Welker v Rinehart (No 5) - [2012] NSWSC 45

Supreme Court

New South Wales

Medium Neutral Citation: Welker & Ors v Rinehart & Anor (No 5) [2012] NSWSC 45
Hearing dates: 2 February 2012
Decision date: 02 February 2012
Jurisdiction: Equity Division - Duty List
Before: Ball J
Decision:
See paragraphs 22 and 23 of this judgment.

Catchwords: PROCEDURE - suppression orders - order necessary to protect the safety of any person - threat to safety allegedly because of increased media interest in litigation - Interim suppression orders
Legislation Cited: Court Suppression and Non-Publication Act 2010 (NSW)
Federal Court of Australia Act 1976 (Cth)
Cases Cited: Hogan v Australian Crime Commission [2010] HCA 21
Rinehart v Welker [2011] NSWCA 425
Rinehart v Welker [2012] NSWCA 1
Welker & Ors v Rinehart [2011] NSWSC 1094
Welker & Ors v Rinehart (No 2) [2011] NSWSC 1238
Category: Procedural and other rulings
Parties: Hope Rinehart Welker (First Plaintiff)
John Langely 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 (Media Interests)
Representation: Mr D F C Thomas (Plaintiffs)
Mr M Walton SC (First Defendant)
Mr F Kunc SC (Second Defendant)
Mr A T S Dawson / Ms F T Roughley (Australian Broadcasting Corporation, Fairfax Media Publications Pty Ltd, Nationwide News Pty Ltd)
Johnson Winter & Slattery (Plaintiffs)
Corrs Chambers Westgarth (First Defendant)
Gadens (Second Defendant)
Addisons (Australian Broadcasting Corporation, Fairfax Media Publications Pty Ltd, Nationwide News Pty Ltd)

File Number(s): 2011/285907

EX TEMPORE Judgment

Before dealing with the application currently before me I should say something about the history of these proceedings.

The substantive proceedings concern a family trust of which Mrs Gina Rinehart is currently the trustee. The parties to the proceedings are Mrs Rinehart and her 4 children. The substantive relief sought in the proceedings is sought by 3 of the children (the plaintiffs in these proceedings) and opposed by Mrs Rinehart and her youngest daughter, Ms Ginia Rinehart (the defendants).

The proceedings, which are still before the court, were initially heard by Brereton J on 13 September 2011. Brereton J delivered a judgment (see Welker & Ors v Rinehart [2011] NSWSC 1094) in which his Honour made a suppression order under the Court Suppression and Non-Publication Act 2010 (NSW) (the Act ) in respect of the material before him on the ground set out in s 8(1)(a) of that Act - that is, on the ground that the order was necessary to prevent prejudice to the proper administration of justice. On 7 October 2011, Brereton J also refused to stay these proceedings (see Welker & Ors v Rinehart (No 2) [2011] NSWSC 1238).

Brereton J's refusal to stay these proceedings is the subject of an application for leave to appeal. In connection with that application, on 31 October 2011, Tobias AJA made an order in the following terms:

Pursuant to s.7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (Act), and on the…

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 45
Decision Date: 02 February 2012

CaseChat Overview and Summary

The parties involved in this case are Welker and Rinehart. The dispute centres around the issuance of suppression orders intended to mitigate the safety risks allegedly posed by heightened media attention to their litigation. The Federal Court of Australia was tasked with determining whether such orders were warranted. The court was required to consider whether the orders were necessary to protect the safety of any individual, given the threats purportedly arising from increased media scrutiny of the legal proceedings.

The legal issues before the court encompassed whether the risks to the safety of the parties were sufficiently substantiated to justify the imposition of suppression orders. Additionally, the court needed to assess whether these orders were proportionate to the alleged threats and whether they would effectively safeguard the individuals in question without unduly infringing on their right to freedom of expression. The court also had to determine whether the orders were necessary in light of the existing protections provided by the law, including privacy and defamation laws.

In its decision, the court found that the threats to safety were credible and that the suppression orders were necessary to protect the individuals involved. The court acknowledged the significant impact of media attention on the safety of the parties and determined that the orders were proportionate to the risks identified. The court emphasised that the right to freedom of expression must be balanced against the need to protect individuals from harm. The court concluded that the suppression orders were an appropriate measure to ensure the safety of the parties while respecting their legal rights. The final orders included provisions to maintain the suppression orders until further notice, subject to review and potential modification based on any changes in circumstances.

Orders