Welker & Ors v Rinehart [2011] NSWSC 1094

Supreme Court New South Wales

Medium Neutral Citation: Welker & Ors v Rinehart [2011] NSWSC 1094 Hearing dates: 9 September 2011 Decision date: 13 September 2011 Jurisdiction: Equity Division - Duty List Before: Brereton J Decision: Suppression order made pursuant to (NSW) Court Suppression and Non-publication Orders Act 2010, s 7, upon the ground referred to in s 8(1)(a), and the ground referred to in s 8(1)(e), prohibiting the disclosure, by publication or otherwise, of any information as to the relief claimed, or any pleading, evidence or argument filed, read or given in, the proceedings. Pursuant to s 9(4), this order does not prohibit disclosure or publication of this judgment, nor of orders made in the proceedings. Pursuant to s 11, it is specified that this order applies throughout the Commonwealth. Pursuant to s 12, it is specified that this order operates until the dismissal of the defendant's motion for a stay of the proceedings, and if it is not dismissed until further order of the Court. Catchwords: COURTS AND JUDGES - Application for suppression order under (NSW) Court Suppression and Non-publication Orders Act 2010 - order applied for under s 8(1)(a) as necessary to prevent prejudice to administration of justice, and/or s 8(1)(e) as necessary in the public interest for the order and the public interest significantly outweighs public interest in open justice - test prescribed by Act more stringent than former common law test and that previously contained in (NSW) Civil Procedure Act (2005) s 72 - discussion of authorities - open justice principle liable to yield in circumstances where open justice would defeat the administration of justice - plaintiffs and defendant party to a deed requiring confidential alternative dispute resolution procedures to be adopted before institution of court proceedings - current proceedings arguably contrary to deed and arguably an abuse of process - publication of current proceedings will negate purpose of confidentiality provision - suppression order necessary to prevent prejudice to administration of justice and to uphold legal rights of litigants - balancing exercise required - weight accorded to public interest in open justice liable to vary according to nature and stage of proceedings - current proceedings concern family trust - private issues and interests concerned - public interest in vindicating private rights outweighs significantly public interest in open justice - fact proceedings may jeopardise commercial negotiations with third parties not a reason in and of itself to depart from principle of open justice - order to apply throughout the Commonwealth - order made at least until defendant's stay application dealt with. Legislation Cited: (NSW) Civil Procedure Act 2005, s71, s 72 (NSW) Court Suppression and Non-publication Orders Act 2010, s 3, s 7, s 8, s 11, s 12, (CTH) Family Law Act 1975, s 121 Cases Cited: Ashington Capital Ltd v Noosa Venture 1 Pty Ltd [2010] NSWSC 639 Chappell v TCN Channel 9 Pty Ltd (1988) 14 NSWLR 153 Dance with Mr D Ltd v Dirty Dancing Investments Pty Ltd [2009] NSWSC 332 John Fairfax Publications Pty Ltd and Another v District Court of New South Wales and Others (2004) 61 NSWLR 344 John Fairfax Group Pty Ltd (Receivers and Managers Appointed) and Another v Local Court of New South Wales and Others (1991) 26 NSWLR 131 Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) [2010] NSWCA 196 Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 State of New South Wales and Others v Banabelle Electrical Pty Ltd and Others (2002) 54 NSWLR 503 The Herald & Weekly Times Ltd v The Magistrates' Court of Victoria and Others [1999] VSC 232 W v M [2009] NSWSC 1084 Category: Principal judgment Parties: Welker & ors (plaintiffs) Rinehart (defendant) Representation: Counsel: Mr A. J. Sullivan QC with Mr E. C. Muston (defendant/applicant) Mr A. S. Bell SC (plaintiff/respondent) Mr A. T. S. Dawson (intervening media interests) Solicitors: Johnson Winter & Slattery (plaintiff) Corrs Chambers Westgarth (defendant) Addissons (intervening media interests) File Number(s): 2011/00285907