Supreme Court New South Wales

• Medium Neutral Citation: Welker & Ors v Rinehart & Anor (No 6) [2012] NSWSC 160
• Hearing dates: 28 February 2012
• Decision date: 06 March 2012
• Before: Ball J

Decision

See paragraph 62 of this judgment.

• Catchwords: PROCEDURE - non-publication order under Court Suppression and Non-Publication Orders Act 2010 - whether order necessary to protect safety of any person - meaning of "necessary" - whether increase in media attention constituted threat to safety. PROCEDURE - Anshun estoppel - not applicable to interlocutory orders - whether party still free to re-litigate interlocutory application without change of circumstances. EVIDENCE - expert evidence - security and safety experts - UCPR expert witness code of conduct - failure to provide code to witness before preparing report - whether cured by later affidavit asserting compliance with code. EVIDENCE - expert evidence - compliance with experts code of conduct and Makita requirements - failure to comply - failure to identify material relied upon in expert report - failure to disclose reasoning process - no demonstration of application of specialised knowledge.
• Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW); Evidence Act 1995 (NSW); Federal Court of Australia Act 1976 (Cth); Uniform Civil Procedure Rules 2005
• Cases Cited: Barak v WTH [2002] NSWSC; Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44; Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980; Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279; Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651; Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506; Investmentsource v Knox St Apartments [2007] NSWSC 1128; Jermen v Shell Company of Australia Ltd [2003] NSWSC 1106; Licul v Corney (1976) 180 CLR 213; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Nominal Defendant v Manning (2000) 50 NSWLR 139; Port of Melbourne Authority v Anshun Pty Limited (1981)147 CLR 589; Ray Fitzpatrick Pty Ltd v Minister for Planning [2007] NSWLEC 791; Rinehart v Welker [2011] NSWCA 403; Welker & Ors v Rinehart & Anor (No 5) [2012] NSWSC 45
• Category: Procedural and other rulings
• Parties: Hope Rinehart Welker (First Plaintiff); John Langely Hancock (Second Plaintiff); Bianca Hope Rinehart (Third Plaintiff); Gina Hope Rinehart (First Defendant); Ginia Hope Frances Rinehart (Second Defendant); Australian Broadcasting Corporation, Fairfax Media Publications Pty Ltd, Nationwide News Pty Ltd (Media Interests)
• Representation: Mr D F C Thomas (Plaintiffs); Mr M Walton SC (First Defendant); Mr F Kunc SC (Second Defendant); Mr D Sibtain / Ms F T Roughley (Australian Broadcasting Corporation, Fairfax Media Publications Pty Ltd, Nationwide News Pty Ltd); Johnson Winter & Slattery (Plaintiffs); Corrs Chambers Westgarth (First Defendant); Gadens (Second Defendant); Addisons (Australian Broadcasting Corporation, Fairfax Media Publications Pty Ltd, Nationwide News Pty Ltd)
• File Number(s): 2011/285907

Judgment

1 By a notice of motion filed on 1 February 2012, the first defendant in these proceedings, Mrs Gina Rinehart, seeks a non-publication order pursuant to the inherent jurisdiction of the court, or alternatively pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act ) on the ground referred to in s 8(1)(c), in respect of any pleading, evidence or argument filed, read or given in these proceedings, together with a number of ancillary orders. The ground referred to in s 8(1)(c) is that "the order is necessary to protect the safety of any person". Although Mrs Rinehart relies on the inherent jurisdiction of the court as well as s 7 of the Act, it was not suggested that an application based on the court's inherent jurisdiction could succeed in the event that the application based on the Act failed; and the submissions of the parties were confined to the Act. In those circumstances, it is not necessary to consider separately the application insofar as it was based on the court's inherent jurisdiction.

2 Mrs Rinehart's application was supported by the second defendant, Ms Ginia Rinehart, Mrs Rinehart's youngest daughter, although no separate submissions were made on her behalf. The application was opposed by the plaintiffs in the proceedings, Mrs Rinehart's other three children, and by certain news media organisations, who have an entitlement to appear on the application under s 9(2)(d) of the Act.

Background

3 The substantive proceedings concern a family trust known as the Hope Margaret Hancock Trust of which Mrs Rinehart is currently the trustee. The plaintiffs seek to be appointed as trustees of the trust in her place. The defendants oppose that application.

4 On 13 September 2011, Brereton J made a suppression order in the proceedings substantially in the terms now sought on the ground set out in s 8(1)(a) of the Act - that is, on the ground that "the order [was] necessary to prevent prejudice to the proper administration of justice". That order was made pending consideration by his Honour of the question whether the proceedings should be stayed on the basis that the parties were bound by an agreement to arbitrate the substantive dispute and to keep that arbitration confidential.

5 On 7 October 2011, Brereton J dismissed the defendants' motion for a stay. At the same time, his Honour concluded that the basis for the suppression order he had made on 13 September 2011 was removed, since the plaintiffs were not bound to submit the dispute to a confidential arbitration. Nonetheless, his Honour made an interim suppression order to give the defendants an opportunity to seek leave to appeal.

6 On 28 October 2011, the defendants both filed summonses seeking leave to appeal and at the same time both filed motions seeking a further suppression order. On 31 October 2011, Tobias AJA made a suppression order in respect of the material before the Court of Appeal, which covered most of the material before Brereton J. At that time, the order made by Brereton J lapsed.

7 On 7 November 2011, the news media organisations filed a notice of motion seeking a review of the suppression order made by Tobias AJA. That review was heard by Bathurst CJ, McColl and Young JJA who, on 19 December 2011, made an order discharging the suppression order made by Tobias AJA. The defendants then both filed motions seeking a stay of that order. That stay was granted by Beazley JA up to and including 13 January 2012.

8 On 23 December 2011, the defendants made an application for an extension of the stay granted by Beazley JA pending an application for special leave to appeal to the High Court. That extension was granted by Bathurst CJ, Beazley and McColl JJA on 13 January 2012 up to and including 3 February 2012.

9 On 30 January 2012, the defendants made an application to the High Court for a further stay of the order of the Court of Appeal made on 19 December 2011 pending determination of the application for special leave. That application was granted by Crennan J. The special leave application has been listed for hearing on 9 March 2012.

10 It is against that background that the current application is made. It is made on the ground that a non-publication order in relation to the material which was the subject of the order made by Brereton J is necessary to protect the safety of Mrs Rinehart and her children and grandchildren.

The evidence

11 The application relies principally on three reports prepared by persons who are said to be experts in the field of personal safety and security. I will say more about those reports shortly. It is sufficient to observe at present that each report expresses the opinion that disclosure of the material would significantly increase the threat to the safety of Mrs Rinehart and her family.

12 Mrs Rinehart also relies on emails between her and members of her family expressing concern about their security and on the fact that recently an insurer which has provided terrorism insurance to Mrs Rinehart and her family has refused to renew cover for the plaintiffs and has increased the premium payable for the policy. In my view, this additional evidence does not assist Mrs Rinehart's case. The fact that the parties have expressed some concerns about their security says nothing about the connection between the order sought and the risk to their safety. There may be many reasons why the insurer has refused to renew the policy for some insureds and increased the premium for others, not least of which is that it appears that the existence of the policy was widely publicised in apparent breach of one of its terms. Even if the insurer has taken the action it has because it believes that the risk has increased, that says nothing about whether a non-publication order is necessary to protect the safety of Mrs Rinehart and her family. Mr Walton SC, who appeared for Mrs Rinehart, all but conceded that the application depended on the three expert reports.

The issues

13 The application raises three broad issues. The first is whether Mrs Rinehart is entitled to bring the present application in circumstances where Brereton J and the Court of Appeal have already made orders discharging suppression orders in respect of substantially the same material, albeit that those orders were made on a different ground and the discharge of the order made by Tobias AJA has been stayed pending an application for special leave to appeal to the High Court. The second issue is whether the three expert reports are admissible. The third issue is whether, having regard to the conclusions reached in relation to the first two questions, the order sought by Mrs Rinehart should be made.

14 One other subsidiary issue arises on the application. On the hearing of the application, Mr Walton SC sought a non-publication order in respect of one paragraph of the written submissions that had been filed on behalf of Mrs Rinehart. I made an interim order in respect of that paragraph under s 10 of the Act and indicated to the parties that I would deal with the application in respect of that paragraph in this judgment.

Is Mrs Rinehart entitled to bring the application?

15 Mr Thomas, who appeared for the plaintiffs, submitted that Mrs Rinehart should not be permitted to bring the present application for two reasons. First, he submitted that Mrs Rinehart is seeking to litigate an issue which, absent success in the High Court, has been determined against her and that as a consequence she is now estopped from bringing the present application in accordance with the principles stated by the High Court in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 at 602-3. Secondly, he submitted that the application is an abuse of process on the basis that it is brought for the illegitimate purpose of subjecting the plaintiffs to further and unjustified expense and pressure.

16 The question whether an Anshun estoppel applies to an order under s 7 depends on whether such an order is properly classified as final or interlocutory. As McLelland J pointed out in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46, "[i]nterlocutory orders, of their very nature, create no res judicata or estoppel". The question whether an order is final or interlocutory depends on whether it finally disposes of the rights of the parties. If it does not, it is interlocutory: Licul v Corney (1976) 180 CLR 213 at 225 per Gibbs J.

17 There can be no doubt that an order under s 7 of the Act is an interlocutory order. Section 13(1) provides:

The court that made a suppression order or non-publication order may review the order on the court's own initiative or on the application of a person who is entitled to apply for the review.

Subsection (2) sets out who is entitled to make such an application. Subsection (3) provides:

On a review, the court may confirm, vary or revoke the order and may in addition make any other order that the court may make under this Act.

There is nothing in the Act which prevents a further application for a suppression order. An order under s 7 is, in this respect, no different from an order under s 50 of the Federal Court of Australia Act 1976 (Cth), which the High Court has held is interlocutory: Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651.

18 Although no Anshun estoppel applies, that does not mean that a party is free to re-litigate an interlocutory application. The position was explained by McLelland J in Brimaud at 46 in these terms:

The overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case. In giving effect to that general principle, and in recognition of the public and private interests earlier referred to, rules of practice have been developed in accordance with which the discretionary power of the court to set aside, vary or discharge interlocutory orders will ordinarily be exercised. Not all kinds of interlocutory orders attract the same considerations. For present purposes one may put to one side orders of a merely procedural nature (as to which see for example Wilkshire & Coffey v Commonwealth (1976) 9 ALR 325) and injunctions (or undertakings) made or given by agreement and without contest "until further order" (as to which see for example Warringah Shire Council v Industrial Acceptance Corp (unreported, SC(NSW), McLelland J, 22 November 1979).

In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application ...

The same principle applies where the application for interlocutory relief has failed and a further application for the same relief is made. As Heydon JA said in Nominal Defendant v Manning (2000) 50 NSWLR 139 at [72]:

[T]he Nominal Defendant's proposition that no second interlocutory application can be entertained unless there is a change of circumstances or unless evidence is relied on which could not reasonably have been obtained earlier is too extreme, but a litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self-created risks of an adverse exercise of judicial discretion. ...

19 At one point in argument, Mr Walton SC conceded that Mrs Rinehart must establish that circumstances have changed if she is to succeed. According to him, circumstances have changed because, at the times the applications for a suppression order were made before Brereton J and Tobias AJA, the case had attracted limited publicity. Now, however, it has received intense scrutiny in the media and that has altered the nature of the risk attaching to publication of the relevant material.

20 In my opinion, this submission both concedes too much and goes too far. If the true position is that the evidence establishes that a non-publication order is necessary to protect the safety of a person, that may provide a strong reason for making the order, even though the evidence in support of the application was available at the time the original suppression order was made and even though nothing has changed since then. The risk to someone's safety itself may justify departure from the general principle stated by McLelland J. Consequently, it seems to me it is not possible to separate the question whether the court should entertain the application from the merits of the application itself.

21 On the other hand, it is very difficult to see how circumstances have changed in a way that would justify making an order now if that is the issue on which exercise of the discretion depends. The basis of the application is that disclosure of the relevant information will put Mrs Rinehart and her children and grandchildren at risk either because of the publicity it will generate or because of the additional information it will reveal concerning them. But it is difficult to see how the level of publicity that the case and Mrs Rinehart have already received alters the quality of that risk. If, as is unquestionably the position, the case and Mrs Rinehart have received a great deal of media attention, it might be thought that the risks attendant on further media attention following publication of the relevant material have diminished, not increased. On the other hand, if the true concern is that the material reveals information which increases the personal risk to Mrs Rinehart and her family, it is difficult to see why that risk did not exist at the time the original application was made. In any event, as I have said, in the circumstances of this case, I do not regard these considerations as decisive. On the way Mrs Rinehart puts her case, this may be an application where changed circumstances are not essential to its success.

22 In my opinion, the claim that the application is an abuse of process adds nothing to the claim that the court ought not to entertain the application in accordance with the principles established in cases such as Brimaud. If the opponents to the application succeed on the latter ground, there is no need to consider whether the application is also an abuse of process. On the other hand, if they fail on that ground because Mrs Rinehart has succeeded in establishing that an order is necessary to protect her own or her family's safety, then it is very difficult to see how the application could be an abuse of process. Consequently, in my opinion, that argument can be put to one side.

Are the reports admissible?

23 Mrs Rinehart relies on three reports: one prepared by Mr Humphreys dated 31 January 2012, one prepared by Mr Moorhouse dated 16 February 2012 and one prepared by Mr Bowden dated 16 February 2012.

24 Section 79 of the Evidence Act 1995 (NSW) creates an exception to the general rule that opinion evidence is inadmissible where "a person has specialised knowledge based on the person's training, study or experience" and the opinion is "wholly or substantially based on that knowledge". Each of Messrs Humphreys, Moorhouse and Bowden gives evidence that he has at least some experience in the field of assessing threats to personal safety and making recommendations to minimise those threats. There is no suggestion that that is not a recognised field of expertise. Although it was suggested by the news media organisations that Mr Moorhouse and Mr Bowden did not have the necessary experience to qualify as experts in that field, in my opinion, they are sufficiently qualified. Mr Moorhouse served in the Australian Army from 1996 to 2004 and between 2002 and 2004 he was a Special Forces Counter Terrorism Commander in the Australian Defence Force. He has a Master of Arts in International Relations, completed a thesis on terrorism and has a Certificate IV in Security Risk Management. Since 2004, he has worked for an emergency management specialist firm which he founded. Mr Bowden joined the Australian Army in 1992 and became an officer of the Royal Australian Corps of Military Police and worked in the close personal protection section, which, among other things, involved threat assessment, security planning and risk analysis. He has also held appointments with the NSW Attorney General's Department, including as Assistant Sheriff. He holds a Bachelor of Policing and a Diploma of Risk Management. He has for the past 9 years worked for a firm that specialises in risk and crisis management, which he founded. Both Mr Moorhouse and Mr Bowden depose to the fact that they have conducted risk assessments in accordance with a standard known as ISO 31000 and, although neither gives details of those assessments, there is no reason not to accept that evidence.

25 Mr Humphreys analysis, it seems to me, amounts to this:

(a) "The Rinehart Family have relatively low public and media profiles" (at the time of his report);

(b) Increased media reporting concerning a person leads to a higher public profile of that person;

(c) a high public profile leads to increased risks from various sources. Mr Humphreys put it in these terms:

A high media profile or sensational reporting alerts organised and petty criminals, psychologically unstable individuals and issue motivated groups to the existence of potential victims. Media reporting of wealth and relationship issues, particularly when families are involved, assists in the motivation of threat groups by giving psychological justification for criminal actions. Reporting also assists criminals by providing practical information regarding identification, location and habits of victims. ...

(d) The lifting of the non-publication order will result in increased media reporting of the dispute;

(e) Therefore, lifting of the non-publication order will result in increased risks to Mrs Rinehart and her family. In particular, lifting the non-publication order is likely to:

Increase threats to Mrs Gina Rinehart from criminals, deranged individuals and issue motivated groups in Australia. Her travel security threat levels are also negatively impacted.

Significantly increase threats to Mr John Hancock and his children in Thailand from organised crime

Significantly increase threats to Ms Bianca Rinehart and her family in Vancouver from issue motivated groups and organised, criminals, deranged personsl [sic] and issue motivated groups

Significantly increase threats to Ms Hope Welker Rinehart and her family in New York from organised and petty criminals, deranged personnel and issue motivated groups

Increase the threat to Ms Ginia Rinehart in the UK from organised and petty criminals, issue motivated groups and deranged personnel.

26 Mr Moorhouse takes a somewhat different approach. The conclusion of his report is summarised in the following passage:

The disclosure of specific and detailed information regarding Mrs Reinhart [sic] and her family will increase their exposure to deliberate security threats thereby threatening the safety of Mrs Reinhart [sic] and her family. ...

27 It is not so easy to follow Mr Moorhouse's reasoning. He starts with what he describes as a "security risk/threat matrix" which seeks to evaluate the risks Mrs Rinehart and her family currently face in relation to identified categories. Those categories are described as "Kidnapping/Extortion", "Crime/Assault", "Crime/Theft", "Extortion", "Digital Threat", "Freedom of Movement". Mr Moorhouse then records that he was instructed that:

... if details of the current suppressed material were to be published there would be, in the public domain, details of the financial arrangements and financial prospects of the parties to this litigation, arising from the various instruments to which they are a party and which are in evidence in the proceedings, together with the details of the allegations in support of the plaintiffs' claims.

Based on those instructions he then sets out his revised opinions against the categories he identified in the event the material is published. So, for example, he says under the category "Kidnapping/Extortion":

Names and locations of family members and there [sic] assets will increase the exposure of those persons to kidnapping attempts and better inform extortion attempts on the subject or her family.

This is especially true when Mrs Rinehart and her family are travelling overseas, which they do regularly. Violent and well planned kidnapping of wealthy foreigners overseas is common. Potential assailants need detailed information to plan such attacks. Such information is included within the current Suppression Order.

Under the category "Crime/Assault" he says:

Specific information regarding names and the whereabouts of family members becomes readily available and can be exploited by subversive elements. This is particularly true in the case of extremist issue motivated (protest) groups which will gain highly specific information which could assist their planning, if the Suppression Order is lifted.

Under the category "Extortion" he says:

The high profile nature of the subject together with the disclosure of family details and whereabouts will increase the likelihood of harassment and threats of violence made toward family members. This is particularly true of children.

The other categories identified by Mr Moorhouse are of less significance, since they have little to do with personal safety.

28 Mr Bowden's approach is even more difficult to follow. The starting point for his analysis is the observation that Mrs Rinehart's profile has increased very substantially over recent times:

In the case of the Rinehart's [sic], Mrs Rinehart's recent high profile opposition to the mining tax as well as her investments in Channel TEN and Fairfax Media, has made the family the subject of intense media interest.

Until these recent events, and particularly the court case, the activities of the Rineharts were little known in the broad Australian community. ...

Similarly, Mr Bowden says:

The court case has put the family on the front pages of Australian media. Media throughout the world have picked up the story and adult photographs of the four Rinehart children have been published, in some cases for the first time. ...

Personal details pertaining to the Rinehart family have been disclosed that add significantly to the amount of information in the public domain. These details include the existence of, gender of, general location of and, in one case the first name of the Rinehart grandchildren. This release of information and association with wealth identifies the Rinehart family as prime targets for criminal activity.

Mr Bowden then observes he is unable to disclose currently suppressed material "with regards to the financial arrangements, instruments and prospect of beneficiaries of the Hope Margaret Hancock Trust", although he goes on to observe that there have been media reports suggesting the trust has assets worth at least $3 billion. He then refers to two examples - one of the successful kidnap of a child of one of Russia's wealthiest men and the other of the foiled attempt to kidnap Athina Onassis. He then says (and these paragraphs really embody his conclusions):

In the case of the Rinehart children and grandchildren, their low profile and comparatively modest lifestyles allow them to live in normal residential communities, enjoying a degree of anonymity and freedom of movement. Although they had sensibly taken certain security measures, they have been able, until the recent release of private information by the court, to live largely without the fear that they or their children might be targeted because of their mother's great wealth.

If the release of information that is currently suppressed were to be released and published there would be in the public domain further details of the financial arrangements, instruments and prospects of the Trust. The relationship between this information and the lives of the Rinehart children and grandchildren changes overnight.

In the assessment of criminal gangs, a timeline for disbursement of funds would change the Rinehart children from individuals who are not a target, but who one day become individuals with access to enormous wealth exercised through financial instruments in the Trust.

Publication of such details would allow criminals to plan acts based on a much fuller understanding of the Rinehart family's financial arrangements than currently exists in the public domain. This could increase the likelihood of a criminal act being attempted and also increase the likelihood of that act being successful.

29 Broadly speaking, two objections are taken to these reports. First, it is submitted that the reports do not comply with Uniform Civil Procedure Rules ( UCPR ) r 31.23, and the court should not make an order dispensing with the consequences of that rule. Second, it is submitted that the reports do not comply with schedule 7 of the UCPR or with the principles summarised by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85]. The first objection concerns the process by which the reports came to be prepared. The second concerns the content of the reports.

30 UCPR r 31.23 provides:

(1) An expert witness must comply with the code of conduct set out in Schedule 7.

(2) As soon as practicable after an expert witness is engaged or appointed:

(a) in the case of an expert witness engaged by one or more parties, the engaging parties, or one of them as they may agree, or

(b) in the case of an expert witness appointed by the court, such of the affected parties as the court may direct,

must provide the expert witness with a copy of the code of conduct.

(3) Unless the court otherwise orders, an expert's report may not be admitted in evidence unless the report contains an acknowledgment by the expert witness by whom it was prepared that he or she has read the code of conduct and agrees to be bound by it.

(4) ....

31 Schedule 7 relevantly provides:

1 Application of code

This code of conduct applies to any expert witness engaged or appointed:

(a) to provide an expert's report for use as evidence in proceedings or proposed proceedings, or

(b) to give opinion evidence in proceedings or proposed proceedings.

2 General duty to the court

(1) An expert witness has an overriding duty to assist the court impartially on matters relevant to the expert witness's area of expertise.

(2) An expert witness's paramount duty is to the court and not to any party to the proceedings (including the person retaining the expert witness).

(3) An expert witness is not an advocate for a party.

,..

5 Experts' reports

(1) An expert's report must (in the body of the report or in an annexure to it) include the following:

(a) the expert's qualifications as an expert on the issue the subject of the report,

(b) the facts, and assumptions of fact, on which the opinions in the report are based (a letter of instructions may be annexed),

(c) the expert's reasons for each opinion expressed,

(d) if applicable, that a particular issue falls outside the expert's field of expertise,

(e) any literature or other materials utilised in support of the opinions,

(f) any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out,

(g) in the case of a report that is lengthy or complex, a brief summary of the report (to be located at the beginning of the report).

(2) ...

...

32 None of the experts in this case was provided with a copy of Schedule 7 until after they had prepared their reports. Nor was any of them given instructions consistent with Schedule 7. The letter of instructions given to Mr Moorhouse is typical of the instructions given to each of them. It provides a brief background to the dispute and describes in general terms where Mrs Rinehart and her children and grandchildren live. The letter then goes on to say:

Media interest in Mrs Rinehart's wealth

You will be familiar with the media coverage regarding Mrs Rinehart's wealth, which in the past week is alleged to have doubled to in excess of $20 billion.

To date, the media have report [sic] that the proceedings relate to the Trust, which has been described as holding "no small part" of the family's wealth.

It is this link that has been made by the media and which is widely reported in Australia and overseas, which has raised genuine concerns by Mrs Rinehart as to her safety and that of her family. It may be assumed that if the suppression order were to be lifted that this sort of media reporting would dramatically increase.

As relayed to you in conference, the family is incredibly private. Until recently, very limited footage has been available on the family members or their personal details including their present whereabouts and individual financial positions.

What is being sought

Mrs Rinehart proposes to make an application in proceedings under the terms of the Court Suppression and Non-Publication Orders Act 2010 (NSW) pursuant to s 8(c) that a suppression or non-publication order is justified by reason of it being "necessary to protect the safety of any person".

Whilst there is no present threat that Mrs Rinehart can point to, she believes that with the heightened interest in her wealth, the lifting of the suppression order and the reporting of the proceedings and the link to that wealth, that it is realistic for her to hold fears for herself, her children and her grandchildren.

We seek your assistance to demonstrate at least the following propositions:

(a) increased media interest and reporting of a person's wealth is causally linked to and increases that person's risk profile; and

(b) if the suppression order is lifted, can it be expected that the increased media interest and reporting will further increase in Mrs Rinehart's risk profile and that of her family.

An historical example of wealth associated with publicity that led to kidnapping and murder occurred in 1960, after Bazil Thorne won the lottery. There was no option of privacy for lottery winners at the time, and the details of the lottery win including the amount, Mr Thorne's name and address were published on the front page of the newspaper. Shortly after, Mr Thorne's young son was kidnapped and murdered. It is this type of connection that seems to us to be relevant to the present application. There will no doubt be far more recent examples which will be worth relying on.

33 Mrs Rinehart attempted to overcome the failure to comply with UCPR r 31.23 by having each expert swear or affirm an affidavit on 23 February 2012 containing the following paragraphs:

3. On 22 February 2012 I was provided with a copy of the Expert Witness Code of Conduct ( Code ) contained in Schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW). Annexed hereto and marked " A " is a copy of the Code.

4. I have read the Code and agree to be bound by it.

5. Having read the Code I confirm that I hold the opinions expressed in the report and do not wish to alter any of those opinions.

34 I was taken to a number of decisions in which courts have considered the question whether a failure to comply with UCPR r 31.23, or its predecessor found in the Supreme Court Rules, can be cured by an affidavit of that type or whether such an affidavit can form the basis of an order admitting the report notwithstanding the non compliance, including Barak v WTH Pty Ltd [2002] NSWSC 649 (Barrett J); Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980 (Einstein J); Jermen v Shell Company of Australia Ltd [2003] NSWSC 1106 (Shaw J); Ray Fitzpatrick Pty Ltd v Minister for Planning [2007] NSWLEC 791 (Jagot J); Investmentsource v Knox St Apartments [2007] NSWSC 1128 (McDougall J). However, in my opinion, those cases are of limited assistance having regard to the recent decision of the Court of Appeal in Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279. At first instance in that case Einstein J had rejected the admission of an expert report for non-compliance with UCPR r 31.23. In doing so, his Honour summarised (at [57]) the relevant principles in these terms:

i. Unless the court "otherwise orders", the reports not containing the acknowledgement that the expert agrees to be bound by the expert code of conduct should not be admitted into evidence (UCPR 31.23(3));

ii. The court must be satisfied that there are "exceptional circumstances" justifying the admission of the reports;

iii. In preparing reports without having agreed to be bound by the code of conduct, there is a real risk that the expert will have committed to a particular form of opinion which an ex post facto adoption of the code cannot cure ...

On appeal, the Court of Appeal did not accept those principles. Young JA (with whom Beazley JA and Handley AJA agreed) rejected the second principle and said of the third the following (at [63]):

Principle iii enunciated by the primary judge has some validity, but it must not be elevated into a general rule. Each case must be considered on its merits. The court may consider that the assumed "real risk" is non-existent or minor. If so, in the case where an expert makes an initial report without having the Code in mind and then is shown the Code and swears that in fact he or she did abide by it and now affirms the original report, the evidence should be admitted. Again, if the court can see that he or she is not just rubber stamping the original report, the later report should be admitted into evidence.

35 In my opinion, it follows from what Young JA said that it is necessary to consider all the circumstances of the case in order to determine whether the objectives sought to be secured by UCPR r 31.23 have been affected by the non-compliance. Those circumstances include the nature of the instructions that were actually given to the expert, the expert's prior familiarity with the code, the extent to which the report on its face appears to comply with the code and the evidence subsequently given by the expert concerning the question whether he or she complied with the code at the time and whether his or her opinions have been affected by non-provision of it. It is for the party seeking to lead the evidence to satisfy the court that the non-compliance with UCPR r 31.23 has not affected the objectives of the rule, or that there are other reasons which justify a departure from it.

36 In this case, I am not satisfied that I should make an order dispensing with compliance with UCPR r 31.23 in respect of any of the reports. Although each of the experts has sworn an affidavit saying that he has now read the code and confirms the opinions expressed in his report, none has said that he complied with the code at the time he prepared his report. None says that, at the time he prepared his report, he had any familiarity with the obligations of an expert giving evidence. The letter of instructions each received gave no hint that the expert was to act independently of those instructing him. On the contrary, the letter of instructions is phrased in terms that suggest that the experts' assistance was being sought to help "demonstrate" to the court that "increased media interest and reporting of a person's wealth is causally linked to [an increase in] that person's risk profile". To a greater or lesser degree, each of the reports reads as if the author saw his task as an advocate for Mrs Rinehart's case. The authors' subsequent affidavits are not, in my opinion, sufficient to dispel that impression.

37 In addition, there seems to me to be merit in the opponents' other objections to the reports.

38 In Makita at [85] Heydon JA identified six criteria that evidence ought to meet in order to be admissible as opinion evidence under s 79 of the Evidence Act 1995 (NSW). Those criteria are:

• 'it must be agreed or demonstrated that there is a field of "specialised knowledge"' ;
• 'there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert';
• 'the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"';
• 'so far as the opinion is based on facts "observed" by the expert they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way';
• 'it must be established that the facts on which the opinion is based form a proper foundation for it'; and
• 'the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded.'

39 In my opinion, the reports fail to satisfy these criteria and the requirements of UCPR Schedule 7 in a number of respects.

40 First, the reports of Mr Moorhouse and Mr Bowden both suggest that disclosure of the relevant material would result in disclosure of additional information concerning Mrs Rinehart and her family that would increase the risk of them being targeted by kidnappers or extortionists. However, neither identifies what that information might be with any specificity. They seem to proceed on the assumption that the material would provide more precise information on the beneficiaries of the trust, their location and the assets of the trust. Mr Moorhouse further assumes that, absent an order, members of the public will have access to the court file. However, there is no evidence that would justify the assumptions Messrs Moorhouse and Bowden made. Indeed, there was no evidence at all before me concerning what information might be revealed by publication of the relevant material. During the course of the hearing, Mr Walton SC sought to cure that problem by tendering the material that is the subject of the suppression order made by Tobias AJA. However, I rejected that tender because the news media organisations would not be entitled to inspect it and I was not prepared to grant an adjournment to enable arrangements to be put in place so that an application could be made to the Court of Appeal for a variation to the order made by Tobias AJA to enable that to happen. In any event, it seems to me that that alone would not cure the problem with Mr Moorhouse's and Mr Bowden's reports, since it is clear that neither of them has seen the material either. There is evidence from Mr McCann, Mrs Rinehart's solicitor, that he showed Mr Moorhouse and Mr Bowden four documents which are the subject of the current suppression order. But he only did so on the day they finalised their reports. The reports themselves do not specifically say that the authors took those documents into account. The result is that both Mr Moorhouse and Mr Bowden have expressed opinions on the basis of facts of which they have no knowledge and have not been proved.

41 Secondly, neither Mr Moorhouse nor Mr Bowden exposes any reasoning process for the conclusions that each reaches. Their evidence boils down to the proposition that unidentified details concerning the trust and the beneficiaries will assist kidnappers and extortionists. But neither seeks to explain how they would be assisted. Neither, for example, suggests that kidnappers of wealthy individuals are known to target individuals of particular qualities and to adopt particular methods in kidnapping those persons, so that it might be possible to tie those qualities and methodologies with the information that would be revealed. That is perhaps not surprising, since it seems clear that Mr Moorhouse and Mr Bowden were not told what the precise information was.

42 Thirdly, and following on from the earlier points, Mr Moorhouse and Mr Bowden have not applied any expert knowledge they have to the facts that they have been given. The evidence they give simply consists of assertions about the risks associated with the disclosure of the relevant information.

43 Fourthly, although Mr Humphreys report does not suffer from a number of the flaws suffered by those of Mr Moorhouse and Mr Bowden, in my view, his opinion does not involve the application of any expert knowledge and certainly not any expert knowledge he has. The opinion he expresses is that, if the suppression order is not continued, media attention on Mrs Rinehart and her family will increase and that will make them larger targets. The first limb of this opinion concerns what the media will do. The second limb of the opinion does not seem to involve any real expertise at all.

44 Fifthly, Mr Humphries starts with the assumption that the Rinehart family has relatively low public and media profiles. On the evidence before me that assumption was false at the time of his report and is certainly false now.

45 It follows that the three reports should be rejected.

Should the order be made?

46 Section 7 of the Act provides:

A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of:

(a) information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or

(b) information that comprises evidence, or information about evidence, given in proceedings before the court.

Section 8(1) relevantly provides:

A court may make a suppression order or non-publication order on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper administration of justice,

(b) ...

(c) the order is necessary to protect the safety of any person,

...

"Suppression order" is defined in s 3 of the Act to mean "an order that prohibits or restricts the disclosure of information (by publication or otherwise)". "Non-publication order" is defined in the same section to mean "an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information)". The order sought in this case is a non-publication order.

47 Section 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.

Section 6 is statutory recognition of the position accepted at common law that the principle of open justice is of paramount importance and should be departed from only in exceptional circumstances: see Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at [20] per French CJ.

48 Necessity is the "operative condition" of the Act: Rinehart v Welker [2011] NSWCA 403 at [27] per Bathurst CJ and McColl JA. The interpretation of the word "necessary" in the context of the Act must be informed by s 6 and the paramount importance of the principle of open justice.

49 In Hogan v Australian Crime Commission , the High Court said in relation to the power conferred by s 50 of the Federal Court of Australia Act 1976 (Cth) to make a non-publication order where it "appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth":

[30] As it appears in s 50, "necessary" is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish , that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth "suggests Parliament was not dealing with trivialities". Further, as indicated earlier in these reasons: (a) s 50 is an example of a provision authorising the Federal Court to make orders for the exercise of its jurisdiction other than in open court as mandated by s 17(1); and (b) "the administration of justice" spoken of in s 50 is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; this is a more specific discipline than broader notions of the public interest.

[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. (omitting footnotes)

50 It is clear that these statements of principles apply equally to s 8(1)(a) of the Act: Rinehart v Welker at [27] per Bathurst CJ and McColl JA. There is no reason to give the word "necessary" a different meaning in s 8(1)(c). Indeed, given the structure of the section and the terms of s 6, it would be very odd to do so.

51 As I have already said, Mrs Rinehart essentially seeks to put her case on two bases. The first is that publication of the relevant material will attract more media attention which, in turn, will increase the risk of kidnapping, extortion or assault. The second is that additional information will be revealed which will assist potential kidnappers and extortionists to target Mrs Rinehart and members of her family.

52 In the absence of the expert reports, there is no evidence that justifies either of these propositions and for that reason alone the application must fail. However, even assuming the expert reports are admissible, in my opinion, they do not establish that an order should be made.

53 The first way in which Mrs Rinehart puts her case is flawed in at least two respects.

54 First, the evidence reveals that Mrs Rinehart and her family have already attracted extensive media attention. As Mr Bowden points out, much of that attention has been a consequence of Mrs Rinehart's own actions. There is no reason to suppose that the incremental increase in publicity resulting from publication of the material sought to be suppressed will have any material effect on the risk that Mrs Rinehart or her family will be targeted by kidnappers or extortionists or others who may wish to do them harm. The expert reports on which Mrs Rinehart relies really seek to draw a distinction between Mrs Rinehart's public profile in the past and now, rather than on the basis of her public profile now and without the order. No doubt the court case has been one of the contributing factors to the change that has occurred. Media interest in the case is likely to continue for so long as the case does, whether or not a non-publication order is made. The attention the current application has received illustrates that point. It follows in my opinion that, if Mrs Rinehart's concern is to minimise her public profile and that of her family, the order sought is both too late and, given what has occurred while suppression orders have been in place, will be ineffective.

55 Secondly, even if publication of the material will increase Mrs Rinehart's public profile and that of her family, that is not sufficient to establish that a non-publication order is necessary in the sense required by s 8. Mrs Rinehart is unable to point to any imminent threat to her or her family's safety. The risks of kidnapping or extortion are remote. There is no evidence that something has happened to give rise to a particular concern in the case of Mrs Rinehart and her family. It is noteworthy that three of the persons about whom Mrs Rinehart expresses concern oppose the order being made. Mrs Rinehart did not seek to give evidence of the steps she had taken to minimise her public profile. It might be inferred - understandably - that she will continue to act in her own best interests whatever publicity that might generate. But it would be odd if the risks about which Mrs Rinehart expresses concern were to be subservient to her personal interests, but not to the principle of the open administration of justice. As I said in the earlier judgment I delivered in this matter ( Welker & Ors v Rinehart & Anor (No 5) [2012] NSWSC 45 at [17]), one consequence of Mrs Rinehart's argument is that any wealthy person involved in a court case ought to be entitled to a non-publication order in respect of those proceedings if the proceedings are likely to attract media attention. That cannot be what the legislature meant by the word "necessary"; and it is not a meaning that is consistent with the meaning given to that word by the High Court in Hogan v Australian Crime Commission .

56 One difficulty with the second way in which Mrs Rinehart puts her case is that there is simply no evidence which reveals what additional information will be disclosed by the material that is currently the subject of a suppression order.

57 The report of Mr Bowden comes closest to suggesting what that information might be. It includes matters such as the assets of the trust, who the beneficiaries are, when the trust vests and additional details concerning the beneficiaries. But even assuming that that is the information that will be revealed, it would not justify a non-publication order in the terms sought by Mrs Rinehart.

58 Assuming that the material reveals the value of the assets held by the trust, it is difficult to see what risks attach to disclosure of that information having regard to the information already available concerning those matters. As to who the beneficiaries are or when the trust vests, it is difficult to see why that information would be of particular interest to a would-be kidnapper or extortionist. The underlying assumption behind this submission is that, from the point of view of a kidnapper or extortionist, family members who had an immediate entitlement to the trust assets would have no interest in paying a ransom demanded in respect of a family member who did not. That, it seems to me, is an implausible proposition. It cannot seriously be suggested that the risks of one of Mrs Rinehart's infant grandchildren being abducted will be materially altered by whether they are beneficiaries of the trust or not or when the trust might vest. In any event, Mrs Rinehart has failed to establish that the risks associated with disclosure of information of that type are sufficiently real that it can be said that the non-publication order is necessary to protect her safety or the safety of her family.

59 Assuming that the material discloses the residential addresses of Mrs Rinehart or members of her family or other very specific information which would assist in pinpointing their whereabouts at a particular time, there is no reason why a non-publication order cannot be restricted to information of that type. However, no such information was identified and no such application was made. In the normal course of events, the court would suppress information of that type; and there is nothing to prevent Mrs Rinehart from making an application to suppress information such as home addresses if that information is revealed by the material in question.

The existing suppression order

60 The order I made on 28 February 2012 was made in respect of paragraph 13 of the submissions filed on behalf of Mrs Rinehart. That paragraph gives information about which family members are beneficiaries of the trust which goes beyond what is said currently to be in the public domain.

61 For the reasons I have given, I do not regard a non-publication order in respect of that information as necessary for the protection of the safety of the persons concerned. For that reason, that order should be revoked.

Orders

62 The orders of the court are:

(1) The first defendant's notice of motion filed on 1 February 2012 is dismissed.

(2) The first defendant pay the costs of the plaintiffs and the news media organisations.

(3) The non-publication order made on 28 February 2012 is revoked.

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Decision last updated: 07 March 2012