Rinehart v Rinehart

[2020] NSWSC 68

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Rinehart v Rinehart [2020] NSWSC 68
Hearing dates:	15-19, 23, 25 July 2019
Date of orders:	14 February 2020
Decision date:	14 February 2020
Jurisdiction:	Equity
Before:	Ward CJ in Eq
Decision:	1. Pursuant to s 8(1) of the Commercial Arbitration Act (NSW) and s 8(1) of the Commercial Arbitration Act (WA), refer the parties to arbitration of the disputes the subject of this proceeding other than the claim for relief pursuant to s 247A of the Corporations Act 2001 (Cth). 2.   Stay the balance of the proceeding pending determination of the arbitration of the disputes so referred to arbitration in accordance with order 1. 3.   Stay the following motions pending the determination of the said arbitration: notice of motion filed on 27 April 2017 by Bianca (referred to in these reasons as motion (ii)); notice of motion filed on 14 August 2018 by Gina (referred to in these reasons as motion (vii)); notice of motion filed on 11 June 2019 by Bianca (referred to in these reasons as motion (viii)); and notice of motion filed on 20 June 2019 by HPPL (referred to in these reasons as motion (ix)). 4.   By consent, adjourn sine die notice of motion filed on 12 May 2007 by Bianca (referred to in these reasons as motion (iv)) 5.   Direct the parties to file brief written submissions as to costs within 14 days with a view to determining that issue on the papers. 6.   Direct the parties to file brief written submissions within 14 days as to whether (if that be the case) they oppose the referral of this matter (on the Court’s own motion) to mediation; and, in any event, as to the appropriate time frame within which any such mediation may expeditiously take place.
Catchwords:	COMMERCIAL ARBITRATION – arbitration agreement – application for referral to arbitration pursuant to commercial arbitration legislation and for stay of proceeding – alternative applications for stay based on case management principles and as abuse of process – held proceeding involved matters under the arbitration agreement and parties must be referred to arbitration – whether application for access to books and records of company under s 247A Corporations Act was matter under arbitration agreement and was arbitrable – held s 247A application not a matter under arbitration agreement but should be stayed – stay of other motions including unconscionability motion in which anti-arbitration injunction sought – intention of Court to refer parties to mediation
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 67 Commercial Arbitration Act 2010 (NSW), ss 1C, 2, 5, 7, 8, 16 Commercial Arbitration Act 2012 (WA), ss 2, 5, 7, 8, 16 Corporations Act 2001 (Cth), ss 233, 241, 247A, 254T, 1317H Court Suppression and Non-publication Orders Act 2010 (NSW) Evidence Act 1995 (NSW), s 91 International Arbitration Act 1974 (Cth), s 16(1) International Commercial Arbitration Act 1986 (BC), s 8 Trustees Act 1962 (WA), ss 78, 85(1) UNCITRAL Model Law on International Commercial Arbitration
Cases Cited:	Aberdeen Railway Co v Blaikie Bros (1854) 1 Macq 461; [1843-60] All ER Rep 249 ABN Amro Bank Canada v Krupp MaK Maschinenbau GmhH (1994) 21 OR (3d) 511 ACD Tridon Inc v Tridon Australia Pty Ltd [2002] NSWSC 896 ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia (2014) 89 NSWLR 209; 2014 NSWCA 402 ALYK (HK) Limited v Caprock Commodities Trading Pty Ltd [2015] NSWSC 1006 Amcor Packaging (Australia) Pty Ltd v Baulderstone Pty Ltd [2013] FCA 253 AMP Capital Investors Pty Ltd v Parsons Brinckerhoff Australia Pty Ltd [2013] NSWSC 1633 Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Friendly Society Ltd (2018) 92 ALJR 918; [2018] HCA 43 Anglas Law Services v Pty Ltd (in liq) v Carabelas (2005) 226 CLR 507; [2005] HCA 23 Anthony v Morton [2018] NSWSC 1884 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Apotex Pty Ltd v Les Laboratoires Servier (No 6) [2012] FCA 745 Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15 Barescape Pty Ltd v Bacchus Holdings (No 9) [2012] NSWSC 984 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 Bianca Hope Rinehart as trustee of The Hope Margaret Hancock Trust [2017] NSWSC 282 Birtchnell v Equity Trustees, Executors and Agency Co Ltd (1929) 42 CLR 384; [1929] HCA 24 Boart Sweden AB v NYA Stromnes AB (1988), 41 BLR. 295 (Ont HCJ) Borowski v Heinrich Fiedler Perforiertechnik GmbH and Another [1996] ILPr 373 Bowes v Chaleyer (1923) 32 CLR 159; [1923] HCA 15 Branir Pty Ltd v Wallco Pastoral Co Pty Ltd [2006] NTSC 70; (2006) 203 FLR 115 Broadwater Hospitality Management Pty Ltd v Primewest (Lot 4 Davidson Street Kalgoorlie) Pty Ltd [2010] WASCA 174 BTR Engineering (Australia) Ltd v Dana Corporation [2000] VSC 246 BTY v BUA [2018] SGHC 213 Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66; (2013) 298 ALR 666 Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth [2019] HCA 20 Chan v Zacharia (1984) 154 CLR 178; [1984] HCA 36 Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334 Chief Commissioner of State Revenue v CCM Holdings Trust Pty Ltd [2014] NSWCA 42 Clarke Boyce v Bouat [1994] 1 AC 428 Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352; [1982] HCA 24 Comandate Marine Corp v Pan Australian Shipping Pty Limited (2006) 157 FCR 45; [2006] FCAFC 192 Comcare v PVYW (2013) 250 CLR 246; [2013] HCA 41 Commissioner of State Revenue v Aidlaw Pty Ltd (No 2) [2010] VSC 405 Commonwealth v Cockatoo Dockyard Pty Ltd [2003] NSWCA 19 Conlan v The Executor or other Personal Representative as Executor of the Estate of Anthony John Croci [2009] WASC 266 CPB Contractors Pty Ltd v JKC Australia LNG Pty Ltd (No 2) [2017] WASCA 123 Crossman v Sheahan (2016) 115 ACSR 130; [2016] NSWCA 200 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 Czarnikow v Roth, Schmidt and Company [1922] 2 KB 478 Disctronics Ltd v Edmonds [2002] VSC 454; (2002) 86 ATR 753 Dobbs v National Bank of Australasia Limited (1935) 53 CLR 643 at 652; [1935] HCA 49 Duncan v Independent Commission Against Corruption [2016] NSWCA 143 EKU17 v Minister for Immigration and Border Protection [2019] FCA 782 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Farrant v Blanchord (1863) 1 De G J & B 107 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [2001] NSWCA 97; (2001) 37 ACSR 672 Fibreco Pulp Inc v The Star Dover (1998) 145 FTR 125 Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40; [2007] 4 All ER 951 Fitzpatrick v Emerald Grain Pty Ltd [2017] WASC 206 Flint Ink NZ Ltd v Huhtamaki Australia Pty Ltd (2014) 44 VR 64; [2014] VSCA 166 Francis Travel Marketing Pty Limited v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 Fulham Football Club (1987) Ltd v Richards [2011] EWCA Civ 855; [2012] 1 All ER 414 Global Partners Fund Limited v Babcock & Brown Limited (In liq) [2010] NSWCA 196; (2010) 79 ACSR 383 Government Insurance Office (NSW) v Atkinson-Leighton Joint Venture (1981) 146 CLR 206; [1981] HCA 9 Gray v Hart [2012] NSWSC 1435 Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296; [2012] FCAFC 6 Guardian Group Australia Pty Ltd v Lu [2005] NSWSC 1299 Gulf Canada Res. Ltd v Arochem International Ltd., Arochem International, Inc (1992) 66 BCLR 2d 113 (BC Ct App) Hancock Prospecting Pty Ltd v Rinehart (2017) 257 FCR 442; [2017] FCAFC 170 Hancock v Rinehart (Trust Documents) [2018] NSWSC 1684 Hancock v Rinehart [2013] NSWSC 1352 Hancock v Rinehart [2015] NSWSC 646; (2015) 106 ACSR 207 Hancock v Rinehart [2016] NSWSC 12 Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609; [2014] NSWCA 266 Helvetic Investment Corporation Pty Ltd v Knight (1984) 9 ACLR 773 Henry v Henry (1996) 185 CLR 571; [1996] HCA 51 Henry v Henry; Thirteenth Corp Pty Ltd v State [2006] FCA 979; (2006) 232 ALR 491 Hope Rinehart as trustee of The Hope Margaret Hancock Trust [2017] NSWSC 282 Horsell International Pty Ltd v Divetwo Pty Ltd [2013] NSWCA 368; (2013) ANZ Ins Cas 61-991 House v The King (1936) 55 CLR 499; [1936] HCA 40 Humphrey v Olver (1859) 28 LJ (Ch) 406 IBM Australia Ltd v National Distribution Services Ltd (1991) 22 NSWLR 466 In re Wright; Hegan v Bloor [1920] 1 Ch 108 In the matter of Combined Projects (Arncliffe) Pty Ltd [2018] NSWSC 649 In the matter of Sirrah Pty Ltd [2017] NSWSC 1683 In the matter of Style Ltd, Merim Pty Ltd v Style Ltd [2009] FCA 314; 255 ALR 63 In the matter of Treadtel International Pty Ltd [2014] NSWSC 1406 In the matter of Webuidem Pty Ltd [2012] NSWSC 708 International Swimwear Logistics Ltd v Australian Swimwear Company Pty Ltd [2011] NSWSC 488 Jacob v Utah Construction & Engineering Pty Ltd (1966) 116 CLR 200; [1966] HCA 67 Jeffery and Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43 Johnson v American Home Assurance Co (1998) 192 CLR 266; [1998] HCA 14 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kaverit Steel & Crane Ltd v Kone Corp. (1992), 87 DLR (4th) 129, 85 Alta LR (2d) 287 (CA) Keith Henry & Co Pty Ltd v Stuart Walker & Co Pty Ltd (1958) 100 CLR 342; [1958] HCA 33 Kraft Foods Group Brands LLC v Bega Cheese Ltd [2018] FCA 549 Larsen Oil and Gas Pte Ltd v Petroprod Ltd (in official liquidation in the Cayman Islands and in compulsory liquidation in Singapore) [2011] 3 SLR 414 Leerac Pty Ltd v Fay [2008] NSWSC 1082 Lidden Composite Buyers Ltd (1996) 67 FCR 560; (1996) 139 ALR 549 Lipman Pty Limited v Emergency Services Superannuation Board [2011] NSWCA 163 Macarthur Cook Fund Management Limited v Zhaofeng Funds Limited [2012] NSWSC 911 Maguire v Makaronis (1997) 188 CLR 449; [1997] HCA 23 Mala Pty Ltd v Johnston (1994) 13 ACLC 100 McDermott v Black (1940) 63 CLR 161 at 186-188; [1940] HCA 4 McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623 Mesa Minerals Ltd v Mighty River International Ltd (2016) 241 FCR 241; [2016] FCAFC 16 Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Miller v Cameron (1936) 54 CLR 572; [1936] HCA 13 Minister Administering National Parks & Wildlife Act 1974 v Halloran (2004) 12 BPR 22, 391 Moore v Inglis (1976) 9 ALR 509 Muir v City of Glasgow Bank [1879] 4 App Cas 337 Muschinski v Dodds (1985) 160 CLR 583 National Mutual Holdings Pty Ltd v Sentry Corp (1989) 22 FCR 209 O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360 Oliver Hume South East Queensland Pty Ltd v Investa Residential Group Pty Ltd (2017) 259 FCR 43; [2017] FCA 141 Osborne v Amalgamated Society of Railway Servants [1909] 1 Ch 163 Paharpur Cooling Towers Ltd v Paramount (WA) Ltd [2008] WASCA 110 Papadopoulos v Hristofordis [2001] NSWCA 368 Pape v Commissioner of Taxation (2009) 238 CLR 1; [2009] HCA 23 Paper Products Pty Limited v Tomlinsons (Rochdale) Ltd & Ors (1993) 43 FCR 439 Perera v GetSwift Ltd (2018) 263 FCR 1; [2018] FCA 732 Perera v GetSwift Ltd (2018) 263 FCR 92; [2018] FCAFC 202 Praetorin Pty Ltd v TZ Ltd [2009] NSWSC 1237; 76 ACSR 236 Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 Provident Capital Ltd v Zone Developments Pty Ltd [2001] NSWSC 843 Ratcliffe v Watters (1969) 89 WN (Pt 1) (NSW) 497 Re French Caledonia Travel Service Pty Ltd (in liq) (2003) 59 NSWLR 361; [2003] NSWSC 1008 Re Infinite Plus Pty Ltd (2017) 95 NSWLR 282; [2017] NSWSC 470 Re McGrath & Anor (In their capacity as liquidators of HIH Insurance Limited) (2010) 78 ACSR 405; [2010] NSWSC 404 Recyclers of Australia Pty Ltd v Hettinga Equipment Inc (2000) 100 FCR 420; [2002] FCA 547 ResMed Limited v Australian Manufacturing Workers Union (No 2) (2015) 243 FCR 366; [2015] FCA 537 Rinehart atf The Hope Margaret Hancock Trust v Rinehart [2017] NSWSC 803 Rinehart v Hancock [2013] NSWCA 326 Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13; (2019) 93 ALJR 582 Rinehart v Rinehart (No 3) (2016) 257 FCR 310; [2016] FCA 539 Rinehart v Rinehart [2018] NSWSC 1102 Rinehart v Welker (2012) 95 NSWLR 221; [2012] NSWCA 95 Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 Robotunits Pty Ltd v Mennel (2015) 49 VR 323; [2015] VSC 268 Rochfort v John Fairfax & Son Ltd [1972] 1 NSWLR 16 Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 Roy Morgan Research Center Pty Ltd v Wilson Market Research Pty Ltd (1996) 39 NSWLR 311 Rye v Rye [1962] AC 496 Samick Lines Co Ltd v Owners of the Antonis P Lemos [1985] AC 711 Siemens Ltd v Origin Energy Uranquinty Power Pty Ltd (2011) 80 NSWLR 398; [2011] NSWSC 195 Slough Estates Ltd v Slough Borough Council [1968] Ch 299 Spellson v George (1992) 26 NSWLR 666; [1992] NSWCA 254 St George Bank Ltd v Federal Commissioner of Taxation (2009) 176 FCR 424; [2009] FCAFC 62 Sterling Pharmaceuticals Pty Ltd v Boots Co (Aust) Pty Ltd (1992) 34 FCR 287 Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332; [1990] HCA 8 Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315; [2003] HCA 57 TCL Airconditioner (Zhongshan) Co Ltd v Castel Electronics Pty Limited [2009] VSC 553 Thames Launches Ltd v Trinity House Corporation of Deptford Strond [1961] Ch 197 Thirteenth Corp Pty Ltd v State [2006] FCA 979; (2006) 232 ALR 491 Toll (FGCT) Pty Limited v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28; 89 ALJR 750 Tomolugen Holdings Ltd and another v Silica Investors Ltd [2016] 1 SLR 373 Trade Fortune Inc v Amalgamated Mill Supplies Limited [1995] ILPr 370 (Supreme Court of British Columbia) Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107; [1988] HCA 44 Tyne v UBS AG (No 3) (2016) 236 FCR 1; [2016] FCA 5 UBS AG v Tyne [2018] HCA 45; (2018) 92 ALJR 968; 360 ALR 184 United Pacific Finance Pty Ltd v Tarrant [2009] NSWSC 630 Viro v R (1978) 141 CLR 88; [1978] HCA 9 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55 Walter Rau Neusser Oel und Fett AG v Cross Pacific Trading Ltd [2005] FCA 1102 Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 WDR Delaware Corporation v Hydrox Holdings Pty Ltd (2016) 245 FCR 452; [2016] FCA 1164 Welker & Ors v Rinehart & Anor (No 2) [2011] NSWSC 1238 Welker v Rinehart (No 4) [2011] NSWSC 1636 Western Export Services Inc v Jireh International Pty Limited [2011] HCA 45; (2011) 86 ALJR 1 Williams v Scott [1900] AC 499 Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 WorkCover Corporation v Jakas (2003) 86 SASR 20; [2003] SASC 155 Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd (No 10) [2018] WASC 407 Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd (No 9) [2018] WASC 122 Yarra Australia Pty Ltd v Oswal (No 2) [2013] WASCA 187 Young v Murphy [1996] 1 VR 279
Texts Cited:	B Lincoln, “The Role of the Courts: Enforcement of Arbitration Awards and Antiarbitration Injunctions” in International Commercial Litigation and Dispute Resolution (2010, Ross Parsons Centre of Commercial, Corporate and Taxation Law) D Joseph, Jurisdiction and Arbitration Agreements and their Enforcement (3rd ed, 2015, Sweet & Maxwell) G Born, in International Commercial Arbitration (2009, Wolters Kluwer, Vol 1) Lord Collins of Mapesbury and J Harris, Dicey, Morris and Collins on the Conflict of Laws (15th ed, 2012, Sweet & Maxwell) P Finn, Fiduciary Obligations (2016, Federation Press) RP Meagher, JD Heydon and MJ Leeming, Equity: Doctrines and Remedies (4th ed, 2002, LexisNexis Butterworths) T Cohen QC and M Staff, “The Arbitration of Trust Disputes” (1999) 7 Journal of International Trust and Corporate Planning 1
Category:	Procedural and other rulings
Parties:	Bianca Hope Rinehart as trustee for the Hope Margaret Hancock Trust (Plaintiff) Georgina Hope Rinehart (First Defendant) Hancock Prospecting Pty Ltd (Second Defendant) Tadeusz Watroba (Third Defendant) Jay Elliot Newby (Fourth Defendant)
Representation:	Counsel: DFC Thomas SC with D Hume (Plaintiff) P Brereton SC with CN Bova and TE O’Brien (First, Third and Fourth Defendants) J Giles SC with C Colquhoun and C Mitchell (Second Defendant)   Solicitors: Yeldham Price O’Brien Lusk (Plaintiff) Jones & Day (First, Third and Fourth Defendants) Corrs Chambers Westgarth (Second Defendant)
File Number(s):	2017/00086718; 2011/00285907
Publication restriction:	Nil

Judgment

1. HER HONOUR: In mid-2017, referred to me from the duty list, was a dispute as to the order in which various interlocutory applications should be heard in proceedings which had been commenced by the plaintiff, Bianca Rinehart, in her capacity as trustee of the Hope Margaret Hancock Trust (the HMH Trust) following the receipt by her of judicial advice given by Rein J (see Bianca Hope Rinehart as trustee of The Hope Margaret Hancock Trust [2017] NSWSC 282, to which I will refer as the Judicial Advice Decision). As in other judgments involving these parties, I will generally refer to the Rinehart family members by their first names, without intending any disrespect.

2. The interlocutory applications that were then before me were the following:

1. an application by Hancock Prospecting Pty Ltd (HPPL), the second defendant, by notice of motion filed on 21 April 2017, seeking referral of the parties to arbitration and/or a stay of the proceeding (HPPL’s referral/stay motion);

2. an application by Bianca, by notice of motion filed on 27 April 2017, for leave to bring a derivative proceeding in the name of HPPL (Bianca’s s 237 application) and to inspect its books (Bianca’s s 247A application) (together, Bianca’s leave motion);

3. an application by the first defendant (Gina Rinehart), by notice of motion filed on 11 May 2017, seeking essentially the same relief as sought in HPPL’s referral/stay motion, namely the referral of the parties to arbitration and/or a stay of the proceeding (Gina’s referral/stay motion); and

4. an application by Bianca, by notice of motion filed on 12 May 2017, seeking to restrain Gina (the Executive Chairman of HPPL) and the third and fourth defendants (respectively, a director and an executive director/chief financial officer of HPPL) from, in effect, controlling or influencing HPPL’s conduct of this proceeding (Bianca’s conflict motion).

3. The dispute as to sequencing arose, in essence, on the basis of the defendants’ contention that the disputes the subject of the proceeding fell within the ambit of an arbitration agreement between the parties and were required to be referred to arbitration. For the reasons published in 2017 (see Rinehart atf The Hope Margaret Hancock Trust v Rinehart [2017] NSWSC 803), I concluded that the hearing of the various interlocutory applications should be deferred until the then awaited decision of the Full Court of the Federal Court (the Full Court) in an appeal from orders that had been made by Gleeson J (in Rinehart v Rinehart (No 3) (2016) 257 FCR 310; [2016] FCA 539; to which I will refer as the Gleeson Decision) in relation to a dispute involving the very same arbitration clause the subject of the respective referral/stay motions in this Court.

4. I was of the view at that stage that, subject to anything that might emerge following the Full Court’s decision, it would be in the interests of the just, quick and cheap resolution of the issues arising in the four interlocutory applications for them all then to be listed for hearing at the same time (and that it would then be a matter for the judge hearing those applications to determine the order in which argument on the respective motions would most conveniently be addressed and, ultimately, the order in which the applications should be determined).

5. What then transpired was that, after the Full Court handed down its decision in late 2017 from the appeal in relation to the Gleeson Decision (see Hancock Prospecting Pty Ltd v Rinehart (2017) 257 FCR 442; [2017] FCAFC 170, to which I will refer as the Full Court Decision), there was an application by Bianca (and her brother, John Hancock) for special leave to appeal to the High Court of Australia (the High Court) from that decision.

3. On successive occasions when the matter came back before me for directions, I was of the view that the continued stay of the interlocutory applications was appropriate pending the outcome, first, of the special leave application and, then, of the appeal itself (special leave, limited in its scope, subsequently having been granted by the High Court – see further below). It was then anticipated that the High Court would resolve the conflict in approach as to the construction of the arbitration clause in question (being cl 20 of the confidential settlement deed referred to as the Hope Downs Deed) that had emerged as between the Full Court (in the Full Court Decision) and that of the Court of Appeal of this Court in an earlier decision (see Rinehart v Welker (2012) 95 NSWLR 221; [2012] NSWCA 95 to which I will refer as the Court of Appeal Decision).

4. The High Court handed down its decision on the appeal from the Full Court Decision in May 2019 (see Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13; (2019) 93 ALJR 582 to which I will refer as the High Court Decision). The High Court Decision endorsed the approach to construction that had been adopted by the Full Court (and, on one view, went even further in relation to the ambit of the arbitration clause in question). Ironically, though perhaps not surprisingly given the history of this ongoing litigious saga, there is now a dispute between the parties as to whether the High Court has in fact resolved that conflict as to the construction of cl 20 of the Hope Downs Deed at least insofar as the issues in the present proceeding are concerned (and hence as to whether, as a matter of precedent, the construction of the arbitration clause that was adopted by the Court of Appeal remains binding on me notwithstanding the High Court Decision). I consider that issue in due course.

5. Meanwhile, however, the interlocutory motions in this proceeding have multiplied. Some interlocutory disputes between the parties have been able to be determined in advance of the present motions (for example, those relating to disputes as to the production of documents on subpoena or otherwise pursuant to the compulsory processes of the court); as have other disputes in in other proceedings in this Court between the respective parties. So, for example, disputes as to the requirement for production to Bianca (in her capacity as the new trustee of the HMH Trust) by Gina (as the former trustee of the HMH Trust) of documents of the HMH Trust as ordered by Brereton J, as his Honour then was, in 2015 (see Hancock v Rinehart [2015] NSWSC 646; (2015) 106 ACSR 207, to which I will refer as the 2015 Decision) and as subsequently clarified and confirmed by his Honour in Hancock v Rinehart (Trust Documents) [2018] NSWSC 1684, to which I will refer as the 2018 Decision) have been dealt with during the period in which the extant notices of motion in the present proceeding were awaiting hearing and determination.

6. It is not necessary to say much further here, by way of introduction as to the substantive dispute between the parties in the present proceeding (though in due course it will be necessary to consider the pleaded claims in some detail) other than to note that the substantive dispute is the claim by Bianca, as trustee of the HMH Trust, against Gina (and others) for declaratory and other relief in relation to alleged oppressive conduct, breach of directors’ duties and breach of contract in relation to matters occurring with respect to, among other things, the payment (or non-payment) of dividends by HPPL. Bianca says that the central aim of the statement of claim in the present proceeding is the recovery and protection of trust assets.

7. This proceeding is but one of a number of curial and arbitral proceedings that have been commenced across the country over more than a decade involving one or more of the parties to the present proceeding; those other proceedings raising similar (though I accept not always the same) issues and being at various stages of completion. At least by reference to the plethora of judgments published to date in the various proceedings, it can be seen that the Rinehart disputes have occupied an inordinate amount of court time, both at first instance and in appellate courts, largely on interlocutory issues.

8. In summary, those proceedings (excluding the present proceeding) include: (i) the proceeding brought by Bianca and John in this Court for the removal of Gina as trustee of the HMH Trust (the Removal Proceeding), there remaining a dispute in that proceeding as to issues in relation to the production by Gina (as the former trustee) of documents of the trust to Bianca (the present trustee); (ii) an arbitral proceeding commenced by Bianca and John in 2012 pursuant to cl 20 of the Hope Downs Deed (referred to in submissions, and in these reasons, as the French Arbitration since the Hon Robert French AC has now been approached to arbitrate that dispute but which was initially before the Hon Tony Fitzgerald QC as arbitrator) in which complaint was made as to the non-payment of dividends by HPPL; (iii) the arbitral proceeding which was the culmination of the referral/stay applications in the Federal Court proceeding, in which allegations of misconduct by Gina as trustee are made (those referral/stay applications being the subject of the Full Court Decision and High Court Decision) (this arbitral proceeding being referred to as the Martin Arbitration since the presiding arbitrator is the Hon Wayne Martin AC QC); and, (iv) two related proceedings in the Supreme Court of Western Australia (one or both of which being referred to in submissions as the Hope Downs Proceeding), involving a number of third parties, in which various of the parties have now been referred to arbitration on the counter-claim brought by Bianca and John (the balance of the proceedings not having been stayed) (see the decision of Le Miere J in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd (No 10) [2018] WASC 407, to which I will refer as the Le Miere (No 10) Decision, which has been the subject of both an appeal and cross-appeal heard in November last year and on which the Court of Appeal of the Supreme Court of Western Australia is currently reserved).

9. Senior Counsel for Bianca, Mr Thomas SC, has emphasised the differences in the allegations made in the present proceeding and those made in other proceedings (in particular, in the Federal Court proceeding that led to the Federal Court Decision and in the proceedings in the Supreme Court of Western Australia that have led to a number of decisions by Le Miere J including the Le Miere (No 10) Decision, which sets of proceedings have all now been referred, either in whole or in part, to arbitration). Mr Thomas argues that any relevant “interconnectedness” or commonality is between the Federal Court and the Western Australian proceedings; and not the present proceeding.

10. There is, however, considerable force in my opinion to the complaint made by HPPL (see for example at T 172), if not also to the same extent to the similar complaint by Gina, that it has been vexed by a succession of proceedings across the country in which Bianca (albeit in different capacities – i.e., in her personal capacity in the other proceedings and as trustee in the present proceeding) has adopted inconsistent positions and has sought or is seeking inconsistent relief. That inconsistency is most glaring in relation to the question as to the beneficial ownership of the Hope Downs mining tenements (the claim in other proceedings being that these assets are held on constructive trust for Bianca and her siblings but, in the present proceeding, one or more of the claims being premised on HPPL having beneficial ownership of the mining tenements); that inconsistency being of no little significance when it comes to the exercise of any discretion to stay the present proceeding whether in whole or in part and, in particular, to the alternative bases on which the stay of the proceeding is presently sought. Bianca denies that there is any relevant inconsistency (as to which I say more in due course).

11. There is an inescapable sense of déja vue in at least some of the arguments now raised by Bianca. This is particularly so in the context of Bianca’s latest (unconscionability) motion, having regard to the applications recently made by her (and John) in the proceedings in Western Australia. Bianca here emphasises that Le Miere J declined to hear that unconscionability application prior to the referral to arbitration and stay of the counter-claims ordered in those proceedings (see Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd (No 9) [2018] WASC 122, to which I will refer as the Le Miere (No 9) Decision). In that regard, Bianca says that Le Miere J did not approach her unconscionability application in the Western Australian proceeding as a “true anti-arbitration” application (see T 6) but, rather, assessed it as a submission as to why the application for referral to arbitration should be dismissed. Bianca argues that such an approach is on a “different plane” to the present unconscionability motion (having regard to the jurisprudential nature of an anti-arbitration injunction) and she disputes that there has been any issue estoppel or other determination affecting her ability here to pursue the unconscionability motion. That said, it is relevant to note that (however one characterises the way in which the issue was ultimately approached by Le Miere J) the submissions made for Bianca on that occasion (to which I was taken in the course of hearing the present applications) bear a marked similarity to the way in which the unconscionability motion is here sought to be put.

12. By their respective amended referral/stay motions, Gina and HPPL relevantly seek: (i) a referral to arbitration and the dismissal or permanent stay of the proceeding in this Court pursuant to Commercial Arbitration Act2010 (NSW), s 8(1) (the Commercial Arbitration Act) and/or Commercial Arbitration Act2012 (WA), s 8(1) (the WA Commercial Arbitration Act) (referred to in submissions as the s 8 Stay Applications) or, alternatively, the referral of some of the matters in the proceeding to arbitration (and, if there is a referral of only some, but not all, of the proceeding then a stay of the balance of the proceeding pursuant to the said commercial arbitration legislation (referred to as the s 8 Case Management Stay Applications) (see prayers 1-3 of HPPL’s amended referral/stay motion; prayers 1-3 of Gina’s amended referral/stay motion); (ii) alternatively, a temporary stay of the proceeding pending the determination of the other “related” proceedings (referred to as the Case Management Stay Applications) (see prayers 4-6 of HPPL’s amended referral/stay motion; prayer 4 of Gina’s referral/stay motion); and (iii), further in the alternative, an application for a stay of the whole of the proceedings on the basis that the proceedings are an abuse of process (referred to as the Abuse of Process Stay Applications) (see prayer 8 of HPPL’s amended referral/stay motion; prayer 5 of Gina’s referral/stay motion).

13. The claims for a stay of the proceeding on these alternative (case management and abuse of process) grounds are put on the basis of a fundamental inconsistency between the respective proceedings.

The panoply of interlocutory motions as at 15 July 2019

17. By the time of the hearing of the respective referral/stay motions, which commenced on 15 July 2019, the full range of extant interlocutory motions in the present proceeding comprised:

1. HPPL’s referral/stay motion (referred to at [2(a)] above), HPPL moving on an amended notice of motion dated 15 July 2019 and filed on 16 July 2019 in that regard;

2. Bianca’s leave motion (referred to at [2(b)] above);

3. Gina’s referral/stay motion (referred to at [2(c)] above), Gina moving on an amended notice of motion dated 26 June 2019 in that regard;

4. Bianca’s conflict motion (referred to at [2(d)] above);

5. Bianca (and John)’s application, by notice of motion filed 16 April 2018, to restrain Gina and HPPL from taking any steps to prosecute the French Arbitration commenced by Bianca and John pursuant to cl 20 of the Hope Downs Deed (Bianca’s anti-French Arbitration motion);

6. Gina’s application, by notice of motion filed 12 June 2018, for, inter alia, the summary dismissal or stay of Bianca’s anti-French Arbitration motion or to refer that motion to arbitration or otherwise to restrain Bianca and John from taking or participating in any step to advance or prosecute that motion (Gina’s stay of anti-French Arbitration motion);

7. Gina’s application, by notice of motion filed 14 August 2018, to refer the disputes between the parties to mediation (Gina’s mediation motion);

8. Bianca’s application, by notice of motion filed 11 June 2019, to restrain Gina and HPPL from taking any steps, directly or indirectly, to obtain or request an order staying or referring these proceedings, or any part thereof, to arbitration in reliance on the Hope Downs Deed or upon any right or interest said to arise thereunder (Bianca’s unconscionability motion) (this has been described by Bianca, as adverted to above, as a “true” anti-arbitration injunction – see T 5.5; and described by Gina as Bianca’s “Unconscionability Motion” – see T 2.35, since it proceeds on the basis that it is unconscionable and/or an abuse of process for Gina and HPPL to seek to refer the disputes to arbitration (i.e., that Gina and HPPL are unconscientiously seeking to enforce an agreement entered into in breach of trust by Gina)). I have in these reasons adopted HPPL’s nomenclature simply to avoid confusion between the respective anti-arbitration motions;

9. HPPL’s application, by notice of motion filed 20 June 2019, effectively amounting to an anti-anti-arbitration application to refer Bianca’s unconscionability motion to arbitration pursuant to Commercial Arbitration Act s 8(1) and a stay of that motion in this Court or alternatively a stay on case management grounds of as an abuse of process (HPPL’s stay of Bianca’s unconscionability motion). Similar relief is sought by Gina in her amended referral/stay motion; and, finally,

10. Gina’s application, by notice of motion filed on 14 July 2019, seeking confidentiality orders in relation to certain parts of the evidence.

18. True to form, at the outset of the hearing of the referral/stay motions, there was again debate between the parties as to the sequence in which the respective motions should be heard (and, indeed, as to whether all were ready at that stage to be heard). In this regard, Bianca goes so far as to complain of procedural unfairness (see below) were the referral/stay motions to be determined before Bianca’s unconscionability motion. It is therefore necessary, not least because of that complaint, here to explain the procedural course that I have followed in relation to the hearing of the respective motions.

19. Gina’s position in that regard was that (adopting the numbering of the motions as listed at [17] above): motions (i) and (iii) were ready to be heard; there was an issue as to whether motion (ii) should now be heard; it was anticipated that motions (iv), (v) and (vi) could be dealt with by consent orders; it was accepted that motion (vii) could be dealt with at a later stage; motions (viii) and (ix) were before the Court only for directions (as had been my direction when the matter was before me for directions on 26 June 2019); and motion (x) would arise at some stage when affidavit evidence was read in the course of the hearing of motions (i) and (iii) (see T 1-3). It was submitted by Gina that the appropriate course would be to hear motions (i) and (iii) and, at the end of argument on those motions, to make a determination as to whether to proceed to hear Bianca’s s 247A application for access to books and records of HPPL (which was part of Bianca’s leave motion, i.e., motion (ii)). HPPL supported that position (see below).

20. Bianca’s position, broadly, was as follows: there was no dispute as to motions (i) and (iii) then being ready to be heard; nor was there any dispute that Bianca’s s 237 application (part of motion (ii)) was not to be heard at that stage but that Bianca’s s 247A application should be heard during the week that had been set aside for this matter (as I had indicated at earlier directions hearings would be the case, albeit expressly subject to any further argument from Gina or HPPL that might later dissuade me from so proceeding); that it was appropriate that motion (iv) not be dealt with pending determination of the stay issue and Bianca’s s 247A application; that motions (v) and (vi) did not need to be subject of further argument at that point; and that motion (vii) (seeking an order for mediation) was premature (in advance of determination, in particular, of Bianca’s s 247A application and the outcome of the production of documents ordered following the 2015 Decision and 2018 Decision in light of the need for transparency at any mediation). Nothing was said in relation to the sequencing of motion (ix), which presumably is accepted to travel with motion (viii); and no issue was taken by Bianca as to motion (x) being dealt with in the course of argument during the hearing of the motions that were to be heard that week.

21. Although Bianca accepted that motion (viii) had only been listed by me for directions on 15 July 2019 (and did not seek to cavil with the direction that had been made to that effect, after debate with Counsel, on 26 June 2019), Bianca emphasised that Bianca’s unconscionability motion was properly characterised as an anti-arbitration application, the jurisprudential basis for which being the court’s inherent jurisdiction to control its own processes. It was submitted that, even if (contrary to her contention) Bianca is bound by the Hope Downs Deed, it would be unconscionable and an abuse of process for HPPL and Gina to rely upon it to seek a stay or referral of the relevant application(s); and that therefore, logically, Bianca’s unconscionability motion should be heard before the hearing of the referral/stay motions (or at least before the determination of those motions). Further, Bianca’s position (with which the defendants cavil) was that, by definition, Bianca’s unconscionability motion could not be referred out to arbitration (see T 8.2).

22. What was of concern to me was that four and a half days had (for some time) been set aside in the court’s diary for the hearing of the various interlocutory applications (that listing having been fixed before the latest of those motions – relevantly, Bianca’s unconscionability motion and HPPL’s stay of Bianca’s unconscionability motion – had been filed) and I did not consider it consistent with the just, quick and cheap resolution of the real issues in dispute (see Civil Procedure Act 2005 (NSW) (Civil Procedure Act), s 56) for those hearing dates to be vacated. As I saw it, the difficulty in proceeding at that stage with motion (viii) (even leaving aside the defendants’ arguments that it, too, is required to be referred to arbitration) was that: it had been filed only shortly before the dates which had been set aside for the hearing of the interlocutory motions; on 26 June 2019 I had made it clear that it would only be listed for directions on 15 July 2019; and the defendants had indicated that, if it were now to be heard, then they would wish to consider whether to file evidence in relation to that motion (which would have delayed matters yet again). Furthermore, Mr Thomas, in his opening written submissions on sequencing, had expressly acknowledged the likelihood that not all the motions might be able to be heard that week (even leaving aside the question of motion (viii)) (though pressing for there to be a hearing of motion (ii) insofar as it related to Bianca’s s 247A application).

23. What I indicated that I was then contemplating was that I would proceed on the basis that I would hear motions (i) and (iii); and then, if I were not at that stage persuaded that I should not do so, I would proceed to hear Bianca’s s 247A application; and that I would leave Bianca’s unconscionability motion to be heard at some later period but before determination of the other motions so that if Bianca succeeded on what is said by her to be the anterior point then one would not reach the other motions (see T 10.35). Pausing here, I note that the argument of the defendants is that the effect of Commercial Arbitration Act, s 8 is that it is not open to me to hear and determine Bianca’s s 247A application at all and that there is no choice but that it, too, must be referred to arbitration.

18. Senior Counsel for Gina, Mr Brereton SC, indicated that he would be in a position to make (and did in due course make) some responsive submissions in relation to the submissions made for Bianca in support of motion (viii), such that it could then be determined when substantively, if at all, Bianca’s unconscionability motion should be heard (see T 13.39). Thus it was proposed that the “sequencing debate” (as to the listing/determination of Bianca’s unconscionability motion and the motions responsive to that motion) should be dealt with once full argument had been heard on the referral/stay motions.

19. Senior Counsel for HPPL, Mr Giles SC, supported Mr Brereton’s position in this regard, indicating that his client’s position was that directions as to Bianca’s unconscionability motion (motion (viii)) would best be dealt with after argument on motions (i) and (ii), submitting that: the issue on Bianca’s unconscionability motion had already been determined; that the challenge by Bianca was caught by the arbitration agreement; and that, as a matter of principle, the attack by Bianca was directed at the wrong point (namely, to the Hope Downs Deed rather than to the arbitration agreement itself) (see T 14.22ff).

20. Bianca’s position as to sequencing of the motions nevertheless remained, as had been articulated in written submissions, that it would be procedurally unfair for the referral/stay motions to be determined prior to Bianca’s unconscionability motion as that would “defeat the very right that she seeks to vindicate by pursing the application”. I note at this point that I do not accept that this is the necessary consequence of such a determination, since it would remain open for an arbitrator to determine the issue of unconscientious reliance on the Hope Downs Deed at the outset of any arbitration, but I say more about this in due course.

21. It was in that context that I then proceeded to commence hearing motions (i) and (iii). As it transpired, the hearing of those two referral/stay motions occupied more than the time that had been set aside in the first place with a further full day and a half being required in order to complete the hearing of those motions. This was not least in order to assuage Mr Thomas’ concern that there be close to an equivalent amount of time allowed for oral submissions on Bianca’s behalf (see T 159.35), given the considerable time that had been taken in submissions for the defendants (primarily, it must be said, Gina’s submissions, she taking the running of much of the argument). There was, therefore, ultimately no time for oral argument on the substance of Bianca’s s 247A application, let alone on Bianca’s unconscionability motion and HPPL’s stay of Bianca’s unconscionability motion, in any event.

22. Hence, these reasons deal substantively only with motions (i) and (iii), which (as set out below) I consider should be determined now, notwithstanding that Bianca’s unconscionability motion has not yet been heard (beyond the making of the brief opening submissions advanced by the parties in relation thereto). Furthermore, the conclusion I have reached on motions (i) and (iii) points to the steps that I consider should now be taken in relation to the balance of the extant motions, as I will explain in due course.

23. For completeness, I note that, during the course of the hearing of motions (i) and (iii), it was agreed between the parties that it would be appropriate for motions (v) and (vi) simply to be dismissed with no order as to costs (on the basis that it was understood that the dismissal would not give rise to any issue estoppel) since events have to some extent overtaken those applications; and orders were made accordingly (see T 48). Orders were also made pursuant to motion (x) pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW). Thus, those three motions have now effectively been disposed of. As to motion (iv) (Bianca’s conflict motion), Mr Thomas did not have instructions to consent to its dismissal but agreed that it would be appropriate for it to be adjourned sine die, which is the course that I will follow. There will thus remain yet to be disposed of (albeit now mostly to be stayed in accordance with these reasons) only motions (ii), (vii), (viii) and (ix).

Summary of my conclusions

30. In summary, for the reasons set out below, I have concluded as follows:

• that cl 20 is an apparently valid arbitration agreement binding on Bianca in her personal capacity and, on its face, binding on her in her representative capacity as successor to Gina as the trustee of the HMH Trust, noting also that the extended definition of “party” under s 2 of the Commercial Arbitration Agreement Act (and s 2 of the WA Commercial Arbitration Act) would arguably encompass a person, such as Bianca, through whom (in her capacity as trustee) claims are made for the benefit of beneficiaries of the HMH Trust who are themselves parties to that arbitration agreement;

• that any challenge to the efficacy of the Hope Downs Deed to bind Bianca (as successor trustee of the HMH Trust) is one that should be left to the arbitrator to determine (having regard, first and foremost, to the common law principle of separability and the relevant provisions of the commercial arbitration legislation to which I refer in due course, but also, as a matter of discretion, given the overlap between the allegations on which that challenge is based and those raised in the other “related” proceedings);

• that the High Court has, as a matter of necessary inconsistency, effectively overruled the construction placed by the Court of Appeal on cl 20 of the Hope Downs Deed, including insofar as it relates to substantive claims of the kind here made;

• that on the High Court’s construction of that clause, which is binding on me, the present proceeding raises a number of matters which, pursuant to cl 20 of the Hope Downs Deed and s 8(1) of the Commercial Arbitration Act (or the equivalent provision of the its Western Australian), must now be referred to arbitration (being matters that are part of an interconnected dispute, viewed holistically and having regard to the context, on which the High Court placed emphasis, in which the arbitration agreement was entered into by the parties thereto);

• that Bianca’s s 247A application, though arbitrable, is not per se a dispute caught by cl 20 of the Hope Downs Deed and thus is not required to be referred to arbitration; and

• nevertheless, that Bianca’s s 247A application, raising as it will inevitably do (at least as presently put forward) factual matters the subject of disputes that do fall under the arbitration clause, should as a matter of discretion be stayed pending the outcome of the arbitration of the substantive disputes and, therefore, that it is not necessarily separately to determine the application for relief on the alternative bases (being the stay on the grounds of case management principles or, alternatively, as an abuse of process).

31. As to that last point, had it been necessary to determine the alternative bases for the stay sought by the defendants, I would have concluded that, as a matter of case management, the striking overlap between the factual allegations in this and other proceedings and the inconsistent bases on which relief is sought in this and the other proceedings (particularly, as to who is the beneficial owner of the Hope Downs mining tenements) warrant the exercise of the discretion to stay the present proceeding pending the determination of the other related proceedings. In that regard, I consider that there would be much to commend the consolidation of the respective arbitral proceedings, such that all issues in relation to, say, the dispute as to the non-payment of dividends and the like could be dealt with in the same proceeding. I say this notwithstanding that the claims made by Bianca in the respective proceedings are made by her in different capacities (i.e., both for her own personal benefit and for the benefit of beneficiaries of the HMH Trust, of whom she is one). I also note that an observation to similar effect was made by Rein J in the Judicial Advice Decision at [40].

32. As to the alleged abuse of process, it cannot be said (nor was it suggested) to have been an abuse of process for Bianca to have commenced the present proceeding in her capacity as trustee at the time that she did in circumstances where she did so after having obtained judicial advice (see the Judicial Advice Decision). However, I consider that the continuation of claims in at least two sets of proceedings, premised on inconsistent factual assumptions (as to the ownership of the Hope Downs mining tenements), does amount to an abuse of process and that this would have been a separate reason to warrant a discretionary stay of the present proceeding pending the determination of the other “related” proceedings.

33. As to Bianca’s unconscionability motion, it is not appropriate at this stage (pending a hearing of the merits of the motion) to enter into the debate as to whether (as HPPL and Gina contend) it, too, is required to be referred to arbitration. However, in any event, it is not necessary to hear that motion because I consider that to proceed to do so at this stage would offend against the common law principle of separability (see Full Court Decision at [341]ff) and because, as a matter of discretion, I have concluded that Bianca’s unconscionability motion should be stayed pending the outcome of the arbitration of the disputes now to be referred to arbitration. The allegations sought to be made by Bianca as to why the matter should not be referred to arbitration can be put before the arbitrator or arbitral panel in the course of the arbitration (that is, as arguments as to why the arbitration should not proceed) and dealt with in that forum (with the bargained-for confidentiality provided for under the Hope Downs Deed, at least at first instance, without, in my opinion, any obvious or undue prejudice to the position of Bianca as trustee or of the beneficiaries of the HMH Trust). Whereas, were I to proceed now to hear Bianca’s unconscionability motion (based as it is on at least some of the very same allegations of misconduct as appear to underlie various of the substantive claims made in this proceeding) this would inevitably give rise to the very public hearing that the parties to the arbitration agreement in my opinion agreed to avoid. I accept that there is a public interest in the supervision by the court of the duties of a trustee and under the Corporations Act2001 (Cth) of the duties of a director, but that public interest must be weighed against other interests including the public interest in the finality of litigation and in the due administration of justice.

34. The consequence of the conclusions I have thus reached is that: on motions (i) and (iii), I will refer the parties to arbitration of all matters other than Bianca’s s 247A application and will stay the balance of the proceeding (i.e., the application for relief pursuant to Corporations Act 2001 (Cth), s 247A) pending determination of the arbitration; motion (ii) (Bianca’s leave motion) will thus be stayed pending determination of the arbitration (subject to one qualification, which I make below); motion (iv) will by consent be adjourned sine die; motions (v) and (vi) have already been disposed of, as noted earlier; motion (vii) will be stayed pending the determination of the arbitration (subject to the further qualification, which I make below); motions (viii) and (ix) will be stayed pending the determination of the arbitration; motion (x) has already been disposed of as noted already; and I will direct the parties to file brief written submissions as to the costs orders that should be made consequent upon the determination of the above motions.

35. The two qualifications to which I have referred above are these.

36. First, my conclusion that Bianca’s s 247A application should be stayed is because, as I understand it, the hearing of that application will or is likely to involve a public airing of the matters the subject of the bargained-for confidentiality and, to the extent that the documents sought are relevant to the matters to be referred to arbitration, it will be open to Bianca to seek production of documents in the context of the arbitration. If, however, there are particular, limited categories of documents required by Bianca for the purpose of her administration of the HMH Trust, as its trustee (other than for the purposes of the prosecution of the claims the subject of this proceeding), then it may be that this would not give rise to the same difficulty and hence I do not rule out the possibility of entertaining an isolated s 247A application were that to be unconnected to the disputes the subject of the matters now to be referred to arbitration (and were it unlikely to involve the airing of factual disputes of that kind).

37. Second, while the defendants did not press for the hearing of Gina’s mediation motion, I am very much inclined at this stage to refer the parties to mediation of my own motion. That is in circumstances where: the arbitration process will no doubt take some time (not least if there is any appeal from my decision to refer the parties to arbitration); Bianca’s s 247A application is to be stayed; the production of trust documents (which should by now have been well under way following the 2015 Decision, the 2018 Decision and my subsequent decisions in relation thereto) is or may be at risk of being again deferred (if not effectively de-railed) as a consequence of what I understand to be Bianca’s intention to challenge at least some part of my recent decision in relation thereto (subject to her latest application for judicial advice in that regard, which is now listed for hearing in March this year); and it seems to me that it is overwhelmingly in the interests of the administration of justice (and of the just, quick and cheap resolution of the real issues in dispute) to force the parties to focus sooner rather than later on whether a sensible and acceptable resolution of their long-running disputes can be achieved.

38. The ongoing drain on court time and resources (not just in this Court but elsewhere) can only be to the prejudice of other litigants. The spectre that well-funded litigants may be perceived as being able indefinitely to prolong a final determination of their litigious disputes (and I say this without confining or addressing my comments to any one or other side of the warring factions here before me) can only serve to bring the administration of justice into disrepute.

39. Accordingly, I will direct that there be brief written submissions filed within 14 days as to why, if there be opposition to this course, I should not of my own motion refer the parties in this proceeding to mediation before a private mediator (to be agreed between the parties or, in the absence of agreement, nominated by me) and in any event as to the time frame within which this could sensibly occur (including, if relevant, by reference to the status of the regime for the production of trust documents that was put in place late last year) but noting that I would expect the referral to mediation to take place within the near future and not to be postponed to some indeterminate future time. It seems to me that this course is not inconsistent with the referral at the same time of the parties to arbitration, particularly if, as Bianca anticipates, there will presumably be some delay in the arbitral process.

40. I note that the defendants were amenable to a referral to mediation, when I raised this in the course of oral submissions; and that the opposition by Bianca to such a referral was simply a timing issue by reference to her complaint that she is not privy to all of the documents in relation to the matter (and therefore that there is, to adopt the terminology previously used in this matter, an information asymmetry). As to that complaint, it seems to me that unfortunately the reality is that such an information asymmetry is likely to continue for no little time (since the estimated time frame within which Bianca’s previous demands as to the production of trust documents could realistically be met was one that extended for some years into the future, and at a considerable cost); and I am not persuaded that the mere existence of such an asymmetry would preclude fruitful discussions at mediation (at least if all parties participate in the mediation in good faith, as they would be obliged to do).

Context in which Bianca has commenced the present proceeding

41. Before turning to the issues raised by the respective referral/stay motions, it is relevant to note the following as to the context in which the present proceeding is brought, having regard to the emphasis placed by Bianca on the fact that she brings this proceeding in her capacity as trustee of the HMH Trust. Bianca points out that it is only by reason of her appointment as trustee, and the consequential vesting of 24% of HPPL shares in her qua trustee, that she is able to claim the relief she here seeks by way of equitable compensation, account of profits and under the Corporations Act (each of those statutory remedies being relevantly confined to a member).

42. Much weight is placed by Bianca on the recognition by Brooking J in Young v Murphy [1996] 1 VR 279 (Young v Murphy) at 281 that “a trustee who has committed a breach of trust may be sued in respect of that breach … [by a] successor trustee” and that this applies even if the successor trustee was party to the breach (see T 202). Bianca submits that she has “no choice” in that regard, saying that:

The standing of a trustee to take proceedings to have a breach of trust redressed against a trustee or former trustee or a stranger who has become liable to redress a breach of trust is well recognised. Not only may a trustee take such proceedings, but he runs the risk of himself committing a breach of trust if he fails to do so. His obligation to take the proceedings (unless they be futile) is part of his duty to get in the trust estate, which includes rights of action against co-trustees or former trustees and strangers for breach of trust. This is clear as a matter of both principle and authority.

43. Bianca says that criticism made by the defendants of the fact that, in her personal capacity, she has adopted a different position or made different claims in other proceedings (for example, in the Federal Court proceeding) fails to recognise that fundamental principle. It is said, somewhat plaintively, that:

Put simply, Bianca has no choice to bring the current proceedings as trustee, whatever her own personal claims against Gina might be, because to do otherwise could place herself in breach of trust. That fact alone renders complaints about abuse of process both untenable and unfair.

44. That submission (what might be termed the “no choice” submission) must, however, itself be put into context. Bianca sought and obtained judicial advice that she would be justified in commencing the present proceeding (see the Judicial Advice Decision). Leaving aside for the moment the abuse of process arguments now put by the defendants, it is by no means apparent from the reasons given by Rein J that the question of the applicability or potential applicability of the arbitration agreement, or Bianca’s resistance or likely resistance to any referral of the parties in this proceeding to arbitration, was something that was raised before Rein J in the context of that judicial advice application (let alone that there was any argument put to his Honour that, as trustee, Bianca was not bound by the Hope Downs Deed). In that vein, HPPL, in the course of its submissions, says that it does not appear that Bianca ever suggested either to Brereton J, as his Honour then was, (in the Removal Proceeding) or to Rein J (on the judicial advice application) that, in her capacity as trustee of the HMH Trust, she intended to disavow the Hope Downs Deed on behalf of the beneficiaries of that trust. Rather, it is said, Bianca suggested the opposite to Brereton J when contending (in the trust documents dispute) that she is entitled to documents in relation to the Hope Downs Deed on the basis that the deed is trust property. In that regard, Bianca here disputes that there is any inconsistency between seeking production of physical documents held by the former trustee and denying that she is bound by the Hope Downs Deed but it is not necessary at this stage to explore that contention.

44. Suffice it at this point simply to note that, while Bianca here emphasises that she has “no choice” but to bring the present proceeding in her capacity as trustee, it is not clear to me that her resistance to the referral to arbitration in the present proceeding is something about which she could be said as trustee to have “no choice” nor that this is something about which judicial advice was obtained. That is not insignificant when one considers the (no doubt not inconsiderable) cost and the delay to date occasioned by such resistance. When that issue was raised in the course of oral argument, the response for Bianca was to the effect that, if Bianca as trustee is not bound by the Hope Downs Deed, then she could not be criticised for resisting an application to refer the matter to arbitration. In one sense that may be so; and indeed there may well be perceived forensic and other potential advantages of the course that has been adopted. However, that response does not on its face necessarily take into account the potential disadvantage to the beneficiaries of the trust of the continuing cost and delay, by reason of such resistance, to the final resolution of the disputes the subject of this proceeding. Nor does it in my view adequately meet the inconsistency argument relied upon by the defendants in support of a stay of the proceeding (on the alternative bases) even if the dispute(s) is, or are, not covered by the arbitration clause in question.

45. Insofar as HPPL has made submissions (see at [13]-[21] of its closing submissions) as to the Judicial Advice Decision, Bianca maintains that: the characterisation by Rein J in that decision of the matters in issue in these proceedings is irrelevant; that the matters in issue in these proceedings are to be determined by the statement of claim “and, possibly, the foreshadowed defences”; and that it was no part of Rein J’s function to determine what the “matters” in these proceedings were for the purposes of the Commercial Arbitration Act (and that there is no indication that his Honour in fact did so). So much may readily be accepted. However, that does not address the concern I have as to whether there was consideration given, at the time of the judicial advice application, to whether Bianca, in her capacity as trustee, was or would be justified in resisting any application of the kind now made in the referral/stay motions (the inevitability of which might well be said to have been obvious having regard to the history of such applications in other proceedings to date).

46. “No choice” but to litigate does not equate to a mandate to litigate at all cost (or ‘to the death’, so to speak). Nor does it give any imprimatur to particular steps or forensic decisions that might be taken in the course of such litigation. In any event, that is not an issue on which I am here called upon to make any finding. I simply note it in the context of the emphasis placed by Bianca on her “no choice” submission.

Background to the present dispute

48. As to the relevant background to the present dispute, the circumstances surrounding the entry into the Hope Downs Deed (these being the context which both the Full Court and the High Court considered of importance in the construction of the relevant arbitration clause) are set out from [28]ff of the Full Court Decision. Bianca does not cavil with that summary of the factual matrix (though, as I note in due course, she points to other events as relevant by way of context).

49. The context surrounding entry into the Hope Downs Deed includes that, from around 2003, John was investigating the possibility of commencing proceedings against Gina. It is said by Gina that this was seemingly with Bianca’s involvement, reference being made in this regard to an email from John to Bianca on 12 May 2004 in which John tells Bianca that he had finished his affidavit and that he wanted to “get the show on the road” (see T 24). Gina relies on this correspondence as giving rise to an inference that Bianca had a copy of John’s affidavit (to which reference is made in the Hope Downs Deed) prior to entry into the Hope Downs Deed (see T 25).

50. On 24 May 2004, solicitors acting for John wrote to Gina about “a number of concerns” about the HMH Trust and suggesting that she step down as trustee. On 7 October 2004, John’s solicitors wrote to Gina’s solicitor indicating that he proposed to file proceedings seeking to replace Gina and stating that John was “cognisant of the unwelcome publicity that such action will attract”. Pausing here, the not so subtle threat of publicity was thus prominent in the events leading up to the Hope Downs Deed and, not surprisingly, was an important part of the context in which the Full Court and the High Court considered the construction of cl 20 of that deed. It paves the way for the submission here made by Gina that it is relevant to ask whether this is the kind of dispute that the parties would have contemplated being determined in open court or by the confidential arbitration for which provision was made in the Hope Downs Deed.

51. On 27 October 2004, John’s solicitors sent a further letter which: outlined alleged wrongdoing of Gina; enclosed a draft affidavit of John in support of the foreshadowed proceeding; and stated that “in the meantime our client requests $300,000 which would ameliorate some of the concerns expressed by him in the draft affidavit”.

52. On 20 November 2004, John sent an email to, among others, Gina and Bianca, with an extract from The West Australian newspaper, which detailed the allegations contained in his draft affidavit.

53. Pausing here, I note that, in terms of context, HPPL emphasises that Gina’s exercise of control over HPPL and the failure to pay dividends were matters agitated prior to the entry into of the Hope Downs Deed. It is noted that John’s draft affidavit made specific complaints about Gina’s control of HPPL and her failure to pay dividends to the HMH Trust, including:

• the reference to a letter dated 7 October 2004 from John’s solicitors, Butcher Pauli & Calder, in which it was said that “it also must be the case that the dividends paid to the Trust have been minimised”;

• the statement (at [195]) that “I am advised by my solicitors that ... changes in the law relating to oppression would likely have rendered a deliberate failure to declare dividends oppressive conduct”;

• the statement (at [241]) that “[g]iven that my mother was in control of HPPL, she clearly determined whether dividends were paid or not”;

• the statement (at [254]) that “by holding 76.6% of all voting shares, and all the shares in one particular class (B), my mother is now able to declare dividends on those shares to herself, to the exclusion of the Trust, and all other classes”;

• the statement (at [255]ff) (under the heading “Failure to Declare Dividends”);

• the statement (at [260]) that “[t]he fact that mother refuses to dividends other than as she is required to do by the Articles again indicates that her interests are in conflict with those of the Trust ...”; and

54. Reference is also made to the fact that Bianca’s advice from Freehills, prior to her entry into the Hope Downs Deed, refers to the non-payment of dividends as potentially oppressive conduct.

55. On 1 April 2005, John, HPPL, Gina and each of her daughters (Bianca, Hope and Gina, being the other beneficiaries, with John, of the HMH Trust) and others entered into a confidential deed of obligation and release (the Deed of Obligation and Release). Gina submits that Recitals D to F to the Deed of Obligation and Release (which I do not here set out) make plain the importance of confidentiality to the parties. A deed of loan was also entered into between HPPL and John.

56. The Deed of Obligation and Release provided for various benefits to John (including a $3m loan from HPPL repayable when the HMH Trust vested and the free use of two apartments) in exchange for certain releases; and the parties agreed that all “disputes hereunder” were to be resolved by confidential mediation and arbitration in Western Australia (cl 14) (and see the Full Court Decision at [64]-[71]; the High Court Decision at [28]-[33]).

57. On 12 April 2005, John gave notice of his intention to be heard in proceedings involving Gina as trustee. On 28 June 2005, his solicitors wrote to Gina’s solicitor asserting that John was not bound by the Deed of Obligation and Release because it had been the product of undue influence.

58. On 1 July 2005, HPPL entered into the Co-operation Agreement Hope Downs Project with Rio Tinto parties and announced that it had done so. Soon after, the existence of the dispute between John and Gina was released to the media.

59. On 11 July 2005, John gave notice of his intention to be joined as a party to proceedings then in the Supreme Court of Western Australia involving Gina as trustee, on the basis of alleged breaches of trust.

60. In late September 2005, John filed a supporting affidavit sworn 27 September 2005 in the Supreme Court of Western Australia proceeding, alleging that Gina had committed grave breaches of trust, including: the removal of the Hope Downs mining tenements from the control of the HMH Trust (and into HPPL’s control); the reduction in HMH Trust ownership or control of shareholding in HPPL; the increase of Gina’s shareholding in HPPL from 51% to 76%; and the refusal to provide any or sufficient financial support for John from the HMH Trust. There was reference to a more recent draft affidavit, which as I understand it was a later version of the draft affidavit which had been annexed to the letter of 27 October 2004, outlining alleged wrongdoing by Gina and HPPL, including allegations that there had been a failure to declare HPPL dividends by Gina. The affidavit included the following assertions:

The fact that my mother refuses to declare dividends other than as she is required to do by the Articles [concerning CSS Dividends] again indicates that her interests are in conflict with the Trust, as the beneficiaries provide greater assistance than the CS share dividends provide. Clearly HPPL, which has made an after tax profit over $9 million in 2003, is more than capable of declaring dividends in excess of the required CS share dividend.

…

My mother’s conduct as director and controller of the various Hancock group entities, as well as her performance as trustee of the Trust and the Zamoever Trust, demonstrates she has only acted in her own interest, to the detriment of the children, and their rightful entitlements, in breach of her director’s duties, and fiduciary duties as trustee.

61. Reliance is placed by Gina (by way of the context to entry into the Hope Downs Deed) on a note dated 16 November 2005 made by Bianca, apparently recording a conversation with John on 29 October 2005 in which there is reference to an attempt to convince her to come to “his side” and the following appears:

John stated that I was not to assume his attack against GHR [Gina] was over. He said that Hope Downs ‘belongs to the children’ and that because he was aware GHR was under immense pressure to get the Hope Downs deal signed in time for Government deadline of 30 June 2005, that is why he decided to ‘hit her up’ for a “few mill” then, but that his ‘case’ against GHR was by no means over…he stated that he would fight for ownership of our company’s other assets (excluding Hope Downs) - ie Roy Hill, and that he would float these once he had control of them.

62. In March 2006, Rio Tinto’s subsidiaries and HPPL’s subsidiary, Hope Downs Iron Ore Pty Ltd (HDIO), signed the Hope Downs Joint Venture Agreement (HDJVA). Gina and Bianca, then a director of HDIO, signed the HDJVA on behalf of HDIO. Relevantly, the HDJVA contained various provisions relating to the continued control of HPPL by Gina (this being the context in which it was later said to be in HPPL’s interest for the Hope Downs Deed to be entered into by the parties thereto).

63. On 31 March 2006, John sent an email to HPPL (a copy of which was forwarded to Bianca), stating that it “seems there is little else to do but put this matter before the courts” and that “[i]f you cannot yet realise the immense conflict of my Mother acting as both Trustee and majority shareholder of HPPL then please seek further legal advice”.

64. In the period from June to August 2006, John continued to correspond with HPPL in relation to his allegations. In that period (i.e., leading up to the execution of the Hope Downs Deed in August 2006), Gina points out that Bianca received legal advice from two firms of solicitors (Freehills and AJ Muscat & Co) and John also had the benefit of legal advice.

65. In August 2006, the Hope Downs Deed was executed by, among others, Bianca. John, at that stage, did not sign the Hope Downs Deed; rather, he signed a further deed in 2007 (the 2007 HD Deed) by which he agreed to be bound by the obligations in the Hope Downs Deed.

66. In summary, the Hope Downs Deed: contained acknowledgments concerning the ownership of Hope Downs (cll 3 and 4); provided the beneficiaries with an entitlement to dividends from the profits earned in respect of Hope Downs, unless a beneficiary breached his or her obligations under the deed (cl 5); provided broad releases (cl 6); provided undertakings including concerning a non-disparagement undertaking and undertakings not to challenge the right of HPPL to the mining tenements and not to challenge the right of Gina in relation to HPPL (cl 7); contained an acknowledgement of Gina’s continuing and ongoing control and management HPPL during her lifetime (cl 8); imposed strict obligations of confidentiality in respect of matters in relation to the subject matter of the deed and disputes under the deed (cll 10 and 20.8); contained acknowledgments that each party entered into the deed freely and voluntarily, and required each of the beneficiaries to obtain legal advice (cl 12); and contained the arbitration clause the subject of the present applications relating to “any dispute under this deed” (cl 20).

67. HPPL argues that the terms of the Hope Downs Deed itself indicate that it was intended to operate retrospectively, in terms of quelling disputes as to title through the release of past claims, as well as prospectively, in terms of regulating the conduct of the affairs of HPPL by its legal and beneficial shareholders. It is noted that the Hope Downs Deed: required HPPL to pay dividends derived from profits from the Hope Downs mine to the A class shareholders in HPPL, as long as there was not a breach of the Hope Downs Deed (cl 5); required the parties not to do anything at any time that could have an adverse impact on the Hope Downs joint venture with Rio Tinto (cl 7(a)); required the parties not to challenge the right of any member of the Hancock Group to any of the Hancock Group Interests (as defined) at any time (cl 7(b)); required the parties not to take any steps at any time which would result in HPPL ceasing to be wholly owned and controlled by “Hancock Family Group Members” (as defined) (cl 7(c)); required the parties not to challenge the rights of any of Gina or her four children to their right, title or interest in any of the Hancock Group or any trust in which they are a beneficiary (cl 7(e)); and acknowledged that during her lifetime Gina would maintain full ongoing control and management of HPPL (cl 8). HPPL emphasises that a critical object of the Hope Downs Deed was the maintenance of confidentiality about the affairs of the Hancock Group, the trusts, the intra-family dispute and the provisions of the deed itself (see the High Court Decision at [45]).

68. As noted above, Bianca does not dispute the factual matrix identified by the Federal Court and High Court in their respective decisions as to the circumstances surrounding entry into the Hope Downs Deed. Bianca does, however, submit that the following additional circumstances need to be taken into account.

69. First, which is not disputed, that in 2005 and 2006, Gina was the trustee of the HMH Trust and, in that capacity, owed fiduciary duties to the beneficiaries of the HMH Trust (being her children) (see the 2015 Decision at [1]-[2]). Pausing here, insofar as reference is made to earlier judgments, Bianca has disavowed reliance on factual findings in those judgments as evidence in the present proceeding (see T 17; s 91 of the Evidence Act 1995 (NSW) (Evidence Act)).

70. Second, that: the catalyst for the Hope Downs Deed was the application made by John seeking to replace Gina as trustee (to which I previously referred as the Removal Proceeding, which led to the 2015 Decision – see the 2015 Decision at [1]-[2]; [13]-[14]; Bianca referring also to cl 7(c) of the Hope Downs Deed); in response to John’s application, Gina sought legal advice as to whether she could remove him as a beneficiary (Bianca referring to the fourth brief (dated 10 July 2006) to Mr Myers QC; and that Gina received legal advice (the Myers advice) to the effect that Gina could not do so consistently with her duties as trustee).

71. Third, that in August 2006, just before the Hope Downs Deed was signed, Bianca was sent a series of communications by in-house counsel at HPPL to the effect that her duties as director of HPPL obliged her to sign the Hope Downs Deed and that it was urgent to do so; and that, at the time those communications were sent to Bianca, Gina was in the process of obtaining (but had not yet obtained) legal advice as to whether she could, consistently with her duties as trustee, execute the Hope Downs Deed in her capacity as trustee. Bianca points out that the question posed for legal advice was “whether the Trustee may execute the Deed on behalf of beneficiaries in accord with similar advice given earlier in relation to the Trustee being able to bind the Trust”.

72. Fourth, that on 22 August 2006, Gina was provided with written legal advice (the Sceales advice) to the effect, Bianca says, that Gina could not sign the Hope Downs Deed as trustee of the HMH Trust without breaching her duties as trustee. Pausing here, Gina’s position is that the Myers advice and the Sceales advice must be put in context and does not accept that they bear the significance Bianca attaches to them.

73. Fifth, that, Bianca submits, it is to be inferred from the later claim by Gina for privilege over the advices on the basis that they were confidential communications and had been obtained “in her personal (not her trustee) capacity”(referring to another decision of Brereton J – namely, Hancock v Rinehart [2016] NSWSC 12 at [4], [8], [13]-[15]) that Gina did not disclose either of the Myers advice or the Sceales advice to Bianca or to John prior to each of them signing the Hope Downs Deed.

74. Sixth, that the legal advice obtained by Gina was paid for out the assets of the HMH Trust but was never provided to the beneficiaries.

75. Finally, that the Hope Downs Deed conferred very significant benefits on Gina personally (Bianca referring in this context to cll 5, 6, 7(c), (d), (e), 8 and 11 of the Hope Downs Deed – see in due course below).

76. I note that in Bianca’s written submissions on the present applications, some of the contents of, and context to, the Myers advice and Sceales advice is set out. I do not consider it necessary here to set that out in any great detail. Suffice it to note that Bianca maintains that the effect of the Myers advice was that Gina’s purposes for seeking to cut John out of the benefits of the trust were improper and it is asserted that, if that were so, then any attempts by Gina to fulfil those purposes would be in breach of trust. It is said that, as Gina has adduced no evidence here to controvert the natural inference that her state of mind was no different a matter of weeks later when she purported to execute the Hope Downs Deed on behalf of the HMH Trust, then that is the natural inference (i.e., that she was there seeking to cut John out of the benefits of the trust) in circumstances where cl 5(c) of the Hope Downs Deed gave Gina (by a different mechanism to that which was the direct subject of the Myers advice) the power to deprive John of HPPL dividends and of the fruits of the HMH Trust. Reference is made in the Myers advice to the principle stated in In re Wright; Hegan v Bloor [1920] 1 Ch 108 by PO Lawrence J at 120, referring to Humphrey v Olver (1859) 28 LJ (Ch) 406, in the context of a trustee’s power of appointment, namely that “if a corrupt intention is shown to have ever been entertained the burden of showing that it was abandoned previously to the execution of the power lay upon those who supported the appointment”.

589. Their Honours went on to say that it did not necessarily follow that because one or other of the proceedings is prima facie vexatious or oppressive the local proceedings should be stayed but that:

… it does follow that the fact that there are or, even, that there may be simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question whether the local proceedings are oppressive in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or, vexatious, in the sense of “productive of serious and unjustified trouble and harassment”. And it also follows that courts should strive, to the extent that Voth permits, to avoid that situation. (Emphasis added.)

590. In the context of representative proceedings, at first instance in the GetSwift proceedings (see Perera v GetSwift Ltd (2018) 263 FCR 1; [2018] FCA 732 (GetSwift)), Lee J concluded that it would be an abuse of process for more than one of those proceedings to continue and ordered that two of the proceedings be permanently stayed (see at [306]ff; [345]-[347]). On appeal, the Full Court (Middleton, Murphy and Beach JJ) did not consider it necessary to determine the question whether the continuation of competing proceedings was an abuse of process, concluding that there was power to stay one or more competing class actions pursuant to the Court’s inherent case management powers (see Perera v GetSwift Ltd (2018) 263 FCR 92; [2018] FCAFC 202 at [121]ff; [136]).

591. In United Pacific Finance Pty Ltd v Tarrant [2009] NSWSC 630, Austin J (at [33]) noted that “the commencement of proceedings which create duplicity of proceedings is an abuse of process” (citing Moore v Inglis at 514 and 516 per Mason J; Commonwealth v Cockatoo DockyardPty Ltd [2003] NSWCA 192 at [56]–[63] per McColl JA; and referring also to Slough Estates Ltd v Slough Borough Council [1968] Ch 299 at 314–5 per Ungoed-Thomas J. His Honour also cited Thames Launches Ltd v Trinity House Corporation of Deptford Strond [1961] Ch 197 where Buckley LJ said (at 209):

[Counsel for the defendant] says that the principle is that a man should not pursue a remedy in respect of the same matter in more than one court. In my judgment, the principle is rather wider than that. It is that no man should be allowed to institute proceedings in any court if the circumstances are such that to do so would really be vexatious. In my judgment it is vexatious if somebody institutes proceedings to obtain relief in respect of a particular subject-matter where exactly the same issue is raised by his opponent in proceedings already instituted in another court to which he is not the plaintiff but the defendant. (Emphasis added.)

592. In UBS AG v Tyne, Kiefel CJ, Bell and Keane JJ (with whom Gageler J agreed), said (at [1]) that:

1.   … The varied circumstances in which the use of the court’s processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court’s procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute … [Footnotes omitted.]

593. Their Honours noted (at [38]) that the “timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute” (citing Batistatos at [14] per Gleeson CJ, Gummow, Hayne and Crennan JJ; and Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [95] per Gummow, Hayne, Crennan, Kiefel and Bell JJ).

594. As to the question of unjustifiable oppression, their Honours said (at [58]) that:

58.   … That oppression is found not only in the significant delay in the resolution of the dispute and the inevitability of increased costs to UBS. At its core is the vexation of being required to deal again with claims that could have been resolved in the SCNSW proceedings. … On the final determination of the SCNSW proceedings, it was reasonable for UBS to order its affairs upon the understanding that the dispute between it and Mr Tyne, and the entities that he controlled, arising out of those dealings was at an end.

595. At [59], their Honours said:

59.    For the Federal Court to lend its procedures to the staged conduct of what is factually the one dispute prosecuted by related parties under common control with the attendant duplication of court resources, delay, expense and vexation, as Dowsett J [who had dissented in the Full Court] found, is likely to give rise to the perception that the administration of justice is inefficient, careless of costs and profligate in its application of public moneys...

596. Gageler J, agreeing with the plurality, emphasised (at [62]) that in Tomlinson v Ramsey (at [24]-[25]), the doctrine of abuse of process, in its application to the assertion of rights or the raising of issues in successive proceedings, “was there explained to be informed in part by considerations of finality and fairness similar to those which inform the doctrine of estoppel but to be inherently broader and more flexible than that doctrine”.

597. It is recognised that there may be circumstances in which the prima facie position that it is an abuse of process for any party to institute two proceedings for the one claim may be the subject of an explanation satisfactory to the Court (see Mala Pty Ltd v Johnston (1994) 13 ACLC 100 at 102 per Adams J; Roy Morgan Research Center Pty Ltd v Wilson Market Research Pty Ltd (1996) 39 NSWLR 311 at 317 per Santow J, as his Honour then was; Guardian Group Australia Pty Ltd v Lu [2005] NSWSC 1299 at [58] per Brereton J, as his Honour then was). Similarly, there may be a sufficient explanation as to why two proceedings raising the same issues should be continued at the same time. However, in general it is contrary to the public interest in the administration of justice for there to be permitted the risk of inconsistent decisions on the same issues; and there would be oppression at the continuation of proceedings with the risk of conflicting judgments, if the same or similar issues will arise for determination in each.

598. Here, the commencement of the proceeding in New South Wales was the subject of the Judicial Advice Decision but the real question is as to the continuation of proceedings in which there is a duplicity of issues, or at least overlapping issues, between those raised in the other judicial and arbitral proceedings (particularly where the proceeding in this Court is hardly at an advanced stage).

599. It is relevant in this context to note Gordon J’s observations (albeit in dissent as to the result) in UBS AG v Tyne that (at [151]):

151.   The administration of justice may be brought into disrepute, in such a way as to amount to abuse of process, if the public perception is that the legal system is unfair, inefficient, ineffective, expensive (both for the parties and in terms of the use of public monies) or contrary to the rule of law. Permitting a proceeding to continue in such circumstances might suggest tolerance of behaviour that is contrary to the just, efficient and timely resolution of disputes including attempts to relitigate questions already resolved. (Footnotes omitted.)

600. Here, of course, there is no suggestion of re-litigating questions already resolved but there is the spectre of inconsistent decisions at the very least in relation to the ownership of the mining assets; and the difficulty occasioned to HPPL arising from the inconsistency in Bianca’s position.

601. At [155], Gordon J referred to considerations of finality, fairness and maintenance of public confidence in the administration of justice. At [80], Gageler J, agreeing with the majority, also emphasised the public interest in the timely and efficient administration of civil justice.

602. As extracted above, the plurality (at [58]) spoke of oppression in the significant delay in the resolution of the disputes and the inevitability of increased costs. Those concerns as to the timely and efficient administration of justice arise in the present case. There is in my opinion much force to the submission by HPPL that all issues in relation to the payment of dividends and the ownership of the relevant assets should be dealt with the one set of proceedings.

603. I have concluded that case management principles would have coupled with the stay of the proceedings even if the disputes had not been covered by the arbitration clause by reason of the fundamental inconsistency in the maintenance of the two claims as to the beneficial ownership of the mining tenements assets. From a case management perspective, it is inefficient and raises the spectre of inconsistent judgments to have these matters dealt with in different places before different decision-makers. I accept that there is not one single matter but I also accept that there is a marked degree of interconnectedness (or interconnectivity) in the respective allegations. Whether or not this is “all about the dividends”, as was put to me, there is little doubt that issues relating to the payment of dividends are squarely raised in the pleadings by Bianca and that this will give rise to submissions made on the basis of inconsistency with provisions of the Hope Downs Deed. The fact that a court might be unlikely to grant certain of the relief, or that reliance on certain clauses might ultimately be found to be against public policy or the like, is not to the point – what is relevant is that it is abundantly clear that the defendants will be relying on provisions of the Hope Downs Deed in their defence of the allegations made against them; and that exploring the issues so raised will involve disputes as to the provisions of the Hope Downs Deed. Moreover, I consider this continuation of the present proceedings involving overlapping issues and inconsistent claims for relief (and premised on inconsistent positions albeit raised in different capacities) would amount to an abuse of process.

Bianca’s unconscionability motion (motion viii)

604. The basis of Bianca’s unconscionability motion (only before me for directions, as noted already) comprises: the conflict of interest and duty on the part of Gina that is said to be manifest on the face of the Hope Downs Deed (namely, that Gina obtained a personal benefit under the Hope Downs Deed and also purported to execute the Hope Downs Deed on behalf of the HMH Trust); the onus on Gina to justify that breach of duty (which onus is said to be undischarged); and the evidence indicating that Gina did not disclose material information to the beneficiaries prior to execution of the deed.

605. In particular, the allegation by Bianca is that Gina failed to disclose to the beneficiaries that, after executing the Hope Downs Deed, Gina had requested (but not received) legal advice in her capacity as trustee about the lawfulness of the Hope Downs Deed.

Bianca’s submissions

606. It is submitted by Bianca that, in circumstances where the Hope Downs Deed was “self-evidently a self-dealing transaction”, the failure of Gina to inform the beneficiaries prior to their own execution of the Hope Downs Deed that advice as to the lawfulness of the deed was outstanding precluded Gina from obtaining their fully informed consent; and that, whatever may be the effect of that conduct on the validity of the Hope Downs Deed, these facts support an injunction in the Court’s inherent jurisdiction preventing Gina (and HPPL, with reference to Farah v Say-Dee Pty at [110] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, said to be her “alter ego” and accessory to the breach of trust) from seeking unconscientiously to deploy the Hope Downs Deed (entered into in breach of trust by Gina) against her successor trustee in aid of arbitration.

607. It is submitted that Gina’s “breaches of trust and abuses of fiduciary position” are examples of “unconscientious conduct” in the strict sense (referring to Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315; [2003] HCA 57 at [20] per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ); that HPPL is an accessory to that unconscientious conduct; and that it would be unconscientious for Gina or HPPL to assert rights deriving from a transaction which was entered into unconscientiously (relying on what was said in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 (CSR) at 392 by the majority of the High Court; and noting the reference by the majority to what was said by Gummow J, then sitting in the Federal Court, at 232 in National Mutual Holdings Pty Ltd v Sentry Corp (1989) 22 FCR 209 (National Mutualas to the principles applicable in Chancery to restrain proceedings outside the forum). Reference is also made to the statement by Deane J in Muschinski v Dodds (1985) 160 CLR 583 at 619-20; as to the traditional doctrine of equity which operates upon a legal entitlement to prevent a person from asserting or exercising a legal right in circumstances where the particular assertion or exercise of it would constitute unconscionable conduct; and to the academic commentary by RP Meagher, JD Heydon and MJ Leeming, Equity: Doctrines and Remedies (4th ed, 2002, LexisNexis Butterworths) at [21-015] in this regard.

608. Bianca says that these principles apply equally in the context of anti-arbitration injunctions, referring to Kraft Foods Group Brands LLC v Bega Cheese Ltd [2018] FCA 549 at [24], [61], [63] per O’Callaghan J; and says (cf Gina’s submissions) that s 5 of the Commercial Arbitration Act does not abrogate the power of the court to grant an anti-arbitration injunction (pointing to art 5 of the Model Law, the text of which is set out in sch 2 of the International Arbitration Act 1974 (Cth) (International Arbitration Act), which is in relevantly identical terms to s 5 of the Commercial Arbitration Act and which has the force of law in Australia pursuant to s 16(1) of the International Arbitration Act.

609. Bianca relies on the proposition that fiduciary duties will continue beyond the end of the fiduciary relationship (citing Disctronics Ltd v Edmonds [2002] VSC 454; (2002) 86 ATR 753 at [168] per Warren J, as her Honour then was; and Oliver Hume South East Queensland Pty Ltd v Investa Residential Group Pty Ltd (2017) 259 FCR 43; [2017] FCA 141 at [361] per Greenwood J).

610. Bianca says that, in circumstances where Gina entered into the Hope Downs Deed in breach of the rule against conflicts, the benefit of Gina’s and HPPL’s rights under the Hope Downs Deed are appropriated for the benefit of the beneficiaries of the HMH Trust; and submits that in such circumstances, the constructive trustees, Gina and HPPL, would not be permitted to seek to enforce the legal rights (if any) against the interests of their beneficial owner, the beneficiaries of the HMH Trust; and that to seek to do so would breach Gina and HPPL’s duties as trustees de son tort. It is said that, by the unconscionability motion, Bianca seeks to defend the beneficiaries’ rights. Reference is again made in this context to the recognition in Young v Murphy that a trustee who has committed a breach of trust may be sued in respect of the breach by a successor trustee (see at 725).

611. Pausing here, there is no suggestion that Bianca has received the benefit of any judicial advice as to whether she is justified in pursuing her unconscionability motion, as opposed to the judicial advice she obtained in relation to the commencement of the proceeding itself.

612. Bianca submits that Gina and HPPL should not be permitted unconscientiously to seek to enforce an agreement entered into in breach of trust by Gina; and that this can be prevented through the exercise of the court’s inherent jurisdiction to control its own processes (by declining to grant the stay sought by Gina and HPPL and/or declining to entertain the application).

613. Bianca maintains that Bianca’s unconscionability motion is not a dispute under the Hope Downs Deed nor is it a challenge to the validity or enforceability of the Hope Downs Deed (cf HPPL’s submissions at [100]), arguing that the application can succeed even if the Hope Downs Deed is valid and otherwise enforceable; and that nothing in the High Court Decision is directed to the kind of restraint here sought by Bianca, as trustee. In particular, it is submitted that the maintenance of the unconscionability motion is not foreclosed by the High Court Decision (cf HPPL’s submissions at [154] and Gina’s submissions at [142]-[145]). It is noted in this regard that: Bianca was not party to the High Court proceedings in her capacity as trustee; there was no contention in those proceedings that Gina and HPPL should not be entitled to rely on the arbitration agreement against Bianca (acting in her capacity as trustee); there was no contention in those proceedings that HPPL or Gina should not be entitled to maintain a stay application because doing so would breach equitable duties; and there was no contention that the beneficiaries of the HMH Trust were the equitable owners of the benefits given to Gina and HPPL by the Hope Downs Deed.

614. Bianca says that the “validity” claims that were at issue in the Federal Court and High Court (contentions that the Hope Downs Deed was invalid and should be set aside) are not the dispute here; that the material on which she relies in these proceedings in support of the unconscionability motion was not before the Federal Court or the High Court; and that the relief that she seeks here is fundamentally different from the relief referred to in Gina’s closing submissions at [143].

615. Bianca further says that the unconscionability motion is not foreclosed by the decisions of Le Miere J in the Western Australian proceedings. It is submitted that (cf Gina’s submissions at [146]) Le Miere J did not dismiss that application (noting that his Honour did not determine it but, rather, declined to hear the injunction application at the hearing commencing on 30 May 2018 for case management reasons – see Le Miere (No 9) at [47]); and that Bianca and John were confined in that case to arguing that the court should “dismiss” the s 8 application by reason of Gina’s unconscionable conduct (see Le Miere (No 10) at [150]ff). It is said that this is an argument “far removed” from an anti-arbitration injunction.

616. As to the reference by Gina in her closing submissions to Tyne v UBS, Bianca says that to the extent that Mr Tyne (in his capacity as trustee of the relevant trust) was not bound by the decision in the Singapore proceedings (to which he was party in his personal capacity) and was pursuing the Federal Court proceeding in his capacity as trustee, the case is on all fours with the position of Bianca in the Western Australian proceedings. I note that in UBS v Tyne, by majority, the High Court held that the primary judge had been correct to stay the subsequent Federal Court proceeding brought by Mr Tyne in his capacity as trustee as an abuse of the process of the Federal Court (see at [59], [61]).

617. Bianca says that the suggestion raised by HPPL in oral submissions that it is an abuse of process for her to pursue the unconscionability motion in these proceeding is without merit, noting that the onus of establishing abuse is on the party alleging it and is a heavy one. Emphasis is placed on the fact that Bianca, in her capacity as trustee, is not a party to the other proceedings to which reference has been made. It is said that Bianca’s unconscionability motion is raised defensively and has not been determined elsewhere; that Bianca’s claim (that the rights under the arbitration agreement are held on constructive trust for the beneficiaries) is a claim that is properly agitated by Bianca as trustee in these proceedings; and that there is no contention of oppression. It is submitted that there can be no serious suggestion that it would bring the administration of justice into disrepute for a trustee to raise, on behalf of beneficiaries, a defensive stay in circumstances of the present kind.

606. Finally, while Gina and HPPL seek the referral of Bianca’s unconscionability motion itself to arbitration, Bianca says that the unconscionability motion engages the court’s inherent powers to control its own processes and engages those powers prior to the court adjudicating on a request made by a party under s 8. It is submitted that Bianca’s unconscionability motion is “inherently non-arbitrable” since no arbitrator has the ability to utilise this Court’s inherent powers to control its own processes; and hence must be determined by the court. Further, it is submitted that Bianca’s unconscionability motion must be determined prior to the s 8 Stay Applications since otherwise the right that Bianca (as trustee) seeks to vindicate by bringing the application would be destroyed before the application can be determined.

607. In these circumstances, in her written submissions, Bianca argued that it is wrong, and procedurally unfair, to determine the stay applications before Bianca’s unconscionability motion is heard; particularly, it is said, where neither Gina nor HPPL has pointed to any or, any material, prejudice in having that motion heard before the stay applications are determined (and where Gina has addressed the substance of the anti-arbitration application in her written closing submissions). It is said that Bianca should not be left in a position where Gina and HPPL are permitted to proceed in that fashion without the unconscionability motion being heard and then determined concurrently with the stay applications.

608. Bianca’s position is that, logically, the s 8 Stay Application(s) arise for determination only if Bianca is bound by the Hope Downs Deed in her capacity as trustee of the HMH Trust; and that the anti-arbitration motion should therefore be determined at the same time as, or prior to, the balance of issues arising on the s 8 Stay Applications and the s 8 Case Management Stay Application(s).

609. Bianca submits that the consequence of the defendants’ submission that their stay applications should be heard and determined first, before the Court embarks upon the hearing of any other motion filed in this proceeding, is that she would be “shut out from even ventilating the 247A Application in open court”. Insofar as Gina submits that this approach is consistent with the High Court Decision, Bianca’s position is that the High Court Decision “is a distraction at this point in the analysis” and that it does not speak to the parties’ intentions or expectations in respect of either a s 247A application or Bianca’s unconscionability motion.

610. Thus Bianca’s position on sequencing is that: it would be appropriate to determine the referral/stay applications prior to the s 247A application at least so far as the stay application seeks a stay which would encompass the s 247A application but that Bianca’s unconscionability motion should be determined at or before the determination of the s 8 Stay Application(s) and the s 8 Case Management Stay Application(s) (because Bianca’s unconscionability motion logically comes prior to the Gina and HPPL referral/stay applications). Bianca submits that the pursuit of those stay applications is in breach of duty and it would be procedurally unfair for the s 8 Stay Application(s) to be determined prior to Bianca’s unconscionability motion as that, as already adverted to, this would defeat the very right that she seeks to vindicate by pursing the application (and would do so in circumstances where the respondents to the motion have not identified any prejudice in the course proposed by her and have addressed the motion solely by way of written submission).

HPPL’s submissions

623. HPPL maintains that, since it has been recognised that it is not appropriate to enter into consideration of the circumstances in which the arbitration agreement was entered into, it is not appropriate to entertain motion (viii) (Bianca’s unconscionability motion). As noted earlier, HPPL says that there are other reasons why it would be inappropriate to entertain Bianca’s unconscionability motion on HPPL’s s 8 stay application, including: that the anti-arbitration application is “itself unquestionably arbitrable” in that it challenges the “efficacy” of the Hope Downs Deed (referring to the High Court Decision at [44]); that substantially identical claims by Bianca (that the Hope Downs Deed was entered into by Gina in breach of her duties as the trustee of the HMH Trust, including by reason of her alleged failure to disclose certain legal advice to the beneficiaries) and that Gina and HPPL ought be restrained from relying upon the Hope Downs Deed, including the arbitration agreement in cl 20 of that Deed, have already been referred to arbitration (referring to the Federal Court Decision at [250]-[253]; Le Miere J (No 10) at [147]-[148], [154]); and that Bianca’s unconscionability motion is “relevantly indistinguishable” from an application made by Bianca to the Supreme Court of Western Australia, which application has been referred to arbitration. HPPL says that it is not suggested that Bianca’s unconscionability motion involves a direct attack on the arbitration agreement, in the sense that it would render the arbitration agreement null and void, inoperative or incapable of being performed; and hence that the hearing of Bianca’s unconscionability motion as part of the s 8 stay application would offend the principle of separability, as enshrined in s 16 of the Commercial Arbitration Act (citing the Full Court Decision at [341]-[360]; Le Miere (No 10) at [156]-[160]);

624. HPPL notes that it has been suggested that there is a real question as to whether the Court has the power to grant anti-arbitration injunctions given Commercial Arbitration Act, s 5, to which I have referred earlier (referring to academic commentary B Lincoln, “The Role of the Courts: Enforcement of Arbitration Awards and Antiarbitration Injunctions” in International Commercial Litigation and Dispute Resolution (2010, Ross Parsons Centre of Commercial, Corporate and Taxation Law) at 93; and the view that anti-arbitration injunctions should only be granted “sparingly”, “with great caution” and only when “exceptional circumstances” exist, expressed in D Joseph, Jurisdiction and Arbitration Agreements and their Enforcement (3rd ed, 2015, Sweet & Maxwell) at [12.88]; see also Lord Collins of Mapesbury and J Harris, Dicey, Morris and Collins on the Conflict of Laws (15th ed, 2012, Sweet & Maxwell) at [16-089]). Further, HPPL notes that Bianca’s unconscionability motion was brought more than two years after HPPL’s referral/stay motion was filed (and only shortly before the listed hearing of the referral/stay motions).

625. Finally, it is said that although Bianca invokes the inherent jurisdiction of the Court in support of the anti-arbitration application (at [8] of Bianca’s submissions), it has been said that the Court will only exercise its inherent jurisdiction if the arbitration has an impermissible tendency to interfere with proceedings pending in Court (citing CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391-4). It is said that Bianca makes no attempt to identify how an arbitration would have this effect on the present proceeding. It is said that, had Bianca sought to invoke the Court’s equitable jurisdiction, she would bear the burden of establishing that the arbitral proceedings are vexatious or oppressive in the relevant sense.

Gina’s submissions

626. Insofar as Bianca takes the position that the stay applications cannot be determined until Bianca’s unconscionability motion is determined (see Bianca’s submissions at [28(c)-(d)]), Gina complains that she has not had an opportunity to respond to the allegations made by Bianca in support of that motion. It is said that the apprehension by Bianca that the alleged breaches of trust will not be matters of contest (see the submissions at [14]) is misplaced.

627. Gina argues that it is not correct that the determination of Bianca’s unconscionability motion should precede the determination of the stay motions.

628. First, it is submitted that, in accordance with the approach applied by the High Court, Bianca’s unconscionability motion itself involves a dispute that must be referred to arbitration because that motion has at its heart a dispute about the efficacy of the Hope Downs Deed and, as the High Court has said “[i]t could not have been understood by the parties to these Deeds that any challenge to the efficacy of the Deeds was to be determined in the public spotlight” (see the High Court Decision at [44]).

629. It is noted that, in the Federal Court, Bianca sought the following relief: injunctions restraining HPPL and Gina from enforcing or seeking to enforce the releases and arbitration clauses in the Hope Downs Deed (prayers 35, 40 and 42); declarations that the Hope Downs Deed was void ab initio as against Bianca (prayers 36 and 37) and John (prayer 41); and declarations that the Hope Downs Deed arbitration clause was void ab initio including as a fraud on the power by Gina acting in her capacity as the trustee of the Trust (prayers 38, 39, 42-47).

630. It is noted that the basis of the relief relevantly includes the following allegations in the statement of claim in the Federal Court proceeding: breaches of trust and fraud on the power (see at [349]-[358]), including that by executing the Hope Downs Deed in her capacity of trustee, Gina breached her duties as the Deed was intended to benefit her personally and was not in the best interest of the beneficiaries of the trust (it is said that these allegations are very similar to those advanced in Bianca’s submissions at [14]-[16]; [271]-[280] albeit that the precise breach of trust is not clearly articulated); unconscionable conduct (see at [327]-[337]), on the basis of taking advantage of Bianca’s alleged vulnerability; that the purpose of Gina and HPPL entering into the Hope Downs Deed was Gina maintaining control of HPPL during her lifetime, preventing the beneficiaries from advancing claims against Gina and HPPL concerning “the ownership of the Hope Downs Tenements and Roy Hill Tenements, [Gina’s] shareholder of HPPL and the conduct of [Gina], the other relevant directors and officers of HPPL and HPPL in relation to the HFMF Trust or the HMH Trust” and to prevent public scrutiny (see at [288]); false and misleading representations that the entry into the Hope Downs Deed was in Bianca’s best interest (see at [292] and [294]); and fraudulent concealment by Gina and HPPL including of alleged breaches of trust by Bianca and HPPL’s knowing involvement in the same (see at [307]);

631. It is said that the majority in the High Court held in relation to those claims that they were obviously within the scope of the arbitration agreement and referred them to arbitration (referring to the High Court Decision at [43]-[48]). It is submitted that, so too here, the question whether the relief sought concerning control over HPPL and dividends is available in light of cll 5, 7 and 8 of the Hope Downs Deed may be seen as depending upon whether the claim to restrain Gina and HPPL from relying upon the Hope Downs Deed are available and if so whether they are made out.

632. Second, it is said that Bianca has already sought the very same relief in the Supreme Court of Western Australia, and her claims in that proceeding have been referred to arbitration. In her counterclaims, Bianca claimed that the Hope Downs Deed was entered into in breach of trust included because when Gina entered into it, she “knew of the Sceales Advice”, had a personal interest in executing the Hope Downs Deed, and so was in a position of conflict (see at [348]-[356]).

633. It is noted that before Le Miere J determined HPPL’s and Gina’s stay application in the Western Australian proceeding, Bianca and John filed a motion seeking to restrain them from relying on the Hope Downs Deed on the basis that such reliance was unconscionable; and that at the hearing on 27 March 2018, Bianca and John contended that the stay application could not be determined before the restraint application. Le Miere J dealt with that matter as follows in the Le Miere (No 9) Decision at [46]-[47]. It is submitted that the same applies in this Court.

634. Insofar as Bianca asserts that she was not a party to these and other proceedings in her capacity as trustee and thus asserts that no res judicata, issue estoppel or Anshun estoppel arises from those proceedings (citing Tyne v UBS AG (No 3) (2016) 236 FCR 1; [2016] FCA 5 at [376]-[400]; see Bianca’s submissions at [24]), Gina submits that Tyne does not support that assertion.

635. It is noted that, in Tyne, the trustee was not a party to the relevant proceedings (see [378]-[379], [384] and [391]), as opposed to being a party in a capacity, and was not “privy” to the parties to the proceeding; and so it followed that no res judicata, issue estoppel or Anshun estoppel arose. It is said that the same cannot be said about Bianca, who is bound as a party to the various proceedings. Gina argues that this highlights the abuse of seeking to press the anti-arbitration application in this proceeding to restrain Gina and HPPL from relying upon the Hope Downs Deed, when that dispute has been referred to arbitration.

Determination

636. The hearing of Bianca’s unconscionability motion at this stage would in my opinion offend the separability principle. It is not an attack on the validity of the arbitration agreement per se; and it raises factual matters the determination of which raise issues relating to matters that are (absent an anti-arbitration injunction being granted) to be referred to arbitration. The Full Court made clear that in the context of the application to adduce in evidence the Sceales advice (thus in a somewhat different context) (see the Full Court Decision at [412]) that it was “simply not relevant to hear detailed evidence in order to engage in fine assessments of the strengths of particular allegations”. The defendants similarly here say it is not appropriate to entertain a hearing of the allegations raised by Bianca’s unconscionability motion. It is said that the unconscionability motion wrongly seeks a ruling as to whether the Hope Downs Deed is property of the HMH Trust and whether it is binding on Bianca as party to the deed in her capacity as a trust, for example.

637. Moreover, HPPL argues that Bianca’s unconscionability motion ignores the fact that HPPL is a separate entity. It is said that there will be a question of the conduct of Gina and its attribution to HPPL, just as there will be a question of the attribution of Bianca’s conduct to HPPL. I was informed during the course of closing submissions, for example, that at the Martin Arbitration HPPL proposes to tender a board minute recording Bianca’s presence at the board meeting at which it was decided to enter into the Hope Downs Deed.

638. Also of relevance is the fact that it became apparent during the course of argument on the sequencing of the motions (as submitted by both Mr Giles and Mr Brereton) that the hearing of Bianca’s unconscionability motion itself would occupy considerably longer than the three days that I then had available in August last year.

639. Emphasis was placed on the fact that Bianca’s unconscionability motion does not seek to restrain Gina solely from relying on the Hope Downs Deed in the present proceeding but in any court (see T 139). Mr Brereton submits that, on its face, the motion seeks final relief and that this will require findings on all of the matters involved in the present arbitrations. It is said that this is a “blatant attack” on the efficacy of the Hope Downs Deed (T 139) and that all attacks on the efficacy of the Hope Downs Deed should be addressed in the one forum (T 148). That last is a sentiment with which I agree.

640. I do not accept that staying the hearing of Bianca’s unconscionability motion will prejudice Bianca in circumstances where she can raise the same issues in the arbitration that she wishes to do so here and, while cognisant of the issues as to public scrutiny of trusts, it seems to me that the prejudice to the defendants of entertaining an argument that might ultimately be found should have been referred to arbitration is the greater prejudice in the overall scheme of things.

Conclusion

641. For the above reasons, I make the following orders:

1. Pursuant to s 8(1) of the Commercial Arbitration Act (NSW) and s 8(1) of the Commercial Arbitration Act (WA), refer the parties to arbitration of the disputes the subject of this proceeding other than the claim for relief pursuant to s 247A of the Corporations Act 2001 (Cth).

2. Stay the balance of the proceeding pending determination of the arbitration of the disputes so referred to arbitration in accordance with order 1.

3. Stay the following motions pending the determination of the said arbitration: notice of motion filed on 27 April 2017 by Bianca (referred to in these reasons as motion (ii)); notice of motion filed on 14 August 2018 by Gina (referred to in these reasons as motion (vii)); notice of motion filed on 11 June 2019 by Bianca (referred to in these reasons as motion (viii)); and notice of motion filed on 20 June 2019 by HPPL (referred to in these reasons as motion (ix)).

4. By consent, adjourn sine die notice of motion filed on 12 May 2007 by Bianca (referred to in these reasons as motion (iv)).

5. Direct the parties to file brief written submissions as to costs within 14 days with a view to determining that issue on the papers.

6. Direct the parties to file brief written submissions within 14 days as to whether (if that be the case) they oppose the referral of this matter (on the Court’s own motion) to mediation; and, in any event, as to the appropriate time frame within which any such mediation may expeditiously take place.

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Decision last updated: 14 February 2020