Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd - [2023] WASCA 88

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HANCOCK PROSPECTING PTY LTD -v- WRIGHT PROSPECTING PTY LTD [2023] WASCA 88
CORAM:   QUINLAN CJ
BEECH JA
VAUGHAN JA

HEARD:   27 & 28 APRIL 2023
DELIVERED          :   26 MAY 2023
FILE NO:   CACV 125 of 2022
BETWEEN:   HANCOCK PROSPECTING PTY LTD
First Appellant
HOPE DOWNS IRON ORE PTY LTD
Second Appellant
AND
WRIGHT PROSPECTING PTY LTD
First Respondent
DFD RHODES PTY LTD
Second Respondent
MATTHEW JOHN KEADY and DOROTHEA MARGARET CAMPBELL as executors of the estate of DONOVAN FRANCES DUNCAN RHODES
Third Respondents
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: CACV 126 of 2022
BETWEEN: HANCOCK PROSPECTING PTY LTD
First Appellant
HOPE DOWNS IRON ORE PTY LTD
Second Appellant
AND
DFD RHODES PTY LTD
First Respondent
WRIGHT PROSPECTING PTY LTD
Third Respondent
MATTHEW JOHN KEADY and DOROTHEA MARGARET CAMPBELL as executors of the estate of DONOVAN FRANCES DUNCAN RHODES
Second Respondents
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

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   SMITH J
Citation: WRIGHT PROSPECTING PTY LTD v HANCOCK PROSPECTING PTY LTD [No 16] [2022] WASC 432
File Number            :   CIV 3041 of 2010

Catchwords:

Practice and procedure – Where deed between various defendants in curial proceedings contains arbitration agreement – Where various issues in curial proceedings have been stayed pursuant to s 8 of the Commercial Arbitration Act 2012 (WA) and parties referred to arbitration – Where curial proceedings listed for trial and where arbitral hearing completed and decision reserved – Whether trial of curial proceedings should be deferred or adjourned to await arbitral award and resolution of issues as to enforceability of award – Whether primary judge made any appellable error in exercise of case management discretion

Legislation:

Commercial Arbitration Act 2012 (WA)

Result:

Application for leave to appeal refused
Appeal dismissed

Category: B

Representation:

CACV 125 of 2022

Counsel:

First Appellant	:	N C Hutley SC, J Kennedy & M Parker
Second Appellant	:	N C Hutley SC, J Kennedy & M Parker
First Respondent	:	K Stern SC, T Mehigan SC & L Coleman
Second Respondent	:	K R Lendich SC & S Taylor
Third Respondents	:	K R Lendich SC & S Taylor
Fourth Respondent	:	A Hochroth & D Delany
Fifth Respondent	:	A Hochroth & D Delany
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	:	Clayton Utz
Second Respondent	:	Taylor & Taylor Lawyers
Third Respondents	:	Taylor & Taylor Lawyers
Fourth Respondent	:	YPOL Lawyers
Fifth Respondent	:	YPOL Lawyers
Sixth Respondent	:	Deutsch Miller
Seventh Respondent	:	Dentons Australia
Eighth Respondent	:	Allens

CACV 126 of 2022

Counsel:

First Appellant	:	N C Hutley SC, J Kennedy & M Parker
Second Appellant	:	N C Hutley SC, J Kennedy & M Parker
First Respondent	:	K R Lendich SC & S Taylor
Third Respondent	:	K Stern SC, T Mehigan SC & L Coleman
Second Respondents	:	K R Lendich SC & S Taylor
Fourth Respondent	:	A Hochroth & D Delany
Fifth Respondent	:	A Hochroth & D Delany
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
Third Respondent	:	Clayton Utz
Second Respondents	:	Taylor & Taylor Lawyers
Fourth Respondent	:	YPOL Lawyers
Fifth Respondent	:	YPOL Lawyers
Sixth Respondent	:	Deutsch Miller
Seventh Respondent	:	Dentons Australia
Eighth Respondent	:	Allens

Cases referred to in decision:

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Collector of Customs v Pozzolanic (1993) 43 FCR 280
DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97
Grimes Holdings Pty Ltd v Sceghi (Unreported, WASC, 20 August 1993, Library No 930453)
Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S)
Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77; (2020) 55 WAR 435
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141
House v The King (1936) 55 CLR 499
Kipoi Holdings Mauritius Ltd v Tiger Resources Ltd [2021] WASCA 186
Litopoulos v Indiana Holdings Pty Ltd [2021] WASCA 88
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66
Michael Wilson & Partners Ltd v Sinclair [2017] EWCA Civ 3
Mighty River International Ltd v Mineral Resources Ltd [2020] WASCA 44
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Park Trent Properties Group Pty Ltd v Australian Securities and Investments Commission [2016] NSWCA 298; (2016) 116 ACSR 473
R v Engert (1995) 84 A Crim R 67
R v Lawrence [1982] AC 510
Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109
Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311
Strahan v Brennan [2014] WASC 190
TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; (2013) 251 CLR 533
Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2022] SASCA 107; (2022) 406 ALR 293
Veen v The Queen (No 2) (1988) 164 CLR 465
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd (No 16) [2022] WASC 432
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

Table of Contents

Introduction and summary

Some background

The claims and defences of the parties in the curial proceedings: overview

WPPL's claims in the WPPL proceedings
HPPL's defence to WPPL's claims
Bianca and John's defence to WPPL's claims
The Rhodes parties' claims in the Rhodes proceedings
HPPL's defence to the Rhodes parties' claims
Bianca and John's defence to the Rhodes parties' claims

The Hope Downs Deed and the Stays

The applications the subject of the present appeal

The primary reasons

Consideration of the HPPL parties' contentions

6.1     Issue estoppel
6.2     What could potentially be the result of the Martin Arbitration?
6.3     Are the potential findings in the Martin Arbitration uncertain, and what could be the potential effect of those findings on the disputes between the plaintiffs and Bianca and John?
6.4     Does the fact that part of the controversies between Bianca and John, as raised in Rhodes' reply, have been stayed and referred to arbitration weigh in favour of an adjournment or stay?
6.5     The risk of inconsistent decisions between the curial proceedings and the Martin Arbitration
6.6     The issues raised by the HPPL parties' stated intention to tender the Hope Downs Deed in the curial proceedings in the event that they are successful in the Martin Arbitration
6.7     Potential effect on the curial proceedings if the Martin Arbitration finds it has no jurisdiction to determine the disputes between the HPPL parties and the other parties to the Hope Downs Deed
6.8     The length of a stay or adjournment sought by the HPPL parties
6.9     Other issues, including confidentiality
7.       The prejudice that WPPL and the Rhodes parties claim they would suffer if the adjournment or stay were granted
8.       Should the curial proceedings be adjourned or stayed?

Grounds of appeal – general observations

Grounds 1 and 2 – the Rhodes stay

Grounds 3 and 4 – issue estoppels

Ground 3 – issue estoppels in the curial proceedings that may bind the parties in the Martin Arbitration

Ground 4 – issue estoppels in the curial proceedings that may bind the parties in the Rhodes Arbitration

Ground 5 – prejudice to WPPL and the Rhodes parties

Ground 5 – the submissions to the learned primary judge

HPPL parties' written submissions
HPPL parties' reply submissions
HPPL parties' oral submissions

Ground 5 – disposition

Ground 6 – inconsistent findings

Grounds 7 ‑ 9 – the Hope Downs Deed

Ground 7 – alleged misapprehension as to the effect of the HPPL parties' submissions

Ground 8 – alleged necessity to plead the Hope Downs Deed

Ground 9 – alleged failure to consider and find great complexities and prejudice in relation to the Hope Downs Deed

Ground 10

Substantial injustice

Conclusion

Appendix Grounds of appeal

JUDGMENT OF THE COURT:

Introduction and summary

This is the third set of interlocutory appeals to come before this court in recent years from decisions made by the case manager in two sets of longstanding proceedings in the General Division of the court: CIV 3041 of 2010 consolidated with CIV 2617 of 2012 (the WPPL proceedings) and CIV 2737 of 2013 (the Rhodes proceedings) (collectively, the curial proceedings).
As on the last two occasions,[1] the parties amassed large legal teams, the appeal books ran to thousands of pages, and the hearing of the appeals extended beyond the time allocated to the overwhelming majority of appeals that come before this court.
[1] See Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77; (2020) 55 WAR 435 (first stay appeal); Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S) (first stay appeal (supplementary)); DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97 (Rhodes stay appeal).
On this occasion, the appeals challenge, as erroneous, the decision of the case manager (Smith J) to refuse applications by the appellants (the HPPL parties) for a stay or adjournment of the curial proceedings, until an arbitral award is made in an arbitration between, inter alia, the HPPL parties and the fourth and fifth respondents to each appeal (Bianca and John) and until the completion of associated challenges to that award and applications for its enforcement.[2] That arbitration was referred to by the learned primary judge as the Martin Arbitration.
[2] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd (No 16) [2022] WASC 432 [1] (primary reasons).
At the time of the applications for a stay or adjournment, the trial of the curial proceedings was scheduled to commence on 12 June 2023. It is now listed to commence on 10 July 2023.
The HPPL parties' application for leave to appeal against the learned primary judge's decision was advanced on 10 grounds. A cursory analysis of the grounds (which are reproduced in the Appendix to these reasons) reveals, however, that embedded within the 10 grounds are many more discrete allegations that her Honour made errors of law in either making, or failing to consider and make, various findings. In truth, the grounds of appeal allege in excess of 20 distinct errors of law. At the hearing of the appeal, senior counsel for the HPPL parties, almost in passing, asserted other alleged errors by the learned primary judge that are not apparent from the grounds of appeal (and with which we have not distinctly dealt).
Broadly summarised, the errors that the HPPL parties contended vitiated her Honour's discretionary decision reflected their contentions that:
(a)a stay or adjournment was warranted because, as a consequence of certain matters in the Rhodes proceedings having been referred to arbitration (the Rhodes Arbitration), the Rhodes proceedings could not be finally determined until those matters were resolved by the Martin Arbitration or the Rhodes Arbitration and the same was true of the WPPL proceedings (grounds 1 and 2);
(b)a stay or adjournment would prevent issue estoppels arising in the Martin Arbitration and the Rhodes Arbitration (grounds 3 and 4);
(c)a stay or adjournment would, in reality, not cause delay to the curial proceedings because the delivery of the award in the Martin Arbitration and the resolution of issues as to its validity and enforcement are necessary to the resolution of the curial proceedings (ground 5);
(d)a stay or adjournment would prevent inconsistent findings between the Martin Arbitration and the curial proceedings (ground 6); and
(e)a stay or adjournment would avoid complex issues associated with the HPPL parties' intended tender, in the curial proceedings, of the deed referred to as the Hope Downs Deed (grounds 7 to 9).
Finally, the HPPL parties contended that these errors, or some of them, justify this court re‑exercising the discretion reposed in the learned primary judge, and that the discretion should be exercised in favour of the grant of a stay or adjournment (ground 10).
Given the comprehensive challenge to almost all aspects of the learned primary judge's reasoning, the sheer number of grounds of appeal and alleged errors, the complexity of the issues raised by the HPPL parties, and the HPPL parties' ingenuity in shifting their forensic focus to respond to any changing winds in the litigation's landscape, it was easy to lose sight of the fact that, at bottom, these appeals concern a decision by the case manager of the proceedings not to defer a trial that has been listed for some considerable time.
When attention is properly restored to the true nature of the appeal, a number of important general principles come back into focus. First, to warrant leave to appeal from an interlocutory decision such as that in the present case, ordinarily, this court must be satisfied that the decision is plainly wrong or attended by sufficient doubt to warrant reconsideration on appeal and that substantial injustice would result if it remained undisturbed.[3] Secondly, as this court has also recognised, there is a need to exercise 'special restraint' when considering challenges to interlocutory orders concerning matters of practice and procedure, and all the more so with a decision by the judge with management of a case in the Commercial and Managed Cases list,[4] as the decision in this case plainly was.
[3] Litopoulos v Indiana Holdings Pty Ltd [2021] WASCA 88 [11] ‑ [13] (Mitchell & Vaughan JJA); Kipoi Holdings Mauritius Ltd v Tiger Resources Ltd [2021] WASCA 186 [264] (Buss P, Murphy & Mitchell JJA).
[4] Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141 [49] ‑ [50] (Quinlan CJ & Vaughan JA).
If these principles are to have any meaning at all, it is important that the requirement for leave to appeal, and the special restraint to be exercised in relation to orders concerning matters of practice and procedure made by case managers, are not regarded as merely another hurdle to jump once each and every discrete complaint made by an appellant has been chased down its rabbit hole. Such an approach would merely add to, rather than ameliorate, the burden that such appeals could have on the administration of justice as a whole.
On the contrary, the court's concern to limit interlocutory appeals to those giving rise to substantial injustice and to keep a tight rein on interference with the discretion of case managers must be the lens through which the entirety of the appeal is viewed. In that context, as in other areas of appellate and judicial review,[5] this court should not approach a case manager's exercise of discretion 'with an eye keenly attuned to the perception of error', nor be concerned with looseness of language or unhappy phrasing.
[5] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271 ‑ 272 (Brennan CJ, Toohey, McHugh & Gummow JJ); Collector of Customs v Pozzolanic (1993) 43 FCR 280, 287 (Neaves, French & Cooper JJ); Strahan v Brennan [2014] WASC 190 [90] (Martin CJ).
In the present case, in our view, a fair reading of the learned primary judge's reasons does not reveal material error which could sustain appellate interference with the primary decision. On the contrary, her Honour considered all of the relevant considerations as they had been identified by the parties, and it was open to her Honour to accord those considerations the weight that her Honour did.
In particular, and by way of broad summary:
(a)the learned primary judge did not err in finding that the Rhodes proceedings and the WPPL proceedings could be finally determined, notwithstanding the referral of certain matters to the Rhodes Arbitration (grounds 1 and 2);
(b)the learned primary judge did not err in finding that there was no realistic possibility of issue estoppels arising from a judgment in the curial proceedings that would bind the parties in the Martin Arbitration or in finding that the possibility of estoppels arising in the Rhodes Arbitration should not be given any weight (grounds 3 and 4);
(c)the learned primary judge did not err in finding that the risk of inconsistent findings between the Martin Arbitration and the curial proceedings was not a factor in favour of a stay or adjournment (ground 6); and
(d)while the learned primary judge arguably misapprehended the HPPL parties' submissions as to its intentions in relation to the tender of the Hope Downs Deed, any such misapprehension was immaterial to the exercise of her Honour's discretion (grounds 7, 8 and 9).
In relation to ground 5, concerning the learned primary judge's finding that a stay or adjournment of the proceedings would prejudice the plaintiffs in the curial proceedings (WPPL and the Rhodes parties, respectively), much of the HPPL parties' focus in the appeal was on what they submitted were inevitable and lengthy delays in the curial proceedings that would follow from the award in the Martin Arbitration. The HPPL parties' submissions as to those delays, and their inevitability, in large part rested upon the proposition that, whatever the outcome of the Martin Arbitration, the parties to that arbitration would become embroiled in lengthy and complex litigation that would, in turn, delay the curial proceedings.
So understood, the 'inevitable delays' were said to flow, not so much from the outcome of the Martin Arbitration itself, as from the arbitration parties' declared intention that they will not accept that outcome and will continue their ongoing battle elsewhere. Such an unpalatable submission ought to give pause to any court asked, by mechanism of a stay or adjournment, to defer the exercise of jurisdiction that has been regularly invoked by parties who are not parties to the arbitration.
Properly understood, however, that was not how the substance of the case for a stay or adjournment was put to the learned primary judge. On the contrary, while the HPPL parties' submissions before her Honour relied upon some of the consequences for the curial proceedings of the arbitral award, they did so primarily in the context of, and for the purpose of, identifying practical advantages for the curial proceedings in awaiting the outcome of the arbitral award. The HPPL parties' submissions below did not have, as their focus, the proposition that, whatever the consequence of the Martin Arbitration, the curial proceedings would grind to a halt.
The learned primary judge dealt with the potential effects of the award in the Martin Arbitration in accordance with the manner in which they were presented to her. Her Honour did not err in so doing.
In any event, we are not satisfied that substantial injustice would result if the learned primary judge's decision not to stay the proceedings or adjourn the trial remains undisturbed. The plaintiffs in the curial proceedings regularly invoked the jurisdiction of the court many years ago. Where jurisdiction exists, access to the courts is a right.[6] The spectre of further potential delays in the resolution of the curial proceedings, while a relevant matter to be weighed in the interests of justice, is not such that a substantial injustice will result by the trial of the curial proceedings commencing in July 2023. This is particularly so given that, notwithstanding the HPPL parties' endeavours to narrow the stay that they sought to a 'relatively short' one,[7] the reality (as found by the learned primary judge) is that the disputes that the HPPL parties have with Bianca and John, and which they contemplate will continue into the future, have years left to run.
[6] First stay appeal [396] (Quinlan CJ).
[7] Appeal ts 117.

In that context, the HPPL parties concluded their submissions by stressing the prejudice that would be visited on the public through the 'potentially massive waste of court resources' if the trial proceeds.[8] We accept that the risk of such prejudice is real.
[8] Appeal ts 117.
The spectre of further delay, and the potential for a waste of resources, in the curial proceedings is therefore an important consideration. However, as explained in more detail below, in the circumstances of these proceedings, with their history, the prospect of further delay and some wastage of time already spent does not establish a substantial injustice in the commencement of the trial in accordance with the primary judge's orders.
The arbitration parties' continued disputes will no doubt continue to have an impact upon the court's ability to resolve the disputes brought before it in a timely and efficient manner. That is, regrettably, an irreducible risk in this litigation. It is not one that can or should divert the court from performance of its duty to resolve the proceedings brought by the plaintiffs.
For the reasons that follow, we would refuse leave to appeal and dismiss the appeals.

Some background

The background to the curial proceedings, and the history of associated interlocutory decisions and appeals, have been set out in detail in a number of decisions, including in the first stay appeal.[9] We adopt that outline without repeating it and, consequently, set out the background in an abbreviated form.

The claims and defences of the parties in the curial proceedings: overview

[9] First stay appeal [47] ‑ [93] (Quinlan CJ).

We commence with a broad overview of the claims and defences of the parties in the curial proceedings.

WPPL's claims in the WPPL proceedings

WPPL and the first appellant in each appeal (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 Hope Downs Iron Ore Pty Ltd (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 the second appellant in each appeal (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 (in [53C] of its sixth further amended substituted statement of claim (6FASSOC)), 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 a 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.
As a consequence, WPPL claims 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

HPPL pleads that the ELs initially held by HML and HRL were held on trust for HPPL.
However, HPPL maintains that 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

Bianca and John plead that the shares in HML and HRL were not held on trust for HPPL, but were ultimately held on trust for the beneficiaries of a trust (the HFMF Trust), being the fourth to seventh respondents in these appeals (the Children). As HML and HRL did not hold the interests in the tenements on trust for HPPL, HDIO never obtained beneficial title to the tenements and does not hold those tenements subject to a trust in favour of the Rhodes parties. Bianca and John plead that HPPL and HDIO hold the tenements on constructive trust for the Children. As HPPL and HDIO never held beneficial title to the tenements, they could not hold the tenements as a Partnership asset or on trust for the Partnership.
Alternatively, Bianca and John plead that WPPL is precluded from relief by laches and acquiescence.

The Rhodes parties' claims in the Rhodes proceedings

By an agreement in 1969 between the Rhodes parties, and HPPL and WPPL, HPPL and WPPL agreed to pay the Rhodes parties a royalty on ore produced from certain reserves (the 1969 Agreement). HPPL, WPPL and the Rhodes parties 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 the Rhodes parties to the extent of the Rhodes parties' entitlement to royalties on iron ore produced from the area the subject of the lease.
Alternatively, the Rhodes parties are entitled to equitable compensation.

HPPL's defence to the Rhodes parties' claims

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

Bianca and John's defence to the Rhodes parties' claims

As in their defences to WPPL's claims, Bianca and John maintain that the shares in HML and HRL were not held on trust for HPPL, but were ultimately held on trust for the beneficiaries of the HFMF trust, being the Children. 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 the Rhodes parties. 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.
In that context, Bianca and John pleaded the Children's interest in the tenements as existing for different reasons at different times. Significant parts of Bianca and John's case in this regard are summarised in the Rhodes stay appeal at [42] ‑ [56]. For present purposes, it is sufficient to note that those pleadings include:
(a)allegations as to the capacity in which HML and HRL acquired the tenements, leading to Bianca and John's plea that the tenements were beneficially owned by the Children as at 6 October 1992; and
(b)allegations as to a series of transactions after 6 October 1992 whereby HRL transferred the ELs to HPPL and then HDIO. Bianca and John allege that those transactions were part of a fraudulent and dishonest design by Mrs Georgina Rhinehart (Gina) in breach of her fiduciary duties under the HFMF Trust.
The issues arising from these pleas by Bianca and John were referred to by the learned primary judge as the 'Acquisition Matter' and the 'Debt Reconstruction Matter', respectively.[10] For the purposes of these reasons, it is preferable to refer to those issues as the Acquisition Issue and the Debt Reconstruction Issue.[11] That is because, as we will return to, certain 'matters', properly so called, relating to the Acquisition Issue and the Debt Reconstruction Issue were the subject of a successful application by the HPPL parties for the matters so constituted to be stayed and referred to arbitration. The decision of Le Miere J granting that stay[12] was appealed by the Rhodes parties. This court dismissed that appeal in the Rhodes stay appeal.

The Hope Downs Deed and the Stays

[10] Primary reasons [38].

[11] The HPPL parties drew a similar distinction between the 'Acquisition Issue' and the 'Acquisition Matter' (and between the 'Debt Reconstruction Issue' and the 'Debt Reconstruction Matter') at the hearing of the appeal (appeal ts 7 ‑ 9).

[12] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 13] [2021] WASC 214 (Rhodes stay reasons).

The Hope Downs Deed is a deed entered into by a number of persons, including HPPL, Gina and the Children (John entered into a further deed in April 2007 in which he adopted the Hope Downs Deed).
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 provides for acknowledgements as to the ownership of tenements referred to as the Hope Downs tenements.[13] Clause 20 of the Hope Downs Deed provides that any disputes under the deed are to be resolved by way of confidential arbitration.
[13] 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.
WPPL and the Rhodes parties are not parties to, or bound by, the Hope Downs Deed, although, as has been set out, many of the defendants to the curial proceedings (including HPPL, HDIO and the Children) are parties to the deed.
In addition to filing defences in the curial proceedings, Bianca and John brought counterclaims against Gina and others, including all of the parties to the Hope Downs Deed (counterclaims).
HPPL applied for orders that all of the parties to the Rhodes proceedings and the WPPL proceedings, except for WPPL and the Rhodes parties, be referred to arbitration in respect of the defences and counterclaims of Bianca and John, and that those defences and counterclaims be stayed pursuant to s 8(1) of the Commercial Arbitration Act 2012 (WA) (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 curial proceedings or the defences of Bianca and John in each proceeding.[14] This court dismissed appeals and cross‑appeals from those orders in the first stay appeal.[15]
[14] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 10] [2018] WASC 407.
[15] First stay appeal.
Following the stay of the counterclaims, the Martin Arbitration was commenced, the hearing of which was nearing completion by the time the applications the subject of the present appeal were heard by the learned primary judge.
Also following the stay of the counterclaims, the Rhodes parties amended their reply to Bianca and John's defence, including as to the Acquisition Issue and the Debt Reconstruction Issue. In the reply, the Rhodes parties pleaded, inter alia:
(a)in relation to the Acquisition Issue, that if Mr Lang Hancock or HPPL had caused the beneficial interest in the tenements to be held other than for HPPL and/or HPPL and WPPL, that such conduct was in breach of Mr Hancock's duty to HPPL; and
(b)in relation to the Debt Reconstruction Issue, that Gina did not act in breach of any fiduciary duty, and that the directors of HRL and HFMF also acted properly, in relation to the series of transactions whereby HRL transferred the ELs to HPPL and then HDIO.
As noted at [45] above, the HPPL parties successfully applied for certain matters arising from the Rhodes parties' reply to Bianca and John's defence to be stayed pursuant to s 8(1) of the Act on the basis that the Rhodes parties were claiming 'through or under' a party to the Hope Downs Deed (the Rhodes stay). Those matters were referred to arbitration (namely the Rhodes Arbitration). Save for an amendment to the orders in relation to the scope of the matters that were the subject of the stay, this court dismissed the appeal from the Rhodes stay.
The matters that were referred to the Rhodes Arbitration, and the subject of the Rhodes stay, were referred to by Quinlan CJ and Beech JA in the Rhodes stay appeal as the 'acquisition matter' and the 'debt reconstruction matter'.[16]
[16] Rhodes stay appeal [153] (Quinlan CJ & Beech JA).
In doing so, this court made clear that the matters the subject of the Rhodes stay (and the referral to the Rhodes Arbitration) were not the entirety of the issues that might arise in the curial proceedings as to the Acquisition Issue and the Debt Reconstruction Issue, as defined in [45] above. In particular, the amendment made to the orders for a stay in the Rhodes stay appeal (deleting reference to [3.3.2.2] of the Rhodes parties' reply) made clear that, to the extent that the Rhodes parties' reply did not claim 'through or under' a party to the Hope Downs Deed, it did not form part of the stay.[17]
[17] Rhodes stay appeal [176] ‑ [182] (Quinlan CJ & Beech JA).
Elsewhere, Quinlan CJ and Beech JA identified that the 'matters' the subject of the Rhodes stay were 'the matters constituted by the controversy reflected in those paragraphs of Rhodes' amended reply and in the paragraphs of Bianca and John's defence to which they responded'.[18] That is, the 'matters' are the controversy constituted by the intersection of the defence and the reply, not the allegations pleaded in the defence or the reply per se and not all the issues arising from those allegations. We will return to this point in the course of resolving ground 1.
[18] Rhodes stay appeal [171] (Quinlan CJ & Beech JA).
The Rhodes parties wrote to the parties in the Martin Arbitration seeking to participate in the Martin Arbitration. The parties to the Martin Arbitration did not agree. On 31 January 2022, the Rhodes parties commenced the Rhodes Arbitration. The Rhodes Arbitration has not progressed. The HPPL parties and Bianca and John submitted that the Rhodes Arbitration was not valid or on foot.[19]
[19] Primary reasons [26] ‑ [28].

The applications the subject of the present appeal

The HPPL parties applied for the trial of the curial proceedings, which was then listed to commence in June 2023, to be temporarily stayed or adjourned to allow for the making of an arbitral award in the Martin Arbitration. That application was heard on 24 November 2022.
In support of their applications, the HPPL parties submitted that there had been material changes in circumstances in two fundamental respects since this court dismissed the first stay appeal in July 2020.
First, the Martin Arbitration ought to have been completed by the time judgment in the curial proceedings was delivered, but had been stood over for final oral submissions in March 2023. If the curial proceedings proceeded to trial on 12 June 2023, an award would not yet have been delivered but might be delivered during the trial or after the judgment is reserved.[20]
[20] Primary reasons [29] ‑ [30].
Secondly, part of the Rhodes proceedings had been stayed and referred to arbitration.[21]
[21] Primary reasons [31].
The HPPL parties claimed that WPPL and the Rhodes parties must necessarily await the outcome of the Martin Arbitration before their claims can be finally determined.[22]
[22] Primary reasons [34].
The learned primary judge summarised the HPPL parties' five arguments in favour of the orders they sought:
(a)All the controversies between Bianca and John and the Rhodes parties depend upon the determination of the matters which have been referred to arbitration, so that the court cannot make a final determination in the Rhodes proceedings until either the award in the Martin Arbitration, in effect, renders the Rhodes Arbitration moot or the Rhodes Arbitration is determined and an award is issued by the arbitral tribunal.[23]
[23] Primary reasons [36] ‑ [42].
(b)It is not practicable to determine the joint claims of the Rhodes parties and WPPL when some of the Rhodes parties' joint claims have been referred to arbitration because doing so might result in inconsistent findings and outcomes as regards the Acquisition Matter and the Debt Reconstruction Matter between the WPPL proceedings and Rhodes proceedings, despite them having been heard and determined together. Further, the HPPL parties submitted that the Rhodes parties claimed a competing equity in the tenements to that sought by WPPL, which the HPPL parties claimed could not be finally determined until the Rhodes parties' claim to an equity had been adjudicated.[24]
[24] Primary reasons [43] ‑ [46].
(c)If the curial proceedings proceed to trial and a decision is delivered prior to the Martin Arbitration, the HPPL parties claimed they may face the prejudice of issue estoppels arising between them and Bianca and John concerning arbitral matters.
(d)If the curial proceedings proceed to trial before a decision in the Martin Arbitration, the court will have to grapple with the issues arising from the HPPL parties seeking to tender the Hope Downs Deed. If the deed cannot be tendered, the HPPL parties may suffer prejudice and, if it can be tendered, the curial proceedings will need to await the arbitral determination of the challenge to the Hope Downs Deed by Bianca and John.[25]
[25] Primary reasons [48].
(e)If the curial proceedings proceed to trial and a decision in the Martin Arbitration is delivered prior to the decision in the curial proceedings, a number of complications are likely to occur which will necessarily impact the curial proceedings. In this context, the HPPL parties claimed that:
(i)the outcome of the Martin Arbitration is likely to reduce the issues remaining for determination in the WPPL and Rhodes proceedings, and consequently shorten and simplify the trial in the curial proceedings.[26] In that regard, her Honour recorded the HPPL parties' contentions that:[27]
[26] Primary reasons [50].
[27] Primary reasons [50].
(a)if the Tribunal in the Martin Arbitration finds that Bianca and John do not have any proprietary interest in the Tenements, they will not be a necessary party in the WPPL proceedings and their claims and contentions (including part of the Acquisition Matter and Debt Reconstruction Matter) would not need to be resolved by this court;
(b)if the Martin Arbitration finds that the relevant deeds of settlement were binding on Bianca and John, in particular the Hope Downs Deed, and made orders restraining them from continuing their claims, the HPPL parties may seek to enforce those orders in this court precluding Bianca and John's defence from being run at all;
(c)Bianca and John would be bound by the finding in the Martin Arbitration and an issue estoppel may arise as it is likely to be found that it is a clear abuse of process for them to argue that they have any interest in the Tenements;
(d)if (a), (b) or (c) is the result of the award in the Martin Arbitration, the consequence will be that the Acquisition Matter in the WPPL proceedings will become confined to the question of whether Hancock Mining Ltd and Hancock Resources Ltd held the Tenements on trust for the Partnership for HPPL to be held subject to the rights and interests of the Partnership, or trust for HPPL alone. The Debt Reconstruction Matter will fall away entirely. This will mean, on HPPL's estimate, that the trial in the Curial Proceedings could take as little as five weeks (as opposed to the 15 ‑ 19 weeks for which it is presently set down), as well as removing the need to review and hear submissions upon thousands of documents.
(ii)further, a stay would prevent Bianca and John from ventilating otherwise confidential matters in open court in breach of the deed, and to the great prejudice of the HPPL parties and others in respect of whom Bianca and John are likely to make disparaging allegations.[28] In addition, a stay would avoid the inevitable delay and further disputes arising when the award is issued.[29]
As will be seen, in our view this summary accurately reflects the HPPL parties' submissions to her Honour.
[28] Primary reasons [51].
[29] Primary reasons [52].

The primary reasons

The learned primary judge delivered her decision on the HPPL parties' applications on 14 December 2022, a little under three weeks following the hearing of the applications.
After setting out the background of the proceedings, including this court's previous decisions, her Honour turned to consideration of the matters raised by the HPPL parties in support of their applications. As will be seen, her Honour made a number of observations and drew a number of conclusions in this part of the reasons, to which her Honour later made reference in the dispositive part of the reasons.
In setting out the learned primary judge's reasons, we have used the numbering of the headings adopted in the primary reasons. We have also, in the course of summarising the primary reasons, identified the principal parts of the reasons that are challenged by the grounds of appeal.

Consideration of the HPPL parties' contentions

6.1 Issue estoppel

In relation to the potential prejudice of issue estoppels binding the arbitral parties in the Martin Arbitration arising from a judgment in the curial proceedings, the learned primary judge held:
[104]… there is now no realistic possibility of issue estoppels arising from a judgment in these proceedings binding the arbitral parties in the Martin Arbitration.
[105]First, this is because the Martin Arbitration will be bound to make an award based only on the evidence already adduced and the submissions that are presented to it in March 2023.
[106]Second, and in any event, given the current status of the two sets of proceedings, the overwhelming likelihood is that a judgment in the Curial Proceedings will be delivered long after an award is delivered in the Martin Arbitration.
[107]The Martin Arbitration will have had a head start of approximately nine months on the commencement of the trial of the Curial Proceedings. In addition, there are three eminent and experienced arbitrators who comprise the tribunal in the Martin Arbitration, whereas the trial of the Curial Proceedings will be conducted by a single judge.
[108]When regard is had to these circumstances, it is difficult to contemplate how a decision could be given following the trial of the Curial Proceedings prior to the delivery of an award in the Martin Arbitration.
For these reasons, her Honour found that the risk of any issue estoppel arising from the findings in the curial proceedings giving rise to issue estoppels in the Martin Arbitration was unlikely and remote. The learned primary judge held that, for that reason, this factor should not be given any weight.[30]
[30] Primary reasons [109].
This conclusion is challenged by ground 3.
In relation to the Rhodes Arbitration, the learned primary judge found that the Rhodes Arbitration had not been effectively commenced, that the HPPL parties had refused to allow the Rhodes parties to join the Martin Arbitration, and that the HPPL parties had expressed an intention not to be joined to any arbitration concerning the Rhodes parties and the Children.[31] Her Honour also observed that Bianca and John made no submissions about the prospect of findings in the curial proceedings giving rise to any issue estoppels binding on the parties to the Rhodes Arbitration.[32]
[31] Primary reasons [111] ‑ [112].
[32] Primary reasons [111].
By contrast, the curial proceedings were effectively ready for trial. Therefore, any risk of issue estoppels in the Rhodes Arbitration may never materialise if the Rhodes Arbitration does not proceed, whereas the delay from granting a stay would be both very substantial and highly uncertain.[33]
[33] Primary reasons [112].
The learned primary judge also found that it was highly uncertain whether an award in the Martin Arbitration would or could render the Rhodes Arbitration moot because the Rhodes parties were not parties to the Martin Arbitration and no findings made in the Martin Arbitration in an award could bind them.[34]
[34] Primary reasons [113].
The learned primary judge found that, in light of the uncertainty as to whether the Rhodes Arbitration would progress at all, or as to the rate of its progression, this factor could not properly attract any weight in favour of a stay or adjournment and, consequently, should not be given any weight.[35]
[35] Primary reasons [114].
This conclusion is challenged by ground 4.

6.2 What could potentially be the result of the Martin Arbitration?

The learned primary judge observed that, in response to questions from the bench, the HPPL parties posited the following scenarios that could result from potential findings in the Martin Arbitration:[36]
(a)The arbitration agreement is found to be valid, and Bianca and John are found to be bound by the releases in the Hope Downs Deed – the result would necessarily, according to the HPPL parties, be that Bianca and John would be prohibited by an issue estoppel or abuse of process from proceeding with their defences in the curial proceedings.
(b)The arbitration agreement is found to be valid, but the releases in the Hope Downs Deed are found to be invalid – the result would be that the underlying facts of the disputed matters in the arbitration would need to be decided and the outcome would either be that the HPPL parties would be successful, or Bianca and John would be successful in establishing their claim that the tenements were held on trust for the HFMF Trust.
(c)The arbitration clause in the Hope Downs Deed is set aside. This would result in the arbitrators finding that they have no jurisdiction to make any findings about the controversies between Bianca and John and the HPPL parties in the arbitral proceedings. The result would be that 'it would be necessary to effectively start again in [the learned primary judge's] hearing because there would need to be pleadings between Bianca and John and HPPL that have been referred off to arbitration. And the whole of the dispute between Bianca and John and HPPL will need to be pleaded and heard'.
[36] Primary reasons [115] ‑ [117], citing ts 2826 ‑ 2831.
Her Honour said that the HPPL parties went on to submit that if the arbitration agreement stands and the releases are found to be invalid, and if Bianca and John are found to have a proprietary interest in the tenements because the tenements were held on trust for HFMF, the HPPL parties would be bound by that finding. That would fundamentally alter the nature of the HPPL parties' defence to WPPL's claim (which is predicated on HDIO holding the requisite interest in the tenements). The 'contest' would then be between WPPL and Bianca and John as to who has the better title.[37]

6.3 Are the potential findings in the Martin Arbitration uncertain, and what could be the potential effect of those findings on the disputes between the plaintiffs and Bianca and John?

[37] Primary reasons [117], citing ts 2830.

The learned primary judged recorded that the HPPL parties argued that the entirety of the 'Acquisition Matter' and the 'Debt Reconstruction Matter' (as her Honour used those expressions) cannot be resolved in the Rhodes proceedings until any Rhodes Arbitration is determined. They argued that unless and until the Rhodes Arbitration is determined, or is rendered moot by the award in the Martin Arbitration, the Rhodes parties cannot be granted any final relief in the Rhodes proceedings.[38]
[38] Primary reasons [130].
It is important to recognise, as we have noted at [45] above, that her Honour used the terms 'Acquisition Matter' and 'Debt Reconstruction Matter' in the broad sense of all issues between all parties as to those topics, rather than in the narrower sense used in the Rhodes stay appeal – namely the matters the subject of the stay (and the referral to the Rhodes Arbitration) (as explained at [56] ‑ [58] above). In other words, her Honour used the terms 'Acquisition Matter' and 'Debt Reconstruction Matter' to connote what we have described as the 'Acquisition Issue' and the 'Debt Reconstruction Issue'.
The HPPL parties submitted that the matters referred to the Rhodes Arbitration would likely be rendered moot by the award in the Martin Arbitration. They argued that if they succeed in the Martin Arbitration, the Rhodes Arbitration will be rendered moot.[39] They also argued that the whole of the Debt Reconstruction Matter in the Rhodes proceedings has been referred to the Rhodes Arbitration, and that the entirety of the Acquisition Matter also cannot be determined in the Rhodes proceedings.[40]
[39] Primary reasons [116] ‑ [121].
[40] Primary reasons [122] ‑ [130].
Thus, the HPPL parties argued, the Rhodes parties could not be granted any final relief.
The HPPL parties argued that, where there is a competition between the Rhodes parties and WPPL as to who has the better title to the tenements, it is impossible to determine that competition because the Rhodes parties claim a competing equity to the tenements to that sought by WPPL.[41] The learned judge observed that it was strongly arguable that the Rhodes parties claim a different interest to WPPL as they (the Rhodes parties) do not claim a proprietary interest and that, in any event, that was a matter for trial and any prejudice at this point would lay with WPPL and/or the Rhodes parties, not the HPPL parties.[42]
[41] Primary reasons [131], citing ts 2838.
[42] Primary reasons [131].
The learned primary judge found that the HPPL parties' contentions could not be made out for the following reasons:[43]
(a)All the findings made by the Martin Arbitration can only bind the parties to the arbitration in contract and can only affect the rights of the arbitral parties inter se.[44]
(b)WPPL and the Rhodes parties are not parties to the Hope Downs Deed, nor parties to the Martin Arbitration, and so could not be bound by any finding made in the Martin Arbitration.
(c)The Rhodes parties raise an alternative plea in their reply which is part of the Acquisition Matter not the subject of a referral to arbitration, and so the Rhodes parties can potentially obtain relief against Bianca and John in the curial proceedings.
[43] Primary reasons [133].
[44] Citing TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; (2013) 251 CLR 533 [28] ‑ [29], [108]; Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2022] SASCA 107; (2022) 406 ALR 293 [182].
The learned primary judge found, citing the findings of Beech and Vaughan JJA in the first stay appeal and the first stay appeal (supplementary),[45] that it would likely be necessary to litigate issues in the curial proceedings even if they had been decided between the arbitration parties in the Martin Arbitration.[46] Her Honour said that, given that the award in the Martin Arbitration would be no more than a contractual process between the relevant arbitration parties, it could not preclude the court from granting any of the relief sought by WPPL (or the Rhodes parties).[47]
[45] First stay appeal [402]; first stay appeal (supplementary) [124] ‑ [127].
[46] Primary reasons [136].
[47] Primary reasons [137].
The learned primary judge found that further, and in any event, there was uncertainty as to the findings that might be made in the Martin Arbitration.[48] In particular, it was possible that the Martin Arbitration might not make any findings about the Acquisition Matter or the Debt Reconstruction Matter. The learned primary judge identified various hypothetical scenarios in which the Martin Arbitration might not make any findings on those matters, such as the tribunal finding that the arbitration agreement is null and void or finding that the releases are valid.[49]
[48] Primary reasons [138].
[49] Primary reasons [139] ‑ [141].
The learned primary judge then addressed the HPPL parties' submission that the Rhodes parties would be prohibited from obtaining relief in the curial proceedings because, as they argued, 'the entire controversy about the Acquisition Matter raised in Bianca and John's amended defence, and the entire Debt Reconstruction Matter, have been referred to arbitration' (again, the italicised terms are in the broad sense used by her Honour).[50]
[50] Primary reasons [142].
The learned primary judge said that, even if, contrary to her Honour's view, the Rhodes parties would be prohibited from seeking relief in the curial proceedings until the matters referred to arbitration are determined in the Rhodes Arbitration, that consideration should not be given any weight because it is the Rhodes parties and not the HPPL parties who would be prohibited from seeking relief.[51] This conclusion is challenged by ground 2(e).
[51] Primary reasons [143].
More significantly, the learned primary judge was not persuaded that the Rhodes parties would be prohibited from seeking relief in the curial proceedings until a determination in the Rhodes Arbitration.
After again summarising Bianca and John's defences to WPPL's claim and the Rhodes parties' claims, the learned primary judge summarised the position as including that:
(a)Bianca and John's defences to WPPL's claim included both the Acquisition Matter and the Debt Reconstruction Matter (in the broad sense in which her Honour used those terms);[52]
(b)in WPPL's defence in the Rhodes proceedings, WPPL contends that if WPPL is held, in the WPPL proceedings, to be entitled to both the declaratory and other relief that it seeks, it accepts that, upon WPPL receiving the fruits of the judgment, the Rhodes parties would be entitled to be paid royalties;[53]
(c)in response to the Rhodes parties' claim, Bianca and John raise the same Debt Reconstruction Matter defence as they raise in the WPPL proceedings, although there is no stay affecting the WPPL proceedings in relation to that matter (noting again the broad sense in which her Honour used those terms); and[54]
(d)in the Rhodes parties' reply, the Rhodes parties raise three alternatives, two of which include part of the Acquisition Matter and the other the Debt Reconstruction Matter, which matters have been stayed and referred to arbitration.[55]
[52] Primary reasons [148].
[53] Primary reasons [150], citing second further amended defence [14](b), [29](a).
[54] Primary reasons [151].
[55] Primary reasons [152].
Her Honour observed that what had been referred to arbitration was the part of the Acquisition Matter whereby the Rhodes parties claim that the acquisition of the tenements by HML and HRL was a breach of duty owed to HPPL. However, part of the Acquisition Matter (broadly defined) had not been stayed, including the Rhodes parties' claim in [3.3.2.2] of their reply that any acquisition of the tenements by HML and HRL purporting to defeat the rights of the Partnership was in breach of duties owed to WPPL.
The Rhodes parties accordingly submitted that the court could hear Bianca and John's defence to the Rhodes parties' primary claim that the tenements are held on trust for the Children, and the part of the Rhodes parties' reply that contends that if the tenements were so dealt with it was in breach of HPPL's fiduciary duty to WPPL.[56] Insofar as the learned primary judge implicitly accepted this submission, her Honour's conclusion is challenged by ground 2(c).
[56] Primary reasons [156].
The learned primary judge referred to the parties' competing submissions as to whether the Rhodes parties' claimed interest is a proprietary interest. WPPL submitted that the Rhodes parties' claimed interest is not a proprietary interest, and that if the court finds that WPPL has an interest, then the Rhodes parties' relief can be granted against WPPL (and/or the HPPL parties).[57] The HPPL parties submitted that the Rhodes parties' interest is a proprietary interest that is in conflict with the interest claimed by WPPL.[58] Her Honour said that, while this was a matter for trial, there is authority contrary to a royalty interest being a proprietary interest.[59] This conclusion is challenged by ground 2(a).
[57] Primary reasons [156] ‑ [157].
[58] Primary reasons [158].
[59] Primary reasons [158] ‑ [160], citing Grimes Holdings Pty Ltd v Sceghi (Unreported, WASC, 20 August 1993, Library No 930453) (White J).
Her Honour observed that, in respect of the controversies that have been stayed and referred to arbitration in the Rhodes proceedings, the same defences of Bianca and John that form part of the controversies that have been so stayed are matters raised by them in the WPPL proceedings. The learned primary judge said that whether the Rhodes parties could make submissions about issues raised by Bianca and John in Bianca and John's defence to the WPPL proceedings that are part of the controversies that have been stayed in the Rhodes proceedings is a matter that can be dealt with at trial, and should not bear any weight when considering whether to stay or adjourn.[60]
[60] Primary reasons [161] ‑ 162].
The learned primary judge concluded that she was not persuaded that the HPPL parties' submissions on this point had sufficient merit to be given any weight when weighing the relevant factors in exercising the discretion.[61]
[61] Primary reasons [163].
This conclusion is challenged by grounds 1 and 2.

6.4 Does the fact that part of the controversies between Bianca and John, as raised in Rhodes' reply, have been stayed and referred to arbitration weigh in favour of an adjournment or stay?

The learned primary judge found that, given that the only step taken in the Rhodes Arbitration had been the appointment of an arbitrator by the Rhodes parties, the Rhodes Arbitration, if it proceeds, is likely to be in the distant future.[62]
[62] Primary reasons [165].
Her Honour reasoned that, in circumstances where WPPL commenced its action in 2010 and the Rhodes parties commenced their action in 2013, and when all of the other relevant factors are considered, it could not be found that there are rare and compelling circumstances which would justify a stay or adjournment of the trial (which was otherwise ready to commence in June 2023) pending the outcome of an arbitration that was yet to progress. Consequently, the learned primary judge said that she had not given this factor, 'alone or together with other factors', any weight.[63]
[63] Primary reasons [166] ‑ [167].
This conclusion is challenged by ground 2(b).

6.5 The risk of inconsistent decisions between the curial proceedings and the Martin Arbitration

The learned primary judge said that, even if there was merit in the HPPL parties' contentions that some issues in the curial proceedings are likely to be resolved by an award in the Martin arbitration, her Honour was not persuaded that that was likely. Her Honour said that all that could be found, at that point in time, to any degree of certainty, was that there was a risk of inconsistent findings between the Martin Arbitration and the curial proceedings.[64]
[64] Primary reasons [168] ‑ [169].
The learned primary judge said that WPPL could not be prohibited by the matters referred to arbitration from arguing at trial that Bianca and John's claimed interest should not preclude the grant of relief that WPPL seeks in respect of HPPL's alleged breach of fiduciary duty in 1989.[65] The learned primary judge found that because of the HPPL parties' forensic decisions to make applications to refer to arbitration matters which are overlapping issues in the curial proceedings between non‑parties to the arbitration, the risk of the duplication of resources and inconsistent decisions was and is inevitable and that, even if the application before her Honour were granted, the risk remained.[66]
[65] Primary reasons [171], citing the Rhodes stay appeal [247] ‑ [249].
[66] Primary reasons [172].
The learned primary judge held that this risk was therefore not to be regarded as a factor in favour of a stay or adjournment when weighed against the relevant factors.[67]
[67] Primary reasons [173].
This conclusion is challenged by ground 6.

6.6 The issues raised by the HPPL parties' stated intention to tender the Hope Downs Deed in the curial proceedings in the event that they are successful in the Martin Arbitration

The learned primary judge then turned to the use of the Hope Downs Deed in the curial proceedings. While much of this part of the primary reasons, consistently with the heading, refers to the tender of the Hope Downs Deed, it is apparent from the reasons as a whole that her Honour also addressed in this context the broader submissions of the HPPL parties in relation to the impact of their potential success in the Martin Arbitration.
In this regard, as we will come to, to the extent that this part of the primary reasons includes some imprecision of language or unhappy phrasing, in the context of an application for leave to appeal against a case management decision, our focus is on the substance of whether her Honour properly addressed, and gave consideration to, the issues raised before her Honour, rather than on the precise form of the reasons.
In that regard, in the opening paragraphs of this part of the reasons, the learned primary judge referred to the HPPL parties' submission that in the Martin Arbitration they seek to restrain, by way of injunction, Bianca and John from asserting that they own the tenements, including by way of defence in the curial proceedings. The HPPL parties also submitted that if Bianca and John are so restrained, that will be the end of their defence in the curial proceedings because, pursuant to s 35 of the Act, the award will immediately be binding upon them, without any application to this or any other court.[68]
[68] Primary reasons [176].
The learned primary judge observed, however, that to enforce the award, an application must be made to the court pursuant to s 35 and s 36 of the Act. Consequently, to 'deploy' the Hope Downs Deed, the HPPL parties would need to make an application pursuant to s 35.[69]
[69] Primary reasons [177].
Her Honour recorded that the HPPL parties submitted that if the Martin Arbitration was determined in their favour, and the deed tendered, the trial length would shorten considerably because the deed would defeat the claim by Bianca and John that the tenements were acquired for the Children's benefit.[70] The learned primary judge found that it had been the stated objective of the HPPL parties to tender the deed in the curial proceedings since at least the first stay appeal.[71]
[70] Primary reasons [178].
[71] Primary reasons [179], citing ts 2862.
The HPPL parties submitted, the learned primary judge said, that they would suffer prejudice if the trial commenced prior to an award in the Martin Arbitration because they could not then make an application to tender the Hope Downs Deed.[72] Further, the learned primary judge said that the HPPL parties submitted that if the trial concluded before the Martin Arbitration award was delivered, the HPPL parties would have to apply to reopen the evidence to tender the deed.[73] This summary of the HPPL parties' submissions as to their use of the deed is challenged by ground 7 and is also raised by ground 8.
[72] Primary reasons [180], citing ts 2804.
[73] Primary reasons [189].
Her Honour noted that the HPPL parties pointed to the following various ways they could rely on the Hope Downs Deed in the curial proceedings:
(a)as a complete answer to WPPL's second alternative claim in [53C] of the 6FASSOC – although the learned primary judge noted that the deed was not pleaded, adding that the HPPL parties said they can only do so after the award is issued in the Martin Arbitration;[74] and
(b)if the HPPL parties are successful in the Martin Arbitration, as a basis for an issue estoppel or abuse of process argument as against Bianca and John, which would result in [53C] of the 6FASSOC claim falling away.[75]
[74] Primary reasons [181].
[75] Primary reasons [182] ‑ [184].
The learned primary judge summarised the parties' submissions as to the potential reduction of the length of the trial if the overlapping issues are removed from the curial proceedings. The parties gave differing estimates. The HPPL parties submitted that the trial would be significantly shortened and could be heard in around 20 days.[76] The HPPL parties also claimed that thousands of documents relating to Bianca and John's defence would not need to be received and considered by the court.[77] WPPL contended that even if the allegations made by Bianca and John in their defence were not litigated in the curial proceedings, the trial still may take somewhere between 36 to 56 days.[78]
[76] Primary reasons [186].
[77] Primary reasons [185] ‑ [186].
[78] Primary reasons [188].
The learned primary judge ultimately concluded that whether the trial would or could be shortened was uncertain.[79]
[79] Primary reasons [190].
The learned primary judge also said that, if the award delivered by the Martin Arbitration is to the effect that both the arbitration agreement and the Hope Downs Deed fail, it would then be necessary to start the hearing again because there would need to be pleadings as between Bianca and John and the HPPL parties in respect of their stayed counterclaims.[80]
[80] Primary reasons [191], citing ts 2826 ‑ 2827.
The learned primary judge noted that this court had accepted that it is not certain that WPPL, as a non‑party to the deed, would obtain a benefit from the extinguishment of any claim by Bianca and John affected by the release in the deed.[81] Her Honour observed that, in any event, it was not certain that, even if they were unsuccessful in the Martin Arbitration, Bianca and John would be precluded (by doctrines of abuse of process or issue estoppel) from agitating their defences in the curial proceedings.[82] Her Honour discussed a number of competing arguments in that regard.
[81] Primary reasons [192], citing the first stay appeal (supplementary) [126].
[82] Primary reasons [193] ‑ [194], citing Michael Wilson & Partners Ltd v Sinclair [2017] EWCA Civ 3 [67], [68], [87].
As to other possible outcomes of the Martin Arbitration, her Honour said that, as WPPL had pointed out, if the Martin Arbitration declines to set aside the Hope Downs Deed, it does not follow that the Martin Arbitration will necessarily order injunctive relief restraining Bianca and John from maintaining their defence to these proceedings. The Martin Arbitration may conclude that the undertaking in cl 7(b) of the Hope Downs Deed ('not to challenge the right of any member of the Hancock Group to any of the Hancock Group Interests at any time') does not prevent Bianca and John from maintaining a claim over the 50% interest in the tenements claimed by WPPL.[83]
[83] Primary reasons [200].
In relation to the tender of the Hope Downs Deed, the learned primary judge also said:[84]
In addition, if HPPL succeeds in the Martin Arbitration in respect of its arguments about the Hope Downs Deed, there may be real doubt as to whether the Hope Downs Deed can be tendered in the trial of the Curial Proceedings by the HPPL parties, when it does not plead reliance on the deed in its defence against either Rhodes or WPPL. This point, however, may be capable of being met by an application by the HPPL parties to amend their defences.
The HPPL parties reject any contention that they could seek to make an application in the trial that the deed be accepted into evidence on a provisional basis or marked for identification for the purposes of tender if an award is subsequently made in their favour after the evidence closes in the Curial Proceedings. I do not accept this contention. It clearly would be open to the HPPL parties to make such an application. Whether such an application should be accepted by the court would be a matter for argument at trial, which argument is likely to concern the effect, if any, of the terms of the deed as between the plaintiffs and Bianca and John.
[84] Primary reasons [198] ‑ [199].
The learned primary judge concluded, in relation to these issues, that:[85]
When regard is had to all of these matters, it cannot be found with any degree of certainty as to what will be the effect of an award in the Martin Arbitration, if the HPPL parties are successful in the arbitration. In particular, it is not clear whether some issues will fall away or not.
This is a factor that weighs in favour of a stay or adjournment that I must consider in the exercise of the discretion, together with all other relevant factors that should be given weight. This factor and the weight that it should be given is considered below in 8.0.

6.7 Potential effect on the curial proceedings if the Martin Arbitration finds it has no jurisdiction to determine the disputes between the HPPL parties and the other parties to the Hope Downs Deed

[85] Primary reasons [201] ‑ [202].

Her Honour recorded that the parties disagreed as to the effect on the curial proceedings if the Martin Arbitration concludes that the arbitration agreements are null and void, and that the dispute between Bianca and John and the HPPL parties will have to be resolved in court.[86]
[86] Primary reasons [203] ‑ [205].
The learned primary judge in effect addressed both parties' hypothesised scenarios, saying that the risk of the following scenarios were matters that weighed in favour of a stay or adjournment:[87]
(a)the trial of the curial proceedings having to be reopened with additional pleadings, evidence and further submissions if an application is granted to lift the stay and referral orders, resulting in the counterclaims being reactivated (the HPPL parties' hypothesis); or alternatively
(b)inconsistent decisions resulting from the plaintiffs' claims and the counterclaims being conducted in separate trials, the other trial being in the Federal Court proceedings instituted by Bianca and John and currently stayed (WPPL's and the Rhodes parties' hypothesis).
[87] Primary reasons [207].
Her Honour observed that this eventuality was not one raised by the HPPL parties in their written submissions, but rather was raised following questions from the bench as to what could be the effect of a finding by the Martin Arbitration that the arbitration agreement was void and invalid. Her Honour stated that the weight to be given to this factor would be considered in pt 8.0 of the reasons.[88]

6.8 The length of a stay or adjournment sought by the HPPL parties

[88] Primary reasons [208] ‑ [209].

The learned primary judge noted that the HPPL parties sought a stay until the award is issued and any disputes related thereto are resolved.[89] Her Honour noted a slight shift in the HPPL parties' position when they stated that an adjournment of six months may be sufficient.[90]
[89] Primary reasons [210].
[90] Primary reasons [211].
The learned primary judge considered that, in light of the parties' litigious history, enforcement of the award would likely be challenged by the unsuccessful party, including by way of appeal, and that any disputes arising from the Martin Arbitration could take up to two or three years to resolve.[91] There is no challenge to this conclusion.

6.9 Other issues, including confidentiality

[91] Primary reasons [212] ‑ [213].

The learned primary judge observed that courts routinely hear cases in open court that arise out of relationships that are subject to express or implied obligations of confidentiality. Her Honour said that '[p]arties cannot by agreement cloak their prior dealings in secrecy and shield them from the normal processes of the administration of justice'.[92]
[92] Primary reasons [218], citing Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311 [42], [45], [49] ‑ [51].
The learned primary judge found that, in any event, it would be open to the parties to apply for suppression orders during the course of the trial.[93]
[93] Primary reasons [219].
The learned primary judge therefore did not consider that this factor should be given much weight.[94]

The prejudice that WPPL and the Rhodes parties claim they would suffer if the adjournment or stay were granted
[94] Primary reasons [220].

WPPL and the Rhodes parties submitted that the application interfered with their rights as plaintiffs to prosecute their claims to a conclusion.[95] They submitted that they would be subjected to a stay or adjournment that would be of substantial duration, highly uncertain and, practically speaking, beyond their control or influence.[96]
[95] Primary reasons [221].
[96] Primary reasons [223].
WPPL submitted that the HPPL parties offered no sound basis for a stay and that the problems they raised were either illusory or the inevitable result of their own forensic choices.[97] WPPL submitted also that much of its pre‑trial work would need to be repeated in the event of new trial dates, which would lead to substantial duplication of time and costs.[98] Further, two of WPPL's expert witnesses were of advancing age.[99]
[97] Primary reasons [224].
[98] Primary reasons [225].
[99] Primary reasons [226].
The Rhodes parties submitted that although Rhodes is a wealthy private company, it is a family company, and the delay in finalisation of the curial proceedings is of real significance.[100]
[100] Primary reasons [227] ‑ [232], citing Affidavit of Godfrey Edward Taylor 15 November 2022 [25] ‑ [36].
Her Honour's dispositive reasoning is set out in pt 8 of the primary reasons.

Should the curial proceedings be adjourned or stayed?

The learned primary judge said, '[w]hen all the relevant factors are accorded weight and weighed together, the short answer to this question is, no'.[101]
[101] Primary reasons [233].
The learned primary judge held that, other than there now being a conceivably shorter duration of delay, the considerations that strongly militated against a stay that the Court of Appeal took into account in the first stay appeal in 2020 (at [121] and [134] of the first stay appeal (supplementary)) largely remain unchanged.[102]
[102] Primary reasons [235].
The learned primary judge held:[103]
[103] Primary reasons [236].
The factors that strongly militate against an adjournment or stay of the Curial Proceedings at this present time are as follows:
(a)The Curial Proceedings have been on foot for many years, relate to events that occurred a long time ago, and on the plaintiffs' cases, each of them acquired their interests in the Tenements well before the Hope Downs Deed was entered into.
(b)The plaintiffs and the public have an obvious and important interest in the claims being resolved as soon as possible.
(c)From the plaintiffs' perspective, there is no proper reason why their interests should be adversely affected by the arbitration agreement in the Martin Arbitration as they are strangers to the Hope Downs Deed. For the reasons I gave in 6.3, I am not satisfied that the controversies between Bianca and John and Rhodes depend upon the determination of the matters that have been referred to the Rhodes Arbitration. These matters may not be rendered moot by findings made in the award of the Martin Arbitration. More importantly, for the reasons I give in 6.3, I am not satisfied that the court will not be able to finally determine Rhodes' and WPPL's claims until the question of Bianca and John's claimed interest in the Tenements is resolved in the Martin Arbitration.
(d)It is by no means certain that either WPPL or Rhodes, as a non‑party to the Hope Downs Deed, would obtain the benefit of any extinguishment of any claim by Bianca and John that is effected by a release in the Hope Downs Deed.
(e)The plaintiffs will not be bound by any outcome of the Martin Arbitration, which means there is a risk of duplication of resources and inconsistent decisions in any event, even if a stay or adjournment is ordered.
(f)Although the Martin Arbitration has commenced, it will not be finally completed until the end of March 2023. WPPL, Rhodes and the HPPL parties agree that an award in the Martin Arbitration may be delivered by the end of 2023 and the process of any unsuccessful party resisting enforcement may not be completed until March 2024. As Beech and Vaughan JJA found, the delay consequent upon a grant of a stay is magnified by the prospect of curial challenges to an arbitral award. Although the HPPL parties sought an adjournment of the trial until at least September 2024, they indicated they would embrace a more limited adjournment of the trial as WPPL but as Rhodes point out there could be no guarantee that they would not have to face a further application by the HPPL parties for a stay or an adjournment.
(g)The family members that stand behind at least Rhodes have suffered stress and have been subjected to the strain that litigation imposes upon litigants when proceedings are delayed.
(h)A refusal of an adjournment or stay advances the goal in O 1 r 4A of the Rules of the Supreme Court by minimising delays in the resolution of disputes whilst ensuring the fair and just determination of issues between parties.
Many of these conclusions are challenged – see grounds 2 and 5.
The learned primary judge reiterated which factors, relied on by the HPPL parties, her Honour gave little or no weight:[104]
(a)For the reasons I give in 6.1, the risk of any issue estoppel arising from findings made in the Curial Proceedings giving rise to issue estoppel in the Martin Arbitration is unlikely and remote.
(b)For the reasons I give in 6.1 and 6.4, it is highly uncertain as to whether an award in the Martin Arbitration would or could render the Rhodes Arbitration moot, and, in any event, it is uncertain as to whether the Rhodes Arbitration will progress at all with the rate of its progression unknown.
(c)For the reasons I give in 6.9, any real risk to confidential matters being disclosed in open court can be dealt with by an appropriate order where it is appropriate to make such an order after having regard to the principles of open justice.
[104] Primary reasons [237].
The learned primary judge said that the risk of inconsistent findings was a neutral factor because there was a risk of duplication of resources and decisions in any event, because, for the reasons in pts 6.3 and 6.5, the Martin Arbitration cannot bind the plaintiffs.[105] The learned primary judge said that the prospect of the trial being shortened was a neutral factor because, although, as discussed in pt 6.6 of the reasons, there is a prospect that the length and complexity of the issues in the curial proceedings could be considerably shortened, due to the confidentiality of arbitration, the court could not properly assess the likelihood of any outcomes and thus of any consequent shortening.[106] Ground 5 challenges the first, and ground 6 challenges the second, of those conclusions.
[105] Primary reasons [238].
[106] Primary reasons [238].
The learned primary judge then identified the factors that must be weighed in favour of a stay or adjournment. Her Honour said:
[240]It must be accepted that because a decision in the Curial Proceedings is unlikely to be delivered prior to the delivery of an award in the Martin Arbitration, and the award is unlikely to be delivered prior to the commencement of the trial, there will be issues that will arise as to the effect and enforcement of the award which could give rise to arguments about:
(a)the tender of the Hope Downs Deed, issue estoppel and abuse of process if Bianca and John are found not to have a proprietary interest in the Tenements in the Martin Arbitration (which issues are discussed in 6.6 of these reasons). If, at the time the award in the Martin Arbitration is delivered, the evidence and submissions in the Curial Proceedings have been concluded and the decision in the trial is reserved, it may be necessary for the HPPL parties to make an application to reopen the proceedings; or
(b)alternatively, if the Martin Arbitration concludes that the arbitration agreements are null and void, it may become necessary to reopen the proceedings and interlocutory steps taken to enable defences to Bianca and John's counterclaims against WPPL by the HPPL parties to be pleaded and be heard.
[241]Given that the prospect of [240(b)] was not raised by the HPPL parties in their written submissions or in their oral submissions until questions were asked by the bench, and were not raised by the HPPL parties or Bianca or John in any previous application for a stay of the Curial Proceedings, the prospect of such a result of the Martin Arbitration should be not regarded as likely and should be accorded little weight.

The primary judge did not err as asserted in sub‑ground 5(g). Her Honour expressly referred to the evidence as to a possible shortening of the trial if issues fell away as a result of findings in the Martin Arbitration.[195] The primary judge also referred to the possibility that the length and complexity of the issues could be 'considerably shortened'.[196] The weight to be attributed to this factor was a matter within her Honour’s discretion.
[195] Primary reasons [188]. See also primary reasons [186].
[196] Primary reasons [238](b).
Ground 5 fails.

Ground 6 – inconsistent findings

By ground 6 the appellants alleged that the learned primary judge erred in law in finding that the risk of inconsistent findings in the Martin Arbitration and the curial proceedings should not be considered as a factor in favour of a stay or adjournment.
The learned primary judge found that there is a risk of inconsistent findings arising out of the award in the Martin Arbitration and the curial proceedings.[197] There is no challenge to that finding. Rather, the HPPL parties contended that the error lay in the finding that the risk of inconsistent findings was a neutral factor[198] because:
(a)her Honour found that the Martin Arbitration would not have any effect on the WPPL proceedings, as the same issues would need to be relitigated in the WPPL proceedings, whereas – on the HHPL parties' case – the Martin Arbitration would have substantial effects by reason of the matters addressed in ground 5; and
(b)the risk of inconsistent decisions was the product of forensic decisions by the HPPL parties to apply for various matters to be referred to arbitration.
[197] Primary reasons [169].
[198] Primary reasons [173], [238](a).
The first aspect of the HPPL parties' challenge by ground 6 is derivative upon, and falls with, ground 5. In any event, the HPPL parties did not challenge the primary judge's conclusion that there was a risk of inconsistent findings. The reason her Honour characterised this factor as being a neutral factor, as opposed to being a factor in favour of a stay or adjournment, was that the risk of inconsistent findings was inevitable as WPPL could not be bound by any adverse outcome (in the sense of adverse to the interests WPPL contends for in the WPPL proceedings) in the Martin Arbitration. This court has already found that to be the case.[199] There was no error in the learned primary judge taking the same approach.
[199] First stay appeal reasons (supplementary) [127].
The second aspect of the HPPL parties' challenge by ground 6 is based on a misreading of the primary reasons.
The HPPL parties submitted that the primary judge characterised the prospect of inconsistent findings as a neutral factor because any such inconsistency was the result of the HPPL parties' forensic decisions. The HPPL parties submitted that it would be an injustice, and contrary to the legislative policy underpinning s 8 of the Act, for a party to be prejudiced merely on account of it seeking to enforce its contractual rights of arbitration. There is support for this argument in the first stay appeal reasons (supplementary).[200] However, the HPPL parties' contention breaks down before getting to the legal proposition: it is not the case that her Honour reasoned that the factor was neutral on the ground that the risk of inconsistent decisions was the result of the HPPL parties' forensic decisions.
[200] First stay appeal reasons (supplementary) [147].
In the relevant passage, the primary judge stated:
Because of the forensic decisions made by the HPPL parties to make applications to have matters referred to arbitration which are overlapping issues in the Curial Proceedings between non‑parties to the arbitration, the risk of the duplication of resources and inconsistent decisions was and is inevitable and, even if the present application is granted, this risk remains.[201]
[201] Primary reasons [172].
Reading the passage fairly and in context, as part of the primary reasons as a whole, the learned primary judge was not reasoning that the factor was neutral because the risk of inconsistent decisions was the result of forensic choices made by the HPPL parties. The reference to the HPPL parties' forensic decisions was only to explain the factual backdrop that made the risk of inconsistent decisions inevitable. It was the inevitable risk of inconsistent decisions, whatever the sequencing, that meant that the factor was assessed as being neutral. Nothing in that bespeaks discretionary error on the part of the learned primary judge in the terms contended for by ground 6.
Ground 6 fails.

Grounds 7 ‑ 9 – the Hope Downs Deed

Ground 7 – alleged misapprehension as to the effect of the HPPL parties' submissions

By ground 7 the HPPL parties contended that the learned primary judge erred in stating the effect of the HPPL parties' submissions concerning the tender of the Hope Downs Deed.
In substance, the HPPL parties' argument in support of ground 7 is that:[202]
(a)her Honour understood the HPPL parties' submission to be that they could only tender the Hope Downs Deed if successful in the Martin Arbitration; and
(b)in fact, the submission was that the HPPL parties intended to tender the Hope Downs Deed before the award – indeed, as then senior counsel for the HPPL parties colourfully submitted in the primary hearing, on 'day 1' of the trial.[203]
[202] Ground 7. See also appellants' submissions [63] ‑ [65], [68].
[203] ts 2962.
It may be, as we observed at [244] above, that her Honour misstated the effect of the HPPL parties' submissions as to when and how the HPPL parties might tender the Hope Downs Deed in the curial proceedings.[204] However, any misapprehension as to the effect of the HPPL parties' submissions was immaterial to the exercise of the learned primary judge's discretion. Her Honour held that it was open to the HPPL parties to make an application that the Hope Downs Deed be admitted on a provisional basis or marked for identification.[205]
[204] See for example primary reasons [176] ‑ [177], [180], [183], [189].
[205] Primary reasons [199], [243].
Critically, as far as ground 7 is concerned, the learned primary judge accepted there would be issues and could be arguments about the tender of the Hope Downs Deed insofar as the award in the Martin Arbitration was unlikely to be delivered prior to the commencement of trial in the curial proceedings.[206] This, in her Honour's view, was the factor to be given the most weight in favour of a stay or adjournment of the trial.[207]
[206] Primary reasons [240](a).
[207] Primary reasons [242].
Accordingly, insofar as issues and arguments about the tender of the Hope Downs Deed might prejudice the HPPL parties, the learned primary judge took into account and gave significant weight to this factor. Her Honour, with respect correctly, determined that this was a factor in favour of a stay or adjournment. Any apparent misapprehension as to the effect of the HPPL parties' submissions as to when they intended to deploy the Hope Downs Deed was immaterial to the exercise of her Honour's discretion.
Ground 7 fails.

Ground 8 – alleged necessity to plead the Hope Downs Deed

By ground 8 the HPPL parties contended that the learned primary judge erred in law in finding that the HPPL parties would need to plead reliance on the Hope Downs Deed.
In support of ground 8, the HPPL parties submitted that the Hope Downs Deed was not a matter that needed to be pleaded – it was said to be simply a matter of evidence relied on by the HPPL parties that contradicted the alternative claim to which [53C] of the 6FASSOC is directed.[208]
[208] Appellants' submissions [64].
Ground 8 is expressed to be '[b]y reason of ground 7'. Ground 8 is thus conditional on ground 7 and cannot stand with the dismissal of ground 7. Putting this to one side, ground 8 goes nowhere when considered on its merits. It is true that the learned primary judge recorded that the HPPL parties did not plead the Hope Downs Deed in their defence in answer to WPPL's plea in [53C].[209] But the primary judge did not find – as is asserted by ground 8 – that the HPPL parties would need to plead reliance on the Hope Downs Deed. Rather, what her Honour stated was that 'there may be real doubt as to whether the Hope Downs Deed can be tendered in the trial of the Curial Proceedings by the HPPL parties, when it does not plead reliance on the deed in its defence against either Rhodes or WPPL'.[210] Accordingly, the primary judge did not err in the manner alleged in ground 8. Her Honour expressed 'real doubt' but stopped short of finding that there was a necessity to plead reliance on the Hope Downs Deed.
[209] Primary reasons [181].
[210] Primary reasons [198].
Further, her Honour noted that, even if the HPPL parties had to plead reliance on the Hope Downs Deed, the point may be capable of being dealt with by an application by the HPPL parties to amend their defence.[211] Thus the pleading point was not an answer to the potential risk of prejudice to the HPPL parties arising from possible issues and arguments about the tender of the Hope Downs Deed insofar as the award in the Martin Arbitration was unlikely to be delivered prior to the commencement of trial in the curial proceedings. It was for this reason that, as has been seen, the learned primary judge went on to find that the issues and arguments as to the admissibility of the Hope Downs Deed was a factor to be given weight in favour of a stay or adjournment of the trial.
[211] Primary reasons [198].
In the latter respect, even if there was an error in terms of ground 8, the error was immaterial to the exercise of the learned primary judge's discretion. However, properly understood, there was no such error – her Honour did not find that the HPPL parties would need to plead reliance on the Hope Downs Deed.
Ground 8 fails.

Ground 9 – alleged failure to consider and find great complexities and prejudice in relation to the Hope Downs Deed

By ground 9 the HPPL parties contend that the learned primary judge erred in law, '[b]ecause of the errors set out in appeal grounds 7 and 8', by failing to consider the HPPL parties' submissions concerning the significance of the Hope Downs Deed and by failing to find that great complexities would arise, and that prejudice would be suffered by the HPPL parties, were a trial in the curial proceedings to proceed without first awaiting the outcome of the Martin Arbitration.
Senior counsel for the HPPL parties said that the HPPL parties' point was a simple one: if the court waited for the determination of the Martin Arbitration, all of the 'sophisticated problems' arising in relation to the Hope Downs Deed will 'go away'. Senior counsel said that the primary judge should have found that this point favoured a stay or adjournment.[212]
[212] Appeal ts 48.
In its terms, ground 9 is premised on success of one or both of grounds 7 and 8. Both have failed. It follows that ground 9 must fail.
In any case, although the learned primary judge did not adopt the language of 'great complexities', her Honour plainly accepted that issues and arguments would arise about the tender of the Hope Downs Deed by proceeding to start the trial of the curial proceedings when the award in the Martin Arbitration had not been handed down. While pointing to possible procedural options that might ameliorate and overcome these difficulties,[213] her Honour also accepted that this created a risk of prejudice to the HPPL parties and was a factor to be given weight in favour of a stay or adjournment of the trial.[214] Accordingly, contrary to the implicit premise of ground 9 and the HPPL parties' argument in support of ground 9, it is not the case that her Honour failed to consider and make findings as to possible complexities and prejudice in relation to the Hope Downs Deed. To the contrary, the primary judge found that this point favoured the HPPL parties' case for a stay or adjournment.
[213] Primary reasons [198] ‑ [199], [243].
[214] Primary reasons [239], [240](a), [242].
In the circumstances, there was no House v The King failure to take into account a material consideration of the kind alleged by ground 9. The learned primary judge had regard to, and took into account, the complexities that would arise, and the relevant risk of prejudice to the HPPL parties, in relation to the tender of the Hope Downs Deed, were the trial to proceed without first awaiting the outcome of the Martin Arbitration. Ground 9 fails.

Ground 10

Ground 10 concerns the re‑exercise of the learned primary judge's discretion in the event that any of the other grounds of appeal meet with success. As we are not satisfied that her Honour did make any material error in the exercise of her discretion, it is not necessary to address ground 10.

Substantial injustice

No ground of appeal having succeeded, leave to appeal should be refused accordingly.
Nevertheless, it is appropriate, given its relevance to the question of leave, to address the HPPL parties' contention that a substantial injustice would be done by leaving the learned primary judge's decision undisturbed.
The interests of justice in a case such as this are the product of a vast range of competing considerations, all of which impact in different ways on the parties, on the court and, ultimately, on the public.
The interests of the parties are, of course, an important consideration. WPPL and the Rhodes parties regularly invoked the jurisdiction of this court many years ago and, for many years, have sought to have their claims determined. There have already been long delays in bringing the curial proceedings to trial. It is a truism that justice delayed is justice denied and that '[w]here there is delay the whole quality of justice deteriorates'.[215] As observed in the first stay appeal reasons (supplementary), WPPL and the Rhodes parties 'are strangers to the [Hope Downs] Deed and are adversaries of the parties to it' and '[r]egardless of the outcome of the arbitration, the plaintiffs' claims must be heard and determined by the court'.[216] The interests of the plaintiffs and the public in bringing the curial proceedings to a resolution are, as the learned primary judge recognised, a powerful consideration.
[215] R v Lawrence [1982] AC 510 , 517 (Lord Hailsham of St Marylebone LC).
[216] First stay appeal reasons (supplementary) [124].
To demonstrate that a substantial injustice would be done by leaving the learned primary judge's decision undisturbed, it would be necessary to be satisfied that substantial injustice would flow from the court proceeding to hear WPPL and the Rhodes parties' claims, and in refusing to defer the trial until some unknown point in the future.
The orders sought by the HPPL parties in the appeal are simply that the presently listed trial be vacated. No alternative trial dates are proposed. The HPPL parties' primary submission is that the trial of WPPL's and the Rhodes parties' claims should not take place until the award in the Martin Arbitration is issued and all disputes related thereto are resolved. The learned primary judge's conclusion that any such disputes could take up to two or three years to resolve was not challenged in the appeal. Indeed, given the history of the disputes between the HPPL parties and Bianca and John, her Honour's estimate of two or three years may well be a conservative one. To defer the commencement of the trial of WPPL and the Rhodes parties' claims for such an indefinite period, and one the duration of which would be entirely beyond their control, would visit a serious injustice upon them.
Perhaps recognising this, and as they did before the learned primary judge, the HPPL parties' position shifted to one in which the proposed stay or adjournment would be limited until the outcome of the Martin Arbitration is known. Not for the trial to then commence, however, but for the court to 'interrogate the parties as to … quo vadis [i.e. where are we going?] in respect of these proceedings'.[217] As the learned primary judge concluded,[218] the HPPL parties' alternative position is in all likelihood a distinction without a difference. The answer to the question 'quo vadis?' is very likely to be 'another adjournment application'.
[217] Appeal ts 109 ‑ 110.
[218] Primary decision [246].
And in any event, if the trial of the curial proceedings does not commence on the dates that it has been listed, it is no simple matter to simply list it again at some convenient dates in the near future. Trials of this size and complexity require considerable planning and allocation of resources. Needless to say, the court does not have those resources, judicial and otherwise, on standby, waiting in the wings until a time at which all of the parties are ready.
Against this of course, is the spectre that, no matter when the trial of the curial proceedings is listed to commence, there will be further delays. There is, we recognise, a real risk that, whenever the trial commences, it will be overtaken by other events that may derail the trial and lead to a waste of resources, both for the parties and for the court. To that end, the HPPL parties were at pains to emphasise the prejudice that would be visited on the public through the 'potentially massive waste of court resources' if the trial proceeds.[219]
[219] Appeal ts 117.
The court is, of course, acutely aware of the very substantial impost that these proceedings, and those like it, have on the public's scarce judicial resources. The conduct of the curial proceedings, at first instance and in this court, have already consumed a massive amount of those resources. There can be no doubt that extremely well‑resourced litigants, such as those in the present appeals, consume a disproportionate share of the court's resources, which in turn adversely impacts upon every other litigant waiting for their disputes to be heard and determined. That disproportionate draw on scarce public resources will continue no matter what occurs in these proceedings. The solution to it must be found elsewhere.
The spectre of further delays, and the potential for a waste of resources, in the curial proceedings is therefore an important consideration. But the court cannot simply decline to exercise its jurisdiction because it is difficult or there is a risk that the hearing will be rendered nugatory. There is considerable uncertainty as to the nature and extent of the consequences of the award for the curial proceedings when the award is delivered. Among other things, those consequences will be influenced by the result and by the responses of the arbitral parties to the award. Once those things become known, the court can, and no doubt will, hear from the parties and take such steps as then seem best calculated to advance the resolution of the curial proceedings, while giving proper effect to the award. In the circumstances of these proceedings, with their history, the risk recognised in [300] above does not establish a substantial injustice in the commencement of the trial in accordance with the primary judge's orders.
The arbitration parties' ongoing disputes will no doubt continue to have an impact upon the court's ability to exercise its jurisdiction to resolve disputes before it in a timely and efficient manner. That is, regrettably, an irreducible risk in this litigation. It is not one that can or should divert the court from the performance of its duty to resolve the proceedings brought by the plaintiffs.
It would not cause a substantial injustice for the trial to proceed.

Conclusion

We would refuse leave to appeal and dismiss the appeals.

Appendix
Grounds of appeal

1. The primary judge erred at law in finding at J[162] ‑ [163] that the referral to arbitration of certain matters in the Rhodes Proceeding should not be considered when weighing the factors in favour or against a stay or adjournment, when the referral to arbitration was a significant factor in favour of a stay or adjournment because, in light of that referral, the Debt Reconstruction Issue (and much, if not all, of the Acquisition Issue) could not be considered, let alone resolved, in the Rhodes Proceeding until the matters referred to arbitration were either rendered moot by the outcome in the Martin Arbitration or resolved in the Rhodes Arbitration. As a result, the Rhodes Proceeding cannot be finally determined until, at the earliest, the outcome of the Martin Arbitration is resolved and staying or adjourning that Proceeding would not cause delay beyond that which is already inevitable. Further, the WPPL proceedings also cannot be finally determined until Rhodes' claimed interest in the Tenements is resolved, as that claim may affect WPPL's claimed interest.

2. In making the finding the subject of appeal ground 1, the primary judge also erred at law in the following respects:
(a) in finding at J[131] and [157] ‑ [160] that Rhodes do not claim a proprietary interest in the Tenements, even though:
i. Rhodes expressly allege and claim a proprietary interest in their Third Further Amended Substituted Statement of Claim at [37.3.3.4], [37.3.3.5], [37E], [37F.1], [37F.5], [41], [42.6], and [7] ‑ [8A] of the relief claimed; and
ii. that is contrary to the reasons for joining Bianca and John as necessary parties to the Rhodes Proceeding in the first place, as found by the court in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 7] [2016] WASC 305 at [13] ‑ [16] and [21] ‑ [22];

(b) in finding at J[164] ‑ [167] and [237](b) that the referral to arbitration in the Rhodes Proceeding should not be given any weight because of the lack of progress of the Rhodes Arbitration, even though that is the product of Rhodes failing to validly advance the arbitration and is, in any event, irrelevant to the issue as to whether the Rhodes Proceeding can progress towards finality in the face of the matters referred to arbitration;
(c) in finding at J[144], [154] ‑ [156] and [236](c) that Bianca and John's defence on the Acquisition and Debt Reconstruction Issues, and aspects of Rhodes' reply to the same, can be considered and finally resolved in the Rhodes Proceeding, or at the least that question can be left for trial, even though the entire controversy between Bianca and John and Rhodes comprising the Debt Reconstruction Issue, and much of the controversy comprising the Acquisition Issue, were referred to arbitration and cannot be considered, let alone determined, in the Rhodes Proceeding;
(d) in finding at J[37] and [151] that the matters referred to arbitration in the Rhodes Proceeding were also raised in the WPPL proceedings as between Bianca and John and WPPL, when the Debt Reconstruction Issue, which includes Rhodes' response to Bianca and John's allegations on the same, is not the same as that raised in the WPPL Proceeding; and
(e) in finding at J[143] that, even if Rhodes could not be awarded final relief until the Rhodes Arbitration was determined or otherwise rendered moot by the outcome in the Martin Arbitration, that should not be considered as a factor for any stay or adjournment because it would cause prejudice only to Rhodes. The primary judge failed to consider that the inability to award Rhodes final relief necessarily meant that both the WPPL and Rhodes proceedings would have to await the outcome of at least the Martin Arbitration before final relief could be ordered, which is a highly relevant factor to consider in whether to stay or adjourn those Proceedings. Further, the primary judge erred in finding that the HPPL Parties would not be prejudiced, when they would be subject to a lengthy trial, much of which may be rendered inutile following an award in the Martin Arbitration or any Rhodes Arbitration.

3. The primary judge erred at law in finding at J[104] ‑ [109] and [237](a) that there was no realistic possibility of issue estoppels arising from a judgment in the WPPL and Rhodes proceedings that would bind the parties in the Martin Arbitration and therefore did not consider this as a factor in any stay or adjournment. To the contrary, the risk of issue estoppels arising remains, together with any prejudice caused through any issue estoppels, and these matters weighed heavily in favour of a stay or adjournment in accordance with this court's findings in Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASC 77 (S) at [141] ‑ [145].
4. The primary judge erred at law in finding at J[110] ‑ [114] that the question of issue estoppels binding in the Rhodes Arbitration should not be given any weight because of the HPPL Parties' conduct in refusing to let Rhodes join the Martin Arbitration and because the Rhodes Arbitration has not been effectively commenced and may not progress, even though:
(a) there was no right or basis for Rhodes to join the Martin Arbitration;
(b) the lack of progress of the Rhodes Arbitration is the product of the conduct of Rhodes; and
(c) the primary judge failed to consider the extent to which issue estoppels binding parties to the Rhodes Arbitration undermined the referral to arbitration under s 8 of the Commercial Arbitration Act 2012 (WA), which is a significant factor in favour of a stay or adjournment for the same reasons as with appeal ground 3.

5. The primary judge erred at law in finding at J[236](a) ‑ (b), (g) ‑ (h) and [245] that a stay or adjournment of the WPPL and Rhodes proceedings would be to the prejudice of WPPL and Rhodes because it would lead to delay and not avoid duplication of resources, while failing to consider and find that:
(a) any award issued in the Martin Arbitration would automatically be binding on the parties to that arbitration and must be recognised by the court subject only to the award being set aside under s 34, or the limited exceptions in s 36, of the Commercial Arbitration Act;
(b) the outcome in the Martin Arbitration would necessarily affect the WPPL and Rhodes proceedings and delay their resolution, even if there was no stay or adjournment, because the findings in a valid award would bind Bianca and John and the HPPL Parties and affect what issues those parties could raise in the WPPL and Rhodes proceedings. The primary judge erred at law in conflating this issue with the separate issue (forming appeal grounds 7 to 9 below) concerning the tender of the Hope Downs Deed (J[177] ‑ [178] and [183]) and did not consider that a valid award is binding of its own force and to be recognised by the court even without an application for enforcement;
(c) if the HPPL Parties were successful in the Martin Arbitration, recognition of the award would necessarily mean that Bianca and John do not have any interest in the Tenements and are not necessary parties to the WPPL or Rhodes proceedings. The award would also prevent Bianca and John from asserting any interest in the Tenements, even as against non‑parties to the Martin Arbitration, including because it would be an abuse of process for them to do so, thereby rendering the Acquisition and Debt Reconstruction Issues as raised in their defences to WPPL's and Rhodes' claims otiose;
(d) if the tribunal in the Martin Arbitration found that it lacked jurisdiction, the stay of Bianca and John's counterclaims in the WPPL and Rhodes proceedings would be lifted and all issues raised therein would need to be the subject of further pleadings, discovery and evidence, as the primary judge acknowledged at J[205] ‑ [207]. The primary judge erred in finding at J[208] and [241] that this possibility should not be given any weight because the HPPL Parties did not raise it in written submissions, when in fact the HPPL Parties raised this point in their written submissions in reply at [37] and the point, whenever and howsoever raised, weighs strongly in favour of a stay or adjournment;
(e) if Bianca and John were found in the Martin Arbitration to have an interest in the Tenements to the exclusion of the HPPL Parties, but the tribunal otherwise upheld its jurisdiction, that would fundamentally affect the HPPL Parties' defence in the WPPL and Rhodes proceedings and the relief available to WPPL and Rhodes, including (were the award valid and binding) by removing or substantively changing the issues raised by the HPPL Parties in their defence on the Acquisition Issue as pleaded at [53] ‑ [53DQ] of their Defence to the Sixth Further Amended Substituted Statement of Claim in the WPPL Proceeding;
(f) by reason of (a) ‑ (e) above, it is beside the point that neither the WPPL nor Rhodes Parties would be bound by any outcome in the Martin Arbitration, because that outcome would nonetheless affect the relief available to WPPL and Rhodes, alter the defences raised to their claims by Bianca and John or the HPPL Parties, or otherwise affect whether the issues raised in the stayed counterclaims formed part of the Proceedings once again, and the primary judge erred in finding otherwise at J[113], [136] ‑ [137], [141], [170] ‑ [171], [192] ‑ [197], [200] and [236](c) ‑ (e);
(g) even on the evidence submitted by WPPL (J[188]), if the issues raised in Bianca and John's defences fell away as a result of findings in the Martin Arbitration, that would save between 4.5 and 9.5 weeks of the court's time in any trial; and
(h) once an award is issued in the Martin Arbitration, delays will inevitably occur to the WPPL and Rhodes proceedings, or any appeals therefrom, because parties to the Arbitration will inevitably seek to have the award recognised and enforced (or seek to set the award aside or have its recognition and enforcement refused), reopen the trial in light of findings made in the award and their consequences, adduce further evidence (including the award), amend pleadings and submissions, or otherwise seek to lift previous stays requiring the litigation of further matters, depending on the precise outcome of the Martin Arbitration. The primary judge erred in finding:
i. at J[214] and [236] that the likely dispute concerning the recognition or enforcement of the award in the Martin Arbitration is not a factor to be considered in favour of a stay or adjournment of the trial, when it is in fact a strong factor in favour of a stay or adjournment because such disputes will necessarily cause delay to the resolution of the WPPL and Rhodes proceedings even if a trial proceeds; and
ii. at J[138] ‑ [139] and [238](b) that the court was not in a position to make any proper assessment as to the prospects or likelihood that the Martin Arbitration would shorten the trial in the proceedings, when by reason of the matters raised above, delay to the WPPL and Rhodes proceedings would inevitably occur from any and all of the permutations of possible outcomes in the Martin Arbitration.

6. The primary judge erred at law in finding at J[173] and [238](a) that the risk of inconsistent findings in the Martin Arbitration and in the WPPL and Rhodes proceedings should not be considered as a factor in favour of a stay or adjournment, including by:
(a) finding at J[170] ‑ [171] that the Martin Arbitration would not have any effect on the WPPL Proceeding, as the same issues would need to be relitigated in the WPPL Proceeding, even though the Martin Arbitration would have substantial effects by reason of appeal ground 5 above; and
(b) finding at J[172] that the risk of inconsistent decisions was the product of forensic decisions by the HPPL Parties to refer matters to arbitration which overlapped with issues arising in the WPPL and Rhodes proceedings, which is not a relevant factor and contrary to the legislative policy underpinning s 8 of the Commercial Arbitration Act.

7. The primary judge erred at J[176] ‑ [177], [180], [183], [189] and [240](a) in stating the effect of the HPPL Parties' submissions concerning the tender of the Hope Downs Deed. It was not the case, as the primary judge found at J[180] and [189], that the HPPL Parties submitted they could only tender the Hope Downs Deed if they were successful in the Martin Arbitration (which would not be known until any award were issued). Rather, the HPPL Parties submitted that they intended to tender the Hope Downs Deed, even before any award was issued in the Martin Arbitration, to protect against possible issue estoppels and as evidence that contradicts the WPPL Parties' case as pleaded at [53C] of WPPL's Sixth Further Amended Substituted Statement of Claim.
8. By reason of appeal ground 7, the primary judge also erred at law in finding at J[181] and [198] that the HPPL Parties would need to plead reliance on the Hope Downs Deed, when instead it is a matter of evidence responding to the matters raised by the WPPL Parties.
9. Because of the errors set out in appeal grounds 7 and 8, the primary judge erred at law by failing to consider the submissions that the HPPL Parties made concerning the significance of the Hope Downs Deed (including as set out in their written submissions in chief at [90] ‑ [98], written submissions in reply at [24] ‑ [32], and submissions made orally at Transcript, 24 November 2022 at T2849‑52 and 25 November 2022 at T2962‑3) and in failing to find that great complexities would arise, and prejudice would be suffered by the HPPL Parties, were a trial to proceed without first awaiting the outcome of the Martin Arbitration.
10. This court, in re‑exercising the discretion, should order an adjournment of the trial in, or a stay of, the WPPL and Rhodes proceedings pending the issue of the award in the Martin Arbitration, because:
(a) neither the WPPL nor Rhodes proceedings can be finally determined in light of the matters that have been referred to arbitration in the Rhodes Proceeding, but the outcome in the Martin Arbitration may render those matters moot and then enable both the WPPL and Rhodes proceedings to progress towards finality;
(b) it will uphold the efficacy of the arbitration agreements between the HPPL Parties and Bianca and John and prevent the undermining of the Martin Arbitration and the referral of various matters thereto, as found by this court in Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 at [512];
(c) it will prevent prejudice being suffered by the HPPL Parties in the form identified by this court in Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASC 77 (S) at [141] ‑ [145] (issue estoppels) and [151] ‑ [153] (contractual rights of confidentiality);
(d) findings validly made in the Martin Arbitration, binding on Bianca and John and the HPPL Parties, will substantially affect the issues that can be raised and determined in the WPPL and Rhodes proceedings, and any relief available to WPPL and Rhodes, thereby affecting the time of any trial, the amendment of pleadings, the evidence called and the submissions made; and
(e) proceeding with a trial without first awaiting the award in the Martin Arbitration will itself cause substantial delays to the WPPL and Rhodes proceedings, give rise to great complexities that would otherwise be avoided and be productive of chaos capable of causing significant prejudice to the HPPL Parties and to other parties to the Proceedings.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
SC
Principal Associate to the Honourable Chief Justice Peter Quinlan
25 MAY 2023