Welker & Ors v Rinehart & Anor (No 2) [2011] NSWSC 1238

Supreme Court New South Wales

Medium Neutral Citation: Welker & Ors v Rinehart & Anor (No 2) [2011] NSWSC 1238 Hearing dates: 23 September and 7 October 2011 Decision date: 07 October 2011 Jurisdiction: Equity Division - Duty List Before: Brereton J Decision: First and second defendants' motions dismissed with costs. Interim suppression order made pending application for leave to appeal pursuant to (NSW) Court Suppression and Non-Publication Orders Act, 2010, s 10, and alternatively pursuant to the inherent jurisdiction of the court, upon the ground referred to in s 8(1)(a) of that Act, that such order is necessary to prevent prejudice to the administration of justice, prohibiting disclosure by publication or otherwise of information as to any relief claimed in the proceedings or any pleading evidence or argument filed read or given in the proceedings. Such order has effect, subject to revocation by this Court, until the expiration of 7 days from the date on which my written reasons for judgment given orally on 7 October 2011 are published on the Court's website, and thereafter if within that period the first defendant or second defendant has filed a summons for leave to appeal until the determination of that application or further order of this Court or of the Court of Appeal. Pursuant to s 9(4), this order does not prohibit: (a) Disclosure or publication of any judgment given in these proceedings to date nor of any orders made in the proceedings. (b) Pursuant to s 11, it is specified that this order applies throughout the Commonwealth of Australia. (c) Disclosure to Hancock Prospecting Pty Ltd nor to the professional advisers and potential witnesses or funders of any party to the proceedings (including Hancock Prospecting Pty Ltd), in every case only for the purposes of the proper conduct of these proceedings and/or the proposed appellate proceedings and provided that prior to such disclosure the person to whom the disclosure is to be made has been informed of this order and has acknowledged that they are bound by this order. Catchwords: PRACTICE AND PROCEDURE - Stay of proceedings - court has jurisdiction to stay proceedings to enforce agreement by parties to refer disputes to mediation and arbitration - defendants invoke confidential mediation and arbitration clauses of deed - whether first and third plaintiffs bound by deed - condition precedent to certain parties being bound by deed that they provide letters acknowledging entered into deed without coercion or undue influence - issue whether first and third plaintiff provided such letters - no evidence from these plaintiffs disputing provision of letters - recital to subsequent deed recognises plaintiffs bound. PRACTICE AND PROCEDURE - Stay of proceedings - application by beneficiaries to remove trustee - whether such a dispute susceptible to "private justice" - subject matter of dispute susceptible to mediation and arbitration. PRACTICE AND PROCEDURE - Stay of proceedings - confidential mediation and arbitration procedure applicable to "disputes under this deed" - "under this deed" connotes dispute dealing with enforcement or invocation of rights created by deed - construction of "claim now and in the future" - means "now and forever" and does not extend "claims", defined as existing or discontinued at time of deed to claims not existing at time of deed - whether dispute "under" clause in deed relating to vesting date of trust - dispute about removal of trustee - whether dispute "arising under this deed" raised by second defendant proffering wish to have non-family member appointed trustee - where plaintiffs make no such claim - whether proceedings contrary to non-disparagement provision - fact second defendant may wish to prosecute such a dispute does not change nature of plaintiffs' dispute - whether proceedings contrary to undertaking not to challenge first defendant's "right title or interest" in Group or any trust of which she is a beneficiary - reference to beneficial title or interest not to first defendant's legal title as trustee - second defendant invokes provision providing that parties to deed will not challenge ongoing management and control of first defendant in company known as HPPL - trust only owns 25% of shares in HPPL whilst first defendant owns 75% of shares - management not reference to shareholding but to directorship - ongoing control not reference to ability to control every single share - not a dispute "under this deed". COURTS AND JUDGES - Application for suppression order under (NSW) Court Suppression and Non-publication Orders Act 2010 - where defendants' propose to apply for leave to appeal orders dismissing application for stay of proceedings - prior suppression order expressed to be contingent on determination of stay application - failure to grant further interim suppression order would render arguable appeal nugatory and undermine defendants' claimed right to confidentiality in event Court of Appeal overturns primary judge's decision - interim suppression order granted. Legislation Cited: (NSW) Civil Procedure Act 2005, s 26, s 67, s 94 (WA) Commercial Arbitration Act, 1985 (NSW) Court Suppression and Non-publication Orders Act, 2010, s 8, s 9, s 10, s 11 (CTH) Trade Practices Act, 1974, s 87 (WA) Trustees Act, 1962, s 7, s 10, s 77, s 90, s 92 (NSW) Uniform Civil Procedure Rules 2005, r 6.24, r 6.29 Cases Cited: Ashington Capital Limited v Noosa Venture 1 Pty Ltd [2010] NSWSC 639 Dance With Mr D Limited v Dirty Dancing Investments Proprietary Limited [2009] NSWSC 332 IBM Australia Limited v National Distribution Services Limited (1991) 100 ALR 361 Larkden Proprietary Limited v Lloyd Energy Systems (2011) 279 ALR 772 Leerac Proprietary Limited v Fay [2008] NSWSC 1082 Permanent Trustee Company v Dougall and Others (1934) 34 SR (NSW) 83 Siemens Ltd v Origin Energy Uranquinty Power Pty Ltd (2011) 279 ALR 795 State of New South Wales v Banabelle Electrical Pty Ltd (2002) 54 NSWLR 503 Welker & Ors v Rinehart [2011] NSWSC 1094 Zeke Services Proprietary Limited v Traffics Technology Limited [2005] QSC 135; [2005] 2 Qd R 563 Texts Cited: Doug Jones, 'Commercial Arbitrartion in Australia' (2011) Category: Procedural and other rulings Parties: Hope Rinehart Welker (first plaintiff) John Langley Hancock (second plaintiff) Bianca Hope Rinehart (third plaintiff) Gina Hope Rinehart (first defendant) Ginia Hope Frances Rinehart (second defendant) Representation: Counsel: Dr A S Bell SC with Mr M J Smith (plaintiffs) Mr A Sullivan QC with Mr E Muston (first defendant) Mr F Kunc SC with Mr P W Flynn (second defendant) Mr A T S Dawson (intervening media interests) Mr D Studdy SC with Mr C Colquhoun (intervening on behalf of Hancock Prospecting Pty Ltd) Solicitors: Johnson Winter & Slattery (plaintiffs) Corrs Chambers Westgarth (first defendant) Gadens Lawyers (second defendant) Addisons (intervening media interests) Corrs Chambers Westgarth (Hancock Prospecting Pty Ltd) File Number(s): 2011/285907