Gina Rinehart, Australia's richest woman, has been fighting
the media through the courts to suppress details of her bitter
dispute with her own children over control of the billions in the
Hancock family trust. Apart from being a compelling morality tale,
the case raises an interesting question about whether the courts
will protect confidentiality as part of an alternative dispute
resolution process. It's the desire for confidentiality that
often drives parties towards mediation or arbitration rather than
Three of Mrs Rinehart's children applied to the NSW Supreme
Court to have her removed from her role as trustee. The problem was
that the trust deed said that disputes 'under this deed',
and 'between the parties to the deed', should be
confidential and go to mediation/arbitration.
On this basis, Mrs Rinehart applied to the Court:
to stop the proceedings being publicised; and
for a permanent stay of the court case, while the dispute goes
to mediation or arbitration.
The Court found that the children's claim was not a
'dispute under the deed', and therefore no stay. But it
granted a suppression order while Mrs Rinehart pursued an
The Court found that an agreement for family disputes to be
resolved in private should not always trump the public interest in
the administration of justice. While recognising the importance of
confidentiality to arbitration and mediation, the Court did not
accept that this meant a challenge to the validity or extent of the
arbitration clause should be protected by a suppression order.
Fairfax, the ABC and Nationwide News all applied to have the
suppression order removed. The Court of Appeal agreed and lifted
the order. When Mrs Rinehart indicated she would be appealing the
decision to the High Court, the judges said the case should remain
suppressed until the appeal had been filed, or 13 January 2012. If
the High Court refuses to hear the appeal, we get to find out the
juicy details then.
What does it mean?
Courts have a hard time balancing the principle of open justice
against commercial parties' desire for confidentiality. As such
the specific wording of a confidential agreement will be very
significant. Great care is needed in drafting these agreements if
you want to stay out of both the courts and the media.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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