Rinehart v Welker & Ors

[2012] HCATrans 7

[2012] HCATrans 007

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 FRANCIS RINEHART

Fourth 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

Summonses

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

BY VIDEO LINK FROM CANBERRA TO SYDNEY

ON WEDNESDAY, 1 FEBRUARY 2012, AT 4.18 PM

Copyright in the High Court of Australia

__________________

MR M. WALTON, SC:   May it please the Court, I appear for Gina Hope Rinehart, the applicant in proceedings S11/2012.  (instructed by Corrs Chambers Westgarth Lawyers)

MR M.F. HOLMES, QC:   May it please the Court, I appear for the applicant, Ginia Rinehart, in matter S14/2012.  With me are MR F. KUNC, SC and MS M.N. ALLARS.  (instructed by Gadens Lawyers)

MR A.S. BELL, SC:   If the Court pleases, I appear for the respondents in both of the applications.  (instructed by Johnson Winter & Slattery)

MR B.W. WALKER, SC:    May it please the Court, I appear with my learned friend, MS F.T. ROUGHLEY, for those who seek to be the fifth, sixth and seventh respondents – the ABC, Fairfax and Nationwide.  I understand that your Honour has before you a summons to effect our joinder in both applications and I understand your Honour should also have consents to those orders.  (instructed by Addisons)

HER HONOUR:   I have a copy of consent orders not signed by the solicitor for the applicant in the first matter, but signed by the solicitor for the applicant in the second matter, not signed by the respondent.  So perhaps during the course of the hearing you may rectify that, Mr Walker?

MR WALKER:   May it please the Court.  Thank you, your Honour.

HER HONOUR:   Thank you.

MR WALTON:   May it please the Court, by agreement between us Mr Holmes is going to address the Court first.

HER HONOUR:   Yes, thank you.

MR HOLMES:   May it please the Court.  I move on a summons filed on 30 January and I seek to read an affidavit of John Dalzell filed 30 January. 

HER HONOUR:   Yes, I have read that.  Any objections?

MR WALKER:   No, your Honour.

MR WALTON:   No, your Honour.

HER HONOUR:   Thank you.

MR HOLMES:   Your Honour, I will also be making reference to the affidavit filed in the other matter.  It is an affidavit of Paul Richard McCann.  However, there are matters in that affidavit, which hitherto in the proceedings in all previous courts have not been made public and I would seek an order that the document which appears from page ‑ ‑ ‑

HER HONOUR:   Just one moment.  Yes, I have that.

MR HOLMES:   Can I take your Honour to page 171?

HER HONOUR:   Yes.

MR HOLMES:   That is a deed which then goes through to page 197 and the ‑ ‑ ‑

HER HONOUR:   Just pardon me one moment.  We are just experiencing some difficulty here in relation to copies of the exhibits, Mr Holmes.

MR HOLMES:   I am sorry, your Honour.

HER HONOUR:   Why do you not continue for the moment?

MR HOLMES:   Your Honour, at page 181 of that deed there is a clause 10 which is the basis upon which I make my application and 10.1 refers to an obligation of confidence, 10.2 speaks of maintaining “strict confidentiality” - that is in the second‑last line - and then 10.3 they repeat the obligation of confidentiality not affecting any other such obligations.

HER HONOUR:   Yes.

MR HOLMES:  I do not believe that clause has yet seen the light of day in any of the judgments of the Court.  It has been presented to the courts at each level and if we go to page 184 ‑ ‑ ‑

HER HONOUR:   Of the deed?

MR HOLMES:   Page 184 of the exhibit.

HER HONOUR:   Yes.

MR HOLMES:   It is page 14 of the deed.

HER HONOUR:   Just one moment.  Yes.

MR HOLMES:   There is clause 20.  That is the dispute resolution process.

HER HONOUR:   Yes.

MR HOLMES:   The opening words:

In the event that there is any dispute under this deed ‑ ‑ ‑

HER HONOUR:   Yes, I see that.

MR HOLMES:   And obligations, and, 20.1 “Confidential Mediation”; over the page, 20.2 “Confidential Arbitration” and then they repeat this obligation on page 17 in clause 20.8, if that was not enough, by the heading “Confidentiality of Proceedings”.  The dispute, the hearing, the submissions, the decision, everything is confidential.  Then the parties on page ‑ ‑ ‑

HER HONOUR:   This deed was before the courts below.

MR HOLMES:   It was, yes.

HER HONOUR:   The effect of the present orders of the Court of Appeal which expire on Friday is that the orders made by Justice Tobias stand.  Is that how it works?

MR HOLMES:   Correct, yes.

HER HONOUR:   Those orders would cover this deed, would they not?

MR HOLMES:   It would cover this deed, except in ‑ ‑ ‑

HER HONOUR:   Irrespective of whether or not there were submissions made about precise formulas. 

MR HOLMES:   That is correct, except insofar as extracts have found their way into the courts’ judgments.  At every stage there have been breaches of the confidentiality obligation through the publication of extracts in the judgments.  The judgments have not been confidential.

HER HONOUR:   Yes, I see.

MR HOLMES:   I was continuing with the walk‑through because the parties when they made this deed were not satisfied with those obligations of confidence.  On the following page, 18, that is 188 ‑ ‑ ‑

HER HONOUR:   Yes, I have that.

MR HOLMES:   Under clause 21, “Applicable Law”, they agree that:

subject to and interpreted according to the laws of the State of Western Australia . . . confidential mediation and confidential arbitration) the parties agree to submit to the exclusive jurisdiction of the Courts of Western Australia –

So we would ask for an order that the deed, which is annexed to Mr McCann’s affidavit, be the subject of a confidentiality order in the inherent jurisdiction of the Court, except insofar as it has already been disclosed in previous judgments.

HER HONOUR:   Yes.

MR HOLMES:   Your Honour, could I then turn to our submissions.  Might I ask if they managed to get through to your Honour?

HER HONOUR:   Yes.

MR HOLMES:   They are in a way an abbreviated form of the summary of argument which was filed with the High Court on 31 January and refer indirectly to the grounds of appeal in the draft notice of grounds of appeal also filed on the 30th.

HER HONOUR:   Yes.

MR HOLMES:   Your Honour, the background is important in that these proceedings commenced on 6 September and at the very outset of the proceedings on 9 September a suppression order was made in substantially the form of the orders made by Justice Tobias.  On 9 September when they were made the media interests were there and they opposed the making of the orders.

HER HONOUR:   Were the media interests there, as you put it, pursuant to some right under the statute governing the Court Suppression and Non‑publication Orders Act 2010?

MR HOLMES: Yes. They have a right to be heard under the provision in that Act, section 9(2)(d), any “media organisation”.

HER HONOUR:   Thank you.

MR HOLMES:   We have only briefly set out the history in our submissions before your Honour but the media interests were given the opportunity on 13 September to discuss the form of the orders as was the what I might call the plaintiff beneficiaries or, in this Court, the respondents to both applications.  That is set out in paragraphs 2 through to 13 in the factual background in our summary of argument.  Those orders were then made and the proceedings continued.  His Honour Justice Brereton on 7 October ruled that the dispute did not fall within the terms of the deed that I have taken your Honour to, nevertheless, he then made a further ‑ ‑ ‑

HER HONOUR:   That is the subject of the substantive appeal on foot before the Court of Appeal?

MR HOLMES:   Yes, there is an application for leave to appeal and the appeal to be heard at the same time and that has been listed on 8 February – that is next Wednesday.  After he made that ruling he invited the parties to address him on whether or not there should be an interim suppression order pending the determination of those appeal proceedings.  Your Honour, in our summary in paragraph 2, I have quoted from Justice Brereton where he said:

If such an order is not made, an arguable appeal as I –

the trial judge, in effect –

find the application for leave to appeal is - would be rendered nugatory and the right to confidentiality under the Deed which the defendants seek to vindicate by their application for leave to appeal would be defeated before it could be heard in the Court of Appeal –

next Wednesday.  That is a reference to one of the later judgments of Justice Brereton.

HER HONOUR:   You rely on a point cast in similar terms, as I apprehend it, in support of both the application for a stay and the application for an expedited hearing of the applications for special leave to appeal.

MR HOLMES:   Yes.  There is a judge who is familiar with the points and familiar with the prospects of appeal so far as the applicant is concerned in the Court of Appeal and he finds them arguable and he finds that that appellate process would be adversely affected and defeated if not, before it could be heard in the Court of Appeal.

HER HONOUR:   I think the submissions against your position, insofar as I have had the opportunity to look at them, concentrate upon the test in Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited[No 1] (1986) 161 CLR 681 and, in particular, focus on the identification by Justice Brennan of the material consideration in the context of a stay application which he refers to as the need for substantial prospects. I think that is - as I understand it - the present main thrust of the case made against you on the application by way of summons.

MR HOLMES:   Yes, we seek the stay in aid of our application for special leave and we, in our submissions, have made the submission that there are substantial prospects.  That appears in paragraph 8.

HER HONOUR:   Thank you for that.

MR HOLMES:   I appreciate this matter has come together very quickly and I think it is necessary – we have endeavoured to focus on that rather than to, what I might call, address preliminary matters.

HER HONOUR:   Yes.

MR HOLMES:   I now was going through the timing because there was no challenge by the media interests or by the respondents to any of the suppression orders from 9 September, when they were initially made in the proceedings, until 31 October when the matter was heard before Justice Tobias.  In other words, the order, the form of the order which had been made after they had addressed on the terms of the order, was a matter which did not need any challenge or any action on their part.  So that was in excess of six or more weeks. 

When it came before Justice Tobias, the matter was found to be an appropriate case for an order because in the words of Justice Tobias, the administration of justice would be prejudiced within the terms of section 8(1)(a) of the Court Suppression Act.

Now, there was then, within the 14 days as is allowed, an application for review of the decision by the single judge by the Court of Appeal and that led to the judgment which is the subject of the special leave application.  They discharged Justice Tobias’ orders and on the handing down of the judgment my client and Mr Walton’s client applied for a further stay in aid of a foreshadowed application for special leave.

HER HONOUR:   Yes.

MR HOLMES:   A stay was given by Justice Beazley on 19 December while the matter was argued before her.  Eventually she stayed the matter until 13 January so that an issue as to the appropriate principles could be dealt with by the Bench of three.  The Bench of three, in effect, revisited their decision because we were applying for a stay, in our submissions in reply, on the basis that the Burgundy Royale tests were met.  So that led to the Court of Appeal on that second judgment considering the Burgundy Royale tests. 

Now, that brings us to today.  We filed our application for special leave on 9 January.  I think Mr Walton’s clients were filed on 6 January.  My clients filed a draft summary of argument – sorry we did not file it – no, we served it on the other side on 12 January.

HER HONOUR:   Am I right in observing that they were in identical terms, or substantially identical terms?

MR HOLMES:   No.  There has been some tightening up of the language, your Honour, but the same grounds of appeal that were addressed in the summary of argument have, although the grounds of appeal and notice of grounds of appeal had not been prepared at that stage.

HER HONOUR:   Yes, I see.

MR HOLMES:   We then come to whether or not the matter should be expedited.  As your Honour has seen, at all stages, this proceeding has been given expedition and because we are seeking an order suppressing part of the court proceedings it is appropriate, in our submission, that the matter be the subject of an order for expedition.  We have been contacted by the Registry and we understand that this matter, the application, can be heard on 9 March.  So, in essence, we are seeking approximately a four‑week stay from the expiry of the stay on the 3rd.

HER HONOUR:   It goes without saying that you would be prepared to have abridged times in terms of the timetabling which would allow the application to be heard and determined on 9 March next. 

MR HOLMES:   Certainly, your Honour, yes.  Your Honour, then we put in paragraph 6 that we are seeking an order to preserve the utility of the two appellate processes that we are currently engaged in.  You will recall that the trial judge, Justice Brereton, said that we had an arguable case on the appeal which Justice Tobias was content to proceed on.  That appeal process – I am asked to remind your Honour that our argument for the application for special leave has been filed.  So we have our grounds of appeal, we have our summary of argument.

Now, the second appellate process that is being potentially affected is the application for special leave which would be defeated if the order of 19 December was not stayed.  Your Honour, we have referred to some authorities.  Justice Dawson, which was decided in the same year as Burgundy Royale, that there is a real risk that the applicant, my client, if ultimately successful would not be able to be restored substantially to her former position if the order below is not stayed, pending the disposition of a special leave application.  This Court has power to preserve the subject matter of the appeal, which is to prevent the appellate proceeding from being rendered futile. 

Turning then to the prospect of success, we remind the Court of an approach of Justice Heydon recently where the analysis or assessment of the prospects of success is a task which is more appropriate where a long stay is involved.  That is a detailed, specific assessment.  Nevertheless, if one were to consider the prospects of success, in our submission, there are substantial prospects of success for the following reasons. 

Now, our main ground, your Honour, related to an error that is perceived in sections 6, 7 and 8 and the proper construction of those provisions by the Court of Appeal where they proceeded on the basis that that ground is confined to the established exception of common law and is not a discretionary ground. They base that view on the decision in Hogan v Australian Crime Commission where the Court was considering sections 17 and 50 of the Federal Court Act. Can I take your Honour to the provisions of the Act? Does your Honour have the Court Suppression Act?

HER HONOUR:   I am having that fetched, but please go on.

MR HOLMES:  All right. Your Honour, if I can talk in general terms section 7 says the court may make an order for suppression or non‑disclosure of the proceedings. Section 8 lists the grounds upon which that order may be made. Section 7 - the preceding section says that the court must take into account that:

a primary objective of the administration of justice is to safeguard the public interest in open justice.

Our submissions focus on the phrase “you must take that into account” and that applies whatever grounds are being considered ‑ ‑ ‑

HER HONOUR:   That is section 7, did you say?

MR HOLMES: Section 7 is the power. Section 6 is ‑ ‑ ‑

HER HONOUR:   I beg your pardon. I thought you were referring to section 6.

MR HOLMES: Yes, it is section 6:

must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

Now, if we go down to section 8, we draw attention to the fact that the grounds in ground (a):

the order is necessary to prevent prejudice to the proper administration of justice –

There is a familiarity in those words in paragraph (a) with the words considered in Hogan.  But the grounds include (c), (d) and (e) which are clearly beyond the common law and (e) involves the court in a ground where there is a balancing or a weighing up of competing public interests, that is where:

it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

The Court of Appeal, however, took as a basic proposition – if I could take your Honour to the Court of Appeal’s first judgment, which is in JD‑1 where they said:

a suppression order is not a discretionary one ‑ ‑ ‑

HER HONOUR:   Could you just give me a paragraph reference?

MR HOLMES:   Yes, at the foot of page 88, paragraph 48:

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

We take issue with that. That proposition, which is set in the most general terms, cannot be right, with respect, where the permissive “may” is found in section 8. The power is conferred. There is an obligation in section 6, whatever the grounds be, that you must take into account “a primary objective of the administration of justice” so therefore there must be other primary objectives and there must be other objectives which can be taken into account, although there is the primary obligation to take into account the primary one.

Then when you come to 8, the grounds are not couched in the non‑discretionary sense.  Paragraph 8(1)(e) must involve a balancing exercise and so the approach that the Court of Appeal took, in our submission, was in error and in proceeding on the basis that this was a fait accompli because of this Court’s decision in Hogan’s Case, they committed an error which raises substantial prospects.

So in paragraph 9, your Honour, we have made the point that these provisions are quite different from sections 17 and 50 of the Federal Court Act and we, unsuccessfully on the second judgment of the Court of Appeal, tried to draw them into the broader context of those paragraphs that I have referred to and we tried to draw their attention to the balancing exercise but that was to no avail. We also focused on the words “a primary objective” and that underlined the different exercise. In Hogan at paragraph 30, this Court said:

“the administration of justice” spoken of in s 50 . . . is a more specific discipline than broader notions of the public interest.

If that is the approach of the Court in that statute, it cannot be applicable to a statute which has the structure of the Suppression Act, the balancing of interests and the consideration of other objectives of the administration of justice.  So, whereas on the second judgment, the Court of Appeal said that the Hogan decision was a barrier to our prospects for special leave, we say with respect, no, there are other objectives and that Hogan’s Case properly understood, is not a barrier.

We then raise another ground, although this is a ground in Parish, where the Full Court -Federal Court – held that a suppression order should be made over the confidential parts of an agreement whose efficacy or value would be destroyed by publication.  That did not involve secret processes or confidential information in the traditional sense, and the court did not confine it, as the Court of Appeal did in the present case, to a requirement that there must be an intrinsic commercial value.  So that is the second group of grounds. 

Now, they are what I might call the grounds relating to the Suppression Act.  We turn then to the Arbitration Act grounds.  This is unusual, your Honour, in that our opponents have said that if one turns to the first judgment of the Court of Appeal at paragraph 41 – this is immediately prior to their conclusion – they stop their reasoning process or part of their reasoning process.  They say we will now consider – and the heading is “The effect of parties’ agreements”. 

From 41 through to 47, there is analysis of party autonomy.  There is an analysis of the current objective provisions, section 1C.  Perhaps, “analysis” is a wrong word, your Honour.  They are focusing on party autonomy in paragraph 42.  They refer to a quote:

is said to be “fundamental in modern arbitration law” –

They do not give a source for that quote but they say party autonomy finds –

reflection in legislative recognition of parties’ right “to agree about how their commercial disputes are to be resolved subject to, inter alia such safeguards as are necessary in the public interest” –

What is unusual, your Honour, is that that statute, the concept of party autonomy and the cases, the arbitration cases, were not raised by the court with the parties and the parties were not heard on that matter but, nonetheless, it was a matter which they embarked on and their analysis permeated into the following paragraphs, headed “Conclusion”.  Your Honour will see in paragraph 51 the high point:

It is well accepted that the Court will, in appropriate circumstances, give effect to agreements to arbitrate by ordering a stay of proceedings brought in breach of the arbitration agreement.  That jurisdiction recognises the party autonomy to which we have referred.

They also in the previous paragraph are critical of Justice Tobias because they allege that his Honour made the order, at least in part, to give effect to the maxim, pacta sunt servanda - agreements are to be kept.  In other words, he gave too much effect to that.  Now, I invite your Honour to look for the maxim, pacta sunt servanda in Justice Tobias’ judgment - I could not find it, but that giving effect to the agreements as agreements which should be kept is something which section 1C of the Commercial Arbitration Act in paragraph 42 addresses. 

Could I take your Honour to the Arbitration Act?  This Act, your Honour, was introduced in 2010.  It is part of the, I call it the replacement uniform commercial arbitration legislation which is being introduced in the various States and Territories of Australia.  In Western Australia, the Bill was introduced on 15 June last year and is currently under review by the Legislative Council.  It has passed both Houses but is in the committee stage.  It has been enacted in the Northern Territory.  That Act was assented to on 31 August 2011.

The Commercial Arbitration Act in New South Wales has been operating since 1 October.  The Victorian Act commenced last year.  The Tasmanian Act was assented to on 7 September last year and the Queensland Bill was introduced to the Parliament last year but has not progressed and the South Australian legislation received royal assent last year and commenced on 1 January this year.

Your Honour, section 1C is the paramount object of the Act. It is an unusual provision in that it speaks of a paramount object of the legislation and subsection 1C(3):

This Act must be interpreted . . . so that (as far as practicable) the paramount object of this Act is achieved.

Then in subsection (2):

This Act aims to achieve its paramount object by –

and it sets out the means. Firstly it enables parties to agree how their commercial disputes are to be resolved, so it is enabling and in paragraph (1) the paramount object is to “facilitate” the resolution by “impartial arbitral tribunals”. If we go to section 8 we see how this facilitation of arbitration, facilitating or the means to achieve the paramount object is provided. That is in section 8(1):

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 . . . refer the parties to arbitration unless –

very limited circumstances –

null and void, inoperative or incapable of being performed.

That is the mandatory duty on courts in New South Wales to refer the parties to arbitration in accordance with their agreement. Their agreement in the present case is enclosed within obligations of confidence that I took your Honour to at the outset, so there is a form of statutory enforcement of the confidentiality provisions which is giving effect to the paramount object of the Act and giving effect to party autonomy in New South Wales. So when an arbitration agreement comes before the courts, the court recognises party autonomy in terms of the paramount object and it gives effect to it by a form of statutory enforcement in section 8(1).

If we go back to paragraph 42 of their Honours’ judgment what the plurality have done is to refer to section 1C by just taking a few words from the means by which the paramount object is achieved without referring to the paramount object and without referring to the fact that that very provision under section 1C(3) must be interpreted, so far as practicable, that the paramount object is achieved.

Now, coupled with that, if we go through the authorities that then follow there is a reference to section 1 of the Arbitration Act 1996.  Section 1 of the Arbitration Act 1996 has no reference at all to the paramount object.  They then go to English authorities on the English Act and a case, Fiona Trust, which is concerned with the construction of arbitration agreements and then there is reference to an Australian authority, which are all irrelevant to section 1C and party autonomy. Thoroughvision is a case decided in Victoria under the now repealed legislation in Victoria and in New South Wales.

So why it is referred to - it is just totally irrelevant. So that is the – perhaps if I might say – general concern we have about this embarking into a process of their reasoning on a subject where they did not have assistance, but nonetheless one which influenced their decision because I took your Honour to the reference in paragraph 51 to party autonomy, but in paragraph 50 they refer to a view that Justice Tobias placed too much emphasis on the principle that agreements are to be kept. But the legislative objective in section 1C is that arbitration agreements must be adhered to and the parties must be referred to their arbitration in accordance with that agreement.

Now, your Honour, I have referred to that in paragraph 11.  In paragraph 11 I have said, in our respectful submission, the second judgment, which your Honour will find at page 141 of Mr Dalzell’s exhibit – I think it was annexed to the respondent’s submissions.  With respect, when they were considering the stay application they acted in a way which could be characterised as defending their reasoning process and in so doing unfortunately failed to properly consider the provisions they then referred to. 

Could I take your Honour to paragraph 62(a)?  They did not raise the question of whether arbitration is a domestic arbitration.  There was argument.  Your Honour, under the Court Suppression Act the court must define the operation or effect of the order within Australia.  So you will see in the orders made by Justice Tobias and Justice Brereton they say the order applies throughout Australia. 

One of the arguments that was considered by the Court of Appeal is the alleged loss that the respondents are suffering by a suppression order and they were saying, “Well, we cannot talk to our family” and you will see reference in the judgments to that perceived loss.  But there was discussion about where they now live.  The Court of Appeal, in paragraph 62(a) said well, we will now raise the question of:

Whether the arbitration is a domestic arbitration.  There is no evidence that all the parties to the Deed have a place of business in Australia or have a place of business at all.  If any of the parties do not . . . then the Arbitration Act will not apply.

Now, as we have said in paragraph 12, that is not the effect of the provisions which apply because it directs attention not to whether they have a place here and now, at the time of the arbitration or at the time of the court, but it directs attention back when the arbitration was made, at the time of making the deed.  When this deed was made by the parties back in Western Australia in 2006 that is what should be considered, not what is in 62(a).

But then we make the point that whether it be an international arbitration or a domestic arbitration, in this respect both statutes are the same.  There is a mandatory referral of the parties to arbitration in accordance with their agreement.  So in terms of what is party autonomy in Australia under legislation applicable here, party autonomy is to give effect to the deed and you must be kept to the deed upon a party making a request.

Your Honour, they then raised the question:  the Arbitration Act only applies if the place of arbitration is New South Wales. I think, your Honour, I directed your attention to, or I stated, without referring your Honour to it, the operation of the Act is confined to arbitrations where the place of arbitration is in Australia. However, that does not include section 8, which is the mandatory stay and mandatory referral of parties to arbitration in accordance with their agreement. So paragraph 62(b) does not accurately state the provisions of the legislation. It is wrong to say that:

The Arbitration Act –

unqualified –

only applies if the place of arbitration is New South Wales.

The legislation is directed to courts in New South Wales who come across an arbitration agreement, wherever made, not only in Australia but throughout the world, it being based on the model law of commercial arbitration which is Schedule 2 to the federal Act.

They then raise in paragraph 62(c) a doubt in their minds as to whether or not the arbitral proceedings are on foot and the confidential provisions apply. Could I direct your Honour’s attention to the provisions of confidentiality which have been introduced by the new uniform Act in sections 24(e) and following. It is a characteristic. Our argument lies on section 8, the obligation to give effect to the paramount object that parties are to be kept to their arbitration agreement and to be referred to arbitration under that agreement which is confidential. So that applies whether or not arbitrations are on foot.

Your Honour, the next one in 62(d), we take issue with that for the reasons set out in paragraph 15.  Your Honour, in paragraph 64, the court referred to authorities in the UK which do contemplate proceedings not being heard in open court in appropriate cases but they gave no discussion of the provisions which have yet to be applied in New South Wales which now apply. 

Finally, your Honour, I have pointed out the fact that Esso Resources v Plowman was an irrelevant matter taken into account because the parties had agreed to confidentiality and, since 2010 confidentiality has been a characteristic of arbitration.  What the respondents have said below, successfully – well, all the reference to Esso is is that perhaps a possible

explanation for why they had a confidential arbitration provision, but, as I have taken your Honour to at the outset, it was not just the arbitration.

It was the whole dispute resolution process.  It was the whole deed that the parties referred to as being a matter which they wanted to protect by the obligations of confidence and so for the media interests in their submissions to say that you still have the core of your agreement, you can arbitrate, but we can publicise it, we do not have the core of the agreement, we do not have the obligations on them being respected to not divulge the deed or its terms.  So we join issue with the media interests in paragraph 8.  That was only one aspect of the confidentiality.  It is far greater and I have taken your Honour to the paragraphs.  They are our submissions, if your Honour pleases.

HER HONOUR:   Thank you.  Yes.

MR WALTON:   If the Court pleases, we move pursuant to the summons filed on 30 January 2012.

HER HONOUR:   Yes, Mr Walton.

MR WALTON:   And read an affidavit of Paul Richard McCann, sworn 30 January 2012.

HER HONOUR:   Yes – clearly no objections.  I have read that affidavit.

MR WALTON:   If your Honour please.  We also filed today, and I hope that it has reached your Honour, an applicant’s summary of argument and a draft notice of appeal.

HER HONOUR:   Yes.

MR WALTON:  The essence of our submission is contained in paragraph 8 of our written submissions that the Court of Appeal plainly did not have regard to the terms of section 8 of the Commercial Arbitration Act in construing the Court Suppression Act.  The summary of argument that we filed today, if I could take your Honour to that just briefly, we have set out in ‑ ‑ ‑

HER HONOUR:   Just one moment.  Is that a summary of argument dated 1 February 2012 ‑ ‑ ‑

MR WALTON:   It is, your Honour.

HER HONOUR:   ‑ ‑ ‑ consisting of 16 paragraphs?

MR WALTON:   Yes.

HER HONOUR:   Thank you, I have that.

MR WALTON:  In paragraph 8 of that we refer to section 8 of the Commercial Arbitration Act, to which your Honour has already been taken by Mr Holmes. We then refer to the definition of an arbitration agreement and then we set out what their Honours said in the Court of Appeal at paragraph [51], in paragraph 10. Then in paragraph 11 we make the point that by overlooking the mandatory requirements of the Commercial Arbitration Act the Court of Appeal paid insufficient regard to the parties’ choice of confidential procedures by which they were to resolve their dispute. 

We say that the effect of the Commercial Arbitration Act was, in effect, to mandate the referral of disputes such as this to arbitration if the parties request and that informs the question of whether a suppression order should be made under section 7 of the Court Suppression of Orders Act. We say that there was a fundamental error in the Court of Appeal’s judgment in referring passingly to section 1C of the Commercial Arbitration Act and to party autonomy without in any way giving effect to the objectives of that Act, as expressed in its terms, both in section 1C and, in particular, in section 8.

I should point out that section 8 is one of those provisions which applies to any arbitration, whether it is in New South Wales or not. Certain provisions of the Commercial Arbitration Act do not apply where the arbitration is seated outside New South Wales. That is found in section 1(2) of the Commercial Arbitration Act, but section 8 applies wherever the arbitration is seated.

We say that that is a fundamental error in approach.  We also say that the effect of not granting a stay today or before Friday this week, when the court order naturally expires, will be to render nugatory the application for special leave that we are proposing to advance, that is to say that if the matters are made public they will be in the public domain and there will be no point to pursue the proceedings.  We say that they are exceptional circumstances, enough to justify the granting of a stay provided there are prospects of success.

We say, particularly in relation to the matters set out in our summary of argument, that there are substantial prospects of obtaining special leave to appeal – combined with the fact that there is, we say, no material prejudice either to the respondents or to the media interests if a stay were continued for a very short time, which is about five weeks from the expiry

of the Court of Appeal order until this Court may hear, as we have been told, the special leave application.

It is not a long time.  There is no prejudice advanced, as we understand it, on behalf of the respondents.  The media interests can still have their story in five weeks time, if the suppression orders are lifted, and we say they suffer no prejudice in the meantime.  Weighing against that, of course, is the fact that if your Honour does not extend the stay then the whole appeal process is futile.

In relation to expedition, we support and adopt what Mr Holmes has said in relation to that.  We also make an application for expedition and of course we accept the consequence of that is that there will be an abbreviated timetable.  Those are our submissions, your Honour.

HER HONOUR:   Thank you.

MR BELL:   If it please the Court, in Edelsten v Ward (1998) 63 ALJR 346, Justice Brennan, the author of the judgment in Burgundy Royale, said something quite exceptional must be shown before the jurisdiction is exercised.  That observation is consistent with numerous other observations by his Honour and other Justices of the court about this jurisdiction, which proceeds on the basis that, notwithstanding an application for special leave and any subsequent appeal may be rendered nugatory, something exceptional still needs to be shown.  That is why there are additional requirements, such as substantial prospects of success.

HER HONOUR:   I notice on page 347 of the judgment to which you were just making reference that Justice Brennan made a distinction between the prospects of obtaining special leave to appeal being substantial and on the other hand the consideration that damage may be irreversible if the inherent powers to stay are not exercised.

MR BELL:   Yes.

HER HONOUR:   In other words, that suggests to me that it is an invariable requirement for the grant of a stay for the applicants for that stay and for a grant of special leave to demonstrate that their prospects of success can be described as substantial.

MR BELL:   Quite, and we agree and, your Honour, a number of Justices of the court have said that that is an essential element of any exercise of jurisdiction to grant a stay.  What we would say, though, by way of introduction is just as something quite exceptional must be shown, something truly extraordinary must be shown in circumstances where not just one, but three Justices of the Court of Appeal have not less than three weeks ago entertained over a full day the very arguments your Honour has heard presented and three Justices have said in a unanimous joint judgment with fully delivered reasons there are no substantial prospects and no stay should be granted.

This is the first case I am aware of, but there may be other cases, where an application has been made to the High Court following a wholly unsuccessful application to the intermediate Court of Appeal and whether or not an issue estoppel arises, technically or not, it would make a mockery, to some extent, at least, of Justice Brennan’s injunction in Burgundy Royale that these stay applications should be made to intermediate appellate courts.

If a court, a single judge, subsequent to such a stay having been made, did not at the very least treat with enormous regard the reasoning of the intermediate court which has entertained the very argument by reference to the very criteria, the Burgundy Royale criteria, which this Court and now, the Court of Appeal has accepted are the appropriate criteria ‑ ‑ ‑

HER HONOUR:   Circumstances may, of course, change.  There was no application for an expedited hearing when the Court of Appeal came to look at this question and, further, there was no identification of any date upon which the applications might be heard and determined so the landscape, if you like, before me of material considerations is a little different.

MR BELL:   Your Honour, we can accept that that there is that little difference although there had been foreshadowed to the Court of Appeal that applications for expedition would be made.  That was made plain to the Court of Appeal both before the 13 January hearing and, indeed, prior to Christmas.  As to that, your Honour, can I just say this?  Although my clients – it is all very well to say, well, the parties will submit to an expedited timetable, et cetera, but the applicants for a stay have shown no expedition up to this point.  They could have filed their summaries of argument ‑ ‑ ‑

HER HONOUR:   It was my impression, Dr Bell, and please correct me if I am wrong, but it was my impression, reading materials today that various applications made in the proceedings below which underline the present applications were dealt with expeditiously at all levels of the judicial hierarchy in New South Wales and it was my impression, and again correct me if I am wrong, that the media interests at one point sought expedition in relation to motions which they brought forward.

MR BELL:   Your Honour is correct.  My only point was going to be this.  The parties who will be prejudiced by the expedited hearing will be my clients.  Our friends have taken six weeks to produce their summaries of argument.  The party who will suffer in terms of the procedural timetable and truncation, are my clients who, of course, are facing other litigation from the applicants next week in the Court of Appeal and several other motions which have been filed and are waiting to be heard.

So it is not as though the fact that even if the Court does order expedition – and I am not necessarily opposing expedition – I am simply pointing out that it is very convenient for the applicants to say, “Expedite it.  We have sat on our heels in formulating the summaries of argument, et cetera, we have done nothing”.  There is no explanation of why they were not available earlier or why efforts were not being made.  Any number of senior counsel have been briefed for the applicants and so there is an element of prejudice. 

Your Honour, notwithstanding we accept that might be a change of circumstances, Mr Walton accepts – and the authorities demonstrate – that there needs to be demonstrated substantial prospects of success and substantial prospects of obtaining the grant of special leave which, of course, is unusual.  It is the exception rather than the rule and, your Honour ‑ ‑ ‑

HER HONOUR:   I think one point advanced before me is that that requirement perhaps is of lesser significance when a stay is being granted for a very short period of time. 

MR BELL:   Well, that would depend on a number of other considerations such as prejudice and the like.

HER HONOUR:   And the balance of convenience, obviously.

MR BELL:   And the balance of convenience.  Can I just, on that matter, indicate this, your Honour?  One cannot just reduce the principles in Burgundy Royale to a balance of convenience, in my respectful submission.  A party who wins in the Court of Appeal is entitled to the fruits of their judgment.  Justice McHugh has said that.  Any number of Justices of this Court have said that.  So it is not a question of blithely saying another five weeks will not make much difference.

What my clients are currently subject to are orders which no other litigant in Australia, or few other litigants in Australia, are subject to.  They have a major restraint placed upon their ability to discuss their own proceedings.  That is the first point.  If they breach in any way the suppression order they are obviously operating in a highly litigious environment where one could expect that the applicant would move aggressively against them.  It is a very invidious position which they should not be subjected to and the Court of Appeal has held that.

The second related point is if your Honour grants the stay, that will mean that the very important appeal which is being held next week by the Court of Appeal, that on the question of whether a trustee and the question of the removal of a trustee for misconduct can be the subject of private arbitration and whether a trustee can contract out of, in a sense, the jurisdiction of the court to exercise the historic supervisory jurisdiction over the conduct of trustees – if the suppression order is extended by the grant of a stay, that suppression order will affect the hearing and reporting of those proceedings in the Court of Appeal.

The material which will be debated, the arguments - and the suppression order extends to the arguments made in court – that hearing will be affected in circumstances where three Justices of that court have said that no stay should be granted and, having heard full argument on the matter, have reached the conclusion that there are no substantial prospects of success.  So there is an element of public prejudice there if the stay is extended.

Turning to the question of the substantial prospects of success, it remains a very important element, your Honour, and the tests recognise that if there are not substantial prospects of success an application for special leave should not be able to keep victors out of the fruits of their previous victories.

HER HONOUR:   That is why I raised with you the consideration of this factor in circumstances where a date within a very short compass of time is available for the hearing and determination of the special leave, because I accept the force of what you are saying in the context of not having in prospect any particular date.

MR BELL:   Your Honour, we would submit that the prospects of success are still highly relevant and we would submit in this case the prospects of success are hopeless, and can I make good that proposition.  Your Honour, the summary of argument filed on behalf of the trustee, the lead party, as it were, this afternoon says that the application for special leave raises a single issue – namely, whether and to what extent the Commercial Arbitration Act affects the operation of the Court Suppression Order Act.

Your Honour, that point was not argued before the Court of Appeal in the judgment the subject of the application for special leave.  Nor was it argued before Justice Tobias; nor was it argued before Justice Brereton.  One has seen very many special leave applications disposed of by the court on the basis that the court lacks the benefit of the reasoning of the court below because the point sought to be agitated was not taken.  This is a classic case where that is so.

HER HONOUR:   The other side of that coin is that if a point which has not been the subject of submissions below appears to be an important point in the reasoning towards a conclusion which is sought to be appealed, those matters are appropriately raised.

MR BELL:   But, your Honour, as the Court of Appeal said and I will take your Honour to the relevant portion of their judgment, it was not an important point in their reasoning process at all.  The reference to the Commercial Arbitration Act was entirely innocuous.  It was in support of acknowledgement of the statement that courts recognise the importance of the principle – both courts and legislatures acknowledge the importance of the principle of holding parties to their bargain.

That was an important element. All the Court of Appeal was doing in the judgment, the subject of the application for special leave to appeal, was to cite, in paragraph 42, both cases – Australian and English cases which give effect to what is really a quite trite principle, and also made a reference to the fact that the Commercial Arbitration Act embodies the same trite principle.  That is why the Commercial Arbitration Act was referred to absolutely correctly and absolutely innocuously in paragraph 42 of the judgment. Does your Honour have that judgment?

HER HONOUR:   Yes, I do, yes.

MR BELL:   Your Honour can see that from the proposition because the argument had been put that it is important to hold parties to their bargain.  All the Court of Appeal said yes, we know that.  It is represented in cases and it is recognised in a statute.  It formed no part of their construction or analysis or interpretation of the Suppression Order Act.  Importantly, your Honour, the applicants did not ask or suggest that it should, that the construction of that Act should be affected or influenced by any provisions of the Commercial Arbitration Act.  That is really their special leave point.

They say the proper construction is affected by the Commercial Arbitration Act, but they never raised that argument.  The ground of appeal special leave application is not natural justice.  It is saying the construction of one Act is affected by the other and that argument has never been made below.  It is a new argument which emerged for the first time in reply submissions on 13 January on the stay application and that is very, very important in our submission, your Honour.  The Court of Appeal in its judgment of 13 January explained that.  They explained the reference to the Commercial Arbitration Act was entirely innocuous in paragraph 64 of the stay judgment of 13 January, your Honour.

All of the points of criticism by Mr Holmes that he has repeated today were dealt with by the Court of Appeal in paragraphs 64 and 65.  So, with respect, your Honour, one does have a situation where special leave is being sought in respect of an argument which was never put and that is a traditional orthodox basis on which special leave is refused week after week by this Court.  But the arbitration argument has further difficulties, your Honour, and they are the difficulties pointed out in paragraph 62 of this judgment of 13 January and that is because it had not been the subject of any argument.  There is a host ‑ ‑ ‑

HER HONOUR:   Just give me a paragraph number again, please?

MR BELL:   Paragraph 62, your Honour.

HER HONOUR:   Thank you.

MR BELL:   Because it had not been the subject of argument there were a host of reasons of matters which suggested themselves as meaning that the Act might have no application at all, the matters referred to in (a), (b), (c) and (d).  Take (d), for example, the question of whether a pleading filed before a particular letter could constitute confidential information in the arbitration proceedings, never explored, not the subject of any argument but a matter necessary to be known factually for Mr Holmes’ argument to run, otherwise the Court is really being asked to give what amounts to an advisory opinion in a vacuum in circumstances where, for all the Court knows because the evidentiary record will be bare, this Act might have no application to the facts of this case whatsoever.

The trustee says that is the only ground, that is the only special leave matter of importance.  The second applicant says that there are other matters but the Court of Appeal considered carefully the fact that the provisions were, as counsel for the trustee conceded on 13 January, materially identical to those under consideration by the High Court in Hogan, the subject of a very recent unanimous decision by the High Court.

The court records this, when asked to point to any differences between the two cases could only say differences on the facts and when asked to point out any error in the court’s application or appreciation or any inconsistencies between the court’s stay judgment and Hogan could not do so.  So in terms of the question of the construction of the provisions of the Act it is not a propitious case for the grant of special leave. 

One is, after all, dealing with a judgment which is a unanimous judgment of three members of the Court of Appeal who, because it was a review judgment, had to come to the conclusion that Justice Tobias’ ex tempore judgment, in which his Honour was not referred to Hogan, was clearly wrong.  That was the standard the Court of Appeal had to apply.  Three judges unanimously – three judges in – there was a joint judgment

and a separate judgment of Justice Young but a unanimous result, came to the conclusion – necessarily came to the conclusion that Justice Tobias’ construction which is embraced by our friends - a construction articulated in an ex tempore judgment – was clearly wrong, again, an indicator – a powerful indicator against – militating against the grant of special leave to appeal.

So, your Honour, we urge very strongly on the Court that in circumstances where three judicial officers have looked at the question of substantial prospects of success and considered the arguments and come to a very firm conclusion, it would really be – and bearing in mind the points of prejudice, including public prejudice, the ramifications for the hearing of the appeal next week to which I have referred, and the restraint on the liberty of my clients to discuss their litigation with friends and colleagues, which is a real incursion of their liberty, and bearing in mind the cardinal principle of open justice recognised by the court in Hogan, recognised in the Court Suppression Act, that even if a hearing of a special leave application might be able to be accommodated in five weeks, notwithstanding that the prospects of success are so slight and the prejudice is relevantly there that on a reference to a principled basis – not an open‑ended discretion, but a principled basis in the light of the authorities, your Honour should refuse the application – both applications for a stay.  If it please the Court.

HER HONOUR:   Thank you.  Yes, Mr Walker.

MR WALKER: Your Honour, may I start where my friend, Mr Bell, has just left off because, in particular, of the challenge laid down by our learned friends for the applicants concerning prejudice, really the importance that stands in the place of prejudice in the argument of the position for which we would contend is very plainly set out in sections 6, 9 and 12 of the CourtSuppression and Non‑publication Orders Act. 

These are not matters of contentious public policy. They are enacted and they are enacted in terms – as Mr Bell has pointed out – which entirely pick up and endorse the antecedent common law. So under section 6, a primary objective is the “public interest in open justice”, a form of words which assumes, and assumes accurately, that there is an understood culture as to what that means. This Court, of course, has enunciated that on several occasions.

Under section 9, as you have already been told, such is the interest in what I will call dissemination by those who disseminate for profit – and my first client does not do it for profit but certainly does it under statutory mandate – none the worse for that, it is a prejudice to the public interest which it is said that persons like my three clients serve by dint of being a news media organisation, a special position, one we put unashamedly as of social service recognised by the Parliament in paragraph 9(2)(d) of the very Act which has the primary objective in section 6.

That would suffice, but it becomes in the present application all the more pointed when one comes to section 12(2) where perhaps, as an act of supererogation the Parliament tells the court to make sure that no suppression order operates for “longer than is reasonably necessary”, et cetera. That is a very emphatic way of indicating that the public interests served, among other ways, by giving my clients rights of participation, is in as short as is reasonably necessary a suppression of the kind of information which individuals or corporations may find embarrassing, but so much the worse for them.

The second point we wish to make, again I hope only in elaboration of what Mr Bell has already put and what our respective written submissions already contain is this.  This is an application this afternoon in aid of a prospective exercise of the Court’s appellate jurisdiction, were that to become engaged, upon the grant of special leave.  It is special leave to appeal.  It is special leave to appeal from something that has happened in the Court of Appeal about which some error must be shown and in the present proceedings some substantial prospect of special leave to appeal being granted with respect to it.

The analysis, with respect, by counsel for the applicants today of what those issues are has given rise, in our submission, to some possibility of confusion.  May I illustrate?  You could be forgiven for thinking that there was or has been on foot an application under the Commercial Arbitration Act for a stay of the beneficiaries’ proceedings in order that there be an arbitration in order that pacta sunt servanda.  That is not true.  It has never happened. 

What there was and very deliberately, because the dispute resolution proceedings is for mediation first, and then arbitration, what there was was an application under a much more general, and it need hardly be said, not mandatory provision, concerning an abuse of process under the Civil Procedure Act.  Now, that is really important because it means that nothing with respect to the Commercial Arbitration Act has ever been ventilated before Justice Brereton or the Court of Appeal in what I will call substantive proceedings, or the Court of Appeal in the, what I will call adjectival proceedings, with which we are concerned.

May I explain?  The substantive proceedings in the Court of Appeal are those where the hearing will be next week.  They concern whether Justice Brereton was wrong in what he decided as what I will call a preliminary or separate question.  That is the second point upon which confusion has crept in this evening.  It has been argued before you today, your Honour, as if there are disputes here which fall under a dispute resolution clause in the deed.

That is no doubt the position that the applicants today wish to maintain, but what stands in their way at the moment is that there is a binding determination by Justice Brereton that that is not true.  They cannot, by saying that they have the status of applicants for special leave in relation to a suppression order, ask the Court to accept the premise that they have any case, let alone a seriously arguable case, that Justice Brereton was wrong.  There is no special leave application to this Court directly from Justice Brereton that has been filed.  Rather, an appeal has been the subject of leave sought and a substantive hearing fixed which will be next week in the Court of Appeal, not in this Court.

So this Court is not in any way at all seized with the question whether Justice Brereton was wrong.  It need hardly be said, therefore, that no argument can be entertained tonight on the basis that there is a substantial prospect that he was wrong and that matters interim to that conclusion, such as the grant of special leave for that to be demonstrated, has substantial prospects of success.  That is the first point.

The second point is this.  Much has been made about confidentiality.  There was criticism of the majority or the plurality in the Court of Appeal for attributing to Justice Tobias an approach of pacta sunt servanda.  We can truly be permitted the shorthand of Latin because the translation is obvious and easy and the reasoning of Mr Justice Tobias certainly does include the proposition that if the parties have agreed on confidentiality then that should be observed.  That is pacta sunt servanda.

The key is it was not the arbitration agreement that Justice Tobias was referring to, but the so‑called confidentiality agreement.  You have not heard any argument or, with respect, read it in the written submissions for tonight which comes anywhere near to saying that a court, confronted with a private agreement to keep dispute resolution confidential, is bound thereby under the statute or otherwise to give effect to that private agreement. 

There is a transcendent public interest that, notwithstanding the complete connivance of parties to litigation that it be kept secret, would ordinarily command, in the interests of open justice, that their dispute and anything embarrassing they want to say about each other under privilege be open for public scrutiny.

That, in our submission, is a very important matter, the absence of which from the applicant’s argument is very telling.  They are not saying that they have an agreement for confidentiality which the Court of Appeal misunderstood and failed to apply as they should by simply saying, “Well, there should be in camera proceedings and complete suppression because the parties have agreed thus”.  Rather, and here is the confusion of issue, everything has turned upon the confidentiality that the deed accords to the dispute resolution of mediation and then, in the case of its failure, arbitration under the terms to which you have been taken.

I stress there has been no identification in the writing or addressed to you today of any finding, let alone error, by the three judges of the Court of Appeal in their understanding of those provisions and how they intersect with the statutory jurisdiction to grant suppression orders.  The wont of that demonstration is enough to make good what Mr Bell has already pointed out, that is there has been no attempt, let alone successful attempt, to show substantial prospects of special leave to appeal identifying error in the Court of Appeal finding that Justice Tobias had been plainly wrong in granting a suppression order. 

Now, to make good my last proposition, could I take you to the deed that Mr Holmes took you to?  It is to be found, as I understand it - relevantly the page I want is 181 in the exhibit PRM‑1 to Mr McCann’s affidavit of 30 January 2012.

HER HONOUR:   Yes, I have that.

MR WALKER:   Before going to its substantive terms, I should indicate our position about what we understood to be an application by Mr Holmes that this deed be confidential in this Court.  We resist that and in its entirety.  As to the question of part embargo, we resist it on the basis of no demonstration of any reasoned utility for that order for these reasons.  My learned friend’s application to you concluded by saying by way of rider that the High Court’s non‑disclosure order should be with the exception of clauses which have already been quoted so as to be published. 

On our rapid con just of the reasons of Mr Justice Brereton, many of which are repeated in the Court of Appeal, those which have already been quoted and where it would be fatuous and productive of disrepute for this Court to make any non‑publication order are as follows – 1.1, 6, 7, 8, 9, 11, 12, 15 and 20.  It would be, in our respectful submission, absurd for my friends to say, “But 10 was not referred to”. 

In open court today reliance has been made upon clause 10 which is headed “Confidentiality” in order to make good the arguments here.  Ironically, my friend did not read to you the particular terms of clause 10.1 which shows just how perverse the position is in relation to any reliance on it.  As you know, as you have heard, the parties who rely upon the deed and seek to enforce its supposed terms concerning confidentiality are Mrs Rinehart and her daughter.  They are the ones seeking to enforce the deed with respect, they say, to confidentiality obligations. 

Under clause 10.1, the confidentiality imposed by the agreement of the parties to that deed is, and I quote “except for the purpose of enforcing this deed”, unquote.  So the very thing which they are doing and where they are claiming confidentiality is a carve‑out, see paragraph (a), of clause 10.1.  That, with respect, makes all reliance on clause 10 absurd but no reason is given why clause 10 should not, of course, be entirely known to the public. 

We then come to clause 20.8 which is the other confidentiality provision which has already been published.  This is with respect to the confidentiality of the sequential mediation, or arbitration as the case may be.  That, of course, in terms – you will find that on page 187 of that exhibit – says nothing about confidentiality of court proceedings either about this deed or about matters that one party as it happens so far unsuccessfully contends falls under this deed.

That brings me to my next point.  There has been no attempt to grapple at all – by the applicants that is – with the fact that there is no authority and there is no supposed principle pointed to and therefore there is no interesting question raised to the effect that when parties agree to confidential arbitration litigation about that supposed agreement itself is subject to the confidentiality which would attend impliedly or expressly an arbitral proceeding.

As your Honour knows from experience, it has not been the practice in this country to treat as confidential supervisory applications about commercial arbitrations which would otherwise, of course, themselves be confidential.  It is for those reasons, in our submission, as to the whole of the issue starting with the very fact that there is no Commercial Arbitration Act application, moving through to the fact that there has been no attempt to identify how it is that there has been a misunderstanding of the deed by the Court of Appeal, that it can be said as Mr Bell has otherwise expounded, that there are simply no substantial prospects of an application for special leave being successful with respect to the issues before the Court of Appeal that has been delivered.  We are not talking about next week.  We are certainly not talking about whether Mr Justice Brereton therefore was correct. 

A couple of subsidiary matters, if I may conclude with them.  My learned friend, Mr Holmes, referred to what I might call timing issues as if what this Court is now seized of is simply the rump end or the tail end not really to be regarded as oppressive in any way of a regime which has, as it were, smoothly continued since Mr Justice Brereton considered the matter.  But as your Honour will have seen from the Court of Appeal reasons and as was clear from the way it was argued in the Court of Appeal, Mr Justice Brereton first of all ordered suppression pending his own determination of the question whether these were matters that had to be mediated by agreement. 

Having determined they did not have to be, and in the course of that departing from a prima facie view his Honour had formed, having determined not, he made, what I am going to call generically, suppression orders, which the parties treated, this having been debated in the Court of Appeal later, the parties treated as expiring once the matter came within the purview of the Court of Appeal.  Thus it was that before Mr Justice Tobias the issue was argued with the onus being and the moving party being the Rinehart interests claiming a stay. 

In other words, there was no suggestion that there needed to be an interlocutory appeal by, for example, my clients against Mr Justice Brereton’s stay.  That was not how it was treated.  That is why it was a review from Mr Justice Tobias by the Bench of three, the Full Bench, and that is why, as Mr Bell has pointed out, there is such robustness in our position given by the fact that there has been a finding that he was plainly wrong, that his Honour was plainly wrong, in granting that stay.

So that it has happened stage by stage for reasons peculiar to and appropriate to each of the successive stages.  That does not provide any reason for this Court to add its own extension to what, ex hypothesi, by decision of the Court of Appeal, has already been a greatly excessive embargo, that is greatly excessive as to duration, on public knowledge of matters that all and other litigants would need to suffer with respect to publication, investigation and publication by the press.

It is for those reasons, in our submission, that the matter of what I may say, with respect, is the early date that this Court’s officers have suggested may be available for special leave is not sufficient to dispense the current applicants from the need to show, in accordance with Justice Brennan’s admonitions, a real cause for interfering with the ordinary course and the ordinary course is that one may enjoy the benefits of one’s litigious successes, notwithstanding the possibility of an appeal in the future.  My client’s enjoyment is not for private purpose, but it is one recognised by the Parliament as being in the public interest.  The enjoyment relevantly is of the liberty, free of the sanction of contempt to publish that which goes on in the courts of law of New South Wales. 

Now, in our submission, the matter that your Honour raised with Mr Bell, namely that maybe there has been a change of circumstance when, by this Court making known the availability of an early date, on my instructions I should say that the possibility of that date, by reason of preliminary dealings between the Court and the parties, was in fact known to the Court of Appeal on the last occasion. 

If I may say so, with great respect, the capacity of this Court to give early dates upon early completion by the parties of their special leave procedures is notorious so that long delay could not possibly have been in the minds of the Court of Appeal in declining a stay in this case. But in any event, in our submission, for the reasons that one finds strongly supported by section 12 of the Act, even the rest of this month and into the month thereafter is, in our submission, far too long.

There is an air of unreality, with respect, in a society where the press is daily or weekly, with the demise of most of our monthlies that is - it is, in our respectful submission, somewhat unreal to say that five weeks here or there does not matter, particularly after all the length of time that the courts below have of course held should not have been the subject of embargo with the wisdom of hindsight. 

Finally, as to questions of substance in relation to the merits of special leave application:  for the reasons I have already put, one can put to one side altogether Commercial Arbitration Act matters.  There are no such issues that were ever before Mr Justice Brereton or the Court of Appeal to provide any vehicle for any argument about Commercial Arbitration Act provisions in the High Court.

Second, there can be seen that the argument turns, it would appear, on an attack on, in particular, how the Chief Justice and Justice McColl construed section 8 of the Suppression Act. In particular, it is said there is some interesting issue of principle because they said it was not discretionary. For the reasons Mr Bell has put, it is extremely pointed in this case that an opportunity has been given and never taken up to show what distinguishes section 50 of the Federal Court Act from the relevant wording of section 8 for the purposes of understanding the direct applicability or not of Hogan. 

But the reasoning in Hogan, whether directly applicable or not, is still extremely powerfully against a grant of special leave in this case, first, the recency of Hogan; second the centrality to the reasoning in Hogan of the word “necessary”, which of course is in pari materia in this statute as well.  But there is another related and substantive reason why there is absolutely no prospect, surely, for a successful distinguishing of Hogan in this case. 

It is impossible for the very reasons identified as a matter of principle in Hogan, it is impossible to understand within the meaning of section 8 how a court seized with an application for an order could solemnly find that it was necessary in the interests of the administration of justice that an order be made but decline to do so. In our submission there has been significantly no attempt whatever in this Court to demonstrate to your Honour why that could be said to raise a matter which so recently after Hogan should concern this Court yet again.

If I could simply remind you, in Hogan the passage in question is that part of which you have already been shown, namely, in paragraph 30 on page 664 of 240 CLR.  There is there the reference “to the administration of justice”.  It was suggested in argument against us tonight, your Honour, that the description of that as being a more specific discipline than broader notions of the public interests somehow assisted the applicant’s case.  The reverse is true.  The “administration of justice”, in short, is a more focused inquiry than what might be regarded – my word, not their Honours - as the more possibly nebulous or indefinite considerations of the public interests generally.

That is precisely what falls out from paragraph 31 that follows, particularly with the reference to Justice Fullerton’s earlier statement noted in footnote (29) but when one comes to paragraph 33, which cuts straight to the heart of the proposed interesting special leave point here, namely, that their Honours erred by saying it was not discretionary, surely the matter becomes bordering on hopeless.  The word “discretion” is the very word which provides the talking point in paragraph 33 and their Honours pointed out that it tended to distract attention from the terms of that statute to describe the exercise as one of discretion.

Then the next sentence, which I will not read in full, is that which, in our submission, must surely as a matter of principle apply as well to section 8 of the State Act as to section 50 of the Commonwealth Act. They are, after all, talking about, both of them, the administration of justice and the necessity in its defence and it can be seen that the finding of the High Court – the holding of the High Court on such similar provisions in paragraphs 32 and 33 to adapt the language is – one sees the second‑last sentence of 32:

The appearance of the requisite necessity (or supervening cessation of it) having been demonstrated, the Court is to implement its conclusion –

et cetera.  That is why the Court of Appeal, that is the Chief Justice and Justice McColl, said this was not discretionary.  In paragraph 33 it is described as:

a misreading of s 50 to treat it as empowering the Court nevertheless –

that is, having reached the requisite stage of satisfaction as to necessity:

to refuse to make the order –

and there is there reference to that understanding of the statute as being an odd construction.  That, with respect, is quite a specific hallmark of the real difficulties in the way of (a) special leave and (b), prospects of success in any appeal upon grant of special leave.

It is for those reasons, in our submission, that there is really nothing of substance that should give this Court concern that there is a rendering of a possible appeal nugatory by a refusal of relief in the High Court today.  There is another point about that.  We go further than Mr Bell in this regard.  You have seen it in our written submissions for today and that is that the only right which is relied upon is under the deed.  As the Court of Appeal pointed out, under the deed what is assured between the parties is confidentiality of the dispute resolution process with the exceptions to which I have referred.

That may still obtain.  There is no promise that litigation will be kept confidential.  There is no promise that litigation about arbitration will be kept confidential.  There is no promise, in particular, that litigation in which the Rinehart interests failed to bring the dispute under the deed’s dispute resolution procedures will be kept confidential.  That is the position we are now in. 

It is for those reasons that, if there be disclosure of that which may be disclosed according to the ordinary processes of the court and the Suppression Act as a result of a refusal of leave tonight, there will be no diminution one iota of the keeping of confidential of any dispute resolution process that may result under clause 20 of that deed in the future.  May it please the Court.

HER HONOUR:   Yes, Mr Holmes.

MR HOLMES:   Your Honour, I wanted to address, firstly, a submission of Dr Bell that he had never heard of an application for a stay when a Full Court had refused the application for stay and somebody came to the High Court and asked for a stay.  Can I firstly remind him and your Honour of the passage from Justice Brennan?  One of the criteria that he suggested was that the party must first apply to the court below that was most familiar with the matter, and that was an ingredient of the steps and criteria that he would take into account when exercising the power to grant a stay.  His words were not immutable, but nonetheless they have been taken as strong guidelines.

There is a case, your Honour, it is referred to in the submissions.  It is a decision of Justice Hayne in Patrick Stevedores Operations [No 2] Pty Ltd v Maritime Union of Australia [No 2] (1998) 72 ALJR 869. Now, in that case the Full Federal Court had refused a stay of proceedings pending the application for special leave to appeal. The applicant then, when it was refused, turned around and applied to a single Judge of the High Court, as we are doing with your Honour. Justice Hayne said this at paragraphs [17] and [18] of the judgment, and if could perhaps just read them. I am sorry that we have not given you this authority.

HER HONOUR:   I have a copy, thank you.

MR HOLMES:   Does your Honour have that?

HER HONOUR:   I have that, thank you.

MR HOLMES:   Yes.  Paragraph [17], his Honour refers to:

the large number of reported decisions in this Court about the grant or refusal of stay pending application for the grant of special leave.  All of those decisions must be read in the light of the circumstances –

or the landscape of considerations at the time and nothing is said that they should be immutable.  Now, the respondents and the media interests have approached this on the basis that Justice Brennan’s words were almost legislative in their effect.  But we are concerned with an ample jurisdiction and Justice Hayne there addressed the question as to whether there is substantial prospect that special leave will be granted.

Now, in that case, having regard to the stay, the time of the stay, he expressed the view that the prospects were no greater than the applicant’s prospects were not insignificant.  In the present case, our submissions, with respect, our application does have a substantial prospect of success.  The distinctions we draw, and we drew in paragraph 9 of our written submissions, really have not been focused on in terms of the different structure of the Act, the different context, the different considerations, the different wording. 

This is a statutory form of relief.  It is not intended to affect the common law and, with respect, one cannot just adopt the mantra, “Hogan is a substantial barrier” without going to the details of what we have said in paragraph 9.  In fact, I heard nothing from Dr Bell and only in closing from

Mr Walker that they took issue in a general sense with that matter.  I think, your Honour, that is the only point I wish to make in reply.

HER HONOUR:   Thank you, Mr Holmes.  Yes, Mr Walton.

MR WALTON:   Just one very brief point, your Honour.  The operation of the Court Suppression and Non-publication Orders Act (NSW) is a domestic operation. It does not extend beyond Australia. That is demonstrated by section 11 of the Act and that would indicate that any discussion that took place about the matter outside the borders of Australia would not be caught by the Act and that is, with respect, where the plaintiffs presently are. That is the only submission that I wish to make and that addresses Dr Bell’s point about prejudice.

HER HONOUR:   Thank you.  I will adjourn for a short period of time to consider what course ought to be taken.

AT 6.15 PM SHORT ADJOURNMENT

UPON RESUMING AT 6.42 PM:

HER HONOUR:   Applications in identical terms seeking special leave to appeal from a judgment in the Court of Appeal of New South Wales - Rinehart v Welker [2011] NSWCA 403 - were filed by the applicants, Mrs Gina Rinehart and Ms Ginia Rinehart, on 9 January 2012. Each applicant has also filed a summons dated 30 January 2012 seeking a stay of order 1 made by the Court of Appeal (Bathurst CJ and McColl and Young JJA) on 9 December 2011, which I shall describe shortly, and an order that applications for special leave be expedited.

The background to the proceedings is set out in a judgment dated 21 December 2011 - Rinehart v Welker [2011] NSWCA 425 (Beazley AJA). That background can be found in the judgment the subject of the applications for special leave to appeal, for which reason I do not repeat that account. It is sufficient, for present purposes, to summarise matters of particular relevance to the disposition of the applications brought before me urgently today.

The proceedings were commenced by summons filed on behalf of three children of Mrs Gina Rinehart seeking relief in relation to the conduct by her as trustee of the affairs of a family trust, of which the children were beneficiaries.  I will refer to them hereafter as the beneficiaries’ interests.  Ms Ginia Rinehart, the second applicant, is also a beneficiary under the trust and has joined with her mother in this dispute.  I will refer to those parties hereafter as the trustee interests.  These family members are in dispute in relation to the fact that they are parties to a deed made in 2006 which provides for submission of disputes under the deed to confidential mediation and arbitration. 

In brief, the primary judge, Brereton J, dismissed motions for a permanent stay of the proceedings founded upon the deed and his Honour went on to make interim suppression orders under the Court Suppression and Non‑publication Orders Act 2010 (NSW), hereafter the Suppression Act, pending any application to the Court of Appeal for leave to appeal from his decision. Intervention on behalf of media interests had been made. Those parties appeared pursuant to a statutory right to be found in section 9(2)(d) of the Suppression Act.

Tobias AJA made suppression orders under the Suppression Act on further applications by the trustee interests, apparently specifically directed to documents relevant to an application to the Court of Appeal for leave to appeal.  His Honour made orders in the following terms:

1.Pursuant to s 7 of the Court Suppression and Non‑publication Orders Act 2010 (NSW) (Act), and on the grounds referred to in s 8(1)(a), a suppression order is made prohibiting the disclosure by publication or otherwise of any information as to the relief claimed or any pleading, the Summary of Argument, submissions, the draft Notice of Appeal, evidence or argument filed, read or given in these proceedings, and including the contents of the red book, blue book, black book and orange book but not including the Summons seeking Leave to Appeal or the pronounced or published judgment of Tobias AJA.

2.Pursuant to s 12 of the Act, the suppression order in paragraph 1 above operates until determination of the Applicant’s application for leave to appeal is determined or until further order of the Court.

3.Pursuant to s 11 of the Act, the suppression order in paragraph 1 above applies throughout the Commonwealth.

On 19 December 2011, the Court of Appeal on a review of the decision of Tobias AJA brought under s 46 of the Supreme Court Act 1970 (NSW), considered the parties’ claims to confidentiality, referred to above, pursuant to the deed and the provisions of the Suppression Act and particularly considered s 6 of the Suppression Act which requires that on making a suppression order:

“a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.”

In concluding that Tobias AJA was clearly wrong in making the orders he did, the Court of Appeal made orders including order 1, which provided:

“Discharge orders 1, 2 and 3 made by Tobias AJA on 31 October 2011”

On 21 December 2011, Beazley JA of the New South Wales Court of Appeal ordered:

“Stay order (1) made on 19 December 2011 up to and including 13 January 2012.”

On 13 January 2012, the Court of Appeal made orders, including an order that:

“Order 1 made by the Court of Appeal in these proceedings on 19 December 2011 be stayed up to and including 3 February 2012”

Hence the urgency with which applications have been brought before me today by way of summons. 

In granting a limited stay, the Court of Appeal followed the approach to such matters identified by Brennan J in Jennings Construction Limited v Burgundy Royale Investments Pty Ltd[No 1] (1986) 161 CLR 681 at 685, where his Honour identified the factors relevant to the exercise of the Court’s discretion to exercise the extraordinary jurisdiction to grant a stay. These included:

“whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.”

In adopting that approach, and in the circumstances and upon the material before them, the Court of Appeal concluded that the applicants’ prospects of success on the applications for special leave were insubstantial and not such as to warrant a stay.  The circumstances which I am obliged to consider today in relation to the current applications for a stay differ in some respects from those considered by the Court of Appeal.

Before turning to the matters, the extraordinary jurisdiction to grant a stay is part of the inherent jurisdiction of the Court, and it is invoked commonly, as it has been here today on behalf of the applicants, on the basis that the exercise of a right to make application for special leave to appeal will be rendered nugatory without the grant of a stay.  The jurisdiction to accede to an application for an expedited hearing is incidental to the jurisdiction to grant special leave.  In each case material considerations will include an assessment of the prospects of success on the application for special leave.

It has been observed by Hayne J in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [No 2] (1998) 72 ALJR 869 at 871 that pronouncements made in various cases on the grant or refusal of a stay pending the hearing and determination of an application for a grant of special leave should not be treated as identifying “immutable principles” which will fetter the Court’s discretion to stay in any individual case.

The present applicants have obtained two consecutive stays as described earlier from the court below.  The applications for special leave can be fixed for hearing on 9 March 2012 in Sydney. 

The various applications made in the proceedings below which underlie the present applications were dealt with expeditiously at all levels of the judicial hierarchy in New South Wales and there has been no convincing basis advanced before me for opposing expedition - although it has been contended that the circumstances here are such that, despite the availability of a time for hearing and determination of the applications for special leave, the applications both for a stay and expedition should be refused on the basis that the applicants have failed to identify that they have substantial prospects of success in relation to those applications.

It is clear and not disputed that a refusal to grant a stay in these proceedings will have the result that the confidentiality claimed under the deed is lost forever and that the applications for special leave, which can be heard in five weeks time, will be rendered immediately futile.

The applicants and the respondents, in contentions advanced before me, have all focused upon the prospects of success in relation to the applications for a grant of special leave.  Mr Holmes, for the second applicant, isolated two aspects of the special leave application and he referred to those as the “Suppression Act grounds” and the “arbitration grounds”.  Mr Walton joined him in relation to the arbitration grounds.

On the Suppression Act grounds, it was contended that the Court of Appeal erred in the construction of ss 6, 7 and 8 of the Suppression Act and Mr Holmes indicated proposed reliance on distinctions which he said could be drawn between the Suppression Act and ss 17 and 50 of the Federal Court of AustraliaAct 1976 (Cth), considered recently by this Court in Hogan v Australian Crime Commission (2010) 240 CLR 651.

As to the arbitration grounds, it was contended by counsel for both applicants that the Court of Appeal erred in considering the concept of “party autonomy” in the context of arbitrations and, it was asserted, gave insufficient consideration to the provisions of the Commercial Arbitration Act 2010 (NSW) - in particular, ss 1C and 8.

The respondents resisted the applications and, in particular, it was submitted that the prospects of succeeding on the applications for special leave were hopeless, most particularly in respect of the arbitration grounds which were not the subject of any submissions before the Court of Appeal.  It was also submitted that it was a prejudice to be held out from the fruits of litigation and, further, that the grant of a stay could affect the hearing of the substantive appeal fixed before the Court of Appeal of New South Wales on 8 February 2012.

Mr Walker, appearing for media interests, supported the respondent’s submissions.  He also described the prospects of success as hopeless.

I regard the circumstance that a refusal to grant a stay will have the result that the confidentiality based on the deed will be lost forever and the applications for special leave rendered nugatory as an exceptional circumstance.  In circumstances where it is possible for the applications for special leave to be heard on 9 March and, accordingly the stays sought are relatively short, I have not regarded it as essential to the grant of a stay that the applicants persuade me that their prospects of success on the applications are substantial or that they persuade me that they will probably succeed on those applications, particularly in the light of the decision of this Court in Hogan v Australian Crime Commission (2010) 240 CLR 651.

I have approached the matter on the basis that the effect of the refusal to grant a stay and the fact that the stay sought will be granted for a very limited period of time are circumstances which permit me to ask whether it is sufficient, on the material before me, to be satisfied that the applicants for a grant of special leave have demonstrated an arguable case.  I am not persuaded on the materials before me that the prospects of success are so insubstantial or, employing another familiar word, so unarguable or so hopeless, as was put on behalf of the parties opposing the grant of a stay, as to make it appropriate for me today to effectively bring the special leave applications to an end by refusing to grant a stay.

It also appears to me, in all the circumstances of this case, that it could not be said that the balance of convenience favours a refusal to grant the stays which are sought.  Accordingly, on each of the summonses I propose to grant a stay in respect of order 1 made by the Court of Appeal in these proceedings on 19 December 2011, up to and including 9 March 2012.  Consistently with that, I will accede to an application made by Mr Holmes for an order for confidentiality in respect of certain parts of the deed, which will also be limited in time until 9 March 2012.

It should also be noted that consent orders have been filed indicating consent of the parties to an order in each of these proceedings that Australian Broadcasting Corporation, John Fairfax Publications Pty Ltd and Nationwide News Pty Ltd be joined as the fifth, sixth and seventh respondents respectively in each proceeding.

Gentlemen, it is five past seven and I am just wondering whether it might be appropriate to ask you to prepare minutes of orders by 1 o’clock tomorrow in relation to those reasons which will allow some discussion about the abridgement of the timetable.

MR WALTON:   For our part that is a suitable course, your Honour.

MR HOLMES:   Your Honour, we can attend to that.  There is the matter of costs.

HER HONOUR:   I would have thought they would be costs in the special leave application, Mr Holmes.

MR HOLMES:   Your Honour, this is the third application and there has also been the opportunity of a consent in those circumstances.  We have had numerous trips to court to achieve the result that has just been handed down.

HER HONOUR:   In your minute I would ask you to prepare the paragraph in relation to costs on the basis of the costs being costs in the special leave application.

MR HOLMES:   If the Court please.

HER HONOUR:   Mr Bell, do you wish to ‑ ‑ ‑

MR BELL:   Only one point of clarification, your Honour.  I mentioned the hearing next week in the Court of Appeal.  Justice Tobias’ orders, the effect of which is effectively stayed, extend to I think reporting of the argument of that appeal.  I do not know whether your Honour would regard it as appropriate given that the judgments of the courts have been published, et cetera, to carve out from the stay – the reporting of the legal argument in the appeal.  It is a matter for your Honour, but I am conscious that maybe ‑ ‑ ‑

HER HONOUR:   Well, I had assumed from the way in which the argument was advanced before me that at the hearing before the Court of Appeal any matters which arose flowing from the stay until 9 March 2012 would be able to be the subject of directions in the Court of Appeal.  In other words, I took your submissions to be directed to the hearing and I had assumed that a stay until 9 March 2012 would not have the sort of consequences necessarily about which you are speaking and, accordingly, if difficulties arose some steps could be taken.  What should be included perhaps in the minute of the order is liberty to apply.

MR BELL:   Yes, I just have not fully processed what ramifications the granting of a temporary stay until 9 March have for at least the manner in which that appeal would be conducted and any, I suppose, reporting of that.  It will not inhibit the hearing of the appeal, but I just flag that issue, your Honour.  I will need to reflect ‑ ‑ ‑

HER HONOUR:   Yes.  That is why I think there is some wisdom in getting a period of time for minutes to be prepared and that is in the context that there would, of course, be liberty to apply if you, on reflection, wish to canvass some ‑ ‑ ‑

MR BELL:   I am not wishing to canvass your Honour’s judgment.  I have not thought through ‑ ‑ ‑

HER HONOUR:   No, I mean in terms of you drawing attention to a possible carve‑out of some sort.  That might be a matter that you can reflect on overnight.

MR BELL:   Yes, your Honour.

HER HONOUR:   Mr Walker.

MR WALKER:   Your Honour, the issue arises because Justice Tobias’s orders comprise a suppression order prohibiting the disclosure by publication or otherwise of any information relevantly as to, for example, argument given in these proceedings – meaning the appellate proceedings – to be heard next week.  Now, that is a little odd.  You might at first think that means there cannot be argument because argument in open court is, of course, disclosure of the argument but the terms of the order contemplate that there will be argument in court so we are proceeding - and I trust if anyone in court thinks this is wrong they will be decent enough to tell us now - on the basis that there is no inhibition on the argument being put next week.  That is really not our concern but that there is inhibition on us reporting in any way so as to allow comment or otherwise on what, for example, Mrs Rinehart, through counsel, argues as to whether there is confidentiality.  We understand that that is prohibited.

HER HONOUR:   That is right.  Yes, that is right, temporarily, Mr Walker, for five weeks.  Very well, anything further?

MR WALKER:   Your Honour, there is a question of interpretation and power as to what the Court of Appeal can do in relation to the principle of open justice in this Court.  It becomes acute in relation to a reporting of today.  We do not understand that the order either purports to, or could be read as applying to fair report of what happens in this Court.  Again, if we are wrong, we should know that now.

HER HONOUR:   I would not have thought so.  I think you are right about that, surely.
i
MR WALKER:   I hope so, your Honour.  I am getting reassuring shakes of head from my learned friends, your Honour, and we are content to proceed on that basis.

HER HONOUR:   I note there is a consensus amongst you, which accords with my own view, that there is no inhibition arising out of those orders in relation to the reporting of today’s proceedings.

MR WALKER:   Thank you, your Honour.

HER HONOUR:   Thank you.  Adjourn the Court.

AT 7.14 PM THE MATTER WAS ADJOURNED