Hancock v Hancock Prospecting Pty Limited

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.