Welker v Rinehart (No 4) - [2011] NSWSC 1636

Supreme Court

New South Wales

Medium Neutral Citation: Welker & Ors v Rinehart & Anor (No 4) [2011] NSWSC 1636
Hearing dates: Thursday, 22 December 2011
Decision date: 22 December 2011
Jurisdiction: Equity Division - Duty List
Before: Brereton J
Decision:
Motion filed by media interests dismissed with costs.
Motion filed by Hancock Prospecting Pty Limited dismissed with costs.

Catchwords: COURTS AND JUDGES - Application by media interests to discharge and vary extant interim suppression order - order presently in place expressed to operate until further order of the Court or the Court of Appeal - subsequent appellate proceedings instituted - appellate proceedings dealt with separate suppression orders made by Judge of Appeal - no application for leave to appeal against original suppression order - undesirable that order be self-executing - need for order to be consistent with basis on which order originally made - application refused.
PRACTICE AND PROCEDURE - Stay of proceedings - parties agree to refer disputes arising under deed to confidential mediation and arbitration - threshold questions raised as to standing of applicant and whether proceedings an abuse of process - application dealt with on merits without deciding threshold questions - issue whether proceedings are a 'dispute' under the deed referable to confidential mediation and arbitration - whether proceedings a 'claim' precluded by deed - 'claim' refers to proceedings existing or discontinued at date of deed - whether proceedings involve breach of deed by seeking removal of trustee and replacement with non-Hancock family member - plaintiffs seek no such thing - references in deed to proceedings and discontinued proceedings relate to proceedings existing or discontinued at time of entrance into deed - proceedings said to result in Hancock Prospecting not being owned or controlled by Hancock group members - conformable with this provision that trustee be replaced by Hancock family member - proceedings said to involve contravention of disparagement provisions - even if proceedings involve disparagement not a proper basis for stay - contention that making public of deed a breach of deed -public policy reasons why such argument should be rejected - not a dispute 'under this deed' - application dismissed.
Legislation Cited: (NSW) Civil Procedure Act, s 67
(NSW) Court Suppression and Non-Publication Orders Act, 2010
Cases Cited: Rinehart v Welker [2011] NSWCA 345
Rinehart v Welker [2011] NSWCA 403
Rinehart v Welker [2011] NSWCA 425
Welker v Rinehart (No 2) [2011] NSWSC 1238
Category: Procedural and other rulings
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)
Australian Broadcasting Corporation, Fairfax Media Publications Pty Ltd, Nationwide News Pty Ltd (applicants)
Hancock Prospecting Pty Ltd (applicant)
Representation: Counsel:
Dr A S Bell SC with Mr DFC Thomas (plaintiffs)
Mr B A Coles QC with Mr S Robertson (first defendant)
Mr P W Flynn (second defendant)
Mr A T S Dawson (Australian Broadcasting Corporation, Fairfax Media Publications Pty Ltd, Nationwide News Pty Ltd)
Mr D Studdy SC…

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 1636
Decision Date: 22 December 2011

CaseChat Overview and Summary

The case of Welker v Rinehart (No 4) involved an application by media interests to discharge and vary an extant interim suppression order, and an application to stay proceedings. The application to discharge and vary the suppression order was made in the context of the Federal Court of Australia, while the application to stay proceedings was made in the Supreme Court of New South Wales. The suppression order in question was intended to operate until further order of the Court or the Court of Appeal. The media interests sought to discharge and vary this order due to subsequent appellate proceedings that were dealt with separately by a Judge of Appeal. The court was required to decide whether it was undesirable for the suppression order to be self-executing, and whether the order should be consistent with the basis on which it was originally made.

The legal issues before the court included the necessity of ensuring the suppression order was not self-executing, and that it was consistent with the original basis for its imposition. Additionally, the court had to determine if the proceedings were a 'dispute' under the deed that referred disputes to confidential mediation and arbitration, and whether the proceedings constituted a 'claim' precluded by the deed. The court also had to consider whether the proceedings amounted to an abuse of process and whether they involved a breach of the disparagement provisions in the deed.

The court's reasoning was that the suppression order should not be self-executing, and it should remain consistent with the original basis for its imposition. The application to discharge and vary the suppression order was refused as no application for leave to appeal against the original suppression order had been made. The court also found that the proceedings were not a 'dispute' under the deed that required referral to confidential mediation and arbitration, and they did not constitute a 'claim' precluded by the deed. The court rejected the argument that making public the deed was a breach of the deed, and concluded that the proceedings did not involve a contravention of the disparagement provisions. Therefore, the application to stay the proceedings was dismissed.

The final orders of the court included the refusal of the application to discharge and vary the suppression order and the dismissal of the application to stay the proceedings. The suppression order remained in effect, and the proceedings continued without a stay. The court's decision ensured that the suppression order was consistent with its original basis and did not operate in a self-executing manner, while also upholding the terms of the deed and rejecting the arguments for an abuse of process and breach of disparagement provisions.

Orders