Supreme Court New South Wales

• Medium Neutral Citation: Welker & Ors v Rinehart & Anor (No 2) [2011] NSWSC 1238
• Hearing dates: 23 September and 7 October 2011
• Decision date: 07 October 2011
• Jurisdiction: Equity Division - Duty List
• Before: Brereton J

Decision

First and second defendants' motions dismissed with costs.

Interim suppression order made pending application for leave to appeal pursuant to (NSW) Court Suppression and Non-Publication Orders Act, 2010, s 10, and alternatively pursuant to the inherent jurisdiction of the court, upon the ground referred to in s 8(1)(a) of that Act, that such order is necessary to prevent prejudice to the administration of justice, prohibiting disclosure by publication or otherwise of information as to any relief claimed in the proceedings or any pleading evidence or argument filed read or given in the proceedings.

Such order has effect, subject to revocation by this Court, until the expiration of 7 days from the date on which my written reasons for judgment given orally on 7 October 2011 are published on the Court's website, and thereafter if within that period the first defendant or second defendant has filed a summons for leave to appeal until the determination of that application or further order of this Court or of the Court of Appeal.

Pursuant to s 9(4), this order does not prohibit:

(a) Disclosure or publication of any judgment given in these proceedings to date nor of any orders made in the proceedings.

(b) Pursuant to s 11, it is specified that this order applies throughout the Commonwealth of Australia.

(c) Disclosure to Hancock Prospecting Pty Ltd nor to the professional advisers and potential witnesses or funders of any party to the proceedings (including Hancock Prospecting Pty Ltd), in every case only for the purposes of the proper conduct of these proceedings and/or the proposed appellate proceedings and provided that prior to such disclosure the person to whom the disclosure is to be made has been informed of this order and has acknowledged that they are bound by this order.

• Catchwords: PRACTICE AND PROCEDURE - Stay of proceedings - court has jurisdiction to stay proceedings to enforce agreement by parties to refer disputes to mediation and arbitration - defendants invoke confidential mediation and arbitration clauses of deed - whether first and third plaintiffs bound by deed - condition precedent to certain parties being bound by deed that they provide letters acknowledging entered into deed without coercion or undue influence - issue whether first and third plaintiff provided such letters - no evidence from these plaintiffs disputing provision of letters - recital to subsequent deed recognises plaintiffs bound.; PRACTICE AND PROCEDURE - Stay of proceedings - application by beneficiaries to remove trustee - whether such a dispute susceptible to "private justice" - subject matter of dispute susceptible to mediation and arbitration.; PRACTICE AND PROCEDURE - Stay of proceedings - confidential mediation and arbitration procedure applicable to "disputes under this deed" - "under this deed" connotes dispute dealing with enforcement or invocation of rights created by deed - construction of "claim now and in the future" - means "now and forever" and does not extend "claims", defined as existing or discontinued at time of deed to claims not existing at time of deed - whether dispute "under" clause in deed relating to vesting date of trust - dispute about removal of trustee - whether dispute "arising under this deed" raised by second defendant proffering wish to have non-family member appointed trustee - where plaintiffs make no such claim - whether proceedings contrary to non-disparagement provision - fact second defendant may wish to prosecute such a dispute does not change nature of plaintiffs' dispute - whether proceedings contrary to undertaking not to challenge first defendant's "right title or interest" in Group or any trust of which she is a beneficiary - reference to beneficial title or interest not to first defendant's legal title as trustee - second defendant invokes provision providing that parties to deed will not challenge ongoing management and control of first defendant in company known as HPPL - trust only owns 25% of shares in HPPL whilst first defendant owns 75% of shares - management not reference to shareholding but to directorship - ongoing control not reference to ability to control every single share - not a dispute "under this deed".; COURTS AND JUDGES - Application for suppression order under (NSW) Court Suppression and Non-publication Orders Act 2010 - where defendants' propose to apply for leave to appeal orders dismissing application for stay of proceedings - prior suppression order expressed to be contingent on determination of stay application - failure to grant further interim suppression order would render arguable appeal nugatory and undermine defendants' claimed right to confidentiality in event Court of Appeal overturns primary judge's decision - interim suppression order granted.
• Legislation Cited: (NSW) Civil Procedure Act 2005, s 26, s 67, s 94; (WA) Commercial Arbitration Act, 1985; (NSW) Court Suppression and Non-publication Orders Act, 2010, s 8, s 9, s 10, s 11; (CTH) Trade Practices Act, 1974, s 87; (WA) Trustees Act, 1962, s 7, s 10, s 77, s 90, s 92; (NSW) Uniform Civil Procedure Rules 2005, r 6.24, r 6.29
• Cases Cited: Ashington Capital Limited v Noosa Venture 1 Pty Ltd [2010] NSWSC 639; Dance With Mr D Limited v Dirty Dancing Investments Proprietary Limited [2009] NSWSC 332; IBM Australia Limited v National Distribution Services Limited (1991) 100 ALR 361; Larkden Proprietary Limited v Lloyd Energy Systems (2011) 279 ALR 772; Leerac Proprietary Limited v Fay [2008] NSWSC 1082; Permanent Trustee Company v Dougall and Others (1934) 34 SR (NSW) 83; Siemens Ltd v Origin Energy Uranquinty Power Pty Ltd (2011) 279 ALR 795; State of New South Wales v Banabelle Electrical Pty Ltd (2002) 54 NSWLR 503; Welker & Ors v Rinehart [2011] NSWSC 1094; Zeke Services Proprietary Limited v Traffics Technology Limited [2005] QSC 135; [2005] 2 Qd R 563
• Texts Cited: Doug Jones, 'Commercial Arbitrartion in Australia' (2011)
• Category: Procedural and other rulings
• Parties: Hope Rinehart Welker (first plaintiff); John Langley Hancock (second plaintiff); Bianca Hope Rinehart (third plaintiff); Gina Hope Rinehart (first defendant); Ginia Hope Frances Rinehart (second defendant)
• Representation: Counsel: Dr A S Bell SC with Mr M J Smith (plaintiffs); Mr A Sullivan QC with Mr E Muston (first defendant); Mr F Kunc SC with Mr P W Flynn (second defendant); Mr A T S Dawson (intervening media interests); Mr D Studdy SC with Mr C Colquhoun (intervening on behalf of Hancock Prospecting Pty Ltd); Solicitors: Johnson Winter & Slattery (plaintiffs); Corrs Chambers Westgarth (first defendant); Gadens Lawyers (second defendant); Addisons (intervening media interests); Corrs Chambers Westgarth (Hancock Prospecting Pty Ltd)
• File Number(s): 2011/285907

Judgment (ex tempore)

1 HIS HONOUR: On 5 September 2011, these proceedings were initiated by summons filed in the names of the first plaintiff Hope Rinehart Welker, the second plaintiff John Langley Hancock, the third plaintiff Bianca Hope Rinehart, and the fourth plaintiff Ginia Hope Frances Rinehart, against the defendant their mother Gina Hope Rinehart, claiming the following substantive relief:

1. An order pursuant to section 90 and or section 94 of the Trustees Act 1962 (WA) varying the Deed of Settlement made 27 December 1988 by Langley George Hancock as amended by Deed of Amendment dated 24 August 1995 ( "The Trust Deed") by varying clause 6(a) to read "the date on which the youngest of the children of Mrs Rinehart, or the survivor or survivors of them, attains the age of TWENTY SIX (26) years".

2. In the alternative, an order directing Gina Hope Rinehart prior to midnight on 5 September 2011 (Western Australian Standard time) to vary clause 6(a) of the Trust Deed by varying clause 6(a) by deed to read "the date on which the youngest of the children of Mrs Rinehart, or the survivor or survivors of them, attains the age of TWENTY SIX (26) years".

3. An order pursuant to s 90 of the Trustees Act varying the Trust Deed by splitting the trust into separate trusts with one trust as to Gina Hope Rinehart's 17.7% interest in the ordinary shares and the cumulative special shares, as referred to in clause 4 of the Trust Deed (" the First Trust "); and a further trust as to the residue of the trust property in favour of the children of Gina Hope Rinehart (" the Second Trust ").

4. An order pursuant to s 7(1)(d) of the Trustees Act removing Gina Hope Rinehart as trustee of the Second Trust.

5. An order pursuant to s 7(2) of the Trustees Act appointing the children of Gina Hope Rinehart as the Trustees of the Second Trust and, pursuant to s 10(1) of that Act vesting the trust property in the new trustees.

2 That day I made, ex parte, an order as follows:

Upon the plaintiffs by the counsel giving the Court the usual undertaking as to damages:

THE COURT ORDERS THAT:

1. By 4:00pm today Western Australian Time being 6:00pm today Eastern Standard Time the Defendant execute a Deed submitted by the Plaintiffs' Solicitors which has the effect of varying the Trusts contained in the Trust Deed constituting the Hope Margaret Hancock Trust by substituting in clause 6(a) and 6(b) thereof the matter "twenty-five (25) years and one month" for the matter "twenty-five (25) years" in each case.

2. Notice of this Order and the draft Deed may be sufficiently given to the Defendant by email of a PDF thereof to [e-mail] and [e-mail].

3. Pursuant to s 94(1) of the Civil Procedure Act 2005 (NSW) that upon the Plaintiffs' Solicitors presenting to the Duty Registrar an affidavit sworn by the Plaintiffs' Solicitor that this Order having been served in accordance with the foregoing Order the Defendant has not complied with it, the Deed be executed by a Registrar.

4. Reserve liberty to apply including by telephone in the event of any difficulty arising in the implementation of this order.

3 Although the Registrar in due course executed a Deed pursuant to Order 3, when the proceedings returned before the Court, the Court was informed that the defendant had, in fact, prior to the above order being made, executed a variation of the deed of trust so as to extend the vesting date of the trust to 2058.

4 The former fourth plaintiff has asserted that she never gave instructions for the proceedings in the first place, and on 21 September 2011 I made orders, by consent, pursuant to UCPR r 6.29, that she be removed as a plaintiff, and pursuant to r 6.24 that she be joined as second defendant. The remaining plaintiffs now seek leave to file an amended summons, claiming the following substantive relief:

3. An order that the Defendant as Trustee of the trust established by the Deed of Settlement made 27 December 1988 by Langley George Hancock (" The Trust ") provide to the Plaintiffs:

(a) the accounts of the Trust for the years 1992 to date;

(b) the accounts of Hancock Prospecting Pty Limited for the years 1992 to date.

4. An order pursuant to s 90 of the Trustees Act 1962 (WA) or in the Court's equitable jurisdiction varying the Trust Deed by splitting the trust into separate trusts with one trust as to Gina Hope Rinehart's 17.7% interest in the ordinary shares and the cumulative special shares, as referred to in clause 4 of the Trust Deed (" the First Trust "); and a further trust as to the residue of the trust property in favour of the children of Gina Hope Rinehart (" the Second Trust ");

5. An order in the Court's inherent equitable jurisdiction removing Gina Rinehart as trustee of the Second Trust.

6. A declaration that the Defendant has misconducted herself in the administration of the Trust within the meaning of s 77(2)(b) of the Trustees Act 1962 (WA).

7. An order pursuant to s 7(2) or s 77(1) and/or s 77(2)(b) of the Trustees Act or in the Court's inherent equitable jurisdiction appointing such of the children of Gina Hope Rinehart as so consent as the Trustees of the Second Trust in substitution for the Defendant and, pursuant to s 10(1) of that Act vesting the trust property in the new trustees.

8. In the alternative to orders 4, 5 and 7, an order pursuant to s 77(1) and (2)(b) of the Trustees Act or in the Court's inherent equitable jurisdiction removing Gina Hope Rinehart as trustee of the Trust and an order pursuant to s 7(2) or s 77 of the Trustees Act appointing such of the children of Gina Hope Rinehart as consent to be the Trustees of the Trust in substitution for Gina Hope Rinehart and, pursuant to s 10(1) of that Act, vesting the Trust Fund in the new trustees.

5 Thus, the substance of the claim in the proposed amended summons is one for removal of the first defendant as trustee of the trust established by the Deed of Settlement made in 1988 by Langley John Hancock. The summons contains particulars of the basis for removal of the first defendant as trustee, including of her alleged misconduct in the administration of the trust. It suffices for present purposes to record that, although preserving the possibility for expansion, those particulars are of conduct said to have taken place in early September 2011.

6 Both defendants move for a stay of the proceedings, pursuant to Civil Procedure Act, s 67. They do so fundamentally in order to give effect to the provisions of a deed called the 'Hope Downs Deed' ('the Deed') made in 2006 between the defendants, the plaintiffs, and a number of related parties, which provides for the submission of disputes "under this Deed" to confidential mediation and arbitration. While the plaintiffs' application for leave to amend the summons is opposed on the basis that it would be futile if the first defendant's application for a stay is granted, it was common ground that the stay application should be approached on the basis that the plaintiffs' case if not stayed, would be as enunciated in the proposed amended summons.

7 Clause 20 of the Deed provides as follows:

20. CONFIDENTIAL MEDIATION/ARBITRATION

In the event that there is any dispute under this deed then any party to his [ sic ] deed who has a dispute with any other party to this deed shall forthwith notify the other party or parties with whom there is the dispute and all other parties to this deed ("Notification") and the parties to this deed shall attempt to resolve such difference in the following manner.

20.1 Confidential Mediation

(a) the disputing parties shall first attempt to resolve their dispute by confidential mediation subject to Western Australian law to be conducted by a mediator agreed to by each of the disputing parties and GHR (or after her death or non-capacity, HPPL);

(b) each of the disputing parties must attempt to agree upon a suitably qualified and independent person to undertake the mediation;

(c) the mediation will be conducted with a view to:

(i) identifying the dispute;

(ii) developing alternatives for resolving the dispute;

(iii) exploring these alternatives; and

(iv) seeking to find a solution that is acceptable to the disputing parties.

(d) any mediation will not impose an outcome on disputing parties. Any outcome must be agreed to by the disputing parties;

(e) any mediation will be abandoned if:

(i) the disputing parties agree;

(ii) any of the disputing parties request the abandonment.

20.2 Confidential Arbitration

(a) Where the disputing parties are unable to agree to an appointment of a mediator for the purposes of this clause T [ sic ] within (14) days of the date of the Notification or in the event any mediation is abandoned then the dispute shall on that date be automatically referred to arbitration for resolution ("Referral Date") and the following provisions of this clause shall apply;

(i) In the event that no agreement on the arbitrator can be reached with three (3) weeks of the Referral Date, the arbitrator will be Mr Tony Fitzgerald QC (providing he is willing to perform this function and has not reached 74 years of age at that time), or in the event Mr Tony Fitzgerald QC is unwilling or unable to act, the Honourable Justice John Middleton (provided he is no longer a Judge of the Federal or other Australian Court and provided he has not reached 74 years of age at that time), and irrespective of whether either of these persons have carried out the mediation referred to above, or in the event that neither is willing or able to act,

(ii) subject to paragraph (iv) below by confidential arbitration with one (1) party to the dispute nominating one (1) arbitrator, and the other party to the dispute nominating another arbitrator and the two (2) arbitrators selecting a third arbitrator within a further three (3) weeks, who shall together resolve the matter pursuant to the Commercial Arbitration Act of Western Australia and whose decision shall be final and binding on the parties

(iii) if the arbitrators nominated pursuant to paragraph 2(a)(ii) are unable to agree on the selection of a third arbitrator within the time provided in paragraph 2(a)(iii), the third arbitrator will be designated by the President of the Law Society of Western Australia and shall be a legal practitioner qualified to practise in the State of Western Australia of not less than twenty (2) years standing.

(iv) in the event that a disputing party does not nominate an arbitrator pursuant to Clause 2(a)(ii) within twenty-one (21) days from being required to do so it will be deemed to have agreed to the appointment of the arbitrator appointed by the other disputing party.

(b) The dispute shall be resolved by confidential arbitration by the arbitrator agreed to by each of the disputing parties or appointed pursuant to paragraph 2(a)(i) above (or if more than one is appointed pursuant to paragraph 2(a)(ii) then as decided by not less than a majority of them) who shall resolve the matter pursuant to the Commercial Arbitration Act of Western Australia and whose decision shall be final and binding on the parties.

(c) The arbitration will take place at a location outside of a Court and chosen to endeavour to maintain confidentiality and mutually agreed to by the disputing parties and failing agreement in Western Australia and the single Arbitrator or the Chairman of the Arbitral Tribunal as the case may be will fix the time and place outside of a Court for the purposes of the confidential hearing of such evidence and representations as any of the disputing parties may present. If any of the parties request wheelchair access, this will be taken into account in the selection of the premises and parking needs. Except as otherwise provided, the decision of the single arbitrator or, if three arbitrators, the decision of any two of them in writing will be binding on the parties both in respect of procedure and the final determination of the issues.

(d) The arbitrators will not be obliged to have regard to any particular information or evidence in reaching his/their determination and in his/their discretion procure and consider such information and evidence and in such form as he/they sees fit;

(e) The award of the arbitrator(s) will be to the extent allowed by law non-appealable, conclusive and binding on the parties and will be specifically enforceable by any Court having jurisdiction.

8 It is not controversial that the Court may stay proceedings in order to give effect to an agreement to submit disputes to mediation or arbitration. As Chesterman J explained in Zeke Services Proprietary Limited v Traffics Technology Limited [2005] QSC 135; [2005] 2 Qd R 563 (at [19] to [21]):

There is an undoubted jurisdiction to stay a legal proceeding where the parties have by contract agreed that their dispute shall be determined by means other than curial adjudication. As Lord Mustill explained in Channel Tunnel Group Ltd & Anor v Balfour Beatty Construction Ltd & Ors [1993] AC 334 at 352, there is an 'inherent power of the court to stay proceedings brought before it in breach of an agreement to decide disputes in some other way.' The basis for the power was said to be a 'wider general principle ... that the court makes people abide by their contracts and ... will restrain a plaintiff from bringing an action which he is doing in breach of his agreement with the defendant that any dispute between them shall be otherwise determined.' (Per MacKinnon LJ in Racecourse Betting Control Board v Secretary for Air [1944] Ch 114 at 126.)

The jurisdiction has been recognised in a number of cases, in this country, at first instance: Badgin Nominees Pty Ltd v Oneida Ltd Anor [1998] VSC 118; The Heart Research Institute Ltd v Psiron Ltd [2002] NSWSC 646; Strategic Publishing Group Pty Ltd v John Fairfax Publications Pty Ltd [2003] NSWSC 1134...

The discretion whether or not to grant the stay is obviously wide. The starting point for a consideration of its exercise is that the parties should be held to their bargain to resolve their dispute in the agreed manner. This factor was emphasised by the House of Lords in Channel Tunnel , by the High Court in Dobbs and Huddart Parker Ltd v The Ship Mill Hill and Her Cargo (1950) 81 CLR 502 (an arbitration case) and by Gillard J in Badgin . However, a stay will not be granted if it would be unjust to deprive the plaintiff of the right to have his claim determined judicially or, to put it slightly differently, if the justice of the case is against staying the proceeding. The party opposing the stay must persuade the court that there is good ground for the exercise of the discretion to allow the action to proceed and so preclude the contractual mode of dispute resolution. The onus is a heavy one. The court should not lightly conclude that the agreed mechanism is inappropriate.

9 Similarly, Hammerschlag J in Dance With Mr D Limited v Dirty Dancing Investments Proprietary Limited [2009] NSWSC 332 said (at [53]):

The Court has a wide discretionary power to stay legal proceedings where the parties have by contract agreed to have the dispute determined by an expert. Each case is to be considered on its own circumstances. The starting point is, however, that the parties should be held to their bargain. It is for the party opposing the stay of proceedings to show that there is good reason to allow the action to proceed and the onus is a heavy one.

10 See also Ashington Capital Limited v Noosa Venture 1 Pty Ltd [2010] NSWSC 639 (at [11]), and State of New South Wales v Banabelle Electrical Pty Ltd (2002) 54 NSWLR 503 (at 517).

11 The principal issues for resolution on the present application are: first, whether the deed is binding on the first and third plaintiffs; secondly, whether a proceeding in the court's equitable or statutory jurisdiction for removal of a trustee is susceptible to "private justice" by reference to mediation and arbitration; thirdly, whether the subject proceedings are in respect of a dispute "under this deed", so as to be caught by clause 20 of the Deed; fourthly, if so, whether as a matter of discretion a stay ought to be granted or declined; fifthly, if not, whether there should be a compulsory referral for mediation under (NSW) Civil Procedure Act, 2005, s 26; and sixthly, if the proceedings are not stayed, what should happen insofar as the extant suppression order is concerned [see Welker & Ors v Rinehart [2011] NSWSC 1094].

Is the deed binding on the first and third plaintiffs?

12 Clause 12 of the Deed relevantly provides as follows:

12 ACKNOWLEDGEMENTS

12.1 Each party acknowledges that (except as set out in this deed) it:

(a) enters into this deed freely and voluntarily based upon its own information, investigation, and subject to 12.3 legal advice; and

(b) does not execute this deed as a result of or in reliance on any promise, representation, advice, statement, opinion or information of any kind given or offered to it by or on behalf of any other party, whether in answer to any inquiry or not and whether contained in any correspondence between the parties and/or their legal or other advisers or not.

12.2 This deed applies and the execution parties hereto are hereby bound irrespective of whether those parties waive or do not waive the obtaining of legal or other expert advice, whether independent advice or otherwise.

12.3 Each party who executes this deed acknowledges that he, she or it acts wholly without duress or undue influence in making this deed and in executing same and acknowledges and declares that he, she or it has had and obtained or waived in writing the right to obtain or will in accordance with Clause 15 obtain legal, or other expert advice on all matters relating to or which are the subject of this deed.

12.4 Each of JLH, BHR, HGRW and GHFR shall on execution of this Deed provide a letter from a lawyer that they have advised the lawyer that they have read the deed and are executing or have executed it without duress or undue influence and have agreed to be bound irrespective of

(a) the mother/child/beneficiary aspects of the HMH Trust relationships between GHR, the Trustee and the Beneficiaries, or

(b) as the employee/employer relationship or potential employee/employer relationship with the Hancock Group.

13 Clause 15 relevantly provides as follows:

15. PARTIES BOUND BY THIS DEED

15.1 This deed shall be of full force and effect upon execution by HPPL, Westraint, HM, HFMF, 150, and HMHTI, the Trustee, GHR, and subject to clause 15.2, at least two of JLH, BHR, HGRW and GHFR, in respect of those parties who have so executed (the "First Execution Date"). Any party who has not executed this deed by the First Execution Date and where appropriate provided the said letters shall be entitled to execute this deed and provide the said letters required under clause 12 on or before 30 August 2006 (time being of the essence), and as of their respective dates of execution hereof such further parties shall be respectively fully bound by this deed. Until this deed is executed by a party, neither this deed nor any provision hereof shall enure to the benefit of that party.

15.2 Any of JLH, BHR, GHRW and GHFR who has not provided the said letters required under clause 12, shall be deemed not to have executed this Deed until such letters have been provided.

14 On 18 August 2006, a letter in the following terms was forwarded by facsimile from a firm of solicitors AJ Muscat & Company to the first defendant:

Dear Madam

RE: BIANCA HOPE RINEHART

I Anthony Joseph Muscat, Solicitor, advise and certify that Bianca Hope Rinehart has advised me in a telephone conference dated 18 th August 2006 that she has read the Confidential Settlement Deed proposed to be made between some or a number of parties including John Langley Hancock (in his own right or in any representative capacity), Bianca Hope Rinehart (in her own right or in any representative capacity), Hope Georgina Rinehart Welker (in her own right or in any representative capacity) and Ginia Hope Frances Rinehart (in her own right or in any representative capacity) and has further advised me that she has executed it without duress or undue influence and has agreed to be bound irrespective of:

(a) the mother/child/ beneficiary aspects of the HMH Trust relationships between GHR, the Trustee and the Beneficiaries (each as defined in the said Confidential Settlement Deed); or

(b) as employee/employer relationship or potential employee/employer relationship with the Hancock Group.

Ms. Bianca Hope Rinehart also confirmed in the telephone conference dated 18 th August 2006 that she specifically did not wish me to enquire into the legal or commercial aspects of the deed but merely to provide evidence that there was no coercion by any individual or circumstance involved in her agreement to sign the deed.

Yours Faithfully

A.J. Muscat & Co

15 A corresponding letter was forwarded in the same terms by the same firm in respect of Hope Georgina Rinehart Welker.

16 There is no evidence before the Court from the first or third plaintiff denying that those letters were provided by them or on their behalf. But also in evidence is the file of Mr Muscat, which establishes - by a handwritten file note in one instance, and by the contents of the last paragraph of the letters referred to above in both instances - that Mr Muscat sought and obtained instructions from the first and third plaintiffs.

17 Mr Muscat's file admittedly also contains an email from Mr Muscat to the first defendant denying, in effect, that he was authorised to provide the letters in question to other parties to the deed than the first defendant. But the letters were sent to the first defendant. The concept of the letters being "provided" is not elaborated in the Deed. It is clear that the purpose of provision of the letters was to satisfy those who might otherwise be potentially affected by allegations of duress or undue influence that the relative plaintiffs were acting freely and independently. The reference; in the Deed and in the letter, to the mother/child/beneficiary relationship and the employee/employer relationship is indicative of this. In my view, the provision to the first defendant of the letters from Mr Muscat, he having spoken to each of the plaintiffs in question, amounted to a provision of the letters for the purposes of clause 12.4 of the Deed. It seems plain, in the absence of contrary evidence, that the parties intended the provision of the letters in that way to serve the purpose of complying with the relevant condition in the deed.

18 Thereafter, all parties apparently proceeded on the basis that the deed was binding on them. Conspicuously, in 2007, a further deed was entered into, the main effect of which was to bind the second plaintiff (who was not a party to the 2006 Deed) to the same terms. That deed contained recitals as follows:

(A) All parties hereto except only JLH are parties to Confidential Settlement Deed executed in August 2006 copy whereof is attached hereto and made a part hereof ("the Hope Downs Deed").

(B) The parties to the Hope Downs Deed now wish to facilitate JLH becoming a party to the Hope Downs Deed.

(C) All of the parties hereto (save for JLH) acknowledge that they signed a Deed dated 12 December 2006 ("First Deed") by counterpart in the same terms as this Deed save for the minor amendment to clause 1 of this Deed. For the avoidance of doubt the First Deed is annexed to this Deed and marked "A".

19 The 2007 deed then relevantly provided as follows:

1. The parties to the Hope Downs Deed hereby covenant and agree with JLH that (notwithstanding the time limits set out in clause 15.1 of the Hope Downs Deed) by virtue of his execution of this Deed, JLH shall and does (subject only to clause 2 hereof) hereby become a party to the Hope Downs Deed with full force and effect and in all respects as if he had executed the Hope Downs Deed on or before 30 th August 2006.

2. JLH Covenants and Agrees with all and singular the parties hereof and each of them and with the parties to the Hope Downs Deed and each of them that he will observe perform and fulfil all and singular the terms covenants, conditions and provisos of the Hope Downs Deed and his obligations and undertakings thereunder AND without limitation and for the avoidance of doubt the parties acknowledge that the requirements of clause 12 of the Hope Downs Deed which require provision of a letter from a lawyer shall not be required to be complied with by JLH.

3. The parties to the Hope Downs Deed and JLH hereby jointly and severally ratify and confirm the Hope Downs Deed as hereby amended.

20 Recital A was a recital that all the parties to the 2007 deed had executed the 2006 deed. As the effect of clause 15.2 of the 2006 deed was that the relevant plaintiffs were taken not to have executed the deed unless the relevant letters had been provided, that recital is inconsistent with them now asserting that they should be deemed not to have executed the deed by reason of non-provision of such letters. Clause 3 of the 2007 deed, ratifying and confirming the 2006 deed, is to like effect. In my view, the terms of the 2007 deed and the recitals in it are quite inconsistent with the proposition that the first and third plaintiffs should now be taken not to have executed 2006 deed.

21 It follows that, in my opinion, the 2006 deed is binding on the first and third plaintiffs.

Is the dispute susceptible to arbitration?

22 Not all disputes are susceptible to resolution by "private justice". As Ball J observed in Siemens Ltd v Origin Energy Uranquinty Power Pty Ltd (2011) 279 ALR 795 (at [37]-[38]):

Whether a particular dispute is capable of settlement by arbitration or not depends on the subject matter of the dispute and, in some cases, the mechanism that has been established to resolve it.

...

... in certain circumstances, it may be apparent from the nature of the subject matter or the way that it is dealt with by the legislature that it is appropriate for disputes concerning the subject matter to be resolved by the courts, or specialist tribunals established for that purpose. What normally distinguishes this class of case is the existence of some legitimate public interest in seeing that disputes of the type in question are resolved by public institutions or in accordance with structures established by the parties... Examples include proceedings to recover fines, proceedings relating to insolvency and competition law claims...

23 While the types of disputes that are amenable to resolution by private justice are not unlimited, courts encourage parties to submit a very wide range of disputes to alternative dispute resolution, by mediation or arbitration [see Larkden Proprietary Limited v Lloyd Energy Systems (2011) 279 ALR 772 (at [62] - [65])]. For example, the jurisdiction of the court to grant relief under the (CTH) Trade Practices Act , 1974, including to make orders of the type contemplated by s 87 of that Act, has been held to be validly conferred on an arbitrator [ IBM Australia Limited v National Distribution Services Limited (1991) 100 ALR 361].

24 I would accept that parties cannot by agreement entirely exclude the jurisdiction of a court of equity, inherent or statutory, to entertain applications to enforce the fundamental (or "core") obligations of trustees, including applications for removal of a trustee. Thus "non-contest" clauses in wills, purporting to avoid dispositions to a beneficiary who brings proceedings in respect of the will, are void if they would have the effect of precluding the litigation of any questions of administration without limit , and thus prevent the beneficiary from securing the due administration of the trusts of the will by the trustees [ Permanent Trustee Company v Dougall and Others (1934) 34 SR (NSW) 83, 86-87, Harvey CJ in Eq]. In Armitage v Nurse [1998] Ch 241, Millett LJ (with whom Hutchison and Hirst LJJ agreed) concluded (at 253) that there was an irreducible core of obligations owed by trustees to beneficiaries that could not be excluded by an exemption clause, as such obligations were "fundamental to the concept of a trust", without which there would be no trust. His Lordship concluded that it was not contrary to public policy to exclude a trustee's liability for negligence, including gross negligence, but it would be to exclude liability for dishonesty or bad faith. See also Leerac Proprietary Limited v Fay [2008] NSWSC 1082 (at [23]-[24]).

25 An agreement to submit to mediation and arbitration a dispute of the type the subject of the plaintiffs' application here is not one totally to exclude the jurisdiction of the court, but only to require its prior submission to mediation and arbitration. In my view, there is no reason why a dispute between beneficiaries and a trustee, including an application by beneficiaries for removal of the trustee, could not be referred to arbitration and, a fortiori, mediation. To do so does not exclude the jurisdiction of the Court. If anything, public policy encourages the private resolution of disputes concerning family matters, and there is no reason why this should not include family trusts.

26 I would therefore not accept that the plaintiffs' claim is not one susceptible to arbitration.

Is there a dispute "under this deed"

27 The third and critical issue is whether the dispute in question is a "dispute under this deed". Mr Bell SC for the plaintiffs rightly points to the terminology of clause 20 as involving the concept of a "party to this deed who has a dispute with any other party to this deed" being required to notify the others of the dispute. It is therefore necessary to focus on whether, for the purposes of these proceedings, the plaintiffs have a dispute "under this deed" with any other party to this deed, of which they are therefore required to give notice.

28 The words "under this deed" are of narrower scope than phrases such as "with respect to" or "in respect of". They connote a direct derivation from or dependence on the head instrument. As Jones, in 'Commercial Arbitration in Australia' (2011) points out (at 68):

The phrase "arising under" has been held to confer a narrower jurisdiction. In Ethiopian Oilseeds Hirst J contrasted the broad construction of "arising out of" with what he held to be the restricted construction to be given "arising under"... Where parties use those terms, the disputes covered by the arbitration clause must directly derive from the rights and obligations given by the contract.

29 French J, as his Honour the Chief Justice of Australia then was, concluded in Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd and Others (1993) 116 ALR 163 (at 172):

When, as here, the parties have agreed upon a restricted form of words which in their terms, and as construed in the courts, limit the reference to matters arising ex contractu, there is little room for movement. I am satisfied that neither the trade practices claim, nor the claims for breach of warranty and negligent misstatement can be said to arise out of the agreement... there is nothing in the language of the agreement which would justify an order for the stay of these proceedings.

30 The parties to the Hope Downs Deed did not agree to submit all disputes between them to arbitration, but only those "under this deed". That means a dispute which derives from or depends on the Deed, or involves enforcing or invoking some right created by the deed.

31 The first defendant relied primarily on clause 9 of the Deed as founding an argument that the plaintiffs' claim was a dispute under the Deed. Clause 9 is as follows:

9 VESTING OF HMH TRUST

9.1 Subject to GHR's agreement at any time prior to 6 September 2011, the Beneficiaries agree to extend the vesting date of the HMH Trust to the maximum extent permitted by law or to any prior date after 6 September 2011 by agreement of the majority of Beneficiaries.

9.2 Each of the Beneficiaries shall do all matters and things necessary to implement and facilitate any decision at any time by the Trustee to appoint any one or more of JLH, BHR, HGRW and GHFR as trustee of the HMH Trust and such appointment may be as an additional trustee together with the Trustee or to replace the Trustee permanently or temporarily or to succeed the Trustee when at some future time she may retire or otherwise cease to be trustee during her lifetime (which shall be deemed to be conditional upon the continuing right of GHR to decide to reassume the position of trustee by herself or with one or more of her children if and when she should subsequently so decide).

9.3 Notwithstanding either of the provisions in clause 9.1 and 9.2, the Trustee and the beneficiaries agree that nothing in this Deed limits any of the powers of the Trustee of the HMH Trust.

32 At an earlier stage of these proceedings, I said that, consistent with the first defendants' argument, I thought it strongly arguable that the plaintiffs' original claim was a dispute "under this deed" because of clause 9.1. However, on closer consideration, I have concluded that that view is no longer correct, if it ever was. Even the original claim - for an order that the trustee exercise her discretion to extend the vesting date - did not involve enforcing or invoking any right given by clause 9.1 against the first defendant. Clause 9.1 was an agreement to agree, expressed to be "subject to GHR's agreement". A claim that she should do something that she had not agreed to do is not a claim that depends on or derives from clause 9.1. In any event, the plaintiffs' present claim, for removal of the first defendant as trustee, does not invoke, involve, derive from or depend on clause 9.1 in any way.

33 Clause 9.2 provides for the beneficiaries to facilitate a decision by the trustee to appoint others as trustees, but does not involve or provide for removal of the trustee at the instance of the plaintiffs. The plaintiffs' claim is therefore not one under clause 9.2; it does not invoke or derive from or depend on clause 9.2 in any way.

34 Another way in which the case was put was that the plaintiffs' claim was somehow affected by releases contained in the Deed. Clause 6 contains a release of any "claims", "now and in the future" as follows:

6. RELEASES

Each party hereto both in its own rights and in any representative capacity hereby:

(a) releases and discharges each of the other parties hereto now and in the future from any Claims,

(b) Irrevocably covenants not to take any proceedings against any of the other parties to this dced in relation to any matter arising in any jurisdiction, in respect of the Claims;

(c) Withdraws and forever abandons any and all allegations made against any of the other parties to this deed in respect of or arising (in whole or in part) directly or indirectly out of:

(i) the Proceedings and any of the other Claims;

(ii) the subject matter of the Proceedings;

(iii) any claim relating to an undertaking give or costs orders made in the Proceedings,

whether and whenever arising, whether:

(iv) known or unknown at the time of execution of this deed;

(v) presently in contemplation of such parties; or

arising under common law, equity, statute or otherwise.

35 Clause 1.1 includes the following definition of "Claim":

Claim means:

(a) any claim, demand, action, suit or proceeding whether existing or discontinued, whether at law, under statute, in equity or otherwise:

(i) for damages, injunctions, debt, restitution or other remedy including, without limitation, breach of fiduciary duty of whatever nature and howsoever arising with respect to events or matters arising or actions taken prior to the date of this deed but not including any claim, demand, action, suit or proceedings arising as a consequence of the obligations and releases which any of the parties to this deed have agreed to in the Deed of Obligation and Release or the Deed of Loan or the Porteous Settlement Deed;

(ii) with respect to any attempt to remove or vary the Trustee of any subsequent Hancock Family Group Member as trustee of the HMH Trust and replace the trustee with a person or entity who or which is not a Hancock Family Group Member [emphasis added] ; and

(iii) any damage, loss, liability, costs, charge, expense, outgoing or payment;

(iv) any action against any of the Directors of any company within the Hancock Group, including without limitation the Other Directors; and

(b) without limitation of clause (a) includes any claim made in the Proceedings;

(c) any damage, loss, liability, costs, charge, expense, outgoing or payment; and

(d) without limitation of sub-clause (a) includes any claim made in the Proceedings; and

(e) without limitation of sub-clauses (a) and (b) includes any claim made in any proceeding or any discontinued proceeding and any documents to support such claim and without limitation and for clarity in the case of the Proceedings includes the unsigned draft affidavit of JLH;

36 It is material to observe that, while subparagraph (a)(ii) specifically includes an attempt to remove or vary the trustee and replace the trustee with a personal entity who is not a family group member, it says nothing of an attempt to remove, vary or replace the trustee with a person who is a family group member. This has the appearance of a deliberate exclusion of such a claim from the definition of "claim". The plaintiffs' application, which is to replace the trustee with persons who are themselves Hancock Group Members, is not within the definition of "claim".

37 Moreover, the definition of "claim" is limited to a claim "existing or discontinued". The release "now and in the future" means no more than, in perhaps more traditional language, "now and forever", thus expressing that there is a present release for all time of such claims as exist or have been discontinued within the definition; it does not extend the definition of claim to claims which do not yet exist and have not yet arisen, especially given the rule of construction that dictates that a narrow construction is given to releases . The plaintiffs' claim does not involves clause 6.

38 Clause 11 is as follows:

11. PLEA IN BAR

On and from the Effective Date each party may plead this deed in bar to any Claim or proceeding the subject of a release in this deed PROVIDED HOWEVER that nothing in this clause shall prevent any party from enforcing the provisions of this deed, the Porteous Settlement Deed, the Deed of Obligation and Release or Deed of Loan.

39 This clause provides for the Deed to be pleaded in bar to any "claim", but because of the definition of "claim" takes the matter no further. The plaintiffs' claim does not involve clause 11.

40 Insofar as it may be argued that the plea in bar (clause 11) and the release (clause 6) are insuperable defences to the plaintiffs' claim such as to justify a stay, they extend only to existing or discontinued claims at the date of the Deed. The matters particularised by the plaintiffs are much more recent, and clauses 6 and 11 simply do not catch the plaintiffs' claim, and do not arguably do so.

41 Those clauses do not bar the plaintiffs' claim.

42 The second defendant raised a number of additional bases upon which it was said the present proceeding involved a dispute "under this deed". The first was that, while supporting the first defendant in resisting the claim outright, the second defendant wishes to advance as an alternative position the appointment of a person other than a family member as a trustee, if the first defendant must be removed. The second defendant's position is that that would be a dispute under the deed, because clause 1.1(a)(ii) defines it as a claim. However, just because it might be within the definition of a "claim" does not mean that it depends on or derives from - or is arguably barred by - the Deed. Only such claims have been released as existed or had been discontinued as at the date of the Deed. The second defendant's proposal that a non-family member be appointed trustee - which the plaintiffs do not advance - does not depend on or derive from anything in the Deed. Even if it was, the plaintiffs' claim in the proceedings does not thereby become one.

43 The second defendant's next argument was that the present proceedings were a contravention of clause 7(d), pursuant to which each party undertook with each other not to "disparage" at any time. The plaintiffs, at the time of institution of the proceedings, had no dispute with any party under clause 7(d). However, the second defendant may well now have such a dispute, arising out of allegations made in the procdeedings to date, in respect of which she has given notice of dispute.

44 I accept that a dispute as to whether or not the plaintiffs are engaging in "disparagement" in contravention of clause 7(d) would be a dispute under the deed, although if the clause prevented the proper conduct or vigorous articulation of a case properly brought in the privileged setting of a courtroom, it would to that extent be void as contrary to public policy. But a claim that, in the course of the present proceedings, there has been disparagement, is not the subject matter of the present proceedings, let alone the plaintiffs' claim in them. The fact that the second defendant wishes to prosecute a dispute about whether these proceedings amount to disparagement in contravention of the Deed does not convert the subject matter of these proceedings, nor the plaintiffs' claim in them, to a dispute under the Deed.

45 The second defendant's third argument depends on clause 7(e), which is as follows:

UNDERTAKING

Each of the parties to this deed undertakes with each of the other parties to this deed

...

(e) subject to the rights of HPPL under the Deed of Loan not to challenge the rights of any of GHR, JLH, BHR, HGRW or GHFR who execute this Deed to any of their right title or interest in any of the Hancock Group or in any trust in which they or any member of the Hancock Group is a beneficiary.

46 The plaintiffs do not in these proceedings invoke or rely on any right given by clause 7(e); their claim does not depend on nor derive from it. The second defendant asserts that these proceedings are a "challenge" within the meaning of that clause, and that in that way, clause 7(e) might be a defence to the plaintiffs' claim and thus resolution of the dispute might depend on clause 7(e). However, in my view, the reference to "title or interest" in any trust in which they or any member of the Hancock group is a beneficiary, is a reference to title or interest as a beneficiary, not as trustee. I reach that conclusion for the following reasons. First, the clause identifies the relevant trust by reference to the beneficiaries, not by reference to the trustee. If it were intended to protect the position of a trustee, it is extraordinary that it would not refer to any trust in which the member is a trustee or beneficiary. Secondly, clause 1.1(a)(ii), to which reference has already been made, evinces an intention not to preclude claims for removal of the trustee, so long as the proposed replacement is a family group member. Thirdly, as a matter of policy, if clause 7(e) were given the construction for which the second defendant contends, it would preclude any attempt to remove the trustee for breach of trust prospectively before the breach had taken place. At least so far as a breach of the core obligations to act honestly and in good faith is concerned, such a provision would be void as contrary to public policy [ Armitage v Nurse ], a result which the parties ought not be considered likely to have intended. Fourthly, although it was argued that the construction I favour could not apply to an interest in a company, in my view there is considerable harmony, in the sense that so far as companies in the Hancock group are concerned, it applies to shareholders; while so far as trusts are concerned, it applies to beneficiaries. Finally, the intent of clause 7(e) was that the parties accepted the rights of each other in the Hancock group and any relevant trust as they then were; but not so as to prevent recognition of future charges: for example, it would not prevent one party seeking to enforce against another some subsequent agreement to transfer an interest; nor, in my view, was it intended to prevent some subsequent application to change the trustee of a relevant trust, not inconsistently with other provisions of the deed.

47 Similarly, the second defendant propounds clause 8 of the Deed, which is as follows:

8. GHR CONTROL OF HPPL

The parties hereto acknowledge that GHR by her direct ownership of the share capital of and voting power in HPPL, has control of HPPL and without limiting in any way the legal and other rights of GHR in that regard whether at law or in equity or pursuant to the Constitution of HPPL, the parties hereto acknowledge that during her lifetime GHR shall maintain full ongoing control and management of HPPL and that GHR shall accordingly have continuing right during her lifetime at her election from time to time to maintain or relinquish or re-establish herself as the chairman on an executive or non executive basis as she in her sole discretion shall decide of HPPL.

48 The plaintiffs do not invoke, nor does the plaintiffs' case in any way depend upon or derive from, anything in clause 8. The plaintiffs have no dispute with any other party under clause 8, of which they were required to give notice. The second defendant, however, proposes to propound it as a defence, thus creating a dispute under clause 8 - although it is not, at least yet, the subject matter of these proceedings. In my view, clause 8 does not bar the plaintiffs' claim. Clause 8 is an acknowledgement that by virtue of Mrs Rinehart's direct ownership of the share capital of and voting power in HPPL, she has control of HpHH HPPL. Its ultimate purpose is to acknowledge that during her lifetime she is to have the continuing right at her election from time to time to maintain, relinquish or re-establish herself as chairman on an executive or non-executive basis in her sole discretion. The trust owns less than 25 per cent of the shares in HPPL; Mrs Rinehart personally owns more than 75 per cent. Her full ongoing control and management will not be affected in the event she were ultimately removed as trustee. It is true that she would no longer be able to pass a circular resolution, without involving the trustee who would control the other 24 or so per cent. 'Management', however, refers to the powers of directors, not of shareholders; and 'control' normally means the ability to control the board of directors through a majority of the general meeting. I do not think "full ongoing control" in the context of this clause, means the ability to control every single share in the company; it means the ability to be executive or non-executive chair. The proposed proceedings are not inconsistent with the purpose of clause 8 in preserving Mrs Rinehart's ability at her election to maintain, relinquish or re-establish herself as executive or non-executive chair.

49 It follows that in my opinion the plaintiffs do not have a "dispute under this deed" with any of the other parties. Moreover, even if the clauses which the second defendant invokes might independently found a "dispute under this Deed", in the present context they are but aspects of a larger dispute, pertaining to removal of the trustee, which as a whole is not accurately characterised as a "dispute under this Deed". The question before me is not whether the second defendant's potential defences should be referred to arbitration; it is whether the proceedings brought by the plaintiffs should be stayed for the purposes of confidential mediation and arbitration, on account of prospective defences under the Deed raised by the second defendant. In my view, those prospective defences do not have the consequence that the plaintiffs' claim ought properly be characterised as a "dispute under this Deed".

Discretionary considerations

50 As I have concluded that the plaintiffs' claim is not a dispute "under this deed", the question of discretion does not directly arise. Even if the prospective defences, under clauses 7(1)(e) and 8 are "disputes under this Deed", I would not as a matter of discretion stay the plaintiffs' claim - as it would be under the proposed amended summons - on account of those potential defences, primarily because they are but aspects of a larger dispute not properly characterised as one "under this Deed"; and secondly by reason of my above conclusions as to their viability as potential defences.

Referral for mediation

51 So far as mediation is concerned, sooner or later - as with most commercial and family disputes - it may well be desirable that these proceedings be referred for mediation. But in my view, they are not ripe for that yet. Further disclosure will have to take place before the proceedings can be referred for mediation.

Suppression Orders

52 As I have concluded that there is not a dispute under the deed subject to the confidential ADR provisions, the basis for the suppression order I originally made is removed. I previously found that commercial sensitivity was of itself an insufficient basis for a suppression order. However, I should afford the parties an opportunity to be heard on the continuation of the suppression order, particularly pending any potential appeal or application for leave to appeal. I do not propose to afford that opportunity immediately, and I will not make a formal order dismissing the motions yet, but I will adjourn that to a convenient date when that issue might be addressed, and formal orders made.

Counsel addressed on costs and suppression and non-publication orders

14 October 2011

53 It follows from the conclusions expressed above that the first defendant's motion filed 16 September 2011 will be dismissed with costs, and that the second defendant's motion filed in court on 7 October 2011 will be dismissed with costs.

54 Notwithstanding the dismissal of those motions and - therefore, the applications for a stay - I am satisfied that an interim suppression order pending the determination of the application for leave to appeal from the foregoing orders is necessary, to prevent prejudice to the proper administration of justice. If such an order is not made, an arguable appeal - as I find the application for leave to appeal is - would be rendered nugatory and the right to confidentiality under the Deed which the defendants seek to vindicate by their application for leave to appeal would be defeated before it could be heard in the Court of Appeal. That is a common basis for orders in the nature of stays, including interim injunctions pending the hearings of appeals, and equally a common basis for the making of suppression or non-publication orders.

55 As a mere non-publication order would permit disclosure, short of publication, to persons outside the range of confidentiality permitted by the provisions of the Hope Downs deed, the apposite order must be a suppression rather than a non-publication order. Such an order should be subject to appropriate exceptions for Hancock Prospecting Pty Ltd (which has sought to be heard in Court today in regards to the defendants' applications for suppression orders), and for the professional advisors, potential witnesses and prospective litigation funders of the parties, but subject to safeguards that ensure that the nature of the order is brought to the attention of such persons.

56 Although there has been extensive debate this morning as to the juridical basis for any further suppression order, it seems to me that I can make it as an interim order under (NSW) Court Suppression and Non-publication Orders Act, 2010, s 10, but if that section does not afford power to make such an order, I can make it as an interim or interlocutory order pending the hearing in the Court of Appeal, because s 4 explicitly preserves the inherent jurisdiction of the Court to regulate its proceedings.

57 On an application of this type, the Court of Appeal encourages trial judges to determine stay applications - including applications which, though not strictly stay applications, are in the nature of stay applications, such as for an interim injunction pending the determination of an appeal, following the refusal of an injunction. Whether the trial judge grants a short stay only until the matter can be brought to the Court of Appeal for consideration by a judge of appeal, or a stay pending the determination of the appellate proceedings but subject to such order as the appellate Court may make, usually depends on the view of the Court at first instance as to the prospects of the appeal. Even where the primary judge Court very much doubts that there is an arguable case of error, a prospective appellant will often be afforded a short stay to enable the matter to be agitated in the Court of Appeal, at least if refusal of a stay in the meantime might render an appeal nugatory. But when the primary judge thinks that it is reasonably clear that there is an arguable appeal, the primary judge should endeavour so far as practicable to relieve the Court of Appeal of having to determine the matter. That does not preclude the ability of the Court of Appeal to do so, nor does it preclude the parties from returning to the primary judge for a variation of the order. It seems to me that there are significant incentives for the defendants to make an application promptly to the Court of Appeal for a suppression order in respect of the appellate proceedings, assuming that they are filed. If they delay in doing so, it will be open to the parties or any of them to apply under s 10(1) to this Court for revocation of the order.

58 My orders are as follows:

1. The first defendant's motion filed 16 September 2011 is dismissed with costs.

2. The second defendant's motion filed in court on 7 October 2011 is dismissed with costs.

3. Upon the plaintiffs' motion filed 16 September 2011, grant leave to plaintiffs to amend their summons by filing an amended summons in the form annexed to that motion and marked 'A', such amended summons to be filed in the registry by 21 October 2011.

4. The proceedings continue on pleadings.

5. Direct that the plaintiffs file and serve a statement of claim within 21 days and that pleading thereafter continue in accordance with the rules of court.

Pursuant to (NSW) Court Suppression and Non-Publication Orders Act, 2010, s 10, and alternatively pursuant to the inherent jurisdiction of the court, I make an interim suppression order upon the ground referred to in s 8(1)(a) of that Act, that such order is necessary to prevent prejudice to the administration of justice, prohibiting disclosure by publication or otherwise of information as to any relief claimed in the proceedings or any pleading evidence or argument filed read or given in the proceedings. This order has effect, subject to revocation by this Court, until the expiration of 7 days from the date on which my written reasons for judgment given orally on 7 October 2011 are published on the Court's website, and thereafter if within that period the first defendant or second defendant has filed a summons for leave to appeal until the determination of that application or further order of this Court or of the Court of Appeal. Pursuant to (NSW) Court Suppression and Non-Publication Orders Act 2010, s 11, it is specified that this order applies throughout the Commonwealth of Australia. Pursuant to (NSW) Court Suppression and Non-Publication Orders Act 2010, s 9(4), this order does not prohibit:

(a) Disclosure or publication of any judgment given in these proceedings to date nor of any orders made in the proceedings.

(b) Disclosure to Hancock Prospecting Pty Ltd nor to the professional advisers and potential witnesses or funders of any party to the proceedings (including Hancock Prospecting Pty Ltd), in every case only for the purposes of the proper conduct of these proceedings and/or the proposed appellate proceedings and provided that prior to such disclosure the person to whom the disclosure is to be made has been informed of this order and has acknowledged that they are bound by this order.

6. Reserve leave to the parties to apply to suspend or vary the timetable specified in this order in respect of pleadings.

 

**********

Decision last updated: 27 October 2011