle people to come and ask that the order itself shall be varied". A simple judgment for a money sum requires no "working out" in any sense, so that liberty to apply is quite inappropriate in such a case. On the other hand, there are many orders, particularly on the equity side, as to which the process of carrying the primary judgment into effect may require supervision, with the consequence that further or supplementary orders or directions may be needed to enable it to achieve its purpose. An example commonly encountered in practice is specific performance, where, because the consent or approval of some person or instrumentality may be needed to authorise a preliminary step, the judgment sometimes takes the form only of a declaration that the contract be specifically performed, together with subsidiary orders compelling particular acts to be done. See Egan v Ross (1928) 29 S.R. (N.S.W) 382, 388; Hasham v Zenab [1960] A.C. 316; Brown v Heffer (1967) 116 C.L.R 344, 350. The primary order may then need to be supplemented by further orders from time to time before the stage is reached at which the defendant can finally be ordered to perform specifically what he contracted to do in the way of transfer or payment as the case may be: Brown v Heffer (1967) 116 C.L.R 344, 350. In Penrice v Williams (1883) 23 Ch.D. 353, 356-357, Chitty J spoke of an order that is "clearly not of a final character, and also when there is necessarily something to be done irrespective of what appears on the face of the order". His Lordship was there explaining that in some cases an order may by its very nature need to be supplemented to give full effect to it, in which event liberty to apply is implied and need not be expressly reserved. See also Fritz v Hobson (1880) 14 Ch.D. 542, 561; Cristel v Cristel [1951] 2 K.B. 725, 731. A decree of specific performance in the limited form previously described nevertheless is a "final" order for the purpose of appeal and otherwise, and so, at least as to issues litigated, cannot be discharged or varied under liberty to apply, notwithstanding that further decisions and orders may yet have to be made in working out its consequences. What cannot be done under the guise of "working out" an order is to vary it.
42. The qualification is limited in the sense that it does not "extend to an application made for the purpose of giving substantive relief not sought in the originating process or substantially different to that given by the final order". (Phillips v Walsh at 209; Woollahra Municipal Council v Baranov [2006] NSWLEC 97; (2006) 144 LGERA 96 at [19]).
43. The absence of an express reservation of liberty to apply does not preclude a subsequent application being made for the purpose of working out the order (Phillips v Walsh at 210 citing Penrice v Williams (1883) 23 Ch D 353; Light v William West & Sons Ltd [1926] 2 KB 238; Chandless-Chandless v Nicholson [1942] 2 KB 321; and Re Porteous [1949] VLR 383; [1950] ALR 89). The need for such supplementary orders may arise because of complexities in terms of implementing the order or because of changes in circumstances. White J stated in Australian Hardboards v Hudson (at [56]) that: … [W]hat can be done under a reservation of liberty to apply depends on what needs to be done, in the particular case, to work out the particular orders that have been made. If an order is one the working out of which of its nature involves deciding complex questions, or questions that were not specifically raised at the time that the order was made, those questions can be raised and decided in the original suit pursuant to liberty to apply noting that both parties (not just the party that has obtained the order) can apply for further consideration of the orders (at [77]).
44. In Blazevic Holdings Pty Ltd v Warwick S Grave [2011] NSWSC 1504, Nicholas J held that an order sought by the defendants was substantially different to the previous order and was not "appropriate for the working out or implementation of any of the original orders in accordance with the principles in Phillips" (at [15]). His Honour stated (at [20]) that the "insurmountable obstacle confronting the plaintiff is that the order sought is not one appropriate for the working out of the original orders, and is substantially different to them".
45. In Ku-Ring-Gai Council v Labordus [2007] NSWLEC 834, Pain J recognised that the Court has the power to make orders to enable supervision of compliance with its orders (at [30]) (citing Phillips v Walsh). Pain J stated (at [32]) that the authorities (including Australian Hardboards v Hudson and Fylas) confirm that whether orders relate to the working out of a final order must depend on the circumstances and that, in some situations, "quite extensive orders might be made following the making of final orders in order to achieve the necessary working out of that final order".
46. I note in this context that, in construing a court's order, at least where it is ambiguous, resort may be had to the judgment which gave rise to it (see Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317; Sertari Pty Ltd v Quakers Hill SPV Pty Ltd [2014] NSWCA 340).
47. In the present case, the concerns that have been raised as to the identification of documents falling within the scope of the 2018 Orders seem to me amply to warrant the conclusion that what is here being sought (to the extent that it goes beyond the exercise of liberty to apply for the dispensation of the orders in particular respects) amounts to the necessary working out of the delivery up orders.
48. Turning next to the estoppel arguments that have been raised, I do not accept that the relief sought is precluded by the principles of res judicata or issue estoppel.
49. In Blair & Perpetual Trustee Co Ltd v Curran (Adam's will) (1939) 62 CLR 464 at 531-2; [1939] HCA 23, Dixon J explained issue estoppel as follows: A judicial determination directly involving an issue of fact or of law disposes once [and] for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment ... necessarily established as the legal foundation or a justification of its conclusion ... .
50. The three requirements in order for an issue estoppel to be established (see Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 (at [21]), the High Court there citing Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853) are that: the same question has been decided; the decision was final; and the decision was in proceedings between the same parties or their privies.
51. The question may be one of fact or law but there is a need to identify with precision (see Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245; [2010] NSWCA 33 at [106]) the issue which was necessarily decided in the earlier proceedings in order to see whether it was identical with an issue sought to be raised in the later proceedings and whether the issue was decided as a fundamental basis for the earlier decision. In Armacel Pty Ltd v Smurfit Stone Container Corp (2008) 248 ALR 573; [2008] FCA 592, Jacobson J noted that the requirement that it be a final decision may be satisfied even if the earlier judgment is interlocutory (citing Castillon v P&O Ports at [49]ff), the requirement being that the decision be both "final and conclusive" and "on the merits" (his Honour there citing DSV Silo-und Verwaltungsgesellschaft mbH v Owners of The Sennar (The Sennar) (No 2) [1985] 1 WLR 490 (HL) at 499).
52. In Dimitrovski v Australian Executor Trustees Ltd [2014] NSWCA 68, Emmett JA (with whom Meagher JA and Bergin CJ in Eq agreed) expressed the principle as follows (at [74]) (in a passage cited by Rein J in Polo Enterprises Australia Pty Ltd ABN 30117622 v Pinctada Hotels and Resorts Pty Ltd [2015] NSWSC 756): … [T]he estoppel covers only those matters that the prior judgment or order necessarily established as the legal foundation or justification of its conclusion … nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In relation to matters of fact, the issue estoppel is confined to those ultimate facts that form the ingredients in the cause of action that is the title to the right established. Where the conclusion is against the existence of a right or claim that, in point of law, depends upon a number of ingredients or ultimate facts, the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. However, the estoppel is not confined to the final legal conclusion expressed in the judgment or order. The earlier judgment or order is conclusive not merely as to the point actually decided, but as to any matter that it was necessary to decide and that was actually decided as the groundwork of the decision itself, even if it was not then directly the point at issue. Matters cardinal to the original point at issue cannot be raised if to do so is necessarily to assert that the former decision was erroneous (see Blair v Curran (1939) 62 CLR 464 at 531-2).
53. In the present case, Brereton J determined, relevantly, what documents constituted "Trust documents" in the context of dispute between the parties as to what was comprised within that concept; and made orders for the delivery up of those documents but did not determine, as a fundamental basis for the decision as to the characterisation of "Trust documents", in any final sense, issues relating to how they were to be produced. That is clear from the fact that his Honour contemplated that Gina (or other parties) might exercise the liberty to apply granted in the 2018 Orders and did not revoke or confine the earlier liberty granted to Gina to apply for dispensation from the requirement to produce particular documents or classes of documents. Thus, I do not consider that this is a case where an issue estoppel precludes Gina from now applying for relief of the kind she is here seeking (nor that this is a case where res judicata applies).
54. I do not accept that the orders that are here sought (other than insofar as they seek dispensation from production of particular documents or classes of documents) amount to a variation of the orders made by his Honour; nor that the effect of (say) orders sought by amended prayer 1 would be to permit Gina to deliver up a smaller sub-set of Trust documents than his Honour had ordered (as Bianca has submitted). True it is that his Honour did not accept certain of the submissions made for Gina as to limits to be placed on the production process (in particular in relation to the personal communications with beneficiaries). However, his Honour did give liberty to apply for dispensation in relation to particular documents or particular classes of documents. That is precisely what is here being sought by, say, prayers 5-7: namely, that, within the category of personal communications with beneficiaries, Gina be excused from producing some (not all) such communications.
55. Gina's solicitor has deposed to the circumstances in which that application is here being made and though Bianca's solicitor takes a different view as to what will here be required I am not prepared to assume that the considered view of Gina's solicitor is incorrect. One would think that Gina's solicitor is in a better position to assess the time and cost likely to be required to be expended in the process of reviewing documents that are within this category than a solicitor who does not yet have access to those documents. Even if Bianca's solicitor's assessment were ultimately to be correct, there is clearly the potential for the review of the personal communications to be a costly and time-consuming process (and potentially one that would not be to the benefit of the trust estate).
56. As to the complaint based on Anshun estoppel (and assuming, as I consider to be the better view, that such an estoppel can arise even where the subsequent application is in the same set of proceedings - see my observations in Antov v Bokan at [309]), I do not consider that the conduct of Gina, in not raising when the matter was before Brereton J the difficulties in relation to the delivery up process that have now apparently emerged, is so unreasonable as to deprive her of the ability to seek the relief she now seeks. There is no basis not to accept Mr Scott's evidence to the effect that the enormity of the task to be carried out only became apparent after steps to comply with the 2018 Orders commenced. That is consistent with the fact that when the matter came before me in December 2018 it was contemplated that the process of identifying and collating documents would proceed at that time even though an application for leave to appeal was to be brought. It was not suggested at that time that the process of delivery up might take some four years (at an exorbitant cost); and I would infer that this was because at that stage it was simply not appreciated that the task would prove to be of such magnitude.
57. Accordingly, I do not consider that Gina is estopped from now seeking the relief sought in her 12 April 2019 notice of motion. I, therefore, turn now to the particular relief there sought.

Particular relief sought in Gina's 12 April 2019 notice of motion (as revised in the proposed short minutes of order)

1. I address the particular categories of relief sought by Gina, and the parties' respective submissions in turn as follows.
2. As adverted to above, Gina's 12 April 2019 notice of motion was in effect amended by a short minutes of order handed up by Gina's Counsel on 26 June 2019 which, according to the Counsel, outlined "effectively the orders we seek in relation to the motion for now" (see 26/06/19 T 2.34).
3. Under the now proposed short minutes of order, some relief that had initially been sought was no longer sought. In particular, prayers 2, 3, 5, 6, 8, 12, 15, 20, 21, 22 were omitted from the last version of the short minutes of order. The prayers that remained (namely, prayers 1, 4, 7, 9, 10, 11, 13, 14, 16, 17, 18, 19) were also significantly changed in some respects.
4. On 27 June 2019, the plaintiffs' Counsel handed up an aide memoire which summarised the position of the plaintiffs in light of the new orders proposed by Gina's short minutes of order. Counsel for the plaintiffs stated that the aide memoire simply summarised what had already been submitted for the plaintiffs (27/06/19 T 86.48).
5. As a result of the amendments to the relief sought by the plaintiff, some of the submissions that were originally made, either on 1-2 May 2019 or in the written submissions, no longer need here to be addressed.
6. As stated above, prayers 4 and 17 (orders 2 and 8 respectively in the short minutes of order) were agreed to by the parties and I will make those orders accordingly.

(i) Prayer 1 (proposed order 1 in the short minutes of order): order/direction concerning production

1. The proposal here put forward is that HPPL will make available to Gina and her legal representatives for inspection (large) numbers of documents for the purpose of a review being made of those documents in order to locate Trust documents. Relevantly, as I understand it, the review of the documents will focus on the need to identify those documents falling within the definition of "Trust documents" having regard to the 2018 Decision of Brereton J (a central focus in this being as to the documents encapsulated by Order 1(a)(iv) of the 2018 Orders - documents "used" by Gina as trustee in the administration of the HMH Trust).
2. I am informed that what is proposed is to "emulate" the approach deposed to by Mr Ross in his 2015 affidavit when the proceedings were before Brereton J (i.e., the Ross Affidavit) (noting that this approach was found by Brereton J to be reasonable) with modifications to take into account the matters contained at [83]-[83] and [111]-[118] of the 2018 Decision. In particular, what was proposed initially by Gina (i.e., before the further consideration leading to the 6 June 2019 letter to which I have referred above) was that: 1. the review process deposed to in the Ross Affidavit would be replicated to ensure that all documents that were reviewed as part of that process will be made available for inspection (200 archive boxes of documents and 30,000 emails) to be re-reviewed in light of the matters outlined in the 2018 Decision (at [83]-[84] and [111]-[118]); 2. using the same approach deposed to in the Ross Affidavit (i.e., using the filing system and key word searches of it), additional hardcopy and electronic documents would be provided for inspection, being documents which may, in light of the 2018 Decision (and in particular the matters outlined in [83]-[84] and [111]-[118]), those records relating to: 1. the classes of documents which were wrongly considered by Gina and her legal representatives not to be Trust documents; 2. the classes of documents addressed in [111]-[118] of the 2018 Decision; and 3. any other class of documents relating to transactions and other events, as notified by Gina to HPPL.
3. What Gina initially sought was a direction (by prayers 1 and 3) that, for the purpose of complying with the production orders, she is justified in requesting HPPL to make available for inspection the "Possible documents of the Trust" and only inspecting such documents (which it is said "will no doubt be voluminous"). Alternatively, Gina sought dispensation orders to the same effect, if that be required (prayer 2). As amended in the amended short minutes of order handed up at the hearing of the applications, the proposed direction is to be prefaced by the words "[s]ubject to further order". As noted already, the form in which the direction is couched makes it tantamount to an application for judicial advice. Pursuant to the short minutes of order, what Gina now seeks is the direction extracted at [37] above.
4. In the 12 April 2019 notice of motion, the documents to be provided for inspection were referred as the "Possible documents of the Trust". Though this phrase was not used in the amended short minutes of order, it is useful to adopt to refer to all the documents being sought.
5. It is submitted for Gina that the proposed approach to determining the pool of "Possible documents of the Trust" documents is entirely reasonable in the circumstances. In that regard, it is said that: in respect of step (a), the approach is essentially identical as it locates the 200 boxes of hardcopy documents and 30,000 emails reviewed initially (which Brereton J described as being "reasonable"); in respect of steps (b)(i) and (ii), HPPL will apply, in consultation with Gina and her legal representatives, the same search methodology which was previously applied as deposed to in the Ross Affidavit (which Brereton J stated was a "reasonable approach" in [85] of the 2018 Decision) to locate additional potential sources of documents which may, in light of the 2018 Decision, be trust documents; and, in respect of step (b)(iv) (formerly b(iii), Gina and her legal representatives will: endeavour to identify all transactions entered into by the HMH Trust when Gina was the trustee, and any other significant events in that period.
6. As to the last of those steps (step (b)(iv)), it is said that this will include the review by Gina and her legal representatives of the HMH Trust's accounts, the documents produced to date, and extensive correspondence received by Bianca's solicitors; the notification to HPPL of those transactions and events; the opportunity for Bianca's to comment upon it; and it is contemplated that the Court's approval of the list will be sought.
7. In particular, I was informed that the intention is that if, when reviewing and producing records and documents of the HMH Trust, Gina or her legal representatives became aware of significant events or transactions of the HMH Trust in respect of which it appears likely there may be in existence additional documents of the HMH Trust which have not been provided to them by HPPL pursuant to steps (a) and (b)(i) and (ii), then requests will be made for those documents; and hence it is said that the drafting of the list of categories was intended to be an "iterative process" undertaken as and when Gina and her legal representatives review and produce records and documents of the HMH Trust.
8. For Gina, it is submitted that the alternative approach to production which was initially pursued was one whereby HPPL sought to make available for inspection all documents which could possibly have been created or received by Gina between 27 March 1992 and 28 May 2015; and that this is untenable and unreasonable because merely making those documents available to Gina and her legal representatives for inspection would take years and would cost approximately $10,000,000 (by reference to the affidavit of Mr Scott sworn 18 April 2019 at [25]) and would involve more extensive time and greater costs in reviewing such documents (the hardcopies of which it is estimated would fill approximately 3,475 archive boxes).
9. The process envisaged by Gina's legal representatives is that once the documents contained in the list of categories have been made available (by HPPL) to Gina and her legal representatives for inspection, a further affidavit would be filed with an estimate of how long it would take Gina and her legal representatives to review and produce all HMH Trust documents, so that the time for compliance could be set. It is proposed that four to six junior members of the bar will be engaged to undertake the re-review and review, under the supervision of Gina's solicitors.

Plaintiffs' submissions as to prayer 1

1. It is submitted by the plaintiffs that to give Gina a direction of the form sought, whether or not characterised as judicial advice, would undermine the very purpose of the 2018 Orders made by Brereton J. Further, it is said that it is impermissible for Gina to outsource to the Court the burden of satisfying herself as to what a reasonable search for HMH Trust documents requires; and that this is what Order 1 seeks to achieve.
2. The plaintiffs contend that the purpose of Order 1 is "entirely unclear", submitting: that Gina does not need to "request" HPPL to make documents available for her inspection; that she has access to the documents which are currently held at HPPL's offices and she is the controlling mind and "alter-ego" of HPPL (a proposition that Gina does not, as I understand it, accept). It is said that the judgments of Brereton J and the Court of Appeal have made it clear that if there are documents that were used by Gina in the administration of the trust, they are "trust documents"; and that if documents were used by Gina in the administration of the trust, Gina is entitled to copies of the documents and HPPL cannot resist providing her with copies of the documents, even if it could establish ownership of the original (referring to what was said by Brereton J at [45] of the 2018 Decision and the Court of Appeal at [38] of the 2019 Appeal Decision). Thus, it is submitted that this order serves no purpose.
3. In terms of the 200 boxes of documents and 30,000 emails and attachments, it is submitted that the exercise undertaken by Mr Ross cannot form the basis for constructing a universe of documents that must be reviewed in order for Gina to comply with her production obligations because Mr Ross oversaw a process of gathering documents to create that universe of documents that was misconceived and that wrongly excluded the documents described in [13] of the Ross affidavit (documents disclosing trustee deliberations, documents recording advice obtained by Gina, documents that were 'confidential in nature' and documents recording communications with beneficiaries) and did not include all documents that were used by Gina in the administration of the trust. The plaintiffs emphasise that Brereton J held (at [44]) that if a document was obtained or retained by the trustee for the purpose of the administration of the trust, it is a trust document; and (at [48] and [111(5)] that any document obtained by Gina in her capacity as a director of HPPL, but used in relation to the administration of the HMH Trust, is a trust document.
4. It is noted that the Court of Appeal held (at [37]) that the test is whether particular documents were used by the outgoing trustee in the administration of the trust and would, for that reason, assist the incoming trustee in the continuing administration of the trust (for which purpose past events could not be ignored).
5. Reference is made to the finding by Brereton J in the 2018 Decision (at [77]) that: The mere fact that documents refer only to entities in the HPPL Group other than the Trust does not mean that they are not documents of the Trust. Given that its shareholding in HPPL was the major - and indeed only significant - asset of the Trust, the affairs of HPPL and its subsidiaries and associated entities could well inform decisions of the trustee, and if obtained or used by the trustee for that purpose would be trust documents. Just because they do not on their face refer to the Trust, or its wholly owned subsidiary HMHT Investments Pty Ltd, does not mean that they are not documents of the trust. Again, the touchstone is the capacity in which and purpose for which they were obtained and held by the Trustee, and if a trust purpose was one of several purposes, then her trustee capacity was involved, and the document is a document of the Trust.
6. The plaintiffs say that it is apparent that the process conducted by Mr Ross would not have included documents that refer to HPPL entities other than the trust (referring to [13] of the Ross Affidavit) and, therefore, that no one has ever created a universe of potential trust documents for review which has been prepared on the basis that it should include documents of the kind to which his Honour referred (i.e., documents: used by Gina in the administration of the trust, including documents supplied by HPPL to Gina in her capacity as a director of HPPL; recording trustee deliberations; recording communications with beneficiaries; recording advice received by Gina as trustee; or which include those specific categories of documents accepted by Brereton J (at [111] of the 2018 Decision as trust documents).
7. The plaintiffs submit that this why the 200 boxes of hard copy files and 30,000 emails and attachments referred to at [85] of the 2018 Decision do not constitute an appropriate starting point for Gina's further production.
8. It is submitted that what was said by his Honour at [85] does not suggest that it would be adequate for Gina to confine her search to the universe of documents described in that paragraph. It is said that his Honour there was dealing with the search that had been undertaken thus far and addressing the plaintiffs' submission that there had not been a good faith attempt to comply with the order. It is submitted that his Honour did not suggest that would be a sufficient universe of documents for Gina to "re-review" in light of his Honour's determination in the judgment of what constitutes trust documents; noting that there was no argument before his Honour as to whether the further production exercise could be confined to the subset of documents initially reviewed. It is submitted that it would make little sense for the search to be so confined, in light of what is said about the exclusion of vast categories of potential trust documents from the initial collation process; and it is said that this is recognised by Gina, insofar as prayers 1 and 2 of her motion (now only prayer 1) seek "to delegate to HPPL the task of identifying "any further boxes of hard copy files and electronic records created prior to 25 May 2015 that HPPL identifies as containing or possibly containing" the documents identified by Brereton J as trust documents in paragraphs 83, 111-118 of his judgment".
9. The complaint by the plaintiffs is that this would entail HPPL, as opposed to Gina, making the determination of what documents were used by Gina in the administration of the Trust for the purposes of supplying documents required by [111(5)] of his Honour's judgment and would also require HPPL to identify various other classes of documents where the identification could only be done with instructions from Gina (such as those described at [111(5)(a)]). The plaintiffs submit that the Court should not sanction in advance an approach where Gina simply identifies classes of documents relating to "transactions and other events" (i.e., Order 1 (a)(iv)) and that this "is something that Gina can address in her affidavit".
10. The plaintiffs emphasise that Brereton J held (at [106]) that the obligation to produce documents and to verify is one personal to Gina (although she might properly make inquiries of and seek information from others). The plaintiffs contend that it follows that Gina cannot be relieved from inspecting documents maintained by HPPL other than the "Possible documents of the Trust" as defined in the original notice of motion; and that this could not be sanctioned as a "reasonable search for Trust documents". Nor, it is said, should the Court make an order that Gina and her legal representatives are justified in only inspecting the "Possible documents of the Trust".
11. In the aide memoire handed up by the plaintiffs' Counsel on 27 June 2019, Bianca's opposition to prayer 1 (proposed order 1 in the short minutes of order) was summarised (in note form) as being that: there is no jurisdiction or power to give judicial advice to a former trustee; the requirements for the provision of judicial advice have nevertheless not been met; there is no utility in making the order; the Court has no power to vary the order of Brereton J; the Court could not "cut across the relief provided by Brereton J after a lengthy hearing which provides [Bianca] with the ability to test the adequacy of [Gina]'s production"; and Bianca cannot adequately test the categories proposed by Bianca in the abstract without reviewing the production.

Determination re prayer 1

1. I have dealt already with the complaints made as to the power to make the order here sought. As to what is contemplated by the order, I do not accept that what is here being proposed is to confine the process of production to the review deposed to by Mr Ross; nor do I consider that what is proposed amounts to an impermissible "outsourcing" or delegation to HPPL of the task of identifying documents used by Gina in the administration of the trust.
2. It is apparent from the correspondence that has passed between the parties that Gina's legal representatives have given considerable thought to the "universe of documents" that may potentially have been used by Gina in the administration of the trust (spanning some two decades). It seems to me eminently logical to start the process of identifying such documents by reference to the known chronology of events that have occurred in relation to the trust over the years and by reference to legal or other advisers who have provided advice or assistance to Gina. The complaint for the plaintiffs seems to be that the first step in the process should be that Gina be asked to identify (their preference being that this be on affidavit) the documents used by her in the administration of the HMH Trust by way of: a description or explanation as to how she administered the trust; explanation or identification of the legal issues she encountered as trustee of the HMH Trust, the role of her various legal advisors, her interactions with HPPL in her capacity as trustee and chairman of HPPL, what information she obtained from HPPL that she considered as part of her administration of the HMH Trust; explanation or identification of the kinds of communications she had with all of the beneficiaries of the trust and how she made decisions about trust distributions; explanation of the events leading to her execution of various deeds with the beneficiaries of the HMH Trust; and identification of any legal advice she received in relation to the same (see [8] of the 19 June 2019 letter in this regard).
3. With respect, it is not for the plaintiffs to dictate the process to be followed by Gina in compliance with the delivery-up orders. No doubt Gina will be guided by the legal advice she receives in that regard.
4. What seems to me to be abundantly clear is that Gina's legal representatives have made a concerted attempt to identify particular categories of documents which are to be reviewed in order to obtain instructions from Gina as to the documents used by her in the administration of the HMH Trust but they are not suggesting that this will be the universe of documents either to be reviewed or subsequently produced. The process of identification of "Possible Trust documents" must start somewhere. The process put forward in the 6 June 2019 correspondence seems to me to be an eminently sensible place to start. Gina's legal representatives have by no means foreclosed the possibility that other documents will need to be reviewed; nor have they suggested that instructions will not properly be sought from Gina as to whether, in addition to the documents proposed for review, there are other documents that would or may fall within the category of "Trust documents" as clarified by Brereton J in the 2018 Decision.
5. Insofar as criticism has been made by the plaintiffs that there is a lack of clarity as to the date ranges contained in various of the proposed categories of documents, no doubt that is based on the view of Gina's legal representatives as to a reasonable or likely date range by reference to the particular event there referred to; but, in any event, if there is a real issue as to whether all reasonable searches and enquiries will have been made if the enquiry at the first instance is confined to that date range, then this can no doubt be explored in due course (preferably in correspondence once the plaintiffs have been provided with the documents from which such an issue arises; rather than leaving this "up their sleeves", so to speak, for cross-examination on the affidavit that is ultimately required to be provided).
6. Similarly, the complaint as to the wording of the proposed categories in the 6 June 2019 letter insofar as they include the expression "concerning the affairs of the Trust" seems to me to be jumping at shadows. On one view it seems to me to be broader than the concept of documents "used in the administration of the Trust" (about which Bianca would surely not complain) but even if it is not, the process of production of documents (as emphasised more than once by Counsel appearing for Gina) is contemplated to be an "iterative process".
7. That said, I am not prepared to make an order or direction in the form of those set out at prayer 1 of the short minutes of order (which updates prayers 1-3 of the notice of motion). That is not because I consider the proposed process there set out to be unreasonable or deficient in some manifest way but rather because I do not see that it is appropriate to give some form of judicial imprimatur to such a process in the abstract.
8. For what it is worth, I am of the view that the process contemplated by prayer 1, as a first step in an iterative process of identification and review of documents that may possibly have been used in the administration of the HMH Trust is a reasonable step to be taken at this stage of the process. Whether it would be a sufficient step (to enable Gina to depose to a belief as to the completeness of production having regard to the making of all reasonable searches and enquiries) will ultimately depend on matters such as what emerges from a review of the documents obtained as part of this first step of the process; what instructions are given by Gina as to relevant matters concerning the administration of the HMH Trust; and what emerges from any further enquiries or searches (including as a result of the criticisms and complaints made to date by the plaintiffs - such as their assertion that transcripts of the WA bankruptcy proceedings are or may be "Trust documents" and/or are documents the review of which may indicate other potential categories of "Trust documents"). To some extent this is recognised by the fact that the proposed prayer 1 itself includes within the class of "Possible documents of the Trust" as sub-category (iv), "any other class of documents relating to transactions and other events, as notified to HPPL by [Gina] or her legal representatives, as being relevant to the Trust …". (I leave aside the suggestion implicit in the form of the order sought that the Court's approval might be sought in relation to this category of documents, which seems to be contemplating some kind of judicial management of the production process and would in my opinion neither be appropriate nor conducive to the expeditious determination of the real issues in dispute.)
9. Accordingly, I do not consider it appropriate to make this order or direction whether in the exercise of the inherent jurisdiction of the Court or otherwise.

(ii) Prayer 7 (proposed order 3 in the short minutes of order): dispensation concerning personal correspondence with children

1. As to the second category of documents the subject of the proposed relief, it is said that there are approximately 47 archive boxes of documents (188 level-arch folders) constituting personal correspondence between Gina and her children between 1992 to 2015, and there are approximately 200,000 emails in Gina's "mailbox" for the period 2011 to May 2015. It is said that these documents are largely personal in nature, and private, containing matters such as intimate family photographs.
2. The evidence is that, in seeking to comply with the 2015 Orders, these records were not reviewed "on a wholesale basis" because they were assumed not to be trust documents on the basis that they were: "documents disclosing deliberations on the part of the first defendant in her capacity as Trustee which did not reflect or refer to a decision taken by her in that capacity"; and "personal documents of the first defendant as Trustee including communication with beneficiaries (whether individually or otherwise), unless including a decision made by her as trustee" (as outlined in the 2018 Decision at [83]-[84]).
3. It is now proposed that specific searches of these records will be undertaken in order to comply with the production orders. However, dispensation is sought that would avoid the need for a "wholesale review" of these records. It is said that a wholesale review would be required to locate communications between mother and child which include requests for distributions and answers to those requests. Mr Scott has estimated that reviewing all of these documents would take four to six months and would cost between $600,000 to $900,000 (even using junior members of the bar to do so).
4. In this regard it is noted that, in respect of distributions actually made by the HMH Trust, Bianca has already been provided with: a detailed account, verified by affidavit, of all moneys and property received and disbursed by her (and any other person on her behalf) in respect of the property of the HMH Trust, and of her dealings and transactions therewith (specifying, in respect of each payment and receipt, the date and amount thereof, to whom it was made or from whom it was received, and the purpose of account for or to which it was paid or received as the case may be), which includes details of all distributions made out of the HMH Trust during the period covered by the Account (2006 to May 2015); and primary accounting records with respect to each distribution.
5. It is further noted that, in respect of those documents, Brereton J stated (at [99] of the 2018 Decision): It is not without significance that the plaintiffs do not take issue with the adequacy of delivery up of any particular category of document specifically identified in the delivery up order, and in particular those listed in claim 3 and paragraph 58 of the third further amended statement of claim. In particular, there have been delivered up accounts of the Trust from 1988 to date, accounts of HPPL from 1988 to date, tax returns of the Trust from 1988 to date, accounts of the Trust from the date of Mr Hancock's death, financial statements of the Trust from 1988 to date, management accounts of the Trust from 1988 to date, all documents recording payment of income tax of the trust from 1988 to date, and details of all dividends declared by HPPL since Mr Hancock's death. This supports the first defendant's submission, that there has been a genuine attempt to comply with the obligation imposed by the order.
6. In light of the information that has already been produced concerning distributions, Gina seeks to be relieved from being required to have her legal representatives undertake a "wholesale review" of her personal correspondence. Three alternative proposals were initially put forward in this regard. However, as prayers 5 and 6 have fallen away (as a result of the short minutes of order handed up by Gina's Counsel on 26 June 2019), only the proposal relating to prayer 7 needs to be addressed.
7. By prayer 7, Gina seeks to be relieved from having to produce all documents of the trust which are documents of the trust only because they evidence or record communications between: Gina and any of the plaintiffs, the second defendant or the third defendant; and Gina and any officer or employee of HPPL; in relation to trust distributions, save for distributions paid to the beneficiaries of the Trust in excess of $5,000 (as referred to in certain annexures and exhibits to affidavits). It is said that the "lion's share" of distributions actually made between 2006 and 2015 were distributions less than $5,000; and it is said that it is unclear how further records of such distributions could be necessary for, or relevant to, the administration of the HMH Trust.
8. It is accepted by Gina that, if such relief is granted, Bianca will still be entitled to make reasonable requests for information concerning specific distributions from the outgoing trustee (reference here being made to In the matter of the Bird Charitable Trust). For example, it is acknowledged that if there is a particular request for a distribution, recorded in the accounts that Bianca wishes to investigate in the administration of the HMH Trust, communications concerning that request for the distribution may be requested by her from the outgoing trustee.

Plaintiffs' submissions as to prayer 7

1. The plaintiffs submit that it is not open to Gina now to seek such relief in circumstances where, before Brereton J, Gina contended that she was entitled to withhold communications between herself and her children that did not record a decision made by her as trustee, on the basis that they were not HMH Trust documents and Brereton J rejected that contention.
2. It is submitted that if Gina wished to seek relief from her obligation to produce these documents on the basis that she could not produce the documents, or it would be oppressive for her to do so, she had ample opportunity to do so before Brereton J; that she did not do so and that, instead, her position was that she would produce the documents if it turned out she had been wrong in her interpretation of what is a trust document.
3. The plaintiffs raise two matters in response to the contention that the documents contain personal information about Gina's children (in that they relate to Trust distributions for personal living expenses) and there is no continued relevance to the administration of the HMH Trust in such distributions, particularly distributions of smaller amounts.
4. First, they say that there is no basis for Gina to withhold HMH Trust documents on the basis that they are not of continued relevance to the administration of the HMH Trust. It is contended that Bianca, as the new trustee, has an entitlement to be provided with HMH Trust documents because they are trust property and that the history of this matter shows that the plaintiffs are justified in not placing any faith in a contention advanced by Gina that particular documents are not relevant to continued administration of the HMH Trust. It is submitted that the greater likelihood is that the documents are, in some respect, adverse to Gina's interests "which is why she wants to withhold them". In any event, it is said that the relevant test is whether the documents were used in the administration of the trust (and, if they were, then they would assist the incoming trustee in the continuing administration of the trust "for which past events could not be ignored") (see 2019 Appeal Decision at [37]).
5. Second, the plaintiffs note that Gina has already applied before Brereton J for relief of her obligation to produce documents which would disclose "personal information … of any individual, and where that personal information could not reasonably be said to be relevant to the continuing administration of the [Trust]"; that this application was narrowed orally to be an application only to redact personal information; and that this application was rejected by his Honour. It is contended that, to the extent that Gina now seeks relief from production of communications with her children on the same basis, that application has already been rejected and res judicata prevents it from being agitated again. It is submitted that, to the extent the current application goes further, it should have been raised before Brereton J.
6. In the aide memoire, the plaintiffs re-stated their reason for not agreeing to the amended prayer 7 (proposed order 3 in the short minutes of order) as follows: The second plaintiff accepts that in the first instance, Mrs Rinehart [Gina] could confine her search for the documents described in Schedule B to Ex. TRP3 to the affidavit of Price, dated 10 May 2019. Confining the search to the parameters described proposed in order 3 would not be a reasonable search and would exclude potentially important communications between Mrs Rinehart [Gina] and the beneficiaries of the trust. It is not oppressive for Mrs Rinehart [Gina] to have to produce the documents which Brereton J ordered her to produce, particularly as refined in Schedule B.

Determination as to prayer 7

1. The relief sought in prayer 7 amounts to an application for dispensation from the 2018 Orders in relation to particular sub-sets of the category of personal communications between Gina and her children. I do not accept that this is a matter where an issue estoppel arises, the issue previously before Brereton J being as to whether such documents were trust documents; not whether there should be relief granted to dispense with production of some of those documents. Nor do I consider that the principles of Anshun estoppel preclude Gina from now seeking such dispensation, even noting that there was a previous application in relation to the redaction of personal information from such documents. The evidence of Mr Scott discloses the basis on which it is now appreciated that the review and production process in relation to these communications is likely to be costly and time-consuming.
2. That said, Bianca (as the trustee of the HMH Trust) is pressing for the production of the entirety of this category of document (even though seemingly conceding in oral submissions that communications evidencing requests for minor distributions - say for dry cleaning bills - are not likely to be necessary for the administration of the trust - 26/06/19 T 34.38). It appears that in part this is informed by a suspicion that if Gina is seeking dispensation in this regard then it must be because of a concern as to what such production would reveal.
3. The stance taken by the plaintiffs in their solicitors' 19 June 2019 correspondence was that "it is neither productive or necessary to now redebate or re-litigate the last four years other than to rely upon all of that material to demonstrate why the process you now advance is inappropriate and unproductive". Insofar as Bianca as trustee (no doubt with advice as to whether such a course of action is consistent with her duties as trustee) insists upon the production (without limitation) of all personal communications between Gina and one or more of her children that fall within the definition of Trust documents, so be it. That was the order made by Brereton J and I do not consider it appropriate here to revisit it provided that the cost of such an extensive process of collation and review of documents is borne by the party adamantly insisting on production in full (i.e., Bianca).

(iii) Prayers 9-11 (proposed orders 4 and 5 in the short minutes of order): communications with third parties

1. As to Order 2 of the 2018 Orders (extracted earlier above), Gina seeks (which is squarely framed in terms as a variation of that Order) that the operation of Order 2 in the 2018 Orders be limited to third parties identified in the Schedule to the 2018 Orders (prayers 9 and 10); and that, subject to further order, Gina is to write to each of the third parties identified in the Schedule to the 2018 Orders and Tottle Partners (prayer 11).
2. Gina seeks to be relieved from the obligation to give directions to third parties, other than those identified in the Schedule referred to in Order 2, on the basis that further parties have not been able to be identified from the accounting records. It is submitted that it could be expected that any such third parties would have been paid, so that some record of their existence would be in the accounting records, but that there are no records of other third parties. Further, Gina seeks to clarify that the order only requires her to use reasonable endeavours to procure third parties to take certain steps.
3. As to prayer 11, I am informed that Gina proposes to send letters to the listed third parties and Tottle Partners in the form attached to the submissions filed on the present application.

Plaintiffs' submissions as to prayers 9-11

1. As a result of the amendments to prayers 9 and 10 made in the revised short minutes of order handed up by Gina's Counsel on 26 June 2019, the plaintiffs' submissions in relation to Gina seeking first review of the documents do not here need to be outlined, as this part of the relief sought has fallen away. This is the same for prayer 11, which no longer states that court approval is required, and prayer 12 which is no longer sought. However, in an aide memoire handed up by the plaintiffs' Counsel on 27 June 2019, in response to Gina's proposed orders in the short minutes of order, their opposition to such relief was re-stated. For the sake of completeness, I outline these submissions below.
2. The plaintiffs note (as I accept it does) that prayers 9 and 10 seek, on their face, to vary Order 2 of the 2018 Orders. They emphasise that (at [122]-[123]) his Honour said: There is no disagreement that, as a matter of principle, and as I have explained above, the first defendant's obligation extends to documents of the Trust which are within the Trustee's control but held by third parties, and, in particular, advisers and consultants retained by her in her trustee capacity. The order is said to be necessary because the plaintiffs have, they say without success, requested that the first defendant direct any advisers or consultants in possession of trust documents to deliver them up to the plaintiff, and to identify the advisers to which such direction has been given. Notably, the first defendant resisted the plaintiffs' efforts to obtain trust documents directly from PwC, instead directing PwC to provide documents to her for prior review. And when Bianca requested Freehills to deliver up to her the trust documents in their possession, and Freehills complied, there was clamorous objection and insistence that they be returned, so that Mrs Rinehart and HPPL would have an opportunity to scrutinize them and object. I did not think it unreasonable that the first defendant should require her consultants and advisers first to provide the documents to her for review, in order to enable her to determine whether or not they were within the scope of the order, rather than directing them to hand over all documents to the plaintiffs. However - somewhat remarkably, given what happened in connection with the Freehills documents - the first defendant has more recently taken the position that since, upon Bianca's appointment as new trustee, the assets and property of the Trust vested in her, she is entitled to such of the Freehills, PwC and Sceales documents as are trust documents, and that Mrs Rinehart cannot prevent this, nor is it any longer in her power to deliver them up. That being the position she now adopts, she can have no objection to providing such a direction - since absent it, and especially in the light of the Freehills documents saga, many consultants will no doubt be reluctant to part with such documents without Mrs Rinehart's prior concurrence.
3. It is said that, in response to the order that the plaintiffs had sought (that Gina direct third parties in possession of HMH Trust documents to provide them to Bianca), Gina had initially contended that she should first be given a chance to review those documents but later took the position that she had no power to prevent third party advisors from providing documents to Bianca (this being said to advance the contention that she had not failed in her obligation to "deliver up" documents held by such third parties). Reference is made to the submission by Gina submitted in her written submissions dated 12 July 2017 (at [73], [75]) that: Where the former trustee no longer has authority over documents because property in them has passed, since the persons holding the documents are holding them on behalf of the trust, the former trustee cannot be obliged to 'deliver them up'. She has not the power to do so. … Therefore, to the extent the Freehills documents are properly documents of the Trust, the first defendant has not failed to comply with Order 3 by failing to deliver them up, since she had no entitlement to deal with those documents at all …
4. Insofar as it is submitted that Senior Counsel for Gina made a submission without "express instructions", the plaintiffs submit that Gina is bound by the conduct of her case (pointing to the fact that the said submission was made on 30 March 2017, over 18 months before the delivery of judgment and prior to the conclusion of the hearing, so there was ample opportunity to correct it if the submission did not reflect Gina's position).
5. More fundamentally, the plaintiffs say that Order 2 made by Brereton J on 5 November 2018 is a final order of the Court; and that it cannot be varied except on limited grounds, none of which has been invoked by Gina. It is submitted that the appropriate course to correct it, should it have been erroneous, was an appeal; and it is noted that Gina sought leave to appeal but was refused.
6. Further, to the extent that prayer 9 seeks an opportunity for Gina to seek relief from production on the grounds that documents are relevant to other litigation between the parties, it is submitted that there is no legal basis for that contention (and that this was not an argument put before Brereton J, in circumstances where there were references throughout the hearing to the existence of the other litigation between the parties).
7. In the aide memoire handed up by the plaintiffs' Counsel on 27 June 2019, the following wording was suggested for the variation of Order 2 of the 2018 Orders: By 14 July 2019, the first defendant procure that any third party who possesses or is likely to possess documents of the Trust, including those identified in the Schedule, deliver up such documents to her, in the first instance, by providing a written direction and consent to them to do so and provide to the second plaintiff a copy of such direction and a copy of any responsive communications provided by such third parties and a list of the documents produced by such third parties to the first defendant.

Determination as to prayers 9-11

1. Though no longer sought, for the record I note that I do not consider that it is either necessary (in the context of the working out or implementation of the production orders) or appropriate for the Court to approve the form of the proposed written direction or request to third parties outlined in prayer 11 of the original notice of motion. I do not suggest that there is anything inappropriate or unreasonable about the form that has been proposed; it is simply that I do not see the need for the Court to settle the wording of the draft request. Thus, had it been necessary I would not have allowed prayer 11 in the original notice of motion.
2. As to the amended prayers 9 and 10, what is proposed is that Order 2 be varied so that Gina only be required to issue the third party request or direction for production of trust documents to those third parties who have been identified in the Schedule to the 2018 Orders and that it be stated that Gina is only required to "use reasonable endeavours to procure the third parties identified in the Schedule to the 2018 Orders". As to the requirement that Gina only use her reasonable endeavours, I would have thought this should not be necessary, on the basis that Order 2 of the 2018 Orders can only sensibly be understood as requiring Gina to use reasonable endeavours to procure the delivery up of trust documents by third parties. To take an extreme example, it could hardly be said that Gina was in contempt of Order 2 of the 2018 Orders if it transpired that it was impossible for her to procure delivery up by third parties. While the history of the litigation, in the relatively short time in which I have been hearing applications involving the parties to this litigation, does not fill me with confidence as to what disputes may arise in future in relation to compliance with the 2018 Orders, I would trust this is not one of them.
3. More problematic, in my opinion, is the variation sought to Order 2 of the 2018 Orders to limit the third parties to those who have been identified to date. This does not seem to me to fall within the notion of "working out" the orders of the Court (though I accept it can be characterised as a form of dispensation). However, the real difficulty I have with this is that I consider such dispensation to be premature. The basis put forward for this order is that a review of the accounting records has not revealed any other third party advisers who rendered fees in relation to the HMH Trust. That may well prove to be a reasonable guide to the identity of the third parties to whom a written request or direction is required to be issued pursuant to the 2018 Orders. However, before it could confidently be said that there are no (or likely to be no) such other persons, it would be necessary, at the very least, for Gina's instructions to be obtained (with the benefit of a review of the documents thus far or by then produced by HPPL) as to the identity of any other third parties who might fall within the terms of the order. I do not consider it appropriate at this stage to make any order in advance which would have the effect (intentionally or otherwise) of bypassing all reasonable enquiries required to be made of Gina to comply with this order).
4. Accordingly, while it may not strictly be necessary to make clear that only reasonable enquiries are required, I am prepared to make a variation of Order 2 to make that clear but will not otherwise make Order 4 as now sought in the short minutes of order (i.e., prayers 9 and 10).
5. I do not consider it appropriate to make Order 5 (prayer 11) in the revised short minutes of order.

(iv) Prayer 14 (proposed order 7 in the short minutes of order): electronic database of the trust

1. This order relates to Order 3 of the 2018 Orders (extracted earlier). It is said that there is no separate electronic database or other electronic information system that was maintained specifically by or for the HMH Trust, although it is possible to extract an electronic text file which lists all transactions of the general ledger of the accounts of the HMH Trust. It is suggested that Gina might not be required to produce such an electronic record (because it will need to be created) but, out of an abundance of caution, Gina seeks a direction that provision of such a record will constitute sufficient compliance with Order 3 of the 2018 Orders.
2. HPPL supports Gina's proposed Order 14 and submits that that order should be made now. It is said that the object of, at least, Order 3 is that Bianca have a complete set of the HMH Trust's documents in effect in native format; that the electronic version of the accounts can be produced; and that there is no apparent reason consistent with achieving the object of Order 3 to allow Bianca access to HPPL's electronic accounts or electronic databases more generally.

Plaintiffs' submissions as to prayer 14

1. As to prayer 14, the plaintiffs again say that the form in which this order is framed is suggestive of an application for judicial advice (that they contend cannot be given). Further, they argue that prayer 14 seeks in substance to vary Order 3 of the 2018 Orders, by narrowing the system to which access be granted from "any electronic database or other electronic information retention system that was maintained by or for the Trust" to simply the "full transaction listing of general ledger of the accounts of [the] Trust" and by providing that a copy of this be given to Bianca rather than access to it as required by the order.
2. The plaintiffs say that Order 3 of the 2018 Orders is a final order of the Court which cannot be varied; pointing to the fact that his Honour noted that this order was "not the subject of specific opposition". It is submitted that Gina cannot now seek to vary an order on grounds that she did not advance before Brereton J and that, to the extent that Gina contends that Brereton J, in making Order 3, overlooked evidence that she advanced, the appropriate avenue for advancing that contention is an appeal. The plaintiffs complain that no reason is given in the evidence as to why there cannot be compliance with the order as made.

Determination

1. The difficulty I have with the resistance by the plaintiffs to the variation of Order 3 of the 2018 Orders in this regard is that, as I understand the position, there is not an independent or stand alone "electronic database or other electronic information retention system that was maintained by or for the Trust" insofar as the electronic database that was maintained by HPPL was a database that encompassed both HMH Trust information and separate HPPL information.
2. Brereton J dealt with the issue of electronic documents at [111(2)-(3)] of the 2018 Decision as follows: (2) All electronic Trust documents, in native electronic form. Such documents, to the extent that they exist, including electronically-held accounting records of the Trust, are documents of the Trust. The first defendant has submitted that there is no requirement that the documents be produced electronically; that such production is not necessary for the plaintiffs to ensure that they have obtained all of the property of the trust; that a large number of documents were produced by manually searching hardcopy folders and that if Bianca wants to put them in electronic form that is a matter for her; and that provision of electronic documents would not enable verification of their authenticity because the metadata changes with copying. Even if all that is so - and I accept that the obligation to deliver up trust documents does not require the scanning and creation of electronic documents from hard copies - where electronic documents exist, they are plainly documents of the Trust as much as hardcopy documents are, and are within the scope of the delivery up order. (3) Access to any electronic database or other electronic information retention system maintained by or for the Trust. The plaintiffs seek to be provided access to any electronic database that contains Trust records, so that they may be obtained without further delay. In my view, this goes beyond the scope of the delivery up order, but it is an order which can be made in aid of the new trustee's right, as described in Bird Charitable Trust, to the assistance and cooperation of the outgoing trustee. It was not the subject of specific opposition.
3. It is apparent that his Honour did not contemplate that there would be a requirement for an electronic database of documents to be created - simply that if one existed there would be access provided to it. HPPL does not, however, object to the creation of a database relating to the general ledger, as noted above.
4. It is also clear that what his Honour was contemplating was an electronic database or other electronic information retention system maintained by or for the HMH Trust "that contains Trust records". As I read it, his Honour was not there confining the reference to HMH Trust records to a general ledger of transactions.
5. Therefore, as I read his Honour's 2018 Orders, while Gina is required to take the necessary steps to enable Bianca to have access to any electronic database or other electronic information retention system that was maintained by or for the HMH Trust (and contemplated that access to it would be in its native format) this does not in terms require that Gina take steps to request or compel (if she be in a position reasonably to do so) HPPL to create such an electronic database. If there is no separate database to which access can be provided (without at the same time providing Bianca with access to documents to which she is not entitled) then the order as made is problematic. However, I also do not see a basis on which to confine access to a general ledger of transactions as is contemplated by the proposed order here sought.
6. In the working out of Order 3 of the 2018 Orders, having regard to the above, it seems to me that the appropriate course to take is to vary Order 3 so as to put in place a regime that would enable a computer expert to facilitate access by Bianca only to the information electronically stored in the existing electronic database or electronic information system that relates to the HMH Trust (unless Bianca, as trustee, consents to the production of or access to a subset of the electronic database). I will direct the parties to consider and prepare short minutes to give effect to such a regime.

(vi) Prayers 8, 12 and 15 of Gina's motion - time for compliance

1. Each of prayers 8, 12 and 15 in the original notice of motion sought orders relating to the time for compliance with the 2018 Orders - prayer 8 as to the time for compliance with Order 1; prayer 12, in relation to Order 2 and prayer 15 in relation to Order 3. As adverted to above, prayer 8 is now superseded and each of prayers 8, 12 and 15 is not included in the updated orders sought per the short minutes of order handed by Gina's Counsel.
2. Nevertheless, in my opinion, it is clear that an extension of time needs to be granted to permit the production process to be completed, not least because of the delay that has occurred while the present applications have been on foot. When publishing these reasons, I will consider directions with a view to timeframes being set that contemplate production in tranches.

(v) Prayer 18 (proposed order 9 in the short minutes of order): liberty to apply

1. This is self-explanatory. It is said for Gina that prayer 18 may be unnecessary, as liberty has already been granted, but it has been included in the application out of an abundance of caution given that Order 2 of the orders made on 4 April 2019 required any order application for variation or directions in respect of Brereton J's orders to be filed by 12 April 2019. It is submitted that this application for relief would best be determined, after Gina and her legal representatives have been provided with the "Possible documents of the Trust" and consideration has been given whether or not they were used in the administration of the HMH Trust.

Plaintiffs' submissions as to prayer 18

1. The plaintiffs say that there is no reason for such an order to be granted in circumstances where Gina has that liberty by virtue of Order 4 made by Brereton J on 28 May 2015 and (except to the extent that she is estopped by reason of res judicata, issue estoppel or Anshun estoppel) she may exercise that liberty. The plaintiffs submit that: Order 18 appears to be a transparent attempt to further delay the process required by Brereton J for Gina to verify the Trust production on affidavit. The Court should not endorse it. These proceedings must eventually be brought to an orderly conclusion.

Determination

1. I do not regard the seeking of an order granting liberty to apply as any kind of "delaying tactic". To the extent that the plaintiffs say it is unnecessary, then they can have no real complaint about it being made. For more abundant caution I will make this order. In so doing I should record my fervent agreement with the plaintiffs' submissions that these proceedings "must eventually be brought to an orderly conclusion". Hopefully, that will occur within my judicial lifetime.

(vi) Prayers 13, 16 and 19 (proposed order 6 in the short minutes of order): indemnity

1. This order (now condensed into one, Order 6, in the short minutes of order) relates to the costs that will be incurred in the proper performance of Gina's duties, as trustee, as determined by the 2015 Orders and 2018 Orders. The claim is now confined to future costs. The claim for an indemnity is made by reference to authorities such as Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319 at 335; [1945] HCA 37; RWG Management Ltd v Commissioner for Corporate Affairs [1985] VR 385 at 396; Ron Kingham Real Estate Pty Ltd v Edgar [1999] 2 Qd R 439 at 442. It is submitted that Gina and her legal representatives are attempting to contain the costs of the production exercise as far as possible.

Plaintiffs' submissions as to prayers 13, 16 and 19

1. Insofar as Gina now seeks an indemnity from the HMH Trust in relation to her compliance with the orders made by Brereton J on 28 May 2015, the 2018 Orders and these orders, the plaintiffs say that such a contention has already been advanced before Brereton J, who ruled against it and that Gina cannot raise the contention now.
2. The plaintiffs note in this regard that: in her written submissions dated 26 September 2015 when the matter was before Brereton J, Gina submitted that her "costs incurred in complying with order 3 of the May Orders should in fact be paid out of the Trust, in accordance with the usual practice where a retired trustee is obliged to go to cost and expense in handing over trust documents to a new incoming trustee and to provide a common account"; at the hearing before Brereton J on 29 September 2015 his Honour indicated a view that prima facie the costs of complying with that order are costs of the proceedings on which his Honour was then reserved; and costs of the proceedings were then dealt with on 2 February 2016 (Hancock v Rinehart (Costs) [2016] NSWSC 11 (the Costs Judgment)), his Honour holding (at [13]-[14]) that: The ancillary issues arose directly out of the removal application. The relief sought - the delivery up of trust documents and the taking of accounts - was incidental to and consequential upon the replacement of Mrs Rinehart as trustee. While the plaintiffs did not achieve all they sought in this respect - in particular, they failed to obtain an order for the taking of accounts prior to the date of the Hope Downs Deed - that does not materially detract from their substantial success on these issues. Mrs Rinehart [Gina] should be seen as responsible for the costs associated with the ancillary issues.
3. It is noted that his Honour ordered that: 1. Except insofar as any other extant costs order provides, the first defendant pay two-thirds of the plaintiffs' costs of the proceedings, assessed on the ordinary basis, and not be entitled to indemnity from the trust assets in respect thereof, or in respect of her own costs of the proceedings.
4. It is submitted (by reference to his Honour's remarks at the hearing on 29 September 2015) that the intention was that this order would prohibit Gina from seeking an indemnity from the HMH Trust assets in respect of her costs of compliance with the 2015 Orders and that to make the orders now sought by Gina would therefore be contrary to the order made by Brereton J.
5. Further, it is submitted that there is "no principled basis to order that Gina be entitled to an indemnity" from the HMH Trust. The plaintiffs point to [11] of the Costs Judgment, where his Honour noted that where a trustee unsuccessfully resists removal (even in the absence of proven misconduct), the trustee may be ordered to pay the costs of any proceedings required to secure the removal and consequent upon it; and that his Honour then held as follows (at [17]): … It is correct that it was unnecessary in the substantive proceedings to characterise Mrs Rinehart [Gina] as a defaulting trustee; that question ceased to be relevant as a substantive issue by reason of her ultimate voluntary decision to seek to be discharged. However, in circumstances where she did so at the eleventh hour, in the face of an application to remove her on account of her conduct in September 2011, at a time when she had adduced no evidence to explain it, and consented to an order that she pay the costs of the proceedings for her removal on an indemnity basis, it is right to conclude that her resignation represented a recognition and acceptance on her part that the proceedings for her removal would otherwise have succeeded. In turn, that imports that she was responsible for the incurring of the costs of those proceedings; that consequence cannot be escaped by the strategy of removing the issue of breach of trust by a last minute resignation and consent to a costs order … . [footnotes omitted]
6. It is submitted that those observations apply with equal force against the proposition that Gina should be entitled to an indemnity from the HMH Trust in respect of the production of HMH Trust documents. The plaintiffs emphasise that it was Gina's conduct in September 2011 which led to the present proceedings; and that it is her conduct in intermingling the documents of the HMH Trust with HPPL that has led to difficulties in identifying and producing the documents of the HMH Trust. They say that the expense of doing so cannot be visited upon the HMH Trust (and that if and to the extent that Gina resists the proposition that she is a defaulting trustee, for the purposes of determining her entitlement to indemnification, findings to that effect should be made, on the basis of the factual findings that Brereton J has already made which it is said are binding on all parties).
7. In supplementary submissions filed by the plaintiffs on this issue, the plaintiffs pressed their resistance (at least at this stage) to an order that Gina is entitled to indemnity from the HMH Trust with respect to the production of HMH Trust documents; for the following five reasons.
8. First, the submission already noted to the effect that Brereton J has dealt with this issue and that if Gina considers that his Honour overlooked the issue in the Costs Judgment, the appropriate course is that the matter be remitted to Brereton JA.
9. Second, that there is no authority to the effect that a former trustee is entitled to an indemnity from the trust assets for the costs of delivering up documents of the trust; rather, it is said, the usual expression of a trustee's right of indemnity is that it is a right of indemnity for expenses properly incurred "in the administration of the trust" (see for example, Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226; [1998] HCA 4 at [47]). The plaintiffs say that they have identified no authority for the proposition that the handing over of trust documents by a former trustee, after removal, forms part of the "administration" of the trust or that the former trustee is entitled to any indemnity.
10. The plaintiffs further argue that it is doubtful whether a former trustee can ever claim a right of indemnity over the trust assets for actions taken after removal since, after removal, the trustee is no longer "administering" the trust. The plaintiffs point to the fact that the trustee's indemnity is usually said to be secured by an equitable lien or charge over the trust assets and say that it is hard to see how any such lien or charge could arise when those assets have vested in the new trustee.
11. The plaintiffs also submit that it is doubtful that the handing over of trust documents by a former trustee to the new trustee is part of the administration of the trust, particularly in circumstances where (as here) the former trustee "had to resign as trustee because of her own serious misconduct". It is noted that the former trustee is obliged in law to hand the trust documents over to her successor; and it is said that that does not make the process of doing so part of the trust administration.
12. Third, the plaintiffs point to the line of cases to the effect that, where a trustee is removed by reason of misconduct, the trustee is to be held responsible for the costs occasioned by her removal. In particular, reference is made to Attorney-General v Murdoch (1856) 69 ER 910 (Murdoch) (cited with approval by Young J (as his Honour then was) in Killen v Leigo (Supreme Court (NSW), Young J, 10 March 1997, unrep) and by Brereton J in the Costs Judgment (at [17])), where Page Wood VC said (at 911): If a trustee voluntarily retires from a trust like the present on account of difference of opinion, he pays no costs, whether he will receive costs is a question for the discretion of the Court, and may depend upon the circumstances of his retirement. But here all the proceedings in the suit have been occasioned by the trustees' refusal to retire from their trust. They took what the Court considered an improper and perverse view as to the duties imposed upon them, and the suit for their removal and all the proceedings consequent thereon have been occasioned by their taking that view.
13. The plaintiffs say that, while it is not clear from the decision in Murdoch what were the costs of the "proceedings consequent" on removal (save that the report records that counsel for the relators and the plaintiff asked that the defendants be ordered to pay such of the costs subsequent to the decree as had been caused by the appointment of the new trustees, as being costs occasioned by them, their breach of trust having caused the suit and the necessity for their removal), those costs appear to have included those of a proceeding to appoint a new trustee. It is submitted that the same principle should apply to costs of the former trustee delivering trust documents to the new trustee, where misconduct of the former trustee has resulted in her resignation and her removal would have been inevitable had she not resigned. It is said that, but for the misconduct, there may have been no need to appoint a new trustee at all. It is also submitted that if the courts have required the former trustee in cases of misconduct to bear the costs of proceedings to appoint a replacement trustee, equally the former trustee should in such cases be required to bear the costs of delivery up of documents.
14. Fourth, that a trustee's right of indemnity only applies where a trustee has incurred expenses "properly" (i.e., meaning "reasonably as well as honestly incurred" - see In re Beddoe [1893] 1 Ch 547 (In re Beddoe) at 562); and that this is said to require that the trustee has, in incurring the expenses, acted within power, in good faith, and with the degree of care and diligence that a person of ordinary prudence would exercise in the conduct of her or his affairs.
15. The plaintiffs refer in this regard to Nolan v Collie (2003) 7 VR 287; [2003] VSCA 39 (Nolan v Collie) at [53], where Ormiston JA (Batt and Vincent JJA agreeing) said that "[i]t would follow that the test of "reasonableness" is primarily concerned with the standard of ordinary diligence and care required in the management of trust affairs which might be expected of a trustee as objectively but not over zealously enforced".
16. The plaintiffs submit that any right of indemnity Gina may have is subject to the requirement that she exercised care and diligence; and argue that the intermingling of HMH Trust documents with HPPL records here becomes relevant. It is submitted that it is apparent from the evidence served by Gina that the primary reason for the costs incurred and yet to be incurred in production of HMH Trust documents is that the HMH Trust documents cannot readily be located in a set of clear repositories. It is said that this appears to be because Gina "did not ever turn her mind to the possibility that she would one day be replaced as trustee and would need to have [sic; hand] over the documents of the Trust". The plaintiffs submit that an ordinary prudent trustee of a trust as valuable as this would have maintained trust records separately so that they could be handed over on retirement; and that, had this been done, the costs of handing such records over would have been minimal. It is submitted that the additional cost and expense in the present case should not be visited upon the HMH Trust.
17. Finally, it is submitted that, until production is complete, the Court is not in a position to make an order granting the indemnity and no order should presently be made. It is said that much will turn upon the documents produced by Gina when the production exercise is complete; and that those documents will be relevant to the determination of her right of indemnity. By way of example, it is said that insofar as a submission was made that communications with the beneficiaries are irrelevant and therefore the cost of producing such documents should be borne by the HMH Trust, a view cannot be formed in advance, without seeing the documents, that all of the communications with the beneficiaries are irrelevant. It is submitted that it would be unfair to make a determination adverse to the plaintiffs in this respect in the abstract. Thus, it is submitted that the question of indemnification for future costs should be deferred until the production is complete.
18. It is submitted that the extensive history of the dispute that was before Brereton J will be at the heart of the determination of whether indemnification should be ordered in relation to past costs. It is also said to be appropriate that his Honour should determine any question of whether the issue of indemnification has already been determined by him, or alternatively ought to have been brought forward by Gina prior to the delivery up order being made.
19. In the aide memoire handed up on 27 June 2019, the plaintiffs reiterated their position in relation to the proposed order 6 in the short minutes of order as being: Before the Court could order that there be indemnification from the trust assets for the costs of the production, the plaintiff would seek to make submissions as to why Mrs Rinehart [Gina] is not entitled to indemnification because she is a defaulting trustee. The plaintiffs' primary submission is that the question of indemnification be determined after the production is completed.

Gina's reply submissions re right of indemnity

1. In reply to the submissions made by the plaintiffs as to the making of orders indemnifying her for the expenses she will incur in producing the HMH Trust documents, Gina maintains that the plaintiffs' objections are answered by reference to s 71 of the WA Trustees Act which provides that "[a] trustee may reimburse himself for or pay or discharge out of the trust property all expenses reasonably incurred in or about the execution of the trusts or powers". It is submitted that Gina is currently a trustee within the meaning of the WA Trustees Act (pointing to the extended definition in s 6 of the Act) and that she is therefore entitled to all expenses reasonably incurred by her in discharging her obligation to deliver up the HMH Trust documents to the new trustee (Bianca).
2. Reference is made to the cases in which it has been recognised that this indemnity is "the necessary price to be paid if trustees are to be subjected to laborious trials for no reward"; in particular to what was said by Danckwerts J in In re Grimthorpe [1958] Ch 615 (In re Grimthorpe) at 623: … persons who take the onerous and sometimes dangerous duty of being trustees are not expected to do any of the work on their own expense; they are entitled to be indemnified against the costs and expenses which they incur in the course of their office; of course, that necessarily means that such costs and expenses are properly incurred ... The general rule is quite plain; they are entitled to be paid back all that they have had to pay out.
3. It is submitted that even if Gina were not a trustee within the meaning of the WA Trustees Act, she would nonetheless be entitled at general law to be indemnified out of the trust assets in respect of the costs of the present exercise. It is submitted that both authority and principle demonstrate that a former trustee can claim a right of indemnity over the trust assets for actions taken after removal.
4. In this regard, reference is made to Alphena Pty Ltd (in liq) v PS Securities Pty Ltd atf Joseph Family Trust [2013] NSWSC 447 (Alphena), where Kunc J held that a former trustee was entitled to be indemnified for the work undertaken by it after being removed as trustee to enforce its right to indemnity. His Honour rejected an argument against indemnification (put on the basis that the former trustee had ceased to be any kind of trustee and was engaging in a self-interested exercise which did not entitle it to remuneration from the trust assets on any basis "let alone the trustee basis" (at [52])), stating that: What then of PS Securities' submission that a former trustee should not be remunerated for its time and trouble in pursuing its right to indemnity against trust assets? In my opinion, pursuing the right to indemnity is itself part and parcel of the right itself. If, as is undisputed, the former trustee has a lien over the trust assets to secure its right of indemnity, I see no reason why in principle that right (and the consequent lien) should not extend to the costs of and incidental to the enforcement of that right. I have neither been referred to, nor found, any authority to the contrary.
5. Reference is also made to Park & Muller (liquidators of LM Investment Management Ltd) v Whyte [2015] QSC 287 (Park & Muller), where Jackson J held that the Court could make an order for indemnification in favour of a former trustee in respect of third-party claims (both as to liability and as to costs) brought against that trustee after his loss of office (although such an order was not ultimately made in that case) (see from [65]ff).
6. Reference is also made to the decision of Brereton J in Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd (2008) 74 NSWLR 550; [2008] NSWSC 1344, where his Honour (at [19]) held that "the right of indemnity accrues at the time the obligation is incurred" and "is not subsequently lost by cessation of office, whether by retirement or removal".
7. It is submitted that, consistently with Alphena and Park & Muller, that statement of principle can be understood in either or both of the following two ways (but that, on either way, Gina's obligation to produce trust records is an obligation that has now been incurred and one to which the right of indemnity now responds). First, in a broad sense that includes potential or contingent obligations and that the relevant obligations might be incurred during the trusteeship, but crystallise afterwards (referring to the obiter dicta of the Court of Appeal in Agusta Pty Ltd v Official Trustee in Bankruptcy as Trustee of Estates of Gustavo Ferella and Angelo Ferella [2009] NSWCA 129 at [20]-[21]); and hence the obligation to provide any new trustee with the trust documents existed at all times Gina was trustee. Second, that if the focal point is the time at which obligations are incurred in fact, the principle can be understood as involving an acceptance that the right of indemnity responds not only to obligations incurred during the trusteeship, but also to those incurred afterwards (provided they arise out of the former trusteeship).
8. It is noted that the plaintiffs accepted that "[t]he right of indemnity of course does not cease once a trustee leaves office", but that the plaintiffs suggest that the right is confined to cases where (i) the former trustee was not negligent in the administration of the trust, and (ii) the relevant acts and omissions took place while the trustee was still in office.
9. For Gina it is said that the first of those is dealt with under the law of trusts under the rubric of whether the expenses were "improperly incurred"; that question being relevant to the scope of the indemnity, in the sense of which expenses may and may not be recoverable under the indemnity; not relevant to the temporal question of whether actions subsequent to the retirement of a trustee may be covered by the right of indemnity (Gina repeating the reliance placed in this regard on Alphena, Park & Muller, and Lemery Holdings.)
10. As to the second, it is submitted that while Alphena concerned costs that had been incurred in pursuing an indemnity that had been wrongly denied to the former trustee ([52]), that was but one three categories of post-removal expenses that Kunc J allowed the liquidator of the former trustee to recover pursuant to its right of indemnity (the other two categories being the costs of defending a subrogation claim brought against it by a third party to the trust ([76]-[91]), and the reasonable costs of winding up the corporate trustee ([48]-[67]). It is noted that each of these categories related to actions of the former trustee that were entirely subsequent to its removal. Similarly, what Gina draws from Park & Muller is that Jackson J considered that the indemnity would respond not only to the former trustee's liability for actions while in office, but also to the costs incurred by the former trustee, after its removal, in defending proceedings brought against it in relation to that liability ([70]) (at odds, it is said, with the plaintiffs' submission that "no court has held that a former trustee can claim an indemnity from the trust for anything done after her removal as trustee". As to Lemery, Gina emphasises that the timing point is critical one and on either of the two possible readings of Brereton J's statement of principle that are consistent with Alphena and Park & Muller, the critical question is whether the liability is "trust-related" (see Agusta, at [18]-[20]), rather than the time at which it is incurred, and it is said that on either view Gina is entitled to be indemnified.
11. As to the plaintiffs' remaining objections to the indemnity orders sought, Gina makes the following submissions.
12. First, Gina cavils with the proposition that this question has been dealt with by Brereton J and says that Order 1 of the orders made on 2 February 2016 deals only with the "costs of the proceedings". It is submitted that the costs now sought to be the subject of the indemnity (which do not include past costs) are not "costs of the proceedings" and that the remark that his Honour made at the hearing points against the plaintiffs' position. It is noted that his Honour was aware of the existence of a controversy about the recoverability of Gina's costs of compliance, and yet framed his orders in terms that did not extend to that subject matter. Further, it is said that on 5 November 2018 Brereton J gave a contrary indication, intimating that his Honour had only determined the "costs of the motion" and that "costs of compliance" were "rather different from the costs of the motion" (referring to the transcript at T 2.25-45).
13. Gina notes that "the court construes [the orders] just like any other document. It does not delve into the subjective intention of the judge pronouncing the[m]" (citing Young CJ in Eq, as his Honour then was, in Radmanovich v Nedeljkovic [2002] NSWSC 212 at [7]) and submits that it is clear from the Costs Judgment that Brereton J was dealing with the costs of the litigation (and not dealing with future costs of complying with the orders to produce trust documents) because the decision is based upon an apportionment of hearing time on different issues in the litigation.
14. In response to the plaintiffs' arguments to the effect that trustees are responsible for the costs of the "suit for their removal and all proceedings consequent thereon", it is said that the expenses for which indemnification is presently sought are neither costs for the suit to remove Gina as trustee nor costs for proceedings consequent thereon within the meaning of Murdoch at 911; noting that Gina retired and was not removed by Court order. It is submitted that the task of handing documents over to a new trustee is separate to the issue of removal, and is a task that would fall to be performed irrespective of whether the circumstances in which the former trustee exited were happy or acrimonious. It is submitted that the costs do not "arise out of breach of trust", but were merely "incurred in the ordinary day to day management of it" (referring to Nolan v Collie at [52]).
15. In response to the plaintiffs' argument to the effect that Gina could not be entitled to a right of indemnity unless her costs were reasonably incurred, Gina places emphasis on the conclusion by Brereton J in the 2018 Decision that the approach taken by Mr Ross in conducting his searches on behalf of Gina was reasonable (although the definition of the categories of documents to be searched for was in error). It is submitted that that is precisely the kind of honest mistake that is not sufficient to preclude indemnification (noting that Gina only seeks indemnification for future costs, not for the costs incurred in producing the "vast amount of documents" which have already been produced to Bianca).
16. Further, it is said that although typically couched in positive terms of expenses being properly or reasonably incurred, the test is better understood as being that that the expenses are "not improperly incurred"; and it is submitted that trustees do not have an affirmative duty to establish the reasonable necessity of each and every expense before incurring them; rather, the onus is on those who would seek to demonstrate a lack of reasonableness to do so. It is submitted that in cases of doubt, the trustee's expenses should be borne by the trust, noting that in In re Beddoe Lindley LJ said at 558: I entirely agree that a trustee is entitled as of right to full indemnity out of his trust estate against all his costs, charges, and expenses properly incurred: such an indemnity is the price paid by cestuis que trust for the gratuitous and onerous services of trustees: and in all cases of doubt, costs incurred by a trustee ought to be borne by the trust estate and not by him personally. The words "properly incurred'' in the ordinary form of order are equivalent to "not improperly incurred.''
17. Gina submits that s 71 of the WA Trustees Act discloses no legislative intention to overturn this longstanding principle (but, on the contrary, is clearly designed to strengthen the right of indemnity by giving it the force of statute).
18. Insofar as it is said that Gina is not entitled to indemnification because the costs arise as a result of the intermingling of HMH Trust and HPPL documents, which is said to have been a breach of duty, Gina argues that it is only improperly incurred expenses in respect of which indemnification will not be available and that it is for Bianca to establish such impropriety (such as by establishing that the costs arose out of a sufficiently serious breach of trust) (citing Nolan v Collie at [51] and [53]). It is noted that in JW Broomhead (Vic) Pty Ltd (In Liq) v J W Broomhead Pty Ltd [1985] VR 891 at 936 it was said that "the beneficiary who gets the benefit of the trust should bear its burdens unless he can show good reason why his trustee should bear the burdens himself".
19. Gina submits that the context of the present case is that this is a family trust whose only substantial asset is its shareholding in HPPL and says that it is "only natural" that HMH Trust documents are intermingled with other documents. Gina emphasises that she has undertaken the role as trustee voluntarily and without payment and that the HMH Trust has had the benefit of utilising HPPL's facilities (most notably to store its records) for no cost for many years.
20. Further, Gina submits that Bianca's submissions have ignored the complexity of the delivery up task, given the effect of the 2018 Decision, and in particular fail to grapple with the "vexed question" of "use" of a document of which Gina had possession in some other capacity as trustee (see 2018 Decision at [47]-[49], [76]-[77], [111]). It is said that it is only due to categories such as "used" that it could be true that the usual trust records, which have already been produced could be described (as the plaintiffs have) as "but a small subset of the vast number of documents that comprise the records of this trust"; and complaint is made at the suggestion that a reasonable trustee, who had possession of a document in another capacity, would have been required to file that document for the trust.
21. It is submitted that in the absence of any evidence as to how the records should have been stored by a prudent volunteer trustee, it cannot be found that the storing of the trust documents in this way falls below the requisite standard. Further, it is submitted that in many respects the record-keeping has far exceeded what could be reasonable, extending back well beyond the seven year period in which records must be kept (see s 286 of the Corporations Act 2001 (Cth)); noting that, in any event, not all breaches of trust will disentitle a trustee from indemnification (referring to ASIC v Letten (No 17) (2011) 87 ACSR 155 at [17]).
22. It is submitted that the beneficiaries should bear the cost of production of these extensive trust records, particularly given that they have already been provided with the core HMH Trust documents, such as the accounts, bank statements, vouchers and tax returns.
23. In response to the plaintiffs' submission that orders should not be made until production is complete, it is said that that submission is directly contrary to the principle in In re Grimthorpe and other authority, noting the statement in Jacobs' Law of Trusts at [21-04] that a "trustee is not bound to pay out of his or her own funds and then recoup; instead the trustee may recoup to put himself or herself in funds to discharge the liability in question" (citing Re Blundell (1899) 40 Ch D 370 at 376-7; Savage v Union Bank of Australia Ltd (1906) 3 CLR 1170 at 1197; [1906] HCA 37; Re Suco Gold Pty Ltd (In Liq) (1983) 7 ACLR 873 at 878); and that there is no reason here to depart from that position. It is noted that the order sought by Gina extends only to reasonable costs, so that any contest in that respect can be dealt with in the usual way.
24. Insofar as the plaintiffs assert that, by resigning as trustee, Gina impliedly admitted "that she had engaged in egregious misconduct as trustee" in relation to the vesting date of the HMH Trust, it is said that: there are plainly innocent reasons why Gina may have chosen to resign as trustee, so that act cannot amount to an implied admission; the issue of the vesting of the HMH Trust was not determined by Brereton J (there were no findings and it was not necessary for evidence to be called about the matter); and (contrary to the plaintiffs' submissions) it is not the case that the PwC letter clearly stated that no capital gains tax was payable on vesting (referring to the 2015 Decision at [33]) and that there is no evidence that non-lawyers would understand the distinction between the trust vesting and the beneficiaries calling for their shares; and that even if such misconduct was admitted (which it is not) the breach could no longer be continuing because the trust vested on 30 April 2012 and Gina is no longer trustee. It is submitted that the costs incurred in transferring the HMH Trust documents from the outgoing trustee to the incoming trustee cannot be said to "arise out of" the alleged breach of trust in September 2011, which was no longer continuing by 30 April 2012; rather, it is said that this was one of the "vast majority of costs and expenses" which are "merely incurred in the ordinary day to day management" of the Trust (Nolan v Collie at [53]).
25. Gina also takes issue with other submissions of Bianca (such as the assertion that HPPL is Gina's "alter ego"; and that the plaintiffs are justified in not placing any faith in any contention advanced by Gina and that the likelihood is that Gina is deliberately withholding documents adverse to her interest. Insofar as the plaintiffs suggest that factual findings should be made based upon the 2015 Decision as to the circumstances in which Gina retired as trustee and her relationship with HPPL/HDIO, it is said that those paragraphs of the 2015 Decision relied upon by Bianca are no more than passing comments, cannot be used to establish facts for present purposes (see s 91 of the Evidence Act) and do not give rise to any issue estoppels. It is submitted that the reason why Gina retired is not relevant to the issues before the Court and that the costs of producing all trust documents to the incoming trustee would have been incurred irrespective of whether the circumstances in which the former trustee exited were happy or acrimonious.
26. As to the plaintiffs' submission that they are justified in not placing any faith in any contention advanced by Gina, the response from Gina is that this submission is irrelevant and not supported by [91]-[95] of the 2015 Decision, in which the shortcomings in Gina's original production are set out, but noting that at [101], Brereton J stated that he was not prepared to make a finding sought by the plaintiffs that Mrs Rinehart "has not made a good faith attempt at compliance", as his Honour was "not prepared to exclude the scale of the exercise and inadvertence as reasonably plausible explanations for the deficiencies".
27. As to the plaintiffs' submission as to the reasonableness of the costs not being established, it is said that "[s]hould the plaintiffs later seek to contend that some or all of the expenses incurred in the performance of the delivery up were not reasonably incurred, they can do so in the usual way" but that this is no reason to deny outright an entitlement to an indemnity for those expenses at the outset. It is submitted for Gina that the question of indemnity should not be deferred; it should be decided now for the reasons that: it is consistent with principle; Gina is entitled to proceed with the production exercise in the knowledge that she is indemnified from the trust fund and can recoup to put herself in funds to meet her expenses; and Bianca as the current trustee will know that the HMH Trust is liable for the costs that are being incurred and is obliged to put Gina into funds (subject to her right to re-coup any costs she is able to successfully contend were "improperly incurred").

Determination

1. The doubts expressed by the plaintiffs as to whether a former trustee can ever be entitled to an indemnity out of trust assets are not consistent with the authorities to which Gina has referred (i.e., Alphena and Park & Muller). Nor, in my opinion, do they accord with the recognition that the duty or obligation on the part of Gina to deliver up the documents of the trust is one that is incidental to and consequential upon her position as a former trustee. There seems to me to be no logic in the proposition that a trustee should be indemnified against costs and expenses incurred in the course of the trustee's office as trustee but that, although the trustee has an obligation to deliver up the trust documents and records to an incoming trustee, the trustee should not be indemnified out of the trust assets for the cost of attending to that obligation.
2. It is not necessary in this regard for Gina to establish that she is a trustee within the meaning of the WA Trustees Act (which I have addressed but have not finally determined above) nor whether she is in the position of constructive trustee in possession of trust documents, because in my opinion the right of indemnity would extend to an indemnity in respect of the performance of obligations consequential to Gina's retirement as trustee (and arising as an incident of her office as trustee having come to an end).
3. I do not read Brereton J's Costs Judgment as having dealt with the question of costs of the future steps to be taken in relation to the production of trust documents; they were confined to the costs of the proceedings then before his Honour. Nor do I see it as necessary for the meaning of those costs orders to be clarified by his Honour in circumstances where Gina is not seeking orders in relation to the past costs of production but simply the cost of production going forward.
4. As to the proposition that Gina is disentitled to an indemnity in respect of the costs of production of the HMH Trust documents because of misconduct on her part, the circumstances in which she retired as trustee and the history of the litigation before Brereton J do not in my opinion inform the question as to whether she is entitled to an indemnity for the costs of future production. Costs of the delivery up of the trust documents are not costs that arise from any breach of duty by Gina as trustee in relation to contentious matters such as the vesting of the trust; nor am I persuaded that there should be any finding at this stage as to any breach of duty in the manner in which the trust documents were stored or filed. If, in due course, allegations of breach of trust in that regard are made and substantiated, then steps may be taken in relation to the recovery of any amounts now paid for the costs of production of documents established to have been caused by that breach of trust. (In this regard, I note that Gina submits that insofar as she is now only seeking indemnity for the future expense of complying with the 2015 Orders and 2018 Orders, it can safely be assumed that the past costs which will be borne by her personally account for any inefficiencies encountered by the intermingling of records.)
5. What is clear is that costs (and it would seem significant costs) will likely be incurred in production of the HMH Trust documents. In accordance with the principle in In re Grimthorpe, a trustee (by now, admittedly a former trustee) should not be required in the first instance to incur those costs and then seek later to recoup those costs out of the trust assets; rather, she should be indemnified now for those costs (subject to the possibility that in due course if it be found that the costs arose out of a breach of trust disentitling her to such an indemnity then she may be required to reimburse those costs).
6. As to the submissions for the plaintiffs that an order of this kind would visit unfairness on them, it should be noted that in a number of respects the need for such significant costs to be incurred arises from the insistence of Bianca (as she is, as trustee, entitled to insist upon) on the complete production of an enormous amount of documentation. Insistence upon the complete production of all personal communications between Gina and her children, to the extent those fall within the definition of "Trust documents", is but one example. Bianca's position is that Gina is required by the 2015 Orders, as clarified by the 2018 Orders, to produce all trust documents and that (given the information asymmetry, among other things) she cannot fairly be asked to comment on the adequacy of the categories of documents required to be reviewed for the purpose of compliance with those orders. As I have said earlier, so be it. However, it seems to me to be inconsistent with authority and principle to require Gina to bear the cost of such an exercise at least in the first instance, and the making of such an order does not preclude Bianca from making submissions in due course to vary such an order.

HPPL/HDIO's notice of motion

1. HPPL/HDIO's 12 April 2019 notice of motion seeks, in effect, a direction that they not be required to comply with any direction from Gina regarding compliance (or Gina be relieved from 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 2018 Orders with respect to documents relevant to the Federal Court Proceedings (i.e., Federal Court of Australia proceedings NSD 1124 of 2014), WA Proceedings (i.e., Supreme Court of Western Australia proceedings CIV 3041 of 2010 (consolidated with CIV 2617 of 2012) and CIV 2737 of 2013) or any arbitration in which the same allegations are litigated, until the earlier of three alternative dates (as set out in the notice of motion).
2. Their primary position is that their motion ought not be determined now because the documents the subject of the motion are presently unknown and will not be known until Gina confirms that she received or held particular documents in her capacity as a director of HPPL and/or HDIO and "used" them in the administration of the HMH Trust.
3. It is noted that in the 2015 Decision (at [366]), Brereton J reserved liberty to (at least) Gina to be relieved of an obligation to deliver-up "any particular document" on the ground that it is one to which the plaintiffs and the new trustee were not entitled. It is submitted that his Honour's reference to "any particular document" should be read as a requirement that the liberty be exercised in relation to specific documents, not in the abstract. HPPL and HDIO further note that, in the 2018 Decision, Brereton J emphasised the difficulty of discharging the relevant evidentiary burden in the abstract and in the absence of evidence, stating at [75]: … [W]hile the Court has a discretion to direct that documents or information not be supplied where satisfied that that is the appropriate course, the onus lies on the outgoing trustee to show why that discretion should be exercised. A mere unproven assertion that there are among the trust documents some which are confidential or contain private information does not begin to discharge that onus. Insofar as the first defendant's claim is based on "privacy" or "confidentiality", no basis has been shown for depriving the replacement trustee on those grounds of trust documents to which she is prima facie entitled.
4. HPPL and HDIO point out that the Court of Appeal similarly noted the "fundamental" difficulty in formulating the test as to what should be provided to an incoming trustee in a vacuum, Basten JA and Simpson AJA (in the 2019 Appeal Decision) citing with approval at [36] the following passage from the English Court of Appeal in Tiger v Barclays Bank Ltd [1952] 1 All ER 85: As the argument proceeded it became increasingly apparent to us that it was really impossible to evolve in vacuo and without evidence as to the particular documents in question in this particular case any general formula adequately defining the more restricted obligation as to the production of documents which the bank would have us substitute for the obligation imposed by the order under appeal.
5. It is noted that their Honours then made the following observations: [37] …Tiger illustrates with clarity the fundamental difficulty of formulating a test as to what should be provided to an incoming trustee and what should not, in a vacuum, and without reference to specific documents. … … [41] The attempt to formulate an abstract description of a category of documents which might fall within a subparagraph of order (1)(a) and assert overreach is, in effect, an invitation to this Court either to reformulate the orders in the abstract and without evidence or, in the alternative, to undertake that task by reference to a specific document or class of documents. The former exercise is fundamentally misconceived for the reasons explained in Tiger; the latter exercise is one which should be undertaken in the Court below under the liberty to apply. … [46] … The ultimate question in each case will be whether the companies are entitled to assert ownership in a particular document or class of documents as against the Trust. … Significantly, the companies' submissions with respect to ground 2 commenced "[i]f any of the databases … to which order 3 relates contain documents owned by [the companies], his Honour disregarded [the companies'] property rights in those documents". The court is thus asked to address the question by reference to an hypothetical situation. As noted above, the alternative is to address the situation by reference to evidence and thus undertake precisely that exercise which should have been the subject of liberty to apply. [emphasis added]
6. It is submitted by HPPL/HDIO that, while the above observations relate to the scope of the delivery up obligation itself, they apply equally to the exercise of a discretion to be relieved of the delivery up obligation (because any exercise of the discretion to be relieved of a delivery up obligation is ultimately an extension of, or the final step in, the delivery-up process itself).
7. Consistent with the above authorities, HPPL and HDIO submit that their notice of motion should not be heard in the abstract. They argue that relief sought should only be determined by reference to evidence of particular documents or classes of documents; and that that exercise cannot be undertaken now because Gina has not yet identified documents falling within the scope of Order 1(a)(iv). In the absence of knowing what (if any) documents are caught by Order 1(a)(iv), it is submitted that HPPL and HDIO cannot "in a concrete manner" identify the particular basis or bases on which they seek relief in relation to particular documents or classes of documents (and this is the explanation proffered for the generality of the identification in the order sought in their notice of motion of documents "relevant to" the said proceedings or any arbitration involving the same allegations).
8. It is said that, once specific documents falling within the scope of Order 1(a)(iv) are identified, HPPL and HDIO will be in a position to identify, with greater precision, why particular documents or classes of documents relevant to the Federal Court Proceedings, the WA Proceedings or any arbitration should be excluded from the scope of the delivery-up order on discretionary grounds. More particular reasons could, it is said, potentially include legal professional privilege, or where the giving of a direction by Gina to HPPL or HDIO would place Gina in a position of conflict between her obligation as a director to act in their best interests on the one hand, and her obligation to comply with the delivery-up orders on the other.
9. It is therefore submitted that the most appropriate time to hear the notice of motion is after a sufficient sub-set of the documents in question have been collated and identified as responding to Order 1(a)(iv) so that it can be determined by reference to concrete examples. It is submitted that so doing would not add materially to the delivery-up timeframe; instead, once Gina has identified a tranche of documents falling within the scope of Order 1(a)(iv), HPPL and HDIO should be given a reasonably short timeframe in which to serve evidence and then move on the motion to be relieved of any obligation to comply with a direction from Gina to produce those documents. It is said that if no such application is made, or the application is unsuccessful, the documents could be disclosed immediately.
10. In the alternative, if the motion is now to be determined, HPPL and HDIO submit that the they ought not be required to deliver-up their documents to Bianca via Gina (at least until the earliest event listed in HPPL's notice of motion occurs) in circumstances where Bianca is separately suing HPPL and HDIO for most, if not all, of their assets in other proceedings.
11. Insofar as a query was raised during the directions hearing on 4 April 2019 (at T 22.36) by Counsel for the plaintiffs as to their standing to make an application for dispensation (because they were not the subject of any kind of order), and again raised in a letter dated 18 April 2019 from Bianca's solicitors to HPPL and HDIO's solicitors, HPPL and HDIO's position is as follows.
12. First, it is said that HPPL and HDIO are parties to the proceeding; and they "own" the documents the subject of the notice of motion and consequently are necessary parties (their rights being affected). While it is accepted that HPPL and HDIO are not the direct subjects of the delivery-up order, they note that the orders require Gina to take steps to obtain HPPL and HDIO's documents (or at least copies of them) and deliver them to Bianca. It is submitted that HPPL and HDIO have standing to seek relief from the practical consequences of the delivery-up orders in circumstances where: they are already parties to the proceeding; they own the documents in question; and the orders require Gina to cause them to produce their documents for the ultimate purpose of being delivered-up to a litigant who, as noted above, is suing HPPL and HDIO for most, if not all, of their assets in other proceedings.
13. Second, it is said that Order 4 of the 2018 Orders granted liberty to apply to all parties to the proceeding (noting that the Court of Appeal accepted that this includes HPPL and HDIO - see the 2019 Appeal Decision at [61]); and that the liberty to apply extends to "any" difficulty arising in the "interpretation, application or implementation" of Brereton J's orders. It is said that HPPL/HDIO's motion which seeks, in effect, temporary relief from compliance, relates to the "application" or "implementation" of his Honour's orders.
14. As to the timing of the notice of motion, and the suggestion made by the plaintiffs' Counsel during the directions hearing on 29 April 2019 that such an application ought to have been brought following the original delivery-up order in May 2015 (and, as a consequence, might be the subject of an Anshun estoppel), HPPL and HDIO say that there was no reason, or legal basis, for HPPL and HDIO to seek dispensation prior to the issuance of Order 1(a)(iv) on 5 November 2018. They say (and it is hard to argue against the logic of this) that power to dispense with compliance with Order 1(a)(iv), or with compliance with a direction issued by Gina pursuant to Order 1(a)(iv), only arose once the order had been made.
15. It is noted that the original delivery-up order required Gina to deliver up to Bianca all "documents of the Trust in her possession, custody or power" (see the 2015 Decision at [365], and Order 3). It is said that the order extended only to trust property (that is, documents in which the HMH Trust had a proprietary interest - see at [365]) which were in the possession, custody or power of the outgoing trustee. It is said that there was, at that time, no suggestion that it included the documents now caught by Order 1(a)(iv) of the 2018 Orders; nor did any other aspect of his Honour's reasons suggest that HPPL and HDIO's property interests were affected by the delivery up order. (They say that, contrary to her current position, Bianca apparently shared HPPL and HDIO's view that their property rights were not affected by the original delivery-up order, since Bianca did not name HPPL or HDIO as parties affected in the motion that ultimately led to the making of Order 1(a)(iv)).
16. HPPL and HDIO say that the 2018 Orders, for the first time, affected their rights by "expanding" the scope of the delivery up order (via Order 1(a)(iv)) to include documents: which are owned by HPPL and HDIO; in which the HMH Trust has no proprietary interest; which are not in Gina's possession; and which require Gina to use her "non-trustee powers" to obtain. It is submitted therefore that no application for dispensation from Order 1(a)(iv) (or from any direction issued by Gina pursuant to Order 1(a)(iv)) could have been sought prior to 5 November 2018 when the order was first made.
17. In any event, for the reasons already put forward in support of their submission that the hearing of the notice of motion should be stood over, they say that there was (and remains) at least an element of prematurity; arguing that, without identification of particular documents the subject of Order 1(a)(iv), there is either no occasion or an incomplete factual foundation for HPPL and HDIO to seek dispensation.
18. As to the suggestion that an Anshun estoppel might apply, HPPL and HDIO maintain that an Anshun estoppel can only arise between two separate actions (citing Anshun at 597-603 per Gibbs CJ, Mason and Aickin JJ) noting that in this case the original delivery up order, the 2018 Orders, and the present notice of motion, all form part of the one proceeding. Further, it is noted that the 2018 Orders are interlocutory and that the Court retains control over its orders and the power to vary the orders (Brimaud v Honeysett Instant Print Pty Limited (1988) 217 ALR 44 at 46). It is said that there is a further reason for that conclusion, namely that liberty to apply was reserved and that the Court of Appeal has held that liberty to be available to HPPL and HDIO. It is said that the Court of Appeal's reasons, in this respect, are consistent with the object of an order for liberty to apply (Abigroup Limited v Abignano (1992) 39 FCR 74 at 88) and it is that type of permissible order which is sought in the notice of motion filed by HPPL and HDIO.
19. As to why their motion, if determined now, should be granted, HPPL and HDIO submit the following.
20. First, they invoke the Court's discretion to relieve a party from producing documents where it is satisfied that is the "appropriate course"; referring to the 2018 Decision at [39] and [41], citing In the matter of the Bird Charitable Trust at [29]. It is noted that Order 4 of the 2015 Orders expressly reserved to Gina liberty to apply to be relieved from the delivery up order in respect of any particular document or class of documents. It is said that that position applies a fortiori where the delivery-up order now requires the provision of a third party's (HPPL or HDIO's) documents.
21. Second, as noted already, that Bianca, in her personal capacity, is suing HPPL and HDIO for most, if not all, of their major assets in the Federal Court Proceedings, the WA Proceedings and related arbitrations. It is said that those "existential threats" place HPPL and HDIO in an entirely different position to Gina when considering the effect of Order 1(a)(iv). It is noted that, as things presently stand, Gina can direct HPPL and HDIO to disclose their documents for delivery up to Bianca in her capacity as trustee "without any of the basic protections and limitations that would form part of the usual discovery process (such as the right to assert privilege or the protection of the Harman undertaking), and despite the fact that [Bianca] in her personal capacity is suing them for all of their major assets". It is submitted that those circumstances warrant the temporary dispensation sought by HPPL and HDIO in the notice of motion.
22. Third, that (although they maintain that the precise legal basis of Bianca's right to obtain HPPL and HDIO's documents pursuant to Order 1(a)(iv) is unclear) any such right is not absolute and can give way to HPPL and HDIO's rights where that is the "appropriate course" (referring to the 2018 Decision at [39], [41]). They say that it is unclear whether Brereton J considered the right to be proprietary in nature (referring to his Honour's reasons at [43] as suggesting that might be the case but submitting that if that were so, then Order 1(a)(iv) would be redundant as the documents would be captured by Order 1(a)(i) or 1(a)(iii) instead). It is said that the Court of Appeal similarly did not identify the legal basis of the right: that Basten JA and Simpson AJA suggested that Order 1(a)(iv) might not deprive HPPL and HDIO of their ownership rights, but that the incoming trustee nevertheless had a right (presumably in personam in nature) to obtain a copy of the documents from the outgoing trustee (referring to the 2019 Appeal Decision at [38], [46] and [49]). It is submitted that "that the appropriate course is not to allow an innominate right of inspection to cut across HPPL and HDIO's property rights where the result would deliver HPPL and HDIO's documents to a hostile litigant outside of the constraints of the usual discovery process".
23. Fourth, HPPL and HDIO submit that the notice of motion should at least be granted in relation to two categories of documents: first, documents over which HPPL or HDIO have a claim for legal professional privilege; and, second, documents that Gina could only direct HPPL and HDIO to produce for delivery up to Bianca from a position of conflict.
24. As to the first such category, it is submitted that the absence of specific examples does not preclude the Court from temporarily relieving HPPL and HDIO of any future obligation to produce documents which are subject to legal professional privilege; and that what is contemplated is that HPPL and HDIO would produce an index of any such documents so Bianca will have an opportunity to test whether the excluded documents are in fact privileged (such a process operating in essentially the same way that privileged documents are treated in the discovery process).
25. As to the second such category, it is submitted that HPPL and HDIO should also be relieved from any obligation to produce documents where doing so would be against the companies' interests. It is submitted that this limitation is justified because it appears that Gina is required to use her powers as a director of HPPL and HDIO to direct that the documents be produced (it being said that no other source of the power is identified). It is noted that Gina is also required, as a director of HPPL and HDIO, to act in good faith in HPPL and HDIO's best interests. It is said that if Gina was obliged to direct HPPL or HDIO to produce documents against their interests (for example, because the documents were potentially adverse to HPPL or HDIO's interests in any proceeding in which Bianca claims ownership of HPPL and HDIO's assets), that would place Gina in a position of conflict. To protect HPPL and HDIO against the consequences of this conflict, it is submitted that the appropriate course is either to relieve Gina of the obligation to direct HPPL and HDIO to produce documents contrary to their best interests, or to relieve HPPL and HDIO from any obligation to comply with such a direction from Gina.

Plaintiffs' submissions on the HPPL/HDIO motion

1. The plaintiffs resist the relief here sought and say that HPPL/HDIO has not identified any particular document that gives rise to concern. Insofar as HPPL/HDIO's primary position is that its motion should be stood over to a future date, when it will have identified concrete documents in respect of which it seeks dispensation, the plaintiffs say that if HPPL/HDIO (having chosen to bring forward its motion now) has been unable to identify any document relating to other proceedings in respect of which it needs dispensation, despite having been involved in the task of collating and reviewing documents for some months, "that is its own fault"; and that the motion should be determined now (and should be dismissed).
2. The plaintiffs say that there is no basis for HPPL/HDIO's motion, since the orders made in May 2015 and November 2018 do not require HPPL/HDIO to do anything (rather, they require Gina to produce HMH Trust documents, and to verify production on oath). It is submitted that Gina, as the executive chairman and majority shareholder of HPPL, has the ability to compel HPPL to make those documents available to her for that purpose and thus the documents are within her "control" but that this is a matter between HPPL and Gina.
3. As to the submissions made for HPPL/HDIO to the effect that were it (through Gina) to be compelled to produce documents to the plaintiffs which are relevant to other proceedings this would be "without any of the basic protections and limitations that would form part of the usual discovery process", the plaintiffs say that this is no reason to "truncate" Bianca's right, as new trustee of the HMH Trust, to HMH Trust documents (submitting that Brereton J's reasons made clear that this is a proprietary right).
4. The plaintiffs argue that, by operation of the principles of Anshun estoppel, HPPL/HDIO cannot now seek relief which ought to have been sought before Brereton J, noting that: HPPL was a party to the proceedings and did not seek to take part in the hearing of the September 2015 Motion; HPPL was on notice of the issues raised by the plaintiffs on the September 2015 Motion and could have sought to participate (as, it is said, the Court of Appeal recognised); and that HPPL made but then withdrew its objection to Bianca's appointment as trustee on the basis that she was a party adverse to HPPL and its interests.

Determination

1. I am of the view that the application by HPPL/HDIO for temporary dispensation from the relevant orders should not be finally determined at this stage. I am conscious of the observations made in the Court of Appeal as to the abstract nature of any consideration of issues without reference to particular documents or classes of documents and I do not consider that it is appropriate to proceed on the basis suggested by the plaintiffs that, in the absence of concrete examples, I should simply dismiss the notice of motion.
2. Nor do I consider that there is an Anshun estoppel that is here applicable (although I do not accept that such an estoppel could not have arisen in the same set of proceedings, as I have noted earlier). As is clear from the dispute that arose (and was determined in 2018) as to what constituted a trust document, it could not be said that HPPL and HDIO were on notice back in 2015 that their interests might be affected by the orders that were there being sought - those orders being referable to "trust documents", which expression was considered by Mr Ross (albeit wrongly) not to include documents of the kind now covered by Order 1(a)(iv). I do not consider it to have been so unreasonable for HPPL/HDIO not to have raised an application for temporary dispensation in 2015 (from orders yet to have been made) in relation to documents that they would not necessarily have appreciated at that stage were or would be held to be "Trust documents".
3. Were I to have considered the substance of the notice of motion at this stage, I would have been inclined to permit a temporary dispensation of the kind sought by HPPL/HDIO, not least because of the importance placed at common law on the fundamental principle of legal professional privilege but also because I consider that the question as to whether Bianca, as the new trustee, would be entitled to production to her of documents relevant to proceedings in which she has or may have an adverse personal interest to that of the trust estate (and to that of HPPL/HDIO) is an issue on which more considered argument would be warranted. As it is, however, I do not here proposed to explore the issues raised by the HPPL/HDIO motion any further.

Conclusion

1. For the above reasons, I make the following orders: 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.
2. I consider that costs of the respective notices of motion be reserved at this stage because there has been mixed success on the respective applications and because ultimately the costs of one or other of the motions might be influenced by the outcome of the review process.
3. Finally, I will stand the matter over for directions in a few weeks' time to enable consideration by the parties of the appropriate timeframe for compliance with various of the orders (and, to the extent possible, production of the HMH Trust documents in tranches to minimise further delay).

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: 25 October 2019