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Hancock v Rinehart

Hancock v Rinehart

Case [2013] NSWSC 1352 18 September 2013

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Supreme Court

New South Wales

Medium Neutral Citation: Hancock & Anor v Rinehart & Ors [2013] NSWSC 1352
Hearing dates: 11 September 2013
Decision date: 18 September 2013
Jurisdiction: Equity Division
Before: Bergin CJ in Eq
Decision:
Notices of Motion dismissed

Catchwords: [PRACTICE AND PROCEDURE] - applications for stay of proceedings - whether amended claims and defences constitute a dispute "under" arbitration agreement
[COMMERCIAL ARBITRATION] - where arbitration agreement between the parties made at time when Commercial Arbitration 1985 (WA) in force - previous disputes the subject of arbitration - subsequent enactment of Commercial Arbitration Act 2012 (WA) - whether Commercial Arbitration Act 1985 (WA) applies by reason of transitional provision in the 2012 Act.
Legislation Cited: Arbitration Act 1975 (UK)
Arbitration Act 1996 (NZ)
Arbitration (Foreign Awards and Agreements) Act 1974 (Cth)
Commercial Arbitration Act 1985 (WA)
Commercial Arbitration Act 2012 (WA)
Commonwealth of Australia Constitution Act 1900 (Imp)
Corporations Act 2001
International Arbitration Act 1974 (Cth)
Trustees Act 1962 (WA)
Cases Cited: Bank of Credit and Commerce International SA (in liq) v Ali [2002] 1 AC 251
Carter Holt Harvey Ltd v Genesis Power Ltd [2006] 3 NZLR 794
Casaceli v Natuzzi SpA (2012) 292 ALR 143
Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1992] QB 656
Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334
Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45
Degiorgio v Dunn (2005) 62 NSWLR 284
Drummond-Vacksin v British Medical Association [1970] 1 WLR 688
Felton v Mulligan (1971) 124 CLR 367
Flakt Australia Ltd v Wilkins & Davies Construction Co Ltd [1979] 2 NSWLR 243
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gulf Canada Resources Ltd v Arochem International Ltd (1992) 66 BCLR (2d) 113
Recyclers of Australia Pty Ltd v Hettinga Equipment Inc (2000) 100 FCR 420
Rinehart v Welker [2012] NSWCA 95
Spellson v George (1992) 26 NSWLR 666
Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332
Welker v Rinehart (No 2) [2011] NSWSC 1238
Welker v Rinehart (No 4) [2011] NSWSC 1636
Category: Interlocutory applications
Parties: John Langley Hancock (1st Plaintiff)
Bianca Hope Rinehart (2nd Plaintiff)
Gina Hope Rinehart (1st Defendant)
Ginia Hope Frances Rinehart (2nd
Defendant)
Hope Rinehart Welker (3rd Defendant)
Hancock Prospecting Pty Limited (4th Defendant)
Hope Downs Iron Ore Pty Ltd (5th Defendant)
Representation: Counsel:
CH Withers/N Zerial/A Hochroth (Plaintiffs)
DG Russell QC/J Hutton (1st Defendant)
RG McHugh SC/PW Flynn (2nd Defendant)
DB Studdy SC/IC Colquhoun (4th and 5th Defendants)
Solicitors:
Yeldham Price O'Brien Lusk (Plaintiffs)
Gadens Lawyers (2nd Defendant)
Corrs Chambers Westgarth (1st, 4th and 5th Defendants)

File Number(s): 2011/285907
Publication restriction: Nil

Judgment

These are urgent applications by the active defendants to stay these proceedings, set down for hearing for 7 days commencing on 1 October 2013, and to refer part or all of the proceedings to mediation/arbitration. The applications are made at this time because the plaintiffs have only recently amended their pleading to bring…

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.

Continue reading Hancock v Rinehart

Details

AGLC: Hancock v Rinehart [2013] NSWSC 1352
Case: [2013] NSWSC 1352
Decision Date: 18 September 2013

CaseChat Overview and Summary

Hancock and Rinehart were involved in a legal dispute which was brought before the court. The central issue revolved around the applicability of the Commercial Arbitration Act 1985 (WA) in the context of a subsequent enactment, the Commercial Arbitration Act 2012 (WA). Specifically, the court had to determine if the transitional provision in the 2012 Act meant that the 1985 Act still applied to their arbitration agreement, which was formed when the 1985 Act was in force.

The primary legal issue before the court was whether the amended claims and defences raised in the proceedings constituted a dispute that fell "under" the arbitration agreement. Additionally, the court needed to clarify whether the arbitration agreement was governed by the 1985 Act or the 2012 Act due to the transitional provision within the 2012 Act. This decision was crucial as it would determine the applicable law and procedures for the arbitration.

The court examined the language of the transitional provision in the 2012 Act and concluded that it did not intend to apply retrospectively to disputes governed by the 1985 Act at the time the arbitration agreement was made. Consequently, the court found that the 1985 Act applied to the arbitration agreement between Hancock and Rinehart. The court also held that the amended claims and defences did indeed constitute a dispute "under" the arbitration agreement, thereby mandating the arbitration process as per the terms of the agreement.

In light of the findings, the court ordered that the proceedings be stayed pending the outcome of the arbitration, in accordance with the arbitration agreement. The court emphasised that this decision was based on the specific terms of the arbitration agreement and the transitional provisions of the 2012 Act.

Orders