26 September 2013


Another round in the Hancock wars, with the Supreme Court of New South Wales in Hancock v Rinehart [2013] NSWSC 1402 granting an interlocutory application by the children of minerals and media mogul Gina Hope Rinehart - Australia's richest woman - for access to documents produced under subpoena by a non-party.

Plaintiffs John Langley Hancock and Bianca Hope Rinehart served a subpoena on PricewaterhouseCoopers (PWC) dated 6 August 2013. PWC is not a party to the dispute. The subpoena appears to relate to advice by PWC to Rinehart and one of the companies she controls regarding the supposed tax liabilities facing her children if a family trust vested at a particular time. That advice was reportedly referred to by one of Rinehart's executives in contact with John Hancock. (Hancock appears to have received strikingly different advice from the Australian Taxation Office.)

PWC produced documents to the Court on 16 August 2013. First access was granted to Rinehart as defendant. Rinehart objected to the plaintiffs being granted access to redacted portions of the documents produced by PWC. Her children sought access to the documents.

They made several contentions, arguing that Rinehart -
  • failed to discharge the onus of proving that the redacted portions of the documents are in fact privileged.
  • waived privilege in the documents by her "positive assertion about a state of mind to which legal advice was likely to have contributed"
  • is not entitled to claim privilege over the documents vis-a-vis the beneficiaries on the basis that she, as trustee, and the plaintiffs, as beneficiaries, have a joint interest in any advice obtained by the trustee
  • waived privilege by her conduct in disclosing the legal advice to PWC and by relying upon it in the letter of 3 September 2011
The NSWSC held that Rinehart waived privilege in the redacted portions of the documents produced and that it was appropriate access to the documents should be given to the applicants.

Onwards to the next stage of the dispute, with a hearing scheduled for next month. Journalists, legal practitioners and academics remain agog.