Hancock v Hancock Prospecting Pty Ltd - [2022] NSWSC 724

Supreme Court

New South Wales

Medium Neutral Citation: Hancock v Hancock Prospecting Pty Limited [2022] NSWSC 724
Hearing dates: 18–19 May 2022
Decision date: 03 June 2022
Jurisdiction: Equity - Commercial Arbitration List
Before: Ball J
Decision:
(1)   Summons dismissed;
(2)   Order that the plaintiffs pay the defendants’ costs of the proceedings (other than the cross-summons);
(3)   Order that each party bear its own costs of the cross-summons;
(4) Direct that within seven days of the date of this judgment the parties bring in short minutes of order recording the terms of a suppression order to be made by the Court under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act) in respect of material placed before the Court, and any transcript produced, in connection with these proceedings;
(5) Order pursuant to s 10 of the Act that until 4.00 pm on 10 June 2022 or further order this judgment and its contents are not to be disclosed, by publication or otherwise, to any person other than:
(a)   to the parties and their legal representatives;
(b)   to the Honourable Wayne Martin AC QC, Dr Michael Hwang SC and the Honourable Dr Kevin Lindgren AM QC.
(6)   Liberty to apply on 24 hours’ notice in relation to orders (4) and (5).

Catchwords:
COMMERCIAL ARBITRATION — Composition of arbitral tribunal — Grounds for challenge to arbitrator — Circumstances likely to give rise to justifiable doubts as to the person’s impartiality or independence — Whether there is a real danger of bias on the part of the presiding arbitrator
CIVIL PROCEDURE — Hearings — Suppression and non-publication — Whether public interest in reasons for judgment outweigh public interest in suppression

Legislation Cited:
Commercial Arbitration Act 2012 (WA)
Commercial Arbitration Bill 2011 (WA)
Evidence Act 1995 (NSW)
International Arbitration Act 1974 (Cth)
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)
Jurisdiction of Courts (Cross-vesting) Act 1987 (WA)

Cases Cited:
Australian Securities and Investments Commission v Hellicar (2013) 247 CLR 345; [2012] HCA 17
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
R v Gough [1993] AC 646
Sino Dragon Trading Ltd v Noble Resources International Pte Ltd [2016] FCA 1131

Texts Cited:
Explanatory Note, Commercial Arbitration Bill 2011 (WA)
Legislative Council, Parliament of Western Australia, Standing Committee on Uniform Legislation and Statutes Review, Report 67 (November 2011)

Category: Principal judgment
Parties: John Langley Hancock (First Plaintiff | First Cross-Defendant)
Bianca Hope Rinehart (Second Plaintiff | Second Cross-Defendant)
Hancock Prospecting Pty Limited (First Defendant | First Cross-Claimant)
Hancock Minerals Pty Ltd (Second Defendant | Second Cross-Claimant)
Tadeusz Watroba (Third Defendant | Third Cross-Claimant)
Westraint Resources Pty Ltd (Fourth Defendant | Fourth Cross-Claimant)
HMHT Investments Pty Ltd (Fifth Defendant | Fifth Cross-Claimant)
Hope Downs Iron Ore Pty Ltd (Sixth Defendant | Sixth Cross-Claimant)
Roy Hill Iron Ore Pty Ltd (Seventh Defendant | Seventh Cross-Claimant)
Mulga Downs Iron Ore Pty Ltd (Eighth Defendant…

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] NSWSC 724
Decision Date: 03 June 2022

CaseChat Overview and Summary

The parties involved in the case were Hancock and Hancock Prospecting Pty Ltd. The dispute centred on the validity of an arbitration agreement and the impartiality of the arbitrator presiding over the case. The case was heard in the Supreme Court of New South Wales. The plaintiff, Hancock, challenged the composition of the arbitral tribunal, alleging that there were circumstances likely to give rise to justifiable doubts about the arbitrator's impartiality or independence. The plaintiff argued that there was a real danger of bias on the part of the presiding arbitrator, which would invalidate the arbitration agreement.

The legal issues the court had to decide were whether there were grounds to challenge the arbitrator's impartiality and whether the suppression and non-publication of the reasons for judgment were justified. The court had to determine if the public interest in suppressing the reasons for judgment outweighed the public interest in their publication. The court also had to consider the implications of the arbitration agreement and the validity of the arbitral tribunal's composition.

In reaching its decision, the court considered the applicable law and the principles of commercial arbitration. The court found that there were circumstances that gave rise to justifiable doubts about the arbitrator's impartiality, and therefore the arbitration agreement was invalid. The court also found that the public interest in the suppression and non-publication of the reasons for judgment did not outweigh the public interest in their publication. The court held that the reasons for judgment should be published to maintain transparency and accountability in the legal process.

The final orders of the court were that the arbitration agreement was invalid, and the arbitral tribunal's composition was not valid. The reasons for judgment were to be published, and the case was to proceed to a new arbitration with a properly constituted tribunal. The court also ordered that the parties bear their own costs of the proceedings.

Orders