Hancock v Rinehart [2013] NSWSC 1998

Procedural Posture

Interlocutory Applications in the Equity Division Corporations List Concerning Discovery, Notices to Produce and Subpoenas / Ex Tempore Decision on Notices of Motion Heard on 3 December 2013

Legal Issues

1. 1 ['Whether discovery should be ordered of documents concerning agreements between the first defendant and the second or third defendants restricting their support for a replacement trustee.' 'Whether plaintiffs should have leave to issue subpoenas for production to proposed managing trustees.' "Whether the second defendant should obtain discovery from the plaintiffs concerning the second plaintiff's impartiality and the independence of proposed advisory trustees." 'Whether the second defendant should have leave to issue subpoenas to named persons, including proposed advisory trustees and referees.' "Whether notices of motion concerning plaintiffs' notices to produce to the fourth and third defendants should be dismissed because the notices to produce were not pressed." "Whether further discovery should be ordered against defendants concerning any agreement, arrangement or understanding with the first defendant constraining the second or third defendants' wishes about a proposed replacement trustee."]

Ratio Decidendi

The wishes of the beneficiaries as to a replacement trustee, and the weight to be given to those wishes, were relevant issues in the proceedings; therefore whether the second or third defendants' wishes were freely expressed or constrained by agreement, undertaking, arrangement or understanding with the first defendant was a fact in issue justifying discovery. Discovery from the plaintiffs was also necessary on issues concerning the second plaintiff's animus and any pre-existing relationship or arrangement with proposed advisory trustees, but not for documents about Bruce Carter because he was no longer proposed as trustee and that category did not relate to a live issue. Leave to issue...

Court Disposition

Orders made for discovery and leave to issue subpoenas; third and fourth defendants' motions dismissed; costs to be borne by each party.

Orders

• ['The first, second, fourth and fifth defendants give discovery to the plaintiff of all documents within the classes in annexure A to the plaintiffs\' motion, subject to deletion from paragraph 1.3 of the words "or National Australia Bank Limited", deletion of subparagraph 1.4 and deletion of subparagraph 2.3.' 'The...