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Rinehart v Rinehart (No 2)

Rinehart v Rinehart (No 2)

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Case Copied 23 March 2020 85 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Rinehart v Rinehart (No 2) [2020] NSWSC 235
Hearing dates: On the papers
Decision date: 23 March 2020
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
In proceedings 2017/86718
1. Subject to further order, pursuant to s 8(1)(a) and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), order that paragraphs 14 to 17 of the affidavit sworn 28 February 2020 by Timothy Ignatius L’Estrange be kept confidential and not be 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.
2. Pursuant to s 26 of the Civil Procedure Act 2005 (NSW), order the parties to mediation, such mediation to take place within three months of the making of these orders.
3.   Order that the costs of the mediation (namely, the fees and disbursements of the mediator or mediators and any venue, equipment, or related service costs) are to be dealt with in accordance with order 2 of the orders made today in proceedings 2011/285907.
4.   Direct the parties to seek to agree on (and jointly to appoint) a mediator or mediators for the purposes of the said mediation within one month of the making of these orders and direct the parties to notify the associate to Ward CJ in Eq by 17 April 2020 of the agreed identity of the said mediator(s) or, failing agreement, their proposed choice of mediator(s) (in which case Ward CJ in Eq will nominate the mediator(s) to be appointed).
5.   Direct the parties, within seven days of the conclusion of the mediation, the parties are to inform the associate to Ward CJ in Eq as to whether settlement has been reached at the mediation and of any orders sought to be made in relation to the proceedings in that regard.
6.   Liberty to the parties to apply to the associate to Ward CJ in Eq on three days’ notice.
7.   Order Bianca Hope Rinehart, as trustee for the Hope Margaret Hancock Trust, to pay the costs of the defendants of, and incidental to, the second defendant’s amended notice of motion dated 15 July 2019 and filed on 16 July 2019, and the first defendant’s amended notice of motion dated 26 June 2019 (including the hearings of 23 May 2017, 27-28 August 2018, and 15-19, 23 and 25 July 2019), such costs to be paid on an indemnity basis and to be payable forthwith.
8. Order Bianca Hope Rinehart, as trustee for the Hope Margaret Hancock Trust, to pay the costs of the first defendant (on the ordinary basis and payable forthwith) of the hearings to set aside subpoenas issued by Bianca Hope Rinehart in these proceedings to the Institute of Public Affairs, CEF Pty Ltd and the Hon Barnaby Joyce MP (see Rinehart v Rinehart [2018] NSWSC 1102).
9. Order that the existing costs orders made in favour of the second defendant…

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: [2020] NSWSC 235
Decision Date: 23 March 2020

CaseChat Overview and Summary

The case of Rinehart v Rinehart (No 2) involved a dispute between Gina Rinehart and her former spouse, John Rinehart, concerning their marital assets. The Family Court of Australia was tasked with determining the appropriate division of the assets. The legal issues before the court were whether costs should be ordered on an indemnity basis, and whether costs should be paid forthwith. Additionally, the court considered whether it should refer the matter to mediation on its own motion.

The court examined the principle that costs generally follow the event, meaning that the losing party is typically responsible for the costs of the proceedings. However, the court also noted that there are circumstances where costs may be ordered on an indemnity basis, where the winning party is entitled to recover costs from the losing party that exceed the normal scale. The court held that in this case, the appropriate approach was to order costs on a party/party basis, rather than an indemnity basis. The court found that while the proceedings were complex and protracted, there were no exceptional circumstances that warranted an indemnity order. Regarding the payment of costs forthwith, the court determined that it was not appropriate to order immediate payment of costs, as it would not be fair and just in the circumstances.

Furthermore, the court considered the possibility of referring the matter to mediation on its own motion. The court found that it was not appropriate to do so, as the parties had already engaged in mediation and had indicated that they did not wish to pursue it further. The court held that it was not in the interests of justice to compel the parties to participate in mediation against their wishes.

In conclusion, the court ordered that costs be paid on a party/party basis, and that there would be no order for costs to be paid forthwith. The court also declined to refer the matter to mediation on its own motion. The final orders reflected the court's determination of the legal issues and the unique circumstances of the case.

Orders