Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Rinehart v Welker and Ors [2011] NSWCA 345
• Hearing dates: 31 October 2011
• Decision date: 31 October 2011
• Before: Tobias AJA

Decision

1. Pursuant to s.7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (Act), and on the grounds referred to in s 8(1)(a), a suppression order is made prohibiting the disclosure by publication or otherwise of any information as to the relief claimed or any pleading, the Summary of Argument, submissions, the draft Notice of Appeal, evidence or argument filed, read or given in these proceedings, and including the contents of the red book, blue book, black book and orange book but not including the Summons seeking Leave to Appeal or the pronounced or published judgment of Tobias AJA.

2. Pursuant to s.12 of the Act, the suppression order in paragraph 1 above operates until determination of the Applicant's application for leave to appeal is determined or until further order of the Court.

3. Pursuant to s.11 of the Act, the suppression order in paragraph 1 above applies throughout the Commonwealth.

4. That appeal number 2011/344306 and appeal 2011/344307 be heard at the same time.

5. That the application for leave to appeal be determined concurrently with the appeal.

6. The hearing for leave to appeal with the hearing of the appeal be expedited.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: PROCEDURE - Suppression orders - Discretion.
• Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW) ss 6, 8, 9
• Cases Cited: John Fairfax Publications Pty Ltd and Another v District Court of New South Wales and Others [2004] NSWCA 324; (2004) 61 NSWLR 344
• Category: Procedural and other rulings
• Parties: 2011/344306: applicant: Gina Hope RINEHART; first respondent: Hope Rinehart WELKER; second respondent: John Langley HANCOCK; third respondent: Bianca Hope RINEHART; fourth respondent: Ginia Hope Frances RINEHART; 2011/344307: applicant: Ginia Hope Frances RINEHART; first respondent: Hope Rinehart WELKER; second respondent: John Langley HANCOCK; third respondent: Bianca Hope RINEHART; fourth respondent: Gina Hope RINEHART; Media Intervenor: Australian Broadcasting Commission; Fairfax Media Publications; Nine Network; Nationwide News
• Representation: Gina Hope Rinehart (applicant 2011/344306; fourth respondent 2011/344307): B A Coles QC/ P Kulevski; Hope Rinehart Welker (first respondent both matters); John Langley Hancock (second respondent both matters); Bianca Hope Rinehart (third respondent both matters): A S Bell SC/ D F C Thomas; Ginia Hope Frances Rinehart (applicant 2011/344307; fourth respondent 2011/344306): F Kunc SC/ Mr Flynn; Media Intervenor Australian Broadcasting Commission; Fairfax Media Publications; Nine Network; Nationwide News: A T S Dawson; Gina Hope Rinehart (applicant 2011/344306; fourth respondent 2011/344307): Corrs Chambers Westgarth; Hope Rinehart Welker (first respondent both matters): unrepresented; John Langley Hancock (second respondent both matters): Butcher Paull & Calder; Bianca Hope Rinehart (third respondent both matters): Johnson Winter & Slattery; Ginia Hope Frances Rinehart (applicant 2011/344307; fourth respondent 2011/344306): Gadens Lawyers; Media Intervenor Australian Broadcasting Commission; Fairfax Media Publications; Nine Network; Nationwide News: Addisons
• File Number(s): 2011/344306; 2011/344307

Decision under appeal

• Citation: Welker & Ors v Rinehart [2011] NSWSC 1094; Welker & Ors v Rinehart & Anor (No 2) [2011] NSWSC 1238
• Before: Brereton J
• File Number(s): 2011/00285907

Judgment

1 HIS HONOUR: These proceedings concern a family dispute between Gina Hope Rinehart (Mrs Rinehart) and three of her four children. The fourth child, Virginia Hope Francis Rinehart, has decided to support her mother. The proceedings arise out of certain alleged conduct of Mrs Rinehart as trustee of a Deed of Settlement made on 27 December 1988 by Langley George Hancock (the Trust). For ease of reference I shall refer to those three children as the respondents and to Mrs Rinehart and her daughter, Virginia, as the applicants.

2 The proceedings were commenced by summons filed on behalf of the respondents on 5 September 2011. On 9 September 2011, argument took place before Brereton J with respect to an application by Mrs Rinehart and her daughter, Virginia, for a suppression order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act). On 13 September 2011, his Honour delivered judgment Welker & Ors v Rinehart [2011] NSWSC 1094 (the first judgment) pursuant to which he made such an order upon the grounds referred to in s 8(1)(a) and s 8(1)(e) of the Act (the first suppression order).

3 On or prior to 9 September 2011 the applicants had each applied by motion to his Honour for a permanent stay of the proceedings founded on the provisions of what was referred to as the Hope Downs Deed (the Deed) executed in 2006 by the parties. The Deed, generally speaking, provided that disputes between the parties " under this deed " should be determined confidentially by private mediation and/or arbitration. It was that confidentiality which provoked the application for a suppression order.

4 On 23 September 2011 the primary judge heard argument in relation to the motions for a stay and on 7 October 2011 he dismissed those motions. On 14 October 2011, his Honour heard argument with respect to the making of an interim suppression order under the Act in the event that there was an appeal or, more accurately, an application for leave to appeal against his Honour's order dismissing the motions of the applicants for a permanent stay of the proceedings. On that day, his Honour determined to grant such an order (the second suppression order) in the following terms:

5. ...

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.

I shall refer to his Honour's reasons for the making of this order as the second judgment: Welker & Ors v Rinehart & Anor (No 2) [2011] NSWSC 1238.

5 A summons seeking leave to appeal from his Honour's order dismissing the motions for a stay was filed in this Court on behalf of each applicant on 28 October 2011. On the same day, notices of motion were filed by them seeking a number of orders. This included a further order pursuant to the Act prohibiting the disclosure by publication or otherwise of any information as to " the relief claimed or any pleading, including the Summary of Argument, the Summons, the draft Notice of Appeal, evidence or argument filed read or given in " the proceedings the subject of the summons for leave to appeal. Consequential orders were also sought.

6 In the meantime on 17 October 2011 an amended summons was filed by the respondents. This deleted pars 1 and 2 of the original summons which was the only initiating process before his Honour when he made the first suppression order. However, common to both the original summons and the amended summons was the seeking of an order that Mrs Rinehart be removed as trustee of the Trust (referred to in both summonses as the Second Trust).

7 One of the differences relied upon by the respondents between the position before the primary judge when he made the first suppression order and the present time is that there were no particulars in the original summons of the grounds upon which it was asserted that Mrs Rinehart should be removed as trustee of the Second Trust whereas in Schedule A to the amended summons there are a series of particulars setting out the bases upon which it is alleged that she should be removed as such trustee. It would be fair to say that those particulars assert allegations of considerable seriousness.

8 It is common ground between the parties that the onus lies upon the applicants to persuade me that a suppression order should now be made under the Act with respect to the proceedings the subject of the summons for leave to appeal. In order to understand the submissions that have been made it is necessary to refer to some of the statements that explain the reasons why the primary judge granted both the first and second suppression orders. In this respect I was informed from the bar table that in respect of the application for the first suppression order on 9 September last, the respondents did not oppose the making of such an order although Mr Dawson representing a number of news media organisations did offer opposition. In this respect news media organisations have locus standi before the Court in relation to the making of a suppression order or non-publication order: see s 9(2)(d) in the Act.

9 His Honour at [3] of the first judgment referred to the Deed which imposed on the parties to the present litigation who had a dispute " under this deed " with another party, an obligation to notify the other parties and to attempt to resolve their differences by confidential mediation and failing that, confidential arbitration. Notwithstanding that provision, in the present case the respondents commenced the proceedings before Brereton J without giving effect to the terms of the Deed. The basis upon which it was ultimately determined that they were entitled to do so and, therefore, were not in breach of the Deed was that the disputes that had arisen were not disputes " under this deed ". That is the substantive issue which is the subject of the applicants' summons for leave to appeal from the primary judge's dismissal of their motions for a permanent stay of the proceedings.

10 His Honour then set out the relevant provisions of the Act and at [10] and following referred to the Court's approach at common law with respect to the tradition of open justice. During the course of argument I was referred to the decision of this Court in John Fairfax Publications Pty Ltd and Another v District Court of New South Wales and Others [2004] NSWCA 324; (2004) 61 NSWLR 344 and, in particular, to those paragraphs of the judgment of the Chief Justice, with whom Handley JA and MW Campbell AJA agreed, with respect to the established principles of open justice as a fundamental aspect of the system of justice in this country.

11 It is noteworthy that the Chief Justice at [19] of John Fairfax Publications accepted that there were exceptions to the principle of open justice although they were few and strictly defined. His Honour said:

"It is now accepted that the Court will not add to the list of exceptions but, of course, Parliament can do so, subject to any constitutional constraints."

12 It would appear to me that the Parliament has done so by enacting the Act. However, it will be a matter of consideration in the future and the present case but to a lesser extent, as to the width of the power granted by the Act to make a suppression or non-publication order and as to the extent to which the grounds upon which such an order can be made and which are set out in s 8 go further than those "few and strictly defined" exceptions to which the Chief Justice referred in John Fairfax Publications .

13 Relevantly, in the present case the applicants rely solely on the provisions of s 8(1)(a) which empowers the Court to make a suppression order or non-publication order if it is " necessary to prevent prejudice to the proper administration of justice ".

14 At [15] of the first judgment the primary judge noted that Mrs Rinehart (at that time she was the only defendant to the proceedings) wished to have the parties' dispute resolved in accordance with the Deed under the confidential ADR procedures therein provided. His Honour observed that she had, "at least strongly arguably", a legal right to that effect and that to permit the proceedings to continue in public, pending the resolution of that question, would deprive her of the benefit of the agreement to use a confidential ADR process and would deprive her stay application of much of its utility.

15 In the second judgment his Honour recanted from that view insofar as it asserted that Mrs Rinehart had a strongly arguable legal right to have the parties' dispute resolved in accordance with the confidentiality provisions of the Deed. At [32] he said,

"At an earlier stage of these proceedings, I said that, consistent with [Mrs Rinehart's] argument, I thought it strongly arguable that the [respondent's] original claim was a dispute 'under this deed' because of clause 9.1 of the relevant deed."

16 However on closer examination his Honour concluded that that view was no longer correct, if it ever was. In other words what his Honour was saying was that on the proper construction of cl 9.1 of the Deed the dispute of which he was made aware did not arise " under this deed " and, therefore, could not be the subject of the confidentiality provisions thereof.

17 Clause 9.1 of the Deed related to issues concerning the vesting of the trust property which was the subject of the orders sought in pars 1 and 2 of the original summons which have now been abandoned for reasons that are not presently relevant. Nevertheless at [16] of the first judgment his Honour set out what I regard as the basis upon which he was prepared to grant a suppression order under s 8(1)(a). He said:

I am satisfied, to a high degree of certainty, that publication of the current proceedings will negate the purpose of the confidentiality provisions in the Deed, circumvent the rights of the defendant to have such disputes resolved to the extent possible by confidential mediation and arbitration, and defeat the very purpose of her stay application. I am therefore satisfied that the order is necessary to prevent prejudice to the proper administration of justice, satisfying s 8(1)(a).

18 In the same vein his Honour made the following observations at [18] of the first judgment:

In the present case, to the extent that there remains a dispute at all, this is and always was a family dispute, about interests in and governance of a family trust. The outcome is of practical interest only to the parties and their privies. No questions of public significance or importance appear to arise. This is not a case in which the public interest in open justice is at its apogee; far from it. In my judgment, it is significantly outweighed by the public interest in vindicating the private rights of the parties, in this case to invoke a confidential ADR procedure to resolve their disputes.

19 At [19] his Honour also observed:

... But the relief claimed in the proceedings, and the evidentiary material filed, read or given in them, has not so far been published, and under the Deed would be treated as confidential; consistently with the rights and obligations of the parties under the Deed, that position should be preserved at least pending determination of the defendant's stay application.

20 Of some significance, insofar as it was heavily relied upon by the respondents and by Mr Dawson on behalf of the media interests, is [20] where his Honour said:

The defendant further contended that knowledge of the pendency of the present application and the relief sought in it may of itself jeopardise sensitive and confidential commercial negotiations in connection with major infrastructure projects. I would not have found, on this basis alone, that it was necessary in the public interest to make a suppression or non-publication order. While there is a possibility that knowledge of the pendency of the proceedings might have some impact on dealings with third parties, in my view the evidence does not reach the requisite level of certainty in that respect for an application of this kind, and in any event the fact that the pendency of litigation might have an impact on a party's dealings or relationships with third parties is not an established or sufficient basis for departing from the principle of open justice. However, the concern that public litigation might have that effect illustrates the rationale underlying, at least in part, the confidentiality provisions in the Deed.

21 I mention this paragraph because it was submitted on behalf of the respondents and the media that an order should only be made under s 8(1)(a) if in fact there was some particular commercial information that was required to be kept confidential or in respect of which there was a specific allegation of commercial damage which might occur in the event that an order was not made.

22 It is to be noted that his Honour took the view that although there was a possibility that knowledge of the pendency of the proceedings might have some impact on dealings with third parties, the evidence did not reach the requisite level of certainty and, in any event, the fact that pendency of litigation might have an impact on a party's dealings or relationships with third parties was not an established or sufficient basis for departing from the principle of open justice.

23 Notwithstanding those observations, his Honour nevertheless noted at [22] that the purpose of the order that he proposed to make was to uphold the rights of the parties to confidentiality in respect of their dispute and its resolution and that the appropriate period during which such an order should take effect was, at the very least, unless and until the applicants' stay application was dismissed.

24 As I have indicated in the second judgment the primary judge did dismiss the application for a stay, generally upon the ground that the dispute, as he understood it, did not arise " under this deed ". However, notwithstanding that dismissal his Honour granted a fresh suppression order on 14 October 2011. In the course of giving his reasons for the making of such an order he made the following observations:

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.

.....

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. [emphasis added]

25 The applicants submit that an order should be made under s 8(1)(a) on the same basis as his Honour had determined to make a suppression order in the first judgment. It was submitted that as a matter of certainty, publication of the material that would be filed in the present appeal would negate the purpose of the confidentiality provisions in the Deed and would circumvent the rights of the applicants to have such disputes resolved by confidential mediation or arbitration in the event the leave to appeal was granted and the appeal succeeded.

26 Further, not to grant such an order, as his Honour himself had observed at [54] of the second judgment, would render any appeal (if leave was granted) nugatory. In response, Dr Bell on behalf of the respondents made a number of submissions that were supported by Mr Dawson. At the outset he noted that there were three differences between the position as it was when his Honour made the first suppression order on 13 September 2011 and the position as it now was.

27 The first was that the order was not opposed by his clients although it was by Mr Dawson. I do not regard that point of difference as carrying a great deal of weight. Secondly, there was a significant difference between the relief sought in the original summons before his Honour in the September hearing and the amended summons which was before his Honour at the time the substantive proceedings for a stay were heard in October. I also have some difficulty in regarding that difference as carrying much weight, given that it was common to both summonses that an order was being sought that Mrs Rinehart be removed as trustee of the Trust. Dr Bell accepted that in the original summons the order for Mrs Rinehart's removal as trustee could only have been on the basis that there was cause for removal which was later particularised in Schedule A to the amended summons.

28 Thirdly, Dr Bell submitted that in effect his Honour erred in his observations at [18] of his first judgment which I have recorded at [18] above.

29 In one sense it was accepted that this was a family dispute about the interests in, and the governance of, a family trust. However, Dr Bell submitted that the public had an interest in the determination of a dispute such as the present that involved alleged misconduct on behalf of a trustee. He contended that unacceptable conduct on behalf of a trustee should be the subject of a public hearing, and normally is, where the Court will lay down what is acceptable conduct of a trustee and what is not.

30 On its face that submission may well be true but of itself I do not regard it as carrying any particular weight when determining whether an order is necessary to prevent prejudice to the proper administration of justice in the context of the present case.

31 It was also submitted by Dr Bell that if the primary judge was correct and if I did grant an order pursuant to the Act, its effect would be that open justice would be trumped by any agreement entered into between parties that provided for the confidential resolution of their disputes outside the ordinary court system. However, it does not seem to me that the public interest referred to should in every case be permitted to trump the provisions of an agreement by parties closely related to each other that their family disputes should be determined in confidence and out of the public eye.

32 It was further submitted that in the event that his Honour's dismissal of the stay application was reversed by this Court, there would then be a stay and the dispute between the parties would then proceed on a confidential basis in accordance with the Deed and, therefore, no harm would be caused. The difficulty with that argument is that given the terms of the amended summons, the situation would then be that the allegations against Mrs Rinehart would be in the public domain but because of the grant of a stay, her response thereto and the ultimate resolution of those allegations would be kept confidential. It does not seem to me that the administration of justice would be advanced in such an event.

33 Thus in the circumstances postulated there would be significant pressure upon Mrs Rinehart to make public her response to the allegations which are in the public domain and to the ultimate resolution of the dispute, particularly if it was in her favour.

34 It was then submitted that in any event the applicants' case on appeal was weak. In the course of argument on 14 October 2011 his Honour stated that he certainly would not conclude that the application for leave to appeal was hopeless. Dr Bell accepted that the appeal was not hopeless but asserted that in any event it was weak.

35 On the other hand Mr Kunc sought to persuade me that in fact the argument in favour of a successful appeal was strong. It is unnecessary and inappropriate for me to seek to resolve that issue. It is sufficient, in my view, to accept the primary judge's view expressed at [57] of the second judgment in the part sentence that I have emphasised at [24] above that his Honour considered that the appeal was at least arguable.

36 Of course the fact that an appeal is arguable may still mean that its prospects of success are not particularly strong. But if it is arguable, that is sufficient for present purposes, and whether it be strong or weak or in between is not an issue that it is appropriate in proceedings such as the present to resolve.

37 It was next submitted by Dr Bell that it is necessary to give primacy to s 6 of the Act which is in the following terms:

6 Safeguarding public interest in open justice

In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

38 It cannot be gainsaid that it is necessary for the Court in determining whether to exercise the discretion to grant a suppression or non-publication order in the event that one of the grounds referred to in s 8(1) is made out, to take account of the fact that "a primary objective of the administration of justice is to safeguard the public interest and open justice." It is noteworthy, however, that the public interest in open justice is not said by s 6 to be either the primary objective of the administration of justice or the only objective thereof. It is a primary objective, meaning that there are other primary objectives of the administration of justice, or may well be, which should be taken into account. One of these is that parties should be held to their bargain.

39 It was next submitted that in any event s 8(1)(a) requires the applicants to establish that it is necessary, in the sense of a high level of certainty, to establish that prejudice would be caused to the administration of justice if the order was not made. His Honour's view was that the requirement of necessity was made out. Dr Bell submitted that a suppression order in the nature of that sought should only be made, if one is to be made at all, if it is necessary to protect commercial information which could be damaging to the party that owned the information in the event that it was publicised and that there was no such information relevant to the present case.

40 As I have indicated, it was put by Dr Bell that the effect of his Honour making the order, and in the event that I should make a similar order, would be that every time there was an agreement between parties that provided for a confidential determination of disputes between them a suppression order would be sought and possibly granted.

41 However, as submitted by the applicants, the administration of justice is a multi-faceted concept. There is no doubt, and it was not disputed, that it is generally in the interests of the administration of justice that parties should be held to their bargain. Furthermore, and in the present day and age, disputing parties are encouraged to provide in their commercial agreements for a form of alternative dispute resolution which would take the pressure off the courts. The administration of justice in my view is capable of including the encouragement of parties to make such agreements and to abide by them where they otherwise apply to the dispute in question.

42 The parties in the present case have entered into such an agreement and subject to the issue as to whether the agreement applies to the present dispute, it should be given effect to with the result that a stay of the respondents' proceedings would likely be granted. If a stay is granted then it is difficult to see why the public should be made aware of the nature of the dispute which is required to be kept confidential, let alone the nature of the allegations that are made by one party or the other against another.

43 As I have already indicated, in the event that an order was not made in the present case the terms of the amended summons and the allegations against Mrs Rinehart contained in Schedule A thereto would be put into the public domain in circumstances where if a stay is ultimately granted by this Court, the determination of whether those allegations have substance would be the subject of a confidential, private mediation or arbitration. It seems to me that the administration of justice would be prejudiced if that were to be permitted.

44 Mr Dawson adopted Dr Bell's submissions and added some submissions of his own. In particular, like Dr Bell, he sought to advance the proposition that there was a tension, as clearly there is, between the protection of a private right of contract on the one hand and the objective referred to in s 6 of the Act of safeguarding the public interest in open justice on the other. However, accepting that open justice is a primary objective of the administration of justice does not necessarily lead in every case to that objective being given determinative weight. The proper administration of justice has other objectives than that of open justice although it cannot be gainsaid that the latter is of fundamental importance, as this Court has made clear on numerous occasions.

45 However, taking that into account, if otherwise it is necessary to make an order to prevent prejudice to the administration of justice then the Court should not shrink from doing so. The Parliament has spoken and the common law must take second place to the provisions of the statute. Although there was some suggestion by his Honour that the statute provided a more strict criteria than existed at common law, I am not convinced that that is so. In my view the purpose of the legislation is to permit of the making of a suppression or non-publication order in circumstances which would not necessarily conform to the exceptions which the common law has recognised to the principle of open justice. However, there is no doubt that the strict words of the statute in terms of the grounds which must be established before an order is made, must be adhered to.

46 Mr Dawson also submitted that there was an interest in the public ascertaining the allegations made by her children against Mrs Rinehart as she was a public figure and, therefore, in that sense had placed herself in the public domain so that any allegations against her should be aired in public. He posed the question: how does the public find out about these allegations or what the Court is doing about them unless they are given access to the information in question? One answer is that the Court's judgments are not the subject of a suppression order so that the public can glean from them the nature of the dispute: in this case, that Mrs Rinehart should be removed as the trustee of the Trust for alleged misconduct.

47 Brereton J's two judgments are in the public domain as will be the present judgment and, in due course, that of the Court of Appeal on the appeal against his Honour's dismissal of the application for a stay if leave is granted. In that respect the public will become aware of the nature of the proceedings before the Court and the fact that they are unable to gain access to what I might regard as the more juicy parts of the dispute between these parties is not in my opinion a reason for not exercising the power if I am otherwise satisfied that it is necessary to prevent prejudice to the proper administration of justice that an order be made. I am so satisfied and I propose to make an order accordingly.

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Decision last updated: 10 November 2011