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  • Where a client wishes to object to a subpoena that ‘catches’ allegedly privileged documents, it is important that the objections be made prior to the material being produced to court.
  • Although there are some situations in which recourse to the disputed documents themselves (if produced) may be justified in order to assert a claim of privilege, the ‘default position’ is that the claim should be proved by means other than the documents themselves.
  • Ideally, that will comprise testimonial evidence from persons with direct knowledge of the relevant facts and circumstances in which the documents were created.

The long running litigation between members of the Rinehart family has recently produced a judgment that has potentially broad application. Although interlocutory, the decision in Hancock v Rinehart (Privilege) [2016] NSWSC 12 (‘Rinehart’), deals with a common practice issue – disputes over privileged material – and suggests that the way in which subpoenae are commonly answered poses a real risk of inadvertent waiver of privilege.

The short facts

This case related to a subpoena issued by Bianca Rinehart, the second plaintiff, (‘the plaintiff’) for production of certain documents relating to the ‘Hope Margaret Hancock Trust’ (‘the Trust’).

The plaintiff had, as a result of earlier orders, become trustee of the Trust, in place of her mother Gina Rinehart (‘the defendant’). It was not contentious that the plaintiff was entitled to any trust documents since, as the trustee she had the same entitlement to them as did the former trustee (the defendant) The defendant contended however that some of the documents falling within the ambit of the subpoena were privileged on the basis that they had been prepared for the purpose of her personally obtaining legal advice, or to conduct anticipated or pending litigation (as opposed to in her capacity as trustee).

The two underlying issues to be answered were therefore whether the disputed documents were trust documents or ‘personal’ documents; and if they were personal documents, were they privileged from production?

The defendant contended (at [4]) that, because there was actual or pending litigation in the Supreme Court of Western Australia (WASC) at the time the disputed documents were created, the Court could be satisfied that they were brought into existence in connection with those proceedings and were therefore privileged.

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