Hancock v Rinehart

[2022] NSWSC 1025

Supreme Court

New South Wales

Medium Neutral Citation:

Hancock v Rinehart [2022] NSWSC 1025

Hearing dates:

21 July 2022

Date of orders:

29 July 2022

Decision date:

29 July 2022

Jurisdiction:

Equity

Before:

Richmond J

Decision:

See [3], [46]-[48].

Catchwords:

CIVIL PROCEDURE — hearings — suppression and non-publication — whether necessary to make order pursuant to the Court Suppression and Non-publication Orders Act2010 (NSW) to suppress certain parts of a transcript of proceedings before this court

Legislation Cited:

Commercial Arbitration Act 2010 (NSW)

Commercial Arbitration Act 2012 (WA)

Court Suppression and Non-publication Orders Act2010 (NSW)

Cases Cited:

Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21

Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125

Farnell Electronic Electric Components Pty Ltd v Collector of Customs (1996) 72 FCR 125

Fenwick v Wambo Coal Pty Ltd(No 2) [2011] NSWSC 353

Green v AMP Life Ltd [2005] NSWSC 95

Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd (2020) 55 WAR 435; [2020] WASCA 77

Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170

Hancock v Hancock Prospecting Pty Ltd [2022] NSWSC 724

Hancock v Rinehart [2020] NSWSC 1853

Kirkpatrick v Kotis (2004) 62 NSWLR 567; [2004] NSWSC 1265

Kizon v Palmer (1997) 72 FCR 409

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar (2006) 66 NSWLR 112; [2006] NSWCA 160

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Polyaire Pty Ltd v K-Aire Pty Ltd (No 4) [2007] SASC 36; 147 LSJS 65

Re Southland Coal Pty Ltd (receivers and managers appointed) (in liq) [2006] NSWSC 899; 203 FLR 1

Rinehart v Rinehart [2022] NSWCA 66

Rinehart v Rinehart (No 2) [2020] NSWSC 235

Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403

Category:

Principal judgment

Parties:

Gina Hope Rinehart (First Defendant/Cross-Claimant)
John Langley Hancock (First Plaintiff/First Cross-Defendant)
Bianca Hope Rinehart (Second Plaintiff/Second Cross-Defendant)
Ginia Hope Frances Rinehart (Second Defendant/Third Cross-Defendant)
Hope Rinehart Welker (Fourth Cross-Defendant)
Hancock Prospecting Pty Ltd (Fifth Cross-Defendant)
Hope Downs Iron Ore Pty Ltd (Sixth Cross-Defendant)

Representation:

Counsel:
Mr P Herzfeld SC with Ms H Ryan (First Defendant/Cross-Claimant)
Mr A Hochroth (Second Plaintiff/Second Cross-Defendant)
Mr C Colquhoun with Ms K Sutton (Fifth and Sixth Cross-Defendants)

Solicitors:
Speed and Stracey Lawyers (First Defendant/Cross-Claimant)
YPOL Lawyers (Second Plaintiff/Second Cross-Defendant)
Corrs Chambers Westgarth (Fifth and Sixth Cross-Defendants)

File Number(s):

2011/00285907

Judgment

1. By an amended notice of motion dated 5 July 2022, the first defendant/cross-claimant (Gina Hope Rinehart) (GHR) seeks orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) (Suppression Act) regarding certain documents. In the alternative, by a cross-summons dated 24 May 2022, GHR seeks a declaration that the suppression order made by Ward CJ in Eq (as her Honour then was) on 29 May 2020 under the Suppression Act in these proceedings (Suppression Order) concerning certain confidential material applies to references made to that confidential material at the hearing of those proceedings before her Honour on 5 August 2020, including as recorded in the transcript.

2. Parties appearing at the hearing before me were GHR, the second plaintiff/second cross-defendant (Bianca Hope Rinehart) (BHR), the fifth cross-defendant (Hancock Prospecting Pty Ltd) and the sixth cross-defendant (Hope Downs Iron Ore Pty Ltd). The fifth and sixth cross-defendants adopted the submissions of GHR and made some additional submissions supporting the relief sought by GHR.

3. For the reasons given below, I am of the opinion that it is necessary to make an order pursuant to s 8(1)(a) and (c) of the Suppression Act in the form described at [46] below.

Background

4. The Suppression Order is in the following terms:

“(1)  Subject to further order, pursuant to s 8(1)(a) and (e) of the Court Suppression and Non-Publication Order Act 2010 (NSW), order that the confidential affidavit of Hugh Robert Scott sworn 2 April 2020, Exhibit HRS-1 to that affidavit and the non-redacted copy of the first defendant’s submissions dated 20 May 2020 and 27 May 2020 be kept confidential and not made available nor disclosed to any person other than the legal representatives of the parties in connection with this proceeding anywhere in the Commonwealth for a period of five years.”

5. I will refer to the affidavit, exhibit and submissions referred to in the Suppression Order as the “confidential material”.

6. The Suppression Order was made by Ward CJ in Equity on 29 May 2020 during the course of the hearing over two days (29 May and 5 August 2020) of proceedings leading to the decision reported as Hancock v Rinehart [2020] NSWSC 1853.

7. The issue in those proceedings was whether GHR was required to deliver up to BHR certain documents described in those proceedings as the “Sceales Files” and the “Bankruptcy Transcripts”, as a consequence of BHR becoming the trustee of the HMH Trust in place of GHR. The primary judge held that the documents were trust documents and made an order requiring delivery up of those documents subject to a stay, pending determination of an arbitration being conducted in Western Australia before the Honourable Wayne Martin AC QC and others to which the parties to these proceedings were, and still are, party (the Arbitration).

8. On appeal, the Court of Appeal overturned the stay with the result that GHR was required to deliver up the documents within 14 days: see Rinehart v Rinehart [2022] NSWCA 66.

9. Before both the primary judge and the Court of Appeal GHR made a submission that BHR’s application for production of the documents was an abuse of process because she was seeking the documents to progress her personal claims in the pending Arbitration. That submission was rejected by both the primary judge and the Court of Appeal. What is relevant for present purposes is that in the course of making this submission the affidavit and exhibit referred to in the Suppression Order were put into evidence before the primary judge.

10. The transcript of the hearing on 29 May 2020 records that when the affidavit and exhibit were being tendered, senior counsel for GHR noted that a suppression order was sought in relation to those documents together with GHR’s written submissions (the form of the order being set out in those submissions) on grounds of confidentiality and he added (T 6:32) that: “… the affidavit and the exhibit clearly concern matters within the confidential arbitration, and by reason of s 27E of the Commercial Arbitration Act these matters are confidential”. The Suppression Order was then made by consent.

11. It is apparent that the Suppression Order was made as a consequence of the statutory obligation imposed on the parties to the Arbitration not to disclose confidential information in relation to the Arbitration. That obligation is found in s 27E(2) of the Commercial Arbitration Act 2012 (WA) (Arbitration Act) which provides that the parties to arbitral proceedings to which that Act applies “must not disclose confidential information in relation to the arbitral proceedings”, unless one of a number of exceptions applies (none of which is presently relevant). The Arbitration is one to which the Arbitration Act applies because the place of the Arbitration is in Western Australia (s 1(2)).

12. The expression “confidential information” is defined in s 2(1) to mean, in relation to arbitral proceedings, “information that relates to the arbitral proceedings … and includes … (a) the statement of claim, statement of defence and all other pleadings, submissions, statements or other information supplied to the arbitral proceeding by a party”.

13. In the judgment the primary judge said ([2020] NSWSC 1853 at [208]):

“In support of her stay motion, Gina relies upon three affidavits sworn by her solicitor (Mr Hugh Robert Scott) those being two affidavits sworn on 2 April 2020 (one of which was a confidential affidavit) and a subsequent affidavit sworn on 20 May 2020. The confidential affidavit related to matters concerning the Martin Arbitration (see s 27E of the Commercial Arbitration Act 2010 (NSW)) and an order was made in relation to that material under the Court Suppression and Non-publication Orders Act 2010 (NSW). As each of the parties to the present applications is a party to the Martin Arbitration, each was privy to the confidential material. I do not here refer to its contents.”

14. While her Honour referred to s 27E of the Commercial Arbitration Act 2010 (NSW) rather than the Arbitration Act, nothing turns on this as the provisions are in materially the same form.

15. The parties do not suggest that anything has changed in the interim that would make it necessary or appropriate to revoke the Suppression Order. In other words, the parties accept that the confidential material is still confidential information to which s 27E of the Arbitration Act applies. The dispute before the court now is simply whether particular parts of the transcript of the proceedings before her Honour on 5 August 2020 (5 August Transcript) when the parties referred to parts of the confidential material included within the scope of the Suppression Order are themselves covered by the order or, if not, should now be the subject of a further order under the Suppression Act.

How the present dispute came about

16. On 4 May 2022, in proceedings in this court before Ball J (reported as Hancock v Hancock Prospecting Pty Ltd [2022] NSWSC 724), BHR through her counsel made submissions to the effect that references to the confidential material in the 5 August Transcript were not the subject of the Suppression Order. On 23 June 2022 Ball J made orders under the Suppression Act over certain documents including the transcript of the proceedings before his Honour and the confidential material (see [2022] NSWSC 724 at [59] – [64]).

17. Subsequently there was correspondence between the solicitors for the parties in which GHR sought confirmation that BHR accepted that the 5 August Transcript was subject to the Suppression Order to the extent that it records the contents of the confidential material. When this confirmation was not forthcoming, GHR filed the (amended) notice of motion and cross-claim in these proceedings.

18. The relief sought by GHR, as contained in the draft orders handed up at the hearing, is as follows (underlining added):

THE COURT DECLARES THAT:

1   Properly interpreted, paragraph 1 of the orders made by Ward CJ in Eq on 29 May 2020 concerning a confidential affidavit, confidential exhibit and confidential submissions (Confidential Material) applies to references made at the hearing before her Honour on 5 August 2020 to that Confidential Material, including as recorded in the transcript of the hearing.

THE COURT ORDERS THAT:

2 The interim order made under s 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (Suppression Act) on 21 July 2022 be discharged.

3   Pursuant to section 8(1)(a) and (e) of the Suppression Act, subject to further order:

(a)   the confidential affidavit of Hugh Robert Scott sworn 2 April 2020 and confidential exhibit HRS-2;

(b)   the non-redacted versions of the first defendant’s submissions dated 20 and 27 May 2020;

(c)   the transcript of the hearing before Ward CJ in Eq on 5 August 2020 to the extent it records the contents of any of the material in paragraphs (a) or (b);

(d)   the confidential affidavit of Hugh Robert Scott sworn 6 July 2022 and confidential exhibit HRS-3 to that affidavit, except pages 121-129;

(e)   paragraph 10 of the second plaintiff’s submissions dated 14 July 2022;

(f)   extract from a transcript of the 4 May 2022 hearing in proceedings No. 2022/104803 (exhibit TRP2 pp 999-1001 CB 1443-1445);

(g)   pleadings aide memoire (exhibit TRP2 pp 790.1-790.91 CB 1130-1220); and

(h)   any transcript or record of the hearing before Richmond J on 21 July 2022 to the extent that it records the contents of any of the material in paragraphs (a) to (e).

including in each case the contents thereof, is not to be disclosed, by publication or otherwise, to any person other than to the parties and their legal representatives (Suppression Order).

4   Pursuant to section 9(4) of the Suppression Act, the Suppression Order does not prohibit disclosure by a party of any document which is available to that party other than through these proceedings or through the arbitral proceedings constituted before the Honourable Wayne Martin AC QC, Dr Michael Hwang SC and the Honourable Dr Kevin Lindgren AM QC, or the contents of any such document.

5   Pursuant to section 11 of the Suppression Act, the Suppression Order applies throughout the Commonwealth of Australia.

6   Pursuant to section 12 of the Suppression Act, the Suppression Order shall operate until two years after the date on which the first defendant, Georgina Hope Rinehart, passes away.

7   The plaintiffs/first and second cross-defendants pay the first defendant/cross-claimant’s costs of and incidental to the notice of motion dated 12 May 2022, the cross-summons dated 24 May 2022 and the amended notice of motion dated 5 July 2022, on an indemnity basis.

19. At the hearing it became apparent that the real dispute between the parties concerned proposed order 2(c) (or the alternative in order 1) and senior counsel for GHR agreed that the underlined words in proposed order 2(c) should be replaced with relevant transcript references, which were identified as “(a) T7.17 to T18.31; (b) T20.1 to T23.4; (c) T23.41 to T23.49; (d) T29.41 to 29.46 … (i) T63.11 to T63.26; (j) T68.18 to T69.38; (k) T70.20 to T71.7; (l) T76.50 to T78.8; (m) T78.34 to T80.45; (n) T82.20 to T82.34; (o) T86.23 to T86.34; (p) T93.28 to T98.35.”

20. GHR also accepts that the declaration sought in order 1 will not be necessary if order 2 (along with orders 3 - 6) is made.

21. BHR contends that neither approach should be adopted, essentially because the Suppression Order does not, in terms, apply to the 5 August Transcript which post-dates it, and points out that GHR could have, but did not, seek a suppression order over the 5 August Transcript at the hearing before the primary judge. Further, BHR submits that a further suppression order should not now be made in respect of the 5 August Transcript because the requirement that the order is either “necessary” to prevent prejudice to the proper administration of justice or is otherwise necessary in the public interest and that public interest significantly outweighs the public interest in open justice, is not satisfied.

The Suppression Act

22. Section 7 of the Suppression Act confers on the court a power to make a suppression order in the following terms:

“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.”

23. Section 8(1) of the Suppression Act provides relevantly as follows:

“(1) 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,

…

e)   It is otherwise necessary in the public interest for the order to be made and that the public interest significantly outweighs the public interest in open justice.”

24. Hence this court has power to make a suppression order in respect of the evidence given in proceedings before this court (the confidential material the subject of the Suppression Order falls into that category as it is in evidence given in this court) and information about it (the 5 August Transcript would fall into that category) if the grounds in s 8(1)(a) or s 8(1)(e) are satisfied.

25. The importance of having regard to the public interest in open justice is emphasised by the presence of s 6, which provides that “in deciding whether to make a suppression 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.” This provision confirms that suppression orders under the Suppression Act should only be made in exceptional circumstances, given that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia: Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [27] and [32].

26. Section 8(1)(a) and (e) both require that the court is satisfied that the suppression order is necessary to prevent prejudice to the proper administration of justice (para (a)) or is otherwise necessary in the public interest and that public interest significantly outweighs the public interest in open justice (para (e)). The word “necessary” is not to be given a narrow construction. An order is not “necessary” merely because it appears to the court to be convenient, reasonable or sensible or to serve some notion of the public interest: Rinehart v Welker at [31]. It is relevant to ask whether if the kind of order proposed is not made, the result will be, or at least will be assumed to be, that particular consequences would flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [8]; Rinehart v Welker at [40].

27. A decision to make a suppression order is not a discretionary one: Rinehart v Welker at [48]. Once the court is satisfied that one of the grounds in s 8 is made out, then it is appropriate for the order to be made.

28. Also relevant is s 9(5) which provides:

“A suppression order or non-publication order must specify the information to which the order applies with sufficient particularity to ensure that the order is limited to achieving the purpose for which the order is made.”

Consideration

29. The first issue which arises is whether the suppression order applies, by its terms, to the portions of the transcript referred to at [19] above.

30. A court order is subject to the ordinary rules of construction: Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 503; [1965] HCA 21. Hence, the focus is on determining what the words of the Suppression Order mean read in the light of its context and purpose. In the case of consent orders that context includes the surrounding circumstances in the same way as they are used to construe a contract, which includes not only the reasons for judgment, but also the pleadings, the course of the trial and the submissions of the parties prior to the making of the orders: Kirkpatrick v Kotis (2004) 62 NSWLR 567; [2004] NSWSC 1265 at [38]–[45]; Polyaire Pty Ltd v K-Aire Pty Ltd (No 4) [2007] SASC 36; 147 LSJS 65 at [44].

31. In the present case it is apparent from the transcript of the hearing on 29 May 2020 that the parties sought the Suppression Order for the purpose of complying with s 27E of the Arbitration Act and the primary judge made the Suppression Order on that basis.

32. In my opinion, the Suppression Order requires that the whole of the confidential affidavit, the exhibit and non-redacted copy of the submissions referred to in the order must be kept confidential and hence to disclose any part of it, including by disclosing the substance of what any of those documents contain, to any person would be a breach of the order. An exception would be where the part disclosed was trivial under the de minimis principle as discussed in Farnell Electronic Electric Components Pty Ltd v Collector of Customs (1996) 72 FCR 125.

29. If the 5 August Transcript were to set out the substance of an allegation made in the statement of claim in the Arbitration and a copy of that part of the transcript was provided to a person other than one of the legal representatives of the parties, that would be a breach of the order. Hence I reject the submission of BGR that the Suppression Order cannot apply to the 5 August Transcript because that records things said after the Suppression Order was made.

30. The unremarkable conclusion that a transcript recording statements about a confidential document the subject of a suppression order is itself subject to that suppression order is supported by analogy with legal professional privilege where it is accepted that “secondary material” is also privileged if that material discloses a privileged confidential communication: Fenwick v Wambo Coal Pty Ltd (No 2) [2011] NSWSC 353 at [30].

31. The court was informed that, in fact, no person has been supplied with a copy of the 5 August Transcript other than a legal representative of the parties, the Court of Appeal (in relation to the appeal from the primary judge) and this court. The provision of the 5 August Transcript to the Court of Appeal and this court can be put to one side on the basis that a court is not a person for the purposes of the suppression order: Kizon v Palmer (1997) 72 FCR 409 at 430; Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar (2006) 66 NSWLR 112; [2006] NSWCA 160 at [45].

32. In Green v AMP Life Ltd [2005] NSWSC 95, Campbell J said in relation to the word “disclosure” in s 118 of the Evidence Act 1995 (NSW):

“The notion of ‘disclosure’ involves something becoming revealed which was previously hidden, or known which was not previously known. That can, it seems to me, be disclosure of a matter, even if not everything concerning that matter is disclosed.”

37. Ordinarily, there is no disclosure of a matter merely because there is a statement in a document which causes the reader to wonder or speculate about that matter or the substance of it: cf Re Southland Coal Pty Ltd (receivers and managers appointed) (in liq) [2006] NSWSC 899; 203 FLR 1 at [14(e)] (a case concerning “disclosure” for the purposes of s 118 of the Evidence Act 1995 (NSW)).

38. BHR submitted that what was said about the confidential material in the passages of the 5 August Transcript referred to at [19] above was already in the public domain. I understood this submission to be in support of the proposition that either there was no relevant disclosure of that confidential material in the 5 August Transcript or, alternatively, that a suppression order should not now be made in respect of the 5 August Transcript because the grounds in s 8(1)(a) or 8(1)(e) of the Suppression Act are not made out.

39. The court was taken to the judgments in Rinehart v Rinehart [2014] FCA 1241; 320 ALR 195; Rinehart v Rinehart (2016) 257 FCR 310; [2016] FCA 539 (Gleeson J), Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170 (Full Court); Rinehart v Hancock Prospecting Pty Ltd (2019) 267 CLR 514; [2019] HCA 13 (High Court); and Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd(No 10) [2018] WASC 407 (Le Miere J) and Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd (2020) 55 WAR 435; [2020] WASCA 77 (Court of Appeal) and to certain newspaper articles reporting on those judgments. However, in my opinion, none of the references to the nature of the dispute between BHR and GHR in the public domain to which the court was taken disclose the confidential material: rather, what is disclosed is the nature of the dispute between BHR and GHR in proceedings which were the precursor to the Arbitration and, on the evidence before the court, there are material differences between the claims in those proceedings and in the Arbitration (see e.g. the “pleadings aide memoire” referred to at [18(3)(g)] above). The information in the public domain may well lead a reader of that information to speculate that the dispute in the Arbitration relates to particular matters because those matters were the subject of the dispute which led to the Arbitration. That is, nevertheless, still mere speculation.

40. I have read each of the portions of the 5 August Transcript set out at [19] above and consider that each falls into either or both of the following categories: (a) a statement of, or summary of the substance of, an allegation made in the pleadings in the Arbitration; or (b) a summary of issues or contentions of the parties in the Arbitration, or possible outcomes of the Arbitration.

41. It follows in my opinion that each of those parts of the 5 August Transcript is either within the scope of the Suppression Order or discloses information that relates to the Arbitration and hence is “confidential information” within the meaning of s 27E of the Arbitration Act and is properly the subject of a suppression order for the same reason that the confidential material itself is.

42. Given the requirement of s 9(5) that a suppression order must specify the information to which the order applies with sufficient particularity, I would not make an order in relation to the 5 August Transcript in the terms originally sought by GRH (see [18(3)(c)] above) but would rather specify the particular parts of the 5 August Transcript to which it applies. Given that the parties seek a variation of the Suppression Order to conform it to the orders made by Ball J on 23 June 2022, the appropriate course in the present case is to replace the Suppression Order with a new order.

Costs

43. In relation to costs, GHR sought indemnity costs against the plaintiffs on the basis of the unreasonableness or delinquency in the conduct of the plaintiffs in opposing the orders sought, in particular because the application should not have been opposed and consent orders should have been made, citing Rinehart v Rinehart (No 2) [2020] NSWSC 235 at [152] and Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at 89.

44. Further, GHR submitted that indemnity costs were appropriate because BHR submitted in this court that the inference should be drawn that aspects of the confidential material were disclosed in open court by senior counsel for GHR on 5 August 2020 who then made a deliberate forensic decision not to seek a suppression order over any part of the transcript because GHR wished to obtain a public judgment recording an improper purpose of BHR and was concerned that an attempt to suppress the transcript might inhibit that ambition. In my view, that inference cannot be drawn on the basis of the material before the court and further, for reasons already given, those parts of the 5 August Transcript which do refer to the substance of the confidential material are themselves the subject of the Suppression Order despite the fact that it does not refer to it.

45. In my opinion the defendants should receive their costs on the ordinary basis. While it is true that one might have expected the parties to have sought consent orders regarding the application of the Suppression Order to the relevant parts of the 5 August Transcript, this is not in my view a case where BHR has acted unreasonably or delinquently (in the sense that she should have known the argument had no real prospects of success) in contending that relevant parts of the 5 August Transcript were not the subject of the Suppression Order or alternatively should not be made subject to a new suppression order. While I disagree with the submissions made by BHR, the contention that no part of the transcript disclosed relevant confidential material was not unreasonable.

Conclusion

46. Accordingly, I propose making orders 2, 3(a), (b), (c) (after replacing the words “to the extent it records the contents of any of the material in paragraphs (a) or (b)” with the transcript references set out at [19] above), (d)-(g), 4 - 7 (but in relation to 7, without the words “on an indemnity basis”.

47. I will not make an order in the form of 3(h) because the words “to the extent that it records the contents of any of the material in paragraphs (a) to (e)” is too uncertain and further, my preliminary view is that nothing said at the hearing on 21 July 2022 discloses the substance of any of the relevant confidential material in the Arbitration. However, I invite the parties to review the transcript and I will hear submissions on whether that preliminary view is correct and the precise form of the orders which the Court should make in light of the above reasons.

48. The court makes the following orders:

1. Direct the parties to bring in short minutes of order to give effect to these reasons.

2. List the proceedings before me on Tuesday 2 August 2022 at 9:00am for the making of final orders.

3. Liberty to apply.

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Decision last updated: 01 August 2022