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DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd

DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd

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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:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] WASCA 97
Decision Date: 2 AUGUST 2022

CaseChat Overview and Summary

DFD Rhodes Pty Ltd sought to appeal a decision of the Supreme Court of Western Australia, which stayed its proceedings against Hancock Prospecting Pty Ltd (HPPL). The appeal focused on the court's interpretation and application of the Commercial Arbitration Act 2012 (WA). The primary dispute revolved around the ownership and transfer of certain tenements and the fiduciary duties of certain individuals. The court was required to determine whether the judge correctly stayed the proceedings in light of an arbitration agreement between HPPL and two other parties, Bianca and John, who were not signatories to the arbitration agreement with Rhodes. The key legal issues were whether the judge erred in staying certain paragraphs of Rhodes' reply, in finding that the arbitral matter arose from those paragraphs, and in concluding that the requesting party did not need to be a party to the dispute.

The Court of Appeal held that the primary judge correctly stayed the proceedings. The Court found that the judge did not err in staying the matters arising from certain paragraphs of Rhodes' reply. The Court held that the judge correctly found that the arbitral matter arose from the controversy generated by those paragraphs. The Court also found that the judge did not err in his interpretation of s 8(1) of the Act, which requires a party to the arbitration agreement to request a referral to arbitration, and that the test for whether a person claims through or under a signatory to the arbitration agreement does not require consideration of the relationship of proximity between the claimant and the signatory. The Court held that the judge did not err in finding that the requesting party had not yet made its first statement on the substance of the dispute. The Court concluded that the primary judge's interpretation of the Act and the arbitration agreement was correct and that the appeal should be dismissed.

The Court of Appeal dismissed the appeal and affirmed the decision of the Supreme Court of Western Australia to stay the proceedings pending arbitration. The Court held that the primary judge correctly interpreted the Act and applied it to the facts of the case. The Court found that the judge correctly stayed the proceedings and that the appeal was without merit.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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 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. 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].