Welker v Rinehart (No 11) - [2012] NSWSC 1341

Supreme Court

New South Wales

Medium Neutral Citation: Welker v Rinehart (No 11) [2012] NSWSC 1341
Hearing dates: 12 September 2012
Decision date: 12 September 2012
Jurisdiction: Equity Division
Before: Brereton J
Decision:
Leave to file notice of motion claiming an order for mediation refused; notice to produce set aside.

Catchwords:
PRACTICE & PROCEDURE - leave to file notice of motion claiming an order for mediation - where parties had prepared for hearing on substantive issues - where mediation not likely to be beneficial
PRACTICE & PROCEDURE - notice to produce - where plaintiff has disclosed to journalist that he has advice of senior counsel - whether privilege waived by deploying summary of legal advice in public - whether document sought relevant
Category: Interlocutory applications
Parties: Hope Rinehart Welker (First plaintiff)
John Langley Hancock (Second plaintiff)
Bianca Hope Rinehart (Third plaintiff)
Gina Hope Rinehart (First Defendant)
Ginia Hope Frances Rinehart (Second defendant)
Representation: Counsel:
Dr A Bell SC w Mr DFC Thomas (Plaintiffs)
Mr D G Russell QC w M L Roberton & Mr C Bova (First defendant)
Mr F Kunc SC w Mr W Flynn (Second defendant)
Solicitors:
Johnson Winter & Slattery (Plaintiffs)
Corrs Chambers Westgarth (First defendant)
Gadens (Second defendant)

File Number(s): 2011/285907

Judgment (ex tempore)

Application for leave to file notice of motion

HIS HONOUR: The second defendant seeks leave to file a notice of motion, returnable instanter, claiming an order referring the proceedings to compulsory mediation. This is opposed by the plaintiffs.

The proceedings are set down for hearing today, and have been set down for some time, to deal with a number of matters, including the plaintiffs' application for leave to amend their statement of claim, and the defendants' application for summary dismissal of the proceedings [see Welker v Rinehart (No 10) [2012] NSWSC 1330].

The parties have prepared for a hearing today, and have exchanged comprehensive submissions addressed to a hearing today. The court has set aside time to hear the matter today. Nothing has emerged that would suggest that a mediation at this stage of proceedings would have high prospects. The court is conscious that sometimes, even when reference to a mediation is opposed, a compulsory mediation can produce a beneficial outcome, but there is little to indicate that that is likely in this case at this stage.

The second defendant invokes the provision of documents by the first defendant late yesterday, said to be in answer to the claim for production of documents, as indicative of some prospect of consensus. The plaintiffs have not yet had an opportunity to examine whether what is produced fully meets that description or not.

In my opinion, effectively to postpone the present hearing for the sake of a mediation, said to arise or be triggered by events that took place as late as yesterday, would be an inappropriate use of the court's time, and an inappropriate approach to case management.

I refuse leave to file the motion. It can be filed in the Registry in…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2012] NSWSC 1341
Decision Date: 12 September 2012

CaseChat Overview and Summary

Welker v Rinehart (No 11) involved a dispute between the plaintiff, Mr. Welker, and the defendant, Ms. Rinehart, regarding certain legal proceedings. The matter came before the court on an application by Mr. Welker to file a notice of motion seeking an order for mediation and a subsequent application by Ms. Rinehart to compel the production of documents. The court had to determine whether leave should be granted to Mr. Welker to file the notice of motion for mediation and whether Ms. Rinehart was entitled to compel the production of documents.

The primary legal issue was whether the court should grant leave for Mr. Welker to file a notice of motion seeking mediation, considering that the parties had already prepared for a hearing on the substantive issues. The court also had to decide whether the privilege over the legal advice had been waived by Mr. Welker by disclosing a summary of the legal advice to a journalist, and whether the documents sought were relevant to the proceedings. The court assessed the likelihood of mediation being beneficial in light of the parties' preparedness for the hearing and the nature of the dispute.

The court found that the parties had already prepared for a hearing on the substantive issues, and the prospects of mediation being beneficial were minimal. Therefore, the court denied leave for Mr. Welker to file the notice of motion for mediation. Regarding the notice to produce, the court held that Mr. Welker had not waived the privilege over the legal advice by disclosing a summary of the advice to a journalist in the public domain. However, the court found that the documents sought were relevant to the proceedings. As a result, the court ordered Mr. Welker to produce the relevant documents to Ms. Rinehart.

In conclusion, the court denied Mr. Welker's application for leave to file a notice of motion for mediation, and ordered him to produce the relevant documents to Ms. Rinehart.

Orders