Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 16] - [2022] WASC 432

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [No 16] [2022] WASC 432
CORAM:   SMITH J
HEARD:   24 NOVEMBER 2022
DELIVERED          :   14 DECEMBER 2022
FILE NO/S:   CIV 3041 of 2010
MATTER:   (Consolidated with CIV 2617 of 2012 by Orders dated 9 September 2014)
BETWEEN:   WRIGHT PROSPECTING PTY LTD
Plaintiff
AND
HANCOCK PROSPECTING PTY LTD
First Defendant
HOPE DOWNS IRON ORE PTY LTD
Second Defendant
BIANCA HOPE RINEHART
Third Defendant
JOHN LANGLEY HANCOCK
Fourth Defendant
HOPE RINEHART WELKER
Fifth Defendant
GINIA HOPE FRANCIS RINEHART
Sixth Defendant
BIANCA HOPE RINEHART
First Plaintiff by Counterclaim
JOHN LANGLEY HANCOCK
Second Plaintiff by Counterclaim
AND
GEORGINA HOPE RINEHART
First Defendant by Counterclaim
HANCOCK PROSPECTING PTY LTD
Second Defendant by Counterclaim
HANCOCK MINERALS PTY LTD
Third Defendant by Counterclaim
THE HANCOCK FAMILY MEMORIAL FOUNDATION LTD
Fourth Defendant by Counterclaim
TADEUSZ JOZEF WATROBA
Fifth Defendant by Counterclaim
WESTRAINT RESOURCES PTY LTD
Sixth Defendant by Counterclaim
HMHT INVESTMENTS PTY LTD
Seventh Defendant by Counterclaim
150 INVESTMENTS PTY LTD
Eighth Defendant by Counterclaim
HOPE RINEHART WELKER
Ninth Defendant by Counterclaim
GINIA HOPE FRANCIS RINEHART
Tenth Defendant by Counterclaim
MAX CHRISTOPHER DONNELLY as trustee in bankruptcy of LANGLEY GEORGE HANCOCK
Eleventh Defendant by Counterclaim
HOPE DOWNS IRON ORE PTY LTD
Twelfth Defendant by Counterclaim
ROY HILL IRON ORE PTY LTD
Thirteenth Defendant by Counterclaim
MULGA DOWNS INVESTMENTS PTY LTD
Fourteenth Defendant by Counterclaim
MULGA DOWNS IRON ORE PTY LTD
Fifteenth Defendant by Counterclaim
WRIGHT PROSPECTING PTY LTD
Sixteenth Defendant by Counterclaim
DFD RHODES PTY LTD
Seventeenth Defendant by Counterclaim
MATTHEW JOHN KEADY AND DOROTHEA MARGARET CAMPBELL as executors of DONOVAN FRANCES DUNCAN RHODES
Eighteenth Defendants by Counterclaim
HAMERSLEY IRON PTY LTD
Third Party

FILE NO/S: CIV 2617 of 2012
BETWEEN: WRIGHT PROSPECTING PTY LTD
Plaintiff
AND
HANCOCK PROSPECTING PTY LTD
First Defendant
HOPE DOWNS IRON ORE PTY LTD
Second Defendant
BIANCA HOPE RINEHART
Third Defendant
JOHN LANGLEY HANCOCK
Fourth Defendant
HOPE RINEHART WELKER
Fifth Defendant
GINIA HOPE FRANCIS RINEHART
Sixth Defendant
HAMERSLEY WA PTY LTD
Third Party

FILE NO/S: CIV 2737 of 2013
BETWEEN: DFD RHODES PTY LTD
First Plaintiff
MATTHEW JOHN KEADY as executor of the estate of DONOVAN FRANCES DUNCAN RHODES
DOROTHEA MARGARET CAMPBELL as executor of the estate of DONOVAN FRANCES DUNCAN RHODES
Second Plaintiffs
AND
HANCOCK PROSPECTING PTY LTD
First Defendant
WRIGHT PROSPECTING PTY LTD
Second Defendant
HOPE DOWNS IRON ORE PTY LTD
Third Defendant
BIANCA HOPE RINEHART
Fourth Defendant
JOHN LANGLEY HANCOCK
Fifth Defendant
HOPE RINEHART WELKER
Sixth Defendant
GINIA HOPE FRANCIS RINEHART
Seventh Defendant
BIANCA HOPE RINEHART
First Plaintiff by Counterclaim
JOHN LANGLEY HANCOCK
Second Plaintiff by Counterclaim
AND
GEORGINA HOPE RINEHART
First Defendant by Counterclaim
HANCOCK PROSPECTING PTY LTD
Second Defendant by Counterclaim
HANCOCK MINERALS PTY LTD
Third Defendant by Counterclaim
THE HANCOCK FAMILY MEMORIAL FOUNDATION LIMITED
Fourth Defendant by Counterclaim
TADEUSZ JOZEF WATROBA
Fifth Defendant by Counterclaim
WESTRAINT RESOURCES PTY LTD
Sixth Defendant by Counterclaim
HMHT INVESTMENTS PTY LTD
Seventh Defendant by Counterclaim
150 INVESTMENTS PTY LTD
Eighth Defendant by Counterclaim
HOPE RINEHART WELKER
Ninth Defendant by Counterclaim
GINIA HOPE FRANCIS RINEHART
Tenth Defendant by Counterclaim
MAX CHRISTOPHER DONNELLY as trustee in bankruptcy of LANGLEY GEORGE HANCOCK
Eleventh Defendant by Counterclaim
HOPE DOWNS IRON ORE PTY LTD
Twelfth Defendant by Counterclaim
ROY HILL IRON ORE PTY LTD
Thirteenth Defendant by Counterclaim
MULGA DOWNS INVESTMENTS PTY LTD
Fourteenth Defendant by Counterclaim
MULGA DOWNS IRON ORE PTY LTD
Fifteenth Defendant by Counterclaim
WRIGHT PROSPECTING PTY LTD
Sixteenth Defendant by Counterclaim
DFD RHODES PTY LTD
Seventeenth Defendant by Counterclaim
MATTHEW JOHN KEADY AND DOROTHEA MARGARET CAMPBELL as executors of DONOVAN FRANCES DUNCAN RHODES
Eighteenth Defendants by Counterclaim
HAMERSLEY WA PTY LTD
Third Party

Catchwords:

Practice and procedure - Application for stay of proceedings or adjournment of trial by defendants to the actions pending the delivery of an award in arbitral proceedings between defendants - Factors relevant to whether stay or adjournment considered - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) O 1 r 4A, O 34 r 4

Result:

Application dismissed

Representation:

CIV 3041 of 2010

Original Action

Counsel:

Plaintiff	:	Ms K Stern SC, Mr T Mehigan SC & Ms L Coleman
First Defendant	:	Mr C Bova SC, Mr T O'Brien & Ms M Parker
Second Defendant	:	Mr C Bova SC, Mr T O'Brien & Ms M Parker
Third Defendant	:	Mr D Delany
Fourth Defendant	:	Mr D Delany
Fifth Defendant	:	No appearance
Sixth Defendant	:	Ms K Lindeman
Third Party	:	Ms C Wren

Solicitors:

Plaintiff	:	Clayton Utz
First Defendant	:	Corrs Chambers Westgarth
Second Defendant	:	Corrs Chambers Westgarth
Third Defendant	:	Yeldham Price O'Brien Lusk
Fourth Defendant	:	Yeldham Price O'Brien Lusk
Fifth Defendant	:	Deutsch Miller
Sixth Defendant	:	Dentons Australia
Third Party	:	Allens

Counterclaim

Counsel:

First Plaintiff by Counterclaim	:	Mr D Delany
Second Plaintiff by Counterclaim	:	Mr D Delany
First Defendant by Counterclaim	:	No appearance
Second Defendant by Counterclaim	:	Mr C Bova SC, Mr T O'Brien & Ms M Parker
Third Defendant by Counterclaim	:	Mr C Bova SC, Mr T O'Brien & Ms M Parker
Fourth Defendant by Counterclaim	:	Mr C Bova SC, Mr T O'Brien & Ms M Parker
Fifth Defendant by Counterclaim	:	Mr C Bova SC, Mr T O'Brien & Ms M Parker
Sixth Defendant by Counterclaim	:	Mr C Bova SC, Mr T O'Brien & Ms M Parker
Seventh Defendant by Counterclaim	:	Mr C Bova SC, Mr T O'Brien & Ms M Parker
Eighth Defendant by Counterclaim	:	No appearance
Ninth Defendant by Counterclaim	:	No appearance
Tenth Defendant by Counterclaim	:	Ms K Lindeman
Eleventh Defendant by Counterclaim	:	Mr C Bova SC, Mr T O'Brien & Ms M Parker
Twelfth Defendant by Counterclaim	:	Mr C Bova SC, Mr T O'Brien & Ms M Parker
Thirteenth Defendant by Counterclaim	:	Mr C Bova SC, Mr T O'Brien & Ms M Parker
Fourteenth Defendant by Counterclaim	:	No appearance
Fifteenth Defendant by Counterclaim	:	Mr C Bova SC, Mr T O'Brien & Ms M Parker
Sixteenth Defendant by Counterclaim	:	Ms K Stern SC, Mr T Mehigan SC & Ms L Coleman
Seventeenth Defendant by Counterclaim	:	Ms K R Lendich SC & Mr S Taylor
Eighteenth Defendants by Counterclaim	:	Ms K R Lendich SC & Mr S Taylor

Solicitors:

First Plaintiff by Counterclaim	:	Yeldham Price O'Brien Lusk
Second Plaintiff by Counterclaim	:	Yeldham Price O'Brien Lusk
First Defendant by Counterclaim	:	Speed & Stracey Lawyers
Second Defendant by Counterclaim	:	Corrs Chambers Westgarth
Third Defendant by Counterclaim	:	Corrs Chambers Westgarth
Fourth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Fifth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Sixth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Seventh Defendant by Counterclaim	:	Corrs Chambers Westgarth
Eighth Defendant by Counterclaim	:	Speed & Stracey Lawyers
Ninth Defendant by Counterclaim	:	Deutsch Miller
Tenth Defendant by Counterclaim	:	Dentons Australia
Eleventh Defendant by Counterclaim	:	Corrs Chambers Westgarth
Twelfth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Thirteenth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Fourteenth Defendant by Counterclaim	:	No appearance
Fifteenth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Sixteenth Defendant by Counterclaim	:	Clayton Utz
Seventeenth Defendant by Counterclaim	:	Taylor & Taylor Lawyers Pty Ltd
Eighteenth Defendants by Counterclaim	:	Taylor & Taylor Lawyers Pty Ltd

CIV 2617 of 2012

Counsel:

Plaintiff	:	Ms K Stern SC, Mr T Mehigan SC & Ms L Coleman
First Defendant	:	Mr C Bova SC, Mr T O'Brien & Ms M Parker
Second Defendant	:	Mr C Bova SC, Mr T O'Brien & Ms M Parker
Third Defendant	:	Mr D Delany
Fourth Defendant	:	Mr D Delany
Fifth Defendant	:	No appearance
Sixth Defendant	:	Ms K Lindeman
Third Party	:	Ms C Wren

Solicitors:

Plaintiff	:	Clayton Utz
First Defendant	:	Corrs Chambers Westgarth
Second Defendant	:	Corrs Chambers Westgarth
Third Defendant	:	Yeldham Price O'Brien Lusk
Fourth Defendant	:	Yeldham Price O'Brien Lusk
Fifth Defendant	:	Deutsch Miller
Sixth Defendant	:	Dentons Australia
Third Party	:	Allens

CIV 2737 of 2013

Original Action

Counsel:

First Plaintiff	:	Ms K R Lendich SC & Mr S Taylor
Second Plaintiffs	:	Ms K R Lendich SC & Mr S Taylor
First Defendant	:	Mr C Bova SC, Mr T O'Brien & Ms M Parker
Second Defendant	:	Ms K Stern SC, Mr T Mehigan SC & Ms L Coleman
Third Defendant	:	Mr C Bova SC, Mr T O'Brien & Ms M Parker
Fourth Defendant	:	Mr D Delany
Fifth Defendant	:	Mr D Delany
Sixth Defendant	:	No appearance
Seventh Defendant	:	Ms K Lindeman

Solicitors:

First Plaintiff	:	Taylor & Taylor Lawyers Pty Ltd
Second Plaintiffs	:	Taylor & Taylor Lawyers Pty Ltd
First Defendant	:	Corrs Chambers Westgarth
Second Defendant	:	Clayton Utz
Third Defendant	:	Corrs Chambers Westgarth
Fourth Defendant	:	Yeldham Price O'Brien Lusk
Fifth Defendant	:	Yeldham Price O'Brien Lusk
Sixth Defendant	:	Deutsch Miller
Seventh Defendant	:	Dentons Australia

Counterclaim

Counsel:

First Plaintiff by Counterclaim	:	Mr D Delany
Second Plaintiff by Counterclaim	:	Mr D Delany
First Defendant by Counterclaim	:	No appearance
Second Defendant by Counterclaim	:	Mr C Bova SC, Mr T O'Brien & Ms M Parker
Third Defendant by Counterclaim	:	Mr C Bova SC, Mr T O'Brien & Ms M Parker
Fourth Defendant by Counterclaim	:	Mr C Bova SC, Mr T O'Brien & Ms M Parker
Fifth Defendant by Counterclaim	:	Mr C Bova SC, Mr T O'Brien & Ms M Parker
Sixth Defendant by Counterclaim	:	Mr C Bova SC, Mr T O'Brien & Ms M Parker
Seventh Defendant by Counterclaim	:	Mr C Bova SC, Mr T O'Brien & Ms M Parker
Eighth Defendant by Counterclaim	:	No appearance
Ninth Defendant by Counterclaim	:	No appearance
Tenth Defendant by Counterclaim	:	Ms K Lindeman
Eleventh Defendant by Counterclaim	:	No appearance
Twelfth Defendant by Counterclaim	:	Mr C Bova SC, Mr T O'Brien & Ms M Parker
Thirteenth Defendant by Counterclaim	:	Mr C Bova SC, Mr T O'Brien & Ms M Parker
Fourteenth Defendant by Counterclaim	:	No appearance
Fifteenth Defendant by Counterclaim	:	Mr C Bova SC, Mr T O'Brien & Ms M Parker
Sixteenth Defendant by Counterclaim	:	Ms K Stern SC, Mr T Mehigan SC & Ms L Coleman
Seventeenth Defendant by Counterclaim	:	Ms K R Lendich SC & Mr S Taylor
Eighteenth Defendants by Counterclaim	:	Ms K R Lendich SC & Mr S Taylor
Third Party	:	Ms C Wren

Solicitors:

First Plaintiff by Counterclaim	:	Yeldham Price O'Brien Lusk
Second Plaintiff by Counterclaim	:	Yeldham Price O'Brien Lusk
First Defendant by Counterclaim	:
Second Defendant by Counterclaim	:	Corrs Chambers Westgarth
Third Defendant by Counterclaim	:	Corrs Chambers Westgarth
Fourth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Fifth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Sixth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Seventh Defendant by Counterclaim	:	Corrs Chambers Westgarth
Eighth Defendant by Counterclaim	:	Speed & Stracey Lawyers
Ninth Defendant by Counterclaim	:	Deutsch Miller
Tenth Defendant by Counterclaim	:	Dentons Australia
Eleventh Defendant by Counterclaim	:	No appearance
Twelfth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Thirteenth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Fourteenth Defendant by Counterclaim	:	No appearance
Fifteenth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Sixteenth Defendant by Counterclaim	:	Clayton Utz
Seventeenth Defendant by Counterclaim	:	Taylor & Taylor Lawyers Pty Ltd
Eighteenth Defendants by Counterclaim	:	Taylor & Taylor Lawyers Pty Ltd
Third Party	:	Allens

Case(s) referred to in decision(s):

DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97
Grimes Holdings Pty Ltd v Sceghi, unreported; SCt of WA (White J); Library No 930453; 20 August 1993
Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S)
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141
House v The King [1936] HCA 40; (1936) 55 CLR 499
Martincic v Marusco [2016] WASCA 133
Michael Wilson & Partners Ltd v Sinclair [2017] EWCA Civ 3; (2017) 4 All ER 216
Ramsay v Pigram (1968) 118 CLR 271
Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403
TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533
Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2022] SASCA 107
Vale SA v Steinmetz [2021] EWCA Civ 1087
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 10] [2018] WASC 407
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 13] [2021] WASC 214
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 14] [2021] WASC 268
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 15] [2021] WASC 307
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 7] [2016] WASC 305

Table of Contents

1.0 The applications to adjourn the trial, alternatively stay the proceedings

2.0 Legal principles – applications for adjournment of a trial and stay of proceedings

3.0 Background

3.1 The prior stay and adjournment applications and relevant events leading to the trial being listed for hearing to commence on 12 June 2023

3.2 The Rhodes Arbitration

4.0 HPPL's grounds to adjourn the trial or alternatively to stay the Curial Proceedings until an award in the Martin Arbitration is issued

4.1 The effect of the stay and referral of matters in the Rhodes proceedings to arbitration

4.2 Issue estoppels may arise

4.3 The Hope Downs Deed – Uncertainty as to the tender of the deed absent an award in the Martin Arbitration

4.4 Other issues

5.0 The prior stay applications heard by the Court of Appeal in the First Stay Appeal in November 2019 and the re-exercise of general discretion to stay proceedings in July 2020

5.1 The stay applications made in 2018 at first instance

5.2 The First Stay Appeal - The substantive appeal

5.3 The First Stay Appeal ‑ The re‑exercise of the general discretion whether to grant a stay of the primary Curial Proceedings by the Court of Appeal in July 2020 (supplementary decision)

5.3 Second Stay Appeal ‑ The referral to arbitration particular matters raised by the Rhodes reply, and the appeal against the dismissal of the HPPL parties application to strike out parts of Bianca and John's defence in the HPPL proceedings

5.3.1 The parts of the Rhodes reply referred to arbitration ‑ Rhodes' appeal

5.3.2 HPPL's appeal against the decision dismissing HPPL's application to strike out the Non-Responsive Matters in Bianca and John's amended defence in the WPPL proceedings

6.0 Consideration of the HPPL parties contentions

6.1 Is there a real risk of an issue estoppel arising that would bind the parties in the arbitral proceedings?

6.2 What could potentially be the result of the Martin Arbitration?

6.3 Are the potential findings in the Martin Arbitration uncertain, and what could be the potential effect, if any, on the findings made in the Martin Arbitration on the disputes between the plaintiffs and Bianca and John?

6.4 Does the fact that part of the controversies between Bianca and John, as raised in Rhodes' reply, have been stayed and referred to arbitration weigh in favour of an adjournment or stay?

6.5 The risk of inconsistent decisions between the Curial Proceedings and the Martin Arbitration

6.6 The issues raised by the HPPL parties stated intention to tender the Hope Downs Deed in the Curial Proceedings in the event they are successful in the Martin Arbitration

6.7 What could be the potential effect on the Curial Proceedings if the Martin Arbitration finds it has no jurisdiction to determine the disputes between the HPPL parties and the other parties to the Hope Downs Deed?

6.8 The length of a stay or an adjournment sought by HPPL parties

6.9 Other issues raised by the HPPL parties ‑ confidentiality

7.0 The prejudice that WPPL and Rhodes claim they will suffer if the adjournment or stay is granted

8.0 Should the Curial Proceedings be adjourned or stayed?

SMITH J:

1.0 The applications to adjourn the trial, alternatively stay the proceedings

Hancock Prospecting Pty Ltd (HPPL) and Hope Downs Iron Ore Pty Ltd (HDIO), the first defendant and second defendant in CIV 3041 of 2010 and CIV 2617 of 2012 (WPPL proceedings) and the first and third defendants in CIV 2737 of 2013 (Rhodes proceedings) (HPPL parties) by chamber summonses dated 21 October 2022, seek that the trial of the WPPL proceedings and the Rhodes proceedings (Curial Proceedings) scheduled to commence on 12 June 2023:
(a)temporarily stayed to allow for the making of the arbitral award in a separate dispute before Hon Wayne Martin AC KC, Hon Dr Kevin Lindgren AM KC and Dr Michael Hwang SC (the Martin Arbitration) involving HPPL, HDIO and Bianca Rinehart and John Hancock (Bianca and John) who are the third and fourth defendants in the WPPL proceedings and the fourth and fifth defendants in the Rhodes proceedings; and/or
(b)be adjourned and provisionally listed to commence on a date in the last quarter of 2024, or alternatively for a shorter period no sooner than the end of 2023.
The Martin Arbitration concerns, among other matters, the validity and effect of a deed known as the Hope Downs Deed entered into by a number of persons, including HPPL, Georgina Rinehart (Gina), and Gina's children, Bianca and her siblings, Hope Welker (Hope) and Ginia Rinehart (Ginia), which deed was adopted by John (collectively Children).
Bianca and John neither consent to, nor oppose the orders sought by the HPPL parties, but nor do they concede, or accept the contentions that the HPPL parties assert in their submissions in support of their application. Bianca and John maintain the position that the HPPL parties cannot tender or rely upon the Hope Downs Deed in the WPPL proceedings or the Rhodes proceedings.
Wright Prospecting Pty Ltd (WPPL), the plaintiff in the WPPL proceedings and the second defendant in the Rhodes proceedings, and DFD Rhodes Pty Ltd, the plaintiff in the Rhodes proceedings, oppose the application for a discretionary stay or adjournment of the trial, and submit that:
(a)there is no proper reason to delay the trial of the proceedings pending the final determination of the Martin Arbitration; and
(b)when all relevant factors are weighed, the relevant factors do not favour either a stay or an adjournment of the trial.

The remaining defendants and the first third party in both proceedings, Hamersley WA Pty Ltd (Hamersley), appeared at the hearing of the application, but none of these parties made any submission in support of, nor in opposition to, the application.

2.0 Legal principles – applications for adjournment of a trial and stay of proceedings

Order 34 r 4 of the Rules of the Supreme Court 1971 (WA) governs applications for an adjournment.
The general principles governing applications to adjourn a trial were considered by the Court of Appeal in Martincic v Marusco as follows:[1]
Order 34 r 4 of the Rules of the Supreme Court 1971 (WA) (Rules) empowered the primary judge to adjourn the trial to such time as he thought fit if he thought it 'expedient in the interests of justice to do so'. That rule is to be construed and applied so as best to ensure the attainment of the objectives referred to in O 1 r 4B(1) of the Rules. Those objectives include promoting the just determination of litigation, disposing efficiently of the business of the court, maximising the efficient use of available judicial resources and facilitating the timely disposal of business.
Also relevant to the exercise of the discretion to grant an adjournment is the requirement of O 1 r 4A that:
The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.
The discretion to grant or refuse an adjournment must also be exercised consistently with the obligation of the court to determine disputes in a manner which is procedurally fair. However, it is well established that this does not require that a party be given an unlimited opportunity to present a case or defence. What is required is that the parties are provided with a sufficient opportunity to present their cases. A party who is given a sufficient opportunity to present their case, and who fails to take advantage of that opportunity without reasonable cause, cannot complain that they have been denied procedural fairness because the court has declined to provide a further opportunity to do so.
In considering whether determination of litigation is just, regard must be had to the interest of other parties to the litigation and other litigants in other cases. Speed and efficiency, in the sense of minimum delay and expense, are aspects of the just resolution of proceedings. Considerations of speed and efficiency cannot detract from the requirement that a party to litigation be given sufficient opportunity to present their case. However, where a party has been given a sufficient opportunity to present their case, a decision about an adjournment to provide a further opportunity must take account of the injustice to the other parties which may follow from the delay, expense and disruption which results from a listed trial not proceeding.
[1] Martincic v Marusco [2016] WASCA 133 [44] ‑ [47] (footnotes omitted).
The principles that are to be applied when considering whether to grant a stay of court proceedings, where there are parallel arbitration proceedings, were summarised by Beech and Vaughan JJA in Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd.[2] These principles are set out in [75] of these reasons. In determining this application for a stay of the WPPL proceedings and the Rhodes proceedings, I have applied these principles.
[2] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S) [31] – [32].

3.0 Background

3.1 The prior stay and adjournment applications and relevant events leading to the trial being listed for hearing to commence on 12 June 2023

On 24 July 2015, Le Miere J listed the Curial Proceedings for a trial of 22 days duration to commence on 31 October 2016 (the 2016 trial).
On 22 August 2016, WPPL applied to join the third to sixth defendants to the WPPL proceedings (the Children). That application was heard on 14 September 2016 and joinder orders were made by Le Miere J on 23 September 2016.[3] On 23 September 2016, the 2016 trial listed to commence on 31 October 2016 was vacated.
[3] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 7] [2016] WASC 305.
In late May 2018, HPPL made applications pursuant to s 8(1) of the Commercial Arbitration Act 2012 (WA), for orders referring certain matters in the joint defences of Bianca and John in the WPPL proceedings and the Rhodes proceedings, and otherwise a stay of the proceedings, pending the outcome of arbitration. The applications were bought in circumstances where some issues being pursued in the Federal Court by Bianca and John, in which they claimed they were entitled in equity to an interest in the Hope Down tenements and the East Angelas tenements (Tenements), were replicated in the litigation in the Curial Proceedings. Bianca and John had also filed counterclaims naming as defendants to the counterclaims the respondents to the Federal Court proceedings and claimed relief which included a declaration that HDIO held the Tenements on constructive trust for the Children. Bianca and John's relief was also sought as against WPPL and the Rhodes parties to the exclusion of their claims for proprietary relief in respect of the Tenements.[4]
[4] Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141 [10] ‑ [18].
Because applications were made by the HPPL parties in May 2018 to stay Bianca and John's counterclaims, WPPL and HDIO did not file defences to the counterclaims.
On 21 December 2018, Le Miere J delivered reasons on the substantive stay applications, and stayed the proceedings in respect of Bianca and John's counterclaims only.[5] Relevantly, there was no corresponding stay of the proceedings and no referral to arbitration in respect of Bianca and John's defences which repeated the allegations and claims made by Bianca and John in their counterclaims.[6] The HPPL parties filed four separate substantive appeals. The Court of Appeal heard the appeals on 18 and 19 November 2019, and delivered their judgment on each of the appeals on 19 May 2020.[7] In these reasons, this judgment is referred to as the First Stay Appeal and is dealt with in 5.1 to 5.3 of these reasons.
[5] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd[No 10] [2018] WASC 407.
[6] Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141 [24].
[7] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77.
On 30 March 2021, Le Miere J reserved 60 days for the trial of the Curial Proceedings to commence on 19 April 2022.
By early 2021, the trial of the Curial Proceedings had not been formally listed.
In mid-2021, Le Miere J heard and determined a further five interlocutory applications which resulted in five separate appeals to the Court of Appeal.[8] The first of these appeals was an appeal by Rhodes from a decision to stay part of the Rhodes Amended Reply to Bianca and John's defences pursuant to s 8(1) of the Commercial Arbitration Act.[9] Two appeals were instituted by the HPPL parties against orders that HPPL give categories of discovery to Bianca and John in both proceedings.[10] The HPPL parties also instituted an appeal against orders dismissing an application to strike out matters which were termed non‑responsive matters pleaded in Bianca and John's defence in the WPPL proceedings.[11] HPPL instituted a fourth appeal against a refusal to order a separate trial of various matters identified by HPPL.[12]
[8] These appeals were from the decisions in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 13] [2021] WASC 214; Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 14] [2021] WASC 268 ; Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 15] [2021] WASC 307.
[9] CACV 60 of 2021.
[10] CACV 77 of 2021 and CACV 78 of 2021.
[11] CACV 61 of 2021.
[12] CACV 90 of 2021.
On 15 October 2021, WPPL filed an application for consolidation and expedition of all five appeals.
On 28 October 2021, after hearing an application for consolidation and expedition of the appeals, Buss P and Mazza JA made orders that the five appeals be heard together on 15, 16 and 17 March 2022.
On 10 November 2021, a directions hearing was convened to consider whether the Curial Proceedings would be ready for trial if the trial was to be formally listed on the dates reserved in April 2022. At that time, in accordance with the orders for discovery between the co‑defendants, HPPL and Bianca and John (the subject of two of the appeals which had yet to be heard by the Court of Appeal) had been listed for a two day hearing in late November 2021 in respect of the dispute as to a large number of specific categories of discovery.
At a directions hearing on 10 November 2021, submissions were made about proposed trial programming orders for a trial to commence in April 2022. However, it was clearly apparent that there would be insufficient time for the Court of Appeal to deliver their decision on each of the five appeals to enable the parties to be ready for trial in April 2022. In addition, at that time, there were other matters that were unrelated to the issues raised in the appeals that needed to be attended to before the matters could proceed to trial which included further general discovery by HPPL, amendments to pleadings, the finalisation of expert reports, expert conclaves, and the filing of witness statements. It was also clear that the trial could not be listed to proceed later in 2022 because the Martin Arbitration was listed to commence in August 2022 and conclude in November 2022, which arbitration would occupy a considerable amount of the resources of the HPPL parties and Bianca and John, including the time of counsel, and those instructing counsel.
At the conclusion of the directions hearing on 10 November 2021, the HPPL parties were ordered to file their foreshadowed amended defence. A further directions hearing was scheduled for 14 December 2021 to set a date for trial in 2023 and to make trial programming orders.
On 14 December 2021, orders were made to list the Curial Proceedings for a 60 day trial commencing on 12 June 2023, and to sit each week on Monday to Thursday, with a further four weeks reserved immediately following that period.
Trial programming orders were also made on 14 December 2021.
The Court of Appeal delivered its decision on each of the five appeals on 2 August 2022.[13] Each of the HPPL appeals were dismissed. The Rhodes appeal against the stay of particular paragraphs of their reply to Bianca and John's defence was allowed in part. Although the judgment disposed of all five of the appeals, in these reasons the Court of Appeal decision will be referred to as the Second Stay Appeal. Relevant observations and findings made by the Court of Appeal in the Second Stay Appeal are considered below in 5.3 of these reasons.
[13] DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97.
Although the time for compliance of some of the programming orders for trial made on 14 December 2021 have been extended, by the time of the hearing of this application, preparation for the trial is well advanced by all parties and it appears that the parties should be ready to commence the trial on 12 June 2023.

3.2 The Rhodes Arbitration

Following the delivery of judgment by Le Miere J granting a stay of certain paragraphs of Rhodes' Amended Reply to the defence of Bianca and John pursuant to s 8 of the Commercial Arbitration Act,[14] which decision was the subject of an unsuccessful appeal by Rhodes in CACV 60 of 2021,[15] the Rhodes parties wrote to the chair of the Martin Arbitration and to the parties in the Martin Arbitration. The Rhodes parties in their letter sought to participate in the Martin Arbitration, or to establish a second arbitration, in which one of the Martin arbitrators would act as arbitrator so that the arbitration could be consolidated or conducted together with the Martin Arbitration.[16]
[14] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 13] [2021] WASC 214.
[15] DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97.
[16] Affidavit of Godfrey Edward Taylor sworn 15 November 2022, par 39.1.
The parties to the Martin Arbitration did not agree. On 31 January 2022, the Rhodes parties provided a notice of dispute to Bianca and John and their siblings, commencing the Rhodes Arbitration. There was no agreement about the appointment of an arbitrator. On 9 March 2022, the Rhodes parties nominated the Honourable Neil McKerracher KC as arbitrator.[17]
[17] Affidavit of Mark Anthony Wilkes affirmed 21 October 2022, Annexure MAW ‑ 10, 51.
The Rhodes Arbitration has not progressed. The position stated by the solicitors for each of the HPPL parties and Bianca and John is that they do not accept that the Rhodes Arbitration is valid or on foot, and they have maintained that position to the present time.[18]

4.0 HPPL's grounds to adjourn the trial or alternatively to stay the Curial Proceedings until an award in the Martin Arbitration is issued

[18] Affidavit of Godfrey Edward Taylor sworn 15 November 2022, par 42.

The HPPL parties claim there has been a material change in circumstances since the Court of Appeal dismissed the First Stay Appeal in July 2020 in two fundamental respects.
The first material change is said to be that the Martin Arbitration ought to have been completed by now (4 November 2022) but has been stood over for final oral submissions in March 2023.[19] The HPPL parties say there is a likelihood that an award in the Martin Arbitration will be delivered by the end of 2023 or by March 2024. Consequently, if the trial of the Curial Proceedings is to proceed on 12 June 2023, the evidence and submissions in the Martin Arbitration will be complete but an award will not have been delivered. The award might be handed down during the course of the trial or after the evidence has closed, submissions have been put, and judgment is reserved.
[19] ts 2807, 2947 and 2964.
The second material change is said to be that since Le Miere J and the Court of Appeal determined in July 2020 not to grant a discretionary stay, part of the Rhodes proceedings has been stayed and referred to arbitration.
The HPPL parties claim that both of these material changes militate strongly in favour of the exercise of the court's discretion to stay or adjourn the trial listed to commence on 12 June 2023.
The HPPL parties argue that if the Curial Proceedings are stayed or are adjourned until after an award in the Martin Arbitration is issued, a number of problems and prejudices will be avoided in the trial of the Curial Proceedings.
The HPPL parties argue it is an inescapable fact that neither WPPL nor Rhodes can be granted the final relief they seek without first awaiting the resolution of certain disputes between the HPPL parties and Bianca and John in the Martin Arbitration. In particular, they claim a trial on all non‑arbitrable issues will invariably be affected by the determination of the Martin Arbitration. They claim WPPL and Rhodes must necessarily have to await the outcome of the Martin Arbitration before their claims can be finally determined.
The HPPL parties put forward five arguments that they claim favour a grant of the orders they seek which can be summarised as follows.

4.1 The effect of the stay and referral of matters in the Rhodes proceedings to arbitration

First, the HPPL parties point out that parts of the Rhodes proceedings have been stayed and referred to arbitration and the effect of the stay is that the court will not be able to finally determine Rhodes and WPPL's claims until, at the very least, the question of Bianca and John's claimed interest in the Tenements is resolved in the Martin Arbitration.
The HPPL parties point out that Le Miere J stayed part of, and referred to arbitration, the Acquisition Matter and the Debt Reconstruction Matter as between Bianca and John and Rhodes which stay and referral was modified by the Court of Appeal in the Second Stay Appeal.[20] The matters the subject of the stay and referral to arbitration are also raised in the WPPL proceedings as between Bianca and John and WPPL, but have not been stayed or referred to arbitration. These matters are also matters referred to arbitration in the Martin Arbitration as between Bianca and John and the HPPL parties.
[20] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2022] WASCA 97.
The 'Acquisition Matter' and the 'Debt Reconstruction Matter' can be broadly described as follows:
(i)the Acquisition Matter is the capacity in which Hancock Mining Ltd and Hancock Resources Ltd acquired the Tenements;[21]
(ii)Bianca and John claim the HPPL parties hold the exploration licenses on the Tenements on constructive trust for the Children. The Debt Reconstruction Matter is the claim by Bianca and John (in their defence in both the WPPL proceedings and the Rhodes proceedings), that through a series of transactions or events between 1992 and 1996, HPPL and subsequently HDIO came to hold the legal interest in the Tenements as part of a dishonest and fraudulent design on the part of Gina in breach of her fiduciary duties under a trust in favour of the Children (Hancock Family Memorial Foundation Ltd).
[21] Hancock Mining Ltd is defined as HML and Hancock Resources Ltd is defined in the pleadings as HRL.
The HPPL parties properly point out (and it is not in dispute) that the dispute between the HPPL parties and Bianca and John as to who, as between them, has a better claim to the Tenements is the subject of the Martin Arbitration and the court cannot wade into that dispute because to do so would be contrary to s 8 of the Commercial Arbitration Act.
The HPPL parties claim that the court is now left in the odd situation where it can determine, at least in part, Bianca and John's defence to the WPPL claim (in respect of the Acquisition Matter), but where it is replicated in the Rhodes claim, the court cannot determine that part of the defence because it has been referred to arbitration.
Because of the nature of Rhodes' reply to Bianca and John's proprietary claims in their amended defence, by reference to the capacity in which Hancock Mining Ltd and Hancock Resources Ltd acquired the Tenements (for themselves or for HPPL) and the nature and effect of the Debt Reconstruction, these were found by the Court of Appeal in the Second Stay Appeal to be arbitral matters which were not confined to Rhodes' reply, but it was the controversy constituted by these matters (pleaded in Bianca and John's defence and Rhodes' response to those matters in its Amended Reply).[22]
[22] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2022] WASCA 97 [150], [165] ‑ [171] (Quinlan CJ & Beech JA).
The HPPL parties contend that all the controversies between Bianca and John and Rhodes depend upon the determination of the matters which have been referred to arbitration, so that the court cannot make a final determination in the Rhodes proceedings until either the award in the Martin Arbitration in effect renders the Rhodes Arbitration moot, or the Rhodes Arbitration is determined and an award is issued by the Tribunal.
Second, the HPPL parties contend that it is not practicable to determine the joint claims of Rhodes and WPPL because some of those joint claims of Rhodes have been stayed and referred to arbitration.
This problem is said to arise because if the matters proceed to trial before the award is delivered in the Martin Arbitration, the court will have to determine the Acquisition Matter and the Debt Reconstruction Matter in the WPPL proceedings, yet it could not largely determine the very same issues in the Rhodes proceedings because they have been referred to arbitration. That would be so, despite proceedings being heard together with evidence in one being evidence in the other. The undesirability of that course is said to be patent, potentially resulting in a risk of inconsistent findings and outcomes in proceedings that have been heard and determined together.

In addition, the HPPL parties claim Rhodes claims a competing equity in the Tenements to that sought by WPPL.
The HPPL parties claim the competition between those equities could not be finally determined until the Rhodes claim to an equity has been adjudicated. Thus, it is said to necessarily follow that final relief for WPPL must await the determination of the Rhodes Arbitration, unless that arbitration is rendered moot by the Martin Arbitration, which HPPL claims quite possibly will be the case.

4.2 Issue estoppels may arise

Third, if the Curial Proceedings proceed to trial and a decision is delivered prior to the Martin Arbitration, the HPPL parties claim they may face the prejudice of issue estoppels arising between it and Bianca and John concerning arbitral matters.

4.3 The Hope Downs Deed – Uncertainty as to the tender of the deed absent an award in the Martin Arbitration

Fourth, if the Curial Proceedings proceed to trial before a decision is delivered in the Martin Arbitration, the HPPL parties argue that the court will have to grapple with the issues arising from HPPL seeking to tender the Hope Downs Deed. If the deed cannot be tendered, the HPPL parties may suffer prejudice and, if it can be tendered, the Curial Proceedings will need to await the arbitral determination of the challenge to the Hope Downs Deed by Bianca and John.

4.4 Other issues

Fifth, if the Curial Proceedings proceed to trial and a decision is delivered in the Martin Arbitration, either during or after the decision in the Curial Proceedings is reserved, a number of complications and prejudices are likely to occur which will necessarily impact the Curial Proceedings.
The HPPL parties claim that the outcome of the Martin Arbitration is likely to reduce the issues remaining for determination in the WPPL and Rhodes proceedings, and consequently shorten and simplify the trial in the Curial Proceedings. In particular, the HPPL parties contend that:
(a)if the Tribunal in the Martin Arbitration finds that Bianca and John do not have any proprietary interest in the Tenements, they will not be a necessary party in the WPPL proceedings and their claims and contentions (including part of the Acquisition Matter and Debt Reconstruction Matter) would not need to be resolved by this court;
(b)if the Martin Arbitration finds that the relevant deeds of settlement were binding on Bianca and John, in particular the Hope Downs Deed, and made orders restraining them from continuing their claims, the HPPL parties may seek to enforce those orders in this court precluding Bianca and John's defence from being run at all;
(c)Bianca and John would be bound by the finding in the Martin Arbitration and an issue estoppel may arise as it is likely to be found that it is a clear abuse of process for them to argue that they have any interest in the Tenements;
(d)if (a), (b) or (c) is the result of the award in the Martin Arbitration, the consequence will be that the Acquisition Matter in the WPPL proceedings will become confined to the question of whether Hancock Mining Ltd and Hancock Resources Ltd held the Tenements on trust for the Partnership for HPPL to be held subject to the rights and interests of the Partnership, or trust for HPPL alone. The Debt Reconstruction Matter will fall away entirely. This will mean, on HPPL's estimate, that the trial in the Curial Proceedings could take as little as five weeks (as opposed to the 15 ‑ 19 weeks for which it is presently set down), as well as removing the need to review and hear submissions upon thousands of documents.
Further, if the HPPL parties succeed in the Martin Arbitration on the validity and effect of certain settlement deeds that Bianca and John have entered into, awaiting that determination first will prevent Bianca and John from ventilating otherwise confidential matters in open court, in breach of those deeds, and to the great prejudice of HPPL and other persons who are not parties to the Curial Proceedings, but against whom Bianca and John are likely to make a number of disparaging allegations.
In addition, the HPPL parties claim a number of problems may arise for the court were it to proceed with the trial, and any judgment, while an award is pending in the Martin Arbitration. These include:
(a)the inevitable delay and further disputes that will arise once the award is issued, which runs the risk of issues being left unresolved beyond the time that I am scheduled to retire in June 2024; and
(b)how the court is possibly to resolve certain issues arising in disputes between non‑parties to arbitration agreements, such as HPPL's reliance on deeds of release in its dispute with WPPL when Bianca and John contend in the arbitration for such deeds to be invalid, or Bianca and John's reliance on allegations concerning the so‑called 'Debt Reconstruction' in their dispute with WPPL when HPPL disputes those allegations in arbitration.

5.0 The prior stay applications heard by the Court of Appeal in the First Stay Appeal in November 2019 and the re-exercise of general discretion to stay proceedings in July 2020

5.1 The stay applications made in 2018 at first instance

On 21 December 2018, Le Miere J refused applications by the HPPL parties and others to stay the defences of Bianca and John in the Curial Proceedings, which applications had been made on grounds that included that the defences of Bianca and John must be the subject of a mandatory stay pursuant to s 8(1) of the Commercial Arbitration Act, and the matter the subject of those defences should be referred to an arbitration. Alternatively, the HPPL parties claimed that the court should exercise its general discretion to stay the whole of the Curial Proceedings.[23]

5.2 The First Stay Appeal - The substantive appeal

[23] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 10] [2018] WASC 407.

The HPPL parties and the others who had joined in the applications before Le Miere J appealed the decision to refuse the applications to stay the defences of Bianca and John and the whole of the Curial Proceedings.
On 19 May 2020, the Court of Appeal published its reasons on the appeals. The court unanimously dismissed the appeals and cross‑appeals against Le Miere J's decision that:[24]
(a)s 8 of the Commercial Arbitration Act required a stay of Bianca and John's counterclaims (against the parties to the Hope Downs Deed but not WPPL and Rhodes) in the primary proceedings; and
(b)s 8 did not require a stay of Bianca and John's defences in the primary proceedings or of the proceedings generally.
[24] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S) [2] (Quinlan CJ).
In respect of the grounds of appeal which went to these issues, Quinlan CJ delivered the unanimous reasons of the court.[25]
[25] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 [475] (Beech & Vaughan JJA).
The majority of the court, Beech and Vaughan JJA, however, found that Le Miere J had erred, in the House v The King[26] sense, in the exercise of his general discretion whether to grant a stay of the Curial Proceedings pending the resolution of the arbitration between the parties to the Hope Downs Deed.
[26] House v The King [1936] HCA 40; (1936) 55 CLR 499.
The consequence of the decision of the majority of the Court of Appeal in the First Stay Appeal was that there was appealable error and, therefore, the discretion as to whether to grant a stay of the Curial Proceedings fell to be re‑exercised in light of the circumstances then prevailing as at 2 July 2020, including the progress of the Martin Arbitration proceedings.[27]
[27] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S) [3] (Quinlan CJ).
The relevant summary of the claims pleaded by Bianca and John in their defences and counterclaims in the WPPL proceedings, which are relevant to the disposition of the application presently before the court, were set out in the judgment of Quinlan CJ.
Quinlan CJ summarised the defences of Bianca and John as follows:[28]
[28] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 [79] ‑ [86] (footnotes omitted).
Mr Hancock and Ms Rinehart's defences in the primary proceedings diverge from those of HPPL at an earlier stage in the analysis. Unlike HPPL, Mr Hancock and Ms Rinehart deny that the assets of HML or HRL were ever held on trust for HPPL. Rather, Mr Hancock and Ms Rinehart maintain that the Tenements were, and are, held on trust for the Children.
It is worth setting out part of those defences in more detail. In that regard, I shall refer to the defence in the WPPL proceedings. The pleadings in the DFD Rhodes proceedings are to the same effect.
Mr Hancock and Ms Rinehart plead that:
3A.3… [The Children] are entitled in equity to an interest in the tenements in respect of which WPPL claims in these proceedings to be entitled in equity to an interest, for the reasons set out in their statement of claim in Federal Court of Australia proceedings NSD1124/2014 (Federal Court proceedings) and for the reasons set out in their counterclaim below.
In addition, Mr Hancock and Ms Rinehart:
4.3deny that the issued shares in HML were held by HFMF on trust for HPPL;
4.4say that the 1995 Deed relied upon by the plaintiff was part of a fraudulent and dishonest design of [Mrs Rinehart], in breach of her duty as trustee to the HFMF Trust, with the knowledge and participation of HPPL, as pleaded in sections 10, 11 and 15 of their Statement of Claim in the Federal Court proceedings, and of their counterclaim.
A similar plea is made in relation to the shares in HRL.
The 1995 Deed referred to in paragraph [4.4] is a deed between HPPL, HFMF and HRL, by reference to which WPPL pleads that the shares in HML and HRL were held by HFMF on trust for HPPL.
Mr Hancock and Ms Rinehart's defences go on to plead that the various transfers in title to the Tenements have been impressed with a trust in favour of the Children, as the beneficiaries of the HFMF Trust. Mr Hancock and Ms Rinehart deny that the Partnership or WPPL has, or had at the relevant times, any interest in the pleaded tenements.
In addition to these defences based upon their asserted ownership of the Tenements, Mr Hancock and Ms Rinehart also plead a number of other defences to the claims, including laches and acquiescence, unclean hands and limitation defences. Those defences include, at least in part, pleadings as to the Children's ownership of the Tenements.
Quinlan CJ summarised the counterclaims of Bianca and John as follows:[29]
Mr Hancock and Ms Rinehart's counterclaims are directed towards similar conclusions as their defences, namely that the Hope Downs Tenements are, ultimately, held on trust for the Children, as a consequence of what they allege are Mrs Rinehart's breaches of fiduciary duty.
The counterclaims are not limited to issues concerning the Hope Downs Tenements, but extend to claims in relation to what are referred to as the Roy Hill Tenements (owned by Roy Hill Iron Ore Pty Ltd (RHIO)) and the Mulga Downs Tenement (owned by Mulga Downs Iron Ore Pty Ltd (MDIO) and Mulga Downs Investments Pty Ltd (Mulga Downs Investments)). They also make claims in relation to Mrs Rinehart's shares in HPPL.
The counterclaims also challenge the validity of the Hope Downs Deed itself, on the basis that Mr Hancock and Ms Rinehart's entry into the Deed was procured by fraud, misleading and deceptive conduct, duress and unconscionable conduct.
The counterclaims are brought against all parties to the Hope Downs Deed, together with a number of non-parties (including HDIO, RHIO, MDIO and Mulga Downs Investments), and seek a variety of forms of relief, including damages, injunctions and declarations.
The counterclaims were, of course, stayed by the learned primary judge, a matter challenged by Mr Hancock and Ms Rinehart in their cross‑appeal (Cross-appeal Ground 1). That argument falls to be considered in the context of the first broad issue in the appeals: the scope of any mandatory stay required by the Commercial Arbitration Act.
[29] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 [90] ‑ [94] (footnote omitted).
It is clear from the matters pleaded by Bianca and John in their counterclaims, their claims were not limited to the Tenements in dispute by WPPL and Rhodes. Their counterclaims extended to other tenements and Gina's shares in HPPL.
Of importance to the disposition of this application, the Court of Appeal observed that s 8 of the Commercial Arbitration Act does not apply to claims against strangers. In particular, Quinlan CJ (with whom Beech and Vaughan JJA agreed) relevantly found in respect of the position of WPPL (and Rhodes) in respect of the matters pleaded by Bianca and John in their defences:[30]
As can be seen, the authorities establish that a 'matter which is the subject of an arbitration agreement' (namely a dispute between the parties to an agreement) may arise in a court proceeding, notwithstanding that those proceedings also involve disputes with parties that are not bound by the arbitration agreement. At the same time, it is only the former dispute (the 'matter') upon which s 8(1) of the Commercial Arbitration Act operates. The issues involving parties not bound by the arbitration agreement are, on this view, not affected by s 8(1).
[30] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 [171].
Quinlan CJ went on to find that the Hope Downs Deed, when objectively construed, manifested an intention that any dispute, as between the parties to the deed, under the deed, must be dealt with by way of confidential arbitration, regardless of whether that dispute is connected with, or falls within, a broader dispute involving strangers to the deed.[31]
[31] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 [186].
When considering whether the Commercial Arbitration Act mandated a stay of Bianca and John's defences, Quinlan CJ considered an argument that is in effect put by senior counsel for HPPL in support of this application, and that is a submission that there is a single controversy in relation to the ownership of the Tenements.[32] I return to this submission below in 6.3 of these reasons.
[32] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 [226].
HPPL contended in the First Stay Appeal that the controversy for determination in Bianca and John's defences was the same controversy as in the counterclaims and, therefore, should be regarded as raising the same 'matter' under s 8 of the Commercial Arbitration Act.
This submission was rejected. Quinlan CJ found that underlying HPPL's (and Gina's) submissions was an approach that focused solely on the 'subject matter' of the dispute, constituting the controversy without adequate regard to (and separated from) the identification of the parties between whom there is a dispute about that subject matter. His Honour then went on to find:[33]
By submitting, for example, that the 'claims to the Hope Downs tenements made by Ms Rinehart and Mr Hancock in their defence [is] a matter the subject of the arbitration in cl 20 of the Hope Downs Deed', and that HPPL is entitled to refer that matter to arbitration, HPPL can only be referring to those claims (i.e. factual and legal issues in the defences) in the abstract, and not by reference to the particular parties in relation to which those issues are joined.
In this regard it may be noted that HPPL and Mrs Rinehart do not go so far as to submit (in terms) that the 'matter' includes the disputes inter se between Mr Hancock and Ms Rinehart, on one hand, and WPPL and DFD Rhodes, on the other. A submission in those terms would, of course, confront the immediate problem that any dispute to which WPPL or DFD Rhodes is a party cannot be referred to arbitration.
Nevertheless, the effect of HPPL and Mrs Rinehart's submissions is, necessarily, that the 'matter' to which s 8 applies is, or includes, Mr Hancock and Ms Rinehart's defences to the claims made by WPPL and DFD Rhodes and that the Act mandates a stay of those proceedings, to that extent.
[33] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 [235].
Consequently, his Honour went on to find that the matters in dispute in the defences of Bianca and John against WPPL and Rhodes were not matters which were subject to an arbitration agreement because the defences themselves are confined to disputes between Bianca and John, on one hand, and WPPL and Rhodes on the other.[34]
[34] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 [273].
His Honour summarised his findings in respect of mandatory stay grounds as follows:[35]
[35] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 [327].
In light of the foregoing:
(a)the claims made by Mr Hancock and Ms Rinehart in the Counterclaim, against the parties to the Deed (and those claiming under or through them) are a 'matter' within the meaning of s 8(1) of the Commercial Arbitration Act;
(b)those parties must be referred to arbitration and the counterclaims against those parties stayed pursuant to s 8(1);
(c)insofar as the counterclaims are brought against WPPL and DFD Rhodes, the claims in the counterclaims, against those parties, do not form part of the 'matter' for the purposes of s 8(1);
(d)the primary proceedings, brought by WPPL and DFD Rhodes, including Mr Hancock and Ms Rinehart's defences to those proceedings, are not a 'matter' within the meaning of s 8(1);
(e)section 8 did not require a mandatory stay of the primary proceedings, or the defences filed by Mr Hancock and Ms Rinehart; and
(f)section 5 does not prohibit the Court from determining the primary proceedings, including Mr Hancock and Ms Rinehart's defences.

5.3 The First Stay Appeal ‑ The re‑exercise of the general discretion whether to grant a stay of the primary Curial Proceedings by the Court of Appeal in July 2020 (supplementary decision)

Prior to considering whether to re‑exercise the general discretion to stay the proceedings, the parties had filed additional evidence, written submissions, and made further oral submissions.
In seeking to persuade the Court of Appeal to exercise the court's discretion in HPPL's favour by granting a stay of the Curial Proceedings, HPPL's submissions were framed by reference to the overlap of the issues in the proceedings and in the arbitration, and that the risk that resolution of those issues in the Curial Proceedings may give rise to an issue estoppel binding upon HPPL in the Martin Arbitration.[36]
[36] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S) [35] (Beech & Vaughan JJA).
In particular, HPPL submitted that if the Curial Proceedings were heard and determined prior to the conclusion of the Martin Arbitration, because Bianca and John's defences assert a current interest in the Tenements which are the subject of dispute in the Curial Proceedings, an issue estoppel may arise in the Martin Arbitration in relation to the question of, and for whose benefit, the tenements were required and are now held.
HPPL also argued that a stay of the Curial Proceedings until the Martin Arbitration is concluded would avoid the risk that the HPPL parties are prevented from relying upon the Hope Downs Deed and related deeds in the Curial Proceedings. HPPL submitted that, given the risk of issue estoppels it had identified, as a matter of fairness, it must be able to tender the Hope Downs Deed as evidence that Bianca and John's claims have been extinguished, as it says this deed is a complete answer to the claims as to the acquisition of the Tenements in dispute in the Curial Proceedings.
HPPL also claimed that granting a stay of the Curial Proceedings would allow the validity of the Hope Downs Deed to be determined first in the Martin Arbitration, which was likely to have the result that some issues in the Curial Proceedings would fall away. In particular, that Bianca and John will be precluded from agitating their defences in the Curial Proceedings if HPPL is able to tender and rely upon the releases in the Hope Downs Deed.

Beech and Vaughan JJA summarised the relevant authorities and principles to be applied as follows:[37]
[37] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S) [31] ‑ [32] (Beech &Vaughan JJA) (footnotes omitted).
(1)Relevant considerations to an application of this kind include:
•Which proceeding was commenced first.
•Whether the termination of one proceeding is likely to have a material effect on the other.
•The public interest.
•The undesirability of two courts competing to see which of them determines common facts first.
•Consideration of circumstances relating to witnesses.
•Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.
•The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.
•How far advanced the proceedings are in each court.
•The law should strive against permitting multiplicity of proceedings in relation to similar issues.
•Generally balancing the advantages and disadvantages to each party.
(2)Prima facie, where a plaintiff has properly commenced proceedings in court, it is entitled to prosecute those proceedings.
(3)There should be no prejudice to a plaintiff beyond that which the interests of justice are thought to justify.
(4)It has been said that the plaintiff's prima facie right to prosecute properly commenced proceedings is only displaced in rare and compelling circumstances. This has been taken to require a convincing case, so that where the relevant factors are evenly balanced, the discretion should be exercised against the grant of a stay.
(5)If the non‑arbitral claims in the curial proceedings are ancillary and less significant than the claims within the ambit of the arbitration clause, this favours the grant of a stay of the curial proceedings. So too if the outcome of claims covered by the arbitration clause would be determinative of many of the issues arising between the parties.
As is noted by Quinlan CJ in the appeal reasons, the parties did not criticise the primary judge's analysis of the authorities and summary of the principles bearing on the discretion whether to grant a stay. His Honour summarised the principles as follows:
(a)avoiding parallel proceedings that may lead to inconsistent findings or re‑litigation of common issues is an important consideration in deciding whether to grant a stay of proceedings which do not fall within the scope of an arbitration clause;
(b)the courts look to whether the claims which do not fall within the scope of the arbitration clause are 'subsidiary to', 'significantly less substantial, but overlapping with' or 'ancillary' to the claims that are covered by the arbitration clause when determining how to resolve the tension presented by the situation of overlapping court and arbitral proceedings;
(c)in exercising its discretion whether to grant a stay of court proceedings in the interests of sensible case management pending the resolution of the related arbitration, the court must take account of the legitimate interests of plaintiffs and the requirement that there should be no prejudice to plaintiffs beyond that which the interests of justice justify. The reasons for such restraint is the principle that a plaintiff is entitled to choose whom he wants to bring proceedings against and where;
(d)the court must balance the plaintiff's right to choose whom he or she wants to sue, and where, against the inefficiency of parallel proceedings and the risk of inconsistent findings;
(e)the court should seek to ensure the efficient and fair resolution of the dispute as a whole; and
(f)the court must exercise its discretion having regard to all of the circumstances of the case and seek a resolution that most efficiently and expeditiously resolves the disputes between the parties consistent with the just determination of the disputes.
Beech and Vaughan JJA found the considerations that were against and militated strongly against the grant of a stay were as follows:[38]
[38] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S) [121] ‑ [134].
(a)the Curial Proceedings had been on foot for many years, and relate to events that occurred a long time ago. They had been commenced before Bianca and John instituted the Federal Court proceedings and on the plaintiffs' cases, each of them acquired an interest in the Tenements well before the Hope Downs Deed was entered into;
(b)WPPL and Rhodes have an obvious important interest in the claims being allowed to progress to a point where the Curial Proceedings are ready for trial and resolved as soon as possible thereafter. There is also public interest in not delaying the resolution of the dispute as to the beneficial ownership of very valuable mining tenements;
(c)there is no evident reason why the interests of WPPL and Rhodes should be adversely affected by the arbitration agreement that is found in the Hope Downs Deed;
(d)whether the outcome of the Martin Arbitration will identify the proper defendants to the claims made by WPPL and Rhodes is highly uncertain. In particular, it is no means certain that WPPL as a non‑party to the Hope Downs Deed would obtain the benefit of any extinguishment of any claim by Bianca and John that is affected by the releases in the Hope Downs Deed;
(e)WPPL and Rhodes will not be bound by the outcome of the arbitration. They will be free to, and to the extent necessary are likely to, challenge or contradict any findings in the Martin Arbitration that are adverse to their interests. This means there is a risk of duplication of resources and inconsistent decisions in any event;
(f)the delay arising from the grant of a stay will be both very substantial and highly uncertain, magnified by the prospect of curial challenges to an arbitral award, at least in relation to an award that is unfavourable to Bianca and John;
(g)the prejudice to WPPL and Rhodes arising from the delay caused by the grant of a stay would not be removed or substantially ameliorated by an award of interest or an account of profit;
(h)a refusal of a stay advances the goal in O 1, r 4A by the elimination of any lapse of time from initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues between the parties in the preparation of the case for trial; and
(i)if a stay is granted, practically speaking, WPPL and Rhodes will have no control and very little influence over the period for which their proceedings are then delayed. A stay would subject the plaintiffs to a stay of a duration that is substantial - measured in years not months; highly uncertain, and practically speaking beyond their control or influence and based upon an agreement, made between the defendants, to which they are strangers.
As to the factors in favour of a stay, Beech and Vaughan JJA found by far the weightiest factors in favour of a stay were those arising from the prospect of findings made in the proceedings giving rise to issue estoppels binding on the parties in the Martin Arbitration. Their Honours also found that without those factors they considered that the balance lay firmly and clearly in favour of refusal of a stay, but that the risk of binding issue estoppels made the position appreciably more complex.[39]
[39] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S) [135].
Beech and Vaughan JJA then went on to consider the scope and consequences of possible issue estoppels. Their Honours found that the precise extent of the risk of issue estoppels in relation to a number of questions was not clear, but there was a real risk that an issue estoppel might arise in relation to factual findings that are relevant to the question of whether Bianca and John have a current interest in the Tenements, beyond the question of beneficial ownership at acquisition.[40] Their Honours found that even if the potential issue estoppel is confined to the question of or for whose benefit the Tenements were acquired, the consequences were as follows:[41]
First, as identified in the appeal reasons [512] ‑ [513], it would undermine the court's referral of the parties to arbitration and undermine the parties' agreement to arbitrate in the Hope Downs Deed.
Secondly, a finding that the Hope Downs Tenements were acquired for the Children's benefit would, if binding in the arbitration, materially prejudice HPPL and benefit Bianca and John. That is because one element of Bianca and John's claim to set aside the Deed is their assertion as to the original acquisition of the Tenements ‑ they say the Tenements were acquired for their benefit. In Rinehart v Hancock Prospecting Pty Ltd, the High Court observed, in the context of the Federal Court proceedings, that Bianca and John's validity claims were not discrete from their substantive claims ‑ the validity claims incorporate and rely upon the substantive claims. That observation is equally true of Bianca and John's claim in the arbitral proceedings.
Further, we accept HPPL's submission that a binding finding as to for whose benefit the Tenements were acquired would give rise to a question of construction of the Hope Downs Deed, not otherwise arising, and that is capable of prejudicing HPPL.
For these reasons, we do not accept the stay opponents' submission that, if the Deed is the complete answer which HPPL contends it to be, that complete answer will be given effect in the arbitration, thereby ensuring there is no injustice to HPPL. A binding finding as to the original acquisition of the Tenements will assist Bianca and John in the arbitration and be to the prejudice of HPPL.
Thirdly, if, as may be the case, HPPL is precluded from relying on the Hope Downs Deed in the curial proceedings, but an issue estoppel nevertheless arose, that can fairly be said to give rise to injustice to HPPL. Part of the scheme of the Hope Downs Deed is to have all disputes arising under it, including disputes as to beneficial interests in the Tenements encompassed by the Deed, determined in one forum, namely arbitration. HPPL contends, and it is at least arguable, that the Deed is a complete answer to Bianca and John's claims that the Tenements were acquired and are held for their benefit. Yet, in this scenario, a finding as to for whose benefit the Tenements were acquired or are held could be made in the curial proceedings and be binding in the arbitration notwithstanding that HPPL has not been permitted to invoke the Deed in answer to Bianca and John's claims.
We do not accept the stay opponents' contention that, in this scenario, HPPL's inability to rely on the Hope Downs Deed would give rise to no injustice because it would be a consequence of its choice to invoke s 8 of the Act. In invoking s 8, HPPL sought to uphold the parties' bargain to submit their disputes to arbitration. We are unable to see why a consequence of that should be that HPPL loses the benefit of the acknowledgment, release and covenant not to sue in a context that is precisely where HPPL would wish to rely upon them ‑ namely, in answer to a claim that the Tenements were acquired for another party's benefit.
If an issue estoppel were found to arise, HPPL's substantive rights would be impaired in the manner and respects outlined above. As explained above, we recognise the weight to be given to the plaintiffs' interest in avoiding delay. Nevertheless, the impairment of substantive rights seems to us to attract considerable weight when balanced against the adverse consequences of delay.
[40] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S) [136] ‑ [140].
[41] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S) [142] ‑ [148] (footnotes omitted).
Beech and Vaughan JJA then went on to find that the risk that findings in the Curial Proceedings may give rise to an issue estoppel was highly uncertain.
First, their Honours found this was because the Curial Proceedings were unlikely to be heard before sometime in 2022, and although the proceedings were further progressed than the Martin Arbitration, the Curial Proceedings may not be determined before the arbitration. In making this finding, their Honours had regard to an opinion expressed by HPPL's own solicitor who had opined that a substantive hearing in the arbitration will be completed by mid‑2022.[42] Thus, their Honours were of the opinion that there was uncertainty as to the likely relative progress of the Curial Proceedings and the arbitral proceedings.
[42] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S) [149] and [156] ‑ [157].
Second, their Honours found that there were substantial reasons for questioning whether any issue estoppels would arise and upon whom they would be binding if the Curial Proceedings were decided before the arbitral proceedings.[43]
[43] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S) [158] ‑ [171].
As to the other factors raised by HPPL, which were the need to avoid HPPL being twice vexed with the consequent duplication of resources and the loss of confidentiality which would result from the Curial Proceedings continuing, their Honours found:[44]
To our minds, in the circumstances of this case, the first of these considerations does not attract significant weight. To the extent that issues in the curial proceedings and arbitral proceedings overlap, the steps necessary for preparation will need to be undertaken and applied to both proceedings. Broadly speaking, at least the bulk of those steps would have been necessary even if the issues arose only in the arbitral proceedings. The additional time and expense arising from dealing with overlapping issues in both the curial proceedings and arbitral proceedings rather than only in the arbitral proceedings is not significant when weighed against the competing considerations, especially those arising from the plaintiffs' interests. This is particularly so in this case, bearing in mind the undoubted resources of the parties who would be involved in both sets of proceedings, as is manifest from the industry of their legal representatives on every conceivable point in the litigation.
As to the second, it will be open to the parties, to the extent they think necessary and appropriate, to seek confidentiality orders from the primary judge in relation to interlocutory steps in the proceedings. We acknowledge that, to some extent, HPPL, Mrs Rinehart and Ginia may be at risk of losing confidentiality in relation to some matters the subject of the Hope Downs Deed in the course of the primary proceedings progressing to the point where they are ready for trial. For example, it is likely that any witness statement of Mrs Rinehart, or of other witnesses relied upon by HPPL, concerning matters within the ambit of the confidentiality of the Hope Downs Deed would be revealed to non‑parties to those deeds, namely the plaintiffs and their legal advisers. Nevertheless, in our view, bearing in mind the matters outlined in [122] ‑ [134], the interests of justice distinctly favour permitting the primary proceedings to continue, at least to the point where they are ready for trial.
An aspect of Mrs Rinehart's complaint as to loss of confidentiality is her submission that she would be prejudiced by the court making findings ‑ which will be public ‑ on matters the subject of confidential arbitration in accordance with the Hope Downs Deed. That risk does not arise in the pre‑trial period and does not, in our view, (alone or in combination with the other matters on which the stay proponents rely) sustain the grant of a stay at this stage.
[44] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S) [152] ‑ [154].
Beech and Vaughan JJA declined to order a stay of the Curial Proceedings. Their Honours then went on to observe that their conclusion on the present application did not preclude a different approach upon application made at the point when the Curial Proceedings are ready for trial, assuming that, by then, the Martin Arbitration had not been heard and determined. In making this observation, their Honours stated that the risk of issue estoppels arising from findings in the Curial Proceedings would then be imminent, and also, at that stage, the state of the pleadings may enable a more informed view to be reached at the risk of any issue estoppel.
In addition, Beech and Vaughan JJA said it would be open to the parties to seek a pre‑trial ruling by the trial judge as to whether the Hope Downs Deed can be relied upon, and potentially significantly, more will then be known about the progress of the Martin Arbitration and the likely time before its hearing.[45]
[45] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S) [176] ‑ [178].
Quinlan CJ found it was not necessary for him to determine whether he would have exercised the discretion differently to Le Miere J at first instance, but nevertheless his Honour agreed with Beech and Vaughan JJA that the interests of justice could not justify a stay of the Curial Proceedings that would prevent them from being progressed to the point where they were ready for trial. Quinlan CJ also relevantly observed:[46]
Given the size and complexity of the primary proceedings, to order a stay that would prevent the parties from completing all necessary pre‑trial steps, thereby putting the litigation in a state of indefinite stasis, would have the capacity to cause significant delays in the resolution of WPPL and DFD Rhodes' claims.
In that context, the prospect of the parties to the Hope Downs Deed being twice vexed is of little weight in all of the circumstances. As Beech and Vaughan JJA observe at [152] those parties are undoubtedly well resourced. Their appetite for disputation, both arbitral and curial, rather supports the inference that they would take any potential duplication of resources in their stride.
I also record my express agreement with their Honours' observation that HPPL would be at liberty to make a further application for a stay if the primary proceedings are ready for trial before the arbitration, on the basis that there has been a change in circumstances. The result of any such application would, of course, depend upon the circumstances then existing, including the progress of the arbitration.

[46] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S) [6] ‑ [8] (Quinlan CJ).

The Court of Appeal heard the Second Stay Appeal in March 2022.
A summary of the claims pleaded by Bianca and John in their defences in the Rhodes proceedings and WPPL proceedings, and findings which are relevant to the disposition of this application, were set out in the judgment of Quinlan CJ and Beech JA.

5.3.1 The parts of the Rhodes reply referred to arbitration ‑ Rhodes' appeal

Subsequent to the dismissal of the First Stay Appeal in the Rhodes proceedings, Rhodes filed an amended reply to the defence of Bianca and John on 26 March 2021. On the application of HPPL on 2 July 2021, Le Miere J granted a mandatory stay pursuant to s 8 of the Commercial Arbitration Act of matters arising from certain paragraphs of Rhodes' amended reply as follows:
Pursuant to s 8(1) of the Commercial Arbitration Act 2012 (WA), the proceedings be stayed to the extent that they concern the matters in [3.3.2], [3.4] and [4] and [5] (to the extent [4] and [5] rely on the upon the allegations in [3.3.2] and [3.4]) of the plaintiffs Amended Reply in the Original Action (to the fourth and fifth defendants defence, the sixth defendants defence and the seventh defendants defence) filed 26 March 2021.

The HPPL parties plead in par 53D of their defence to the Sixth Further Amended Substituted Statement of Claim, in further answer to par 53C, that HPPL and HDIO refer to the matters described in pars 53E to 53DP which pleas are an alternative case that Lang breached fiduciary duties that he owed to HPPL.
The HPPL parties contend that if they are successful in the Martin Arbitration, they will be able to tender and rely upon the Hope Downs Deed as a basis for an issue estoppel between the HPPL parties and Bianca and John, or alternatively an argument that it is an abuse of process for Bianca and John to raise their defence, which would have the effect that Bianca and John's defences to the WPPL and Rhodes claims could no longer proceed because Bianca and John will be bound by the releases in the deed.[93]
[93] ts 2826.
It they are able to do so, par 53C of WPPL's Sixth Further Amended Substituted Statement of Claim will fall away. Further, if this occurs then it will not be necessary for the court to hear evidence or to consider the HPPL parties' defences in response to par 53C of WPPL's Sixth Further Amended Substituted Statement of Claim.[94]
[94] ts 2961 ‑ 2962.
In addition, the HPPL parties say that it will not be necessary for them to adduce the evidence set out in the expert accountant report prepared by Mr Campbell Jackson dated 14 November 2022, which report would no longer be relevant because the sole purpose of that report is to show that the Tenements were not held beneficially for Hancock Mining Ltd and Hancock Resources Ltd.[95]
[95] ts 2961.
The HPPL parties instructing solicitor, Mark Anthony Wilks, deposes in an affidavit affirmed on 21 October 2022 that if the overlapping issues are excised from the Curial Proceedings, the length of the trial will be significantly shortened and could be heard in around five weeks (20 days).[96] The HPPL parties also claim that it will be necessary for the court to consider a large number of documents which, number in the thousands, relates to Bianca and John's defences.[97] However, the court cannot be confident that this assessment is correct.
[96] Affidavit of Mark Anthony Wilks affirmed 21 October 2022, par 60.
[97] ts 2857.
It is important to note that the defences that Bianca and John intend to run in the Curial Proceedings are entirely documentary. However, the number of documents the court would have to consider, which are relevant to their defences, is not clear because the court has yet to hear Bianca and John's categories of discovery application. Counsel for Bianca and John informed the court at the hearing of this application that their case in the Curial Proceedings is akin to that which Bianca and John are presently running in the Martin Arbitration, and that they are in a position to make their case in the Curial Proceedings in a focused way, and it is likely that their case will involve less documents than the number of documents tendered in the Martin Arbitration.[98]
[98] ts 2919 ‑ 2920 and 2958.
WPPL's instructing solicitor, Mr Gareth John Jenkins, deposes in an affidavit sworn on 15 November 2022 that of the 74 sitting days set aside for the trial of the Curial Proceedings, WPPL's claims will occupy somewhere between 25 and 40 sitting days and the time needed for the trial of the Rhodes proceedings is 11 to 16 days. Mr Jenkins also deposes that he disagrees that without the overlapping issues it would be possible to complete the trial of the proceedings in 20 days estimated by Mr Wilks. It is his view that even if the allegations made by Bianca and John in their defence are not litigated in the Curial Proceedings, it still may take somewhere between 36 to 56 days to complete the hearing.[99]
[99] Affidavit of Gareth John Jenkins sworn 15 November 2022, pars 34 and 41 ‑ 42.
The HPPL parties argue that they will be unable to make an application to tender the Hope Downs Deed until the Martin Arbitration delivers their award. If the trial of the Curial Proceedings proceeds and concludes prior to the delivery of the award, the HPPL parties would have to make an application to reopen the evidence to tender the deed if an award is made in their favour. This would have the effect that the hearing of the 300 paragraphs of Bianca and John's defence, in respect of the Debt Reconstruction Matter in the WPPL proceedings, would have been wasted.[100] This, they say, will necessarily result in a huge waste of resources not only for the parties, but also for the court.
[100] ts 2826 ‑ 2827.
Although the HPPL parties claim that there is a real prospect that the trial of the WPPL proceedings and the Rhodes proceedings will be shortened, whether that will or could occur is uncertain.
If the HPPL parties are unsuccessful in the Martin Arbitration, and the award delivered by the Martin Arbitration is to the effect that the arbitration agreement fails, and so does the Hope Downs Deed, in those circumstances the Martin Arbitration would have found that they did not have jurisdiction to determine any part of the dispute, so that it would then be necessary to lift the stay orders, staying the counterclaims, and start the hearing again because there would need to be pleadings as between Bianca and John and the HPPL parties in respect of their counterclaims that have been stayed and referred to arbitration.[101]
[101] ts 2826 ‑ 2827.
Beech and Vaughan JJA in the supplementary First Stay Appeal accepted WPPL's submission that it is by no means certain that WPPL, as a non‑party to the Hope Downs Deed, would obtain a benefit of the extinguishment of any claim by Bianca and John that is effected by the release in the Hope Downs Deed.[102]
[102] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S) [126].
In any event, assuming Bianca and John are unsuccessful in the Martin Arbitration, it is by no means certain that they would be precluded (by the doctrines of abuse of process or issue estoppel) from continuing to agitate their defences in the WPPL proceedings or the Rhodes proceedings.
While there is no 'hard edged rule' that a prior arbitration award cannot found an argument that subsequent litigation is an abuse of process,[103] it will 'probably be a rare case, and perhaps a very rare case, where court proceedings against a non‑party to an arbitration can be said to be an abuse of process';[104] the 'high threshold which engages the court's duty to act to prevent abuse of its process'.[105]
[103] Michael Wilson & Partners Ltd v Sinclair [2017] EWCA Civ 3 [67].
[104] Michael Wilson & Partners Ltd v Sinclair [2017] EWCA Civ 3 [68].
[105] Michael Wilson & Partners Ltd v Sinclair [2017] EWCA Civ 3 [87].
As between each of the plaintiffs and any of the parties to the Martin Arbitration, in particular, Bianca and John and the HPPL parties, there can be no abuse of process should WPPL or Rhodes seek to challenge the findings in the Martin Arbitration.
As WPPL points out, it (and Rhodes) has neither the benefit nor burden of those estoppels and there is no proper basis to plead estoppels arising between the arbitral parties as a defence to WPPL's claims. Moreover, an issue that might be determined in the Martin Arbitration is not the same as an issue in these proceedings because WPPL's claim is not before the arbitrators.
There is considerable force in the argument put by WPPL that, although the arbitral parties can rely on any issue estoppel arising from any findings in the award against each other this can only apply if precisely the same issue is sought to be re‑litigated between them.[106] However, no claims are being advanced between the defendants (other than Rhodes against WPPL) in these proceedings. Consequently, there is simply no basis for any of the defendants to plead reliance ‑ as part of their defences in these proceedings ‑ on an issue estoppel said to arise from an arbitral award in the Martin Arbitration.
[106] Ramsay v Pigram (1968) 118 CLR 271, 276.
In addition, if HPPL succeeds in the Martin Arbitration in respect of its arguments about the Hope Downs Deed, there may be real doubt as to whether the Hope Downs Deed can be tendered in the trial of the Curial Proceedings by the HPPL parties, when it does not plead reliance on the deed in its defence against either Rhodes or WPPL. This point, however, may be capable of being met by an application by the HPPL parties to amend their defences.
The HPPL parties reject any contention that they could seek to make an application in the trial that the deed be accepted into evidence on a provisional basis or marked for identification for the purposes of tender if an award is subsequently made in their favour after the evidence closes in the Curial Proceedings. I do not accept this contention. It clearly would be open to the HPPL parties to make such an application. Whether such an application should be accepted by the court would be a matter for argument at trial, which argument is likely to concern the effect, if any, of the terms of the deed as between the plaintiffs and Bianca and John.
As WPPL also point out, if the Martin Arbitration declines to set aside the Hope Downs Deed, it does not follow that the Martin Arbitration will necessarily order injunctive relief restraining Bianca and John from maintaining its defence to these proceedings. The Martin Arbitration may conclude that the undertaking in cl 7(b) of the Hope Downs Deed ('not to challenge the right of any member of the Hancock Group to any of the Hancock Group Interests at any time') does not prevent Bianca and John from maintaining a claim over the 50% interest in the Tenements claimed by WPPL.
When regard is had to all of these matters, it cannot be found with any degree of certainty as to what will be the effect of an award in the Martin Arbitration, if the HPPL parties are successful in the arbitration. In particular, it is not clear whether some issues will fall away or not.
This is a factor that weighs in favour of a stay or adjournment that I must consider in the exercise of the discretion, together with all other relevant factors that should be given weight. This factor and the weight that it should be given is considered below in 8.0.

The HPPL parties argue that, if the Martin Arbitration concludes, the arbitration agreements are null and void, and the dispute between Bianca and John and the HPPL parties will have to be resolved in court. This, they say, would necessarily result in Bianca and John's counterclaims against WPPL and the HPPL parties in the WPPL proceedings, and against Rhodes and the HPPL parties in the Rhodes proceedings, having to be lifted, and the HPPL parties having an opportunity to file defences those to counterclaims.
In these circumstances, the HPPL parties contend that if the trial is in progress when such a finding is made by the Martin Arbitration in an award, or if the evidence is concluded and the court reserves its decision, it would be necessary to reopen the Curial Proceedings. Before a further hearing, interlocutory orders will need to be made to allow HPPL to plead on their defences the counterclaims, because there will need to be pleadings as between Bianca and John and the HPPL parties on the counterclaims.
WPPL and Rhodes disagree. They say that the counterclaims could be tried separately. Alternatively, the counterclaims could be pressed in the Federal Court proceedings which have been stayed, in which Bianca and John and the HPPL parties have raised the same matters. However, that could lead to inconsistent findings between different parties and courts, in circumstances where Bianca and John's defences in the Curial Proceedings raise effectively the same matters raised in the counterclaims that were stayed and referred to arbitration in the Martin Arbitration.
In addition, it would be difficult to contemplate how the counterclaims could be tried separately and subsequently to the plaintiffs' claims, and the defences in this court for the same reason.
The risk of:
(a)the trial of the Curial Proceedings in having to be reopened with additional pleadings, evidence and further submissions if an application is granted to lift the stay and referral orders which results in the counterclaims being reactivated; or alternatively
(b)inconsistent decisions in respect of the plaintiffs' claims and the counterclaims being conducted in separate trials;
are matters that weigh in favour of a stay or an adjournment of the Curial Proceedings until an award is delivered in the Martin Arbitration.
However, it should be noted that the HPPL parties did not raise this point in their written submissions and only raised this point following questions from the bench as to what could be the effect of a finding by the Martin Arbitration in an award that the arbitration agreement was void and invalid.[107] It should also be noted that this issue was not raised by the HPPL parties or by Bianca and John when they made oral and written submissions when seeking that the Court of Appeal in July 2020 re‑exercise the general discretion of the court to stay the Curial Proceedings.
[107] ts 2826 ‑ 2829; see also 2950, 2953 ‑ 2954.
This factor, and the weight that it should be given, is considered below in 8.0.

6.8 The length of a stay or an adjournment sought by HPPL parties

The HPPL parties do not seek a short stay or an adjournment of the trial. They seek that the trial not proceed until the award has been issued in the Martin Arbitration and any disputes related thereto are resolved.
However, during the course of hearing of the application, counsel for the HPPL parties indicated a slight shift in their position when he informed the court that an adjournment of the trial for a period of six months may be a sufficient period of time to enable the award in the Martin Arbitration to be delivered prior to the commencement of the trial. Although there is likely to be consequent enforcement proceedings in this court, the HPPL parties do not suggest that such proceedings would be lengthy.
Notwithstanding this submission, whoever is the successful party in the arbitration is likely to seek enforcement of the award pursuant to s 34 and s 36 of the Commercial Arbitration Act. Given the large number of interlocutory disputes on almost every conceivable point between the parties to the arbitration in the present proceedings, subsequent appeals, and related proceedings in the Federal Court, enforcement by a successful party to the arbitration is likely challenged, resulting in a subsequent appeal.[108] Consequently, any arising disputes could take up to two or three years to be resolved. However, it is to be noted that the grounds of challenge to the recognition or enforcement of an arbitration award are limited.[109]
[108] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S) [129] (Beech & Vaughan JJA).
[109] Commercial Arbitration Act 2012 (WA) s 36.
The successful party to the arbitration may also seek injunctive relief, which given the history of disputation between the parties is also likely to be the subject of an appeal by the unsuccessful party.
Although there may be subsequent appeals arising out of the award, this is not a factor that for the reasons I give in [236(f)], that should weigh in favour of a stay or adjournment of the trial.

6.9 Other issues raised by the HPPL parties ‑ confidentiality

The HPPL parties contend that Bianca and John's defences in the Curial Proceedings involve allegations of serious misconduct spanning 10 to 15 years, all of which are 30 to 40 years ago. These allegations include numerous allegations against people alive and dead, including allegations against former and current practitioners.
Counsel for Bianca and John dispute this contention and say that their case does not involve unfocused allegations against a variety of different people, alive or dead. As they point out, when similar issues were raised in July 2020 before the Court of Appeal, Beech and Vaughan JJA in the supplementary decision in the Second Stay Appeal did not give these matters much weight.[110]
[110] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S) [69] ‑ [70] and [153] ‑ [154].
The HPPL parties also contend that there is a risk to confidential matters that are the subject of the Martin Arbitration, including third parties being revealed in open court. Such confidential matters may not need to be referred to if it is found that, by the tender of an award, Bianca and John are precluded from pursuing their defences.
As WPPL point out, courts routinely hear cases in open court that arise out of relationships that are subject to express or implied obligations of confidentiality. Parties cannot by agreement cloak their prior dealings in secrecy and shield them from the normal processes of the administration of justice.[111]
[111] See Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 [42], [45], [49] ‑ [51] (Bathurst CJ & McColl JA).
In any event, if it is necessary, it will be open for any party to make an application during the course of the trial that evidence of such matters be subject to confidentiality or suppression orders. Whether such an application would be successful is, of course, a matter for trial and to be considered by taking into account the principles of open justice.
For these reasons, this factor should not on its own, or together with any other factor, be given much weight.

7.0 The prejudice that WPPL and Rhodes claim they will suffer if the adjournment or stay is granted

WPPL and Rhodes point out that this application interferes with their right as plaintiffs to prosecute their claims to a conclusion.
They argue that it is not the case that they will suffer only minor inconvenience by reason of the stay or adjournment as sought by the HPPL parties.
The prejudice to WPPL and to the interests of justice if the HPPL parties' application succeeds they say is clear. WPPL and Rhodes would be subjected to a stay or adjournment that is of substantial duration, highly uncertain and, practically speaking, beyond their control or influence.
WPPL makes a submission that the HPPL parties offer no sound basis for an adjournment or stay, and the 'problems' HPPL raise that they say would be avoided by a stay or adjournment are either illusory or the inevitable result of forensic choices made by the HPPL parties.
In addition, WPPL say that a stay or an adjournment will result in duplication of time and costs for preparation of the Curial Proceedings which will result in WPPL suffering tangible prejudice in the event the trial that is listed to commence in June 2023 does not proceed. WPPL points out that, as identified in the affidavit of Mr Jenkins, WPPL is presently preparing for trial and preparing responsive expert evidence which is due to be filed on 21 December 2022.[112] In the event of a stay or adjournment, much of WPPL's recent work on trial preparation would need to be repeated in the lead‑up to the (new) trial dates, leading to substantial duplication of time and costs.
[112] Affidavit of Gareth John Jenkins sworn 15 November 2022, par 52.
Further, any significant delay to the hearing of the trial may well have further implications for WPPL's expert evidence in the light of the advancing age of two of WPPL's expert witnesses, and the consequent risk of one or both of those witnesses becoming unavailable beyond the present listing.[113]
[113] Affidavit of Gareth John Jenkins sworn 15 November 2022, par 52(b).
Although Rhodes submits that it is a wealthy private company, it is a family company, and the delay in finalisation of this litigation is of real significance.[114] If Rhodes is successful, it will be entitled to a large payment for monies, due since 2008, of several million dollars and an even greater future amount for the life of the mine.[115]
[114] Affidavit of Godfrey Edward Taylor sworn 15 November 2022, pars 25 ‑ 36.
[115] Affidavit of Godfrey Edward Taylor sworn 15 November 2022, pars 32 ‑ 33.

Until February 2020, the company was controlled by the only two children of Mr Donovan Rhodes (Donovan) (his executors are the second named plaintiff in the Rhodes proceedings).
Rhodes point out that it has already been prejudiced by the death of its only substantive lay witness, Mr Ken Rhodes (Ken) (who was one of Donovan's two children), then aged 73 in February 2020.[116] Ken had been involved as an employee of the family company in some of the activities at the time of their collaboration with HPPL and WPPL when the iron ore deposits were obtained by Rhodes in or around the late 1960's.
[116] Affidavit of Godfrey Edward Taylor sworn 15 November 2022, par 28.
The family company now consists of the only surviving child of Donovan, Mrs Maxine Ellis (Maxine), her children, grandchildren, and the widow, children and grandchildren of Ken. Maxine is the chairman of Rhodes.[117]
[117] Affidavit of Godfrey Edward Taylor sworn 15 November 2022, pars 26 ‑ 30.
The Rhodes family say they are suffering ongoing prejudice and stress as a result of the long delay in advancing their claim to resolution, having seen the Curial Proceedings stalled at various times and delayed, which delays they have not been responsible for.
Rhodes also submits that their prejudice will not be removed or substantially ameliorated by an award of interest or an account of profit.

8.0 Should the Curial Proceedings be adjourned or stayed?

When all the relevant factors are accorded weight and weighed together, the short answer to this question is, no.
As their Honours Beech and Vaughan JJA point out in their supplementary decision in the First Stay Appeal, the starting point is the prima facie right of a plaintiff to prosecute proceedings that it has regularly commenced, and it is for the stay proponents to demonstrate that the interests of justice justifying preventing the plaintiffs from doing so until the arbitration has been determined.[118]
[118] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S) [120].
Other than a conceivable shorter duration of the delay of the Curial Proceedings, if this application was to be granted pending completion of the arbitral proceedings, the considerations that strongly militated against a stay that their Honours took into account in July 2020 in their supplementary decision in the First Stay Appeal in [121] to [134] substantially remain unchanged.[119]
[119] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S).
The factors that strongly militate against an adjournment or stay of the Curial Proceedings at this present time are as follows:
(a)The Curial Proceedings have been on foot for many years, relate to events that occurred a long time ago, and on the plaintiffs' cases, each of them acquired their interests in the Tenements well before the Hope Downs Deed was entered into.
(b)The plaintiffs and the public have an obvious and important interest in the claims being resolved as soon as possible.
(c)From the plaintiffs' perspective, there is no proper reason why their interests should be adversely affected by the arbitration agreement in the Martin Arbitration as they are strangers to the Hope Downs Deed. For the reasons I gave in 6.3, I am not satisfied that the controversies between Bianca and John and Rhodes depend upon the determination of the matters that have been referred to the Rhodes Arbitration. These matters may not be rendered moot by findings made in the award of the Martin Arbitration. More importantly, for the reasons I give in 6.3, I am not satisfied that the court will not be able to finally determine Rhodes' and WPPL's claims until the question of Bianca and John's claimed interest in the Tenements is resolved in the Martin Arbitration.
(d)It is by no means certain that either WPPL or Rhodes, as a non‑party to the Hope Downs Deed, would obtain the benefit of any extinguishment of any claim by Bianca and John that is effected by a release in the Hope Downs Deed.
(e)The plaintiffs will not be bound by any outcome of the Martin Arbitration, which means there is a risk of duplication of resources and inconsistent decisions in any event, even if a stay or adjournment is ordered.
(f)Although the Martin Arbitration has commenced, it will not be finally completed until the end of March 2023. WPPL, Rhodes and the HPPL parties agree that an award in the Martin Arbitration may be delivered by the end of 2023 and the process of any unsuccessful party resisting enforcement may not be completed until March 2024.[120] As Beech and Vaughan JJA found, the delay consequent upon a grant of a stay is magnified by the prospect of curial challenges to an arbitral award. Although the HPPL parties sought an adjournment of the trial until at least September 2024, they indicated they would embrace a more limited adjournment of the trial as WPPL but as Rhodes point out there could be no guarantee that they would not have to face a further application by the HPPL parties for a stay or an adjournment.
(g)The family members that stand behind at least Rhodes have suffered stress and have been subjected to the strain that litigation imposes upon litigants when proceedings are delayed.
(h)A refusal of an adjournment or stay advances the goal in O 1 r 4A of the Rules of the Supreme Court by minimising delays in the resolution of disputes whilst ensuring the fair and just determination of issues between parties.
[120] ts 2894, 2922 and 2947.
The matters raised by the HPPL parties that should not be accorded any or little weight are as follows:
(a)For the reasons I give in 6.1, the risk of any issue estoppel arising from findings made in the Curial Proceedings giving rise to issue estoppel in the Martin Arbitration is unlikely and remote.
(b)For the reasons I give in 6.1 and 6.4, it is highly uncertain as to whether an award in the Martin Arbitration would or could render the Rhodes Arbitration moot, and, in any event, it is uncertain as to whether the Rhodes Arbitration will progress at all with the rate of its progression unknown.
(c)For the reasons I give in 6.9, any real risk to confidential matters being disclosed in open court can be dealt with by an appropriate order where it is appropriate to make such an order after having regard to the principles of open justice.
The factors that are to be regarded as neutral are as follows:
(a)There is a risk of inconsistent findings arising out of the award in the Martin Arbitration and the Curial Proceedings. However, for the reasons I give in 6.3 and 6.5 of these reasons, because findings made in the Martin Arbitration can only bind the parties to the arbitration in contract, and not the plaintiffs, there is in any event risk of duplication of resources and inconsistent decisions even if the application for a stay or an adjournment is granted.
(b)Although, as discussed in 6.6 of these reasons, there is a prospect that the length and complexity of the issues of the trial in the Curial Proceedings as between the plaintiffs and Bianca and John could be considerably shortened if the result in the Martin Arbitration is as set out in [50] and [51] of these reasons. However, because arbitration proceedings are confidential, the court is not in a position to make any proper assessment as to the prospects or likelihood of these outcomes.
The factors that must be weighed in favour of a stay or an adjournment of the trial are as follows.
It must be accepted that because a decision in the Curial Proceedings is unlikely to be delivered prior to the delivery of an award in the Martin Arbitration, and the award is unlikely to be delivered prior to the commencement of the trial, there will be issues that will arise as to the effect and enforcement of the award which could give rise to arguments about:
(a)the tender of the Hope Downs Deed, issue estoppel and abuse of process if Bianca and John are found not to have a proprietary interest in the Tenements in the Martin Arbitration (which issues are discussed in 6.6 of these reasons). If, at the time the award in the Martin Arbitration is delivered, the evidence and submissions in the Curial Proceedings have been concluded and the decision in the trial is reserved, it may be necessary for the HPPL parties to make an application to reopen the proceedings; or
(b)alternatively, if the Martin Arbitration concludes that the arbitration agreements are null and void, it may become necessary to reopen the proceedings and interlocutory steps taken to enable defences to Bianca and John's counterclaims against WPPL by the HPPL parties to be pleaded and be heard.
Given that the prospect of [240(b)] was not raised by the HPPL parties in their written submissions or in their oral submissions until questions were asked by the bench, and were not raised by the HPPL parties or Bianca or John in any previous application for a stay of the Curial Proceedings, the prospect of such a result of the Martin Arbitration should be not regarded as likely and should be accorded little weight.
The factors that must be given the most weight in favour of a stay or adjournment of the trial are the issues that arise out of the HPPL parties' intention to deploy the Hope Downs Deed if they are successful in the Martin Arbitration. However, it is not known whether the HPPL parties will be successful in the Martin Arbitration.
In any event, as discussed in 6.6, it would be open to the HPPL parties to make an application during the course of the trial to tender the Hope Downs Deed on a conditional basis. Whether this application would be successful, and whether it would have the effect of defeating Bianca and John's claims against the plaintiffs, is not clear given that an issue estoppel and the principles of an abuse of process may not apply as between Bianca and John and the plaintiffs. This is because as Beech and Vaughan JJA observed in their Honours' supplementary reasons in the First Stay Appeal, the law as to estoppels between co‑defendants is not well developed, and the Curial Proceedings are the only proceedings in which the question as to whose benefit the Tenements required, as between the plaintiffs and the defendants.[121] Whilst this factor must be given weight when considered alone or together in combination with the matter in [240(b)] and [242], when weighed against the factors counting against a stay or an adjournment of the trial, in particular the legitimate interests of the plaintiffs and the requirement that there should be no prejudice to the plaintiffs beyond that which the interests of justice justify when considering whether to stay court proceedings pending the resolution of arbitral proceedings, I am not persuaded that the Curial Proceedings should be stayed until the delivery of an award in the Martin Arbitration.
[121] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S) [169] – [170].
Nor am I satisfied that a stay would result in the most efficient and expeditious resolution of disputes between the parties to the Curial Proceedings, or that there are rare and compelling circumstances to justify a stay.
If I consider the application to adjourn the trial separately to the application to stay the Curial Proceedings, by only applying the principles that govern the discretion of the court to adjourn a trial, having regard to all of the relevant factors referred to in 8.0 of these reasons, I am not satisfied that it is expedient in the interests of justice to adjourn the trial. This is because:
(a)there have been long delays in bringing these proceedings to a conclusion by a trial;
(b)trial dates have been set in the past and vacated; and
(c)because there is in any event a risk duplication of resources and inconsistent findings being made between the Martin Arbitration and a decision of the court in Curial Proceedings, I am not satisfied that a further adjournment would necessarily have the effect of maximising the efficient use of available judicial resources and facilitate the timely disposal of business.
Although there is a prospect that less judicial resources could be required because some issues could fall away, the likelihood of that occurring is too uncertain. As WPPL and Rhodes point out, even if the trial is only adjourned for a period of six months, if the award in the Martin Arbitration has not been delivered by the time the trial is to commence, given the history of prior applications for adjournments of the trial by the HPPL parties, there is likely to be a further application by the HPPL parties for an adjournment of the trial.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TS
Associate to the Honourable Justice Smith
14 DECEMBER 2022