Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 22] - [2023] WASC 285

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [No 22] [2023] WASC 285
CORAM:   SMITH J
HEARD:   19 JULY 2023
DELIVERED          :   19 JULY 2023
PUBLISHED           :   31 JULY 2023
FILE NO/S:   CIV 3041 of 2010
(Consolidated with CIV 2617 of 2012 by Orders dated 9 September 2014)

BETWEEN: WRIGHT PROSPECTING PTY LTD
Plaintiff
AND
HANCOCK PROSPECTING PTY LTD
First Defendant
HOPE DOWNS IRON ORE PTY LTD
Second Defendant
BIANCA HOPE RINEHART
Third Defendant
JOHN LANGLEY HANCOCK
Fourth Defendant
HOPE RINEHART WELKER
Fifth Defendant
GINIA HOPE FRANCIS RINEHART
Sixth Defendant
HAMERSLEY WA PTY LTD
Third Party
(BY ORIGINAL ACTION)
BIANCA HOPE RINEHART
First Plaintiff by Counterclaim
JOHN LANGLEY HANCOCK
Second Plaintiff by Counterclaim
AND
GEORGINA HOPE RINEHART
First Defendant by Counterclaim
HANCOCK PROSPECTING PTY LTD
Second Defendant by Counterclaim
HANCOCK MINERALS PTY LTD
Third Defendant by Counterclaim
THE HANCOCK FAMILY MEMORIAL FOUNDATION LTD
Fourth Defendant by Counterclaim
TADEUSZ JOZEF WATROBA
Fifth Defendant by Counterclaim
WESTRAINT RESOURCES PTY LTD
Sixth Defendant by Counterclaim
HMHT INVESTMENTS PTY LTD
Seventh Defendant by Counterclaim
150 INVESTMENTS PTY LTD
Eighth Defendant by Counterclaim
HOPE RINEHART WELKER
Ninth Defendant by Counterclaim
GINIA HOPE FRANCIS RINEHART
Tenth Defendant by Counterclaim
MAX CHRISTOPHER DONNELLY as trustee in bankruptcy of LANGLEY GEORGE HANCOCK
Eleventh Defendant by Counterclaim
HOPE DOWNS IRON ORE PTY LTD
Twelfth Defendant by Counterclaim
ROY HILL IRON ORE PTY LTD
Thirteenth Defendant by Counterclaim
MULGA DOWNS INVESTMENTS PTY LTD
Fourteenth Defendant by Counterclaim
MULGA DOWNS IRON ORE PTY LTD
Fifteenth Defendant by Counterclaim
WRIGHT PROSPECTING PTY LTD
Sixteenth Defendant by Counterclaim
DFD RHODES PTY LTD
Seventeenth Defendant by Counterclaim
MATTHEW JOHN KEADY AND DOROTHEA MARGARET CAMPBELL as executors of DONOVAN FRANCES DUNCAN RHODES
Eighteenth Defendants by Counterclaim
(BY COUNTERCLAIM)

FILE NO/S: CIV 2617 of 2012
BETWEEN: WRIGHT PROSPECTING PTY LTD
Plaintiff
AND
HANCOCK PROSPECTING PTY LTD
First Defendant
HOPE DOWNS IRON ORE PTY LTD
Second Defendant
BIANCA HOPE RINEHART
Third Defendant
JOHN LANGLEY HANCOCK
Fourth Defendant
HOPE RINEHART WELKER
Fifth Defendant
GINIA HOPE FRANCIS RINEHART
Sixth Defendant
HAMERSLEY WA PTY LTD
Third Party

FILE NO/S: CIV 2737 of 2013
BETWEEN: DFD RHODES PTY LTD
First Plaintiff
MATTHEW JOHN KEADY AND DOROTHEA MARGARET CAMPBELL as executors of the estate of DONOVAN FRANCES DUNCAN RHODES
Second Plaintiffs
AND
HANCOCK PROSPECTING PTY LTD
First Defendant
WRIGHT PROSPECTING PTY LTD
Second Defendant
HOPE DOWNS IRON ORE PTY LTD
Third Defendant
BIANCA HOPE RINEHART
Fourth Defendant
JOHN LANGLEY HANCOCK
Fifth Defendant
HOPE RINEHART WELKER
Sixth Defendant
GINIA HOPE FRANCIS RINEHART
Seventh Defendant
HAMERSLEY WA PTY LTD
Third Party
(BY ORIGINAL ACTION)
BIANCA HOPE RINEHART
First Plaintiff by Counterclaim
JOHN LANGLEY HANCOCK
Second Plaintiff by Counterclaim
AND
GEORGINA HOPE RINEHART
First Defendant by Counterclaim
HANCOCK PROSPECTING PTY LTD
Second Defendant by Counterclaim
HANCOCK MINERALS PTY LTD
Third Defendant by Counterclaim
THE HANCOCK FAMILY MEMORIAL FOUNDATION LTD
Fourth Defendant by Counterclaim
TADEUSZ JOZEF WATROBA
Fifth Defendant by Counterclaim
WESTRAINT RESOURCES PTY LTD
Sixth Defendant by Counterclaim
HMHT INVESTMENTS PTY LTD
Seventh Defendant by Counterclaim
150 INVESTMENTS PTY LTD
Eighth Defendant by Counterclaim
HOPE RINEHART WELKER
Ninth Defendant by Counterclaim
GINIA HOPE FRANCIS RINEHART
Tenth Defendant by Counterclaim
MAX CHRISTOPHER DONNELLY as trustee in bankruptcy of LANGLEY GEORGE HANCOCK
Eleventh Defendant by Counterclaim
HOPE DOWNS IRON ORE PTY LTD
Twelfth Defendant by Counterclaim
ROY HILL IRON ORE PTY LTD
Thirteenth Defendant by Counterclaim
MULGA DOWNS INVESTMENTS PTY LTD
Fourteenth Defendant by Counterclaim
MULGA DOWNS IRON ORE PTY LTD
Fifteenth Defendant by Counterclaim
WRIGHT PROSPECTING PTY LTD
Sixteenth Defendant by Counterclaim
DFD RHODES PTY LTD
Seventeenth Defendant by Counterclaim
MATTHEW JOHN KEADY AND DOROTHEA MARGARET CAMPBELL as executors of the estate of DONOVAN FRANCES DUNCAN RHODES
Eighteenth Defendants by Counterclaim
(BY COUNTERCLAIM)

Catchwords:

Practice and procedure - Whether interim suppression or non-publication orders of pleadings, submissions and documentary exhibits tendered or read into evidence at trial necessary or justified to prevent prejudice to the proper administration of justice

Open justice - Protection of commercial or personal reputation are not matters that raise an exception to the open justice principle

Open justice - Whether the public interest in the administration of justice requires interim suppression or non‑publication orders are necessary to protect an arbitral process - Public and private interest in holding parties to their contractual bargains and in maintaining confidentiality in arbitration proceedings factors to be considered in deciding whether to depart from principle of open justice

Open justice - Interim suppression non-publication orders not necessary to secure the proper administration of justice - No commercial in confidence issue arises in respect of underlying documents discovered - Allegations complained of well‑known in the public domain - Orders sought would be impractical, disproportionate and cause inconvenience to the plaintiffs' (who are not parties to arbitral proceedings) ability to run their cases without undue delay

Commercial Arbitration Act 2012 (WA) - Whether interim suppression or non‑publication orders should be made as interim measures pursuant to s 17J of the Commercial Arbitration Act - Exception to statutory protection of confidential information in relation to arbitration proceedings pursuant to s 27F(5) considered - Disclosure of publicly known allegations in open court no more than reasonable for the purpose of the court's sufficient exercise of its jurisdiction in the curial proceedings without undue delay and inconvenience

Legislation:

Commercial Arbitration Act 2012 (WA)

Result:

Application for interim confidentiality (suppression, non‑publication) orders dismissed

Category: B

Representation:

CIV 3041 of 2010

(Consolidated with CIV 2617 of 2012 by Orders dated 9 September 2014)

Original Action

Counsel:

Plaintiff	:	Ms J Taylor SC & Ms C McKay
First Defendant	:	Mr N Hutley SC, Mr C Bova SC & Mr J Kennedy
Second Defendant	:	Mr N Hutley SC, Mr C Bova SC & Mr J Kennedy
Third Defendant	:	Mr C Withers SC & Mr A Hochroth
Fourth Defendant	:	Mr C Withers SC & Mr A Hochroth
Fifth Defendant	:	No appearance
Sixth Defendant	:	Ms K Lindeman
Third Party	:	Ms C Wren
Interested Party	:	Mr L A Warnick SC

Solicitors:

Plaintiff	:	Clayton Utz
First Defendant	:	Corrs Chambers Westgarth
Second Defendant	:	Corrs Chambers Westgarth
Third Defendant	:	YPOL Lawyers
Fourth Defendant	:	YPOL Lawyers
Fifth Defendant	:	Deutsch Miller
Sixth Defendant	:	Dentons Australia
Third Party	:	Allens
Interested Party	:	Gilbert+Tobin

Counterclaim

Counsel:

First Plaintiff by Counterclaim	:	No appearance
Second Plaintiff by Counterclaim	:	No appearance
First Defendant by Counterclaim	:	No appearance
Second Defendant by Counterclaim	:	No appearance
Third Defendant by Counterclaim	:	No appearance
Fourth Defendant by Counterclaim	:	No appearance
Fifth Defendant by Counterclaim	:	No appearance
Sixth Defendant by Counterclaim	:	No appearance
Seventh Defendant by Counterclaim	:	No appearance
Eighth Defendant by Counterclaim	:	No appearance
Ninth Defendant by Counterclaim	:	No appearance
Tenth Defendant by Counterclaim	:	No appearance
Eleventh Defendant by Counterclaim	:	No appearance
Twelfth Defendant by Counterclaim	:	No appearance
Thirteenth Defendant by Counterclaim	:	No appearance
Fourteenth Defendant by Counterclaim	:	No appearance
Fifteenth Defendant by Counterclaim	:	No appearance
Sixteenth Defendant by Counterclaim	:	No appearance
Seventeenth Defendant by Counterclaim	:	No appearance
Eighteenth Defendants by Counterclaim	:	No appearance

Solicitors:

First Plaintiff by Counterclaim	:	YPOL Lawyers
Second Plaintiff by Counterclaim	:	YPOL Lawyers
First Defendant by Counterclaim	:	Speed & Stracey Lawyers
Second Defendant by Counterclaim	:	Corrs Chambers Westgarth
Third Defendant by Counterclaim	:	Corrs Chambers Westgarth
Fourth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Fifth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Sixth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Seventh Defendant by Counterclaim	:	Corrs Chambers Westgarth
Eighth Defendant by Counterclaim	:	Speed & Stracey Lawyers
Ninth Defendant by Counterclaim	:	Deutsch Miller
Tenth Defendant by Counterclaim	:	Dentons Australia
Eleventh Defendant by Counterclaim	:	Corrs Chambers Westgarth
Twelfth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Thirteenth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Fourteenth Defendant by Counterclaim	:	No appearance
Fifteenth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Sixteenth Defendant by Counterclaim	:	Clayton Utz
Seventeenth Defendant by Counterclaim	:	Taylor & Taylor Lawyers Pty Ltd
Eighteenth Defendants by Counterclaim	:	Taylor & Taylor Lawyers Pty Ltd

CIV 2617 of 2012

Counsel:

Plaintiff	:	Ms J Taylor SC & Ms C McKay
First Defendant	:	Mr N Hutley SC, Mr C Bova SC & Mr J Kennedy
Second Defendant	:	Mr N Hutley SC, Mr C Bova SC & Mr J Kennedy
Third Defendant	:	Mr C Withers SC & Mr A Hochroth
Fourth Defendant	:	Mr C Withers SC & Mr A Hochroth
Fifth Defendant	:	No appearance
Sixth Defendant	:	Ms K Lindeman
Third Party	:	Ms C Wren
Interested Party	:	Mr L A Warnick SC

Solicitors:

Plaintiff	:	Clayton Utz
First Defendant	:	Corrs Chambers Westgarth
Second Defendant	:	Corrs Chambers Westgarth
Third Defendant	:	YPOL Lawyers
Fourth Defendant	:	YPOL Lawyers
Fifth Defendant	:	Deutsch Miller
Sixth Defendant	:	Dentons Australia
Third Party	:	Allens
Interested Party	:	Gilbert+Tobin

CIV 2737 of 2013

Original Action

Counsel:

First Plaintiff	:	Mr S Taylor
Second Plaintiffs	:	Mr S Taylor
First Defendant	:	Mr N Hutley SC, Mr C Bova SC & Mr J Kennedy
Second Defendant	:	Ms J Taylor SC & Ms C McKay
Third Defendant	:	Mr N Hutley SC, Mr C Bova SC & Mr J Kennedy
Fourth Defendant	:	Mr C Withers SC & Mr A Hochroth
Fifth Defendant	:	Mr C Withers SC & Mr A Hochroth
Sixth Defendant	:	No appearance
Seventh Defendant	:	Ms K Lindeman
Third Party	:	Ms C Wren
Interested Party	:	Mr L A Warnick SC

Solicitors:

First Plaintiff	:	Taylor & Taylor Lawyers Pty Ltd
Second Plaintiffs	:	Taylor & Taylor Lawyers Pty Ltd
First Defendant	:	Corrs Chambers Westgarth
Second Defendant	:	Clayton Utz
Third Defendant	:	Corrs Chambers Westgarth
Fourth Defendant	:	YPOL Lawyers
Fifth Defendant	:	YPOL Lawyers
Sixth Defendant	:	Deutsch Miller
Seventh Defendant	:	Dentons Australia
Third Party	:	Allens
Interested Party	:	Gilbert+Tobin

Counterclaim

Counsel:

First Plaintiff by Counterclaim	:	No appearance
Second Plaintiff by Counterclaim	:	No appearance
First Defendant by Counterclaim	:	No appearance
Second Defendant by Counterclaim	:	No appearance
Third Defendant by Counterclaim	:	No appearance
Fourth Defendant by Counterclaim	:	No appearance
Fifth Defendant by Counterclaim	:	No appearance
Sixth Defendant by Counterclaim	:	No appearance
Seventh Defendant by Counterclaim	:	No appearance
Eighth Defendant by Counterclaim	:	No appearance
Ninth Defendant by Counterclaim	:	No appearance
Tenth Defendant by Counterclaim	:	No appearance
Eleventh Defendant by Counterclaim	:	No appearance
Twelfth Defendant by Counterclaim	:	No appearance
Thirteenth Defendant by Counterclaim	:	No appearance
Fourteenth Defendant by Counterclaim	:	No appearance
Fifteenth Defendant by Counterclaim	:	No appearance
Sixteenth Defendant by Counterclaim	:	No appearance
Seventeenth Defendant by Counterclaim	:	No appearance
Eighteenth Defendants by Counterclaim	:	No appearance

Solicitors:

First Plaintiff by Counterclaim	:	YPOL Lawyers
Second Plaintiff by Counterclaim	:	YPOL Lawyers
First Defendant by Counterclaim	:	Speed & Stracey Lawyers
Second Defendant by Counterclaim	:	Corrs Chambers Westgarth
Third Defendant by Counterclaim	:	Corrs Chambers Westgarth
Fourth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Fifth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Sixth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Seventh Defendant by Counterclaim	:	Corrs Chambers Westgarth
Eighth Defendant by Counterclaim	:	Speed & Stracey Lawyers
Ninth Defendant by Counterclaim	:	Deutsch Miller
Tenth Defendant by Counterclaim	:	Dentons Australia
Eleventh Defendant by Counterclaim	:	Corrs Chambers Westgarth
Twelfth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Thirteenth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Fourteenth Defendant by Counterclaim	:	No appearance
Fifteenth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Sixteenth Defendant by Counterclaim	:	Clayton Utz
Seventeenth Defendant by Counterclaim	:	Taylor & Taylor Lawyers Pty Ltd
Eighteenth Defendants by Counterclaim	:	Taylor & Taylor Lawyers Pty Ltd

Case(s) referred to in decision(s):

Agha v Divine Real Estate Concord Pty Ltd [2021] NSWCA 29
Australian Broadcasting Commission v Parish (1980) 29 ALR 228
AW v Rayney [No 4] [2012] WASCA 117
Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133
Civic Video Pty Ltd v Paterson [2013] WASCA 107
David Syme & Co Ltd v General Motors-Holden's Ltd [1984] 2 NSWLR 294
DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97
EBJ21 v EBO21 [2021] FCA 1406; (2021) 290 FCR 325
Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S)
Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77; (2020) 55 WAR 435
Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 13] [2021] WASC 214
Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170; (2017) 257 FCR 442
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2023] WASCA 88
Hancock v Hancock Prospecting Pty Ltd [2022] NSWSC 724; (2022) 402 ALR 328
Hancock v Rinehart [2020] NSWSC 1853
Hancock v Rinehart [2022] NSWSC 1025
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
Isaac v Dargan Financial Pty Ltd [2018] NSWCA 163; (2018) 98 NSWLR 343
John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131
Lake Vermont Marketing Pty Ltd v Coranar (Australia) Pty Ltd (No 2) [2018] QCA 40
Newcrest Mining Ltd v Santos WA Northwest Pty Ltd [No 2] [2022] WASC 410
Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13; (2019) 267 CLR 514
Rinehart v Rinehart (No 2) [2020] NSWSC 235
Rinehart v Rinehart (No 3) [2016] FCA 539; (2016) 257 FCR 310
Rinehart v Rinehart [2014] FCA 1241
Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311
The Hancock Family Memorial Foundation Ltd v Fieldhouse [No 5] [2013] WASC 121
Welker v Rinehart [2011] NSWSC 1094
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [2023] WASC 169
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 10] [2018] WASC 407
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 15] [2021] WASC 307
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 16] [2022] WASC 432

Table of Contents

1.0 The application for interim confidentiality/restriction on publication orders

2.0 Grounds of the HPPL parties' application

3.0 Interested party's submissions

4.0 General principles ‑ Open Justice

5.0 Relevant provisions of the Commercial Arbitration Act 2012 (WA)

6.0 Applications by the HPPL parties and Gina for similar orders in proceedings in the New South Wales Supreme Court and the Federal Court and what is known in the public domain about the allegations that Bianca and John make against the HPPL parties and Gina

6.1 Confidentiality/suppression orders have been made by the New South Wales Supreme Court in proceedings in 2020 and 2022

6.2 Suppression/confidentiality orders refused in 2011 and 2014

6.3 The application for referral of Bianca and John's claims in the Federal Court to arbitration in 2015

7.0 What is known in the public domain about the allegations made by Bianca and John in their defences in these proceedings

7.1 The 2018 application for a stay of proceedings and referral to arbitration of defence and counterclaims of Bianca and John in the WPPL proceedings and the Rhodes proceedings

7.2 The 2020 first stay appeal application by the HPPL parties and Gina against the 2018 refusal to stay and referral to arbitration of Bianca and John's defences

7.3 The 2021 applications ‑ The applications for a stay of part of Rhodes reply and referral to arbitration, strike out of part of Bianca and John's Further Amended Defence in the WPPL proceedings, and for a separate trial of issues

7.4 The 2022 appeals reasons for decision

7.5 The 2022 deferral of the trial application reasons for decision

8.0 Disposition

8.1 The documents listed in Annexures A, B and C of the chamber summonses do not contain material that is commercially sensitive

8.2 The relevant factors

SMITH J:

1.0 The application for interim confidentiality/restriction on publication orders

Hancock Prospecting Pty Ltd (HPPL) and Hope Downs Iron Ore Pty Ltd (HDIO) (together the HPPL parties) by chamber summonses filed on 10 July 2023 seek interim confidentiality orders in CIV 3041 of 2010 (WPPL proceedings) and CIV 2737 of 2013 (Rhodes proceedings) (together the curial proceedings) which orders if made would apply from the time of the commencement of the trial of the proceedings until the delivery of an award in the arbitral proceedings constituted before the Honourable Wayne Martin AC KC, Dr Michael Hwang SC and the Honourable Dr Kevin Lindgren AM KC (Martin Arbitration).
After hearing the parties, on 19 July 2023 an order was made dismissing the application. These are the reasons.
Although the HPPL parties have described the orders they seek in their summonses submissions as interim confidentiality orders, the orders which are sought a more properly described as interim non‑publication or suppression orders.
The applications are made pursuant to s 17J of the Commercial Arbitration Act 2012 (WA), s 25(9) of the Supreme Court Act 1935 (WA), or, alternatively the inherent jurisdiction of the court.
The orders sought by the HPPL parties are that:
(1)until 28 days after the delivery of the award in the Martin Arbitration:
(a)each of:
(i)those documents from the 16 June 2023 Tender List served by the Bianca Hope Rinehart (Bianca) and John Langley Hancock (John)[1], as listed in Annexure 'A' to each amended chamber summons;
[1] Without intending any disrespect, and in accordance with the practice that is customary where members of the same family are in dispute, in these proceedings after they are introduced members of the Hancock and Rinehart families will be referred to by their first names.
(ii)those documents from the 5 July 2023 Tender List served by Bianca and John, as listed in Annexure 'B' to each amended chamber summons;
(iiA)those documents from the 7 July 2023 Tender List served by Bianca and John, as listed in Annexure 'C' to each amended chamber summons;
(iii)Bianca and John's Written Opening Submissions dated 28 June 2023, and any replies by any party thereto;
(iv)the Second Further Amended Defence filed by Bianca and John on 1 July 2023 in the WPPL proceedings, and the Further Amended Defence filed by Bianca and John on 5 July 2023 in the Rhodes proceedings, and the amended replies to those Defences filed by each plaintiff;
(v)the entries in Bianca and John's reply to chronology dated 7 July 2023 insofar as it discloses the content of any documents identified in Annexure A or Annexure B to the summonses;
(vi)any further documents discovered by Bianca and John pursuant to the discovery orders made in the WPPL proceedings and the Rhodes proceedings on 14 July 2023, and proposed to be tendered at trial by any party, and any further documents discovered by the HPPL parties pursuant to the consent orders made on 17 July 2023 in the Rhodes proceedings, and which are proposed to be tendered at trial by any party;
(together, Protected Documents):
(b)be treated as a Protected Document in accordance with the orders made by the court on 23 May 2023 (Confidentiality Orders); and
(c)the information contained in Protected Documents identified in sub‑paragraphs (1)(a)(i), (ii), (iiA), (vi) and (vii) above, together with the highlighted sections in Confidential Annexures MAW ‑ [65], MAW ‑ [66] and MAW ‑ [67], to the confidential affidavit of Mark Anthony Wilks affirmed 10 July 2023 and any replies to those sections by any party, be treated as Highly Sensitive Information in accordance with the Confidentiality Orders.
(2)Further, or in the alternative, an order that until 28 days after the delivery of the award in the Martin Arbitration, the Protected Documents, together with the information contained therein are not to be disclosed, by publication or otherwise, to any person other than:
(a)the court, the parties and their legal representatives; or
(b)the arbitrators in the Martin Arbitration.

The HPPL parties specify that the paragraphs:
(a)4-7, 8-12, 17.3, 21, 24-25, 26-33, 34-35, 36-37, 38-39, 44-61, 104‑158, 159-164, 172, 185-188, 189-410, 411-456, 457-466, 467-480, 481-503, 504-522, 523-565, 566-568, 569-640, 641‑709, 710-824, 825-845, 846-854, 855-857, 859-866, 867, 868‑870, 871-872, 888, 908 and 912-914 of Bianca and John's submissions;
(b)4, 5, 42A.3, 46A, 49.1A, 49A-50, 53A, 62.4, 70.4, 71, 76, 76A, 76B, 79.3, 82, 89, 92A, 93, 110.3, 116, 118A.3, 121, 130.3, 132-133, 141, 144, 145-147, 152-156A, 159-160, 164-165, 171.9, 171.10, 171.13, 195-267, 268-271, 271A-303, 305, 307‑309B, 310-318D, 318E-329A, 330-336, 337-353, 354-360, 361-370, 370A-370H, 371-375A, 375B-375E, 376- 379N, 380‑386S, 387-400C, 400D-441, 442-449 and 450-465 of Bianca and John's Second Further Amended Defence in the WPPL proceedings; and
(c)23, 44-51, 164-165, 171.9, 171.10, 171.13, 195-267, 268-271, 271A-303, 305, 307-309B, 310-318D, 318E-329A, 330-336, 337-353, 354-360, 361-370, 370A-370H, 371-375A, 375B‑375E, 376-379N, 380-386S, 387-400C, 400D-441, 442‑449 and 450-465 of Bianca and John's Further Amended Defence in the Rhodes proceedings;
should be Protected Documents pursuant to these proposed orders.
The HPPL parties marked up redactions on copies of each of the submissions together with Bianca and John's defences which redactions they claim should be treated as Highly Sensitive Information.[2] The HPPL parties, however, have not provided any marked up copies of entries to Bianca and John's reply to the chronology dated 7 July 2023, but simply seek an order that those entries that disclose the contents of any of the documents identified in Annexure A and Annexure B be treated as a Protected Document.
[2] Affidavit of Mark Anthony Wilks affirmed 10 July 2023, annexure MAW – 64, MAW – 65, MAW – 66 and MAW – 67, 908 – 1626; see also updated annexures provided to the court on 17 July 2023.
The HPPL parties specify the whole of the contents of 1,195 documents in Annexure A to each chamber summons, 23 documents in Annexure B, and six documents in Annexure C, which pursuant to these proposed orders should be treated as Highly Sensitive Information.
In the course of making oral submissions, senior counsel for the HPPL parties informed the court that the confidentiality orders they seek should also apply to documents and submissions of WPPL and the HPPL parties that relate to the matters pleaded in pars 53C and 78 of WPPL's Seventh Further Amended Substituted Statement of Claim (the WPPL Statement of Claim) and the HPPL parties' responses in pars 53C and 78 of their Defence to Seventh Further Amended Substituted Statement of Claim (HPPL parties' Defence).
Bianca and John, WPPL and Rhodes oppose the HPPL parties' application. The other parties to the proceedings neither support nor oppose the application.
Georgina Hope Rinehart (Gina) as an interested party sought and was granted leave to appear. Gina adopted the submissions of the HPPL parties, and made additional submissions in support of the relief sought by the HPPL parties.
Senior counsel on behalf of Gina sought to tender into evidence in the application a relatively short affidavit prepared by Crispian Paul Lynch sworn 18 July 2023 containing some confidential information which relates to information about another private arbitration in which Gina seeks to enforce contractual confidentiality undertakings, and non‑disparagement undertakings at least by John, which arbitration has not proceeded to a hearing. The affidavit was not served on any of the parties or sent to the court until the evening before the hearing of the HPPL parties' application.
Senior counsel on behalf of Bianca and John objected to the late service of the affidavit and informed the court that there had been insufficient time to provide to the court a response to matters raised in the affidavit. Senior counsel also submitted that if the affidavit was admitted into evidence Bianca and John would be required to put forward a significantly different response to their response to matters raised by the HPPL parties in their submissions and affidavit material.
The application made on behalf of Gina to tender the affidavit was refused on grounds that:
(a)it was too late to raise new factual issues; and
(b)in circumstances where the HPPL parties had served their submissions and affidavit material on the parties and Gina's solicitors a week before the hearing of the confidentiality application, and Gina's intervention was made to support the HPPL parties' application, the affidavit should have been provided to the parties earlier.

2.0 Grounds of the HPPL parties' application

The HPPL parties contend that interim orders are necessary to protect the integrity of an ongoing arbitral process, principally because in the Martin Arbitration, among the relief sought by the HPPL parties, they seek an order restraining Bianca and John from alleging, maintaining or prosecuting the claims and defences that Bianca and John maintain in these proceedings.
This relief is sought in the Martin Arbitration in aid of various contractual promises entered into by Bianca and John, including under cl 7(b) of the Hope Downs Deed by which Bianca and John promised 'not to challenge the right of any member of the Hancock Group to any of the Hancock Group Interests at any time'. Bianca became a party to the Hope Downs Deed in August 2006, and John in April 2007. The HPPL parties say that by entering into this deed, Bianca and John promised not to challenge the HPPL parties' title to the Hope Downs tenements, or to make any of the allegations they are now making in the curial proceedings in respect of the Acquisition Issue and Debt Reconstruction Issue.
The Debt Reconstruction Issue is a claim by Bianca and John in their defences to both the WPPL proceedings and the Rhodes proceedings that through a series of transactions or events between 1992 and 1996, HPPL and subsequently HDIO came to hold the legal interest in the tenements as part of a dishonest and fraudulent design on the part of Gina in breach of her fiduciary duties she owed as trustee of the Hancock Family Memorial Foundation Trust (HFMF Trust).[3]
[3] Note in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 16] [2022] WASC 432 [37] ‑ [38]; these allegations were set out in more detail in [60] ‑ [61], [90], [100] ‑ [101].
The HPPL parties say that the relief they seek is not to restrain in any way Bianca and John from pursuing the case that they have pleaded against WPPL and Rhodes. All they seek is an interim order preserving and preventing the public dispersal of all the contentions Bianca and John make in their defences, submissions and chronology, together with the contents of the documents they rely upon in the curial proceedings pending the determination by the Martin Arbitration tribunal.[4]
[4] ts 3557.
The essential point of the HPPL parties' argument is that the relief they seek in the arbitration, namely, an injunction to restrain Bianca and John from making the very allegations they make in the curial proceedings in breach of their contractual obligations which will either be fundamentally undermined, if not rendered futile, if all the details of their allegations are made in open court before the decision of the Martin Arbitration tribunal is known as to whether they are contractually bound not to make those allegations, and are liable to be injuncted against the making of the allegations.
Thus, the HPPL parties claim that the interim orders sought are necessary to preserve the status quo and to avoid these proceedings being a vehicle through which the HPPL parties' contractual and arbitral rights are undermined, and thus embarrassing the administration of justice.[5]
[5] ts 3556.
At the hearing of the application, senior counsel for the HPPL parties informed the court that it would be appropriate to amend their application for confidentiality orders to encompass the documents (and submissions) made by WPPL and HPPL parties that go to the pleas made by WPPL in pars 53C and 78 of the WPPL Statement of Claim, and HPPL's response to those matters.
WPPL's plea in par 53C is that if Hancock Mining Ltd (HML) did not hold the East Angelas exploration licences on trust for HPPL or as assets, interest or property, or on trust for the Partnership (WPPL and HPPL), then it held them on trust for itself and for WPPL in equal shares. This plea addresses the factual allegation by Bianca and John that HML took the East Angelas tenements in furtherance of a commercial purpose, which they describe as the income protection purpose, which was to quarantine the entities that are entitled to the royalty income from entities undertaking development within the Hancock Group. WPPL's alternative case is that it should be inferred that HPPL and HML intended that WPPL should retain or obtain an interest in the tenements. This is part of the Acquisition Issue. Although senior counsel sought to distinguish the Acquisition Issue from the Original Acquisition Issue, whether such a distinction should or can be properly drawn is a matter for trial.
In answer to WPPL's par 53C, in par 53C(aa) of the HPPL parties' Defence, the HPPL parties say, as against WPPL only, that any claim that HML or Hancock Resources Ltd (HRL) did not hold any of the Hope Downs exploration licences or East Angelas exploration licences on trust for HPPL is contrary to releases and acknowledgments in the Hope Downs Deed and the other arbitration deeds, including the Confidential Deed of Obligation and Release, and cannot be maintained against the HPPL parties, and cannot be upheld by the court as binding on the HPPL parties.
In further answer to WPPL's plea in par 53C, the HPPL parties claim in par 53D to 53DP of the HPPL parties' Defence that HML always held the assets on constructive trust for HPPL, and that Langley George Hancock (Lang) acted in breach of the fiduciary and other duties he owed to HPPL and his dishonest and fraudulent design was to take the assets for his benefit.[6] This plea also must necessarily go to the Acquisition Issue.
[6] ts 3563 ‑ 3564.
In par 78 of the WPPL Statement of Claim, WPPL pleads if, as Bianca and John allege, that entry into the 1995 Deed was undertaken pursuant to a fraudulent, dishonest design perpetrated by HPPL, together with Gina, the East Angelas exploration licences (from on or about 9 March 1993 until transferred to HPPL on or about 26 July 1996) were an asset or interest of WPPL as to 50% and as to the balance were an asset of the person or persons who were beneficially entitled to them by reason of them having been acquired originally by HML for itself and WPPL in equal shares and were held by Hope Downs Ltd (HDL) on trust for WPPL, or that person or those persons. This plea forms part of the dispute referred to as the Debt Reconstruction Issue.
In answer to WPPL's par 78, in par 78 of the HPPL parties' Defence they also plead as against WPPL only that this claim is contrary to releases and acknowledgements in the deeds, and cannot be maintained against the HPPL parties, and cannot be upheld by court as binding on the HPPL parties.
The HPPL parties submit that WPPL's plea in par 53C (and plea in par 78) only arises because Bianca and John have acted in breach of the Hope Downs Deed by raising the allegations they make in their defences.
However, when the description of the documents in at least Annexure A of the summonses are considered, it is clear that a number of these documents go to other pleas made by WPPL, which pleas also go to the Acquisition Issue. This point is considered in 8.1 below.
The HPPL parties contend that the court has power to make orders they seek as an 'interim measure' under s 17J of the Commercial Arbitration Act in relation arbitration proceedings, and say there are key justifications for ordering an appropriate interim measure. They argue that these justifications are recognised in the definition and examples of interim measures in s 17(2)(a) and (b) of the Commercial Arbitration Act. These provisions expressly enable orders to be made to maintain the status quo pending determination of the dispute (in an arbitration) and the prevention of prejudice to the arbitral process itself.
The HPPL parties say that the interim confidentiality orders subject of their application seek to achieve the objectives in s 17(2)(a) and (b) pending the arbitral tribunal's resolution of the dispute as to whether Bianca and John are contractually precluded from publicly making the allegations they make in the curial proceedings. They also argue that to allow Bianca and John's allegations to be aired publicly prior to the determination of the decision in the Martin Arbitration would undermine the integrity of that entire arbitral process, because to do so would undermine the principle that parties should be held to their contractual promises.
Alternatively, the HPPL parties claim that the orders should be made as part of the courts inherent jurisdiction to protect its own processes and the administration of justice which includes the making of orders to suppress certain information when it is in the public interest to do so. They claim that the public interest in the proper administration of justice often justifies departing from the principle of open justice when the publication of information risks rendering nugatory relief sought in the same or other proceedings.
The HPPL parties argue that if the dispute between Bianca and John and the HPPL parties concerning the Hope Downs Deed was not the subject of an arbitration agreement, Bianca and John's defence in these proceedings would have been met by a counterclaim from the HPPL parties seeking to enforce the provisions of the Hope Downs Deed, in the same way that they seek to do so in the Martin Arbitration. They claim the relief sought in such a counterclaim would similarly be rendered nugatory were Bianca and John allowed to air their allegations in public in these proceedings, and this court would likely limit the disclosure of those allegations, at least until it determined the counterclaim, in order to protect its own processes. They argue that there is no reason of principle as to why the same result should not follow in order to protect the integrity of the Martin Arbitration. They say to the contrary, the Commercial Arbitration Act empowers the court to protect that arbitral process and embodies the strong public interest in facilitating the arbitral process.
Consequently, the HPPL parties contend that orders limiting disclosure is the only means by which the integrity of the arbitral process is upheld and the status quo of the parties is preserved pending the issue of an award.
The HPPL parties also argue that there is a real prospect that the Martin Arbitration will grant this relief, and point out that Le Miere J in 2018, when considering an application for similar interim injunctive relief, his Honour found that there was a prima facie case that cl 7(b) of the Hope Downs Deed precludes Bianca and John advancing their defences in respect of the claims to the Hope Downs tenements in the WPPL and Rhodes proceedings.[7]
[7] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 10] [2018] WASC 407 [210].
However, although Le Miere J did stay Bianca and John's counterclaims (which claims were referred to arbitration to be heard in the Martin Arbitration), his Honour did not grant the application for a stay of the proceedings or grant injunctive relief, leaving Bianca and John to maintain their claims in the defences in the curial proceedings.
The reasons given by Le Miere J for not granting an interlocutory injunction were that the purpose for granting the interlocutory injunction sought was not to preserve the status quo or to relevantly prevent harm to the Hope Downs Deed parties, but to prevent Bianca and John from asserting those claims or defences in their defence to the claims of WPPL and Rhodes. His Honour found that the court should not exercise its discretion to grant such an injunction in circumstances where the court has determined that it should not stay the court proceedings, and it is necessary that Bianca and John be able to advance by way of defence to the claims of WPPL and Rhodes, their claims or allegations in relation to the Hope Downs tenements.
Le Miere J relevantly observed that if Bianca and John were not able to advance their defences then they may maintain that they are not bound by a determination in the curial proceedings in relation to rights in relation to the Hope Downs tenements. In addition, his Honour found for the same reasons that the balance of convenience was against the granting of an injunction.[8]
[8] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 10] [2018] WASC 407 [211] ‑ [212].

3.0 Interested party's submissions

Senior counsel on behalf of Gina, as an interested party to the application informed the court that Gina supported the comprehensive oral and written submissions made on behalf of the HPPL parties.
Gina claims that her right to have the contractual undertakings dealt with and enforced in the Martin Arbitration should not be undermined by the reputational damage that will be caused to her by the allegations made by Bianca and John being revealed in public. Gina distinguishes her personal position from the position of the HPPL parties which is focused on commercial prejudice to HPPL. Gina's concern is about prejudice to her personal reputation in all her capacities in her life including as Executive Chair of HPPL, a successful female business leader, and as a public figure generally.
Gina concedes that reputational damage is in itself not an interest that raises an exception to the open justice principle. However, Gina relies upon the principle that it is a recognised exception to the principle of open justice that a contractual confidentiality obligation can be enforced by a suppression order.
Like the HPPL parties, Gina relies upon contractual obligation undertaken by Bianca and John by entering into the Hope Downs Deed not to cause reputational damage to the Hancock Group, to maintain confidentiality and not to make certain claims at all.

4.0 General principles ‑ Open Justice

The court has inherent jurisdiction to control its processes by making orders that limit or restrict the application of the open court or open justice principle by making a suppression or non‑publication orders, which jurisdiction or power may be exercised only where it is necessary for the proper administration of justice.[9]
[9] AW v Rayney [No 4] [2012] WASCA 117 [32] (Buss JA) (McLure P & Newnes JA agreed).
The starting point at common law is that justice must not be administered behind closed doors which requires that court proceedings must be exposed in their entirety to the cathartic glare of publicity, and there are limited exceptions to the observance of this principle.[10]
[10] David Syme & Co Ltd v General Motors-Holden's Ltd [1984] 2 NSWLR 294, 300 (Street CJ).
As Bianca and John point out, it is only in rare and exceptional circumstances that justice be administered behind closed doors, where to do so better serves the administration of justice, that the court will depart from the principle of open justice. It is well recognised that mere embarrassment to a party is not enough to justify the suppression of evidence. Every day in this country there is publicity of aspects of court proceedings which those involved would prefer not to become public. That is the case for all people, irrespective of their means, or whether or not they are publicly well‑known.[11]
[11] See for example the observations by Kirby P in John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131, 143.
In addition, as WPPL points out, the proper conduct of trustees is a matter that warrants close public scrutiny.[12]

[12] Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311 [52].

In Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers, Le Miere J observed:[13]
The principle of open justice is that court proceedings should be conducted publicly and in open view. This principle enables court proceedings to be scrutinised as without such scrutiny abuses may flourish. The public administration of justice tends to maintain confidence in the integrity and independence of the courts: see Russell v Russell (1976) 134 CLR 495 at 520; Re her Honour Chief Judge Kennedy Ex Parte West Australian Newspapers Ltd [2006] WASCA 172, Steytler P at [36].
In Australian Securities & Investments Commission v Rich (supra), Austin J said at [26]:
'The principle of open justice entails, in my view, that when the Court makes quite significant orders on an ex parte application, the basis for the making of those orders must be available so that the court is accountable for what it has done after it has considered the information provided to it.'
In R v Davis (1995) 57 FCR 512 the Full Federal Court said at 514:
'Whatever [the media's] motives in reporting, their opportunity to do so arises out of a principle that is fundamental to our society and method of government: except in extraordinary circumstances, the courts of the land are open to the public. This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers. As few members of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them.'
[13] Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133 [31] ‑ [33].
However, the principle of open justice is not absolute and may be limited in the exercise of a superior court's inherent jurisdiction or an inferior court's implied powers when it is necessary to do so to secure the proper administration of justice. In Hogan v Hinch, French CJ made this point and then observed in respect of the recognised exceptions to the principle of open justice:[14]
An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard. However, it is not absolute.
It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court's inherent jurisdiction or an inferior court's implied powers. This may be done where it is necessary to secure the proper administration of justice. In a proceeding involving a secret technical process, a public hearing of evidence of the secret process could 'cause an entire destruction of the whole matter in dispute'. Similar considerations inform restrictions on the disclosure in open court of evidence in an action for injunctive relief against an anticipated breach of confidence. In the prosecution of a blackmailer, the name of the blackmailer's victim, called as a prosecution witness, may be suppressed because of the 'keen public interest in getting blackmailers convicted and sentenced' and the difficulties that may be encountered in getting complainants to come forward 'unless they are given this kind of protection.' So too, in particular circumstances, may the name of a police informant or the identity of an undercover police officer. The categories of case are not closed, although they will not lightly be extended. Where 'exceptional and compelling considerations going to national security' require that the confidentiality of certain materials be preserved, a departure from the ordinary open justice principle may be justified …
It is a common law corollary of the open-court principle that, absent any restriction ordered by the court, anybody may publish a fair and accurate report of the proceedings, including the names of the parties and witnesses, and the evidence, testimonial, documentary or physical, that has been given in the proceedings.
…
In my opinion the better view is that there is inherent jurisdiction or implied power in limited circumstances to restrict the publication of proceedings conducted in open court. The exercise of the power must be justified by reference to the necessity of such orders in the interests of the administration of justice ...
[14] Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [20] - [26] (footnotes omitted).
It is only in exceptional circumstances where the presence of the public or public knowledge of the proceedings is likely to defeat the paramount object of the court, which is to do justice according to law, that the court will depart from the fundamental principle of open justice by making such orders.
A well-known exception to the open justice principle is the protection of commercially sensitive information. A court may be satisfied that confidentiality orders are necessary where the documents in question are confidential documents of a trade rival which commercial information if known by direct competitor could be inadvertently used by that competitor to the detriment of the party seeking the restriction order unless a strict regime for inspection and use of such documents in proceedings is imposed.
In Civic Video v Paterson, Pullin and Murphy JJA relevantly pointed out that considerations arise when the documents in question are commercially sensitive, and that some of the relevant matters in assessing whether a document should attract additional protection beyond the protection of the implied undertaking, include:[15]
(a)the age of the information, the identity of the persons who will inspect the documents, the reason or reasons why the inspection of particular documents is necessary; and
(b)the degree of commercial sensitivity involved, and the extent of any prejudice to the party giving discovery.
[15] Civic Video Pty Ltd v Paterson [2013] WASCA 107 [26] and [30].
In Newcrest Mining Ltd v Santos WA Northwest Pty Ltd [No 2], Tottle J recently summarised the operation of the principles of open justice that apply to orders restricting the publication of evidence and redaction of transcript when orders are sought to protect commercially sensitive information:[16]
[16] Newcrest Mining Ltd v Santos WA Northwest Pty Ltd [No 2] [2022] WASC 410 [17] ‑ [18] (footnotes omitted).
In AW v Rayney [No 4], Buss JA (as his Honour then was) (McLure P and Newnes JA agreeing), in the context of suppression orders made in respect of reasons delivered by the Court of Appeal in a criminal case, examined the principles underpinning the concept of open justice. For present purposes it is sufficient to refer to the following aspects of his Honour's statement of the principles:
(a)An essential feature of courts in the Australian judicial system is that they sit in public.
(b)The rationale for this principle is the benefit that flows from subjecting court proceedings to public and professional scrutiny and the maintenance of public confidence in the courts, in particular, confidence in the independence and impartiality of the courts.
(c)A corollary of the open-court or open justice principle is that at common law, absent any limitation or restriction imposed by an order of the court, anyone (including the media) may publish a fair and accurate report of proceedings in open court.
(d)At common law, a superior court may, in the exercise of its inherent jurisdiction, and an inferior court may, in the exercise of its implied powers, make orders that limit or restrict the application of the open-court or open justice principle, and the correlative entitlement to publish a fair and accurate report, by, for example, making a suppression order.  But this jurisdiction or power may be exercised only where it is 'necessary' for the proper administration of justice.
(e)This court's inherent jurisdiction to make suppression orders has not been circumscribed or excluded by any relevant express statutory provisions.
In Cargill Australia Ltd v Viterra Malt Pty Ltd, the parties agreed that information concerning the price paid for the plaintiff's global malt business was commercially sensitive and confidential.  Inadvertent disclosure of the information had been made during the hearing.  The trial judge, Elliott J, made interim orders for the redaction of the transcript and subsequently dealt with an application for permanent confidentiality orders.  In the course of his reasons for making permanent orders, Elliott J first considered the application of the Open Courts Act 2013 (Vic) and, after explaining why it did not apply, turned to consider the common law open justice principles. His Honour's statement of the general principles reflected the statement of those principles by Buss JA in AW v Rayney [No 4].  Elliott J then dealt with the application of the general principles to information said to be commercially sensitive and said:
Relevantly, in certain circumstances, commercial conﬁdentiality may be necessary to the administration of justice, and so permit a departure from the principle of open justice.  In such circumstances, the court may make a conﬁdentiality order.  A conﬁdentiality order may, amongst other things, restrict access to a transcript of a hearing, in whole or in part, or, as here, require that certain portions of a transcript be redacted or otherwise marked or treated as conﬁdential.
In relation to the order presently sought, the following principles apply.
First, the court will only make a conﬁdentiality order where conﬁdentiality is necessary for the administration of justice.  In other words, a conﬁdentiality order:
must be 'necessary in order to serve the ends of justice', 'necessary to secure the proper administration of justice in proceedings' or necessary to avoid a course which would 'destroy the attainment of justice in the particular case'.
Necessity is a stringent standard.  It is not enough that a conﬁdentiality order appear to be convenient, reasonable, sensible, or be perceived to be in the public interest, however understood, or that 'as a result of some "balancing exercise", the order appears to have one or more of those characteristics'. Further, and for obvious reasons, it is not enough that the applicant merely wishes to avoid scrutiny or maintain conﬁdence, or subjectively believes the orders sought to be necessary. Furthermore, whilst relevant, it is not enough that the parties to a proceeding agree that a conﬁdentiality order should be made, or that, as here, an application for a conﬁdentiality order is not opposed.  This is because the rationale of the principle of open justice is exposure to public scrutiny, to which the parties to a proceeding may be unanimously averse.
Secondly, it is not enough that the applicant merely assert conﬁdentiality in respect of the information sought to be protected; rather, the applicant must identify a basis for the court to maintain the conﬁdentiality.  Relatedly, it is ordinarily for the applicant to adduce evidence upon which the court may reasonably conclude that the standard of necessity has been met. Specifically, the applicant must ordinarily adduce evidence of some apprehended particular or speciﬁc harm or damage that disclosure of the information the subject of the proposed order would cause.
Thirdly, the protection of commercially sensitive information may, in appropriate cases, be necessary to the administration of justice. This is because the administration of justice requires that controversies between parties be resolved without a party, or a non-party, suﬀering severe and collateral commercial harm. As has been observed:
'Parties should not be deterred from coming to courts to enforce or protect their rights for fear that in doing so they will be forced to lose the very foundation of their commercial success ... or that they may lose some competitive advantage that derives from material that they rightly consider to be conﬁdential or secret.'
For example, it is well-accepted that the principle of open justice may, in appropriate cases, accommodate the protection of trade‑sensitive information, such as 'prices and costs paid and incurred' for valuable items, supplier terms, and commercially sensitive aspects of goods and services sold.
Fourthly, where a conﬁdentiality order is sought in respect of commercial information, it is for the applicant to establish that each piece of commercial information in respect of which a conﬁdentiality order is sought has a conﬁdential character warranting the protection of a court order.
Fifthly, the strength of an asserted need for conﬁdentiality will necessarily vary according to context, and in light of matters including:
(1)The nature of the proceeding in which conﬁdentiality is sought.
(2)The nature of the information in respect of which a conﬁdentiality order is sought.
(3)Whether or not the information has already been received into evidence, or deployed in open court.
(4)The likelihood and severity of collateral damage to participants in the court proceeding or others, absent the conﬁdentiality order sought.
(5)The nature and extent of the conﬁdentiality order sought and how it would operate to interfere with the principle of open justice.
Finally, it is necessary to consider what eﬀect, if any, the making of a confidentiality order in respect of certain evidence may have on the ability of the court to provide cogent reasons for its judgment in a proceeding.  As was observed in Wainohu v New South Wales, the obligation on courts to provide adequate reasons for judgment is itself an aspect of the open justice principle. Plainly, where certain evidence is made subject to a conﬁdentiality order, the court may be deprived of the opportunity to include and openly refer to that evidence in its published reasons.  Whether that constitutes a signiﬁcant obstacle may depend on whether or not, without relying on the conﬁdential information, and by formulating its reasons in more general terms, the court may nonetheless 'convey an adequate account of the litigation and the reasons underlying the orders'. (citations omitted)
In this matter, the HPPL parties and Gina rely heavily on the contractual obligations in the Hope Downs Deed and say that the administration of justice demands that the public interest in holding parties to their contractual bargain requires the court in the trial of the curial proceedings to make the orders sought by the HPPL parties.
As the HPPL parties point out, an injunction against the disclosure of confidential information as defined in an employment contract can be supported by the contractual undertakings. In Agha v Divine Real Estate Concord Pty Ltd, White JA observed that Gleeson JA in Isaac v Dargan Financial Pty Ltd[17] explained that the parties by contract can impose restraints on the use or disclosure of information which is not in its nature confidential and would not be protected in equity.[18]
[17] Isaac v Dargan Financial Pty Ltd [2018] NSWCA 163; (2018) 98 NSWLR 343.
[18] Agha v Divine Real Estate Concord Pty Ltd [2021] NSWCA 29 [139].
In Australian Broadcasting Commission v Parish, the Australian Cricket Board and three corporations appealed against a judgment of the trial judge refusing an application for an order forbidding or restricting the publication of certain parts of an agreement specified as confidential. The agreement related to promotion of cricket matches in Australia and certain commercial activities associated with those matches.[19] The majority of the court found that a restriction order should have been made. Bowen CJ observed that it was in the interests of the administration of justice that the proceedings before the court not be permitted to destroy or seriously deprecate the value of the confidential information contained in the confidential parts of the agreement, and that the trial judge erred in that he weighed on the one hand the private wishes and commercial interests of the respondents and on the other hand what he regarded as a serious derogation from the principle of open justice, if not a reversal of it. Bowen CJ found that s 50 of the of the Federal Court of Australia Act 1976 (Cth) required the following elements of public interest to be considered on the side of the litigants seeking an order for confidentiality:[20]
(a)in preserving the privacy of confidential arrangements so far as practicable; and
(b)in the court's doing justice between the parties, which would be hampered if the very serious proceedings required the efficacy and value of the agreement to be seriously damaged, if not destroyed, before the result of the proceedings was determined.
[19] Australian Broadcasting Commission v Parish (1980) 29 ALR 228.
[20] Australian Broadcasting Commission v Parish (1980) 29 ALR 228, 234 ‑ 235.
WPPL points out that when evaluating whether information is so commercially sensitive that it necessitates orders limiting or restricting the application of the open justice principle, a distinction must be drawn between the protection of genuinely commercially sensitive information and the protection of information which parties have agreed or expressed to be confidential, when the information objectively lacks that quality.
Parish does not establish a principle that the principle of open justice should always yield to the public interest preserving the privacy of confidential agreements.
An agreement, even in a commercial context, that certain information will be kept confidential does not of itself give that information the quality of commercial sensitivity that the courts will protect by abrogating the open justice principle.[21]
[21] See Lake Vermont Marketing Pty Ltd v Coranar (Australia) Pty Ltd (No 2) [2018] QCA 40.
As Bianca and John and WPPL point out the application presently before the court is different to the factual circumstances of Parish, and that is there is no commercial sensitive information that could be destroyed if the application for confidentiality orders are refused.
In any event, it is established that a contractual obligation to conduct a dispute in a private arbitration is only one factor when the court supervisory jurisdiction is invoked, in deciding whether the rule of the common law that the administration of justice must take place in open court should be departed from.[22]
[22] Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311 [45] ‑ [47] applying the authorities cited therein.
In addition, a contractual obligation to keep information including the terms of an agreement confidential is not absolute. In Lake Vermont Marketing Pty Ltd v Coranar (Australia) Pty Ltd (No 2), the parties to an appeal jointly submitted redactions should be made to the judgment on the appeal before publication to preserve the commercial sensitivity of the agreements the subject of the judgment and the parties' contractual obligations to keep the terms of the agreement confidential. The Queensland Court of Appeal rejected the wholesale redactions sought by the parties and found:[23]
As was recognised by Street CJ in David Syme at 300, where there is a good reason to allow for an exception to the public nature of court proceedings, that exception must be balanced with accommodating the importance of maintaining the public aspect of court proceedings. It is relevant to observe there must be a difference between the protection of commercially sensitive information and the protection of information which parties have agreed or expressed to be confidential, when the information objectively lacks that quality: compare Rinehart at [45] ‑ [47].
[23] Lake Vermont Marketing Pty Ltd v Coranar (Australia) Pty Ltd (No 2) [2018] QCA 40 [7].

In Lake Vermont Marketing, their Honours found that the only parts of their judgment should be redacted were those paragraphs of the marketing agreement that disclosed commercially sensitive information in the agreement and references to the marketing agreement which were not essential to the main arguments made by the parties on the appeal.[24]
[24] Lake Vermont Marketing Pty Ltd v Coranar (Australia) Pty Ltd (No 2) [2018] QCA 40 [12]
This point is considered in more detail below in [84] and in 8.0 of these reasons.

5.0 Relevant provisions of the Commercial Arbitration Act 2012 (WA)

Section 17J of the Commercial Arbitration Act provides as follows:
17J.Court-ordered interim measures (cf. Model Law Art 17J)
(1)The Court has the same power of issuing an interim measure in relation to arbitration proceedings as it has in relation to proceedings in courts.
(2)The Court is to exercise the power in accordance with its own procedures taking into account the specific features of a domestic commercial arbitration.
An interim measure is defined in s 17(2) to mean:
[A]ny temporary measure, by which … at any time prior to the issuance of an award by which the dispute is finally decided, the arbitral tribunal orders a party to –
(a)maintain or restore the status quo pending determination of the dispute; or
(b)take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself; or
(c)provide a means of preserving assets out of which a subsequent award may be satisfied; or
(d)preserve evidence that may be relevant and material to the resolution of the dispute.
In the application before the court it is to be noted that the orders sought are not interim measures in relation to arbitration proceedings but are interim orders sought in relation to the court proceedings. The orders sought by the HPPL parties have no application to the conduct of the Martin Arbitration itself. In addition, Bianca and John's submissions and evidence are not information about the Martin Arbitration, and relate only to documents now discovered in the curial proceedings, and for use in the curial proceedings.
Bianca and John point out that some of the documents listed in the annexures to the summonses are publicly available documents, in respect of which it could not be intended on the proper construction of the meaning of 'confidential information' in s 2(1) of the Commercial Arbitration Act that such documents once provided in arbitration proceedings would be deemed to be confidential information.
In circumstances:
(a)where the HPPL parties do not claim that any of the documents in the annexures to the summonses they seek to be treated as Highly Sensitive Information contain any sensitive commercial information that could be found to be confidential; and
(b)these documents have been discovered pursuant to orders made by this court in exercise of its jurisdiction;
it is strongly arguable that those documents do not constitute 'confidential information' as defined in s 2(1) of the Commercial Arbitration Act.
However, I do not find it necessary to decide this issue.
This is because as the HPPL parties point out it is because of the relief that they seek in the Martin Arbitration to enforce the promises made by Bianca and John in the Hope Downs Deed not to make the allegations they are making in the curial proceedings that it is open to the HPPL parties to invoke the power of the court to make an 'interim measure' as defined in s 17(2) of the Commercial Arbitration Act, under s 17J.
In EBJ21 v EBO21, Stewart J conveniently summarised the provisions and purpose of the model law uniform confidentiality provisions of the commercial arbitration legislation in Australia as follows:[25]
[25] EBJ21 v EBO21 [2021] FCA 1406; (2021) 290 FCR 325 [64] ‑ [68]; The provisions referred to in s 23D are contained in s 27F of the Commercial Arbitration Act 2012 (WA).
[T]here are provisions in Pt III that recognise the importance of the confidentiality of information about arbitral proceedings. In that regard, s 15(1) defines 'confidential information' in relation to arbitral proceedings broadly as including all formal documents in the nature of pleadings and submissions, all evidence, any notes made by the tribunal of oral evidence or submissions, transcripts, any rulings by the arbitral tribunal and any award of the arbitral tribunal.
There is then a series of provisions which protect confidential information in relation to arbitral proceedings to which the Model Law applies, although under s 22(2) the parties can agree in writing that they will not apply. There is no such agreement in this case.
Section 23C provides that neither the parties to arbitral proceedings nor an arbitral tribunal may disclose confidential information in relation to the proceedings except in the limited circumstances provided for in ss 23D to 23G. One of those, s 23D, sets out a list of circumstances in which confidential information in relation to arbitral proceedings may be disclosed, only two of which may be relevant for present purposes. They are:
(1)s 23D(6), ie, if disclosure of the information 'is necessary for the purpose of enforcing an arbitral award and the disclosure is no more than reasonable for that purpose'; and
(2)s 23D(7), ie, if disclosure of the information 'is necessary for the purposes of this Act, or the Model Law as in force under subsection 16(1) of this Act, and the disclosure is no more than reasonable for that purpose'.
The confidentiality provisions referred to above were introduced into the IAA as an opt-out confidentiality regime by the Civil Law and Justice (Omnibus Amendments) Act 2015 (Cth), Sch 1 items 60 to 63. The Explanatory Memorandum explained (at [42]) that the purpose of the amendments was to ensure that, in line with community expectations and international best practice, arbitral proceedings are confidential unless the parties agreed to conduct their arbitration in another manner.
The rationale for protecting the confidentiality of arbitral proceedings is varied. It generally includes respect for party autonomy and the encouragement of parties to resolve their disputes by arbitration. Confidential arbitration can be attractive to parties wishing not to have their dirty laundry aired in public, or wishing to maintain an ongoing commercial relationship with each other by excluding interference or pressure that might come from their dispute being aired publicly. Of course, it may not only be unsavoury conduct that they have an interest in keeping out of the public eye, but also commercially confidential or sensitive information including trade secrets and practices, customer information, and so on. In short, there are legitimate interests to be protected by the confidentiality of arbitral proceedings.
Of relevance to this application, s 27F(5) of the Commercial Arbitration Act provides confidential information may be disclosed if it is necessary for the establishment or protection of the party's legal rights in relation to a third party, and the disclosure is no more than reasonable for that purpose.
In considering whether a suppression order in the nature of the confidentiality orders sought by the HPPL parties, regard must be had to the statutory exception in s 27F(5) to the public and private interest in maintaining confidentiality of an arbitral proceeding that allows the disclosure of confidential information as may be necessary within the meaning of s 27F(5). When applying this statutory test, regard should be had to the well settled rules at common law for the making of suppression or non‑publication orders.
Consequently, in the determination of this application it is necessary to consider the public and private interest in maintaining the confidentiality of the arbitral proceeding in the Martin Arbitration, together with the public and private interest in a party being held to their contractual bargains, against the public interest in open justice in relation to court proceedings. This task necessarily requires the court to apply a 'balancing exercise'.

6.1 Confidentiality/suppression orders have been made by the New South Wales Supreme Court in proceedings in 2020 and 2022

In other proceedings where Bianca and John have been parties, the HPPL parties and Gina have sought and obtained confidentiality orders in 2020 and 2022.
In 2020 orders made in relation to an application for discovery of documents against Gina by Bianca as a consequence of Bianca becoming the trustee of the Hope Margaret Hancock Trust (HMH Trust).[26] Confidentiality orders were made in 2022 by Ball J in the course of hearing an application by Bianca and John seeking an order that the mandate of a member of the Martin Arbitration should be terminated on grounds of apprehended bias.[27]
[26] Rinehart v Rinehart (No 2) [2020] NSWSC 235 and Hancock v Rinehart [2020] NSWSC 1853.
[27] Hancock v Hancock Prospecting Pty Ltd [2022] NSWSC 724; (2022) 402 ALR 328.
In the 2020 matter the suppression orders were made by consent.[28] The 2022 matter directly involved matters concerning the conduct of the arbitration. Neither of these matters directly concerned the trial and determination of factual issues in curial proceedings involving parties who are parties to the Martin Arbitration and the plaintiffs and third party who is not.
[28] See the discussion in Hancock v Rinehart [2022] NSWSC 1025.
It is to be noted, however, that even though Ball J issued a suppression order over some of the documents referred to by the parties in the 2022 application, his Honour was not prepared to make a suppression order in respect of his reasons for dismissing the application for declaratory relief. It should also be noted that his Honour's reasons contain a succinct but otherwise reasonably comprehensive summary of the allegations Bianca and John make in the Martin Arbitration, which allegations occupy all of the first page of the headnote to the reported reasons.[29]

6.2 Suppression/confidentiality orders refused in 2011 and 2014

[29] Hancock v Hancock Prospecting Pty Ltd [2022] NSWSC 724; (2022) 402 ALR 328 [3] ‑ [12].

HPPL and Gina have been unsuccessful in maintaining suppression and confidentiality orders in other proceedings involving Bianca and John in other proceedings in the New South Wales Supreme Court and the Federal Court involving alleged breaches of trust made against HPPL and Gina, which allegations involve substantially similar allegations and factual circumstances to the allegations and factual circumstances raised by Bianca and John in the curial proceedings.
In 2011, in Rinehart v Welker, Hope Rinehart Welker (Hope), John and Bianca had commenced proceedings and sought orders pursuant to the Trustees Act 1962 (WA) varying a deed of settlement made by Lang, as amended by subsequent deed of amendment which split the trust into separate trusts and removing the trustee (Gina) from first of the newly created trusts and appointing themselves as trustees of the second trust. The application was made on grounds that Gina had misconducted herself and the administration of the trust established under the trust deed.[30] Gina sought a stay the proceedings and a suppression order on the basis that the proceedings were an abuse of process, having been commenced without prior compliance with the confidential alternative dispute resolution procedures for which the trust deed provided. Brereton J originally acceded to the application pending determination of the stay application.
[30] Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311.
Following a subsequent determination dismissing the stay application, the basis for the suppression order was removed, but after the filing of an appeal, a judge of the New South Wales Court of Appeal granted further interim suppression orders. These subsequent orders were challenged by various media interests together with Hope, Bianca and John.
The Court of Appeal discharged the interim suppression orders made by the appeal judge. Their Honours found that the orders were not necessary to prevent prejudice to the administration of justice, that insufficient weight had been given to the principle of open justice, and undue weight had been given to contractual confidentiality.
Bathurst CJ and McColl JA in a joint judgment found that the fact that parties had agreed to keep the dispute confidential through arbitration or mediation was not determinative of the issue of whether, in court proceedings, it was necessary for the proper administration of justice to make a suppression order to give effect to such a provision.[31] Their Honours observed that an order is not necessary, in the relevant sense, if it is merely convenient, reasonable or sensible or serves some notion of the public interest.[32]
[31] Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311 [51].
[32] Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311 [31] (Bathurst CJ & McColl JA), [106] (Young JA).
Their Honours also found that there is a public interest in ensuring the proper conduct of trustees through public scrutiny, and this was a relevant factor when deciding whether a suppression order was necessary.[33]
[33] Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311 [52].
Bathurst CJ and McColl JA observed in respect of the effect of the parties' contractual agreement that disputes arising under the deed be dealt with by confidential mediation, and if that failed by confidential arbitration:[34]
The private character of the arbitration hearing is 'something that inheres in the subject matter of the agreement to submit disputes to arbitration'. It is said that 'the efficacy of a private arbitration will be damaged, even defeated, if proceedings in the arbitration are made public by the disclosure of documents relating to the arbitration': Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 26, 27; [1995] HCA 19 (Mason CJ; Brennan and McHugh JJ agreeing).
However, as Mason CJ explained in Esso Australia Resources Ltd v Plowman at 27ff in rejecting the view that confidentiality is an essential characteristic of a private arbitration, privacy is not synonymous with confidentiality. To secure confidentiality an express provision may be necessary, although even that may not bind persons such as witnesses not parties to the arbitration agreement. It is no doubt for that reason that cl 20.8 appears in the Trust Deed.
According respect to party autonomy does not mean that everything associated with a private arbitration wears a mantle of confidentiality. Even where an arbitration hearing has been conducted in private pursuant to a court order and even recognising that '[p]arty autonomy requires the court so far as possible to respect the parties' choice of arbitration', once a court's supervisory jurisdiction is invoked, the fact the arbitration was held in private is only a factor relevant to the question whether the proceedings should be heard in open court: Department of Economics, Policy and Development of the City of Moscow v Bankers Trust Co at [28], [30], [34]‑[36].
Scott v Scott, it will be recalled, was a case where the parties to a nullity suit had agreed that it should be heard in camera. The House of Lords held that the Probate, Divorce and Admiralty Division had no power to hear the suit (or other matrimonial suit) in camera in the interest of public decency. Viscount Haldane LC (at 439) said, 'the order was made in reality for the benefit of the parties who concurred in asking for it, and was therefore made under a mistaken impression as to the law'.
In R v Legal Aid Board; Ex parte Kaim Todner (a firm) [1999] QB 966 at 977 Lord Woolf MR emphasised the proposition that the parties' agreement that proceedings, or particular aspects of them, should be heard in camera or be subject to a non-publication order was not determinative.
[34] Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311 [43] ‑ [47].
In 2014, Bianca and John filed proceedings in the Federal Court against Gina and HPPL respondents seeking declarations that each of the releases and arbitration clauses in all except for one deed including the Hope Downs Deed were void ab initio pursuant to s 87(2) of the Trade Practices Act 1974 (Cth).[35]
[35] Rinehart v Rinehart [2014] FCA 1241.
The statement of claim filed in the Federal Court proceedings made allegations of serious breaches of fiduciary duty by Gina in her capacity as trustee (which breaches dated back to 1992), and also alleged that HPPL as the main company in the HPPL Group, knowingly assisted in the breaches.
It is clear that as Bianca and John submit that the allegations that they made in their statement of claim filed on 31 October 2014 in the Federal Court proceedings,[36] largely mirror what is stated in Bianca and John's defences in this court in the curial proceedings.[37]
[36] ts 3617.
[37] ts 3611.
In the Federal Court proceedings, Bianca and John sought to set aside the Hope Downs deed and other deeds and the arbitration agreement in the deeds by reason of, inter alia, misleading conduct on behalf of Gina and officers of HPPL. An application was made by Gina and the HPPL parties for interim suppression orders of the matters pleaded in the statement of claim and the originating process. After hearing the application, Jacobson J dismissed the suppression orders application.
In the application heard by Jacobson J in 2014, Gina, and the HPPL respondents, claimed that commercial damage would be suffered by them if the allegations were published in the media. However, Jacobson J found that the claims made by Bianca and John in their statement of claim were already in the public domain, and found there was insufficient evidence that not suppressing the allegations in the originating process and statement of claim would damage the commercial reputation of Gina or the HPPL respondents.
Jacobson J followed what Brereton J had said in Welker v Rinehart,[38] that the fact that the pendency of litigation might have an impact on a party's dealings with others is not an established nor sufficient basis for departing from the open justice principle.[39]
[38] Welker v Rinehart [2011] NSWSC 1094 [20].
[39] Rinehart v Rinehart [2014] FCA 1241 [67].
His Honour observed that it is well‑established that a court will avoid making orders which are futile and found that the making of a suppression order would be futile because the allegations in the statement of claim were already in the public domain. His Honour's reasons for making this finding are as follows:[40]
[40] Rinehart v Rinehart [2014] FCA 1241 [80] ‑ [85].
The observations made by Brereton J in Welker at [2] are apt in the present case. His Honour observed that this is not the first occasion of discord in the family, which has immense wealth, no small part of which resides in the trust. He went on to say that in the past the affairs of the family, including such discord.
So much is plain from the bulk of the material exhibited to the affidavit of Mr Price. The high water mark of that evidence seems to be a newspaper article published in The West Australian dated 13 March 2011 bearing the headline 'Little trust where the assets were'. That article contains an allegation made by JLH that:
… his late grandfather, Lang Hancock, had intended that the Hope Margaret Hancock Trust hold 49% of the shares in Hancock Prospecting on behalf of Mrs Rinehart's four children but she had significantly reduced the amount of shares while beefing up her own stake in the company.
The allegations in the present statement of claim are wider in terms than those which have been previously published. In particular, the claims are formulated differently and there are now proprietary claims as well as a claim of concealment of some of the causes of action.
It is true, as was submitted on behalf of the HPPL respondents and GHR that certain aspects of the factual substratum contained in the statement of claim are not in the public domain. Those matters include, in particular, allegations concerning the valuable mining tenements referred to in the course of argument as well as new allegations of misconduct by GHR and the HPPL respondents that are alleged to give rise to the newly formulated proprietary claims.
However, it is clear that the claims made in the earlier proceeding were based upon serious allegations of breach of fiduciary duty by GHR, with the knowing participation of HPPL. The gravamen of those allegations was that GHR had, in breach of her duties as a trustee, acted in her own interests, at the expense of the interests of her children as beneficiaries so as to increase her entitlements and dilute those of the children.
In my opinion, the allegations that are now made, while adding to the detail of the earlier allegations and claiming other relief, fall within the nature of the claims that are already in the public domain.

The HPPL parties argue that although they seek orders to treat large number of documents as Highly Sensitive Information those documents deal with two discrete issues, the Acquisition Issue which Bianca and John claim arose in 1988 and Debt Reconstruction Issue which Bianca and John claim occurred after the death of Lang in 1992.
However, it is clear that there are a large number of documents in at least Annexure A which were created prior to May 1985 when HPPL applied for exploration licence 47/243 (and then HML applied for exploration licences 47/308 and exploration licence 47/309 in December 1996) and documents created prior to 22 June 1988 (which is the date that Bianca and John claim that Lang and Gina entered into the 1988 Agreement, which is one of the agreements they claim established the HFMF Trust).
It is also clear from the list of documents in Annexure A that the majority of the 1,195 documents were created in the period from 1971 to 1998.
The list of 23 Annexure B documents indicates that the majority of documents were created in 2004 to 2006, and the list of six Annexure C documents indicate the documents in this list were created from 1973 until 1990.
WPPL point out not only do the documents listed in the annexures to the summonses contain no confidential information, but it is not claimed by the HPPL parties that any of the contents of the document reputationally embarrassing.[62]
[62] ts 3588.
Although, the HPPL parties do not agree, it is clear that there are a number of documents listed in at least Annexure A that are likely to be relevant to the issues pleaded by WPPL in respect of the Acquisition Issue.
In the 2022 appeals, Quinlan CJ and Beech JA had regard to the claims by WPPL in pars 46A and 46A, and 111 of its pleading which go to Acquisition Issue which refer to the relevant applications made in various capacities by HML for exploration licences and the competing claims by Bianca and John to an equitable interest in the tenements, and found that Bianca and John's competing claim to an equitable interest in the tenements that goes to the Acquisition Issue is material to the determination of WPPL's claim for relief.[63]
[63] DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97 [234] ‑ [247].
In addition, WPPL points out that there are at least 110 documents listed in the annexures that go to the cases of parties other than Bianca and John that those parties will seek to tender into evidence.
Further, and in any event, it is clear that if Bianca and John had pursued their application against the HPPL parties for discovery in the curial proceedings before pursuing their request for discovery in the Martin Arbitration, that almost all of the documents in Annexures A, B and C would have been required to be discovered by Bianca and John and the HPPL parties in the curial proceedings. If that had occurred, there would be no basis for the application that HPPL parties now make for orders in respect of those documents.

8.2 The relevant factors

When regard is had to the principles of open justice and the circumstances raised by the parties, in this matter, the court should have regard to the following matters:
(a)the court must determine whether the orders are necessary to secure the proper administration of justice in the curial proceedings;
(b)the court must be satisfied that the HPPL parties have met the burden of adducing evidence upon which the court may reasonably conclude that the standard of necessity has been met;
(c)the court should only make the orders sought by the HPPL parties if satisfied that there are exceptional circumstances which show that the observance of the open justice principle would frustrate the administration of justice or some other public interest;
(d)embarrassment and risk to reputation are not enough on their own to establish exceptional circumstances.
There are only two factors of substance that weighs in favour of making of the confidentiality orders sought by the HPPL parties. The first is that there is a contractual agreement in place between some parties to the curial proceedings that if enforced will prohibit Bianca and John from prosecuting their claims and defences in the proceedings, which enforceability is the subject of private arbitration proceedings. The second is that there is a private and public interest in a party being held to their contractual bargain.
The HPPL parties argue that the authorities demonstrate that it is in the interests of the administration of justice to avoid a situation where the parties contractual right to confidentiality is undermined, in particular the right to seek relief from the breach of the contractual right of confidentiality. In these circumstances, the public interest in avoiding this consequence should trump the principle of open justice.[64]
[64] ts 3577.
The HPPL parties rely upon the observations made by Beech and Vaughan JJA in the 2020 supplementary stay decision that:[65]
[I]t will be open to the parties, to the extent they think necessary and appropriate, to seek confidentiality orders from the primary judge in relation to interlocutory steps in the proceedings. We acknowledge that, to some extent, HPPL, Mrs Rinehart and Ginia may be at risk of losing confidentiality in relation to some matters the subject of the Hope Downs Deed in the course of the primary proceedings progressing to the point where they are ready for trial. For example, it is likely that any witness statement of Mrs Rinehart, or of other witnesses relied upon by HPPL, concerning matters within the ambit of the confidentiality of the Hope Downs Deed would be revealed to non‑parties to those deeds, namely the plaintiffs and their legal advisers.
[65] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S) [153].
These observations, however, do not provide substantial assistance to the HPPL parties because it is clear from what was being said by their Honours' in this passage that it would be open to apply for confidentiality orders in respect of matters that come within the 'ambit of the confidentiality of the Hope Downs Deed'. Importantly, Bianca and John do not refer to the Hope Downs Deed in any of the documents sought by the HPPL parties to be deemed to Highly Sensitive Information. Also, the HPPL parties have made it clear in their defence in the WPPL proceedings that they only seek to deploy the deed against WPPL, and not Bianca and John. Instead the HPPL parties intend to in effect enforce the provisions of the Hope Downs Deed against the interest of Bianca and John if they are successful in obtaining a contractual injunctive relief in the Martin Arbitration, which injunction they will seek to enforce in the court.
In 2019, the plurality of the High Court observed in Rinehart v Hancock Prospecting Pty Ltd in the course of an appeal by Bianca and John as to whether their claims that the deeds were void were not subject to the arbitral clauses that the critical object of the Hope Downs Deed was the maintenance of confidentiality about the affairs of the Hancock Group, the trust, the intra‑family dispute and the provisions of the deeds themselves, which object could not be clearer.[66] Their Honours also made the same observation about the Deed of Obligation and Release which their Honours found was bought about by John's public statements, which from their Honours reasons appear to be statements made by John in or about 2005, which were considered to have the potential to cause damage to the commercial interests of the Hancock Group. Their Honours then went on to observe that the need to avoid this and to ensure confidentiality of information was critical because of the joint venture which was then being negotiated with a third party, which would have long‑term implications for the Hancock Group. Their Honours importantly observed that:[67]
The evident object of the deed was to ensure that there was no further public airing of the claims made by Mr Hancock. It is inconceivable that a party to the deed could have thought that any challenge to it would be determined publicly, in court.
[66] Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13; (2019) 267 CLR 514 [46].
[67] Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13; (2019) 267 CLR 514 [49].
The observations of the plurality of the High Court in 2019 must be considered in the context that their Honours were called upon to consider the proper construction of the Deed of Obligation and Release and the Hope Downs Deed and the factual circumstances that existed when Bianca and John and others entered into those deeds in 2005 and 2006.
When understood in that context the observations of plurality said to be capable as being interpreted as establishing a proposition that there is a public interest in favour of holding parties to their bargains and that a consequence of holding Bianca and John to that bargain is maintaining the confidentiality of the Martin Arbitration.
However, their Honours' observations do not provide a basis that the public interest of holding an arbitral party to the bargain can properly only be achieved in these proceedings by holding Bianca and John to that bargain through confidentiality orders that have application to the issues raised in the curial proceedings. In any event, it is clear that the orders sought by the HPPL parties go well beyond any undertaking given by Bianca and John in the arbitration deeds, and would if made have the effect of restricting the ability of the plaintiffs to run their cases in open court.
In addition, and of importance, the maintenance of confidentiality of Bianca and John's allegations is not possible, it is clear that there is a substantial amount of repeated publicly known information about the issues raised in the Martin Arbitration and in Bianca and John's defences in the curial proceedings.
However, a contractual obligation to keep matters confidential, or not to make allegations or claims is but one factor that the court should take into account when considering whether necessary in the proper administration of justice to depart from the open justice principle.
There are a number of factors which weigh strongly against the making of the orders sought by the HPPL parties, and reveal that there is no necessity in the interests of justice in the orders sought.
First, in circumstances where the substance of Bianca and John's allegations are already well‑known publicly, the private and public individual interest in privacy of Gina and the HPPL parties in not ventilating in public those allegations in detail in breach of what is claimed to be an enforceable contractual obligation does not outweigh the strong public interest in the court's usual exercise of its jurisdiction in public. This is because allegations have been known publicly for many years through the proceedings instituted by Bianca and John in New South Wales and in the Federal Court, and judgments given by the courts in those jurisdictions and in the judgments of this court. It is notable that it appears clear that these allegations have had no detrimental effect on HPPL and its subsidiaries, or on Gina in pursuing continuing commercial activities, including mineral exploration and development and operation of iron ore mines in Western Australia. Nor is there any reliable evidence before the court that the reputation of HPPL and its subsidiaries, or Gina has suffered because of the repeated publication of these allegations.
Bianca and John correctly point out that the core allegations made by them in their defences in the curial proceedings have been disclosed fully in the public domain through proceedings in the New South Wales Supreme Court and the Federal Court since before 2014, and were fully articulated in the 2014 Federal Court statement of claim.
There has been additional publication of the substance and details of the allegations and claims made by Bianca and John in their defences in the curial proceedings through the publication of judgments of this court on and from at least 2018.
When regard is had to the matters stated in published reasons for decision of this court which deal with various applications principally instituted by the HPPL parties, it is clear that the substance of the allegations of breach of fiduciary duty by Gina with the knowing participation of the HPPL parties made by Bianca and John and the factual basis of those allegations in the curial proceedings have been repeated on many occasions in the public domain.
In addition, it is clear from these reasons for decision it is well‑known publicly that the defences of Bianca and John in the curial proceedings overlap with the issues which they advance in the Martin Arbitration.
As a result the substance and detail of the allegations and claims made by the Bianca and John in the arbitration which are also the allegations they make their defences in the curial proceedings are in the public domain.
In Isaac v Dargan Financial Pty Ltd, Gleeson JA relevantly observed:[68]
[68] Isaac v Dargan Financial Pty Ltd [2018] NSWCA 163; (2018) 98 NSWLR 343 [166] ‑ [169].
In considering the significance of the disclosure of information and whether it has entered the public domain, it is necessary to distinguish between cases where there is an equitable obligation of confidence (the retention of the quality of confidence being necessary to sustain relief in equity) and cases where the obligation of confidence is imposed by way of contract (and may involve use or disclosure of information which is not, in its nature, confidential).
As to the position in equity, once information becomes public knowledge or is in 'the public domain' equity will refuse to intervene to protect the information because the information has lost its confidentiality: Johns v Australian Securities Commission (1993) 178 CLR 408 at 475 (McHugh J), 432 (Brennan J), 438 (Dawson J) and 460‑461 (Gaudron J); [1993] HCA 56. The question whether information is in the public domain is largely one of fact: Johns v ASC at 461 (Gaudron J). Whether information has entered the public domain, requires consideration of the accessibility to the information should members of the public wish to do so: GE Dal Pont, Law of Confidentiality (2015, Chatswood, LexisNexis Butterworths) at 195.
Johns v ASC involved the confidentiality (either in equity or under the Australian Securities Commission Act 1989 (Cth)) of transcripts of private examinations conducted by the ASC in the exercise of its statutory powers which had been disclosed to a state Royal Commission with authorisation to use them in public hearings. Copies of the transcripts were tendered in evidence in public hearings, and the Royal Commission made copies available to journalists and information in the transcripts was published to the media. Brennan J, with whom Dawson J generally agreed, said at 432‑433:
'A defendant who, having received information in circumstances which impose a duty of confidence, makes a limited publication in breach of that duty, can be restrained from further breaching the duty by making a wider publication. But that is not the present case. … When the proceedings of a court, tribunal or commission created by statute or in exercise of the prerogative are open to the public and a fair report of the proceedings can lawfully be published generally, it is not possible to regard information published in those proceedings as outside the public domain [Home Office v Harman, [1983] AC 280, at pp 303, 312]. Information published in those circumstances enters the public domain by a lawful gate. Once in the public domain, it can be freely used or disseminated. Information obtained by the media in this way is not "imparted so as to import an obligation of confidence": The Commonwealth v John Fairfax & Sons Ltd (1980) [147 CLR, at p 51], per Mason J. In such a case, the public domain is not measured by the extent of media reporting. If media reporting were the measure of the public domain in relation to information published in such proceedings, the defamation laws would have to be reformulated. It is unnecessary to consider the question whether a defendant to whom information was imparted in circumstances which imposed an obligation of confidence can, by a wide publication of the information in breach of that obligation, avail himself of a defence that the information is thereafter in the public domain [Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987), 8 NSWLR, at p 374; Attorney-General v Guardian Newspapers Ltd [No 2], [1990] 1 AC, at pp 271, 286‑288, 293]. This case concerns information which was already in the public domain at the time when H.W.T. and the A.B.C. acquired it. In Marcel v Commissioner of Police of the Metropolis, Browne-Wilkinson V.-C. said [[1992] Ch, at p 237; see also Attorney-General v Guardian Newspapers Ltd [No 2], [1990] 1 AC, at pp 215, 268, 282]:
"there can be no breach of the duty of confidence once the information or documents are in the public domain and the confidentiality has therefore disappeared. In the case of the ... documents which have been read in open court, they have now lost their confidentiality by disclosure in open court."'
(Footnotes supplied)
Dawson J added at 438:
'… the material was introduced into the public domain when it was tendered at a public hearing. There is no breach of confidential information if the information does not have the "quality of confidence". Information which is on the public record cannot have that quality.' (Footnote omitted)
It is not only in reasons for decision that had been delivered in court proceedings that Bianca and John's allegations have been revealed in the public domain. In Mr Price's affidavit, he refers to the transcript of a submission made by counsel for Bianca and John in open court in the New South Wales Supreme Court, in which serious allegations were made against Gina of a breach of fiduciary duty and allegations of serious fraud which following that hearing there was extensive print and media reporting of those allegations.[69]
[69] Affidavit of Timothy Randolph Price sworn on 17 July 2023, par 37, Annexure TRP 2, 30 ‑ 63.
Nor does it appear that the repeated publication of these allegations over a number of years have had any effect upon any other investment opportunities that HPPL and its subsidiaries or Gina have wished to invest in other parts of Australia or overseas. The HPPL parties' submission on commercial prejudice amounts largely to concerns about reputational damage, which without more is not enough to justify the suppression of evidence, pleadings and submissions in a substantive trial.
Second, and of importance, the public interest and the parties' interests in the efficient exercise of the court's jurisdiction without undue delay and inconvenience, would inevitably be prejudiced if the orders sought by the HPPL parties are granted.
The HPPL parties seek sweeping orders that would prevent the disclosure of, among other things, pleadings that have been on the court record for years and allegations that have been aired in open court in this court and in other courts.
WPPL, together with Rhodes and John and Bianca, argue that the HPPL parties' application is disproportionate and practically unworkable for trial.
The HPPL parties seek that in effect all of the documents discovered by Bianca and John and the HPPL parties that were documents discovered in the Martin Arbitration the practical effect of which is that all of Bianca and John's case and the plaintiffs' replies to their cases would have to be heard in closed court. To do otherwise would be impractical because none of the Annexure A, B or C documents could be referred to by any party to the proceedings in open court. In particular, Bianca and John and the plaintiffs would be prohibited from referring to any of those documents in open court in support of any submission that they wish to make which are not the subject of the proposed confidentiality orders. This would have the effect that matters that are not sought to be covered by the proposed orders would necessarily also have to be heard in close court.

WPPL points out that the consequence of the orders proposed by the HPPL parties is that more than 16,753 pages of Bianca and John's written opening submissions dated 28 June 2023, pleadings, and documents nominated by various parties for tender may only be maintained on the court file in unredacted form in hard copy paper files made available to the judge as Highly Sensitive Unredacted Documents, which orders were made by the court in the WPPL proceedings and the Rhodes proceedings on 23 May 2023.
The orders were made on 23 May 2023 to protect the commercially sensitive information produced by Hamersley Pty Ltd as the third‑party to the curial proceedings, and any other Highly Sensitive Information in a Protected Document nominated by the HPPL parties which orders require that:
(a)any Highly Sensitive Unredacted Document must be tendered as a confidential exhibit at trial;
(b)if any party wishes to refer to Highly Sensitive Information contained in a Protected Document at trial, the court must be closed; and
(c)no non-party may access any Highly Sensitive Unredacted Documents.[70]
[70] Order 4 of the orders made on 23 May 2023 however provide for the court to order otherwise, which order contemplates that the nomination by Hamersley or the HPPL parties that a document or documents as a Protected Document or a Highly Sensitive Unredacted Document may be challenged by a party to the proceedings.
It is clear that when these orders were made to extend to the HPPL parties that the court and the other parties did not appreciate that the HPPL parties would nominate documents that would not be commercially sensitive as Highly Sensitive Information in a Protected Document.
The impracticality and inconvenience of the HPPL parties' approach is more acute in circumstances where:
(a)110 documents identified by the HPPL parties as Protected Documents have been nominated by parties other than Bianca and John for tender in these proceedings. Of those, 41 documents are nominated by WPPL and/or the Rhodes parties and 39 documents by WPPL alone;
(b)because there is an overlap in the parties' submissions on the Acquisition Issue of the Hope Downs and East Angelas exploration licences, if the orders sought by the HPPL parties are made, the plaintiffs' counsel and instructing solicitors would be put to a very onerous task of going through their proposed submissions and lines of cross‑examination to make sure they identify and inform the other parties and the court of Highly Sensitive Information, so they do not act in breach of the orders.
To require the plaintiffs to carry out such a task in circumstances where they are not parties to the Martin Arbitration and there has been substantial public disclosure ranging over many years of the matters pleaded by Bianca and John in their defences, would be disproportionate and not reasonably necessary in the interests of justice for the proper conduct and management of the trial of the curial proceedings.
In any event, even if the HPPL parties are successful in obtaining relief from the Martin Arbitration in the form of an order restraining Bianca and John from alleging, maintaining or prosecuting their claims and defences that they maintain in the curial proceedings, it cannot be found that relief would be necessarily rendered nugatory by Bianca and John raising their allegations they plead in their defences in the curial proceedings in open court. This is because it is highly unlikely that a decision in the curial proceedings will be delivered before the delivery of an award in the Martin Arbitration.
Third, for these reasons also, insofar as it is necessary to have regard to s 27F(5) of the Commercial Arbitration Act, I am of the opinion that the information contained in the documents sought to be treated as Protected Documents and Highly Sensitive Information may be disclosed in open court.
This is because in circumstances where the substance of Bianca and John's allegations are already well‑known in public, the disclosure is no more than reasonable for the purpose of the efficient exercise of the court's jurisdiction without undue delay and inconvenience, and also for the purpose of ensuring that the evidence and submissions not the subject of the orders that are raised by the parties who are not parties to the arbitration deeds can be heard in open court without undue disruption.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SO
Associate to the Judge
31 JULY 2023