1. Discharge orders 1, 2 and 3 made by Tobias AJA on 31 October 2011;
2. Order that the defendants pay the applicants' costs of the review and of the hearing before Tobias AJA.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court146s computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords

SUPPRESSION ORDERS- Court Suppression and Non-Publication Orders Act 2010, s 6- a primary objective of the administration of justice is to safeguard the public interest in open justice- principle of open justice one of the most fundamental aspects of the system of justice in Australia- the entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public- exceptions to open justice when court is acting in parental and administrative capacity, in blackmail and extortion cases and where disclosure of the information would seriously affect its commercial value- none of the exceptions apply.

SUPPRESSION ORDERS- Court Suppression and Non-Publication Orders Act 2010, s 8(1)(a)- whether the making of an order is necessary to prevent prejudice to the proper administration of justice- meaning of the word "necessary"- necessary is a strong word- orders under the Act should only be made in exceptional circumstances- necessary does not mean convenient, reasonable or sensible- it is not sufficient that information is inherently confidential as distinct from personal or commercial information that has value as an asset that would be compromised.

SUPPRESSION ORDERS- Court Suppression and Non-Publication Orders Act 2010, s 7- meaning of "information"- per Young JA (Bathurst CJ and McColl JA not deciding) information includes evidence and material which reveals the identity of a party or witness or a person related to or otherwise associated with a party or witness- orders should be confined to information as defined in s 7.

STATUTORY INTERPRETATION- principle of legality- legislation should be construed consistently with the statutory scheme in a way that has the least adverse impact upon the open justice principle and common law freedom of speech.

STATUTORY INTERPRETATION- whether an uncommenced Act can be used to construe a statute- Acts in a legislative scheme can be used to construe one another, even if one is uncommenced.

WORDS AND PHRASES- "Necessary".

Legislation Cited

Arbitration Act 1996 (UK), s 1
Commercial Arbitration Act 2010, s 1C
Contempt of Court Act 1981 (UK) ss 4, 11
Court Information Act 2010 (uncommenced)
Court Suppression and Non-Publication Orders Act 2010, ss 3, 4, 6, 7, 8,…

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.

Continue reading Rinehart v Welker

Details

AGLC: Rinehart v Welker [2011] NSWCA 403
Case: [2011] NSWCA 403
Decision Date: 19/12/2011

CaseChat Overview and Summary

This matter concerned an appeal by Gina Rinehart against a decision of the Supreme Court of New South Wales regarding suppression orders. The dispute arose from an application by Ms Rinehart to suppress certain information in proceedings before the court.

The primary legal issue before the Court of Appeal was whether the Supreme Court had erred in refusing to make suppression orders under the *Court Suppression and Non-Publication Orders Act 2010* (NSW). This involved determining the proper interpretation of the Act, particularly the meaning of "necessary" in section 8(1)(a) and the scope of "information" under section 7. The court also considered the fundamental principle of open justice and its relationship with statutory powers to suppress information.

The Court of Appeal, applying the principle of legality, held that legislation impacting open justice must be construed narrowly. It emphasised that "necessary" in section 8(1)(a) requires exceptional circumstances and is not satisfied by mere confidentiality or convenience. The court found that the exceptions to open justice outlined in section 6 of the Act did not apply. Furthermore, the court clarified that "information" under section 7 should be confined to its statutory definition. The court also considered whether an uncommenced Act could be used to construe an existing statute, concluding that Acts within a legislative scheme can be used for this purpose.

The Court of Appeal dismissed the appeal, finding that the Supreme Court had correctly applied the principles of the *Court Suppression and Non-Publication Orders Act 2010* and the overarching principle of open justice.

Orders