Welker v Rinehart (No 6) - [2012] NSWSC 160

Supreme Court

New South Wales

Medium Neutral Citation: Welker & Ors v Rinehart & Anor (No 6) [2012] NSWSC 160
Hearing dates: 28 February 2012
Decision date: 06 March 2012
Before: Ball J
Decision:
See paragraph 62 of this judgment.

Catchwords: PROCEDURE - non-publication order under Court Suppression and Non-Publication Orders Act 2010 - whether order necessary to protect safety of any person - meaning of "necessary" - whether increase in media attention constituted threat to safety. PROCEDURE - Anshun estoppel - not applicable to interlocutory orders - whether party still free to re-litigate interlocutory application without change of circumstances. EVIDENCE - expert evidence - security and safety experts - UCPR expert witness code of conduct - failure to provide code to witness before preparing report - whether cured by later affidavit asserting compliance with code. EVIDENCE - expert evidence - compliance with experts code of conduct and Makita requirements - failure to comply - failure to identify material relied upon in expert report - failure to disclose reasoning process - no demonstration of application of specialised knowledge.
Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW)
Evidence Act 1995 (NSW)
Federal Court of Australia Act 1976 (Cth)
Uniform Civil Procedure Rules 2005
Cases Cited: Barak v WTH [2002] NSWSC
Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980
Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279
Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
Investmentsource v Knox St Apartments [2007] NSWSC 1128
Jermen v Shell Company of Australia Ltd [2003] NSWSC 1106
Licul v Corney (1976) 180 CLR 213
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Nominal Defendant v Manning (2000) 50 NSWLR 139
Port of Melbourne Authority v Anshun Pty Limited (1981)147 CLR 589
Ray Fitzpatrick Pty Ltd v Minister for Planning [2007] NSWLEC 791
Rinehart v Welker [2011] NSWCA 403
Welker & Ors v Rinehart & Anor (No 5) [2012] NSWSC 45
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 D Sibtain / 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

Judgment

By a notice of motion filed on 1 February 2012, the first defendant in these proceedings, Mrs Gina Rinehart, seeks a non-publication order pursuant to the inherent jurisdiction of…

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 160
Decision Date: 06 March 2012

CaseChat Overview and Summary

In this case, the respondents sought a non-publication order in relation to proceedings that involved their children. The applicants were the parents of the children who were involved in the litigation. The court had to decide whether the order was necessary to protect the safety of any person and the meaning of "necessary" in this context. The court also had to consider whether an increase in media attention constituted a threat to safety. The court further had to determine whether Anshun estoppel was applicable to interlocutory orders and whether a party could still re-litigate an interlocutory application without a change of circumstances.

The court found that the non-publication order was not necessary to protect the safety of any person. The court held that the term "necessary" in the relevant legislation meant "indispensable". The court also found that the increase in media attention did not constitute a threat to safety. The court held that Anshun estoppel was not applicable to interlocutory orders, and that a party was still free to re-litigate an interlocutory application without a change of circumstances. The court further found that the applicants' expert evidence was unreliable because the experts had failed to comply with the UCPR expert witness code of conduct, and had not identified the material relied upon in their reports, disclosed their reasoning process, or demonstrated the application of their specialised knowledge.

The court held that the applicants' failure to provide the experts with the code of conduct before preparing their reports was not cured by a later affidavit asserting compliance with the code. The court also held that the experts' failure to comply with the Makita requirements rendered their evidence inadmissible. The court dismissed the respondents' application for a non-publication order and made no orders as to costs.

Orders