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Rinehart v Rinehart

Rinehart v Rinehart

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FEDERAL COURT OF AUSTRALIA
Bianca Hope Rinehart v Georgina Hope Rinehart [2014] FCA 1241

Citation: Bianca Hope Rinehart v Georgina Hope Rinehart [2014] FCA 1241

Parties: BIANCA HOPE RINEHART and JOHN LANGLEY HANCOCK v GEORGINA HOPE RINEHART AND OTHERS NAMED IN THE SCHEDULE

File number: NSD 1124 of 2014

Judge: JACOBSON J

Date of judgment: 19 November 2014

Catchwords:
PRACTICE AND PROCEDURE – Application for interim suppression order pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth) – Whether proceeding is an abuse of process – Whether order is necessary to prevent prejudice to the administration of justice

PRACTICE AND PROCEDURE – Relevance of s 8(1) and s 16(9) of the Commercial Arbitration Act 2012 (WA) in considering application for suppression in this Court

PRACTICE AND PROCEDURE – Whether news articles published after the hearing date are of sufficient probative value to warrant reopening the proceeding so that they may be tendered

PRACTICE AND PROCEDURE – Whether an injunction pursuant to s 17J of the Commercial Arbitration Act 2012 (WA), or s 23 of the Federal Court of Australia Act 1976 (Cth) is appropriate

Legislation: Commercial Arbitration Act 2012 (WA) – s 8(1), s 16(9), s 17, s 17J
Court Suppression and Non-publication Orders Act2010 (NSW) – s 8
Evidence Act 1995 (Cth) – s 140
Federal Court of Australia Act 1976 (Cth) – s 23, s 37AI
Federal Court Rules 2011 (Cth) – r 2.32
Trade Practices Act 1974 (Cth) – s 87(2)

Cases cited: ABC v O’Neill (2006) 227 CLR 57
Casaceli v Natuzzi Spa (2012) 292 ALR 143
Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45
Commissioner of Police NSW v Nationwide News Pty Ltd (2008) 70 NSWLR 643
John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344
John Fairfax and Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465
Grant v John Grant Sons Pty Ltd (1954) 91 CLR 112
Hogan v Australian Crime Commission (2010) 240 CLR 651
Hogan v Hinch (2011) 85 ALJR 398
Llewellyn v Nine Network Australia Pty Ltd (2006) 154 FCR 293
Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (1993) 43 FCR 439
Rinehart v Welker [2011] NSWCA 403
Telstra Corporation v Australian Competition and Consumer Commission (2008) 171 FCR 174
Welker v Rinehart [2011] NSWSC 1094
Williams v Spautz (1992) 174 CLR 509

Date of hearing: 11 November 2014

Date of last submissions: 14 November 2014

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 118

Counsel for the Applicants: Mr C H Withers with Mr A M Hochroth and Mr P A Meagher

Solicitor for the Applicants: Yeldham Price O’Brien Lusk

Counsel for the First Respondent: Mr B R McClintock SC with Mr S A Lawrance

Solicitor for the First Respondent: Speed and Stracey

Counsel for the HPPL Respondents: Mr J Sheahan QC with Mr D B Studdy SC and
Mr C Colquhoun

Solicitor for the HPPL Respondents: Corrs Chambers Westgarth

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCA 1241
Decision Date: 19 November 2014

CaseChat Overview and Summary

In the case of Rinehart v Rinehart, the parties involved were seeking various orders in relation to the suppression of certain information, particularly the contents of a confidential addendum to a Statement of Claim, as well as the broader issue of whether certain disputes fell within the scope of arbitration agreements and releases. The dispute was heard in the Federal Court of Australia. The primary legal issues that the court had to address involved the appropriateness of making interim suppression orders under the Federal Court of Australia Act 1976, the relevance of certain provisions from the Commercial Arbitration Act 2012 (WA) in the context of the suppression application, and the probative value of news articles published after the hearing date.

The court considered the arguments put forward by the parties, including whether the proceeding constituted an abuse of process and whether an order was necessary to prevent prejudice to the administration of justice. The court also examined the relevance of sections 8(1) and 16(9) of the Commercial Arbitration Act 2012 (WA) in the context of the suppression application. Ultimately, the court found that the evidence did not reach the requisite level of certainty to justify making an interim suppression order. The court also determined that the publication of the confidential addendum to the Statement of Claim did not constitute an abuse of process and that the open justice principle should not be departed from on the basis of the potential impact of the litigation on the parties' dealings with others. The court further dismissed the argument that the allegations in the Statement of Claim had been released and held that the claims made in the Statement of Claim were not within the scope of the arbitration agreements or releases.

Based on the above reasoning, the court proposed to make an order revoking the interim suppression orders made on 3 November 2014, as extended and supplemented on 11 November 2014. The court also proposed to make an order that the confidential addendum to the Statement of Claim be suppressed and its contents be kept confidential to the parties and their legal advisors. Additionally, the court proposed to dismiss the interlocutory applications filed by the HPPL respondents and GHR, with each party to bear their own costs. The court's final orders were in line with the proposals, and the costs of the applications were to be borne by the respective parties.

Orders

Orders of the court

1. Pursuant to s 37A(1) of the Federal Court Act 1976 (Cth), the confidential addendum to the Statement of Claim filed on 31 October 2014 be kept confidential to the parties until further order of the Court.

2. Save as provided in Order 1, revoke the orders made on 3 November 2014 as extended and supplemented on 11 November 2014.

3. The interlocutory application filed by the HPPL respondents on 3 November 2014 be otherwise dismissed.

4. The HPPL respondents to pay the costs of the interlocutory application.

5. The interlocutory application filed by GHR on 11 November 2014 be dismissed.

6. GHR to pay the costs of the interlocutory application filed on 11 November 2014.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For the reasons set out above I do not propose to make that Order.CONCLUSION AND ORDERS I propose to make an order revoking the interim suppression Orders made on 3 November 2014, as extended and supplemented on 11 November 2013. I will order pursuant to s 37AI(1) of the FCA that the confidential addendum to the Statement of Claim be suppressed and that its contents be kept confidential to the parties and their legal advisors. I will order that the interlocutory application filed by the HPPL respondents on 3 November 2014 be otherwise dismissed. I will also order that the interlocutory application filed by GHR in Court on 11 November 2014 be dismissed. The HPPL respondents are to pay the costs of and incidental to the application filed on 3 November 2014. GHR is to pay the costs of and incidental to her interlocutory application.

Ratio Decidendi

Legal Principle Established

Moreover, as Brereton J said in Welker v Rinehart [2011] NSWSC 1094 at [20], the evidence does not reach the requisite level of certainty and the fact that the pendency of litigation might have an impact on a party’s dealings with others is not an established or sufficient basis for departing from the open justice principle.WHETHER THE CLAIMS NOW MADE FALL WITHIN THE SCOPE OF THE ARBITRATION AGREEMENTS OR THE RELEASES The question of whether disputes fall within an arbitration clause depends upon the language of the clause. The language is to be construed consistently with its ordinary meaning and is to be liberally construed: see the authorities cited by Bathurst CJ in the appeal in the stay application at [120]. As his Honour observed in that case at [123], the phrase “under this deed” is given a narrower construction than phrases such as “arising out of the deed” or “in connection with the deed”. The general words of a release are to be restrained by the particular occasion which is the subject of the agreement and the scope of a general release is to be determined from the nature of the instrument and the circumstances in which it was made including the state of knowledge of the parties concerning the character of the liability in question: Grant v John Grant Sons Pty Ltd (1954) 91 CLR 112 at 123, 129-130. The arbitration clauses and the releases in the settlement deeds in the present case are different in each instance. It seems to me to be inappropriate in an application for suppression orders to consider the wide range of questions which would arise. There is some force in the submission made by BHR and JLH that the allegations in the Statement of Claim do not give rise to a dispute under the Hope Downs Deed because the claims include applications to have the Deed declared void by reason of pre-contractual-conduct: see Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (1993) 43 FCR 439 at 448. In any event, there are three short answers to the contentions put on behalf of the HPPL respondents and GHR. First, even if there is a credible argument that the Court is likely to give effect to an arbitration agreement by ordering a stay, that is not determinative of the question of whether it is necessary for the proper administration of justice for the Court to make a suppression order: Rinehart v Welker at [51]-[55]. Second, if an application is made under s 8(1) of the Commercial Arbitration Act 2012 (WA) to refer the matter to arbitration, it will be necessary in such an application to determine whether the arbitration agreement is null and void within the proviso to that subsection. I reject the submission made on behalf of the HPPL respondents and GHR that the proviso only applies where there has already been a finding that the agreement is inoperative. That submission seems to me to ignore the wording of the proviso commencing with the phrase “unless it finds …”. Third, the evidence is not sufficiently clear to make good the submission that there is a credible argument that the claims made in the Statement of Claim have been released.THE SUBSTANCE OF THE ALLEGATIONS IS IN THE PUBLIC DOMAIN

Citation:	Bianca Hope Rinehart v Georgina Hope Rinehart [2014] FCA 1241
Parties:	BIANCA HOPE RINEHART and JOHN LANGLEY HANCOCK v GEORGINA HOPE RINEHART AND OTHERS NAMED IN THE SCHEDULE
File number:	NSD 1124 of 2014
Judge:	JACOBSON J
Date of judgment:	19 November 2014
Catchwords:	PRACTICE AND PROCEDURE – Application for interim suppression order pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth) – Whether proceeding is an abuse of process – Whether order is necessary to prevent prejudice to the administration of justice PRACTICE AND PROCEDURE – Relevance of s 8(1) and s 16(9) of the Commercial Arbitration Act 2012 (WA) in considering application for suppression in this Court PRACTICE AND PROCEDURE – Whether news articles published after the hearing date are of sufficient probative value to warrant reopening the proceeding so that they may be tendered PRACTICE AND PROCEDURE – Whether an injunction pursuant to s 17J of the Commercial Arbitration Act 2012 (WA), or s 23 of the Federal Court of Australia Act 1976 (Cth) is appropriate
Legislation:	Commercial Arbitration Act 2012 (WA) – s 8(1), s 16(9), s 17, s 17J Court Suppression and Non-publication Orders Act2010 (NSW) – s 8 Evidence Act 1995 (Cth) – s 140 Federal Court of Australia Act 1976 (Cth) – s 23, s 37AI Federal Court Rules 2011 (Cth) – r 2.32 Trade Practices Act 1974 (Cth) – s 87(2)
Cases cited:	ABC v O’Neill (2006) 227 CLR 57 Casaceli v Natuzzi Spa (2012) 292 ALR 143 Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45 Commissioner of Police NSW v Nationwide News Pty Ltd (2008) 70 NSWLR 643 John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 John Fairfax and Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 Grant v John Grant Sons Pty Ltd (1954) 91 CLR 112 Hogan v Australian Crime Commission (2010) 240 CLR 651 Hogan v Hinch (2011) 85 ALJR 398 Llewellyn v Nine Network Australia Pty Ltd (2006) 154 FCR 293 Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (1993) 43 FCR 439 Rinehart v Welker [2011] NSWCA 403 Telstra Corporation v Australian Competition and Consumer Commission (2008) 171 FCR 174 Welker v Rinehart [2011] NSWSC 1094 Williams v Spautz (1992) 174 CLR 509
Date of hearing:	11 November 2014
Date of last submissions:	14 November 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	118
Counsel for the Applicants:	Mr C H Withers with Mr A M Hochroth and Mr P A Meagher
Solicitor for the Applicants:	Yeldham Price O’Brien Lusk
Counsel for the First Respondent:	Mr B R McClintock SC with Mr S A Lawrance
Solicitor for the First Respondent:	Speed and Stracey
Counsel for the HPPL Respondents:	Mr J Sheahan QC with Mr D B Studdy SC and Mr C Colquhoun
Solicitor for the HPPL Respondents:	Corrs Chambers Westgarth