Hancock v Hancock Prospecting Pty Limited - [2022] NSWCA 152

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hancock v Hancock Prospecting Pty Limited [2022] NSWCA 152
Hearing dates: 26 July 2022
Date of orders: 18 August 2022
Decision date: 18 August 2022
Before: Brereton JA at [1];
Mitchelmore JA at [21]
Decision:
The application for leave to appeal is dismissed with costs.

Catchwords:
APPEALS – jurisdiction of appellate court – Court of Appeal – where jurisdiction of Supreme Court of NSW invoked pursuant to cross-vesting legislation – where Commercial Arbitration Act 2012 (WA), s 13(5), provides first-instance decision that is “within the limits of the authority of the Court” is “final” – whether s 13(5) precludes appeal to Court of Appeal by way of a rehearing pursuant to Supreme Court Act 1970 (NSW), s 101 – whether s 13(5) precludes appeal to Court of Appeal from decisions of courts, including superior courts, for jurisdictional error
COMMERCIAL ARBITRATION – composition of arbitral tribunal – grounds for challenge to arbitrator – where presiding arbitrator’s now wife acted for respondents in connection with transactions relevant to the arbitration, in 1994, while in relationship with him – where applicants sought termination of arbitrator’s mandate – whether “justifiable doubts” as to arbitrator’s impartiality or independence – whether necessary to consider whether combined effect of circumstances gives rise to justifiable doubts when individual circumstances do not – whether erroneous to consider whether doubts overcome by rational arguments distancing wife from respondents – whether decision of primary judge involved finding that Commercial Arbitration Act 2012 (WA), s 12(3), sets higher threshold than Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 – no arguable error warranting grant of leave

Legislation Cited:
Commercial Arbitration Act 2010 (NSW), s 14
Commercial Arbitration Act 2012 (WA), ss 1C, 12, 13, 14
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 9
Jurisdiction of Courts (Cross-vesting) Act 1987 (WA), s 4
Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), r 51.10

Cases Cited:
Be Financial Pty Ltd v Das [2012] NSWCA 164
Charisteas v Charisteas [2021] HCA 29; (2021) 64 Fam LR 94
Daley v Donaldson [2022] NSWCA 96
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 214 CLR 496; [2003] HCA 26
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Hockey v Yelland (1984) 157 CLR 124; [1984] HCA 72
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Ku-ring-gai Council v Ichor Constructions Pty Ltd (2019) 99 NSWLR 260; [2019] NSWCA 2
Petch v DPP (NSW) [2022] NSWCA 33
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Smith v East Elloe Rural District Council [1956] AC 736; [1956] 1 All ER 855
The Age Company Ltd v Liu (2013) 82 NSWLR…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2022] NSWCA 152
Decision Date: 18 August 2022

CaseChat Overview and Summary

The parties to this proceeding were Hancock and Hancock Prospecting Pty Limited. The dispute concerned an application for leave to appeal to the Court of Appeal of New South Wales from a decision of a primary judge. The primary judge had refused to terminate the mandate of an arbitrator, finding no justifiable doubts as to his impartiality or independence.

The legal issues before the Court of Appeal were twofold. First, whether section 13(5) of the Commercial Arbitration Act 2012 (WA), which states that a first-instance decision within the limits of the authority of the Court is "final", precluded an appeal to the Court of Appeal by way of a rehearing under section 101 of the Supreme Court Act 1970 (NSW). Second, whether section 13(5) also precluded appeals from decisions of superior courts, including for jurisdictional error.

The Court of Appeal held that section 13(5) of the Commercial Arbitration Act 2012 (WA) did not preclude an appeal to the Court of Appeal under section 101 of the Supreme Court Act 1970 (NSW). The Court reasoned that the "finality" provision in the Commercial Arbitration Act was intended to apply to the arbitral process itself, not to the supervisory jurisdiction of the courts. Furthermore, the Court found no arguable error in the primary judge's decision regarding the arbitrator's impartiality. The primary judge had correctly applied the test for justifiable doubts as to impartiality, considering the circumstances including the past professional relationship of the arbitrator's wife with the respondents. The Court concluded that the primary judge's decision did not involve an erroneous application of the threshold set by *Ebner v Official Trustee in Bankruptcy*.

The application for leave to appeal was dismissed with costs.

Orders

Orders of the court

The application for leave to appeal is dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Hancock v Hancock Prospecting Pty Limited [2022] NSWCA 152
Hearing dates:	26 July 2022
Date of orders:	18 August 2022
Decision date:	18 August 2022
Before:	Brereton JA at [1]; Mitchelmore JA at [21]
Decision:	The application for leave to appeal is dismissed with costs.
Catchwords:	APPEALS – jurisdiction of appellate court – Court of Appeal – where jurisdiction of Supreme Court of NSW invoked pursuant to cross-vesting legislation – where Commercial Arbitration Act 2012 (WA), s 13(5), provides first-instance decision that is “within the limits of the authority of the Court” is “final” – whether s 13(5) precludes appeal to Court of Appeal by way of a rehearing pursuant to Supreme Court Act 1970 (NSW), s 101 – whether s 13(5) precludes appeal to Court of Appeal from decisions of courts, including superior courts, for jurisdictional error COMMERCIAL ARBITRATION – composition of arbitral tribunal – grounds for challenge to arbitrator – where presiding arbitrator’s now wife acted for respondents in connection with transactions relevant to the arbitration, in 1994, while in relationship with him – where applicants sought termination of arbitrator’s mandate – whether “justifiable doubts” as to arbitrator’s impartiality or independence – whether necessary to consider whether combined effect of circumstances gives rise to justifiable doubts when individual circumstances do not – whether erroneous to consider whether doubts overcome by rational arguments distancing wife from respondents – whether decision of primary judge involved finding that Commercial Arbitration Act 2012 (WA), s 12(3), sets higher threshold than Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 – no arguable error warranting grant of leave
Legislation Cited:	Commercial Arbitration Act 2010 (NSW), s 14 Commercial Arbitration Act 2012 (WA), ss 1C, 12, 13, 14 Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 9 Jurisdiction of Courts (Cross-vesting) Act 1987 (WA), s 4 Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW), r 51.10
Cases Cited:	Be Financial Pty Ltd v Das [2012] NSWCA 164 Charisteas v Charisteas [2021] HCA 29; (2021) 64 Fam LR 94 Daley v Donaldson [2022] NSWCA 96 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 214 CLR 496; [2003] HCA 26 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Hockey v Yelland (1984) 157 CLR 124; [1984] HCA 72 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Ku-ring-gai Council v Ichor Constructions Pty Ltd (2019) 99 NSWLR 260; [2019] NSWCA 2 Petch v DPP (NSW) [2022] NSWCA 33 PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Smith v East Elloe Rural District Council [1956] AC 736; [1956] 1 All ER 855 The Age Company Ltd v Liu (2013) 82 NSWLR…