DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd - [2022] WASCA 97

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DFD RHODES PTY LTD -v- HANCOCK PROSPECTING PTY LTD [2022] WASCA 97
CORAM:   QUINLAN CJ
BEECH JA
VAUGHAN JA

HEARD:   15, 16 & 17 MARCH 2022
DELIVERED          :   2 AUGUST 2022
FILE NO/S:   CACV 60 of 2021
BETWEEN:   DFD RHODES PTY LTD
First Appellant
MATTHEW JOHN KEADY and DOROTHEA MARGARET CAMPBELL as executors of the estate of DONOVAN FRANCES DUNCAN RHODES
Second Appellants
AND
HANCOCK PROSPECTING PTY LTD
First Respondent
WRIGHT PROSPECTING PTY LTD
Second Respondent
HOPE DOWNS IRON ORE PTY LTD
Third Respondent
BIANCA HOPE RINEHART
Fourth Respondent
JOHN LANGLEY HANCOCK
Fifth Respondent
HOPE RINEHART WELKER
Sixth Respondent
GINIA HOPE FRANCIS RINEHART
Seventh Respondent
HAMERSLEY WA PTY LTD
Eighth Respondent

FILE NO/S: CACV 61 of 2021
BETWEEN: HANCOCK PROSPECTING PTY LTD
First Appellant
HOPE DOWNS IRON ORE PTY LTD
Second Appellant
AND
WRIGHT PROSPECTING PTY LTD
First Respondent
BIANCA HOPE RINEHART
Second Respondent
JOHN LANGLEY HANCOCK
Third Respondent
HOPE RINEHART WELKER
Fourth Respondent
GINIA HOPE FRANCES RINEHART
Fifth Respondent
HAMERSLEY WA PTY LTD
Sixth Respondent

FILE NO/S: CACV 77 of 2021
BETWEEN: HANCOCK PROSPECTING PTY LTD
First Appellant
HOPE DOWNS IRON ORE PTY LTD
Second Appellant
AND
DFD RHODES PTY LTD
First Respondent
MATTHEW JOHN KEADY and DOROTHEA MARGARET CAMPBELL as executors of the estate of DONOVAN FRANCES DUNCAN RHODES
Second Respondents
WRIGHT PROSPECTING PTY LTD
Third Respondent
BIANCA HOPE RINEHART
Fourth Respondent
JOHN LANGLEY HANCOCK
Fifth Respondent
HOPE RINEHART WELKER
Sixth Respondent
GINIA HOPE FRANCIS RINEHART
Seventh Respondent
HAMERSLEY WA PTY LTD
Eighth Respondent

FILE NO/S: CACV 78 of 2021
BETWEEN: HANCOCK PROSPECTING PTY LTD
First Appellant
HOPE DOWNS IRON ORE PTY LTD
Second Appellant
AND
WRIGHT PROSPECTING PTY LTD
First Respondent
BIANCA HOPE RINEHART
Second Respondent
JOHN LANGLEY HANCOCK
Third Respondent
HOPE RINEHART WELKER
Fourth Respondent
GINIA HOPE FRANCIS RINEHART
Fifth Respondent
HAMERSLEY WA PTY LTD
Sixth Respondent

FILE NO/S: CACV 90 of 2021
BETWEEN: HANCOCK PROSPECTING PTY LTD
First Appellant
HOPE DOWNS IRON ORE PTY LTD
Second Appellant
AND
WRIGHT PROSPECTING PTY LTD
First Respondent
BIANCA HOPE RINEHART
Second Respondent
JOHN LANGLEY HANCOCK
Third Respondent
HOPE RINEHART WELKER
Fourth Respondent
GINIA HOPE FRANCIS RINEHART
Fifth Respondent
HAMERSLEY WA PTY LTD
Sixth Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   LE MIERE J
Citation: WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [No 13] [2021] WASC 214
File Number            :   CIV 3041 of 2010, CIV 2617 of 2012, CIV 2737 of 2013
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   LE MIERE J
Citation: WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [No 14] [2021] WASC 268
File Number            :   CIV 3041 of 2010, CIV 2617 of 2012, CIV 2737 of 2013
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   LE MIERE J
Citation: WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [No 15] [2021] WASC 307
File Number            :   CIV 3041 of 2010, CIV 2737 of 2013, CIV 2617 of 2012

Catchwords:

Commercial arbitration - Arbitration agreement - Proceedings stayed pending arbitration between Rhodes and Bianca and John - Rhodes not signatory to arbitration agreement - Judge stayed matters arising from paragraphs of Rhodes' reply - Whether judge erred in staying paragraphs of reply - Whether judge erred in finding that arbitral matter arose from controversy generated by certain paragraphs of Rhodes' reply - Commercial Arbitration Act 2012 (WA) s 8(1) - Where party who requested referral to arbitration was not party to relevant dispute - Whether judge erred in failing to find that party who requests referral to arbitration must be party to dispute constituting the matter which is subject of arbitration agreement - Whether judged erred in finding that test for whether person claims through or under signatory to arbitration agreement does not require consideration of whether relationship of proximity exists between claimant and signatory - Whether judge erred in finding that requesting party had not yet made first statement on substance of dispute

Practice and procedure - Pleadings - Striking out pleadings - Whether judge erred in failing to strike out paragraphs of a defence

Practice and procedure - Discovery - Whether court has power to order discovery by a defendant to a co-defendant only if there is a right to be adjusted between them

Legislation:

Commercial Arbitration Act 2012 (WA), s 8
Rules of the Supreme Court 1971 (WA), O 26 r 7(3)

Result:

CACV 60 of 2021:
Leave to appeal granted
Appeal allowed in part
Judge's orders staying proceedings modified

All other appeals:
Leave to appeal refused
Appeal dismissed

Category: A

Representation:

CACV 60 of 2021

Counsel:

First Appellant	:	K R Lendich SC & S Taylor
Second Appellants	:	K R Lendich SC & S Taylor
First Respondent	:	N C Hutley SC, C Colquhoun, J J Hutton & J Kennedy
Second Respondent	:	K Stern SC, L Coleman & N Wootton
Third Respondent	:	N C Hutley SC, C Colquhoun, J J Hutton & J Kennedy
Fourth Respondent	:	A Hochroth & C Ernst
Fifth Respondent	:	A Hochroth & C Ernst
Sixth Respondent	:	No appearance
Seventh Respondent	:	No appearance
Eighth Respondent	:	No appearance

Solicitors:

First Appellant	:	Taylor & Taylor Lawyers Pty Ltd
Second Appellants	:	Taylor & Taylor Lawyers Pty Ltd
First Respondent	:	Corrs Chambers Westgarth
Second Respondent	:	Clayton Utz
Third Respondent	:	Corrs Chambers Westgarth
Fourth Respondent	:	Yeldham Price O'Brien Lusk
Fifth Respondent	:	Yeldham Price O'Brien Lusk
Sixth Respondent	:	Deutsch Miller
Seventh Respondent	:	Dentons Australia
Eighth Respondent	:	Allens

CACV 61 of 2021

Counsel:

First Appellant	:	N C Hutley SC, C Colquhoun, J J Hutton & J Kennedy
Second Appellant	:	N C Hutley SC, C Colquhoun, J J Hutton & J Kennedy
First Respondent	:	K Stern SC, L Coleman & N Wootton
Second Respondent	:	A Hochroth & C Ernst
Third Respondent	:	A Hochroth & C Ernst
Fourth Respondent	:	No appearance
Fifth Respondent	:	No appearance
Sixth Respondent	:	No appearance

Solicitors:

First Appellant	:	Corrs Chambers Westgarth
Second Appellant	:	Corrs Chambers Westgarth
First Respondent	:	Clayton Utz
Second Respondent	:	Yeldham Price O'Brien Lusk
Third Respondent	:	Yeldham Price O'Brien Lusk
Fourth Respondent	:	Deutsch Miller
Fifth Respondent	:	Dentons Australia
Sixth Respondent	:	Allens

CACV 77 of 2021

Counsel:

First Appellant	:	N C Hutley SC, C Colquhoun, J J Hutton & J Kennedy
Second Appellant	:	N C Hutley SC, C Colquhoun, J J Hutton & J Kennedy
First Respondent	:	K R Lendich SC & S Taylor
Second Respondents	:	K R Lendich SC & S Taylor
Third Respondent	:	K Stern SC, L Coleman & N Wootton
Fourth Respondent	:	A Hochroth & C Ernst
Fifth Respondent	:	A Hochroth & C Ernst
Sixth Respondent	:	No appearance
Seventh Respondent	:	No appearance
Eighth Respondent	:	No appearance

Solicitors:

First Appellant	:	Corrs Chambers Westgarth
Second Appellant	:	Corrs Chambers Westgarth
First Respondent	:	Taylor & Taylor Lawyers Pty Ltd
Second Respondents	:	Taylor & Taylor Lawyers Pty Ltd
Third Respondent	:	Clayton Utz
Fourth Respondent	:	Yeldham Price O'Brien Lusk
Fifth Respondent	:	Yeldham Price O'Brien Lusk
Sixth Respondent	:	Deutsch Miller
Seventh Respondent	:	Dentons Australia
Eighth Respondent	:	Allens

CACV 78 of 2021

Counsel:

First Appellant	:	N C Hutley SC, C Colquhoun, J J Hutton & J Kennedy
Second Appellant	:	N C Hutley SC, C Colquhoun, J J Hutton & J Kennedy
First Respondent	:	K Stern SC, L Coleman & N Wootton
Second Respondent	:	A Hochroth & C Ernst
Third Respondent	:	A Hochroth & C Ernst
Fourth Respondent	:	No appearance
Fifth Respondent	:	No appearance
Sixth Respondent	:	No appearance

Solicitors:

First Appellant	:	Corrs Chambers Westgarth
Second Appellant	:	Corrs Chambers Westgarth
First Respondent	:	Clayton Utz
Second Respondent	:	Yeldham Price O'Brien Lusk
Third Respondent	:	Yeldham Price O'Brien Lusk
Fourth Respondent	:	Deutsch Miller
Fifth Respondent	:	Dentons Australia
Sixth Respondent	:	Allens

CACV 90 of 2021

Counsel:

First Appellant	:	N C Hutley SC, C Colquhoun, J J Hutton & J Kennedy
Second Appellant	:	N C Hutley SC, C Colquhoun, J J Hutton & J Kennedy
First Respondent	:	K Stern SC, L Coleman & N Wootton
Second Respondent	:	A Hochroth & C Ernst
Third Respondent	:	A Hochroth & C Ernst
Fourth Respondent	:	No appearance
Fifth Respondent	:	No appearance
Sixth Respondent	:	No appearance

Solicitors:

First Appellant	:	Corrs Chambers Westgarth
Second Appellant	:	Corrs Chambers Westgarth
First Respondent	:	Clayton Utz
Second Respondent	:	Yeldham Price O'Brien Lusk
Third Respondent	:	Yeldham Price O'Brien Lusk
Fourth Respondent	:	Deutsch Miller
Fifth Respondent	:	Dentons Australia
Sixth Respondent	:	Allens

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

Addy v Commissioner of Taxation [2021] HCA 34; (2021) 95 ALJR 911
Australian Maritime Systems Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2016] WASC 52
BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd [2008] FCA 551; (2008) 168 FCR 169
Birchal v Birch, Crisp & Co [1913] 2 Ch 375
Bofinger v Kingsway Group Ltd [2009] HCA 44; (2009) 239 CLR 269
Brown & Co v Watkins & Co & Blyth & Co (1885) 16 QBD 125
Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1
Clyne v Deputy Federal Commissioner of Taxation (1981) 150 CLR 1
CPB Contractors Pty Ltd v Celsus Pty Ltd [2017] FCA 1620; (2017) 353 ALR 84
Deputy Commissioner of Taxation (NSW) v Mutton (1988) 12 NSWLR 104
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
Etri Fans Ltd v NMB (UK) Ltd [1987] 2 All ER 763
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Garnett v Qantas Airways Ltd [2021] WASCA 110
Gilgandra Market Cooperative Ltd v Australian Commodities and Marketing Pty Ltd [2010] NSWSC 1209
Giumelli v Giumelli (1999) 196 CLR 101
Gould v National Provincial Bank Ltd [1960] Ch D 337
Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation, Berhad [1998] HCA 65; (1998) 196 CLR 161
Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; (2012) 200 FCR 296
Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77; (2020) 55 WAR 435
Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170; (2017) 257 FCR 442
John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1
KNM Process Systems SDN BHD v Mission NewEnergy Ltd [2014] WASC 437
KSJ v GJA [2021] WASCA 98
Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579
Lewis v Sergeant Riley [2017] NSWCA 272; (2017) 96 NSWLR 274
Lim v Comcare [2019] FCAFC 104; (2019) 165 ALD 217
Muschinski v Dodds (1985) 160 CLR 583
Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Co Inc (1994) 181 CLR 404
Pezzano v The State of Western Australia [2020] WASCA 181
Povey v Qantas Airways Ltd [2005] HCA 33; (2005) 223 CLR 189
Qantas Airways Ltd v Chief Commissioner of State Revenue [2008] NSWSC 1049
Re application of Fourth South Melbourne Building Society (1883) 9 VR (E) 54
Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13; (2019) 267 CLR 514
Shaw v Smith (1886) 18 QBD 193
Shipping Corporation of India Ltd v Gamlen Chemical Co (A/Asia) Pty Ltd [1980] HCA 51; (1980) 147 CLR 142
Spargos Mining NL v Fuller (Unreported, WASC, Library No 930273, 19 May 1993)
Stancroft Trust Ltd v Can‑Asia Capital Co (1990) 67 DLR (4th) 131
Subway Systems Australia Pty Ltd v Ireland [2014] VSCA 142; (2014) 46 VR 49
Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Tianqi Lithium Kwinana Pty Ltd v MSP Engineering Pty Ltd [No 2] [2020] WASCA 201; (2020) 56 WAR 169
Tjungarrayi v Western Australia [2019] HCA 12; (2019) 269 CLR 150
Tovir Investments Pty Ltd v Waverly Council [2014] NSWCA 379
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398
WDR Delaware Corporation v Hydrox Holdings Pty Ltd [2016] FCA 1164; (2016) 245 FCR 452
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 10] [2018] WASC 407
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 13] [2021] WASC 214
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 14] [2021] WASC 268
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 15] [2021] WASC 307

TABLE OF CONTENTS

QUINLAN CJ & BEECH JA:

Introduction

Stay Appeal: background

The claims and defences of the parties in the proceedings

WPPL's claims in WPPL proceedings

HPPL's defence to WPPL's claims

Bianca and John's defence to WPPL's claims

Rhodes' claims in Rhodes proceedings

HPPL's defence to Rhodes' claims

Bianca and John's defence to Rhodes' claims

Bianca and John's defence in the Rhodes proceedings

HPPL's stay application

Legislative provisions

The primary judge's decision staying the matters

Does Rhodes' amended reply mean that the proceedings are 'in' a matter which is the subject of an arbitration agreement?

Is Rhodes claiming 'through or under' HPPL?

Is HPPL a 'party' who can request referral to arbitration?

Was the request made not later than HPPL's first statement on the substance of the dispute?

Conclusion

Orders

Stay Appeal: grounds of appeal

Ground 2: is Rhodes claiming through or under HPPL?

Rhodes' submissions

Disposition

Ground 4: is HPPL a 'party' entitled to make a request under s 8 of the Act?

Submissions

Disposition

Ground 3: was HPPL's request made after it had made its first statement on the substance of the dispute?

Rhodes' submissions

Disposition

Ground 5: did the judge err by staying paragraphs of Rhodes' amended reply?

Rhodes' and Bianca and John's submissions

Disposition

Ground 1: did the primary judge err in finding that an arbitral matter arose from the controversy generated by [3.3.2.2] and other paragraphs of Rhodes' amended reply insofar as they rely on what was there pleaded?

Stay Appeal: leave to appeal

Stay Appeal: conclusion

Strike‑out Appeal: introduction

WPPL's pleaded claims

Bianca and John's defence in the WPPL proceedings

The primary judge's decision refusing HPPL's strike‑out application

Strike‑out Appeal: grounds of appeal

Strike‑out Appeal: HPPL's submissions

Strike-out Appeal: disposition

Strike-out Appeal: conclusion

Separate Question Appeal

Discovery Appeals: introduction

Relevant provisions of the Supreme Court Rules

The primary judge's decision ordering discovery

Discovery Appeals: grounds of appeal

Discovery Appeals: HPPL's submissions

Discovery Appeals: disposition

Discovery Appeals: conclusion

Conclusion

VAUGHAN JA:

Introduction

The statutory framework

Applicable legal principles in construing s 8(1) of the Commercial Arbitration Act

The competing constructions and the parties' contentions

Disposition

Conclusion

QUINLAN CJ & BEECH JA:

Introduction

On 15, 16 and 17 March 2022, the court heard five interlocutory appeals in two sets of proceedings: CIV 2737 of 2013, which we will refer to as the Rhodes proceedings, and CIV 3041 of 2010 consolidated with CIV 2617 of 2012, which we will refer to as the WPPL proceedings.
In CACV 60 of 2021 (the Stay Appeal), the appellants, DFD Rhodes Pty Ltd, and Matthew John Keady and Dorothea Margaret Campbell as the executors of the estate of Donovan Frances Duncan Rhodes (collectively, Rhodes), appeal against the decision by the primary judge,[1] granting a stay pursuant to s 8 of the Commercial Arbitration Act 2012 (WA) (the Act) of matters arising from certain paragraphs of Rhodes' amended reply filed 26 March 2021 (Rhodes' amended reply).
[1] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd[No 13] [2021] WASC 214 (Primary reasons).
In CACV 61 of 2021 (the Strike-out Appeal), Hancock Prospecting Pty Ltd (HPPL) and Hope Downs Iron Ore Pty Ltd (HDIO) appeal against the primary judge's refusal to strike out certain matters pleaded in the defence of the second and third respondents to that appeal, namely Bianca Hope Rinehart (Bianca) and John Langley Hancock (John). HPPL and HDIO adopt a joint position in all material respects. It will be convenient to refer to them compendiously as HPPL when outlining their case in the two primary proceedings and in the appeals. In the related appeal, CACV 90 of 2021 (the Separate Question Appeal), HPPL appeals against the primary judge's refusal, in further reasons,[2] to order a separate trial of various matters identified in HPPL's application for a separate trial.
[2] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd[No 15] [2021] WASC 307 (Separate question reasons).
In CACV 77 of 2021, HPPL appeals against the primary judge's order[3] for it to give discovery to Bianca and John in the Rhodes proceedings. In CACV 78 of 2021, HPPL brings an appeal against the corresponding order made in the WPPL proceedings. We will refer to these appeals as the Discovery Appeals.
[3] See Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 14] [2021] WASC 268 (Discovery reasons).
For the reasons that follow, apart from allowing the Stay Appeal in a very minor respect, we would dismiss all of the appeals.
We begin with the Stay Appeal.

Stay Appeal: background

The background to the Rhodes proceedings, and to the application the subject of this appeal, has been set out in detail in a number of decisions. See, for example, Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 10][4] and Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd.[5] We adopt those outlines without repeating them. Consequently, the background can be stated in an abbreviated form, drawing heavily on the primary judge's statement of the background.
[4] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 10] [2018] WASC 407 [4] ‑ [84] (First stay reasons).
[5] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77; (2020) 55 WAR 435 [47] ‑ [93] (first stay appeal reasons).
The Hope Downs Deed is a deed entered into by a number of persons, including HPPL, Mrs Georgina Hope Rinehart (Gina), Bianca, Hope Rinehart Welker (Hope) and Ginia Hope Frances Rinehart (Ginia). John entered into a further deed in April 2007 in which he adopted the Hope Downs Deed.
John, Bianca, Hope and Ginia are Gina's children (collectively, the Children).
The Hope Downs Deed purports to settle disputes about the title to various mining tenements, including what are defined in the deed as the Hope Downs tenements. Those disputes arose from claims initially made by John in around 2003.
The Hope Downs Deed provides for releases by the parties to the deed in relation to various claims and acknowledgements as to the ownership of tenements referred to as the Hope Downs tenements.[6] Clause 20 of the Hope Downs Deed provides that any disputes under the deed are to be resolved by way of confidential arbitration.
[6] The Hope Downs tenements are defined in the Hope Downs Deed so as to encompass the tenements in the Hope Downs area and the East Angelas area referred to later in these reasons.

Since entering into, or agreeing to be bound by, the Hope Downs Deed, Bianca and John have brought various court proceedings making claims concerning the conduct of Gina, HPPL and others. Those claims include claims relating to the ownership of the Hope Downs tenements. Bianca and John brought proceedings in 2014 against Gina, HPPL, HDIO and others in the Federal Court of Australia (the Federal Court proceedings). In the Federal Court proceedings, Bianca and John claimed, amongst other things, that the Hope Downs tenements were held on trust for the Children. Those claims are described as the substantive claims.[7]
[7] In addition to those substantive claims, in the Federal Court proceedings Bianca and John also challenged the validity of the Hope Downs Deed itself. Those claims were described as the validity claims.
After an appeal to the Full Court of the Federal Court[8] and the High Court,[9] the Federal Court proceedings were ultimately stayed under s 8(1) of the Commercial Arbitration Act 2010 (NSW) pending any arbitral reference between the parties or until further order.
[8] Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170; (2017) 257 FCR 442.
[9] Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13; (2019) 267 CLR 514 (Rinehart v Hancock).
The plaintiff in the WPPL proceedings, WPPL, and the plaintiffs in the Rhodes proceedings, Rhodes, are not parties to, or bound by, the Hope Downs Deed. WPPL and Rhodes claim interests in the Hope Downs tenements, or some of them. The defendants to the WPPL proceedings are HPPL, HDIO and the Children. The defendants to the Rhodes proceedings include all of those parties, with the addition of WPPL.
In addition to filing defences in these proceedings, Bianca and John brought counterclaims against Gina and others, including all of the parties to the Hope Downs Deed (counterclaims). Bianca and John made the same claims in the counterclaims as in the Federal Court proceedings.
HPPL applied for orders that all of the parties to the Rhodes proceedings and the WPPL proceedings, except the plaintiffs in each of the proceedings (WPPL and Rhodes), be referred to arbitration in respect of the defence and counterclaim of Bianca and John, and that those defences and counterclaims be stayed pursuant to s 8(1) of the Act. HPPL also sought an order that the whole of the proceedings be stayed pending the outcome of any arbitration pursuant to the court's power to control its own proceedings.
Le Miere J stayed the counterclaims against the parties to the arbitration agreement in the Hope Downs Deed pursuant to s 8(1) of the Act and stayed the counterclaims against the other parties pursuant to the court's general power to control its own proceedings. His Honour declined to stay the whole of the proceedings or the defences of Bianca and John in each proceeding.[10] This court dismissed appeals and cross‑appeals from those orders in the first stay appeal reasons.[11]
[10] First stay reasons.
[11] First stay appeal reasons.
Before the appeals to this court were heard, Rhodes filed a reply to the defence of Bianca and John on 20 September 2019. That reply was not referred to before or by this court.
After this court's dismissal of those appeals, Bianca and John amended their defence by filing their amended defence of 29 January 2021 in each of the WPPL proceedings and the Rhodes proceedings. On 21 March 2021, Bianca and John filed a further amended defence in the WPPL proceedings. In the Rhodes proceedings, Rhodes filed an amended reply to the defence of Bianca and John on 26 March 2021.
On 15 February 2021, WPPL amended its statement of claim in the WPPL proceedings by filing its sixth further amended substituted statement of claim (6FASSOC).

The claims and defences of the parties in the proceedings

We commence with a broad overview of the claims and defences of the parties in the two proceedings. In doing so, we have substantially adopted the primary judge's 'helicopter view' of the proceedings.

WPPL's claims in WPPL proceedings

WPPL and HPPL carried on business as a partnership exploring and prospecting for minerals, investing in property and other assets, mining for minerals and receiving royalties (the Partnership).
WPPL claims that the opportunity to explore and prospect for minerals and acquire tenements in the Hope Downs and East Angelas areas was a Partnership asset. Two other companies in the Hancock group, Hancock Mining Ltd (HML) and Hancock Resources Ltd (HRL), acquired exploration licences (ELs) over the Hope Downs and East Angelas areas. These are respectively called the Hope Downs ELs and the East Angelas ELs. The shares in HML and HRL (which were held by Hancock Family Memorial Foundation Ltd (HFMF)) were held on trust for HPPL, and HML and HRL held their interests in the ELs on trust for HPPL. The ELs were transferred from HRL to HPPL, via Hope Downs Ltd (HDL), another company in the Hancock Group, and then from HPPL to HDIO by a series of transactions.
The claims made by WPPL differ as between the areas covered by the Hope Downs ELs and the East Angelas ELs, respectively.
In relation to the areas covered by the Hope Downs ELs, WPPL claims it is entitled to a number of personal remedies, including damages, equitable compensation and an account of profits. In that regard, WPPL's claims arise from an agreement between WPPL and HPPL in 1987 (1987 Agreement), pursuant to which WPPL relinquished its interest in the Hope Downs area on the terms set out in the 1987 Agreement.
In relation to the areas covered by the East Angelas ELs, WPPL claims that the Partnership interest in East Angelas gives rise to a number of alternative proprietary and personal claims by WPPL against HPPL and HDIO.
WPPL's primary claim is that HDIO holds its interest in the tenements in respect of the areas covered by the East Angelas ELs as an asset of, or on trust for, the Partnership.
WPPL advances an alternative claim at 6FASSOC [53C], substantially previously pleaded in WPPL's fifth further amended substituted statement of claim (5FASSOC), that if HML did not hold the East Angelas ELs on trust for HPPL or as assets, interests, or property of, or on trust for, the Partnership, then it held them on trust for itself and for WPPL in equal shares. That 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.
It is said that HDIO is obliged to account to WPPL with respect to royalties received by HDIO from Hamersley WA Pty Ltd (Hamersley) under the Hope Downs Joint Venture, an unincorporated joint venture between members of the Hancock Group and others.
As an alternative to its claims to interests in the tenements and royalties, WPPL claims damages for breach of contract and equitable compensation for breach of fiduciary duties.

HPPL's defence to WPPL's claims

The ELs initially held by HML and HRL were held on trust for HPPL.
However, the rights held by, or on behalf of, HPPL were not a Partnership asset. HPPL was entitled to take up the opportunities resulting in its interest in the tenements and the Hope Downs Joint Venture without being obliged to offer WPPL any opportunity to participate in those activities and without any liability to pay royalties to WPPL in respect of iron ore produced from those activities.
Accordingly, HDIO does not hold its interest in the tenements as an asset of the Partnership or for WPPL, and HDIO is not required to account to WPPL with respect to royalties received by HDIO from Hamersley under the Hope Downs Joint Venture.

Bianca and John's defence to WPPL's claims

The shares in HML and HRL were not held on trust for HPPL. HML/HRL did not hold their interest in the ELs on trust for HPPL. The series of transactions referred to by WPPL in support of the allegation that the ELs held by HML and HRL were held on trust for HPPL were part of a fraudulent and dishonest design by Gina in breach of her fiduciary duties under a trust in favour of the Children (the HFMF Trust). When HRL transferred the ELs to HPPL and then HDIO, this was done in breach of Gina's fiduciary duty under the HFMF Trust and therefore HPPL and HDIO hold those ELs on constructive trust for the Children. HPPL and HDIO never held beneficial title to the tenements and therefore could not hold the tenements as a Partnership asset or on trust for the Partnership.
Alternatively, WPPL is precluded from relief by laches and acquiescence.

Rhodes' claims in Rhodes proceedings

By an agreement in 1969 between Rhodes, HPPL and WPPL, HPPL and WPPL agreed to pay Rhodes a royalty on ore produced from certain reserves (the 1969 Agreement). HPPL, WPPL and Rhodes agreed that the Hope Downs areas would fall within the 1969 Agreement. Through a chain of applications for the grant of mining tenements, the Hope Downs and East Angelas areas are included in the area comprised in mining lease 282SA (ML282SA). Through a chain of corporate ownership, HPPL and WPPL caused the interest in ML282SA to be held by HDIO. Accordingly, HDIO holds its interest in ML282SA on trust for Rhodes to the extent of Rhodes' entitlement to royalties on iron ore produced from the area the subject of the lease.
Alternatively, Rhodes is entitled to equitable compensation.
Rhodes advanced an alternative case in its reply to the defence of Bianca and John. We will refer to that reply in more detail when considering HPPL's application to stay matters in Bianca and John's defence and Rhodes' amended reply.

HPPL's defence to Rhodes' claims

HPPL admits the 1969 Agreement, but denies that HPPL, WPPL and Rhodes subsequently agreed that the Hope Downs areas would fall within the 1969 Agreement.
HPPL otherwise responds to Rhodes' claims in similar terms to its defence to WPPL's claims. HPPL denies that Rhodes is entitled to royalties or any relief.

Bianca and John's defence to Rhodes' claims

The shares in HML and HRL were not held on trust for HPPL. As HML and HRL did not hold the interests in the tenements on trust for HPPL, HDIO never obtained beneficial title to the Hope Downs tenements and does not hold those tenements subject to a trust in favour of Rhodes. As in their defence to WPPL's claim, Bianca and John plead that HPPL and HDIO hold the tenements on constructive trust for the Children.

Bianca and John's defence in the Rhodes proceedings

It is necessary to set out parts of Bianca and John's defence in more detail because it is certain paragraphs in that defence, and Rhodes' response to those paragraphs in its amended reply, which HPPL submitted, and the judge found, gave rise to matters the subject of the arbitration agreement in the Hope Downs Deed. As will be seen, Bianca and John's contentions in relation to their interests in the tenements, which are in substance mirrored in their defence in the WPPL proceedings, are also relevant to the resolution of the Strike-out Appeal in the WPPL proceedings.
In their amended defence in the Rhodes proceedings, Bianca and John plead:
5A.2[The Children] are entitled in equity to an interest in the tenements which are the subject of this proceeding set out in paragraphs 462 to 464, for the reasons set out in this defence.
At [23] of their defence, Bianca and John refer to the Hope Downs Mining Lease (ML282SA), which was granted over land which was formerly the subject of the Hope Downs ELs and East Angelas ELs, and refer to the fact that the ELs were applied for and granted variously to HPPL or HML. At the time that the ELs were granted to HML, HML was a wholly owned subsidiary of HFMF, and Zamoever Pty Ltd (Zamoever) was the sole B class member and controlling shareholder of HFMF. Bianca and John then plead:
23.1 (g) from 3 March 1989, all of the shares in Zamoever were beneficially owned by [the Children] and held on trust for them by Mr Lang Hancock [Lang] until 27 March 1992 and thereafter by [Gina] (HFMF Trust);
(h)on or about 3 August 1990:
(i)HPPL transferred to Hancock Resources Limited (then known as Pilbara Port and Railroad Company Pty Ltd) (HRL) E 47/243;
(iv)HML transferred to HRL exploration licences E 47/308, E 47/309, and E 47/427 to 431;
(i)exploration licence E 47/597 was applied for (on or about 22 April 1992) by, and granted (on or about 6 October 1992) to HRL;
(j)as of 6 October 1992, HRL:
(i)held full legal and beneficial title to each of the Hope Downs ELs and East Angelas ELs;
(v)was a wholly owned subsidiary of HFMF;
(vi)was not a subsidiary of HPPL; and
(vii)had no obligations to Rhodes, Mr D Rhodes, HPPL, WPPL, or the Partnership in respect of the Hope Downs ELs and the East Angelas ELs;
(k)in the premises, as of 6 October 1992, all the Hope Downs ELs and the East Angelas ELs were the property of the HFMF Trust, and therefore beneficially owned by the beneficiaries of the HFMF Trust, being [the Children];
(l)as part of a fraudulent and dishonest design of Gina, in breach of her fiduciary duties as trustee of the HFMF Trust, as a director or shadow director of HFMF, HRL and Zamoever, and arising from the 1988 Agreement, with the knowledge and participation of HPPL and HDL, as pleaded in paragraph 465 of this defence, caused the following transfers of the Hope Downs ELs and East Angelas ELs:
(i)on or about 30 November 1992, or alternatively 9 March 1993, transfer from HRL to Hope Downs Ltd (HDL), a subsidiary of HPPL, with the consent, knowledge, approval and or acquiescence of HPPL and HDL;
(ii)on or about 26 July 1996, transfer from HDL to HPPL, with the consent, knowledge, approval and or acquiescence of HPPL and HDL;
(iii)on or about 11 September 1997, transfer from HPPL to HDIO, with the consent, knowledge, approval and or acquiescence of HPPL and HDIO;
(m)in the premises, the Hope Downs ELs and East Angelas ELs were held on constructive trust for the beneficiaries of the HFMF Trust, being [the Children];
As can be seen, there is a certain tension within [23.1] of Bianca and John's defence. Whereas [23.1(j)] pleads that, as of 6 October 1992, HRL held 'full legal and beneficial title to each of the Hope Downs ELs and East Angelas ELs', [23.1(k)] pleads that, being the property of the HFMF Trust, those tenements were 'therefore beneficially owned by the beneficiaries of the HFMF Trust, being [the Children]'. Given that the HFMF Trust was a trust over the shares of the controlling shareholder of HFMF, which in turn was the controlling shareholder of HRL, which in turn owned the tenements, insofar as [23.1(k)] suggests that the tenements were, at that time, held on trust for the Children, that part of Bianca and John's pleading would appear, as a matter of law, to go too far. Holding a beneficial interest in the shares of a company does not, of itself, give rise to an equitable beneficial interest in the assets of the company. As at 6 October 1992, the Children (having a beneficial interest in the shares of a company, which had shares in another company, which owned the assets), were at an even further remove from the ownership of the Hope Downs ELs and East Angelas ELs. We will return to this point.
This would appear to be accepted, and reflected, in the subparagraphs that follow, and, in particular, [23.1(m)] of Bianca and John's defence, which plead the constructive trust over the Hope Downs ELs and East Angelas ELs in favour of the Children as having arisen at later points in time as a consequence of the alleged breaches of fiduciary duty by Gina. As will be seen, this understanding of Bianca and John's case is also reflected in the detailed pleas referred to at [53] to [56] below.
At [31.2], [34.2] and [37.2(a)] of their defence, Bianca and John plead that, in the premises, the beneficiaries of the HFMF Trust, being the Children, are not liable to account to, or pay damages or compensation in equity to, Rhodes in respect of their interest in ML282SA.
At [44] of their defence, Bianca and John plead in further answer to Rhodes' claims for proprietary relief that such relief is not appropriate and should not be granted because the grant of such relief would be injurious to, and/or prejudice the interests of, third parties, namely, the Children.
At [45], Bianca and John plead that HPPL does not hold proceeds received, and any further proceeds which it receives, from ML282SA on constructive trust for Rhodes to any extent because HPPL holds such proceeds on constructive trust for the beneficiaries of the HFMF Trust, being the Children.
At [47], Bianca and John plead that neither HPPL, WPPL, nor HDIO held, or hold, any interest in mining tenements in respect of the East Angelas and Hope Downs areas on trust for Rhodes to any extent because HPPL held, and HDIO now holds, those tenements on trust for the beneficiaries of the HFMF Trust and because WPPL does not hold any interest in those tenements by reason of the matters pleaded in Bianca and John's defence to the WPPL proceedings.
At [49], Bianca and John plead that Rhodes is not entitled to an equitable lien over the specified areas as against Bianca and John (who hold an equitable interest in those areas by reason of the matters pleaded in their defence) because Bianca and John are not obliged to pay any royalties to Rhodes on iron ore produced from such areas.
At [50] and [51], Bianca and John plead that HDIO does not hold its interests in ML282SA on trust for or subject to an equitable lien in favour of Rhodes because HDIO's interests in ML282SA are held on constructive trust for the beneficiaries of the HFMF Trust.
At [164] to [465], Bianca and John plead matters which they say give rise to the Children's equitable interest in the Hope Downs tenements.
Paragraph [165] sets out a summary of Bianca and John's case by summarising the matters pleaded in specified paragraphs of the defence. Paragraph [165], omitting the references to the paragraphs of the defence at which the summarised matters are pleaded, is as follows:
165.1… as at or shortly after Lang's death on 27 March 1992, HRL held exploration licences over land that would become the subject of the Hope Downs Mining Lease (the Hope Downs Tenements);
165.2HRL, at the time, was wholly owned by HFMF;
165.3… Lang had caused those exploration licences to be held as separately owned assets by HRL or, prior to its sale to BHP Minerals Limited, HML, being another subsidiary of HFMF, rather than by HPPL, in order to protect HPPL's guaranteed royalty income from the risks associated with the development of mining assets (defined below as the 'royalty income protection purpose');
165.4… on 22 June [1988], Lang and Gina entered into an agreement (the 1988 Agreement), the principal terms of which included that:
(a)Lang would continue to retain complete control over HPPL until his death;
(b)Lang would establish a trust (the HMH Trust) to which he would transfer, by way of gift, the 33.3% shareholding in HPPL left to him by his late wife, Hope Margaret Hancock (HMH) in her will, of which 17.7% would be held for Gina absolutely on Lang's death, and the remaining 15.6% would be held for Bianca, John, Hope and Ginia in equal shares absolutely when Ginia turned 25;
(c)Lang would sell the remaining one third of the ordinary and cumulative special shares in HPPL held by him to HFMF;
(d)on Lang's death, Gina would have a total holding of 51.0% of the ordinary and special cumulative shares in HPPL, while the entitlement of Bianca, John, Hope and Ginia when Ginia turned 25 would be 15.6% of the ordinary and cumulative special shares in HPPL held by the HMH Trust and absolute control over HFMF, including control over the 33.3% of ordinary and special cumulative HPPL shares held by HFMF (a total of 49.0% of HPPL's shares); and
(e)Gina would abandon claims that she had against Lang, including allegations she had previously made, as pleaded at paragraph 209 of this defence, and including for any alleged breaches of his fiduciary duties as a director of HPPL in placing mining assets in HFMF or its subsidiaries rather than HPPL;
165.5… during Lang's lifetime each of Gina and HPPL knew of, acquiesced in and agreed to:
(a)the fact that the 1988 Agreement was legally binding on Lang, Gina and HPPL; and
(b)HRL and/or HML's ownership of mining assets pursuant to the royalty income protection purpose;
165.6… as a result of the 1988 Agreement, Gina owed fiduciary obligations to Bianca, John, Hope and Ginia in relation to the interests in mining assets conferred upon them through the 1988 Agreement …;
165.7... through making the 1988 Agreement, Lang established a trust, the principal asset of which was the right to control HFMF and its assets (the HFMF Trust), and the beneficiaries of which were Bianca, John, Hope and Ginia, which trust Lang formally gave effect to through:
(a)causing Zamoever to become the controlling member of HFMF; and
(b)by a deed made in March 1992 (the 1992 Deed), declaring a trust in favour of Bianca, John, Hope and Ginia over the shares he held in Zamoever;
165.8… on Lang's death, Gina became the trustee of the HFMF Trust;
165.9… between 27 March 1992, when Lang died, and 20 February 1996, Gina, with the knowledge and assistance of HPPL, undertook a series of steps to obtain interests in assets other than those provided to her through the 1988 Agreement and to take those assets away from her children. Those steps included:
(a)causing HPPL to make a claim that HRL held its interests in some of the Hope Downs Tenements on constructive trust for HPPL, on the basis (known by Gina and HPPL to be without foundation and false) that Lang had breached his fiduciary duties to HPPL by placing those tenements with HRL rather than HPPL (the Constructive Trust claim);
(b)causing HPPL to make that claim despite the fact that any such claim had been compromised and released through the 1988 Agreement;
(c)causing HRL to transfer the Hope Downs Tenements to HDL, purportedly to be held on trust for whichever of HPPL or HRL were found to be the beneficial owner of the Hope Downs Tenements;
(d)causing HFMF and HPPL to agree to a transaction referred to as the Debt Reconstruction, the effect of which was that HPPL was able to buy back the shares held in it by HFMF for effectively no consideration;
(e)causing HFMF and HRL to agree to a Deed of Acknowledgement and Release (the 1995 Deed relied on by the plaintiff), as part of the Debt Reconstruction transaction, by which HFMF and HRL purported to acknowledge, falsely and contrary to Gina and HPPL's acceptance of the royalty income protection purpose, that HFMF had held shares in HML and HRL on trust for HPPL;
(f)causing HRL to agree to a Deed of Compromise of Litigation with HPPL and HDL (the 1996 Deed relied on by the plaintiff) to compromise the Constructive Trust claim, by which HRL purported to acknowledge that it did not have any beneficial interest in the Hope Downs Tenements, in circumstances where Gina knew the Constructive Trust claim was without foundation and false and in circumstances where Gina was aware that HRL was without fully informed, independent legal advice in relation to the Constructive Trust claim;
165.10… as a consequence of the steps summarised in paragraph 165.9:
(a)title to the Hope Downs Tenements passed to HPPL;
(b)HPPL transferred title to the Hope Downs Tenements to HDIO;
(c)HDIO obtained the Hope Downs Mining Lease;
(d)HDIO entered into the Hope Downs Joint Venture with Hamersley WA; and
(e)HDIO has thereafter received and continues to receive royalties in respect of iron ore produced and sold by Hamersley WA from the area the subject of the Hope Downs Tenements;
165.11… HPPL and HDIO received their title to and interest in the assets referred to in paragraph 165.10 of this defence (the Hope Downs Assets), knowing that those assets;
(a)had been the subject of the HFMF Trust; and/or
(b)had been removed from the HFMF Trust and/or otherwise transferred to HPPL in breach of Gina's fiduciary duties:
A.as trustee of the HFMF Trust;
B.as a director or shadow director of HFMF, HRL and Zamoever; and/or
C.pursuant to the 1988 Agreement;
165.12… in the premises of the matters summarised in paragraph 165.11, each of HDL and HPPL held, and HDIO held and continues to hold, their respective interests in the Hope Downs Assets on constructive trust for Bianca, John, Hope and Ginia.

Paragraphs [166] to [461] of Bianca and John's defence then set out, in detail, their case as to these allegations, culminating in the following pleas:
462By reason of the matters set out in paragraphs 166 to 455 of this defence:
462.1in engaging in the course of conduct referred to at paragraph 461 of this defence, Gina breached her fiduciary duties:
(a)as trustee of the HFMF Trust;
(b)as a director or shadow director of HFMF, HRL and Zamoever; and/or
(c)arising from the 1988 Agreement pleaded in Section 12(E) of this defence;
462.2each of HPPL and HDL:
(a)was knowingly involved in Gina's breaches of fiduciary duty;
(b)participated in a fraudulent and dishonest design, together with Gina, for the purposes of conferring a benefit on HPPL, being full legal and beneficial title to the Hope Downs Tenements; and/or
(c)received legal title to the Hope Downs Tenements knowing of the breaches of fiduciary duty by Gina and/or knowing that the Hope Downs Tenements formed part of the HFMF Trust.
463By virtue of the fact that Gina is, and was at all material times, a director and the controlling mind of HDIO, HDIO received legal title to the Hope Downs Tenements knowing of the breaches of fiduciary duty by Gina and/or knowing that the Hope Downs Tenements formed part of the HFMF Trust.
464In the premises:
464.1HDL, from 30 November 1992, or alternatively 9 March 1993, until 26 July 1996, held the Hope Downs Tenements constructive trust for the beneficiaries of the HFMF Trust;
464.2HPPL, from 26 July 1996 until 11 September 1997, held the Hope Downs Tenements on constructive trust for the beneficiaries of the HFMF Trust; and
464.3HDIO holds, and has held since 11 September 1997, the Hope Downs Assets (including the Hope Downs Mining Lease), and HPPL holds any income received in respect of the Hope Downs Assets, on constructive trust for the beneficiaries of the HFMF Trust.
465Further, in the premises of paragraph 462 of this defence, each of:
465.1the transfer Deed, transfer of bare legal title over the Hope Downs Tenements to HDL, and subsequent transfer of the Hope Downs Tenements from HDL to HPPL and from HPPL to HDIO;
465.2the Constructive Trust claim;
465.3the 1995 Deed; and
465.4the 1996 Deed,
does not provide any support for the contention that the Hope Downs Tenements were held by HML or HRL on trust for HPPL, but rather was part of Gina's fraudulent and dishonest design, with the knowledge and participation of HPPL and HDL, in breach of her fiduciary duties as trustee of the HFMF Trust, as a director or shadow director of HFMF, HRL and Zamoever, and arising from the 1988 Agreement as pleaded in paragraph 462 of this defence.
As can be seen, consistent with [23.1(m)] of Bianca and John's defence, by [464] of Bianca and John's defence the alleged constructive trust over the Hope Downs ELs and East Angelas ELs in favour of the Children is pleaded as having arisen upon the transfer of the tenements, as a consequence of the alleged breaches of fiduciary duty by Gina.

Claims in several paragraphs of Rhodes' amended reply form the foundation of HPPL's contention, and the primary judge's conclusion, that those paragraphs, together with the paragraphs of Bianca and John's defence to which they respond, give rise to matters the subject of the arbitration agreement in the Hope Downs Deed.
At [3.3] of its amended reply, Rhodes denies, inter alia, [23.1(h), (i), (j) and (k)] of Bianca and John's defence, including the plea that as at 6 October 1992, HRL held full legal and beneficial title to each of the Hope Downs ELs and East Angelas ELs and had no obligations to Rhodes, HPPL, WPPL, or the Partnership in respect of those tenements.
At [3.3.1] of its amended reply, Rhodes pleads further:
(a)at [3.3.1.1] that, at all relevant times, the Hope Downs ELs and the East Angelas ELs were held by HML, HRL and HDL on trust for HPPL and WPPL; and
(b)at [3.3.1.2] alternatively, that the tenements were held on trust for HPPL to be dealt with in accordance with the rights of HPPL and WPPL, including HPPL and WPPL's royalty entitlements, and subject to the rights of Rhodes.
To this point in Rhodes' amended reply, HPPL does not contend on appeal that the reply gives rise to matters the subject of the arbitration agreement in the Hope Downs Deed. That contention is made in relation to the paragraphs of the amended reply that follow.
At [3.3.2], Rhodes pleads an alternative to its plea (in [3.3.1]) that the tenements were at all times held on trust for HPPL and/or HPPL and WPPL, subject to the rights of Rhodes. Rhodes pleads that, if Lang Hancock (Lang) and/or HPPL caused the acquisition, transfer or gift of the beneficial interest in the Hope Downs ELs and the East Angelas ELs, such that the interest was held other than for HPPL and/or HPPL and WPPL (the Alleged Transmission Away), then the Alleged Transmission Away was:
(a)a breach of Lang's fiduciary, equitable and statutory duties owed to HPPL (Rhodes' amended reply [3.3.2.1]); and/or
(b)a breach of HPPL's fiduciary duty to WPPL (Rhodes' amended reply [3.3.2.2]).
Rhodes pleads that the breaches of duty prevented the Alleged Transmission Away being effective in equity or rendered the Alleged Transmission Away liable to be set aside in equity at the instance of HPPL and/or WPPL (Rhodes' amended reply [3.3.2.3]). By reason of those breaches of duty, of which HML, HRL and HDL had the requisite knowledge, the Hope Downs ELs and East Angelas ELs were held on constructive trust by HML, HRL, and then HDL for HPPL and/or for HPPL and WPPL, as pleaded in [3.3.1] (Rhodes' amended reply [3.3.2.4]).
At [3.4] of its amended reply, Rhodes denies [23.1(l), (m) and (n)] of Bianca and John's defence, namely Bianca and John's plea that HDIO's interest in the Hope Downs Mining Lease is held on constructive trust for the Children as beneficiaries of the HFMF Trust.
At [3.4.2] to [3.4.5] of its amended reply, Rhodes pleads, alternatively, that:
(a)Gina did not breach any fiduciary duties as alleged by Bianca and John, as the Hope Downs ELs and the East Angelas ELs were never assets of the HFMF Trust (by reason of breaches of fiduciary and other duties by Lang and/or HPPL), and accordingly, on such transfer or retransfer, equity would not impose a constructive trust over the Hope Downs ELs and East Angelas ELs in favour of the Children;
(b)if Gina caused the beneficial interest in the ELs to be transferred to HPPL or its subsidiaries, the effect of the breach of Lang's and/or HPPL's fiduciary duties was undone and the correct position in equity was re‑established - that is, the beneficial interest in the Hope Downs ELs and the East Angelas ELs held by HPPL and WPPL was subject to the rights of WPPL and subject to, or in conformity with, the rights of Rhodes.
At [3.4.6] to [3.4.19], Rhodes pleads facts and circumstances leading to the plea that if the Hope Downs ELs and the East Angelas ELs were not at all material times held on trust for HPPL and WPPL, or on trust for HPPL to be dealt with in accordance with the rights of HPPL and WPPL, then by events in 1994 and 1995, which Bianca and John refer to as the Debt Reconstruction, HPPL:
3.4.19.1 acquired, or re‑acquired, the Hope Downs ELs and the East Angelas ELs from HRL and HFMF in a bona fide transaction for value, and those tenements were held on trust [for HPPL and WPPL or alternatively for HPPL to be dealt with in accordance with the rights of HPPL and WPPL];
3.4.19.2 was not knowingly concerned in any breaches of trust or fiduciary duty by Gina (which breaches are denied);
3.4.19.3 did not participate or assist in a fraudulent and dishonest design, together with [Gina] (which design is denied), for the purpose of obtaining the Hope Downs ELs and the East Angelas ELs;
3.4.19.4 did not receive title to or a beneficial interest in the Hope Downs ELs and the East Angelas ELs knowing of any breaches of trust or fiduciary duty by [Gina], HRL and/or HFMF (which breaches are denied).
At [3.5], in further answer to the allegations in Bianca and John's defence that HDIO's interests in ML282SA and any proceeds received by HPPL from ML282SA (HPPL's proceeds) are held on constructive trust for the Children, Rhodes pleads that a court of equity would not hold HDIO's interests in ML282SA and/or HPPL's proceeds to be held on constructive trust because Bianca and John (and/or the Children):
(a)do not come to court with clean hands because the alleged trust is based on breaches of fiduciary duty and other duties owed by Lang and/or HPPL [3.5.1];
(b)have failed to do equity by not offering to accord priority to Rhodes' claims in relation to ML282SA and/or HPPL's proceeds [3.5.2]; and
(c)have been guilty of laches and acquiescence, and would thereby be prevented from holding such an interest in ML282SA and/or HPPL's proceeds or from holding such an interest in priority to the interests of Rhodes and WPPL [3.5.3].
At [3.5.4], Rhodes pleads that Bianca and John (and/or the Children) are prevented from holding or obtaining an interest in ML282SA by the provisions of the Limitation Act 1935 (WA) or the equitable doctrine of laches.
At [3.5.6], Rhodes pleads, alternatively, that if the Children did obtain any equitable interest in ML282SA and/or HPPL's proceeds, the claimed interest would be burdened by Rhodes' royalty entitlements and would rank behind any constructive trust available to Rhodes to secure such royalty entitlements.
At [3.5.7], Rhodes pleads, alternatively, that if the Children could otherwise establish an equitable interest in ML282SA and/or HPPL's proceeds, then the court would nonetheless refuse to exercise its discretion to hold that the Children would be entitled to a constructive trust, in relation to HDIO's interest in ML282SA and/or HPPL's proceeds, capable of operating as a defence to Rhodes' claims.
At [4] and [5] of its amended reply, in answer to the defences of Ginia and Hope, Rhodes repeats its pleadings in [3].

HPPL's stay application

By chamber summons of 29 March 2021, amended on 7 April 2021 and further amended on 13 April 2021, filed in the Rhodes proceedings, HPPL sought a stay of certain matters arising from paragraphs in Bianca and John's amended defence and the response to those paragraphs in Rhodes' amended reply, contending that they are matters the subject of the arbitration agreement in the Hope Downs Deed and that, by its amended reply, Rhodes was a party to the deed because it claimed through or under HPPL.
Relevantly, the further amended chamber summons of 13 April 2021 sought an order pursuant to s 8(1) of the Act that there be a stay of the following matter, or matters arising from:
(a)matters described as the Arbitration Dispute Matters[12] or alternatively the Non‑Responsive Matters;[13] and
(b)paragraphs 3.2 to 5 of Rhodes' amended reply.
[12] Arbitration Dispute Matters was defined to mean the following paragraphs of the amended defence:
i.5A.2, 23.1(g), 23.1(k) - 23.1(n), 31.2 (the words 'the beneficiaries of the HFMF Trust'), 37.2(a) (the words 'the beneficiaries of the HFMF Trust'), 37.2(b), 44, 45, 47, 49 (the words in the parentheses), 50, 51 and 164 to 465 inclusive;
ii.23.1(e), 23.1(i), 31.2, 34.2, 37.2(a), 37.3, 46, 48 and 49 inclusive; and
iii.Any other paragraphs of the Amended Defence which rely upon the matters the subject of (i) and (ii) above, but only to the extent those paragraphs so rely[.]
[13] Non-Responsive Matters was defined to mean the following paragraphs of the amended defence:
i.5A.2, 23.1(g), 23.1(k) ‑ 23.1(n), 31.2 (the words 'the beneficiaries of the HFMF Trust'), 34.2 (the words 'the beneficiaries of the HFMF Trust'), 37.2(a) (the words 'the beneficiaries of the HFMF Trust'), 37.2(b), 44, 45, 47, 49 (the words in the parentheses), 50, 51, 165.6 ‑ 165.12, 166.3, 167.3, 168.2(c) and (d), 169.2(c) and (d), 171.4, 171.5, 171.8, 171.9, 171.10, 171.13, 174, 175.4, 178.3, 178.4, 179.10, 180, 226 to 228, 230, 232 ‑ 245, 250 ‑ 260, 265 ‑ 267, 268 ‑ 276, 277 ‑ 280, 294, 295.3, 297 ‑ 300, 301 (the words 'and which gave rise to a trust …' to the end), 302 (the words 'and gave rise to a trust …' to the end), 305 - 309, 313, 315 ‑ 341, 342 ‑ 343, 344 ‑ 345, 348 ‑ 349, 351 ‑ 352, 354 ‑ 363, 364 ‑ 365, 366 ‑ 370, 371 ‑ 375, 376 - 379, 380, 381, 382 , 383, 384 ‑ 397, 398, 399 ‑ 424, 425 ‑ 426, 427 ‑ 451, 452 ‑ 453, 455.4, and 461 ‑ 465 inclusive;
ii.23.1(e), 23.1(j), 31.2, 34.2, 37.2(a), 37.3, 46, 48, 49, 165, 170.6, 179, 195 ‑ 225, 229, 230, 247, 249, 263, 264, 281 ‑ 293, 295, 296, 301 ‑ 303 and 310 ‑ 312 inclusive; and
iii.any other paragraphs of the amended defence which rely upon the matters the subject of (i) and (ii) above, but only to the extent those paragraphs so rely.

Legislative provisions

Section 8 of the Act provides as follows:
8. Arbitration agreement and substantive claim before court (cf. Model Law Art 8)
(1)A court before which an action is brought in a matter which is the subject of an arbitration agreement must, if a party so requests not later than when submitting the party's first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.
(2)Where an action referred to in subsection (1) has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.
Section 2(1) of the Act defines 'party' in the following terms:
party means a party to an arbitration agreement and includes -
(a)any person claiming through or under a party to the arbitration agreement; and
(b)in any case where an arbitration does not involve all of the parties to the arbitration agreement, those parties to the arbitration agreement who are parties to the arbitration[.]

The primary judge's decision staying the matters

The primary judge identified that s 8(1) of the Act has four elements:
(a)an action is brought in a matter which is the subject of an arbitration agreement;
(b)a party requests that the court refer the parties to arbitration;
(c)the party makes the request not later than when submitting the party's first statement on the substance of the dispute; and
(d)the arbitration agreement is not null and void, inoperative or incapable of being performed.
When all four elements exist, the court must refer the parties to arbitration.
It was common ground that the fourth element existed. The other three elements were in issue before the primary judge and are in issue on appeal.

Does Rhodes' amended reply mean that the proceedings are 'in' a matter which is the subject of an arbitration agreement?

The primary judge commenced analysis with the first element. His Honour considered whether Rhodes' amended reply meant that the proceedings were in a matter which is the subject of the arbitration agreement. The judge recorded HPPL's submission that Rhodes' amended reply gave rise to three matters the subject of the arbitration agreement. The judge accepted HPPL's contention in relation to the first two matters, but not the third. Consequently, the primary judge did not stay the matters arising from [3.5] of Rhodes' amended reply. Although HPPL filed a cross‑appeal against that decision, it abandoned the cross-appeal prior to the hearing of the appeal.
The first matter which is the subject of the arbitration agreement is the capacity in which HML and HRL acquired and held the tenements before they were transferred to HDL in 1992. In that regard, the judge recorded that:[14]
Rhodes contends that the acquisition of the tenements by HML and HRL, then subsidiaries of HFMF, was in breach of Lang's fiduciary and other duties owed to HPPL[15] and had the consequence that HML and HRL held the tenements on constructive trust for HPPL.[16] Rhodes contends that Gina did not breach any fiduciary duties as alleged by Bianca and John as part of the Arbitration Dispute Matters because the tenements never formed part of the property of the HFMF Trust or, in transferring the tenements to HPPL, Gina was undoing the improper transfer of assets that had occurred at the direction of Lang.[17]
[14] Primary reasons [90].
[15] Rhodes' amended reply [3.3.2.1].
[16] Rhodes' amended reply [3.3.2.3], [3.3.2.4], [4.1], [4.2], [5.1], [5.2].
[17] Rhodes' amended reply [3.4.1] ‑ [3.4.5], [4.1], [4.2], [5.1], [5.2].
The second matter which is the subject of the arbitration agreement concerned the transfer of the tenements to HDL, HPPL and HDIO. In that regard, the judge observed:[18]
Rhodes contends that if HML and HRL held the beneficial interest in the tenements, those tenements were validly transferred to HPPL, and all claims to the tenements validly relinquished by HRL and HFMF either because of the breach of fiduciary duty by Lang or as a result of bona fide transactions for value as part of the debt reconstruction transactions in which HPPL provided funds to, and forgave debts of, HRL and/or HFMF in exchange for the tenements, saving HRL and HFMF from insolvency.[19]
[18] Primary reasons [91].
[19] Rhodes' amended reply [3.4.6] ‑ [3.4.19], [4.1], [4.2], [5.1], [5.2].
The judge found that the disputes between Rhodes, on one hand, and Bianca and John, on the other, arising from the parts of Rhodes' amended reply to which his Honour referred, concerned subject matters that are the subject of the arbitration agreement between the parties to the Hope Downs Deed. Consequently, the primary judge found, those controversies or bodies of differences are the subject of the arbitration agreements if Rhodes is a party to the arbitration agreement. Whether that is so would depend upon whether, in advancing the relevant contentions in its amended reply, Rhodes was claiming through or under HPPL.[20]
[20] Primary reasons [93].
None of the primary judge's conclusions set out in [78] to [80] above are challenged on appeal.

Is Rhodes claiming 'through or under' HPPL?

The primary judge then turned to the question of whether Rhodes was claiming through or under HPPL.
The judge gave close attention to the decision of the High Court in Rinehart v Hancock Prospecting Pty Ltd.[21] His Honour concluded that the plurality stated that the relevant test is whether an essential element of the defence is vested in, or exercisable by, a party to the arbitration agreement. Consequently, the judge rejected Rhodes' submission that there needed to be a relationship of proximity between a person said to be claiming through or under a party to the arbitration agreement and the signatory party.[22] Applying the test he had identified, the primary judge found that an essential element of Rhodes' claim in answer to Bianca and John's defence is vested in, or exercisable by, a party to the arbitration agreement; namely, HPPL.
[21] Rinehart v Hancock.
[22] Primary reasons [114].
The primary judge concluded that the controversies arising from Rhodes' amended reply at [3.3.2] and [3.4], and [4] and [5] insofar as they rely on the matters pleaded in [3.3.2] and [3.4], are matters in respect of which Rhodes claimed through or under HPPL and are susceptible of resolution by the arbitration agreement.[23]
[23] Primary reasons [116].
Rhodes challenges these conclusions by grounds 1 and 2 of its appeal.

Is HPPL a 'party' who can request referral to arbitration?

The primary judge then turned to the question of the identity of the party requesting the referral to arbitration, recognising that, in the present case, the request was made by HPPL.
Rhodes submitted to the primary judge, and submits on appeal, that in s 8(1) of the Act, the phrase 'a party [who] so requests' refers to a party to the matter in the arbitration agreement in respect of which the action is brought.

After outlining the competing constructions advanced by the parties, the primary judge observed that he did not discern from the text of the Act an intention that the word 'party' in the phrase 'if a party so requests' bears a different or narrower meaning than that defined by its terms read with the statutory definition in s 2(1) of the Act. His Honour did not consider that there was a necessary implication that the requesting party must be a party to 'the matter'.[24]
[24] Primary reasons [126].
The judge concluded that there was no sufficient reason for displacing the statutory definition of 'party' in the phrase 'a party [who] so requests' in s 8(1) of the Act. Any party to the arbitration agreement who is a party to the action brought in a matter that is the subject of the arbitration agreement may, the judge concluded, request the court to refer the parties, including any person claiming through or under a party to the arbitration agreement, to arbitration.[25]
[25] Primary reasons [133].
Ground 4 challenges this conclusion.

Was the request made not later than HPPL's first statement on the substance of the dispute?

The primary judge then turned to the requirement that a party who requests that the court refer the parties to arbitration must make the request 'not later than when submitting the party's first statement on the substance of the dispute'.
Rhodes submitted to the primary judge that HPPL had made three statements on the substance of the dispute prior to requesting the referral to arbitration, namely:
(a)HPPL's defence filed 14 February 2020;
(b)HPPL's amended chamber summons filed 10 May 2018 seeking an order that Rhodes and other parties be referred to arbitration in respect of the defence and counterclaim of Bianca and John; and
(c)HPPL's participation in directions hearings, most recently on 13 December 2020.
The judge construed s 8 of the Act to mean that the reference to 'the dispute' in the phrase 'first statement on the substance of the dispute' was a reference to the dispute constituting the matter which is the subject of an arbitration agreement.[26] That conclusion is not challenged on appeal.
[26] Primary reasons [136].
The judge identified that the matter the subject of an arbitration agreement in respect of which HPPL requests that Bianca and John and Rhodes be referred to arbitration is not the whole matter in controversy in the action. Rather, the matter which HPPL requests be referred to arbitration is the controversy constituted by the Arbitration Dispute Matters and Rhodes' response to those matters in its amended reply.
The judge proceeded to explain why none of the steps to which Rhodes pointed, listed at [92], involved making a statement on the substance of the dispute as so understood.
HPPL's defence (filed 14 February 2020) to Rhodes' statement of claim did not give rise to the dispute constituted by the arbitral matter raised by the pleading in Bianca and John's defence and Rhodes' amended reply.[27] The filing of a chamber summons seeking an order that Rhodes and other parties be referred to arbitration was not making a statement on the subject of the dispute.[28] Nothing said by HPPL in a directions hearing, including the directions hearing on 13 December 2020, was a statement on the substance of the dispute, as distinct from submissions about the process and procedure which the court should follow in managing the action.[29]
[27] Primary reasons [138].
[28] Primary reasons [139].
[29] Primary reasons [140].
Consequently, the primary judge found that HPPL had made its request to refer Bianca and John and Rhodes to arbitration not later than when submitting its first statement on the substance of the dispute and that, in fact, HPPL had not yet submitted any such statement.[30]
[30] Primary reasons [141].
This conclusion is challenged by ground 3.

Conclusion

The primary judge concluded that the court was obliged to refer Bianca and John and Rhodes to arbitration and, to give effect to that obligation, to stay the relevant matter. The judge recognised the need for a symmetry between the extent of the referral under s 8 of the Act and the extent of the stay to give effect to that referral, applying this court's reasons in the first stay appeal reasons. His Honour considered that there should be no stay of Rhodes' statement of claim or Bianca and John's defence to Rhodes' statement of claim. However, the judge said that the matter constituted by Rhodes' amended reply in [3.3.2] and [3.4], and [4] and [5] to the extent to which those paragraphs rely upon the allegations in [3.3.2] and [3.4], are claims made by Rhodes through or under a party to the arbitration agreement in the Hope Downs Deed, such that the parties to that matter - Rhodes and Bianca and John - must be referred to arbitration and that matter - that is, the controversy raised by those paragraphs of Rhodes' amended reply - must be stayed.[31]

Orders

[31] Primary reasons [151].

Consequently, on 2 July 2021, the primary judge made an order in the following terms:
Pursuant to s 8(1) of the Commercial Arbitration Act 2012 (WA), the proceedings be stayed to the extent that they concern the matters in [3.3.2], [3.4] and [4] and [5] (to the extent [4] and [5] rely on the upon the allegations in [3.3.2] and [3.4]) of the plaintiffs Amended Reply in the Original Action (to the fourth and fifth defendants defence, the sixth defendants defence and the seventh defendants defence) filed 26 March 2021.

Stay Appeal: grounds of appeal

At the hearing of the appeal, Rhodes moved for leave to amend grounds 1 and 5. Leave was granted to amend ground 1 and the question of leave to amend ground 5 was reserved. If leave is granted to amend ground 5, the grounds would be in the following terms:
1The primary judge erred in law at J[115]-[116] in finding that an essential element of the claim of Rhodes in its amended reply at
a)[3.3.2.2], and
b)[3.3.2.3]-[3.4.5] and [4] and [5] insofar as they rely on the matters pleaded in [3.3.2.2],
is vested in or exercisable by HPPL.
2.The primary judge erred in law at J[114] in:
a)finding that the test for whether a person is claiming 'through or under' a party to an arbitration agreement does not require consideration of whether a relationship of proximity exists between that person and the signatory party to the arbitration agreement; and
b)failing to find that because a relationship of sufficient proximity did not exist between Rhodes and HPPL, Rhodes was not a party claiming through or under HPPL.
3.The primary judge erred in law at J[138]-[141] in finding that HPPL has not yet submitted a 'first statement on the substance of the dispute' because HPPL had made such a statement:
a)filing its defence to Rhodes' third further amended substituted statement of claim on 14 February 2020 and otherwise making submissions to the court and the Court of Appeal to the substantive effect that at all times HPPL owned the relevant tenements and denies the claims of Rhodes and Ms Rinehart and Mr Hancock;
b)alternatively, applying to the court in 2017 and 2018 for orders that the proceedings (including the matters between Rhodes and the fourth and fifth respondents which the primary judge found were the subject of the arbitration agreement) be stayed pursuant to the court's inherent jurisdiction, and not pursuant to s 8(1) of the Commercial Arbitration Act 2012 (WA);
c)further or alternatively, making oral submissions to the court, including by way of example, to the Court of Appeal on 18 November 2019 to the effect that Rhodes is not a party to the arbitration agreement on the basis that it is claiming 'through or under' any party to the arbitration agreement.
4.The primary judge erred in law at J[126] in failing to find that the party who requests a referral to arbitration must be one of the parties to the relevant 'matter' the subject of the arbitration agreement.
5.The primary judge erred in law at J[4(a)], [151] in finding that paragraphs of Rhodes' amended reply could be the subject of a stay because:
a)there is no notion in law of staying a 'reply' or the right to raise such matters by way of answer to a defendant's positive case as may be available;
b)Rhodes in raising these paragraphs by way of reply was not bringing 'an action' in a matter the subject of an arbitration agreement within the meaning of section 8(1) of the Commercial Arbitration Act 2012 (WA);
c)a stay of the paragraphs of Rhodes' amended reply could not be a means of effecting a referral of Rhodes and the fourth and fifth defendants to arbitration as Rhodes in the amended reply is giving reasons why the defence is not sustainable and does not seek any relief against the fourth and fifth defendants; and/or
d)if and to the extent that the stay operates to prevent the fourth and fifth defendants from advancing matters in their amended defence to Rhodes' claim and Rhodes' implied joinder thereto, that is contrary to what his Honour held at J[151] and contrary to the decision in Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd (2020) 55 WAR 435 at [208]-[225] to the effect that there is no notion in law of 'staying' a defence.
As can be seen, ground 2 concerns whether, by reason of the relevant paragraphs of its amended reply, Rhodes is claiming 'through or under' HPPL and is thereby a party to the arbitration agreement in the Hope Downs Deed for the purposes of the Act. Ground 4 concerns whether HPPL is a party entitled to make a request under s 8 of the Act. Ground 3 relates to whether, if HPPL were such a party, it made its request before it had submitted its 'first statement on the substance of the dispute'. Ground 5 concerns whether the primary judge erred by staying a reply. Ground 1, as amended, concerns the precise terms of the order and whether, in including specific sub-sub-sub-paragraphs of Rhodes' amended reply in the order, the judge erred.
It is convenient to deal with the grounds in this order.

Ground 2: is Rhodes claiming through or under HPPL?

By ground 2, Rhodes contends that the primary judge erred in:
(a)finding that the test for whether a person is claiming 'through or under' a party to an arbitration agreement does not require consideration of whether a relationship exists between that person and the signatory party to the arbitration agreement; and
(b)failing to find that, because a relationship of sufficient proximity did not exist between Rhodes and HPPL, Rhodes was not a party claiming through or under HPPL.

Rhodes' submissions

Rhodes' submissions may be summarised as follows:
(a)For a person to be claiming 'through or under' a party to an arbitration agreement, there will usually be a relationship of sufficient proximity between the claimant and the party to the agreement.[32] The relationship between the claimant and the party must be an essential ingredient of the claim and that relationship must be relevant to the claim.[33]
(b)The statutory purpose of s 8 of the Act is to require those who have agreed to submit their disputes to arbitration to be held to their bargain. This purpose is not facilitated by requiring strangers to the agreement to participate in an arbitration simply because they raise the same or similar factual issues in their claim.[34] This is supported by various examples of situations which have been held to involve a claim made through or under another party.
(c)The decision of the High Court in Rinehart v Hancock involved an application of the through or under test to the particular controversy before the High Court. The court did not make general statements regarding third party claims. The judge erred by treating one aspect of the High Court's judgment as a rigid proposition of law.[35]
[32] Rhodes' submissions [31], citing BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd [2008] FCA 551; (2008) 168 FCR 169 [15]; KNM Process Systems SDN BHD v Mission NewEnergy Ltd [2014] WASC 437 [45] ‑ [46].
[33] Rhodes' submissions [31], citing BHPB Freight [14].
[34] Rhodes' submissions [32].
[35] Rhodes' submissions [35].
In oral submissions, Rhodes sought to refine the contention underpinning ground 2. It submits that what is required is a proximity between the person said to be claiming through or under and the arbitration agreement in question.[36]

Disposition

[36] Appeal ts 33.

We reject ground 2 and Rhodes' submissions in support of it. We do so essentially for the reasons given by the primary judge. In short, rejection of the ground is compelled by the High Court's decision in Rinehart v Hancock.
In Rinehart v Hancock, the majority held that a party claims 'through or under' another when an essential element of the first party's claim or defence is a right or interest vested in, or exercisable by, a signatory to the arbitration agreement.[37]
[37] Rinehart v Hancock [66].
The majority gave, as an example of when that is so, a case where an alleged knowing recipient of trust property invokes, as a defence to the claim, the contention that the trustee was beneficially entitled to the subject property. In such circumstances, the alleged knowing recipient would be claiming through or under the trustee.[38]
[38] Rinehart v Hancock [66].
Similarly, where an assignee of mining tenements is alleged to have taken the assignment with knowledge that the tenements were held by the assignor on trust and assigned to the assignee in breach of trust, and where the assignee contests that claim on the ground that there was no breach of trust, or, if there were, then, by reason of a deed of settlement, the assignor is absolved of responsibility for the breach of trust, then 'the assignee takes its stand upon a ground which is available to the assignor and stands in the same position vis-à-vis the claimant as the assignor'.[39] Consequently, the claim must be determined as between the claimant and the assignee in the same way as it will be determined between the claimant and the assignor.[40]
[39] Rinehart v Hancock [73].
[40] Rinehart v Hancock [73].
This reasoning is inconsistent with any requirement of 'proximity' of the type suggested by Rhodes. The focus is on the nature and source of the claims and defences of the person said to be claiming through or under a signatory to the arbitration agreement, not on the relationship between the two parties or on the relationship of the first person to the arbitration agreement.
The judge correctly identified the test stated in Rinehart v Hancock - namely, whether an essential element of the claim or defence is vested in, or exercisable by, a party to the arbitration agreement. Save for the limited extent identified in ground 1 (see [176] to [182] below), the paragraphs of Rhodes' amended reply referred to by his Honour in the order for a stay include, as an essential element of Rhodes' response to Bianca and John's defence, a right or interest vested in, or exercisable by, signatories to the arbitration agreement (including HPPL and Gina). In particular:
(a)by [3.3.2.1] (together with [3.3.2.3] and [3.3.2.4]) of its amended reply, Rhodes takes its stand on a ground which is available to HPPL;
(b)by [3.4.2] to [3.4.19] of its amended reply, Rhodes takes its stand on a ground which is available to Gina, HFMF, HPPL and HRL.
For these reasons, by those paragraphs of Rhodes' amended reply, Rhodes is a person 'claiming through or under' parties to the arbitration agreement and so is a 'party' within the meaning of s 8 of the Act.
Thus, ground 2 fails.
Consequently, ground 1 of HPPL's notice of contention, which is contingent on the success of ground 2 of the grounds of appeal, does not arise.

Ground 4: is HPPL a 'party' entitled to make a request under s 8 of the Act?

Submissions

The parties advance competing constructions of s 8 of the Act. In particular, they advance competing constructions of the words 'a party' in s 8.
Rhodes submits that, in s 8, 'a party' refers only to a party to an arbitration agreement who, in the action, is a party to the dispute constituting the matter which is the subject of the arbitration agreement.[41] It points to the following features of s 8 in support of this construction.
[41] Appeal ts 7.
First, it submits, as is common ground, that the reference to 'the party's' first statement is a reference to the first statement of the party who makes the request. Only those who are a party - in the curial proceedings - to the dispute will be required to submit a statement on the substance of that dispute. Consequently, it submits, s 8 should be understood as enabling only such persons to make a request.[42]
[42] Appeal ts 8, 10. Bianca and John made a similar submission: appeal ts 43.
Secondly, Rhodes points to the purpose and effect of an exercise of the court's power and duty under s 8; namely, to refer 'the parties' to arbitration. It submits that only parties to the dispute in the curial proceedings are parties who it is apt to refer to arbitration.[43]
[43] Appeal ts 10 - 11.
Further, Rhodes submits that its construction finds support in s 1C of the Act, which sets out the paramount object of the Act as facilitating 'the fair and final resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense'. It submits that its construction better achieves the paramount object of the Act because it promotes the fast, fair and cost-effective resolution of the proceedings.[44]
[44] Appeal ts 135 - 136.
Rhodes submits that the broad construction invited by HPPL would not achieve the paramount object as it would enable a party to an arbitration agreement who is not a party to litigation, or who is not a party to the dispute in the litigation which is the subject of the arbitration agreement, to permit the parties to that dispute in the curial proceedings to progress those proceedings almost to the point of completion before requesting a referral to arbitration under s 8.[45]
[45] Appeal ts 15, 17, 136.
Rhodes also relied on the decision of the Court of Appeal of England and Wales in Etri Fans Ltd v NMB (UK) Ltd[46] and the decision of the British Columbia Court of Appeal in Stancroft Trust Ltd v Can‑Asia Capital Co.[47]
[46] Etri Fans Ltd v NMB (UK) Ltd [1987] 2 All ER 763, 766 ‑ 767.
[47] Stancroft Trust Ltd v Can‑Asia Capital Co (1990) 67 DLR (4th) 131, 135.
HPPL submits that the words 'a party' should be construed to mean any party to the arbitration agreement. Alternatively, they support the primary judge's conclusion[48] that s 8 empowers any person who is a party to the arbitration agreement and a party to the curial proceedings to make a request. In the further alternative, they submit that s 8 should be construed to empower a party to the arbitration agreement, through or under whom another party is claiming, to request that the parties to the dispute arising from the making of that claim be referred to arbitration.[49]

Disposition

[48] Primary reasons [133].

[49] Appeal ts 81, 87.

In our opinion, the broad construction of the words 'a party' in s 8 advanced by HPPL - namely, a party to the arbitration agreement - is to be preferred, for the following reasons.
First, it reflects the definition of the term 'party' in s 2 of the Act. When a defined term is used in a statutory provision, the starting point is to insert the definition into the operative provision and construe the operative provision accordingly. Of course, statutory definitions yield to a contrary intention.[50] For the reasons explained below, we are not persuaded that the matters to which Rhodes points justify or require a different meaning being attributed to 'a party' in s 8.
[50] Tjungarrayi v Western Australia [2019] HCA 12; (2019) 269 CLR 150 [89].
Secondly, it should be noted that the definition in s 2 itself provides an express limitation to the breadth of its ambit in the circumstances described in subparagraph (b) of the definition.

HPPL submitted that there were four reasons why the term 'a party' referred to any party to the arbitration agreement:
1.The word 'party' bears its usual meaning as provided for in the s 2(1) statutory definition - ie a party to the arbitration agreement.
2.Section 8(1)'s reference to 'a party', without qualification, refers to any party to the arbitration agreement. This is because whenever the Act seeks to limit the application of a provision to a particular party, as opposed to any party to the arbitration agreement, it introduces an express qualifier. (I have dealt with this submission at [333] - [336] above. While, in limited respects, there is superficial support for the contention, it has no real force. The different ways in which the term 'party' is used throughout the Act mean that close attention must be given to its use in the context of, and having regard to the purpose of, s 8(1) rather than drawing any conclusion from textual comparisons at other points of the Act.)
3.Section 8(1) sits within pt 2 of the Act dealing with arbitration agreements and follows s 7 - s 7(1) thereof defining the term 'arbitration agreement'. Section 8(1) then picks up the term 'arbitration agreement' demonstrating that the 'party' and the 'parties' can only be referring to a party and the parties to the 'arbitration agreement'.
4.The application of the s 2(1) statutory definition is consistent with the purpose of s 8(1) of the Act.
HPPL also relied on the circumstance that Singapore's adoption of the Model Law provides that 'any party to the agreement may … apply … to stay the proceedings …' (emphasis added).[189]
[189] International Arbitration Act 1994 (Sing) s 6(1).
The Singaporean provision is of no assistance in construing s 8(1) of the Commercial Arbitration Act. Although not adverted to in HPPL's submissions,[190] s 6(1) of the Singapore Act commences with '[d]espite Article 8 of the Model Law'. That is important so far as the Singapore Act adopts the Model Law '[s]ubject to this Act'.[191] In other words, s 6(1) of the Singapore Act displaces art 8 of the Model Law. What follows in s 6(1) then departs substantially from the language of art 8 of the Model Law and s 8(1) of the Western Australian Act. There is constant reference to 'party to the agreement'. While, given the desirability of uniformity of application, an important consideration in examining legislation intended to implement international agreements is to give weight to the construction which the international community has attributed to the relevant instrument or concept, no construction is evinced in choosing to adopt a particular regime despite the language of art 8 of the Model Law. This is an example of a State determining to implement a regime tailored to its own requirements rather than adopting the provision provided for in the Model Law.
[190] First and third respondent's submissions par 58 WAB 56. See also Appeal ts 109.
[191] International Arbitration Act 1994 (Sing) s 3(1).
Perhaps the most that can be taken from s 6(1) of the Singapore Act is the reminder that a domestic law may choose to depart from the Model Law. That has occurred in relation to the Commercial Arbitration Act so far as it has introduced the definition of 'party'. The significance of this departure is something that must now be considered.
The introduction of the defined term 'party', and its implications for the present case, may be contrasted with the issue in Subway Systems Australia Pty Ltd v Ireland. There the question was whether the Victorian Civil and Administrative Tribunal was a 'court' within the meaning and for the purpose of s 8(1) of the Commercial Arbitration Act 2011 (Vic). The Victorian legislation (like the Western Australian Act) omitted the Model Law's definition of 'court' even though it substantially enacted the Model Law. Maxwell P nevertheless had regard to the definition of 'court' in the Model Law in determining that VCAT was a court for the purposes of the mandatory stay provision.[192] His Honour stated:
Given the interpretive principles flowing from the special character of this Act, and given the Victorian Parliament's express commitment to uniformity with the Model Law, it seems to me to be of little significance that the Act did not specifically re-enact the Model Law definition of 'court'. In the absence of any policy basis for viewing VCAT’s adjudicative role as different - for the purposes of this particular Act - from the equivalent role played by the courts, I would not be prepared to infer from that omission alone that the legislature had made a deliberate decision to make s 8 narrower than the Model Law provision which it replicated.[193]
[192] Subway Systems Australia Pty Ltd v Ireland [39] - [41], [44] - [45].
[193] Subway Systems Australia Pty Ltd v Ireland [48].
Beach JA reached the same conclusion as Maxwell P. His Honour noted the textual difference between the Model Law and the Victorian Act and identified that a question arose as to whether, given the lack of any note drawing attention to substantive changes from the Model Law, the failure to define 'court' did not involve a substantive change.[194] Ultimately, however, Beach JA had regard to the Model Law definition in concluding that VCAT was a court for the purposes of s 8(1).[195] Kyrou AJA, who dissented, took a different view. His Honour stated that the question must be answered by the application of the ordinary rules of statutory interpretation as expanded by the Act.[196] In that respect Kyrou AJA did not agree that resort could be had to the definition of 'court' in the Model Law to determine the meaning of 'court' in s 8(1) of the Act - the definition had been omitted meaning that it was not intended to apply to the Act.[197]
[194] Subway Systems Australia Pty Ltd v Ireland [79].
[195] Subway Systems Australia Pty Ltd v Ireland [86], [90].
[196] Subway Systems Australia Pty Ltd v Ireland [94].
[197] Subway Systems Australia Pty Ltd v Ireland [108].
While, in Subway Systems Australia Pty Ltd v Ireland, contrary views were taken as to the significance of the omission of a definition from the Model Law, there is a difference between the omission of a definition from the Model Law and the explicit introduction - within the Act - of a definition not found in the Model Law. The note to s 2(1) of the Act identifies that the definition of 'party' is not included in the Model Law. Such notes are included to draw attention to substantive changes from the Model Law.[198] The introduction of a substantive change as to the defined term 'party' is reflective of a deliberate decision by the Western Australian Parliament as to how the Model Law finds form and is carried into law in this jurisdiction.
[198] Commercial Arbitration Act s 1D(3).
It is not permissible to construe the term 'party' in the words 'if a party so requests' as if s 8 of the Act did no more than embody and effectuate art 8 of the Model Law. The task of statutory construction begins and ends with the statutory text.[199] The constructional question that arises requires the court to address the statutory text of the Act rather than the Model Law. It is necessary to construe s 8(1) of the Act having proper regard to the statutory definition of 'party' as found in s 2(1).
[199] Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (referring to Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39]).

Disposition

HPPL submitted that there is no textual basis for Rhodes' preferred construction. I reject that submission. It is true that, as HPPL contended, there is a substantial textual basis for HPPL's preferred construction. That textual basis is readily apparent in the statutory definition of the word 'party' in s 2(1). Assuming, for now, that the definition applies, the orthodox approach is to read the words of the definition into the substantive enactment and then construe the substantive enactment. Here that involves the salient words in s 8(1) being read as 'if a party to an arbitration agreement so requests' (emphasis indicating the words read in through the s 2(1) definition). Accordingly, as Rhodes accepted, its preferred construction necessitated a reading down of the statutory language.
The textual basis for Rhodes' preferred construction is threefold. First, s 8(1) opens with 'an action is brought in a matter which is the subject of an arbitration agreement'. Accordingly, the statutory text focusses on the curial action in an identifiable arbitral matter. In that context the 'a party' logically refers to a person who is a party to the dispute as constituted by the arbitral matter.
Second, and reinforcing the textual indicator already mentioned, the requesting party must request the referral to arbitration before submitting 'the party's first statement on the substance of the dispute'. This logically suggests that the party is a person who is entitled to - and would be expected to - submit a first statement on the substance of the dispute. Where there is a multi-party arbitration agreement it is not necessarily the case that this extends to all parties to the arbitration agreement. Rather, it is those persons who are parties to the arbitration agreement who are also parties to the action brought in the arbitral matter.
Third, s 8(1) contemplates the court referring 'the parties' to arbitration. I accept Rhodes' submission that, in context, this reference to 'the parties' is to the litigants contesting the arbitral matters in the curial action. There is no need - and indeed no basis - for the court to refer all parties to the arbitration agreement to arbitration. In referring the parties to arbitration the court is only concerned with those persons before it who are in controversy as to the arbitral matters. Persons who are parties to the arbitration agreement, but who are not parties to the arbitral matters in the action before the court, are outside the court's purview. They cannot be included within the term 'the parties' even giving due regard to the expansive definition in s 2(1) of the Act (as to which see [361] below). The recognition that 'the parties' to be referred to arbitration are only those litigants to the arbitral matters in the curial action provides strong support for Rhodes' preferred construction. Insofar as, ordinarily, words are assumed to be used consistently within a statutory provision, the meaning ascribed to the term 'the parties' logically bears upon and informs the meaning to be given to the term 'a party' in the phrase 'if a party so requests'.
For these three reasons there is, in my view, a respectable textual basis for Rhodes' preferred construction. But so too there is a substantial textual basis for HPPL's preferred construction. There is, in the circumstances, a constructional choice that falls for determination.
The constructional choice, and the parties' respective arguments, are influenced by the application of the s 2(1) statutory definition of 'party'. Rhodes urged that the definition was to be read down. In substance the submission was that, properly construed in the context of and having regard to the purpose of s 8(1) of the Act, the definition did not apply. There is a presumption that defined words in a statute have their defined meanings which are not to be displaced without good reason.[200] The definitions in s 2(1) of the Act are not expressed to be subject to the contrary intention appearing. It is accepted, however, that all statutory definitions yield to a contrary intention.[201] A statutory definition may be displaced expressly or by implication. In this respect, interpretation clauses must be interpreted reasonably - and so as to promote, not to defeat, the purposes of the Act which they are intended to elucidate.[202]
[200] Qantas Airways Ltd v Chief Commissioner of State Revenue [2008] NSWSC 1049 [38].
[201] Tjungarrayi v Western Australia [2019] HCA 12; (2019) 269 CLR 150 [89].
[202] Re application of Fourth South Melbourne Building Society (1883) 9 VR (E) 54, 58.
The ease or difficulty of fitting a definition into a particular operative provision may be a primary basis for deciding whether the definition should be excluded by implication.[203]
[203] Tovir Investments Pty Ltd v Waverly Council[2014] NSWCA 379 [17]. See also Deputy Commissioner of Taxation (NSW) v Mutton (1988) 12 NSWLR 104, 108.
Rhodes did not contend that the application of the definition to the requesting 'party' resulted in s 8(1) being unworkable so far as a party to the arbitration agreement - not being a litigant in the curial proceedings - sought that the court refer the parties to arbitration. Perhaps that is because, in this particular case, HPPL is a party to the proceedings. Accordingly, HPPL had standing to make the application for a stay. But that will not always be the position. HPPL's preferred construction must also be considered in the scenario where the party to the arbitration agreement requesting referral to arbitration under s 8(1) is a stranger to the curial proceedings. Assuming the correctness of HPPL's preferred construction, how might such a non-party to the curial proceedings hold other parties to the arbitration agreement to their bargain to resolve their disputes by arbitration?
There is an available procedural means for such a person to invoke s 8(1) of the Act: the person may seek leave to intervene in the curial proceedings.
The court may permit a non-party to be heard in a proceeding as an incident of the court's power to hear and determine matters within its jurisdiction. Such intervention is rooted in the requirement to accord procedural fairness. The exercise of the court's jurisdiction should not affect the legal interests of persons who have not had an opportunity to be heard. Accordingly, a non-party whose legal interests would be directly affected by a decision in a proceeding will be entitled to intervene to protect his or her interests.[204]
[204] Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579, 601.
In the situation under consideration in this appeal, a party to an arbitration agreement has a relevant legal interest which is directly affected by the court exercising jurisdiction even if that person is not a party to the curial proceedings. Insofar as, by agreeing to submit their disputes to arbitration, the parties have agreed that such matters are not to be heard and determined by a court, the continued prosecution of the curial proceedings breaches the negative stipulation that disputes of the kind governed by the arbitration agreement are not to be heard and determined by a court. A party to the arbitration agreement has an interest in holding the other parties to the arbitration agreement to their bargain and in putting a stop to a continuing breach of the arbitration agreement. That interest, in my view, is a legal interest that would suffice to permit intervention to invoke s 8(1) of the Act in circumstances where it is the court's very exercise of its jurisdiction that directly affects the interest.
This conclusion assumes that, conformably with HPPL's preferred construction, the requesting 'party' may be any party to the arbitration agreement. The significance of the conclusion is that the mechanism provided by s 8(1) is workable applying the s 2(1) definition of 'party'. There is no particular difficulty in fitting the definition into the operative provision. If the term 'party' is to be read down, as urged by Rhodes, the basis for doing so must be found in the text, context and purpose of the provision.
I have already addressed the text and relevant context of the term 'party' in the words 'if a party so requests' in s 8(1) of the Act. Additional consideration must now be given to the purpose of the provision - a topic that provides an appropriate setting in which to examine Rhodes' contention that HPPL's preferred construction led to potential absurd results.
Senior counsel for Rhodes posited a scenario where two parties to a multi-party arbitration agreement were content to proceed with a court determination despite the arbitration agreement. Those parties might proceed to a lengthy trial and be awaiting judgment. But then another party to the arbitration agreement - being a stranger to the litigation - might come along after the hearing and request that the court refer the parties to arbitration. There would be no bar on doing so given that the stranger could never have been required to submit, and would not have submitted, a first statement on the substance of the dispute. This, according to senior counsel for Rhodes, was an absurd result which could not have been the intention of the legislation when one looked to the purpose of the provision. Senior counsel for Rhodes submitted that, so understood, HPPL's preferred construction defeated the paramount object of the Act as found in s 1C. Senior counsel for Rhodes referred, in particular, to s 1C(1)'s reference to the resolution of commercial disputes without unnecessary expense or delay.
The proper construction of s 8(1) must cater to all possible scenarios. Nevertheless, there is danger in positing an anomalous scenario - one which produces an incongruous result - and having that aberrant outcome drive the constructional task. It is legitimate to test a proposed construction by applying it to various scenarios. Inconvenience or improbability of result may tell against the acceptance of a particular construction. But to reason solely that a proposed construction must be erroneous because it produces an incongruous result in an extreme situation is to invert the usual reasoning process of arriving at the proper construction of a statutory provision by construing the statutory language in context having proper regard to the purpose of the provision.
In any case, it should not be supposed that the scenario posited by senior counsel for Rhodes will inevitably result in a mandatory stay of proceedings. Section 8(1) falls to be applied within the context of the court's usual processes. Prima facie, if it is assumed that the stranger to the litigation knew of the curial proceedings but stood by taking no timeous action to invoke s 8(1), the doctrine of abuse of process is likely to be available to preclude an application of the kind postulated by senior counsel for Rhodes in seeking to undermine HPPL's preferred construction.
There are two further difficulties with this aspect of Rhodes' argument.
First, so far as Rhodes points to s 1C and the paramount object of the Act, the paramount object is not expressed merely in terms of avoiding unnecessary delay or expense. Rather, the paramount object is to facilitate the fair and final resolution of commercial dispute by impartial arbitral tribunals without unnecessary delay or expense (see s 1C(1)). The paramount object does not speak to determination by curial proceedings. So understood, the scenario posited by Rhodes is, at worst, neutral so far as the paramount object is concerned.
I say 'at worst' as, by s 1C(2)(a), the Act aims to achieve its paramount object by enabling parties to agree how their commercial disputes are to be resolved. This step along the way to the paramount object - akin to a secondary object - highlights the importance that the Act ascribes to the autonomy accorded to the parties to an arbitration agreement to determine how their commercial disputes are to be resolved. Section 8 furthers that secondary object, thereby better effectuating the paramount object. Viewed in this way, s 1C and the paramount object of the Act are supportive of HHPL's preferred construction in as much as that construction operates to allow each party to a multi-party arbitration to hold all other parties to their agreement.
Second, contrary to Rhodes' contention and closely related to the previous matter, I am satisfied that HPPL's preferred construction promotes the purpose or object underlying s 8(1) of the Act. By contrast, Rhodes' preferred construction would not promote that purpose or object.

It cannot be assumed that all arbitration agreements are bilateral. On occasions, as is the case with the Hope Downs Deed, there will be multiple parties to an arbitration agreement. In that circumstance, where each party to the arbitration agreement mutually covenants with each other party that any dispute between one or more of them in respect of a defined legal relationship is to be resolved by arbitration, all parties to the arbitration agreement have an interest in holding the other parties to the arbitration agreement to their bargain and in putting a stop to a continuing breach of the arbitration agreement. Commonly, but not exclusively, that interest will have been sought and obtained to ensure that disputes of the kind governed by the arbitration agreement are heard and determined confidentially - something recognised, at least implicitly, by the Act (see s 27E and the s 2(1) definition of 'confidential information'). But, whatever the motivation for the parties to mutually covenant that relevant disputes between one or more of them are to be submitted to arbitration, the very fact of the arbitration agreement means that where two parties to an arbitration agreement (A and B) are involved in curial proceedings in an arbitral matter, another party to the arbitration agreement (X) has an interest in A and B being referred to arbitration even if X is a stranger to the curial proceedings between A and B (X not being involved in the arbitral matter).
A person's interest, as party to an arbitration agreement, in holding other parties to the arbitration agreement to their collective bargain to submit disputes of a particular kind to arbitration, informs the proper construction of the term 'party' in the words 'if a party so requests' in s 8(1) of the Act.
The statutory purpose of s 8(1) is well established. I have identified that purpose at [319] - [320] above. Section 8(1) is premised on there being a matter that is required, by agreement, to be submitted to arbitration.[205] Section 8(1) provides the Act's mechanism to enforce the parties' agreement to submit the relevant dispute to arbitration. It serves an integral role under the Act. So far as, by s 1C(2)(a), the Act aims to achieve its paramount object by enabling parties to an arbitration agreement to agree about how their commercial disputes are to be resolved, fulfilment of that aim is encouraged and advanced by providing a means to enforce the parties' agreement. The absence of an available mechanism to hold the parties to their bargain is liable to render the bargain illusory - and consequently to detract from achievement of the paramount object of the Act.
[205] Tianqi Lithium Kwinana Pty Ltd v MSP Engineering Pty Ltd [No 2] [2020] WASCA 201; (2020) 56 WAR 169 [76].
In this respect, adherence to the s 2(1) definition meaning of 'party' as 'party to an arbitration agreement' in the context of s 8(1) of the Act promotes the purpose underlying s 8(1) and the aim prescribed by s 1C(2)(a) of the Act.
Applying the statutory definition allows each person who has an interest in holding the parties to the arbitration agreement to their bargain to require the court to do so. By contrast, reading down the definition as urged by Rhodes does not promote the purpose underlying s 8(1) or the aim prescribed by s 1C(2)(a). Rather, contrary to the constructional guidelines in s 1C of the Act and s 18 of the Interpretation Act, reading and construing the term 'party' in the words 'if a party so requests' in s 8(1) as displacing the statutory definition and being confined to a party to the arbitral matter is apt to prevent or impede a party to the arbitration agreement from holding the other parties to the agreement to their collective bargain. Section 8(1)'s operation will be circumscribed. A mandatory stay will not be available notwithstanding that, as a party to the arbitration agreement, the person has an interest in holding the other parties to the arbitration agreement to their agreement to submit relevant disputes to arbitration. So understood, the narrower construction contended for by Rhodes will undermine the arbitration agreement in a manner that is inconsistent with s 1C of the Act.
For these reasons I accept HPPL's submission that the application of the s 2(1) statutory definition of 'party' to the term 'party' in the words 'if a party so requests' is consistent with the purpose of s 8(1) of the Act. Indeed, I would go further. In my view, for the reasons I have given, the application of the statutory definition - resulting in s 8(1) being read and construed as 'if a party to an arbitration agreement so requests' - promotes the purpose underlying s 8(1) and better achieves the paramount object of the Act.
As a result, like the primary judge, I would apply the statutory definition of 'party' to the term 'party' in the words 'if a party so requests' in s 8(1). I am not satisfied that a contrary intention appears so as to displace the statutory definition. To the contrary, the purpose of s 8(1) is promoted by the application of the statutory definition. It follows that, in my opinion, any party to the arbitration agreement may be a requesting 'party' within the meaning and for the purpose of s 8(1) of the Act - even if that person is not a party to the arbitral matter and whether or not that person is a party to the curial proceedings. This construction of s 8(1) is consistent with the text of the statutory provision, read and construed in context, and promotes the purpose underlying s 8(1) and the achievement of the paramount object of the Act.
I acknowledge that this construction of s 8(1) results in two textual incongruities. First, as previously mentioned, I would read down the 'parties' to be referred to arbitration to those parties in the arbitral matter in the curial proceedings rather than all of the parties to the arbitration proceeding. So, in this respect, the term 'parties' has a different meaning to the term 'party' notwithstanding that both terms are used in s 8(1). While, ordinarily, it is to be expected that a term will be used consistently within a statutory provision, that is not always so - indeed it has been said to be 'not a presumption of very much weight' and not a rigid rule, it all depends on context.[206] This is an occasion where the relevant term has not been used consistently. In this respect it is evident that the meaning of the term 'party' alters throughout the Act.
[206] See eg Clyne v Deputy Federal Commissioner of Taxation (1981) 150 CLR 1, 10 - 11.
Second, as Rhodes emphasised, the requesting party must request referral 'not later than when submitting the party's first statement on the substance of the dispute'. I accept that the term 'party' must be construed in a context where there is a composite expression to this effect. There is, however, no warrant to read the latter part of the expression as confining the range of persons who are a 'party' able to invoke s 8(1). Rather, as I have previously observed, the latter part of the expression introduces a time limit within which a party may request that the court refer the parties to arbitration. So understood the latter part of the expression does not derogate from the generality of the earlier part of the expression.
In any event, for the reasons I have given, these internal linguistic considerations cannot control the proper construction of the requesting 'party' having regard to the statutory purpose of s 8(1) of the Act.
For these reasons I construe the term 'party' in the words 'if a party so requests' in s 8(1) of the Act to mean any party to the arbitration agreement. Accordingly, the primary judge was correct to hold that HPPL was able to invoke s 8(1) notwithstanding that it was not a party to the arbitral matter involving Rhodes and Bianca & John.
Ground 4 of the Stay Appeal must be dismissed.

Conclusion

I agree with the orders proposed by Quinlan CJ & Beech JA.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AE
Associate to the Honourable Justice Beech
2 AUGUST 2022