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Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd

Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd

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Case Copied 19 May 2020 71 min read

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HANCOCK PROSPECTING PTY LTD -v- DFD RHODES PTY LTD [2020] WASCA 77
CORAM:   QUINLAN CJ
BEECH JA
VAUGHAN JA

HEARD:   18 & 19 NOVEMBER 2019
DELIVERED          :   19 MAY 2020
FILE NO/S:   CACV 12 of 2019
BETWEEN:   HANCOCK PROSPECTING PTY LTD
First Appellant
HOPE DOWNS IRON ORE PTY LTD
Second Appellant
HANCOCK MINERALS PTY LTD
Third Appellant
TADEUSZ JOZEF WATROBA
Fourth Appellant
WESTRAINT RESOURCES PTY LTD
Fifth Appellant
HMHT INVESTMENTS PTY LTD
Sixth Appellant
ROY HILL IRON ORE PTY LTD
Seventh Appellant
MULGA DOWNS IRON ORE PTY LTD
Eighth Appellant
AND
DFD RHODES PTY LTD
First Respondent
MATTHEW JOHN KEADY as executor of the estate of DONOVAN FRANCES DUNCAN RHODES
DOROTHEA MARGARET CAMPBELL as executor 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
GEORGINA HOPE RINEHART
Eighth Respondent
THE HANCOCK FAMILY MEMORIAL FOUNDATION LTD
Ninth Respondent
150 INVESTMENTS PTY LTD
Tenth Respondent
MAX CHRISTOPHER DONNELLY as trustee in bankruptcy of LANGLEY GEORGE HANCOCK
Eleventh Respondent
MULGA DOWNS INVESTMENTS PTY LTD
Twelfth Respondent
HAMERSLEY WA PTY LTD
Thirteenth Respondent

FILE NO/S: CACV 16 of 2019
BETWEEN: GEORGINA HOPE RINEHART
First Appellant
150 INVESTMENTS PTY LTD
Second Appellant
AND
BIANCA HOPE RINEHART
First Respondent
JOHN LANGLEY HANCOCK
Second Respondent
HANCOCK PROSPECTING PTY LTD
Third Respondent
HANCOCK MINERALS PTY LTD
Fourth Respondent
THE HANCOCK FAMILY MEMORIAL FOUNDATION LTD
Fifth Respondent
TADEUSZ JOZEF WATROBA
Sixth Respondent
WESTRAINT RESOURCES PTY LTD
Seventh Respondent
HMHT INVESTMENTS PTY LTD
Eighth Respondent
HOPE RINEHART WELKER
Ninth Respondent
GINIA HOPE FRANCIS RINEHART
Tenth Respondent
MAX CHRISTOPHER DONNELLY as trustee in bankruptcy of LANGLEY GEORGE HANCOCK
Eleventh Respondent
HOPE DOWNS IRON ORE PTY LTD
Twelfth Respondent
ROY HILL IRON ORE PTY LTD
Thirteenth Respondent
MULGA DOWNS INVESTMENTS PTY LTD
Fourteenth Respondent
MULGA DOWNS IRON ORE PTY LTD
Fifteenth Respondent
WRIGHT PROSPECTING PTY LTD
Sixteenth Respondent
DFD RHODES PTY LTD
Seventeenth Respondent
MATTHEW JOHN KEADY as executor of the estate of DONOVAN FRANCES DUNCAN RHODES
DOROTHEA MARGARET CAMPBELL as executor of the estate of DONOVAN FRANCES DUNCAN RHODES
Eighteenth Respondents
HAMERSLEY WA PTY LTD
Nineteenth Respondent

FILE NO/S: CACV 88 of 2019
BETWEEN: HANCOCK PROSPECTING PTY LTD
First Appellant
HOPE DOWNS IRON ORE PTY LTD
Second Appellant
HANCOCK MINERALS PTY LTD
Third Appellant
TADEUSZ JOZEF WATROBA
Fourth Appellant
WESTRAINT RESOURCES PTY LTD
Fifth Appellant
HMHT INVESTMENTS PTY LTD
Sixth Appellant
ROY HILL IRON ORE PTY LTD
Seventh Appellant
MULGA DOWNS IRON ORE PTY LTD
Eighth Appellant
GEORGINA HOPE RINEHART
Ninth Appellant
150 INVESTMENTS PTY LTD
Tenth Appellant
GINIA HOPE FRANCIS RINEHART
Eleventh Appellant
HOPE RINEHART WELKER
Twelfth Appellant
AND
WRIGHT PROSPECTING PTY LTD
First Respondent
DFD RHODES PTY LTD
Second Respondent
MATTHEW JOHN KEADY as executor of the estate of DONOVAN FRANCES DUNCAN RHODES
DOROTHEA MARGARET CAMPBELL as executor of the estate of DONOVAN FRANCES…

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: [2020] WASCA 77
Decision Date: 19 MAY 2020

CaseChat Overview and Summary

Hancock Prospecting Pty Ltd (HPPL) and West Australian Pastoral Pty Ltd (WPPL) appealed against orders made by the Supreme Court of Western Australia (the Supreme Court) in proceedings brought by WPPL and DFD Rhodes Pty Ltd (DFD Rhodes). The plaintiffs in the primary proceedings, WPPL and DFD Rhodes, sought an interest in the Hope Downs Tenements, which are subject to an arbitration agreement. HPPL and the other defendants opposed the proceedings on the basis that they were bound by the arbitration agreement and that the Supreme Court should therefore stay the proceedings in favour of arbitration. The court was required to determine whether the proceedings brought by third parties to the arbitration agreement were subject to a mandatory stay under s 8(1) of the Commercial Arbitration Act 2012 (WA). It was also necessary to decide whether the court's determination of a claim by third parties to an arbitration agreement constituted 'intervention in a matter governed by' the Act under s 5 of that Act. Finally, the court needed to determine whether it had erred in exercising its discretion to stay the proceedings, including whether it had failed to take into account relevant considerations or had taken into account irrelevant considerations.

The court held that s 8(1) of the Commercial Arbitration Act 2012 (WA) did not require a mandatory stay of proceedings brought by third parties to an arbitration agreement, as it only applied to proceedings brought by a party to the arbitration agreement. The court also found that proceedings brought by third parties were not 'in a matter which is the subject of an arbitration agreement' for the purposes of s 5 of the Act. The court further held that the primary judge had not erred in exercising its discretion to refuse a stay of the proceedings. The court found that the primary judge had taken into account relevant considerations, including the potential binding effect of the court's decision on an issue in the arbitration. The court also found that the primary judge had not taken into account irrelevant considerations. The court held that the primary judge had exercised its discretion properly and that there was no basis for the court to re-exercise that discretion.

The court dismissed the appeals and affirmed the orders of the Supreme Court.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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

Despite some early success,[6] Mr Hancock and Ms Rinehart have been prevented from prosecuting those claims in court proceedings, each of which has been stayed, pending the determination of those disputes by arbitration. The disputes have been referred to arbitration pursuant to s 8(1) of both the Commercial Arbitration Act 2010 (NSW) and the Commercial Arbitration Act 2012 (WA) (Commercial Arbitration Act or Act).[7][6] See Welker & Ors v Rinehart & Anor (No 2) [2011] NSWSC 1238; Welker v Rinehart (No 4) [2011] NSWSC 1636; Rinehart v Welker [2012] NSWCA 95; (2012) 95 NSWLR 221. [7] Rinehart v Rinehart (No 3) [2016] FCA 539; (2016) 257 FCR 310; Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170; (2017) 257 FCR 442 (HPPL v Rinehart FFC); Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13; (2019) 93 ALJR 582 (Rinehart v HPPL HC); Rinehart v Rinehart [2020] NSWSC 68. Of particular relevance to the present case are proceedings brought in 2014 by Mr Hancock and Ms Rinehart against Mrs Rinehart, HPPL and others in the Federal Court of Australia (the Federal Court proceedings). In the Federal Court proceedings Mr Hancock and Ms Rinehart claimed, inter alia, that the Hope Downs Tenements were held on trust for the Children. In addition to those substantive claims, the Federal Court proceedings also challenged the validity of the Hope Downs Deed itself (the validity claims). The Federal Court proceedings were ultimately stayed, both as to the substantive claims and the validity claims, pending any arbitral reference between the parties to the Hope Downs Deed. In all of these cases, the relevant court proceedings were commenced by one or more of the persons who are parties to the Hope Downs Deed. In the Federal Court proceedings, for example, Mr Hancock and Ms Rinehart sought relief against a number of respondents, all of whom (save for one) was a 'party' within the meaning of the Commercial Arbitration Act 2010 (NSW) (either on the basis that they were parties to the arbitration agreement in the Hope Downs Deed or claimed 'under or through' such a party).[8] [8] As to which see Rinehart v HPPL HC [56]-[74] (Kiefel CJ, Gageler, Nettle & Gordon JJ). The claim against the third party not held to be a 'party' (Mulga Downs Investments Pty Ltd) was stayed, on the same terms, in the exercise of the court's power to control its own processes: HPPL v Rinehart FFC [336], [417] (Allsop CJ, Besanko & O'Callaghan JJ), as varied in Rinehart v HPPL HC [81]. The primary proceedings in the present case are different. The plaintiffs in the primary proceedings, WPPL and DFD Rhodes, are not parties to, or bound by, the Hope Downs Deed. In the primary proceedings, WPPL and DFD Rhodes claim interests in the Hope Downs Tenements.[9] The defendants to the WPPL proceedings are HPPL, Hope Downs Iron Ore Pty (HDIO) and the Children. The defendants to the DFD Rhodes proceedings include all of those parties, with the addition of WPPL.[9] The pleadings in the WPPL proceedings and the DFD Rhodes proceedings variously refer to mining tenements in areas referred to as 'Hope Downs' and 'East Angelas'. As set out below, it is sufficient, for the purposes of these appeals, to refer to the tenements the subject of the primary proceedings as the Hope Downs Tenements (being the defined tenements in the Hope Downs Deed).