Welker v Rinehart (No 3) - [2011] NSWSC 1471

Supreme Court

New South Wales

Medium Neutral Citation: Welker & Ors v Rinehart & Anor (No 3) [2011] NSWSC 1471
Hearing dates: Wednesday, 16 November 2011
Decision date: 16 November 2011
Jurisdiction: Equity Division
Before: Brereton J
Decision:
Application dismissed

Catchwords: PRACTICE AND PROCEDURE - Pleadings - defendants apply to suspend operation of pleading timetable to avoid filing a defence before determination of appeal against refusal to stay proceedings - defendants contend that if successful on appeal any defence filed will not be required - Court proceeds on basis initial decision correct - defendants argue legal prejudice as pleading may entail forgoing ability to apply to stay proceedings - application for stay already dismissed - defendants argue should not have to plead as unsure of endurance of suppression order - suppression order generally refused and interim order made to preserve position pending appeal - parties ought to plead on assumption no suppression order will be in place - defendants contend that any defence filed will solidify parties in their positions undermining mediation efforts - parties already significantly at odds - defence will be protected by suppression order if defendants successful on appeal - steps involved in preparing defence will be required for any ADR proceedings.
Legislation Cited: (NSW) Court Suppression and Non-publication Orders Act 2010, s 7
Cases Cited: Rinehart v Welker & Ors [2011] NSWCA 345
Welker & Ors v Rinehart & Anor [2011] NSWSC 1238
Category: Procedural and other rulings
Parties: Hope Rinehart Welker (first plaintiff)
John Langley Hancocok (second plaintiff)
Bianca Hope Rinehart (third plaintiff)
Gina Hope Rinehart (first defendant)
Ginia Hope Frances Rinehart (second defendant)
Representation: Counsel:
D F C Thomas (plaintiffs)
B A Coles QC (first defendant/applicant)
F Kunc SC (second defendant)
Solicitors:
Johnson Winter & Slattery (plaintiffs)
Corrs Chambers Westgarth (first defendant)
Gadens Lawyers (second defendant)

File Number(s): 2011/285907

Judgment (ex tempore)

HIS HONOUR: On 7 October 2011, I dismissed the defendants' applications for a stay of the present proceedings pending confidential mediation and arbitration, and ordered that the proceedings continue on pleadings [ Welker & Ors v Rinehart & Anor [2011] NSWSC 1238]. I directed that the plaintiffs file and serve a statement of claim within twenty-one days and that pleading thereafter continue in accordance with the rules of the Court. I reserved leave to the parties to apply to suspend or vary the timetable specified in that order in respect of pleadings.

On 4 November 2011, the plaintiffs filed a statement of claim of some fifty-nine pages. It was filed in an unverified form, under cover of a solicitor's letter which indicated that the plaintiffs were presently overseas and undertook to file verifications as soon as they were to hand. The Court has been informed that each plaintiff has now verified the statement of claim.

The defendants have filed applications for leave to appeal from the dismissal of their stay applications. Those applications are to be heard concurrently with any consequent appeal, potentially on 8 February 2012, although there is some…

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: [2011] NSWSC 1471
Decision Date: 16 November 2011

CaseChat Overview and Summary

Welker commenced proceedings against Rinehart seeking damages for breach of contract. Rinehart applied to suspend the operation of the pleading timetable to avoid filing a defence before the determination of their appeal against the refusal to stay the proceedings. The defendants contended that if successful on appeal, any defence filed would not be required. The court proceeded on the basis that the initial decision was correct.

The legal issues before the court involved whether the defendants should be required to file a defence before the outcome of their appeal against the refusal to stay the proceedings. The defendants argued that the requirement to plead would cause legal prejudice as it may entail foregoing the ability to apply to stay the proceedings. They also contended that the uncertainty of the endurance of the suppression order meant they should not have to plead. The court considered these arguments and ultimately determined that the parties ought to plead on the assumption that no suppression order would be in place.

The court refused the application for a suppression order generally but made an interim order to preserve the position pending the appeal. The defendants argued that any defence filed would solidify the parties in their positions and undermine mediation efforts. However, the court found that the parties were already significantly at odds and that the defence would be protected by a suppression order if the defendants were successful on appeal. The court also noted that the steps involved in preparing a defence would be required for any alternative dispute resolution proceedings.

No final orders were made in this case as the appeal against the refusal to stay the proceedings was still pending. However, the court's decision to proceed on the basis that the parties should plead on the assumption that no suppression order would be in place is significant for the progression of this case.

Orders