Supreme Court New South Wales

• Medium Neutral Citation: Welker & Ors v Rinehart & Anor (No 5) [2012] NSWSC 45
• Hearing dates: 2 February 2012
• Decision date: 02 February 2012
• Jurisdiction: Equity Division - Duty List
• Before: Ball J

Decision

See paragraphs 22 and 23 of this judgment.

• Catchwords: PROCEDURE - suppression orders - order necessary to protect the safety of any person - threat to safety allegedly because of increased media interest in litigation - Interim suppression orders
• Legislation Cited: Court Suppression and Non-Publication Act 2010 (NSW); Federal Court of Australia Act 1976 (Cth)
• Cases Cited: Hogan v Australian Crime Commission [2010] HCA 21; Rinehart v Welker [2011] NSWCA 425; Rinehart v Welker [2012] NSWCA 1; Welker & Ors v Rinehart [2011] NSWSC 1094; Welker & Ors v Rinehart (No 2) [2011] NSWSC 1238
• Category: Procedural and other rulings
• Parties: Hope Rinehart Welker (First Plaintiff); John Langely Hancock (Second Plaintiff); Bianca Hope Rinehart (Third Plaintiff); Gina Hope Rinehart (First Defendant); Ginia Hope Frances Rinehart (Second Defendant); Australian Broadcasting Corporation, Fairfax Media Publications Pty Ltd, Nationwide News Pty Ltd (Media Interests)
• Representation: Mr D F C Thomas (Plaintiffs); Mr M Walton SC (First Defendant); Mr F Kunc SC (Second Defendant); Mr A T S Dawson / Ms F T Roughley (Australian Broadcasting Corporation, Fairfax Media Publications Pty Ltd, Nationwide News Pty Ltd); Johnson Winter & Slattery (Plaintiffs); Corrs Chambers Westgarth (First Defendant); Gadens (Second Defendant); Addisons (Australian Broadcasting Corporation, Fairfax Media Publications Pty Ltd, Nationwide News Pty Ltd)
• File Number(s): 2011/285907

EX TEMPORE Judgment

1 Before dealing with the application currently before me I should say something about the history of these proceedings.

2 The substantive proceedings concern a family trust of which Mrs Gina Rinehart is currently the trustee. The parties to the proceedings are Mrs Rinehart and her 4 children. The substantive relief sought in the proceedings is sought by 3 of the children (the plaintiffs in these proceedings) and opposed by Mrs Rinehart and her youngest daughter, Ms Ginia Rinehart (the defendants).

3 The proceedings, which are still before the court, were initially heard by Brereton J on 13 September 2011. Brereton J delivered a judgment (see Welker & Ors v Rinehart [2011] NSWSC 1094) in which his Honour made a suppression order under the Court Suppression and Non-Publication Act 2010 (NSW) (the Act ) in respect of the material before him on the ground set out in s 8(1)(a) of that Act - that is, on the ground that the order was necessary to prevent prejudice to the proper administration of justice. On 7 October 2011, Brereton J also refused to stay these proceedings (see Welker & Ors v Rinehart (No 2) [2011] NSWSC 1238).

4 Brereton J's refusal to stay these proceedings is the subject of an application for leave to appeal. In connection with that application, on 31 October 2011, Tobias AJA made an order in the following terms:

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.

The suppression order made by Brereton J was discharged.

5 Various media interests made an application to the Court of Appeal to review the decision of Tobias AJA and, on 19 December 2011, Bathurst CJ, McColl and Young JJA made an order discharging that order. However, the order discharging the suppression order has been stayed, most recently by the High Court on 2 February 2012. The position is now that the order made by Tobias AJA will continue at least until the hearing of the special leave application relating to the discharge of that order, which is due to be heard on 9 March 2012.

6 In the meantime, on 1 February 2012, Mrs Rinehart made an application before me for a further order under s 7 of the Act in respect of the material that is the subject of the order made by Tobias AJA on the ground set out in s 8(1)(c) - that is, on the ground that the order is necessary to protect the safety of a person or persons. That application was supported by two affidavits which were read on the application. One of those affidavits was sworn by Mr Paul McCann, who is a partner of Corrs Chambers Westgarth and who acts for Mrs Rinehart. The other affidavit was sworn by Mr Michael Humphreys, who is the Managing Director of Control Risks Australia Pacific, which is a company that provides security advice, among other things, to clients. I refused to make any ex parte orders at that time, but gave leave to serve the application on short notice and directed that the application be made returnable today.

7 At the time the affidavits were read on 1 February 2012, Mr Walton SC, who appears on behalf of Mrs Rinehart, says that he was proceeding on the assumption that the orders made by Tobias AJA applied equally to those affidavits and the other material put before the court at that time. A dispute has arisen in relation to that question and, as a consequence, Mr Walton now seeks a further order under the Act relating to the motion that came before me yesterday and the material filed in support of that motion. That application is supported by Mr Kunc SC who appears for Ms Ginia Rinehart. It is opposed by Mr Thomas who represents the plaintiffs in these proceedings and also by Mr Dawson who represents various media interests.

8 One thing I should make clear in relation to this judgment is that it is not concerned with the scope of Tobias AJA's order, which remains in force. The only question before me is whether it is appropriate to make some additional order relating, as I have said, to the material which has so far been filed in support of the motion seeking an order under s 7 of the Act on the ground set out in s 8(1)(c).

9 Mr Walton puts the application for an additional order on two bases. The principal basis is said to be s 10 of the Act, although Mr Walton also relies on s 7 and the ground set out in s 8(1)(c).

10 Section 10 of the Act provides:

(1) If an application is made to a court for a suppression order or non-publication order, the court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the court, until the application is determined.

(2) If an order is made as an interim order, the court must determine the application as a matter of urgency.

11 I am not prepared to treat the current application as an application under s 10. Section 10 has been included in the Act to cater for the possibility that it is not possible to hear argument in relation to whether a suppression or non-publication order should be made. In those circumstances, s 10 gives the court power to make an interim order that should last only for so long as is necessary in order for the court to hear argument on the merits.

12 I do not think that is the current situation. I have heard arguments on the merits and both Mr Walton and Mr Kunc have made it clear that the basis on which they say an order ought to be made is the ground set out in s 8(1)(c).

13 I do not think it is necessary for me in the context of this application to set out the applicable principles in any detail. They were most recently summarised by the Court of Appeal in this matter both in the decision delivered by Beazley JA on 21 December 2011 ( Rinehart v Welker [2011] NSWCA 425) and a decision delivered by Bathurst CJ, McColl JA and Young JA on 13 January 2012 ( Rinehart v Welker [2012] NSWCA 1).

14 It is sufficient to note two points. The first is that s 6 of the Act provides:

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.

It is necessary for the court to bear in mind that section in determining what to do.

15 Secondly, s 8(1)(c) makes it clear that an order should only be made under s 7 if the court is satisfied that the order is necessary to protect the safety of any person. As the courts have made clear, "necessary" is a strong word and it means something more than desirable or reasonable. For example, in Hogan v Australian Crime Commission [2010] HCA 21, French CJ, Gummow, Hayne, Heydon and Kiefel JJ considered a similarly worded provision in s 50 of the Federal Court of Australia Act 1976 (Cth) and observed at [31]:

It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some 'balancing exercise', the order appears to have one or more of those characteristics.

These observations apply equally to s 8(1)(c) of the Act currently under consideration.

16 Three submissions in effect are made in support of the order that is now sought. The first is essentially a submission that, if these proceedings receive publicity and in particular if the application before me receives publicity, then that is likely to or at least may attract the attention of persons who could constitute a threat to the parties to the litigation. The other two submissions are directed more specifically to the contents of the two affidavits which were read in support of the application.

17 So far as the first submission is concerned, I do not think that Mrs Rinehart has established that a suppression order in relation to the current application is necessary to protect the safety of any of the persons who are a party to this litigation. There can be no doubt that there is considerable media interest in this litigation and from the parties' point of view the publication of it may attract unwelcome comment or attention. However, I think the same is true of any of the conduct that those parties may engage in and I do not think that that alone is sufficient to establish that it is necessary to protect the safety of those persons to make a suppression or non-publication order. Mr Walton does not point to any specific threat that publication of this application is said to give rise. It would follow from Mr Walton's submission that a suppression or non-publication order would be justified on the ground set out in s 8(1)(c) in respect of any proceedings involving a person with a significant public profile. That, it seems to me, cannot be correct.

18 So far as the affidavit of Mr McCann is concerned, it does two broad things. First, it attaches some material which is available in the public domain concerning one or more of the parties to these proceedings. Secondly, it attaches some correspondence between the parties in which one or more of them express concern about their personal security having regard to the publicity the case has attracted. In my opinion, there is nothing in that material of which it could be said that suppression or non-publication is necessary, in the relevant sense, to protect the safety of those persons.

19 I find it very difficult to see how suppression of material which is already in the public domain could be necessary to protect the safety of any person. As to the emails, they simply express a general concern and again I do not see how suppression of those emails is necessary to protect the safety of their authors. It is noteworthy that the plaintiffs in these proceedings, whose safety it is said is at risk, resist any order under s 7.

20 That leaves the affidavit of Mr Humphreys. That affidavit attaches a report prepared by Mr Humphreys in which he purports to compare the current risks that the parties to these proceedings face with the risks that they would face if the material which is currently the subject of Tobias AJA's orders became public.

21 Again, I do not see how publication of that report creates a particular risk to the parties to this litigation and there is nothing in the report which explains why that would be the case. The essential point of the report is that the more publicity the parties to these proceedings receive, the greater the risk that they will attract attention from undesirable people in the community and as a result the greater the risk they face to their safety. But put like that, the submission seems to me to be no different from the first way in which Mr Walton put his argument in support of the current application and for the reasons I have given I do not accept that submission.

22 It follows from what I have said that I am not prepared to make orders in terms of either those sought by Mrs Rinehart or Ms Ginia Rinehart. There is, however, one exception to that. In my opinion, an order should be made under s 7 on the ground set out in s 8(1)(c) that there be no publication of any information which would identify where any of the parties to these proceedings reside or how they can be contacted. An order in those terms is consistent with the protocol adopted by the court in dealing with the personal information of any party to court proceedings.

23 I will hear the parties on the precise form of the order that should be made but I should make it clear that an order should also be made in this respect under s 11 so that the order applies anywhere in the Commonwealth.

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Decision last updated: 09 February 2012