Rinehart v Welker - [2012] NSWCA 95

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Rinehart v Welker [2012] NSWCA 95
Hearing dates: 8 February 2012
Decision date: 20 April 2012
Before: Bathurst CJ at [1]; McColl JA at [196]; Young JA at [218]
Decision:
1. Leave to appeal granted
2. Appeals dismissed with costs
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
PRACTICE AND PROCEDURE - Stay of proceedings - Referral to arbitration - Arbitration clause - Construction of arbitration clauses.

PRACTICE AND PROCEDURE - Stay of proceedings - Referral to arbitration - Agreement to refer "any dispute under this deed" to arbitration - Construction - Whether claim pursuant to Trustee Act 1962 (WA) and court's inherent and equitable jurisdiction a "dispute under this deed" - Relevance of defences invoking deed.

PRACTICE AND PROCEDURE - Stay of proceedings - Referral to arbitration - Claim pursuant to Trustee Act 1962 (WA) and court's inherent and equitable jurisdiction - Claims by beneficiaries to remove a trustee and vary trust - whether arbitrable.

PRACTICE AND PROCEDURE - Stay of proceedings - Civil Procedure Act 2005 s 67 - Exercise of discretion - Referral to arbitration - Part of dispute within scope of arbitration clause - Whether error of discretion to refuse stay.
PRACTICE AND PROCEDURE - Stay of proceedings - Civil Procedure Act 2005 s 67 - Exercise of discretion - Mediation clause - Whether error not to refer to mediation.
Legislation Cited: Building and Construction Industry Security of Payment Act (NSW) 1999
Civil Procedure Act 2005 (NSW) s 67
Commercial Arbitration Act 1985 (WA) s 33, s 37, s 38, s 39, s 40, s 53
Companies Act 2006 (UK) s 994
Corporations Act 2001 (CTH) s 232
Judiciary Act 1789 (US) s 25
Sherman Act 1890 (US)
Trade Practices Act 1974 (CTH) s 82, s 87
Trustee Act 1962 (WA) s 42, s 77, s 79, s 85 s 90, s 94
Cases Cited: A Best Floor Sanding Pty Limited v Skyer Australia Pty Limited [1999] VSC 170
ACD Tridon Inc v Tridon Australia Pty Limited [2002] NSWSC 896
Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; (2005) 223 CLR 251
AMEC Civil Engineering Ltd v Secretary of State for Transport [2005] 1 WLR 2339
Andco Nominees Pty Limited v Lestato Pty Limited [1995] 126 FLR 404; (1995) 17 ACSR 239
Armitage v Nurse [1998] Ch 241
Bristol Corporation v John Aird [1913] AC 241
BTR Engineering (Australia) Ltd v Dana Corporation [2000] VSC 246
Camilla Cotton Oil Co v Granadex SA [1976] 2 Lloyd's Rep 10
Channel Tunnel Group Limited v Balfour Beatty Construction Ltd [1993] AC 334
Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337
Cohens v Virginia 19 US (6 Wheat.) 264 (1821)
Comandate Marine Corp v Pan Australian Shipping Pty Limited [2006] FCAFC 192; (2006) 157 FCR 45
Collins (Contractors) Ltd v Baltic Quay Management (1994) Ltd [2004] EWCA Civ 1757
Cunningham-Reid v Buchanan-Jardine [1988] 2 All ER 438; [1988] 1 WLR 678
Czarnikow v Roth Schmidt & Company [1922] 2 KB 478
Desputeaux v Editions Chouette (1987) Inc [2003] 1 SCR 178
Dowling & Ors v St Vincent de Paul Society Victoria Inc [2003] VSC 454
Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367
Fiona Trust & Holding Corporation v Privalov [2007] EWCA Civ 20; [2007] All ER (D) 169
Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40; [2007] 4 All ER 951
Francis Travel Marketing Pty Limited v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160
Fulham Football Club (1987) Ltd v Richards [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] HCA 9; (1981) 146 CLR 206
Grant v John Grant & Sons Pty Limited [1954] HCA 23; (1954) 91 CLR 112
House v The King [1936] HCA 40; (1936) 55 CLR 499
IBM Australia Ltd v National Distribution Services Ltd (1991) 22 NSWLR 466
Larkden Pty Limited v Lloyd Energy Systems Pty Limited [2011] NSWSC 268; (2011) 279 ALR 772
Leerac Pty Limited v Fay [2008] NSWSC 1082
Lipman Pty Limited v Emergency Services Superannuation Board [2011] NSWCA 163
LNC Industries Ltd v BMW (Aust) Ltd [1983] HCA 31; (1983) 151 CLR 575
Marinchek v Cabport Pty Limited [2010] NSWCA 334
Matchett v Deputy Commissioner of Taxation [2000] NSWSC 975; 158 FLR 171
McGrath v O'Sullivan [1964] NSWR 436
McLean v Burns Philp Trustee Co Limited (1985) 2 NSWLR 623
Metrocall Inc v Electronic Tracking Systems Pty Ltd [2000] NSWIRComm 136; (2000) 52 NSWLR 1
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 86 ALJR 14
Miller v Cameron [1936] HCA 13; (1936) 54 CLR 572
Miller v Haweis [1907] HCA 44; (1907) 5 CLR 89
Mitsubishi Motors Corporation v Soler-Chrysler Plymouth Inc 473 US 614 (1985)
Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457
Osborne v Bank of the United States (9 Wheat.) 737 (1824)
Overseas Union Insurance Ltd v A A Mutual International Insurance Co Ltd [1988] 2 Ll R 63
Paharpur Cooling Towers Ltd v Paramount (WA) Ltd [2008] WASCA 110
Paper Products Pty Limited v Tomlinsons (Rochdale) Ltd & Ors (1993) 43 FCR 439
Permanent Trustee Company v Dougall (1931) 34 SR (NSW) 83
Perpetual Trustees Australia Ltd v Wallace [2007] FCA 527
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141
R v Donyadideh (1993) 114 FLR 43
Radio Publicity (Universal) Ltd v Compagnie Luxembourgeoise de Radiodifusion [1936] 2 All ER 721
Re Earl of Strafford Deceased; Royal Bank of Scotland Ltd v Byng [1980] Ch 28
Re East; Ex Parte Nguyen [1998] HCA 73; 196 CLR 354
Re Purkiss [1999] 3 VR 223
Rinehart v Welker [2011] NSWCA 403
Russell v Russell (1880) 14 Ch 471
Samick Lines Co Ltd v Owners of the Antonis P Lemos [1985] AC 711
Savcor Pty Limited v State of New South Wales [2001] NSWSC 596; (2001) 52 NSWLR 587
Scaffidi v Montevento Holdings Pty Limited [2011] WASCA 146
Siemens Ltd v Origin Energy Uranquinty Power Pty Ltd [2011] NSWSC 195; (2011) 279 ALR 759
Sun Life Assurance Company of Canada v Lincoln National Life Insurance Company [2005] 1 Lloyd's Rep 606
Taunton-Collins v Cromie [1965] WLR 633; [1964] 2 All ER 332
TCL Airconditioner (Zhongshan) Co Ltd v Castel Electronics Pty Limited [2009] VSC 553
Toll (FGCT) Pty Limited v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Walter Rau Neusser Oel und Fett AG v Cross Pacific Trading Ltd [2005] FCA 1102
Western Export Services Inc v Jireh International Pty Limited [2011] HCA 45; (2011) 86 ALJR 1
Texts Cited: Born, International Commercial Arbitration (2009) Klewer
Cohen and Staff, "The Arbitration of Trust Disputes" Journal of International Trust and Corporate Planning (1999) vol 7 No 4
Jacobs Law of Trusts in Australia 7th ed (2006) LexisNexis Butterworths
Lewison & Hughes, The Interpretation of Contracts in Australia (Law Book Company, Sydney, 2012)
Mustill and Boyd, Commercial Arbitration, 2nd ed (1989) Butterworths
Tweeddale and Tweeddale, Arbitration of Commercial Disputes: International and English Law and Practice (2007) Oxford University Press
Category: Procedural and other rulings
Parties: Gina Hope Rinehart (First Appellant)
Ginia Hope Frances Rinehart (Second Appellant)
Hope Rinehart Welker (First Respondent)
John Langley Hancock (Second Respondent)
Bianca Hope Rinehart (Third Respondent)
Representation: J T Gleeson SC and P Kulevski (First Appellant)
F Kunc SC and P Flynn (Second Appellant)
A S Bell SC and D F C Thomas (First, Second and Third Respondents)
Corrs Chambers Westgarth (First Appellant)
Gadens Lawyers (Second Appellant)
Johnson Winter & Slattery (First, Second and Third Respondents)

File Number(s): CA 2011/344306; 2011/344307
Decision under appeal

Citation:

Welker & Ors v Rinehart & Anor (No. 2) [2011] NSWSC 1238

Date of Decision:

2011-10-07 00:00:00

Before:

Brereton J

File Number(s):

2011/285907

HEADNOTE

[This headnote is not to be read as part of the judgment]

FACTS

On 5 September 2011, the respondents Hope Rinehart Welker, John Langley Hancock and Bianca Hope Rinehart commenced proceedings against the appellant Gina Frances Rinehart, alleging misconduct in her conduct as trustee of a family trust of which they were beneficiaries, and seeking certain trust information and orders under the Trustee Act 1962 (WA) and the court's inherent and equitable jurisdiction varying the trust and removing Gina Frances Rinehart as trustee. As she opposed the claims brought by the respondents, the appellant Ginia Frances Hope Rinehart was also named as a defendant in those proceedings.

On the 16 September 2011 and 6 October 2011 respectively, the appellants sought an order that the proceedings be stayed, on the basis that in 2005 the respondents had signed a "Settlement Deed" requiring them to refer disputes "under" the Settlement Deed to confidential mediation and arbitration. The appellants argued that the respondents' claims were a dispute under the Settlement Deed, relying principally on other terms of that deed which, it was said, barred or provided defences to the respondents' claims. In separate proceedings commenced on 15 November 2011, the appellant Hancock Prospecting Pty Ltd, shares in which constitute the primary asset of the relevant trust, also applied for a stay of the proceedings on the same basis.

The primary judge rejected the applications for a stay, finding that the dispute was not one under the Settlement Deed, and that even if certain provisions of that deed, relied on by the appellants, did raise disputes under the Settlement Deed, he would not in the exercise of his discretion stay the proceedings. The primary judge also declined to refer the proceedings to mediation, and held that as a matter of principle the respondents' claims were capable of resolution by arbitration.

Gina Frances Rinehart and Ginia Frances Hope Rinehart sought leave to appeal and the respondents, by notice of contention, contested the primary judge's finding that their claims were properly arbitrable. Hancock Prospecting Pty Ltd also sought leave to appeal. At the outset of the hearing leave to appeal was granted, and the appeals were heard and determined together.

ISSUES ON APPEAL

(a) Whether the respondents' claim was a dispute within the scope of the arbitration clause in the Settlement Deed:

(i) Whether in construing arbitration clauses, the word "under" should be construed more narrowly than phrases such as "arising out of", "in connection with", and "in respect to", or the presumptive approach of the UK Supreme Court in Fiona Trust & Holding Corporation v Privalov [2007] 4 All ER 951 adopted; and

(ii) Whether the provisions of the Settlement Deed invoked by the appellants rendered the respondents' claim a dispute "under" the Settlement Deed.

(b) Whether claims for orders pursuant to the courts' statutory, inherent or equitable jurisdiction to vary a trust and remove a trustee are arbitrable.

(c) Whether declining to stay proceedings where part of the relevant dispute falls within the arbitration clause and part does not constitutes an error of discretion.

(d) Whether the failure to refer the dispute to mediation constituted an error of discretion.

HELD (Dismissing the Appeal):

1. (Per Bathurst CJ; McColl JA and Young JA agreeing): The words of an arbitration clause should be, to the extent possible consistent with the ordinary meaning of the words, liberally construed. The approach adopted in Fiona Trust & Holding Corporation v Privalov [2007] 4 All ER 951, that arbitration clauses are to be construed irrespective of language in accordance with the presumption that the parties are likely to have intended any dispute arising out of the relationship between them to be decided by the same tribunal, unless clear language to the contrary existed should not be followed. The phrase "under this deed" has consistently been given a narrower construction than phrases such as "arising out of the deed" or "in connection with the deed".

2. (Per Bathurst CJ, Young JA agreeing): A dispute is "under this deed" if the outcome of the dispute is "governed or controlled" by the deed, regardless of whether the claimant is invoking or enforcing a right created by the deed.

3. (Per McColl JA): a "dispute under this deed" refers to disputes regarding the rights and obligations created by the deed and which depend upon the deed for their enforcement.

4. (Per Bathurst CJ; McColl JA and Young JA agreeing): The claims made by the respondents are not disputes "under this deed". The appellants' potential defences do raise disputes "under this deed"; however those defences will not necessarily determine the outcome of the proceedings, and thus do not render the respondents' claim one "under this deed". It is appropriate to consider, without finally determining, the merits of the defences in reaching this conclusion.

5. (Per Bathurst CJ; McColl JA agreeing; Young JA dissenting): The claims made by the respondents are arbitrable. Neither the statutory jurisdiction of the court, the nature of the relief sought, the allegations made, nor the courts' supervisory jurisdiction of the administration of trusts render the dispute incapable of arbitration.

6. (Per Young JA): A claim for the removal of a trustee is not arbitrable. The potential difficulties in enforcing an arbitrator's award against a former trustee make it undesirable that disputes in this area be referred to arbitration.

7. (Per Bathurst CJ; McColl JA and Young JA agreeing): As the respondents' claim is not "under this deed" there was no error of discretion in refusing to stay the proceedings, even if the potential defences do raise disputes under the deed. The primary judge correctly exercised his discretion.

8. (Per Bathurst CJ; McColl JA and Young JA agreeing): The primary judge's refusal to refer the dispute to mediation did not constitute an error of discretion.

Judgment

BATHURST CJ: The appellants in these proceedings, Gina Hope Rinehart ("GHR") and Ginia Hope Frances Rinehart ("GHFR") appeal against the orders of Brereton J declining to order a stay of proceedings brought against GHR by the respondents Hope Rinehart Welker ("HRW"), John Langley Hancock ("JLH") and Bianca Hope Rinehart ("BHR").

Summary of Conclusions

I have reached the following conclusions:

(a)The respondents' claim, viewed in isolation from the defences raised by the appellants, is not a dispute under clause 20 of the Confidential Settlement Deed of August 2006 (the "Settlement Deed") (see [114]-[127] below).

(b)The fact that the appellants rely on various provisions of the Settlement Deed in the defences does not lead to the conclusion that the whole dispute, and in particular the respondents' claims, arise under the Settlement Deed (see [128]-[148] below).

(c)Claims such as those made by the respondents in the present case are capable of settlement by arbitration (see [164]-[183] below).

(d)As a matter of discretion, no part of the proceedings should be stayed (see [184]-[192] below).

(e)The primary judge did not err in declining to refer the proceedings to mediation (see [193]-[194] below).

(f)In these circumstances the appeals should be dismissed.

Background

The appellant GHR is presently the trustee of a trust ("the Trust") created by a deed of settlement dated 27 December 1988 by Mr Langley George Hancock ("the Trust Deed"). The principal assets of the Trust are shares in a company Hancock Prospecting Pty Limited ("HPPL").

The Trust Deed provided that on the death of Mr Hancock, GHR became absolutely entitled to a proportion of the shares in HPPL, which constituted part of the Trust fund. The balance of the shares in the fund were to be held by the trustee on trust until the date on which the youngest of the surviving children of GHR attained the age of 25 years, described as the vesting date. Thereafter the shares were to be held by the trustee on trust for the survivors as tenants in common in equal shares.

Clause 7 of the Trust Deed gave power to the trustee prior to the vesting date to alter or vary any of the trusts provided in the Trust Deed, subject to the provisos that any such variation shall not alter the entitlements or benefits of GHR in the Trust, and shall be solely for the benefit of all or any one or more of the children of GHR.

The Trust Deed was amended by a deed of amendment dated 24 August 1995. The only amendment of significance for present purposes was the insertion of cl 7H, a "Governing Law" clause. It provided that the Trust Deed and Trust were to be governed by the laws of Western Australia, but also sought to exclude the operation of certain provisions of the Trustee Act 1962 (WA). The provisions are not material for present purposes.

By 2005, disputes had arisen between various parties to the Trust Deed. The nature of the disputes is not relevant for present purposes. However, resolution of the disputes resulted in GHR, JLH, GHFR, HRW, BHR and various other parties entering into a deed described as a "Deed of Obligation and Release". In that deed, JLH, described as the Covenantor, gave extensive releases to the other parties to the deed in consideration of certain payments and other benefits being conferred on him by HPPL and other companies related to the Rinehart family. Of relevance to the present proceedings are recitals D and E to, and cll 2 and 3 of, the Deed of Obligation and Release, which provide as follows:

"D.Having particular regard to the commercial interests and the commercial sensitivities of the Hancock Group (and the potential for the Covenantor to negatively seek exposure with the public or with the media particularly during periods of negotiation of large commercial projects such as the Hope Downs Project currently under complex negotiation by HPPL at the date of execution of this Deed), HPPL and the Hancock Group are desirous of obtaining the undertakings of the Covenantor to wholly retract, cease and desist from any such activities now and in the future.

E.The parties hereto by their execution hereof acknowledge that the primary nature of the HPPL business, is very long-term, complex, large-scale mining projects. The HPPL business necessitates long term consistent business plans, and many dealings with third parties on a strictly confidential basis, and the contrary, short-term and time consuming demands of the Covenantor, linked to his use of sensationalist media to publicise his contrary views, are opposed to the careful focus required and successful achievement and attainment of HPPL's interests. Accordingly, the Board of HPPL, having considered the matter in depth, has resolved that the making of the payments to the Covenantor under this Deed is necessary in order to enable the required focus and to protect the confidential nature of information, including with third parties, the business, prosperity and the future profitability of HPPL."

"2.Release of the Releasees by Covenantor

The Covenantor hereby wholly releases and discharges all and singular the Releasees and each of them and all of the successors in time and title of them and each of them from all and any obligations they and each of them may have to him in any manner and in any capacity whatsoever as at the date of execution hereof.

3.Further Releases by Covenantor

Without limiting or derogating from the provisions of clause 2 herein, the Covenantor additionally:

(a)hereby releases and forever discharges all and singular the Releasees from all and any liability, claims, demands, suits and actions of any nature whatsoever and any loss, injury or damage that might be caused to the Covenantor therefrom, and the liability of the Releasees in respect of any such claim is hereby absolutely extinguished, discharged and in all respects ended;

(b)abandons any claims against all and singular the Releasees which he may, but for this provision, at the date of executing this Deed have had on any account whatsoever;

(c)will not bring or make any other claim or proceeding against all and singular the Releasees or any one or more of them that is in any way connected with or incidental to the matters the subject of this Deed or any earlier claims;

(d)acknowledges that this Deed may be pleaded in bar against any claim or proceeding by him against all and singular the Releasees; and

(e)releases and forever discharges all and singular the Sisters from all and any liability, claims, demands, suits and actions of any nature whatsoever and any loss, injury or damage that might be caused to the Covenantor therefrom, and the liability of the Releasees in respect of any such claim is hereby absolutely extinguished, discharged and in all respects ended."

Further disputes arose between the parties to the Trust Deed which led to the execution in August 2006 of the Settlement Deed. The parties to this deed included GHR, JLH, GHFR, BHR, HRW and HPPL. The construction and effect of the Settlement Deed, and particularly cl 20 thereof, is the subject of the present proceedings.

It is convenient to set out the relevant portions of the Settlement Deed in full.

The recitals so far as relevant provide as follows:

"(B)JLH and BHR, HGRW, GHFR are the natural children of GHR and with GHR they constitute the total present class of capital and income beneficiaries of the HMH Trust.

(C)GHR, the Trustee, JLH, BHR, HGRW, GHFR, HMHTI and 150 together constitute one hundred per cent (100%) of the legal and beneficial owners of all of the issued share capital of HPPL.

(D)Those of the parties hereto who are parties to the Porteous Settlement Deed and who are parties to the Deed of Obligation and Release desire by their execution hereof to reaffirm and ratify the same."

The entity HMHTI is a company, HMHT Investments Pty Limited. The entity 150 is a company, 150 Investments Pty Limited. The Porteous Settlement Deed refers to a deed dated 15 September 2003. These companies and the Porteous Settlement Deed do not have any bearing on these proceedings.

Clause 1.1(a) of the Settlement Deed defines the expressions "Claim" and "Proceedings" in the following terms:

"Claim means:

(a)any claim, demand, action, suit or proceeding whether existing or discontinued, whether at law, under statute, in equity or otherwise:

(i)for damages, injunctions, debt, restitution or other remedy including, without limitation, breach of fiduciary duty of whatever nature and howsoever arising with respect to events or matters arising or actions taken prior to the date of this deed but not including any claim, demand, action, suit or proceedings arising as a consequence of the obligations and releases which any of the parties to this deed have agreed to in the Deed of Obligation and Release or the Deed of Loan or the Porteous Settlement Deed;

(ii)with respect to any attempt to remove or vary the Trustee or any subsequent Hancock Family Group Member as trustee of the HMH Trust and replace the trustee with a person or entity who or which is not a Hancock Family Group Member; and

(iii)any damage, loss, liability, costs, charge, expense, outgoing or payment;

(iv)any action against any of the Directors of any company within the Hancock Group, including without limitation, the Other Directors; and

(b)without limitation of clause (a) includes any claim made in the Proceedings;

(c)any damage, loss, liability, costs, charge, expense, outgoing or payment; and

(d)without limitation of sub-clause (a) includes any claim made in the Proceedings; and

(d)without limitation of sub-clauses (a) and (b) includes any claim made in any proceeding or any discontinued proceeding and any documents to support such claim and without limitation and for clarity in the case of the Proceedings includes the unsigned draft affidavit of JLH;

...

Proceedings (whether existing or discontinued or the subject of disputed discontinuance) mean Supreme Court of Western Australia action numbered CIV 1327 of 2005 of the parties to which are the HMH Trust and GHR and to which JLH is seeking to be joined."

Clause 3 of the Settlement Deed so far as relevant, contains the following affirmations and acknowledgment:

"3(ii)All parties to this deed which or who were parties to the Deed of Obligation and Release reaffirm and ratify the Deed of Obligation and Release and all their obligations and releases thereunder.

3(iii)The parties acknowledge that the obligations of the Hancock Group, due to HDIO's ownership and interest in the Hope Downs Tenements and pursuant to the HDJVA and HDIO's obligations under financing arrangements for its interest in the HDJV may include the following:

(a)as a result of the HDJV transaction a Capital gains tax of $36,856,597.00;

(c)no repayment of or contribution by the HMH Trust for all expenditure by HDIO to date on the Hope Downs Tenements, overheads and HDJV costs, and including without limitation the financing costs for HDIO's interest in the HDJV; and

(d)HDIO, and where relevant HPPL, will continue to finalise and maintain to the best of its endeavours, the required financing for HDIO's interest in the Hope Downs Joint Venture."

HDIO is a wholly owned subsidiary company of HPPL, and HDJV refers to the unincorporated joint venture between members of the Hancock Group and the Rio Tinto Group.

Clause 5 of the Settlement Deed contains various distribution covenants by HPPL and the trustee. It is not necessary to set them out in detail. However, the beneficiaries' entitlements to distributions under this clause are conditional upon them not breaching any obligations under the Settlement Deed. In that context cl 5(d) provided as follows:

"any default by a Beneficiary under the Deed of Obligation and Release dated 1 April 2005 (or as such is amended in writing by mutual agreement of all parties thereto) shall be deemed to be a default by that Beneficiary under this deed for the purpose of this clause;"

Clause 6 contains what are, on their face, extremely wide mutual releases. That clause provides as follows:

"6RELEASES

Each party hereto both in its own right and in any representative capacity hereby:

(a)releases and discharges each of the other parties hereto now and in the future from any Claims,

(b)Irrevocably covenants not to take any proceedings against any of the other parties to this deed in relation to any matter arising in any jurisdiction, in respect of the Claims;

(c)Withdraws and forever abandons any and all allegations made against any of the other parties to this deed in respect of or arising (in whole or in part) directly or indirectly out of:

(i)the Proceedings and any of the other Claims;

(ii)the subject matter of the Proceedings;

(iii)any claim relating to an undertaking given or costs orders made in the Proceedings,

wherever and whenever arising, whether;

(iv)known or unknown at the time of execution of this deed;

(v)presently in contemplation of such parties; or

(vi)arising under common law, equity, statute or otherwise."

The various appellants in support of their contentions place considerable reliance on cll 7, 8 and 9 of the Settlement Deed. In these circumstances, it is necessary to set them out in full:

"7UNDERTAKINGS

Each of the parties to this deed undertakes with each of the other parties to this deed

(a)that they will not at any time do, nor attempt to do nor encourage, nor assist in any way any other party or third party to do anything which could have an adverse impact on the Hancock Group's rights under:

the Services and Commingling Agreement entered into or which may subsequently be entered into between Hamersley Iron Pty Ltd and members of the Hancock Group;

or any of the documents entered into by the Rio Tinto Group and the Hancock Group in respect of the Hope Downs Joint Venture;

or under any of the financing arrangements entered into by members of the Hancock Group in respect of the Hope Downs Joint Venture;

(b)not to challenge the right of any member of the Hancock Group to any of the Hancock Group interests at any time.

(c)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, including without limitation any change to the Trustee in contravention of the provisions of this Deed; and

(d)not to Disparage at any time.

(e)subject to the rights of HPPL under the Deed of Loan not to challenge the rights of any of GHR, JLH, BHR, HGRW or GHFR who execute this Deed to any of their right title or interest in any of the Hancock Group or in any trust in which they or any member of the Hancock Group is a beneficiary.

8GHR CONTROL OF HPPL

The parties hereto acknowledge that GHR by her direct ownership of the share capital of and voting power in HPPL, has control of HPPL and without limiting in any way the legal and other rights of GHR in that regard whether at law or in equity or pursuant to the Constitution of HPPL, the parties hereto acknowledge that during her lifetime GHR shall maintain full ongoing control and management of HPPL and that GHR shall accordingly have the continuing right during her lifetime at her election from time to time to maintain or relinquish or re-establish herself as the chairman on an executive or non executive basis as she in her sole discretion shall decide of HPPL.

9VESTING OF HMH TRUST

9.1Subject to GHR's agreement at any time prior to 6 September 2011, the Beneficiaries agree to extend the vesting date of the HMH Trust to the maximum extent permitted by law or to any prior date after 6 September 2011 by agreement of the majority of Beneficiaries.

9.2Each of the Beneficiaries shall do all matters and things necessary to implement and facilitate any decision at any time by the Trustee to appoint any one or more of JLH, BHR, HGRW and GHFR as trustee of the HMH Trust and such appointment may be as an additional trustee together with the Trustee or to replace the Trustee permanently or temporarily or to succeed the Trustee when at some future time she may retire or otherwise cease to be trustee during her lifetime (which shall be deemed to be conditional upon the continuing right of GHR to decide to reassume the position of trustee by herself or with one or more of her children if and when she should subsequently so decide).

9.3Notwithstanding either of the provisions in clause 9.1 and 9.2, the Trustee and the beneficiaries agree that nothing in this Deed limits any of the powers of the Trustee of the HMH Trust."

Clause 10 imposes obligations of confidentiality on the parties to the Settlement Deed in respect of its content and in respect of any correspondence or negotiation between the parties or their legal advisers in relation to its subject matters or matters relating to it.

Clauses 11 and 13 of the Settlement Deed are covenants ancillary to the releases contained in cl 6. They provide as follows:

"11.PLEA IN BAR

On and from the Effective Date each party may plead this deed in bar to any Claim or proceeding the subject of a release in this deed PROVIDED HOWEVER that nothing in this clause shall prevent any party from enforcing the provisions of this deed, the Porteous Settlement Deed, the Deed of Obligation and Release or Deed of Loan.

...

13.PARTIES NOT TO ASSIST PROSECUTION OF CLAIMS

Each party severally covenants with each of the other parties to this deed that he, she or it will not advance, cause, procure, finance, support, encourage or otherwise assist or facilitate in any way (except on compulsion of law including, but not limited to, service of a subpoena) directly or indirectly the advancement, institution or prosecution of any Claim the subject of a release in this deed."

Clause 20 provides for certain disputes to be resolved by mediation or arbitration. That clause so far as relevant provides as follows:

"20.CONFIDENTIAL MEDIATION/ARBITRATION

In the event that there is any dispute under this deed then any party to his [sic] deed who has a dispute with any other party to this deed shall forthwith notify the other party or parties with whom there is the dispute and all other parties to this deed ('Notification') and the parties to this deed shall attempt to resolve such difference in the following manner.

20.1Confidential Mediation

(a)the disputing parties shall first attempt to resolve their dispute by confidential mediation subject to Western Australian law to be conducted by a mediator agreed to by each of the disputing parties and GHR (or after her death or non-capacity, HPPL);

(b)each of the disputing parties must attempt to agree upon a suitably qualified and independent person to undertake the mediation;

(c)the mediation will be conducted with a view to:

(i)identifying the dispute;

(ii)developing alternatives for resolving the dispute;

(iii)exploring these alternatives; and

(iv)seeking to find a solution that is acceptable to the disputing parties.

(d)any mediation will not impose an outcome on the disputing parties. Any outcome must be agreed to by the disputing parties;

(e)any mediation will be abandoned if:

(i)the disputing parties agree;

(ii)any of the disputing parties request the abandonment.

20.2Confidential Arbitration

(a)Where the disputing parties are unable to agree to an appointment of a mediator for the purposes of this clause within fourteen (14) days of the date of the Notification or in the event any mediation is abandoned then the dispute shall on that date be automatically referred to arbitration for resolution ('Referral Date') and the following provisions of this clause shall apply;

(i)in the event that no agreement on the arbitrator can be reached within three (3) weeks of the Referral Date, the arbitrator will be Mr Tony Fitzgerald QC (provided he is willing to perform this function and has not reached 74 years of age at that time), or in the event Mr Tony Fitzgerald QC is unwilling or unable to act, the Honourable Justice John Middleton (provided he is no longer a Judge of the Federal or other Australian Court and provided he has not reached 74 years of age at that time), and irrespective of whether either of these persons have carried out the mediation referred to above, or in the event that neither is willing or able to act,

(ii)subject to paragraph (iv) below by confidential arbitration with one (1) party to the dispute nominating one (1) arbitrator, and the other party to the dispute nominating another arbitrator and the two (2) arbitrators selecting a third arbitrator within a further three (3) weeks, who shall together resolve the matter pursuant to the Commercial Arbitration Act of Western Australia and whose decision shall be final and binding on the parties;

(iii)if the arbitrators nominated pursuant to paragraph 2(a)(ii) are unable to agree in the selection of a third arbitrator within the time provided in paragraph 2(a)(iii), the third arbitrator will be designated by the President of the Law Society of Western Australia and shall be a legal practitioner qualified to practise in the State of Western Australia of not less than twenty (20) years standing.

(iv)in the event that a disputing party does not nominate an arbitrator pursuant to Clause 2(a)(ii) within twenty-one (21) days from being required to do so it will be deemed to have agreed to the appointment of the arbitrator appointed by the other disputing party.

(b)The dispute shall be resolved by confidential arbitration by the arbitrator agreed to by each of the disputing parties or appointed pursuant to paragraph 2(a)(i) above (or if more than one is appointed pursuant to paragraph 2(a)(ii) then as decided by not less than a majority of them) who shall resolve the matter pursuant to the Commercial Arbitration Act of Western Australia and whose decision shall be final and binding on the parties.

(c)The arbitration will take place at a location outside of a Court and chosen to endeavour to maintain confidentiality and mutually agreed to by the disputing parties and failing agreement in Western Australia and the single Arbitrator or the Chairman of the Arbitral Tribunal as the case may be will fix the time and place outside of a Court for the purposes of the confidential hearing of such evidence and representations as any of the disputing parties may present. If any of the parties request wheelchair access, this will be taken into account in the selection of the premises and parking needs. Except as otherwise provided, the decision of the single arbitrator or, if three arbitrators, the decision of any two of them in writing will be binding on the disputing parties both in respect of procedure and the final determination of the issues.

(d)The arbitrators will not be obliged to have regard to any particular information or evidence in reaching his/their determination and in his/their discretion procure and consider such information and evidence and in such form as he/they sees fit;

(e)The award of the arbitrator(s) will be to the extent allowed by law non-appealable, conclusive and binding on the parties and will be specifically enforceable by any Court having jurisdiction.

...

20.8Confidentiality of Proceedings

The dispute the subject of the mediation/arbitration, the mediation and arbitration hearing and submissions thereto and the decision of the mediation and/or arbitration shall be kept confidential."

Clause 21 provides that the Settlement Deed should be governed by and interpreted according to the laws of the State of Western Australia.

Appeals of GHR and GHFR: Procedural history and pleadings

Further disputes arose between the parties which led to the filing of a summons on 5 September 2011 by HRW, JLH, BHR and GHFR, in respect of GHR's conduct as trustee of the Trust.

On 17 October 2011 an amended summons was filed by HRW, JLH and BHR. GHFR had by that time determined not to seek the relief sought by her brothers and sisters and joined with GHR in opposing it. As a consequence, she was named as a defendant.

By the amended summons the respondents thereto sought an order that GHR as trustee of the Trust provide accounts for the Trust for the years 1992 to date and the accounts of HPPL for the same period. They also sought certain orders pursuant to s 90 of the Trustees Act or in the court's equitable jurisdiction varying the Trust Deed. What was sought in effect was that the Trust fund be split into two portions to be held on separate trusts, the first relating to that portion of the fund to which GHR was beneficially entitled and the second relating to the funds to which the respondents and GHFR were beneficially entitled. The amended summons sought a consequential order that GHR be removed as trustee of the second trust to be established.

The amended summons also sought declarations that GHR had misconducted herself in the administration of the Trust and an order appointing such of the children of GHR who consent as the trustees of the new trust in favour of the children of GHR.

As an alternative to the orders sought above, the respondents sought an order that GHR be removed as trustee of the Trust and such of her children who consent be appointed as trustee in substitution.

Particulars of misconduct were supplied. It is unnecessary to set out the particulars in any detail but it should be noted that the conduct complained of was conduct which occurred in the period between 3 September 2011 and 8 September 2011. However, cl 12 of the Schedule of Particulars sought to reserve the right to add further particulars after discovery.

By notices of motion dated 16 September 2011 and 6 October 2011 respectively, GHR and GHFR moved the Court under s 67 of the Civil Procedure Act 2005 seeking orders that the proceedings be stayed. They contended that the dispute was one arising under the Settlement Deed and that cl 20 required the parties to resolve their dispute by confidential mediation and arbitration.

The motions for stays were dismissed by Brereton J on 7 October 2011: Welker & Ors v Rinehart & Anor (No. 2) [2011] NSWSC 1238. GHR and GHFR sought leave to appeal from that decision. Directions were made for the concurrent hearing of the leave application and the appeal and at the outset of the hearing of the appeal the Court indicated without objection from the parties that leave would be granted.

Subsequent to the decision of Brereton J, each of HRW, JLH and BHR filed statements of claim in the proceedings. On 20 January 2012, GHR filed a defence. A defence was filed by GHFR on 8 February 2012. Notwithstanding the fact that the statements of claim and defences were not before Brereton J, none of the parties objected to the Court referring to them for the purpose of the appeal.

The statements of claim, which are in identical form, make similar allegations to those set out in the summons and in the particulars, but also make a substantive broader claim in respect of failure to supply information.

In par [55] of the statements of claim the respondents plead that in their capacities as beneficiaries of the Trust they requested copies of various documents from the trustee, GHR, including copies of the accounts of the Trust since the date of death of Mr Hancock. In par [56], they plead that on 22 October 2011 they sought a large number of other documents from GHR in their capacity as beneficiaries. In par [58] they claim that as beneficiaries of the Trust they are entitled to such documents and in par [59] that GHR has refused to supply these documents to them. They assert (pars [73] and [74]) that by reason of the failure to supply the accounts and other documents along with the other allegations of misconduct in the statement of claim, GHR is unfit to act as trustee of the Trust and has misconducted herself in its administration. It is further alleged (par [76]) that the failure to supply the accounts and other documents along with the other allegations demonstrated a want of honesty on behalf of GHR in the execution of her duties and a want of reasonable fidelity with respect to her obligations as trustee.

The defence filed on behalf of GHR puts the allegations of misconduct in issue. In addition, it expressly pleads cll 1.1(b), (d) and (d) [sic], 5, 6, 7, 9 and 13 of the Settlement Deed in answer to the various allegations made by the respondents (see pars [17], [19], [22], [23], [24], [30], [31], [38], [40], [42], [43], [44], [63], [64] and [65] of the statements of claim). Attached to this judgment is a schedule setting out the particular allegations made in the statement of claim and the response in the defence where reliance is placed on the Settlement Deed (referred to in the defence as the Hope Downs Deed).

The defence filed by GHFR pleads that by cl 7(e) of the Settlement Deed the respondents are estopped from contending that GHR ought be removed as trustee of the Trust. It pleads that by cl 7(d) of the Settlement Deed the respondents are estopped from making and prosecuting the allegations in the statement of claim and it pleads that by cl 8 of the Settlement Deed the respondents are estopped from seeking to remove the GHR as trustee of the Trust.

Appeals of GHR and GHFR: Judgment of the primary judge

The primary judge identified three issues for resolution on the application. First, whether the Settlement Deed was binding on HRW and BHR. He concluded that it was and his conclusion was not contested on appeal.

The second issue was whether a proceeding in the court's equitable or statutory jurisdiction for removal of a trustee was susceptible to "private justice" by reference to arbitration. The primary judge held that there was no reason in his view why such a dispute could not be referred to arbitration and, "a fortiori, mediation". He held that this would not exclude the jurisdiction of the court and that if anything public policy encourages the private resolution of disputes concerning family matters. This conclusion is the subject of the notice of contention in the proceedings.

The third issue was whether the subject proceedings were in respect of a dispute "under this deed", so as to be caught by cl 20 of the Settlement Deed. His Honour held that the dispute was not a dispute under the Settlement Deed. He concluded (at [27]) that it was necessary to focus on whether, "for the purposes of these proceedings, the plaintiffs have a dispute "under this deed" with any other party" (emphasis in original). His Honour held that the words "under this deed" are of narrower scope than phrases such as "with respect to" or "in respect of", relying in particular on the judgment of French J, as his Honour then was, in Paper Products Pty Limited v Tomlinsons (Rochdale) Ltd & Ors (1993) 43 FCR 439. He said in those circumstances the dispute must derive from or depend on the Settlement Deed, or involve enforcing or invoking some right created by the Settlement Deed.

The primary judge rejected the argument that the provisions of cl 9 of the Settlement Deed, in particular cl 9.1, led to the conclusion that the claim by the respondents, so far as it related to a unilateral extension of the vesting date of the Trust by the trustee, was a dispute under the Settlement Deed. The primary judge expressed his views in the following terms (at [32]):

"Even the original claim - for an order that the trustee exercise her discretion to extend the vesting date - did not involve enforcing or invoking any right given by clause 9.1 against the first defendant. Clause 9.1 was an agreement to agree, expressed to be 'subject to GHR's agreement'. A claim that she should do something that she has not agreed to do is not a claim that depends on or derives from clause 9.1. In any event the plaintiffs' present claim, for removal of the first defendant as trustee, does not invoke, involve, derive from or depend on clause 9.1 in any way."

The primary judge also held that the releases in cl 6 of the Settlement Deed did not lead to the conclusion that the dispute was a dispute "under this deed". He reached this conclusion first because the respondents' application to replace the trustee with persons who were themselves Hancock Family Group Members was not within the definition of "Claim" (at [36]) and second because the definition of "Claim" was limited to claims existing or discontinued at the time of the Settlement Deed (at [37]). He reached the same conclusion in relation to cl 11 of the Settlement Deed.

The primary judge also rejected the contention by GHFR that because she asserted as an alternative to GHR continuing as trustee that a non-family member be appointed as trustee, this was now a "Claim" as defined by cl 1.1(a)(ii) of the Settlement Deed. The primary judge held (at [42]) that just because such a claim may be within the definition of "Claim" it does not depend on or derive from the Settlement Deed; only such claims as existed or had been discontinued as at the date of the Settlement Deed are released. He further concluded that even if the alternative propounded by GHFR was a "Claim" "under this deed", it was not one advanced by the respondents and in those circumstances cl 20 had no operation.

The primary judge also rejected arguments based on cl 7(d) and 7(e) of the Settlement Deed. The primary judge accepted that a dispute as to whether or not the respondents were engaging in "disparagement" in contravention of cl 7(d) would be a dispute under the Settlement Deed subject to it not being void as contrary to public policy (at [44]). However, he held that disparagement was not the subject matter of the proceedings, let alone the respondents' claim, and was, therefore, not a claim under the Settlement Deed.

So far as cl 7(e) was concerned the primary judge again held that as the respondents did not invoke or rely on any right given by cl 7(e), their claim did not depend on or derive from it (at [46]). He rejected the argument by GHFR that the proceedings were a challenge to the rights of GHR under the Settlement Deed, stating that the expression "title or interest" in any trust in which they or any member of the Hancock Group is a beneficiary was a reference to title or interest as a beneficiary, and not as trustee. He reached this conclusion for the following reasons. First, that the clause identifies the relevant interest by reference to the beneficiaries, as distinct from the trustee. Second, that cl 1.1(a)(ii) evinced an intention not to preclude claims for removal of the trustee, so long as the proposed replacement was a family group member. Third, that the construction contended for would preclude any attempt to remove the trustee for breach of trust prospectively, before the breach had taken place. This would be void as contrary to public policy so far as it involved an inability to remove a trustee for breaches of core obligations to act honestly and in good faith. Fourth, he stated the reference to the Hancock Group in that clause did not affect the position, as the clause would operate harmoniously by applying to shareholders in respect of companies and beneficiaries in respect of trusts. Finally, he said the intention of cl 7(e) was that the parties accepted the rights of each other in the Hancock Group and any relevant trust as they then existed, not to prevent the recognition of future changes to the trust.

The primary judge also held that cl 8 of the Settlement Deed did not bar the respondents' claim. He held that its ultimate purpose was to acknowledge that during the lifetime of GHR she was to have the continuing right to maintain her position as chairman on an executive or non-executive basis. He said that the proposed proceedings were not inconsistent with that right (at [48]).

Finally his Honour concluded on the construction issue that even if the clauses invoked by GHFR involved a dispute under the Settlement Deed they were but aspects of a larger dispute which as a whole, was not accurately characterised as a "dispute under this deed" (at [49]).

It will be seen that the conclusion reached by the primary judge on the question of construction primarily depended upon the proposition that for cl 20 to have effect, the dispute brought by the respondents must be a dispute under the Settlement Deed in the sense of enforcing or invoking some right created by it. It was not enough, in the view of the primary judge, that the Settlement Deed may in some way impact on the rights of the respondents to bring their claims or could constitute a defence to those claims. That approach is challenged on the appeal.

Further, the primary judge in rejecting certain of the submissions made by GHR and GHFR, construed various provisions of the Settlement Deed as providing no answer to the claims of the respondents. Both his Honour's construction of the provisions and the fact that he sought to deal with these issues on the stay application rather than leaving them for an arbitrator to consider are also the subject matter of the appeal.

The primary judge also declined to refer the proceedings to mediation. He stated (at [51]) that whilst it may well be desirable that they be referred to mediation, they were not yet ripe for that process. He took the view that further disclosure would have to be made before the proceedings could be so referred.

Appeal of HPPL: Procedural history and pleading

Before considering the grounds of appeal, it is necessary to first deal with the history of HPPL's appeal, which was heard and will be decided together with that of GHR and GHFR.

By notice of motion filed on 15 November 2011 and amended on 22 December 2011, HPPL sought an order staying the proceedings.

On 22 December 2011 that motion was dismissed by Brereton J: Welker v Rinehart (No 4) [2011] NSWSC 1636. On 4 January 2012 HPPL filed a summons seeking leave to appeal from that judgment. On 20 January 2012 the respondents HRW, JLH and BHR, filed a notice of contention on the grounds that HPPL lacked standing to seek a stay and that its motion constituted an abuse of process.

On 3 February 2012 this Court ordered that HPPL's application for leave to appeal be heard at the same time as the applications of GHR and GHFR. It was agreed, however, that the matters raised in the notice of contention filed by the respondents on 20 January 2012 would be heard separately and at a later time.

There is a substantial overlap between the submissions of HPPL and the submissions of the other appellants. In those circumstances it is convenient to deal with the issues raised by each appeal in the same judgment.

Appeal of HPPL: Judgment of the primary judge

The primary judge rejected the contention by HPPL that an application for the removal of GHR as trustee was a "Claim" within the definition in cl 1.1(a)(ii) of the Settlement Deed and was therefore released. The primary judge rejected the submission that that definition was dealing with two separate issues: first, the removal of GHR as trustee and, second, the removal of any subsequent Hancock Family Group Member as trustee and the replacement with a person who is not a Family Group Member. He held that the clause, as a matter of construction, related to any attempt to remove GHR or any subsequent Hancock Family Group Member as trustee and to replace the trustee so removed with a person or entity not a Hancock Family Group Member (at [23]). He also repeated the views he expressed in his earlier judgment that the relevant definition of "Claim" related to claims "existing or discontinued" at the date of the Settlement Deed (at [24]).

Further, he rejected the contention that the substantive proceedings related to a claim for the removal of GHR and her replacement by a non-Hancock Family Group Member. He repeated his view that the claim was limited to claims existing or discontinued at the date of the Settlement Deed and stated that the substantive proceedings did not seek that relief (at [26]).

The primary judge also rejected the proposition that the proceedings were a Claim within the definition in cl 1.1(a)(iv) of the Settlement Deed. He said this was for two reasons. First, (and again) it was not a claim existing or discontinued at the date of the Settlement Deed and, secondly, the reference to "any action against any of the Directors" in the subclause was a reference to an action against them as directors, and not in some other capacity (at [27]).

His Honour also rejected the contention that the proceedings were a Claim within the meaning of cl 1.1(d). He repeated his view that the definition of Claim did not relate to future proceedings (at [28]).

The primary judge also rejected the contention that the proceedings were brought in breach of undertakings given in cl 7(c) of the Settlement Deed. He concluded that the prohibition in cl 7(c) was on taking steps which would result in the appointment of a non-Hancock Group Family Member as trustee, not proceedings which could have that result. He reiterated that that was not what the respondents sought (at [30]).

His Honour also rejected the submission that the respondents' claims for accounts were contrary to the release and discharge given in cl 2 of the Deed of Obligation and Release which was incorporated into the Settlement Deed. His Honour concluded that cll 2 and 3 of the Deed of Obligation and Release were only incorporated into the Settlement Deed for the purpose of cl 5.1(d) and not for the purpose of cl 20 (at [38]). He also held that the claims for accounts were merely an aspect of, or incidental to, the substantive relief sought in the proceedings and would not result in the proceedings as a whole being characterised as a dispute "under this deed" (at [38]). He also pointed out that the releases given in the Deed of Obligation and Release were only given by JLH (at [39]).

The other grounds raised by HPPL were similar to those raised by GHR and GHFR. The primary judge rejected them for the same reasons.

Grounds of appeal

I do not propose to set out the grounds of appeal in detail. The issues as they were ventilated on the appeal will emerge from my consideration of the parties' submissions below. Further, each of the parties submitted statements of issues to be argued on the appeal. Whilst there was a difference between them they may be summarised as follows:

(a)Whether the respondents' claim involved a dispute under the Settlement Deed.

(b)Whether in considering whether or not the claim is a dispute under the Settlement Deed, it is appropriate to focus only on the allegations made by the respondents and the relief sought, or rather, whether regard should be had to defences raised or potentially raised by the appellants which invoke the provisions of the Settlement Deed.

(c)Whether it was appropriate on the application for a stay for the primary judge to determine the merits of GHR's and GHFR's reliance on various provisions of the Settlement Deed, in particular the clauses to which I referred in pars [37]-[42] above.

(d)Whether, irrespective of the effect of the arbitration clause, the primary judge erred in failing to refer the proceedings to mediation.

The respondents, by notice of contention, have also contested the finding of the primary judge that the claims brought by them can properly be the subject of arbitration.

It will be convenient to deal with the matters the subject of the notices of appeal as set out by each of the appellants, followed by the matters raised by the notice of contention.

Appeals of GHR and GHFR: Submissions of GHR

In her written submissions, GHR contended that the primary judge erred in four ways.

(a)Failing to properly construe cl 20 of the Settlement Deed by affording too narrow an ambit to the concept of a dispute under it, especially by relying on the terms of the originating process alone and not properly appreciating the nature of the issues that would arise.

(b)Failing to hold that the amended summons generated a dispute between the parties because of the terms of cll 5 and 9 of the Settlement Deed.

(c)Alternatively, failing to hold that a dispute was generated because, by pursuing the relief, the respondents were breaching cl 7(d) of the Settlement Deed.

(d)Alternatively, failing to hold that the amended summons generated a dispute because it involved a breach of the undertaking by the respondents recorded in cl 7(e) of the Settlement Deed.

In addition to these grounds, GHR submitted that the primary judge erred in reaching a concluded view on the arguments of the appellants concerning the effect of the terms of the Settlement Deed, contending this was a matter which should have been left to arbitration. She submitted that the primary judge erred in holding that he would not have exercised the discretion to grant a stay even if he was satisfied that part of the dispute arose under the Settlement Deed.

GHR submitted that the focus by the primary judge on the summons alone was wrong because the dispute was not within the sole province of the respondents, it was a dispute as between the parties. She submitted, relying on Miller v Cameron [1936] HCA 13; (1936) 54 CLR 572 at 580-581, that a court does not remove a trustee without considering all relevant circumstances of their tenure. She submitted that although the particulars of misconduct relied on in support of the claim that GHR be removed as trustee only related to conduct in September 2011, it would be artificial to consider the question of removal only by reference to what occurred in that month without regard to the nature of the Trust which "administers shareholding interests in one of Australia's most significant mining companies ... and the administration of which has been the subject of a number of compromises in deeds over the course of many years". She also pointed out that, notwithstanding the limited nature of misconduct alleged, the relief sought included seeking access to information relating to the Trust extending back over many years.

In relation to the construction of the Settlement Deed, GHR submitted that the primary judge was incorrect in holding that the words "under this deed" had a much narrower compass than phrases such as "with respect to" or "in respect of". She emphasised that cases in this Court have stated that arbitration provisions required a liberal and flexible construction, reflecting the presumed intention of the parties that they did not intend their disputes to be bifurcated between different tribunals. In that regard she relied on decisions of this Court in Francis Travel Marketing Pty Limited v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 and Global Partners Fund Limited v Babcock & Brown Limited (In liq) [2010] NSWCA 196; (2010) 79 ACSR 383 and the decision of the Full Court of the Federal Court in Comandate Marine Corp v Pan Australian Shipping Pty Limited [2006] FCAFC 192; (2006) 157 FCR 45. She reiterated her contention that a dispute linguistically requires an active contention, controversy or debate between two persons and not simply a consideration of whether the particular claims of the respondents seek to enforce a right under the Settlement Deed.

In her submissions in reply, GHR submitted that the distinction between the expressions "under this Deed" and expressions such as "with respect to" or "in respect of" had been expressly abandoned by the House of Lords in the context of arbitration clauses, referring to Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40; [2007] 4 All ER 951, which decision, it was submitted, was endorsed unanimously by this Court in Lipman Pty Limited v Emergency Services Superannuation Board [2011] NSWCA 163 at [6].

GHR also sought to draw an analogy between the expression "under this deed" and the phrases "arising out of this Constitution" and "arising under any laws made by the Parliament". She submitted that where the appellants relied on provisions of the Settlement Deed, whether by way of defence, cross-claim, as an immunity or in reply, then the whole dispute became one under the Settlement Deed. She referred in this context to LNC Industries Ltd v BMW (Aust) Ltd [1983] HCA 31; (1983) 151 CLR 575 at 581-582 and Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; (2005) 223 CLR 251.

GHR ultimately characterised the dispute in this way:

(a)A claim by the respondents for the accounts of the Trust and the company going back 20 years, a splitting of the Trust and removal of GHR as trustee.

(b)Claims by GHR, GHFR and HPPL that:

(i)it was not legally open to the respondents to seek from the court the relief claimed as the Settlement Deed barred them from doing so;

(ii)even if it was open, no such relief should be granted on the merits;

(iii)by reason of the respondents agitating the claims barred by the Settlement Deed, the respondents had breached the Settlement Deed thereby relieving HPPL of the obligation to pay dividends on the A Class shares.

She stated the dispute includes:

"i.An examination of the entire conduct of the trustee beyond merely the 3 September letter, as might be relevant to whether the very serious step of removing her as trustee should occur;

ii.An examination of whether the conduct of the trustee, in the 3 September letter or otherwise, set against a background of the relationship of the parties, as substantially modified by the deed, justifies the label of "misconduct" or requires a very substantial interference with the trustee's powers constituted by ordering of accounts for 20 years or splitting of the trust;

iii.All matters of defence or immunity considered above;

iv.The matters of counter-claim: whether the conduct of the plaintiffs in bringing the court proceedings is a breach of the deed, entitling the trustee and the company to suspend the distributions under cl 5 of the deed."

GHR submitted that once the dispute involved the contention that it was not legally open to the respondents to pursue in court the claims made in the amended summons, there was a dispute under the Settlement Deed even giving these words their narrowest meaning. She submitted that once this part of the dispute was a dispute under the Settlement Deed, the whole dispute is a dispute under the Settlement Deed.

Alternatively, she submitted that if there was a defence or immunity against the proceedings being brought in court, the court should uphold the contract and allow the mediation or arbitration to resolve it first and that no court proceedings on the substantive dispute should proceed unless or until it is determined the preliminary defence has failed.

GHR submitted that a broader characterisation of the dispute is that the parties are in dispute as to whether the respondents have a legal entitlement to the relief claimed, such dispute including all matters the respondents would need to establish to obtain such relief and all matters of defence and counter-claim the parties resisting such relief can properly raise. She submitted such a dispute both grows out of the Settlement Deed and cannot be correctly resolved without a close examination of it. She submitted that the Settlement Deed forms the subject matter out of which the claims arise.

GHR further contended that the provisions of cll 5 and 9 of the Settlement Deed demonstrated that the amended summons gave rise to a dispute under the Settlement Deed as the splitting of the Trust into two trusts would prevent the implementation of the distribution covenants by HPPL and the trustee contained in cl 5 of the Settlement Deed and be contrary to the fact that it was envisaged in cl 9.1 of the Settlement Deed that the Trust would be ongoing and extend beyond the vesting date of 6 September 2011. It was also contended that it was contrary to the collaborative arrangement in cl 9.2 relating to the appointment of new trustees and the right of GHR even if she retires to subsequently reassume the position of trustee.

It was also contended by GHR that the attempt to remove her as trustee constituted a challenge to her property rights in contravention of the undertaking contained in cl 7(e) of the Settlement Deed and that the allegations in the summons contravene the non-disparagement provisions in cl 7(d). She submitted that the effect of cl 7(d) was that the ventilation of the issues raised in the amended summons was enough to generate a dispute under the Settlement Deed that enlivened the discretion for a stay.

In her written submissions GHR also relied on the definition of "Claim" in cl 1.1 of the Settlement Deed, the releases in cl 6 and the covenant in cl 13 not to advance any claim the subject of a release in the Settlement Deed. She submitted that the definition of "Claim" related to prospective claims as well as claims existing as at the date of the Settlement Deed and that the advancing of such claims was a contravention of cl 13.

GHR submitted that the primary judge was wrong to find that even if the defences arose under the Settlement Deed he would not exercise his discretion to grant a stay because they were aspects of a larger dispute. She submitted this would negate the bargain between the parties as reflected in the Settlement Deed and render nugatory its key provisions and that his Honour erred in forming a view as to the strength of the defences or claims of the appellants.

Orally, senior counsel for GHR submitted that the connecting phrase "under this deed" seeks a link between the controversy and the provisions of the Settlement Deed. He submitted that an essential part of the defence raised by GHR is that what she did was reasonable in the context of the regime established by the Settlement Deed. He submitted in those circumstances the Settlement Deed would have to be considered in dealing with the merits of the respondents' claim, not merely in relation to specific defences.

Senior counsel for GHR also submitted that fine distinctions between expressions such as "arising out of", "in connection with" or "arising under" should not be made in this field. In this regard, in addition to the cases relied on in the written submissions, he placed particular reliance on what was said by Lord Hoffmann in Fiona Corporation supra, that there should be a "fresh start" in the construction of arbitration clauses and that they should be construed with a presumption that the parties did not intend their disputes to be dealt with in two separate tribunals.

It was submitted that having regard to the provisions of cl 8 and 9.2 of the Settlement Deed, a court or an arbitrator, in considering whether or not to remove the trustee, would have to consider whether there had been wrongful conduct, whether it was excusable or whether it went to the heart of the Settlement Deed, what "continuing life" would exist under the Settlement Deed after her removal and whether it is appropriate to radically alter the long term administration regime the Settlement Deed contemplated. It was submitted that that meant the merits of the claim arose under the Settlement Deed. Presumably this submission was referring to the fact that the appointment of a new trustee would affect GHR's entitlement to shares in HPPL and her power to appoint and remove trustees.

In addition, reliance was placed on the choice of law clause contained in cl 21 of the Settlement Deed on two bases. First it was submitted that the use of the expression "for all purposes in respect of this deed" in cl 21 was an indication that the parties were using words like "under", "hereunder" and "in respect of" interchangeably. It was submitted that this told against a narrow reading of the words "under this deed" in cl 20. Further, reliance was placed on the provisions of s 37 of the Commercial Arbitration Act 1985 (WA), which obliges the parties to an arbitration agreement to "do all things which the arbitrator or umpire requires to enable a joint award to be made". It was submitted that this would involve bringing forward all matters of claim or defence which would allow a just award to resolve a controversy.

Alternatively, it was submitted orally that even if this broad construction was not accepted, the reliance placed by GHR on the provisions of the Settlement Deed, referred to in the written submissions as a bar to the respondents' claims, led to the conclusion the matter arose under the Settlement Deed.

Appeals of GHR and GHFR: Submissions of GHFR

The written submissions of GHFR raised substantially similar matters to those raised by GHR. She pointed to the fact that by letters dated 30 September 2011 and 4 October 2011, GHFR had notified the respondents that the prosecution of the amended summons gave rise to disputes under the Settlement Deed and in particular breaches of cl 7(d), 7(e) and 8. She submitted that she had the right to have those claims arbitrated and that that right could only be protected by staying the respondents' claim. She said otherwise her rights would be rendered nugatory.

GHFR further submitted that the primary judge erred in characterising contractual rights asserted by her under cll 7(d), 7(e) and 8 of the Settlement Deed solely as potential defences to the respondents' claim. She submitted that as well as being deployed as defences they could be deployed as affirmative rights entirely and arbitrated to make an award preventing further conduct of these proceedings. She submitted that the primary judge erred in considering the merit of her claims under cll 7(d), 7(e) and 8 of the Settlement Deed and that his findings in that regard were in error.

In his oral submissions senior counsel for GHFR emphasised that the dispute involved a controversy between parties and thus arose under the Settlement Deed. He submitted that even if this was incorrect, the matters raised in her notice of dispute in reliance on the Settlement Deed gave rise to a dispute under the Settlement Deed and provided a reason for the proceedings being stayed.

Appeal of HPPL: Submissions of HPPL

HPPL adopted the submissions of the other appellants. In particular, it submitted that a liberal approach should be taken to the construction of the dispute resolution clause. It submitted such an approach did not depart from the meaning of the words chosen by the parties but gave effect to a coherent business purpose through an assumption commercial courts around the world will make, namely that parties are unlikely to have intended multiple venues or occasions for the resolution of their disputes unless they say so. In that context, it submitted the word "dispute" should be interpreted inclusively rather than restrictively and that whilst the mere making of a claim does not amount to a dispute, a dispute should be held to exist when it can be reasonably inferred that a claim is not admitted.

HPPL also contended that, following the decision of the House of Lords in Fiona Corporation supra, "under" the Settlement Deed should not be construed less restrictively than words such as "arising out of". In that context it submitted that the phrase "any dispute under this deed" should not be limited to a dispute which derives from or depends on the Settlement Deed or involves enforcing or invoking some right created by the Settlement Deed. It contended that the words should be construed as extending to any dispute concerning GHR's position as trustee of the Trust even if such a dispute does not arise directly from the terms of the Settlement Deed.

Alternatively, it submitted that even if the construction it contended for was not accepted, a number of disputes had arisen under the Settlement Deed. It contended that the proceedings constituted a Claim under cl 1.1(a)(ii). It repeated its submission, made in the Court below, that "Claim" in that context dealt firstly with any attempt to remove GHR as trustee and secondly, with the removal of any subsequent Hancock Family Group Member as trustee and a replacement by a non-Hancock Family Group Member. It contended that this was supported by the powers conferred on GHR to appoint any one of her children as trustee and her right to reclaim the position (cl 9.2). It also contended that the prohibition should be construed to extend to any attempt to remove GHR as trustee in the future. It pointed out that at the time of the execution of the Settlement Deed the first and third respondents, HLW and BHR, were not taking any action to replace the trustee and that the second respondent, JLH's, application against GHR as trustee was dismissed by consent. It contended the phrase "any attempt" in cl 1.1(a)(ii) was inconsistent with limiting the operation to only those claims which existed or had been discontinued at the time of the Settlement Deed, contending this construction was also supported by cl 6(b).

HPPL also repeated its submission made in the Court below that even if its construction of cl 1.1(a)(ii) was not accepted the proceedings still constituted a "Claim" under that clause because it was inevitable that the respondents would be forced to seek to appoint a person or entity who is not a Hancock Family Group Member as trustee of the Trust. It submitted that is because none of the respondents are suitable trustees relying on the decision of the Court of Appeal of the Supreme Court of Western Australia in Scaffidi v Montevento Holdings Pty Limited [2011] WASCA 146 at [178].

In the alternative, HPPL relied on cl 1.1(a)(iv). It submitted that that clause applied irrespective of whether the claim was against GHR in her capacity as a director of HPPL, as trustee of the Trust or otherwise. It submitted that that construction was consistent with "the extensive and detailed provisions in the various deeds executed by the parties" that they would not make claims against each other and that disputes which might arise would be dealt with by confidential mediation or arbitration.

In his oral submissions, senior counsel for HPPL seemed to suggest that the construction for which he contended did not give rise to the position that the effect of the releases in cl 6 of the Settlement Deed and the barring provisions in cll 11 and 13 of the Settlement Deed was that no claims could be made against GHR, but rather, that any claims must be made pursuant to the confidential mediation and arbitration provisions contained in cl 20. It is difficult with respect to see how the releases and barring provision can be construed in this way if HPPL's primary construction of the definition of Claim is correct.

HPPL contended that his Honour erred in his construction of cl 7(c) of the Settlement Deed, submitting that the words in that clause "any steps at any time" meant that the clause should be construed so as any action or conduct that could have the consequence that HPPL will cease to be wholly owned and controlled by Hancock Family Group Members is caught by cl 7(c).

HPPL also contended that irrespective of whether or not an application for a change in trustee would result in a non-Hancock Family Group Member being appointed trustee, cl 7(c) prohibited an application to remove GHR as trustee.

HPPL also relied on cl 7(d), the anti-disparagement clause of the Settlement Deed. It submitted that any question of that clause being void on the grounds of public policy did not arise, because the respondents were not prevented from raising allegations of misconduct by GHR in the context of a confidential mediation or arbitration conducted "by lawyers of the highest standing". It submitted the clause was justified because the public profile of GHR was critical to the business interests and future of HPPL.

HPPL reiterated its contention that the proceedings constituted a breach of cl 7(e) in that they amounted to a challenge to the right, title and interest of GHR in the Hancock Group.

HPPL also repeated its submission, made in the Court below, that the proceedings constituted a breach of cl 8 of the Settlement Deed as they challenged GHR's right to "full" ongoing control and management of HPPL. It submitted that as GHR had a 76.55 per cent shareholding in HPPL outside the Trust, the provision would be unnecessary if a 75 per cent interest in HPPL was sufficient to give full ongoing control and management.

HPPL also asserted that any claim to remove GHR as trustee would be ineffective by virtue of cl 9.2, as the clause gave GHR the right to be reappointed as trustee should she otherwise cease to be a trustee during her lifetime. HPPL further contended that the respondents' threatened disclosure of the Deed of Obligation and Release and the Settlement Deed to litigation funders was a breach of cl 9 of the Deed of Obligation and Release and cl 10.1 of the Deed. It contended that the seeking of an order to provide accounts for the Trust for the years 1992 to date and HPPL for the years 1992 to date, was a breach of the release and discharge given in cl 2 of the Deed of Obligation and Release which was reaffirmed and ratified by the Settlement Deed. It further submitted the beneficiaries are not shareholders of HPPL and so should not be entitled to HPPL accounts. HPPL did not explain why the respondents other than JLH were bound by cl 2 of the Deed of obligation and release or why the fact that they were not shareholders of HPPL in someway disentitled them to information not from HPPL but from the trustee.

HPPL submitted that if the construction of cl 20 of the Settlement Deed for which it contended was accepted, the proceedings must be stayed pending the outcome of the mediation or arbitration proceedings or that they should be stayed because they constitute "'Claims' or disputes under the Deed".

HPPL accepted that its submissions that the commencement of the proceedings by the respondents contravened cll 7(c), 7(d), 7(e), 8, 9.2 and 10.1 of the Settlement Deed and cl 2 and 3(c) of the Deed of Obligation and Release fell into a different category, but submitted that the Court should exercise its power to grant a stay because HPPL intended to seek to restrain such breaches through the confidential mediation and arbitration process and that the proceedings should be stayed to allow that to be determined.

Appeal of GHR and GHFR: Respondents' submissions

The respondents submitted that the primary judge was correct to find that the expression "under this deed" was narrower than phrases such as "with respect to" or "in respect of". They submitted that his Honour was correct in holding that a dispute under the Settlement Deed meant a dispute which derived from or depended on the Deed or involved enforcing or invoking some right created by the Deed. They submitted this analysis was supported by what was said by French J, as his Honour then was, in Paper Products supra.

The respondents submitted that the subject matter of the proceedings is demonstrated by the relief sought by the moving party, and the allegations made in support of that relief. They contended that if the conduct in bringing the proceedings was not in breach of the arbitration clause in the Settlement Deed, it was not open to a court to stay proceedings permanently on the basis that the appellants might make allegations by way of defence that would raise provisions of the Settlement Deed. They relied in that regard on the fact that applications for stays are generally concluded before the close of pleadings. They submitted that even if the defendants' arguments were likely to raise matters within the scope of the arbitration clause, that would not justify a stay, having regard to the fact the principal dispute was outside the terms of the agreement.

In Siemens Ltd v Origin Energy Uranquinty Power Pty Ltd [2011] NSWSC 195; (2011) 279 ALR 759 (at [38]) Ball J also indicated that in certain circumstances, a subject matter may be non-arbitrable where jurisdiction was conferred on a specialist tribunal, referring to Metrocall Inc v Electronic Tracking Systems Pty Ltd [2000] NSWIRComm 136; (2000) 52 NSWLR 1. Applying that principle, his Honour concluded that a dispute under s 15(2)(a)(i) of the Building and Construction Industry Security of Payment Act 1999 (the "BSOP Act") was not arbitrable. In his Honour's view it was apparent from the nature of the subject matter with which that BSOP Act dealt that it was appropriate for disputes concerning its subject matter to be resolved by the courts, or specialist tribunals established for that purpose. In that case, s 34(1) of the BSOP Act which says that the Act takes effect despite any provision to the contrary in any contract, was clearly a strong factor in his Honour's decision: see (at [42]). His Honour also said:

"[43] It follows from these provisions that arbitration cannot be a substitute for an adjudication under the Act. In addition, in my opinion, the supervisory jurisdiction the court exercises over the adjudication process cannot be the subject of an arbitration. In exercising that jurisdiction, the court is exercising a public function of ensuring the integrity of a dispute resolution system established by parliament. It is not simply resolving disputes between private litigants ..."

Matters of the special nature of which Ball J wrote aside, the mere fact that a power is conferred on a Court by statute, does not mean that an arbitrator cannot exercise such a power. The question turns on the language of the arbitration clause. Thus it has been held an arbitrator can award relief and make orders under s 87 of the Trade Practices Act 1974 (Cth): IBM Australia v National Distribution Services Pty Ltd (1991) 22 NSWLR 466; Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 (at 167). In IBM Australia v National Distribution Services, Handley JA said (at 487) he could "see no basis for excluding [from an arbitrator's consideration] claims arising under statutes which grant remedies enforceable in or confer powers on courts of general jurisdiction." In ACD Tridon v Tridon Australia, Austin J held that disputes arising under the Corporations Act 2001 (Cth) were arbitrable. His Honour (at [192]) could "see nothing special about the Corporations Act that would distinguish it, as a whole, from other legislation such as the Trade Practices Act". His Honour accepted, however, (at [192]) that public policy considerations such as those to which Warren J (as her Honour then was) referred in A Best Floor Sanding Pty Ltd v Skyer Australia Pty Ltd [1999] VSC 170, "operate against referring to arbitration a determination to wind up a company on the grounds upon which a court may order that a company be wound up." However, winding-up aside, to the extent that the statutory powers of a court under the Corporations Act were, "generally speaking, comparable to the powers exercised by a court under the general law", his Honour (at [193]) was of the view that they were "generally not special powers to be exercised having regard to specialist public interest criteria".

The critical question appears to be "whether there was to be implied in the parties' submission to arbitration a term that the arbitrator is to have the authority to give the claimant such relief as would be available in a court of law having jurisdiction with respect to the subject matter": Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (at 167), per Gleeson CJ (Meagher and Sheller JJA agreeing). In that case, at issue was whether an arbitrator had jurisdiction to determine a claim for damages in respect of a contravention of s 52 of the Trade Practices Act. His Honour considered (at 166) the effect of IBM Australia v National Distribution Services to have been that "it is possible and lawful for parties to agree to refer to arbitration a dispute under the Trade Practices Act 1974 (Cth), secondly, that an arbitrator to whom such a dispute has been referred may, in general, exercise the discretionary powers which the Act confers upon the Supreme Court or the Federal Court ..." (Emphasis added).

I accept the force of Young JA's observations about the potential difficulties of enforcing an arbitrator's award. However, compelling as they are, they do not militate against conclusion that the respondent's claims, if within cl 20, would be arbitrable. As Patten LJ said in Fulham Football Club (1987) Ltd v Richards [2011] EWCA Civ 855; [2012] 1 All ER 414 (at [84]):

" ... [A]s explained earlier in this judgment, these jurisdictional limitations on what an arbitration can achieve are not decisive of the question whether the subject-matter of the dispute is arbitrable. They are no more than the practical consequences of choosing that method of dispute resolution: see Societe Commerciale de Reassurance v ERAS (International) Ltd [1992] 1 Lloyd''s Rep 570; Wealands v CLC Contractors Ltd [1999] 2 Lloyd's Rep 739."

Mediation

I agree with Bathurst CJ's reasons on this issue.

YOUNG JA: I agree with the Chief Justice and with the orders he proposes, but wish to add some comments of my own.

I respectfully agree with the Chief Justice in [121] that we should not follow what Lord Hoffmann said in Fiona Trust and Holding Corporation v Privalov [2007] 4 All ER 951, 958 [12]. However, I would not want to think that my concurrence means that the prime thrust of what Lord Hoffmann said in that case should be rejected. Lewison & Hughes, The Interpretation of Contracts in Australia (Law Book Company, Sydney, 2012) section 2.06, clearly shows that much of the Fiona case is consistent with leading Australian authority. I agree with the Chief Justice's caveat in his [122].

However, as French J (as his Honour then was) said in Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (1993) 116 ALR 163, 172, where parties have chosen narrow words, a court is somewhat inhibited in resorting to a general proposition that commercial contracts are to be construed liberally.

When considering the phrase "under this deed" a court must take into account the treatment that the word "under" has received in decisions in the past. One would like to think that drafters of legal documents would have had them in mind when preparing the document in question.

I respectfully agree with the Chief Justice in his [129] that authorities dealing with the phrase "under the Constitution" or the like are not of assistance. However, I consider that there is some useful material in cases which have construed the phrase "under a treaty".

Although the authorities have not always spoken with one voice, the prevailing view is that a matter will not be said to be within the phrase merely because the treaty has to be interpreted to get to a result in the litigation. What is essential is, in the words of Miles CJ in R v Donyadideh (1993) 114 FLR 43, 47-8, "that the right, duty or liability in question 'owes its existence' to the treaty or depends upon the treaty for its enforcement, or has its source in the treaty". See also the discussion by O'Keefe J in this Court in Matchett v Deputy Commissioner of Taxation [2000] NSWSC 975; 158 FLR 171, 185-188 and the remarks of Kirby J in Re East; Ex Parte Nguyen [1998] HCA 73; 196 CLR 354, 382.

These thoughts confirm the views expressed by the Chief Justice.

Where I respectfully differ from the Chief Justice is his view summarised in [175] that, subject to the exercise of discretion a claim for removal of a trustee and associated issues would be arbitrable.

As the Chief Justice notes, there is no authority directly on point. There are, as the Chief Justice has detailed, indications in some of the cases which give some support to his view. However, I consider that the difficulties in a court enforcing any decision of an arbitrator are so great (or could be so great if a party was uncooperative) that the opposite view is preferable. Whilst a court could make orders authorising a Registrar to sign transfers on behalf of the former trustee and direct the Registrar General to register them, removal and replacement of trustees usually involves the taking of accounts and an in personam order against the former trustee which if he or she disobeys it leads to imprisonment. It is stretching things to contemplate that an order for imprisonment would be an appropriate enforcement procedure to perfect an arbitrator's award.

I believe that history supports this view. Nineteenth century attempts to merge common law and equity tended to fall down because only the Chancery had the proper machinery to enforce in personam orders.

Even if my view is erroneous, it would be a rare case where discretion would be exercised in favour of permitting the arbitration to proceed.

My difference of opinion on this issue does not affect the result of the appeal.

As to mediation, the primary judge considered that the application for mediation was premature. This does not preclude a further application at the appropriate time. That, however, is not a matter for this Court on appeal.

**********

SCHEDULE

Statement of Claim

Defence

[17] The 3 September email:
....
ii) attached an unexecuted deed between the First Defendant, the Plaintiffs and the Second Defendant ("3 September Deed");
iii) stated that the Deed was "required to be signed by each beneficiary";
...

[17] In answer to the whole of paragraph 17 the first defendant:
...
ii) says that each of the first and third plaintiffs and the second defendant entered into a Confidential Settlement Deed in August 2006 (Hope Downs Deed). The second plaintiff bound himself to the Hope Downs Deed upon execution of a Confidential Deed on 13 April 2007 (2007 Deed). The first defendant will rely upon the terms of the Hope Downs Deed and the 2007 Deed as if fully set out herein;
iii) says that pursuant to the terms of the Hope Downs Deed the vesting date of the Trust was expressly provided for as follows:
"Subject to [the first defendant's] agreement at any time prior to 6 September 2011, the Beneficiaries agree to extend the vesting date of [the Trust] to the maximum extent permitted by law or to any prior date after 6 September 2011 by agreement of the majority of Beneficiaries"
Particulars: Clause 9.1 of the Hope Downs Deed
iv) the first defendant further says that the request contained in the 3 September email was not unreasonable, both in respect of this Trust and the benefits for the beneficiaries pursuant to the Hope Dows Deed and given the protections usually available to trustees and providers of various professional services. Further, the request was not unreasonable given the terms and operations of the Trust and the Hope Downs Deed and was consistent with the Hope Downs Deed.
....
v) the first defendant further states that the 3 September letter and enclosed 3 September Deed did no more than:
ask the plaintiffs to act in conformity with the Hope Downs Deed in relation to the vesting date, given that it was in the interest of the plaintiffs to do so;
confirm that the releases and covenants contained in the Hope Downs Deed would apply to conduct of the first defendant that occurred after the execution of the Hope Downs Deed;
....
Particulars: Clauses 5, 6, 7 and 9 of the Hope Downs Deed.

[19] The 3 September Deed:
i) contained a recital to the effect that the First Defendant was willing to extend the vesting date of the Trust if each of the Plaintiffs and Second Defendant executed the Deed;
....
iv) by clause 2 provided that if any of the beneficiaries of the Trust intended to marry or live in a marriage like relationship, the beneficiary was required to enter into a prenuptial agreement on the terms set out in clause 2.

[19] In answer to paragraph 19 the first defendant:
i) denies that the content and effect of the 3 September Deed is sufficiently set out in the statement of claim and will at the hearing seek to rely upon the 3 September Deed as if fully set out herein and says that it cannot be read in isolation without referring to the Hope Downs Deed;
....
v) in answer to subparagraph 19(iv) that first defendant says that the requirement in clause 2 of the 3 September Deed was in the interests of each of the beneficiaries and was otherwise in conformity with:
clause 7 of the Hope Downs Deed; and
recital F of the Confidential Settlement Deed dated 13 April 2007 between the second plaintiff the first defendant and HPPL [binding the second plaintiff to the Hope Downs Deed]
vi) in further answer to paragraph 19 the first defendant repeats subparagraphs 17(iv) and 17 (v) [requests were not unreasonable and consistent with the terms of the Hope Downs Deed]

[22] The First Plaintiff was:
i) was not provided with access to the material requested in paragraph [21(i)] on 4 September 2011 or at any time since;
ii) did not receive confirmation that the vesting date of the Trust had been extended for a period of six months on 4 September 2011 or at any time since.

[22] In answer to paragraph 22 the first defendant:
...
ii) denies that the first defendant was under an obligation to provide access to the Trust information requested, other than in accordance with the Trust Deed and the Hope Downs Deed;
...
iv) otherwise denies that the first plaintiff is entitled at law to copies of the past accounts and says further that such request was proscribed by the terms of the Hope Downs Deed.
Particulars: Clauses 1.1(b), (d) and (d) [sic] and clause 6 of the Hope Downs Deed

[23] By an email dated 4 September 2011 to Mr Newby, the Third Plaintiff:
i) sought "preliminary information" including:
....
Financial statements, tax returns, bank and other records for the Trust;
Financial statements, tax returns, bank and other records for HMHT Investments Pty Ltd for all available years;
....

[23] In response to paragraph 23 the first defendant:
...
ii) says in answer to subparagraph 23(i):
denies that the third plaintiff had any entitlement to be provided with copies of the financial statement, tax returns and bank records of the Trust and says that the request was otherwise proscribed by the terms of the Hope Down Deed;
Particulars: Clauses 1.1(b), (d) and (d) [sic] and clause 6 of the Hope Downs Deed
d) denies that the third plaintiff had any entitlement to be provided with copies of the financial statements and bank records for HMHT Investments Pty Ltd and says that the request was otherwise proscribed by the terms of the Hope Downs Deed;
Particulars: Clauses 1.1(b), (d) and (d) [sic] and clause 6 of the Hope Downs Deed

[24] By email dated 4 September 2011 to the Third Plaintiff, Mr Newby:
i) agreed to provide the Third Plaintiff with the financial statements of the Trust for the years 2007 to 2010 but only on condition that "you kindly advise us this is your last request for Trust information";
....

[24] In answer to paragraph 24 the first defendant...otherwise repeats the matters set out in paragraphs 22 and 23 above, and says further it was reasonable to limit the financial statements provided to the years 2007 to 2010 because this was in conformity with the Hope Downs Deed.
Particulars: Clause 1.1(b), (d) and (d) [sic] and clause 6 of the Hope Downs Deed

[30] By email dated 5 September 2011 to Mr Newby, the Third Plaintiff:
...
ii) reiterated her request for copies of the bank statements and tax returns of the Trust;
...

[30] In response to whole of paragraph 30 the first defendant:
...
ii) refers to and repeats the matters pleaded at paragraphs 23 and 24 above.

[31] The First Defendant did not and never has complied with the request pleaded at [30] above. [Further request on 5 September 2011 for copy of HPPL constitution, copies of bank statements and tax returns for trust, information provided to PWC, and cashflow forecasts for Hope Downs]

[31] In answer to paragraph 31 the first defendant refers to and repeats the matters pleaded at paragraphs 23 and 24 above. [There was no obligation to provide requested material, and in certain respects to do so was proscribed by the Hope Downs Deed]

[38] The 5 September 2011 Deed provided:
i) that the First Plaintiff released and discharged the First Defendant from all actions, suits, claims, demands and causes of action both in law and in equity in relation to, or in connection with, the First Defendant including amending the 5 September 2011 Deed (cl 4.1);
ii) that the First Plaintiff covenanted that she would not take any action, suit, claim, demand in relation to, or in connection with, the First Defendant including amending the "Deed of Settlement" (cl 4.2);
iii) that the 5 September 2011 Deed could be pleaded in bar to any action or suit taken by the First Plaintiff then or hereafter against the First Defendant in relation to, or in connection with, the First Defendant including amending the 5 September 2011 Deed (cl 4.2).

[38] In answer to paragraph 38 the first defendant:
i) refers to and repeats the matters pleaded in paragraphs 17, 19, 36 and 37 [Content and effect of emails not sufficiently set out in statement of claim; what was sought by First Defendant was in conformity with Hope Downs Deed]
ii) says further that the release and discharge and covenant sought from the first plaintiff were not materially different to the releases provided for in the Hope Downs Deed and what was sought by the 3 September Deed;
Particulars: Clauses 5 and 6 of the Hope Downs Deed and Clause 3 of the 3 September 2011 Deed.

[40] The Deed Poll:
i) stated that "clause 6" of the 1988 Trust Deed "will be amended to provide that the Trust is to vest on 1 July 2068, as follows" (recital B);
ii) provided that the Third Plaintiff had no objection to the First Defendant amending the 1988 Trust Deed in the manner provided for (cl 1);
iii) provided that the Third Plaintiff released and discharged the First Defendant from all actions, suits, claims, demands and causes of action both in law and in equity in relation to, or in connection with, the First Defendant amending the 1988 Trust Deed in the manner provided for (cl 2);
iv) provided that the Third Plaintiff acknowledged and confirmed that the amendments provided for were in the best interests of the beneficiaries of the Trust and the First Defendant in making the amendments was acting in the best financial interests of the beneficiaries of the Trust (cl 3).

[40] In answer to paragraph 40 the first defendant admits the same but denies that the content and effect of the Deed Poll is fully set out therein:
i) that the release and discharge and covenant sought from the third plaintiff was not materially different to the releases provided for in the Hope Downs Deed and what was sought by the 3 September Deed and repeats paragraph 17;
ii) the first defendant further says that the request contained in the Deed Poll was not unreasonable, both in respect of this Trust and for trustees generally, given the terms and operation of the Trust and the Hope Downs Deed and the protections usually available to trustees and providers of various professional services.
iii) the first defendant furthers states that the Deed Poll did no more than seek to confirm that the releases and covenants contained in the Hope Downs Deed would apply to conduct of the first defendant that occurred after the execution of the Hope Downs Deed and the protections usually available to trustees and providers of various professional services.
Particulars: Clauses 6, 7 and 13 of the Hope Downs Deed.

[42] The revised Deed" ("Revised Deed Poll"):
...
iv) provided that the Third Plaintiff released and discharged the First Defendant from all actions, suits, claims, demands and causes of action both in law and in equity in relation to, or in connection with, the First Defendant amending the 1988 Trust Deed in the manner provided for, and otherwise in regard to the First Defendant and the Trust (cl 2);
...
vii) provided that the First Plaintiff released and discharged the First Defendant from all actions, suits, claims, demands and causes of action both in law and in equity in relation to, or in connection with, the First Defendant including amending the 1988 Trust Deed and the Trust (cl 8);
viii) provided that the First Plaintiff would not take any action, suit, claim, demand in relation to, or in connection with, the First Defendant including amending the 1988 Trust Deed and the Trust (cl 9);
ix) provided that the Deed could be pleaded in bar to any action or suit taken by the First Plaintiff now or hereafter against the First Defendant in relation to, or in connection with, the First Defendant including amending the 1988 Trust Deed and the Trust (cl 9).

[42] In response to paragraph 42 the first defendant:
...
ii) says further that the first defendant formed the view that the exercise by her of the power to extend the vesting date was in the best financial interests of the plaintiffs and the second defendant and repeats paragraphs 17, 19, 36, 37 and 38. [Content and effect of emails not sufficiently set out in statement of claim; what was sought by First Defendant was in conformity with Hope Downs Deed]

[43] By email dated 6 September 2011 to the Second Plaintiff, the First Defendant requested that the Second Plaintiff execute the "revised Deed" attached to the email ("Second Revised Deed Poll").

[43] In response to paragraph 43 the first defendant admits the contents of the email attaching the Second Revised Deed Poll and repeats paragraphs 17, 19, 36, 37 and 38. [Content and effect of emails not sufficiently set out in statement of claim; what was sought by First Defendant was in conformity with Hope Downs Deed]

[44] The Second Revised Deed Poll:
i) stated that consideration had been given that it was not in the best interests of the beneficiaries of the Trust to vest on 6 September 2011 and should provide that the Trust is to vest on 1 July 2068 "as follows" (recital B);
ii) stated that the Plaintiff had commenced the Proceedings against the First Defendant "in relation to the Trust" (recital C);
iii) provided that the Second Plaintiff had no objection to the First Defendant amending the 1988 Trust Deed in the manner provided for (cl 1);
iv) provided that the Second Plaintiff released and discharged the First Defendant from all actions, suits, claims, demands and causes of action both in law and in equity in relation to, or in connection with, the First Defendant amending the 1988 Trust Deed in the manner provided for, and otherwise in regard to the First Defendant and the Trust (cl 2);
v) provided that the Second Plaintiff acknowledged and confirmed that the amendment pleased at [26(ii)] above was in the best interests of the beneficiaries of the Trust and the First Defendant in making the amendment was acting in the best financial interests of the beneficiaries of the Trust (cl 3);
vi) provided that the Second Plaintiff released and discharged the First Defendant from all actions, suits, claims, demands and causes of action both in law and in equity in relation to, or in connection with, the First Defendant including amending the 1988 Trust Deed and the Trust (cl 8);
vii) provided that the Second Plaintiff would not take any action, suit, claim, demand in relation to, or in connection with, the First Defendant including amending the 1988 Trust Deed and the Trust (cl 9);
viii) provided that the Deed could be pleaded in bar to any action or suit taken by the Second Plaintiff now or hereafter against the First Defendant in relation to, or in connection with, the First Defendant including amending the 1988 Trust Deed and the Trust (cl 9).

[44] In response to paragraph 44 the first defendant:
i) admits the same ...and repeats paragraphs 17, 19, 36, 37 and 38; [content and effect of emails not sufficiently set out in statement of claim; what was sought by First Defendant was in conformity with Hope Downs Deed]

[55] On or about 13 September 2011, the Plaintiffs, in their capacity as beneficiaries of the Trust, requested copies of the following documents from the First Defendant in her capacity as trustee of the Trust:
i) copies of the accounts of the Trust since the date of death of Mr Hancock;
ii) a copy of the executed version of the 1988 Trust Deed;
iii) a copy of the executed version of the 1995 purported variation of the 1988 Trust Deed;
iv) details of all dividends declared by HPPL since the date of death of Mr Hancock.

[55] In response to paragraph 55 the first defendant:
i) admits the same but says that the 1995 Trust Amendment Deed was effective...;
ii) denies that the plaintiffs had any entitlement to be provided with such copies of the Trust information requested, other than in accordance with the Trust Deed or the Hope Downs Deed;
iii) says that if the plaintiffs did have an entitlement, which is denied, says that it was a condition of any such request that the plaintiffs make the same in good faith and reasonably, and the first defendant denies that any such condition was satisfied;
iv) further says that the request that was made was not reasonable, not necessary and not made for a proper purpose;
...

[56] On or about 27 October 2011, the Plaintiffs, in their capacity as beneficiaries of the Trust:
i) requested copies of...documents from the First Defendant in her capacity as trustee of the Trust:
[List includes Trust Deed, documents executed by Mr Hancock and/or first defendant purporting to vary Trust Deed, financial statements, management accounts and tax returns, documents identifying assets of trusts, all resolutions executed by Mr Hancock and the First Defendant]

[56] In response to paragraph 56 the first defendant:
...
ii) denies that the plaintiffs had any entitlement to be provided with such copies of the Trust information requested, other than in accordance with the Trust Deed and the Hope Downs Deed;
iii) says that if the plaintiffs did have an entitlement, which is denied, says that it was a condition of any such request that the plaintiffs make the same in good faith and reasonably, and the first defendant denies that any such condition was satisfied;
iv) further says that the request that was made was not reasonable, not necessary and not made for a proper purpose;
...

[57] On or about 27 October 2011, the Plaintiffs, in their capacity as beneficiaries of the Trust sought confirmation from the First Respondent as to whether any property other than the Shares was, or had been the property of the Trust.

[57] in response to paragraph 57 the first defendant:
...
ii) denies that the plaintiffs had any entitlement to be provided with such copies of the Trust information requested, other than in accordance with the Trust Deed or the Hope Downs Deed;...

[58] the Plaintiffs, in their capacity as beneficiaries of the Trust had an entitlement to be furnished with each of:
[cites multiple Trust documents including; copies of accounts of Trust, executed version of Trust and Trust variations; details of dividends; all documents executed by Mr Hancock and the First Defendant purporting to vary the Trust; financial statements; all resolutions executed by Mr Hancock or the First Defendant in capacity as trustees; all advices about such resolutions; all documents recording payment of income of the Trust; the advice from PWC; information about property that was or had been Trust property.]

[58] In response to paragraph 58 the first defendant:
i) denies that the plaintiffs had any entitlement to be provided with such copies of the Trust information;
...
iii) further says that the request that was made was not reasonable, not necessary and not made for a proper purpose, particularly in circumstances where:
the plaintiffs had released the first defendant for any breaches of duty as Trustee of the Trust prior to the ratification of the Hope Downs Deed on 13 April 2007;
...

[63] At all material times, the First Defendant, in her capacity as trustee of the Trust, has been under each of the following duties:
i) to obey the terms of the Trust in the absence of a court order to the contrary;
ii) to act honestly and in good faith;
iii) to act in the best interests of the beneficiaries of the Trust;
iv) to act impartially as between beneficiaries;
v) not to interfere with the lawful exercise of rights held by the Plaintiffs in their capacity as beneficiaries of the Trust;
vi) to exercise such care and skill in the exercise of her duties as trustee as is reasonable in the circumstances;
vii) to refrain from acting irresponsibly, capriciously or wantonly;
viii) not to exercise, or refrain from exercising, powers for ulterior or improper purposes;
ix) to avoid any conflict of duty and interest;
x) to provide the accounts of the Trust to beneficiaries as and when requested;
xi) to give to beneficiaries full and accurate information as to the amount and state of the trust property as and when requested; and
xii) to furnish beneficiaries with the terms of the Trust;
xiii) to make available to beneficiaries all documents relating to the trust as and when requested.

[63] In answer to paragraph 63 the first defendant denies the content of the duties alleged against the first defendant in her capacity as Trustee of the Trust adequately and sufficiently describe the duties to which she is subject in the particular circumstances of this Trust and according to the terms of the Trust Deed, and save as aforesaid:
....
iv) says in answer to subparagraph 63(iv) the first defendant had a wide discretion under the Trust and her duty was to exercise it by reference to the objects and purposes of the Trust having regard to the competing interests of the various beneficiaries of the Trust, and without taking into account improper, irrelevant or irrational considerations. The first defendant furthers says that she had a duty to exercise the discretion personally and from time to time, having regard to all relevant circumstances as they exist from time to time;
....
ix) admits subparagraph 63(ix) subject to the right of the first defendant to act despite other interests in accordance with clause 7C of the Trust Deed;
x) denies subparagraph 63(x), refers to and repeats the matters in paragraph 58 above; [plaintiffs had no entitlement to be provided with copies of the relevant Trust information]
Particulars: Hope Downs Deed, 2007 Deed, 2009 Deed.
xi) denies subparagraph 63(xi), refers to and repeats the matters in paragraph 58 above;
...

[64] The First Defendant:
i) gave the Plaintiffs only one business day in which to consider the contents of the 3 September Letter and 3 September Deed before the Trust was due to vest in the absence of a variation to the 1988 Trust Deed;
ii) engaged in the conduct in (i) above despite being aware of the vesting date of the Trust at all material times;
iii) represented to the Plaintiffs that the 3 September Deed was required to be signed by them;
iv) engaged in the conduct pleaded in (iii) above despite being aware that the Plaintiffs were not required to sign the 3 September Deed by any law or legal obligation;
v) represented to the Plaintiffs that it was necessary for them to sign the 3 September Deed before the First Defendant would agree to extend the vesting date of the Trust;
vi) from the time at which the 2011 Deed had been executed to at least 8 September 2011, falsely represented to the Plaintiffs and the Second Defendant that the vesting date of the Trust had not been extended;
vii) from the time at which the 2011 Deed had been executed to at least 8 September 2011, deliberately concealed the fact that the vesting date of the Trust had been extended;
viii) Falsely represented to the first Plaintiff that it was necessary for her to execute one or more of:
an "additional agreement";
5 September 2011 Deed;
Revised Deed Poll,
If she wished the First Defendant to extend the vesting date of the Trust;
ix) falsely represented to the Second Plaintiff that it was necessary for him to execute the Second Revised Deed Poll if he wished the First Defendant to extend the vesting date of the Trust;
x) falsely represented to the Third Plaintiff that it was necessary for her to execute the Deed Poll if she wished the First Defendant to extend the vesting date of the Trust;
[Particulars omitted]
....

[64] In response to the whole of paragraph 64 the first defendant says as follows:
i) admits subparagraphs 64 I) but says that the first and third plaintiffs had previously agreed to extend the vesting date to the maximum extent permitted by law by the Hope Downs Deed and in the case of the second plaintiff by the 2007 Deed and further says that the plaintiffs were all sui juris;
Particulars: Clause 9.1 of the Hope Downs Deed; Clause 1 of the 2007 Deed
ii) denies subparagraph 64(ii) and repeats subparagraph 64(i), and says that at all times the plaintiffs were aware of the vesting date of the Trust and had previously agreed in 2006 to extend the vesting date to the maximum extent permitted by law;
Particulars clause 9.1 of the Hope Down Deed.
iii) admits subparagraph 64(iii) and says that the 3 September Deed had, as to part, been previously agreed to by the plaintiffs and the releases sought in the 3 September Deed were in conformity with the 3 September letter;
Particulars: Hope Downs Deed
iv) denies subparagraph 64(iv) and otherwise repeats the mattes pleaded at subparagraphs (ii) and (iii) hereof and repeats earlier paragraphs 17, 19, 36, 37 and 38;
v) admits subparagraph 64(v) and repeats paragraphs 17, 19, 36, 37 and 38 and subparagraphs (ii) and (iii) above;
....
viii) denies subparagraph 64(viii) and says that the first plaintiff had previously agreed to extend the vesting date to the maximum extent permitted by law and were on notice from at least 5 September 2011 that the vesting date of the Trust had been extended;
Particulars: Clause 9.1 of the Hope Downs Deed
ix) denies subparagraph 64(ix) and says that the second plaintiff had previously agreed to extend the vesting date to the maximum extent permitted by law and were on notice from at least 5 September 2011 that the vesting date of the Trust had been extended;
Particulars: Clause 9.1 of the Hope Down Deed; email from Mr Newby to the second plaintiff dated 5 September 2011 at 7.46pm.
x) denies subparagraph 64(x) and says that the third plaintiff had previously agreed to extend the vesting date to the maximum extent permitted by law and was on notice from at least 5 September 2011 that the vesting date of the Trust had been extended;
Particulars: Clause 9.1 of the Hope Downs Deed; email from Mr Newby to the third plaintiff dated 5 September 2011 (11.58pm)
...

[65] By reasons of the matters pleaded in paragraph [64] the First Defendant has:
i) breached her duty to act honestly and in good faith;
ii) acted with gross dishonesty in her dealings with the beneficiaries of the trust;
iii) acted deceitfully in her dealings with the beneficiaries of the Trust.

[65] The first plaintiff [sic] denies paragraph 65 and repeats paragraph 64.

Decision last updated: 23 April 2012

Medium Neutral Citation:	Rinehart v Welker [2012] NSWCA 95
Hearing dates:	8 February 2012
Decision date:	20 April 2012
Before:	Bathurst CJ at [1]; McColl JA at [196]; Young JA at [218]
Decision:	1. Leave to appeal granted 2. Appeals dismissed with costs [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PRACTICE AND PROCEDURE - Stay of proceedings - Referral to arbitration - Arbitration clause - Construction of arbitration clauses. PRACTICE AND PROCEDURE - Stay of proceedings - Referral to arbitration - Agreement to refer "any dispute under this deed" to arbitration - Construction - Whether claim pursuant to Trustee Act 1962 (WA) and court's inherent and equitable jurisdiction a "dispute under this deed" - Relevance of defences invoking deed. PRACTICE AND PROCEDURE - Stay of proceedings - Referral to arbitration - Claim pursuant to Trustee Act 1962 (WA) and court's inherent and equitable jurisdiction - Claims by beneficiaries to remove a trustee and vary trust - whether arbitrable. PRACTICE AND PROCEDURE - Stay of proceedings - Civil Procedure Act 2005 s 67 - Exercise of discretion - Referral to arbitration - Part of dispute within scope of arbitration clause - Whether error of discretion to refuse stay. PRACTICE AND PROCEDURE - Stay of proceedings - Civil Procedure Act 2005 s 67 - Exercise of discretion - Mediation clause - Whether error not to refer to mediation.
Legislation Cited:	Building and Construction Industry Security of Payment Act (NSW) 1999 Civil Procedure Act 2005 (NSW) s 67 Commercial Arbitration Act 1985 (WA) s 33, s 37, s 38, s 39, s 40, s 53 Companies Act 2006 (UK) s 994 Corporations Act 2001 (CTH) s 232 Judiciary Act 1789 (US) s 25 Sherman Act 1890 (US) Trade Practices Act 1974 (CTH) s 82, s 87 Trustee Act 1962 (WA) s 42, s 77, s 79, s 85 s 90, s 94
Cases Cited:	A Best Floor Sanding Pty Limited v Skyer Australia Pty Limited [1999] VSC 170 ACD Tridon Inc v Tridon Australia Pty Limited [2002] NSWSC 896 Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; (2005) 223 CLR 251 AMEC Civil Engineering Ltd v Secretary of State for Transport [2005] 1 WLR 2339 Andco Nominees Pty Limited v Lestato Pty Limited [1995] 126 FLR 404; (1995) 17 ACSR 239 Armitage v Nurse [1998] Ch 241 Bristol Corporation v John Aird [1913] AC 241 BTR Engineering (Australia) Ltd v Dana Corporation [2000] VSC 246 Camilla Cotton Oil Co v Granadex SA [1976] 2 Lloyd's Rep 10 Channel Tunnel Group Limited v Balfour Beatty Construction Ltd [1993] AC 334 Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 Cohens v Virginia 19 US (6 Wheat.) 264 (1821) Comandate Marine Corp v Pan Australian Shipping Pty Limited [2006] FCAFC 192; (2006) 157 FCR 45 Collins (Contractors) Ltd v Baltic Quay Management (1994) Ltd [2004] EWCA Civ 1757 Cunningham-Reid v Buchanan-Jardine [1988] 2 All ER 438; [1988] 1 WLR 678 Czarnikow v Roth Schmidt & Company [1922] 2 KB 478 Desputeaux v Editions Chouette (1987) Inc [2003] 1 SCR 178 Dowling & Ors v St Vincent de Paul Society Victoria Inc [2003] VSC 454 Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367 Fiona Trust & Holding Corporation v Privalov [2007] EWCA Civ 20; [2007] All ER (D) 169 Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40; [2007] 4 All ER 951 Francis Travel Marketing Pty Limited v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 Fulham Football Club (1987) Ltd v Richards [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] HCA 9; (1981) 146 CLR 206 Grant v John Grant & Sons Pty Limited [1954] HCA 23; (1954) 91 CLR 112 House v The King [1936] HCA 40; (1936) 55 CLR 499 IBM Australia Ltd v National Distribution Services Ltd (1991) 22 NSWLR 466 Larkden Pty Limited v Lloyd Energy Systems Pty Limited [2011] NSWSC 268; (2011) 279 ALR 772 Leerac Pty Limited v Fay [2008] NSWSC 1082 Lipman Pty Limited v Emergency Services Superannuation Board [2011] NSWCA 163 LNC Industries Ltd v BMW (Aust) Ltd [1983] HCA 31; (1983) 151 CLR 575 Marinchek v Cabport Pty Limited [2010] NSWCA 334 Matchett v Deputy Commissioner of Taxation [2000] NSWSC 975; 158 FLR 171 McGrath v O'Sullivan [1964] NSWR 436 McLean v Burns Philp Trustee Co Limited (1985) 2 NSWLR 623 Metrocall Inc v Electronic Tracking Systems Pty Ltd [2000] NSWIRComm 136; (2000) 52 NSWLR 1 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 86 ALJR 14 Miller v Cameron [1936] HCA 13; (1936) 54 CLR 572 Miller v Haweis [1907] HCA 44; (1907) 5 CLR 89 Mitsubishi Motors Corporation v Soler-Chrysler Plymouth Inc 473 US 614 (1985) Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 Osborne v Bank of the United States (9 Wheat.) 737 (1824) Overseas Union Insurance Ltd v A A Mutual International Insurance Co Ltd [1988] 2 Ll R 63 Paharpur Cooling Towers Ltd v Paramount (WA) Ltd [2008] WASCA 110 Paper Products Pty Limited v Tomlinsons (Rochdale) Ltd & Ors (1993) 43 FCR 439 Permanent Trustee Company v Dougall (1931) 34 SR (NSW) 83 Perpetual Trustees Australia Ltd v Wallace [2007] FCA 527 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141 R v Donyadideh (1993) 114 FLR 43 Radio Publicity (Universal) Ltd v Compagnie Luxembourgeoise de Radiodifusion [1936] 2 All ER 721 Re Earl of Strafford Deceased; Royal Bank of Scotland Ltd v Byng [1980] Ch 28 Re East; Ex Parte Nguyen [1998] HCA 73; 196 CLR 354 Re Purkiss [1999] 3 VR 223 Rinehart v Welker [2011] NSWCA 403 Russell v Russell (1880) 14 Ch 471 Samick Lines Co Ltd v Owners of the Antonis P Lemos [1985] AC 711 Savcor Pty Limited v State of New South Wales [2001] NSWSC 596; (2001) 52 NSWLR 587 Scaffidi v Montevento Holdings Pty Limited [2011] WASCA 146 Siemens Ltd v Origin Energy Uranquinty Power Pty Ltd [2011] NSWSC 195; (2011) 279 ALR 759 Sun Life Assurance Company of Canada v Lincoln National Life Insurance Company [2005] 1 Lloyd's Rep 606 Taunton-Collins v Cromie [1965] WLR 633; [1964] 2 All ER 332 TCL Airconditioner (Zhongshan) Co Ltd v Castel Electronics Pty Limited [2009] VSC 553 Toll (FGCT) Pty Limited v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 Walter Rau Neusser Oel und Fett AG v Cross Pacific Trading Ltd [2005] FCA 1102 Western Export Services Inc v Jireh International Pty Limited [2011] HCA 45; (2011) 86 ALJR 1
Texts Cited:	Born, International Commercial Arbitration (2009) Klewer Cohen and Staff, "The Arbitration of Trust Disputes" Journal of International Trust and Corporate Planning (1999) vol 7 No 4 Jacobs Law of Trusts in Australia 7th ed (2006) LexisNexis Butterworths Lewison & Hughes, The Interpretation of Contracts in Australia (Law Book Company, Sydney, 2012) Mustill and Boyd, Commercial Arbitration, 2nd ed (1989) Butterworths Tweeddale and Tweeddale, Arbitration of Commercial Disputes: International and English Law and Practice (2007) Oxford University Press
Category:	Procedural and other rulings
Parties:	Gina Hope Rinehart (First Appellant) Ginia Hope Frances Rinehart (Second Appellant) Hope Rinehart Welker (First Respondent) John Langley Hancock (Second Respondent) Bianca Hope Rinehart (Third Respondent)
Representation:	J T Gleeson SC and P Kulevski (First Appellant) F Kunc SC and P Flynn (Second Appellant) A S Bell SC and D F C Thomas (First, Second and Third Respondents) Corrs Chambers Westgarth (First Appellant) Gadens Lawyers (Second Appellant) Johnson Winter & Slattery (First, Second and Third Respondents)
File Number(s):	CA 2011/344306; 2011/344307
Decision under appeal	Citation: Welker & Ors v Rinehart & Anor (No. 2) [2011] NSWSC 1238 Date of Decision: 2011-10-07 00:00:00 Before: Brereton J File Number(s): 2011/285907