04 November 2015
by Marianna Papadakis
Gina Rinehart refuses to hand over documents
Mining billionaire Gina Rinehart is refusing to hand over documents to her eldest children in court proceedings over a $5 billion family trust, claiming they were part of private communications with her lawyers, a court has heard.
The documents Mrs Rinehart has sought to protect include communications with two of her former barristers Allan Myers, QC, and John Gilmour, who is now a Federal Court judge, as well as Perth law firm Sceales.
Mrs Rinehart's eldest children Bianca Rinehart and John Hancock claim their mother is failing to comply with court orders that she hand over all documents and communications concerning a family trust, called the Hope Margaret Hancock Trust of which Bianca was appointed trustee on May 28.
The trust holds a 23.4 per cent share in the lucrative family mining company Hancock Prospecting on behalf of Mrs Rinehart's four children.
Mrs Rinehart voluntarily relinquished the role of trustee in October 2013 during bitter proceedings over control of the trust.
Mrs Rinehart's barrister Bruce McClintock, SC, said the communications and documents had nothing to do with the administration of the trust but rather concerned advice provided to Mrs Rinehart in 2006 for the purpose of Mr Hancock's then threatened litigation against his mother for breach of duties in relation to the trust.
Mrs Rinehart was found not to have breached any duties as trustee in the May judgment.
Mr McClintock said emails on July 31, 2006, between Hancock Prospecting general counsel Terry Solomon and Mr Gilmour should also be excluded on the basis the children's legal team inadvertently came into possession of them.
But Justice Paul Brereton refused to deny the children access to the emails, saying they were among evidence submitted by Bianca Rinehart's lawyers as part of a separate court dispute in 2006 and no claim for privilege had been sought concerning them since then.
Justice Brereton said it was unsurprising Bianca and her legal team came into possession of the emails given Bianca was aligned with her mother at the time. Bianca later switched her allegiance to her brother.
Mr McClintock said the judge could review the remaining documents and communications in order to determine if they were part of advice given to Mrs Rinehart in a personal capacity and not in the role as then trustee, and were therefore, protected by legal privilege.
Mr McClintock said Mr Solomon was now dead and Mr Myers could not seriously be required to provide evidence of advice given 10 years ago.
"No one will have a sufficient factual recollection," he said.
But Mr Withers said it could be "wholly unfair" and prejudicial to the children if the judge reviewed the documents and would throw out existing law that requires affidavits to support a claim for legal privilege.
It was a tactical decision by Mrs Rinehart not to provide an affidavit concerning the documents because she sought to avoid being cross-examined, Mr Withers said.
"There is no meaningful evidence describing the documents or the reasons for their creation," he said.
He said Mrs Rinehart retained Sceales and Co to deal with various piece of advice concerning the trust but the firm provided no advice to Mrs Rinehart concerning the allegations brought by Mr Hancock. And the cost of Mr Gilmour's advice was charged to the trust accounts.
Mr Myers most recently represented the Rinehart family and its industry rival Wright Prospecting in their win in October against Rio Tinto over royalties from two mines in Western Australia's Pilbara region. He continues to represent the Wrights.
Justice Brereton reserved his decision.