Rinehart v Welker & Ors

[2012] HCATrans 57

[2012] HCATrans 057

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S11 of 2012

B e t w e e n -

GINA HOPE RINEHART

Applicant

and

HOPE RINEHART WELKER

First Respondent

JOHN LANGLEY HANCOCK

Second Respondent

BIANCA HOPE RINEHART

Third Respondent

GINIA HOPE FRANCES RINEHART

Fourth Respondent

AUSTRALIAN BROADCASTING CORPORATION

Fifth Respondent

JOHN FAIRFAX PUBLICATIONS PTY LIMITED

Sixth Respondent

NATIONWIDE NEWS PTY LIMITED

Seventh Respondent

Office of the Registry
  Sydney  No S14 of 2012

B e t w e e n -

GINIA RINEHART

Applicant

and

HOPE RINEHART WELKER

First Respondent

JOHN LANGLEY HANCOCK

Second Respondent

BIANCA HOPE RINEHART

Third Respondent

GINA RINEHART

Fourth Respondent

AUSTRALIAN BROADCASTING CORPORATION

Fifth Respondent

JOHN FAIRFAX PUBLICATIONS PTY LIMITED

Sixth Respondent

NATIONWIDE NEWS PTY LIMITED

Seventh Respondent

Applications for special leave to appeal

FRENCH CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 MARCH 2012, AT 10.18 AM

Copyright in the High Court of Australia

__________________

MR M. WALTON, SC:   May it please the Court, I appear with MR P. KULEVSKI for the applicant in S11/2012 and for the fourth respondent in S14/2012.  (instructed by Corrs Chambers Westgarth Lawyers)

MR M.I. HOLMES, SC:   May it please the Court, I appear with MR F. KUNC, SC and MS M.N. ALLARS for the applicant in S14/2012 and for the fourth respondent in S11/2012.  (instructed by Gadens Lawyers)

MR A.S. BELL, SC:   May it please the Court, I appear with my learned friend, MR D.F.C. THOMAS, for the first to third respondents in S11/2012 and S14/2012.  (instructed by Johnson Winter & Slattery)

MR B.W. WALKER, SC:   May it please the Court, I appear for the fifth, sixth and seventh respondents in both matters with my friends, MR A.T.S. DAWSON and MS F.T. ROUGHLEY.  (instructed by Addisons Commercial Lawyers)

MR WALTON:   Your Honour, Mr Holmes has asked if he might go first, and that is what we agreed to do.

FRENCH CJ:   Yes, thank you, Mr Walton.  Yes, Mr Holmes.

MR HOLMES:   Your Honours will have seen from the notice of grounds of appeal that there are two errors identified in the application.  The first one in grounds 1 to 6 is the consideration of the key provisions of the Court Suppression and Non‑publication Orders Act, sections 6, 7 and 8, and the second in grounds 7 and 8 is the legislative recognition of party autonomy in section 1C of the Commercial Arbitration Act.  Can I turn to the first error ‑ ‑ ‑

FRENCH CJ:   Just to understand the framework within which we are operating, the proceedings that were commenced in the Supreme Court seeking variation of the trust and the deed of settlement were invoking what jurisdiction?  Was it cross‑vested jurisdiction out of the Western Australian Act, or was it diversity jurisdiction?

MR HOLMES:   No, it was an application for the removal of a trustee.

FRENCH CJ: Yes, I know that, but there is a West Australian Trustees Act which seems to have been referred to.  There is a West Australian Arbitration Act which seems to have been referred to.  The parties seem to be West Australian, at least in part.  I am just wondering, are some of them living in one part and another and we are looking at federal jurisdiction, or is this jurisdiction exercised by the Supreme Court of New South Wales under the West Australian Cross‑Vesting Act?

MR HOLMES:   It was brought under the New South Wales Act.

GUMMOW J:   How?

MR HOLMES:   That is a matter before we were involved.  I am afraid I cannot assist your Honour there.  The defendant beneficiary for whom I appear immediately responded and said this was an abuse of process and referred to the deed which gave exclusive jurisdiction to the courts of Western Australia, and which referred to the law of Western Australia as being applicable, and which referred to the Commercial Arbitration Act (WA).  Your Honour, I am afraid I cannot assist your Honour there.  Perhaps I can get some instructions on that question.

FRENCH CJ:   Well, it may be of some significance because one of the issues that is being raised is the interaction between the Commercial Arbitration Act 2010 (NSW) and the Court Suppression ‑ ‑ ‑

MR HOLMES: Only in the broad sense of what is the administration of justice by the courts of New South Wales. The administration of justice is a curial process in New South Wales and if there is a State statute directing the courts of New South Wales to take into account a particular objective as part of the administration of justice, then that might enliven the consideration of section 6 of the Court Suppression and Non-publication Orders Act.

FRENCH CJ:   Just coming back to the matter of which Trustees Act is being invoked, at page 18 of the application book in the ex tempore judgment of Justice Brereton delivered on 7 October, he sets out the relief which is claimed, which seems to be orders pursuant to the Trustees Act (WA).

MR HOLMES:   Yes.

FRENCH CJ:   This is in the Supreme Court of New South Wales.

MR HOLMES:   Yes, your Honour.  Your Honour, this question was not taken at any stage prior to today ‑ ‑ ‑

FRENCH CJ:   One would have thought it is a sort of question which does not have to be taken.  It is fairly fundamental.

MR HOLMES:   I think the parties ‑ ‑ ‑

FRENCH CJ:   Who knows what laws are being applied and what jurisdiction is being exercised.  If it is cross‑vested jurisdiction then it may be exercising or applying – it may be that pursuant to such jurisdiction it is able to apply the laws of Western Australia.  Anyway, perhaps somebody can think of that a little bit further down the track in today’s argument.

MR HOLMES: Your Honour, can I turn to the first error, that is, the proper construction of sections 6, 7 and 8. This is a matter which was adverted to by the plurality at the application book, pages 98 and 99. These provisions were from the Act which was based on draft model provisions – this is at the foot of page 98 of the application book, and at paragraph 6, the plurality said:

No other State or Territory has yet adopted the model provisions.  However the Commonwealth has introduced the Access to Justice (Federal Jurisdiction) Amendment Bill 2011 which has been read a second time and was referred on 25 November 2011 to the Legal and Constitutional Affairs Legislation Committee for report by 22 March 2012.  If passed the Bill will have the effect of inserting the model provisions into . . . the Federal Court of Australia Act 1976 (Cth) . . . and the Judiciary Act 1903 (Cth).

On looking at the website this morning, the Act was passed by the Lower House on 16 February this year.  The second reading in the Senate took place last week, and the amendment to the Federal Court Act, which includes the repeal of section 50 and the insertions of section 37AE, AF and AG is imminent.  Furthermore, the Judiciary Act will also be incorporating sections 6, 7 and 8 if the Bill passes through the Senate, which appears to be imminent.

The first ground of appeal relates to the operation of these sections. The plurality equated the power to make a suppression order to the power which existed at the common law, and this is seen in a passage on page 109 of the application book, where the plurality saw section 6 as the embodiment of the open justice principle in lines 3 and 4. They also, at page 106, referred to section 6 as reinforcing the legislative intention that a suppression order should only be made under the Act:

in exceptional circumstances, a position which prevailed at common law –

Further, they reinforced that view at application book 114, where considering whether or not to make a suppression order under the Act, they said in the last two lines:

a decision to make a suppression order is not a discretionary one –

and referred to this Court’s decision in Hogan.  The plurality reasoning on this point was the opposite of the view taken by Justice Tobias, and also by Justice Young and further by Justice Brereton at first instance, and so in our submission we have a division of opinion at the appellate level where two judges look strictly at the embodiment of the common law principle, only consider the common law exceptions, and reach a conclusion which they state at page ‑ ‑ ‑

GUMMOW J:   It is not so much a question of the common law as the inherent power of the Supreme Court of New South Wales, is it not?

MR HOLMES:   Yes.

GUMMOW J:   Does the statute purport to exhaust that or displace it?

MR HOLMES:  No, under section 4 it does not have any effect whatsoever on the common law of the court’s inherent power. The difference between the plurality and Justice Young and Justice Tobias is that section 6 has some work to do ‑ ‑ ‑

GUMMOW J:   Unless you can persuade us that there is some point about the common law I do not see what the special leave ground is.

MR HOLMES:   I am sorry, I am not quite following.

GUMMOW J:   Unless you can persuade us that you would be on strong grounds in the common law, as you call it, I do not see why we would get involved, otherwise there would just be some academical tournament about what the New South Wales statute means, which would not be totally dispositive.

MR HOLMES:   This is a provision which will be in the Judiciary Act if the legislation, which I adverted to, passes through the Senate.  The requirement for it to go to a committee for report was discharged in the Lower House.  It is an imminent Act, imminent provisions of the Judiciary Act and the Federal Court Act, section 50 is being repealed and being replaced by section 6, 7 ‑ ‑ ‑

GUMMOW J:   There are Chapter III questions in that realm of discourse we should not immediately rush into I would have thought.

FRENCH CJ:   Are you proposing that the Act, properly construed, provides for, as it were, a less restrictive approach to the making of suppression orders than at common law, in the exercise of the inherent powers of courts?

MR HOLMES:  We adopt the approach of Justice Tobias that the Act requires its application according to its terms and that allows for exceptions which not necessarily conform to the common law. Now, that may be in narrow circumstances. That may be in wider circumstances. But the Act needs to be given effect to and not, as the plurality have done – not considered the operation of section 7 and section 6 and the decision‑making process that is mandated by section 6.

In our submission, the approach taken by Justice Tobias was the correct one, namely that the power conferred by section 7 may be exercised on one of the grounds specified in section 8. But if I can take your Honours to page 83 of the application book, Justice Tobias said, and I quote - this is the fourth‑last line:

in the event that one of the grounds referred to in s8(1) is made out –

the court is required –

to take account of the fact that “a primary objective of the administration of justice is to safeguard the public interest [in] open justice.” It is noteworthy, however, that the public interest in open justice is not said by s 6 to be either –

and he has emphasised the words “the primary objective” –

of the administration of justice or the only objective thereof –

and again he emphasises –

It is a primary object, meaning that there are other primary objectives of the administration of justice, or may well be ‑ ‑ ‑

GUMMOW J:   What is the other primary objective here?

MR HOLMES:   The other objective, if your Honour looks at the foot of that same page 84 Justice Tobias recognised that:

the administration of justice is multi‑faceted concept.

It is in the interest of the administration of justice that (a) not only should parties –

be held to their bargain –

but they are – and these are the important words –

encouraged to provide in their commercial agreements for a form of alternative dispute resolution which would take the pressure off the courts.

GUMMOW J:   That is a disputable proposition, I would have thought.

MR HOLMES:   Well, your Honour, can I just finish it because his Honour goes on:

The administration of justice in my view is capable of including the encouragement of parties to make such agreements and to abide by them where they otherwise apply to the dispute in question.

That same view of encouragement was used by Justice Brereton.  If your Honour goes to page 30 of the application book ‑ ‑ ‑

GUMMOW J:   …..an application to remove a trustee.

MR HOLMES:   This is an application to remove a trustee which, if the parties have agreed that that be first considered by an alternative dispute resolution process before approaching the court for relief, then it is part of the administration of justice to encourage the parties, if it be an appropriate case for private dispute resolution, to go down that track and to exhaust and honour that agreement prior to coming to the courts. 

FRENCH CJ:   That kind of consideration is most powerful in relation to an application for a stay.  It becomes more difficult where there is a confidentiality provision, which it is said should be, in effect, applied in the context of curial proceedings.

MR HOLMES:   That is the difference between a consent order where the parties seek to dictate the procedures on the court as compared to a private agreement that if we have a dispute about the conduct of the trustee we will first use ADR proceedings, which courts encourage, and we will conduct it according to rules that we agree to and those rules of procedure are confidential.  So until the parties have complied with those agreements solemnly entered into, the court should respect those as part of the administration of justice and doing justice between the parties. 

That is quite a different matter to whether or not a court should accept a consent order that the court proceedings be held in camera.  We were talking about the objective of the administration of justice.  The principle of open justice, as noted in Hogan v Hinch, is a means to an end to do justice between the parties.  But if to do justice between the parties is to enforce compliance with agreements to first have them considered by a private dispute resolution process, there is no ousting of a court’s jurisdiction to consider whether or not that determination of the removal of a trustee was in accordance with their agreement and whether or not the court should avail itself of such rights as may exist to examine the outcome of that process, the award.

So, your Honour, this two‑stage process - I have referred to Justice Tobias at 83.  At 84 I referred to the fact that there are other objectives and Justice Tobias at 86, the top of the page, is the passage that I quoted, in the second line:

In my view the purpose of the legislation is to permit of the making of a suppression or non‑publication order in circumstances which would not necessarily conform to the exceptions which the common law has recognised to the principle of open justice.  However, there is no doubt that the strict words of the statute in terms of the grounds which must be established before an order is made, must be adhered to.

Justice Young took the same view.  If your Honour goes to page 124 of the ‑ ‑ ‑

FRENCH CJ:   Categories of the common law were not necessarily closed.

MR HOLMES:   No, and we rely on what your Honour said in Hogan v Hinch and also what Chief Justice Bowen said.  We did include the passage ‑ ‑ ‑

FRENCH CJ:   In Parish, is it?

MR HOLMES:   In Parish, yes, where he said community interests, in terms of the – perhaps I should quote it, rather than – yes:

The categories of this public interest are not closed and must alter from time to time whether by restriction or extension as social conditions and legislation develop –

One would say that alternate dispute resolution process was not a concept which was well known and established 10 or 20 years ago, but in the current climate there is a legitimate objective in terms of encouraging alternate dispute resolution processes. 

FRENCH CJ:   That objective, if pursued too far, gets you into the creation of sort of to, I think, extend a metaphor out of Kirk, an archipelago of lawlessness.

MR HOLMES:   Your Honour, we are concerned more ‑ ‑ ‑

FRENCH CJ:   The preclusive operation of provisions in private agreements relating to - affecting the way in which the court may deal with matters said to arise under or be related to those agreements.

MR HOLMES:   No.  I think your Honour is looking at a different scenario to the approach taken by the applicants in the present case.  Your Honour, could I just turn to a different point in view of the time.  In Hogan v The Australian Crime Commission the Court looked at the terms of section 50 and in section 50 the words were “if it appears that it is necessary” then the court has jurisdiction and the court is obliged to respond with an order and this Court said the appearance having been demonstrated, the court implements its conclusion. 

The state of satisfaction is essentially the precondition to the exercise or the making of the order as appeared in the argument of the Solicitor‑General. On the other hand here, section 7 mandates a decision‑making process and the words “it appears” does not appear in the legislation. Your Honour, I see my time is out.

FRENCH CJ:   Thank you.  Yes.

MR WALTON:   May it please the Court. On 16 September 2011, the applicant, Mrs Rinehart, moved the Supreme Court for an order pursuant to section 67 of the Civil Procedure Act ‑ ‑ ‑

GUMMOW J:   She did not move for an order restraining breach of the contract, did she?

MR WALTON:   No, she did not, no. What she did was she moved for an order under section 67 of the Civil Procedure Act, and that is recorded at page 21 of the book, in the judgment of Justice Brereton at paragraph 6. 

GUMMOW J:   Why would the court not ask such a plaintiff “You have a private contractual right which you could enforce, on your case by an injunction, why do you not rely on that first before seeking to invoke these statutory powers?”

MR WALTON:   I cannot answer why the decision was made not to pursue an injunction, your Honour.  All I can say is that it was not and never has been, and the application for a stay was rejected.  Importantly, however, the application for a ‑ ‑ ‑

GUMMOW J:   Unless there is an invocation of existence of this contractual right, is there not?

MR WALTON:   Yes, there is, and we say that the application under section 67 constituted a request under the Commercial Arbitration Act of this State which provides in section 8 – I will take your Honours to that. In the authorities bundle at page 12:

A court before which an action is brought in a matter which is the subject of an arbitration agreement must, if a party so requests not later than when submitting the party’s first statement on the substance of the dispute, refer the parties to arbitration ‑ ‑ ‑

FRENCH CJ:   Now, this was not run before Justice Brereton?

MR WALTON:   Sorry, what was not run?

FRENCH CJ:   This argument.

MR WALTON:   No.

FRENCH CJ:   Nor in the Court of Appeal.

MR WALTON:   No, that is correct.  The only relevance of the application to today’s proceedings is that the premise on which our argument proceeds commences with a request having been made.

FRENCH CJ:   Is this a domestic commercial arbitration?

MR WALTON:   We say it is, your Honour. We say it is and if it is not then the provisions of the International Act will apply and the International Act has provisions which mirror section 8 of the New South Wales Act. They mirror them, as I understand it, precisely or materially they are the same. The relevant arbitration agreement is found in clause 20 of what are called the Hope Downs Deed. That clause is set out, at least in part, in the ex tempore judgment of Justice Brereton commencing at page 21.

Importantly, from our point of view, it matters not that the arbitration is to be conducted under the Commercial Arbitration Act (WA), as it clearly is, because the New South Wales Act applies with certain exceptions to all arbitrations.  That is made clear by section 1(2) on page 7 of the book:

The provisions of this Act, except sections 8 . . . apply only if the place of arbitration is in New South Wales.

So that section 8 applies wherever the place of arbitration is and there is no issue, as we understand it, that these proceedings are brought under Western Australian law and as we understand it, although it is really a question for the plaintiffs, we understand the jurisdiction of the New South Wales court is brought about by the cross‑vesting ‑ ‑ ‑

FRENCH CJ:   The notion that applies to commercial arbitrations is given some content by reference to the parties having their places of business in Australia.

MR WALTON:   Yes.

FRENCH CJ:   This is not premised on the proposition all these parties are carrying on business somewhere.  This is an argument about a family trust arrangement, is it not, even albeit it involves substantial assets?

MR WALTON:   It is.  It is.  We say it is commercial in its flavour.

FRENCH CJ:   The point being that had this point been raised earlier, some of these questions might have been explored.  There may be factual components to them.

MR WALTON:   That is true.  The reason why this point is being made at all is because the Court of Appeal of its own volition or own motion, as it were, sought to venture into this line of country.  They were not invited to but they did, and that appears in the Court of Appeal judgment at paragraph 42 on page 112, where the plurality considers the effect of the parties’ agreement and in paragraph 42 it says:

Party autonomy is said to be “fundamental in modern arbitration law” and, to find reflection in legislative recognition of parties’ right “to agree about how their commercial disputes are to be resolved –

They refer in particular to section 1C of the Commercial Arbitration Act (NSW). Now, the essential point though is that the ‑ ‑ ‑

FRENCH CJ:   That is recognition of a norm which is, if anything, in your favour.

MR WALTON:   Yes.  At paragraph 51, however, they took up this concept again of party autonomy and the plurality decided – this is the essence of the decision:

that is not determinative of the question whether, on an application for such a stay, it is necessary for the proper administration of justice for the Court to make a suppression order to give effect to a provision such as cl 20.8 prohibiting disclosure of the nature of the dispute both before, during and after the arbitration proceedings.  Tobias AJA, with respect, appears to have treated it as such.

The reference to paragraph 19 in that next sentence we think should be to paragraph 42 of his Honour’s judgment. The fact that section 8 of the Commercial Arbitration Act mandates the referral to arbitration of certain disputes already the subject of court action is, of course, we accept, not the end of the matter under the Court Suppression Act, as the Court of Appeal correctly found. 

But that court in deciding to reject the finding of Justice Tobias that in the event that a stay of the current proceedings were granted, which his Honour said was likely, effect should be given to the parties’ agreement to keep the nature of the dispute and the allegations confidential, we say the Court of Appeal misinformed itself by failing to give proper weight to the clear legislative intent of the Commercial Arbitration Act (NSW) which requires the courts of New South Wales to give effect to domestic commercial arbitration agreements, even where they are, as here ‑ ‑ ‑

FRENCH CJ:   We do not even know whether it applies to this class of arbitration.  I mean, you really have not answered the question whether this is a domestic, commercial arbitration.

MR WALTON:   Whether it is domestic or not ‑ ‑ ‑

FRENCH CJ:   “Commercial” is the word I am – which is undefined in the Act but which one can get a clue to from reference to the parties having places of business.

MR WALTON:   Yes.  We say the nature of the trust and the nature of the proceedings brought pursuant to the trust are, in essence, commercial because they involve a business, the business of Hancock Prospecting Pty Ltd.  Control of that business or partial control of that business is necessarily vested in the trust.  We say that that of itself gives this dispute a commercial nature.  As your Honour the Chief Justice rightly observes the term is not defined in the Act and one must give it its normal meaning.  Its normal meaning would involve, we submit, disputes of this nature. 

FRENCH CJ:   Now, the approach – is it right to say looking at 115 of the application book and paragraphs 49 and 50 that essentially what the Court of Appeal has done, or at least the plurality has done, is to say that the primary judge gave inadequate weight, if you like, to the principle that suppression orders should be granted on a basis which has the least adverse impact upon the open justice principle and too much to the pacta sunt servanda principle.

MR WALTON:   Yes.  Well, your Honours have already been taken by Mr Holmes to the portion of Justice Tobias’ judgment where he refers to the fact that the Act refers to “a primary” objective and then identifies “another primary” objective.  That other primary objective is that – or one of the other primary objectives is that the party should be held to their bargain which is represented by the phrase “pacta sunt servanda” which is referred to in that passage of their Honours’ judgment.

GUMMOW J:   You are not seeking to hold the other parties to their bargain.

MR WALTON:   We are, with respect.

GUMMOW J:   The way to do that was to seek an injunction.

MR WALTON:   We sought a stay instead. 

GUMMOW J:   Yes, all right.

MR WALTON:   Just to go back to the question asked by your Honour the Chief Justice, I should refer your Honour to page 8 of the authority booklet in which in the context of the Commercial Arbitration Act there is a model law note:

The term “commercial” should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not.  Relationships of a commercial nature include, but are not limited to, the following transactions ‑ ‑ ‑

FRENCH CJ:   I am sorry, where are you ‑ ‑ ‑

MR WALTON:   This is page 8 of the authorities booklet.

FRENCH CJ:   I am sorry, yes, I see.  I was looking at the numbering at the top that is all.

MR WALTON:   It is not a definition.  It does give one some guidance.

FRENCH CJ:   Who has written that?  This is just a legislative note.

MR WALTON:   Yes.

GUMMOW J:   Now, if you had sought an injunction you would be faced with the argument that had to be thrashed out with the phrase “under the deed”, would you not?  Why should we get involved in a construction of that provision inferentially by a side wind?

MR WALTON:   That argument has been had and is currently before the New South Wales Court of Appeal.

FRENCH CJ:   Justice Brereton found against you on that point.

MR WALTON:   He did, he did.

FRENCH CJ:   This is all collateral to the appellate process from that decision.

MR WALTON:   Yes.  This application assumes in our favour a favourable outcome of the Court of Appeal decision which is pending.

FRENCH CJ:   You are hypothesising that you have, as it were, the right to proceed under the deed.

MR WALTON:   Indeed, your Honour, yes.

FRENCH CJ:   And that it is just a matter of the Court of Appeal disclosing it.

MR WALTON:   Yes, that is correct, your Honour.  If the Court of Appeal does, to use your Honour’s words, “disclose that” then we need the protection of the present application.  Yes, we certainly assume in our favour an outcome in the Court of Appeal.  That, indeed, is why Justice Tobias made the orders that he did under the Act in order to preserve my client’s position in relation to that appeal. 

The essence of our submission is, your Honours, that the Commercial Arbitration Act correctly informs the decision to be made by the Court under the Suppression Act as to whether an order should be made preventing publication of the allegations and other matters the parties have in their arbitration agreement agreed to keep private. 

In referring but failing to have regard to the evident purpose of that Act expressed in section 1C as the “paramount object” of the Act, to enable parties to agree about how their commercial disputes are to be resolved, the Court of Appeal gave undue emphasis to the “public interest in open justice” at the expense of the equally important “public interest evident” in the Commercial Arbitration Act in encouraging and enabling parties to commercial disputes to provide the mechanism of their own choosing to resolve those disputes. 

In this case, that agreed mechanism includes the term of the arbitration agreement requiring confidentiality of the dispute, the submissions and the hearing of the arbitration.  We say it is a matter of public importance for there to be clarity in this State in the commercial community as to how these two statutes are to co‑exist, a question which this Court has not yet the opportunity to address.  These proceedings provide the opportunity for that process.

The only other thing I wanted to say, your Honour, and it is just briefly, a special costs order and possibly this is a matter for reply but I will raise it now – a special costs order has been sought against us by Dr Bell’s clients and we have addressed that matter in paragraph 4 of our reply at page 202.  I do not seek to say anything further about that matter but I did not want it to pass unnoticed.  If your Honours please.

FRENCH CJ:   Yes, thank you.  Yes, Mr Walker.

MR WALKER:   If it please, your Honours, we have agreed that I should go first.  It was our application.  Your Honours, we submit that both applications exhibit to a very great degree matters of contingency resulting in hypothetical questions inviting ultimately, were the matter to be pressed and the Court to accede to what the applicants seek, decisions and reasons from this Court which would be more or less advisory in nature. 

Those aspects to the matter, the lack of concreteness, the contingency of the hypothetical and moot aspects of the nature, may present difficulties for success were there appeals but, in our submission, they present most formidable reasons why there should not be a grant of special leave at all.

Starting with the last that fell out between Bench and Bar while my friend, Mr Walton, was addressing, it is logically, of course, the first.  Whether one talks of pacta sunt servanda or whether one talks about a stay instead of an injunction to enforce a prohibition on what was being done by litigation, one comes down to the question, what is the contract, what does it say, how does it attach to these facts and what is the present state of binding law between these parties concerning that contract - nothing provisional about Mr Justice Brereton’s decision.

That is the present position.  It does not apply to the disputes, so called, including statutory claims for the removal of trustees, a trustee, which is presently pressed by Mr Bell’s clients in their equity suit.  The present state of affairs is that the agreement which includes clause 20, upon which the whole of the case against us depends, is to be found.  That means, as my learned friend frankly recognised by his use of the word “if”, this case only arises if they are successful to the full extent they seek in the Court of Appeal. 

In our submission, a special leave application is no place for that to be the subject in proceedings which are not before this Court of any prediction or estimate.  It means that there is, inasmuch likelihood as can be put on the opposite outcome, because all is unknown, it means ‑ ‑ ‑

FRENCH CJ:   They are seeking protection against a Pyrrhic victory in the Court of Appeal, are they not, insofar as the confidentiality aspect of the alternate dispute resolution process goes?

MR WALKER: They are, and that then puts it, in our submission, that puts the weight then on investigating what exactly is it that they are seeking to be vindicated in this Court. That is best answered by narrating from the list already touched upon by questions between your Honours and my friends what it is not. There has not been an application under section 8 – that is, that there has been no request made under section 8 of the Arbitration Act, to which the Court would have to respond if all the ingredients of requirement were made out.

FRENCH CJ:   Mr Walton says the application for the stay is the request.

MR WALKER: I was coming to that next. The identification of that in a written reply in this Court on special leave is the first time that argument has been put and, of course, it puts into stark relief those things that have to be investigated concerning section 8, including whether or not the request is made before a first response, et cetera, et cetera.

If they fail in their characterisation, which must be a hidden and implicit character because nobody hitherto said there has been a section 8 request, why are we talking about anything else but section 8 - if they fail in that characterisation which has never been argued, so which is not an issue that has ever been ripe for determination by this Court then, of course, none of this arises, yet another contingency – meaning that the whole thing is hypothetical upon a state of affairs (a) that depends basically upon what may or may not happen in the Court of Appeal in other proceedings and secondly, and most importantly, in relation to an application, the existence of which was apparently unknown – or at least kept silent – by the person who now claims to be the author of it.

It is extraordinary that a request under section 8 is identified by the requesting party as such only so late. It is a contested proposition that the section 67 application for a stay in relation to an alternative dispute resolution process that is not only arbitration and may not ever involve arbitration could possibly amount, in this case, to a section 8 request.

The second point I want to come to then concerns what has been elided in everything written and said to your Honours about the interest in an arbitration agreement as the applicants would have it.  It is not simply an arbitration agreement.  It is an agreement that first – and that is the parties’ word – first there will be mediation, the explicit purpose of which is to achieve resolution with nothing left in dispute.

If that fails there is another contingency.  One loses count.  If that fails then there will be an arbitration and contingencies concerning that arbitration as to its commencement include the matters of timing, including default lapse of time and events taking place including nomination of arbitrators and the like, none of which can be said to be concrete in this case and none of which was argued or put in evidence in any of the courts below.  So it could never be before this Court. 

Now that, in our submission, really puts paid to the notion that what your Honours have before you is an application in which there can be decided, as an appropriate matter before this Court, issues which are a mixture of fact and law as to the application of an agreement to arbitrate and the fulfilment of the statutory requirements in section 8 of the local Arbitration Act which would produce a mandatory stay. Indeed, there is an air of unreality about us being put to having to make that argument. There has never been such an application.

Then one turns to the way in which pretext – if I may put it that way – is supplied for the arbitration matters having been placed in argument in this Court.  It comes from what the Chief Justice, with respect, has already properly characterised at page 112 of the application book.  It comes in a passage of the plurality reasoning which was unequivocally in support of arguments pressed by the present applicants.  It was pointing out that it is not merely a common law or social expectation pactus sunt servanda, but with respect to arbitration agreements, they had the benefit – the following wind – of the recent, though not novel, statutory policy which they quoted from section 1C in their paragraph 42.

None of that excuses or provides any answer to their failure to have made any application.  Now, we are not saying they have made a wrong decision not to apply.  Their agreement, if it applied at all to the dispute, was to mediate first and only if that failed would there then be an arbitration.  That, no doubt, we infer, explains why they went under the statute –the Civil Procedure Act – rather than under the Arbitration Act.  But that, in our submission, only emphasises, rather than detracts from, the fact that there is no material concrete question before this Court – or capable of being before this Court given section 73 and Mickleberg – concerning the enforcement of the statutory right that comes with section 8.

Now, the Chief Justice also referred to what I will try to deal with compendiously as a number of other matters which are contingencies leading to hypothetical qualities of the present applications and that is that section 8 has number of components or integers which have to be made good – all of them – before there can be an application of what my learned friend, Mr Walton, calls the mandate uttered by Parliament to the courts to impose a stay. One can simply look at the list. There is not time to recite them all but there are matters there which plainly enough invite contest and dispute as to whether or not this is an agreement to which section 8 would ever apply.

The first, and most obvious one, is whether it is an agreement that captures – covers – the disputes in question in the litigation.  As it happens – I return to where I started – that is the one that has been decided against them.  They cannot, with respect, simply by saying, but in case we reverse that position quia timet in a rather odd fashion, we are entitled to have got an order under the Suppression Orders Act.  That is an unheard of proposition and would render the content of the word “necessary” in the Suppression Orders Act meaningless. 

How can it be necessary to do something that may never be required?  It will not be required if they lose their appeal because they cannot possibly then say we are to have protection under the Arbitration Act for an agreement to arbitrate disputes which are not the disputes before this Court.  It is for those reasons, in our submission, that there is no error identified in any of the matters that both applications have sought to attribute to the Court of Appeal and the first point to be said there is, there is not the divide – let alone radical divide – hinted at by the distinction between plurality and Justice Young that one has heard in the submissions this morning.

Essentially, there is agreement – including on the all‑important proposition about which your Honours have not heard a word – that no one has sought to demonstrate why it is that satellite litigation about arbitration is litigation to which this parties’ agreement – even if it could otherwise apply – would speak.  Both the plurality and Justice Young point out that the plethora of applications for stay pending arbitration, whether under the 1902 Act or all its following iterations, have been heard in open court.  No one has said that that was something which ran counter to what was necessary for the administration of justice.

Now, times change – one might even be tempted to say fashion in relation to alternative dispute resolution may change – but no one has pointed in this case, as a matter of legal argumentation, to anything which is altered by statute or by judicial opinion to suggest that that long‑established practice, to which no exception has been shown, was wrong and fundamentally wrong in a way that could hardly be pointed to as some subtle difference.

Once one appreciates that even taken at its highest against us, namely assume the disputes in the equity suit could be caught by the deeds dispute resolution process, what does that say about the application in relation to the equity suit for a stay pending arbitration, where that is contested?  Of course, what has to be said under the statute by the applicants, what was said, and unsuccessfully by the applicants under the statute, was that it would be necessary in the interests of the administration of justice to keep secret all material about what one side said should not be arbitrated and the other side said should be arbitrated, in the argument about whether it should be arbitrated or not.

That, in our submission, is a fatal missing component, nothing that can be done between special leave application and the hearing of an appeal in the High Court that could do anything to cure that.  It is for those reasons, in our submission, that there really is nothing in this case apart from that which might arise about the application of the word “necessary” were a number of the contingencies to be satisfied and the hypotheses to be rendered actual, and I turn finally to that word “necessary”.

It is, in our submission, a fictitious proposition that the plurality, even accepting that there be some difference between them and Justice Young in this regard, which we do not, that the plurality has taken steps in relation to the interpretation of the Suppression Orders Act, which, to the slightest degree, is different from what this Court held for the same word “necessary”, albeit in a slightly different statutory setting, in Hogan. 

We have suggested in our written submissions in this Court that no attempt has been made to show that they either misunderstood the plain purport of what fell from this Court so recently in Hogan on the matter, or how it could be distinguished.  This morning we think we heard an attempt to say “appears to be necessary” is somehow different; a weaker or lesser species of satisfaction than a finding that something is “necessary”.

That, in our submission, is not even a semantic point, using that term derogatorily.  There is nothing in it.  It would be, in relation to the administration of justice, a bewildering phantom that proposed that something can appear to be necessary (but really is not).  We are not talking about deceptive appearances; we are talking about the appearance that comes upon judicial satisfaction that something should bear that label.  So there is nothing in that point, if that was an attempted distinction.

We then came to what, in our submission, if it were proposed as a reason of general importance in the matter such as to give rise to special leave, is the most remarkable of all suggested in address this morning and that was that there was an error to be seen in the plurality approach when their Honours pointed out that this was an evaluative, not discretionary matter, to use those epithets in ways that are now well established in discourse in this Court, that is, there is an evaluation or assessment to be made about which none but the most self‑confident could say there was only one correct answer, but it is not something which is in any of the accepted manners to be understood as a discretion.

That comes again from this Court’s approach in Hogan, where, bearing in mind the subject matter, namely that which is necessarily in the interests of the administration of justice, the spectre was raised and firmly expelled of this Court approving the notion that a court could find that something was necessary in the interests of the administration of justice but in discretion would not do that which it entailed.  The same exactly follows from the Suppression Orders Act in this case.  It is, in our submission, only spuriously of general importance to notice this argument raised by the applicants, only spuriously because it is, with respect, an impossible argument ‑ ‑ ‑

FRENCH CJ:   Well that gives you the word “may” in 8(1), the meaning of “is empowered to” rather than simply “may or may not”.

MR WALKER:   Exactly, and then one looks to the subject matter of the power and asks, “Is it imaginable,” as we have put in our submission, “Is it imaginable that a court says it is necessary to do this for the administration of justice, but we have got a discretion not to and we will not?”  It is an absurd proposition and in our submission there goes away the one thing that might at first sight have seemed to be of that substantial general importance for the doctrine of the law such as to attract a grant of special leave.  It disappears and one comes back then to what is particular about these cases, and what is particular about these cases is their great degree of contingency, their pervasive character of being hypothetical, and therefore the great risk that this Court will be seized of something which is nothing but moot.  May it please your Honours.

FRENCH CJ:   Thank you, Mr Walker.  Mr Bell.

MR BELL:   If the Court pleases.  Your Honour the Chief Justice asked the question of jurisdiction.  It is the cross‑vesting jurisdiction, quite deliberately invoked and Justice Brereton raised that on the first morning.  His first judgment makes clear that the necessity for the commencement of these proceedings was a need for urgent interim relief.  He refers to that in the first paragraph, I think, of his judgment.  The Western Australian Cross‑Vesting Act gives that cross‑vested jurisdiction power to serve as provided by the Service and Execution of Process Act 1992 (Cth), and there is of course the facility in the Cross‑Vesting Act (NSW) to seek to cross‑vest the proceedings back to Western Australia.

That was at one stage foreshadowed but abandoned, so there is nothing jurisdictionally irregular; the invocation of the Trustees Act (WA) was quite deliberate and quite proper and the inherent jurisdiction also sought to be invoked for the removal of a trustee is the inherent jurisdiction of the Supreme Court of Western Australia, jurisdiction of which is afforded to the Supreme Court of New South Wales under the cross‑vesting regime.

FRENCH CJ:   So if there is any Arbitration Act that is relevant you would say it is the West Australian Act, which treats the Commercial Arbitration Act (NSW) as an arbitration agreement and vice versa.

MR BELL:   But, your Honour, we do not for a number of reasons.  The first one, if I can come to make this point in our written submissions, the notion that this dispute, which is my client’s application for the removal of a trustee for alleged serious misconduct is not a commercial dispute within the meaning of either the Commercial Arbitration Act (NSW), the Commercial Arbitration Act (WA) or the International Commercial Arbitration Act.  It is important to note the trust deed, the settlement deed, does not contain this arbitration clause.  This notion of a dispute arising under comes from a deed it entered into almost 20 years after the trust was settled and is one which, as the Court knows, Justice Brereton has held was not applied.

But the nature of my client’s application is not a commercial dispute. Your Honour the Chief Justice emphasised, and we would embrace this and particularly if I can take your Honours to some further pointers in the New South Wales Act, what is emphasised throughout in the short title - this is the book of authorities, page 6 - “commercial arbitrations”, section 1C - “final resolution of commercial disputes”, 1C(2)(a):

parties to agree about how their commercial disputes are to be resolved –

and 1C(2)(b).  Again, your Honour the Chief Justice has referred to the place of business.  I just pause to note that of course two of my clients were babes in arms when this trust was settled by their grandfather.  It is a family dispute.  There was a trustee which has well‑established fiduciary obligations which we say are wholly within the jurisdiction of the Supreme Court, both under the Trustees Act (WA) and the inherent power. My learned friend Mr Walton referred at page 8 of those authorities to the model law note. What is illuminating is that all of the instances of commercial disputes there are unremarkable:

trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering . . . carriage of goods –

et cetera.  Our submission, your Honour – of course, this has never been able to have been taken because the point was never taken – is that this Act for that reason alone, or the international Commercial Arbitration Act which is our friend’s apparent fallback position, just is not engaged because one is not dealing with a commercial dispute of a kind within the purview of either of these Acts.

There are more difficulties, of course, because, your Honours, the New South Wales Act is only engaged – the provisions our friends seek to take advantage of in their submissions, which is not so much section 8 but the confidentiality provisions in section 27H, I and J of the Commercial Arbitration Act, that is where they say the tension arises between the Suppression Order Act and the Commercial Arbitration Act (NSW), but those provisions will only apply if there is an arbitration on foot which is taking place in New South Wales by the agreement of the parties, and where all of the disputants have their place of business in New South Wales.

Now, those factual questions are contested.  They would have been contested in subject of evidence, which leads to the moot nature of the point.  All of that is important because, your Honours, the trustee – just focusing on the trustee – says this is the only point in this application.  One sees that from the trustee’s special leave submissions in the application book at 177, where it is said:

This application raises a single issue, namely whether and to what extent the Commercial Arbitration Act 2010 (NSW) (CA Act) affects the operation –

This is an opportunistic attempt without merit to rely on an afterthought which has no merit.  I say that because in the Court of Appeal, your Honour, as we note in our written submissions at application book 185, Mr Walton appearing for the trustee, in fact distanced himself from the argument he now seeks to rely on, quite correctly, by referring to section 1(2) of the Act, namely the engagement of the Act was dependent on facts which he was suggesting to the court may not be established in this case.

We know that section 8 may be triggered, but the confidentiality provisions out of which the inconsistency is sought to be generated are only engaged if the Act is engaged under section 1(2) and Mr Walton quite appropriately and quite properly pointed out that fact in contradiction to Mr Holmes, who was taking the principal carriage of that matter.

So that is the first point, your Honours.  We will comfortably, for the reasons advanced by Mr Walker and the reasons I have advanced embracing your Honour the Chief Justice’s point about this is not a commercial dispute ‑ ‑ ‑

GUMMOW J:   Well, section 35 may give you some assistance on that point.  Assume there was an arbitral award, trustee be removed.  What happens then?  There has to be some curial intervention, I suppose, under 35(1) which seems to mandate the court removing the trustee, which is a big step – subject, though, to 36(1)(b), that it should never have gone to arbitration in the first place.  Then we go around in a circle.

MR BELL: One of the points we have taken, and one of the very important points the Court of Appeal has reserved on, is in relation to my submission that my client’s application for the removal of trustee is not arbitrable. Your Honours will understand why we make that submission, that the power in section 77 of the Trustees Act 1962 (WA), which has its analogues obviously, the New South Wales Act and the other State Acts and the English legislation refers explicitly and repeatedly to the court having this power. There is, of course, also the inherent Miller v Cameron power, but importantly, what goes usually hand in glove with the removal of trustees is a vesting order, a vesting order the nature of which is judicial.  It is not private.  It is in rem.

GUMMOW J:   And affects third parties.

MR BELL:   In rem, quite, and so your Honours in a sense anticipate one of the points which has been taken and is reserved in the Court of Appeal ‑ ‑ ‑

GUMMOW J:   Better not say any more.

MR BELL:   No, but over and beyond, your Honour, the question of under this deed which, as Mr Walker pointed out, my clients have succeeded on, on the current state of the position, this whole exercise is hypothetical.  Mr Holmes suggested that the provision was any disputes about the trustee’s conduct.  That is not the terms of the dispute, and there is a misconception in my friend’s submissions, because they seem to have mistakenly proceeded on the assumption that that arbitration clause is in the trust deed.  It is not.

FRENCH CJ:   This is in the deed of settlement?

MR BELL:   The deed of settlement has no arbitration clause, nor would one expect to find an arbitration clause in the deed of settlement, because the trust is subject to the supervision of the Court of Chancery classically.  Your Honours, the next point we would make is this, which is really a related point, that is as to whether or not this application would enjoy any prospects of success if special leave were granted.  The plurality Justices, Bathurst and McColl, at application book 115 accepted a submission advanced on behalf of my clients and put, but said by their Honours to have been wrongly dismissed by his Honour Justice Tobias, namely at the end of that paragraph over on 116:

The proper conduct of trustees is a matter which warrants close public scrutiny.  It was a proper factor to take into account in determining whether a suppression order was necessary.

In other words, we are not only invoking all of the standard justifications for the open justice principle, confidence in the rule of law, public justice and the like.  We make the specific point in relation to trustees that the examination of the conduct of trustees and the articulation of the proper standards of conduct is something which is critical.  It is critical that that occurs in public. 

That articulation, of course, is understood by reference to the particular facts and circumstances of each case.  It is through the handing down of public decisions, examining conduct and applying the equitable fiduciary obligations to that conduct which is of really very critical importance.  That was another factor which was called in aid and which, in our submission, warranted the interference by the Court of Appeal, underpins the correctness of the decision and most importantly for today’s application, would give this Court absolute comfort that this application would not enjoy sufficient prospects of success if leave were granted of an appeal succeeding.

Your Honours, the consequences of our friends’ argument being acceded to would be because there is nothing more than a contractual agreement relied on.  The consequences would be that every private agreement to keep litigation confidential would be distinguishable from the facts of this case, and the suppression order.  That is an extraordinary result which is wholly corrosive of what is said to be the fundamental objective. 

The next point, your Honour, is this, that the other object if put in the scales, namely pacta sunt servanda, is not undermined by refusal to grant this order.  That maxim is not under threat in New South Wales and is not under threat by the decision of the Court of Appeal.  That principle will be given effect to by the Court of Appeal if their Honours allow the appeal from Justice Brereton on the question of whether the arbitration clause is engaged, and subject to the question of arbitrability.  There is no question that the New South Wales courts have, by this decision, embarked on a process of undermining that principle.  The concern was theoretical, and not real.

The final point I would make, your Honours, is to draw your Honours’ attention to the application book page 228 and paragraph 15 of our submissions where we note that because the judgments of Justice Brereton and the Court of Appeal are public, facts – extensive facts are already known about the nature of this dispute.  It is known that Mrs Rinehart is the subject of a suit by three of her children in their capacity as beneficiaries.  It is known that there is a valuable family trust.  It is known that her removal is sought for alleged serious misconduct.  It is known that she has unsuccessfully sought to stay the proceedings.  It is known that at the basis of that removal are the provisions, many of which have been set out in extenso in the various judgments is a 2006 deed called the Hope Downs Deed. 

Now, given all of that, what is being sought to be suppressed is the, no doubt, embarrassing detail of the allegations of serious misconduct.  Now, in every case of the breach of fiduciary duty or often a breach of contract or even a case of negligence, there will be embarrassing material

comes out.  We do not take any pleasure in that but we wish to bring our case and we wish to bring our case without speaking, not in the media interests - they have their own reasons - but my clients wish to be free of restraints which are restraints not imposed on any other litigant or their legal practitioners in this country. 

There is a serious sanction, obviously, for breach of the order and my clients are subject to that sanction as are their advisers.  There are real constraints there.  When one asks the question, given what is already known, why is it necessary to prevent prejudice, how is the administration of justice in New South Wales prejudiced (a) such that it is necessary that this order be granted.  In light of everything which is already known, we say the case is, with the greatest respect, a hopeless one. 

Your Honour, a reference was made to a submission we make in relation to costs.  Our concern is only that the trustee to the extent that the trustee is held liable to pay costs would not be entitled to take those costs from the trust estate because what she is seeking to vindicate, we – as your Honour Justice Gummow has pointed out - inappropriately via the invocation of this Act as opposed to an action for injunctive relief, is a private right, not arising from her status as trustee but from the fact that she is a party to the 2006 deed which contains the dispute resolution clause.  She has no entitlement in those circumstances to any indemnity from the trust.

Now, maybe the Court considers that is a matter for taxation or another application but we simply flagged our concern about that, particularly in light of some observations in the Macedonian Church Case about what trustees ought do when named as defendants in proceedings.  If it please the Court, they are our submissions.

FRENCH CJ:   Thank you.  Yes, Mr Holmes.

MR WALTON:  May I go first, your Honour?

FRENCH CJ:   I am sorry, Mr Walton.

MR WALTON: Your Honour, when one looks at section 8 of the Court Suppression Act which is on page 46 of the materials, what is necessary to prevent prejudice of the proper administration of justice is the preservation of the subject matter of the appeal that is currently before the New South Wales Court of Appeal. When Dr Bell opined – asks the question what is already known, what is not known are the details of the allegations that are in dispute. Dr Bell says that there is an allegation of serious misconduct by the trustee. That allegation is hotly in dispute and allegations that are in dispute should not, we say, in the circumstances of

this case, be given a public airing simply for the sake of giving voice to the plaintiffs. 

In relation to the question of whether or not the dispute is arbitrable that question is, of course, currently before the New South Wales Court of Appeal.  Justice Brereton decided that it was and, at least at this stage, we have that finding in our favour.  In terms of Hogan, we do not take the point that there is a material difference in the legislation in section 50 of the Federal Court Act and the current Court Suppression Act legislation.  However, we do say that, and we did say in the Court of Appeal, that Hogan was a completely different case to this. 

In that case, Mr Hogan’s counsel took a forensic decision to read an affidavit in support of his application.  Here, the applicant has sought to invoke confidentiality from the outset and has never retreated from that position.  We say that the emphasis on Hogan by the Court of Appeal also led them to misinform themselves about the issues in this case.  It could fairly be said that this case and Hogan’s Case are at opposite ends of the spectrum.  We sought to distinguish Hogan not on the basis of the legislation but on the basis of the circumstances of those decisions.  If your Honour pleases.

FRENCH CJ:   Thank you, Mr Walton.  Yes, Mr Holmes.

MR HOLMES:   Just briefly, firstly, your Honours raise some questions about the commercial nature of the dispute and whether that was in issue.  Mr Bell said no, it was a family dispute.  I think it should be recalled that the Commercial Arbitration Act was not referred to by either party. When the Court of Appeal went away to consider the operation of the section and to reach its conclusions, it called in aid section 1C of the Commercial Arbitration Act.  If it did that, it should also have borne in mind the mandatory duty that the legislature has imposed on courts in New South Wales to enforce arbitration agreements. 

The plurality cannot refer to the endorsement of party autonomy in section 1C without giving effect to the legislation in section 8 if that is relevant to its reasoning. There is no commerciality. There is no need for any factual findings. All this is is to respond to what the plurality did without advising the parties that it was a material consideration in advance.

Mr Bell referred to at the next point that it was a family dispute. That is the very matter that, we say, if the plurality had engaged in the decision‑making process mandated by section 6 then it would have upheld the decision of Justice Tobias. That is best seen, if your Honour looks at application book page 9 where Justice Brereton did engage in this stage process. At paragraph 15 he looked at whether or not it is necessary to

prevent prejudice to the proper administration of justice - page 9, paragraphs 15 and 16.  Having gone through those processes he said:

I am therefore satisfied that the order is necessary to prevent prejudice to the proper administration of justice, satisfying s 8(1)(a). For the same reasons -

and there my clients were relying on both 1(a) and 1(e). As Justice Gummow has pointed out, when we came before Justice Tobias we only relied on 8(1)(a). That was not sufficient because then Justice Tobias had to engage in the decision‑making process mandated by section 6. So, in paragraph 17, he says:

The conclusion that the public interest in upholding the legal rights of litigants requires that a suppression order be made is not of itself enough to authorise ‑

the making of the order -

it is next necessary to weigh that interest against the public interest in open justice.

Now, Justice Gummow, this is where the nature of the dispute was relevant because over on page 10, Justice Brereton referred to the primary objective and it depends whether it is criminal, whether it is civil, whether it is a matter just impacting on the parties only or, at the foot of the page:

The outcome is of practical interest only to the parties and their privies.  No questions of public significance –

This is really just a private family dispute.  The very point that Mr Bell relied upon if it had been applied by the plurality would have led to Justice Tobias’ decision being affirmed.  If the Court please.

FRENCH CJ:   Thank you, Mr Holmes.  The Court will adjourn briefly to consider what course it should take.

AT 11.40 SHORT ADJOURNMENT

UPON RESUMING AT 11.43 AM:

FRENCH CJ:   The Court of Appeal held that the primary judge had failed to approach the question whether a suppression order should be granted on a basis which has the least adverse impact upon the open justice principle.  The Court of Appeal, in our opinion, gave appropriate weight to that principle in its approach to the construction of the Court Suppression and Non‑publication Orders Act 2010 (NSW) and its application. It also had regard to the important proposition that the proper conduct of trustees is a matter which warrants close public scrutiny.

The prospects of success on an appeal against the decision of the Court of Appeal are not sufficient, in our opinion, to warrant the grant of special leave.  The interaction between the Court Suppression and Non‑publication Orders Act and the Commercial Arbitration Act 2010 was not raised before the Court of Appeal. The lack of argument on that question and opportunity for its consideration by the Court of Appeal renders this case an inappropriate vehicle for the grant of special leave on that question.

Special leave will be refused with costs.  The question whether the trustee applicant is entitled to meet her liability for costs out of the assets of the trust is a matter which can be determined elsewhere if it becomes necessary to do so.

AT 11.44 AM THE MATTER WAS CONCLUDED