Supreme Court New South Wales

• Medium Neutral Citation: Welker & Ors v Rinehart & Anor (No 7) [2012] NSWSC 222
• Hearing dates: 6 March 2012
• Decision date: 06 March 2012
• Jurisdiction: Equity Division
• Before: Ball J

Decision

See paragraphs 6 and 7 of this judgment

• Catchwords: PROCEDURE - Application for leave to reopen - whether new evidence credible, highly probative and previously unobtainable - held not credible or highly probative
• Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW)
• Cases Cited: The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132
• Category: Procedural and other rulings
• Parties: Hope Rinehart Welker (First Plaintiff); John Langely Hancock (Second Plaintiff); Bianca Hope Rinehart (Third Plaintiff); Gina Hope Rinehart (First Defendant); Ginia Hope Frances Rinehart (Second Defendant); Australian Broadcasting Corporation, Fairfax Media Publications Pty Ltd, Nationwide News Pty Ltd (Media Interests)
• Representation: Mr D F C Thomas (Plaintiffs); Mr M Walton SC (First Defendant); Mr F Kunc SC (Second Defendant); Mr D R Sibtain / Ms F T Roughley (Australian Broadcasting Corporation, Fairfax Media Publications Pty Ltd, Nationwide News Pty Ltd); Johnson Winter & Slattery (Plaintiffs); Corrs Chambers Westgarth (First Defendant); Gadens (Second Defendant); Addisons (Australian Broadcasting Corporation, Fairfax Media Publications Pty Ltd, Nationwide News Pty Ltd)
• File Number(s): 2011/285907

EX TEMPORE Judgment

1 Yesterday afternoon my associate gave notice to the parties that I intended to deliver judgment in this matter at 10 am this morning. Immediately before delivering judgment, the first defendant, Mrs Rinehart, has made an application to reopen her case. The application to reopen the case is put on the basis of an affidavit sworn by a Mr Adrian Francis, who is a security risk and investigations advisor and trainer based in Western Australia.

2 In his affidavit, Mr Francis gives evidence of an unsolicited conversation he had with a person in Dubai on the afternoon of 28 February 2012. During the course of that conversation, the person who approached Mr Francis made reference to Mrs Rinehart and the fact that she was the richest woman in Australia. He is said to have gone on and said:

She says she is in danger and they laugh at her. I read this.

Later on, the person who approached Mr Francis is reported as saying:

Let me say my friend that she is not safe and maybe you know the people that are protecting her. Maybe you should talk to them. Maybe they need more training.

3 Mr Francis says that following the conversation he reported the contents of it to the police in Western Australia.

4 The first defendant says that this is further evidence that she is at risk and that that is a matter that ought to be taken into account by me in determining whether to make the order sought by her.

5 In order for the first defendant to succeed in the application to reopen she must establish that the additional evidence that she seeks to lead is "credible, highly probative and not previously obtainable": see The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132 at [4] per Einstein J.

6 I am not satisfied that the evidence in this case is either credible or highly probative. The threat or so-called threat simply comes from an anonymous person who Mr Francis met in the street. It is no different from any sort of threat or adverse comment that may be made against or about a person on a website or a blog or similar social media sites. In addition, the evidence does not establish any connection between the threat that is said to have been made and the need, therefore, to make a non publication order in accordance with the Court Suppression and Non Publication Orders Act 2010. This is an issue that I deal with in more detail in my judgment.

7 For those reasons I am not prepared to accede to the first defendant's application.

**********

Decision last updated: 16 March 2012