DFD RHODES PTY LTD -v- HANCOCK PROSPECTING PTY LTD [2022] WASCA 97 | Case summary

DFD RHODES PTY LTD -v- HANCOCK PROSPECTING PTY LTD [2022] WASCA 97 | Case summary | Zoe

[6]

The background to the Rhodes proceedings, and to the application the subject of this appeal, has been set out in detail in a number of decisions. See, for example, Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 10][4] and Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd.[5] We adopt those outlines without repeating them. Consequently, the background can be stated in an abbreviated form, drawing heavily on the primary judge's statement of the background.
The Hope Downs Deed is a deed entered into by a number of persons, including HPPL, Mrs Georgina Hope Rinehart (Gina), Bianca, Hope Rinehart Welker (Hope) and Ginia Hope Frances Rinehart (Ginia). John entered into a further deed in April 2007 in which he adopted the Hope Downs Deed.
John, Bianca, Hope and Ginia are Gina's children (collectively, the Children).
The Hope Downs Deed purports to settle disputes about the title to various mining tenements, including what are defined in the deed as the Hope Downs tenements. Those disputes arose from claims initially made by John in around 2003.
The Hope Downs Deed provides for releases by the parties to the deed in relation to various claims and acknowledgements as to the ownership of tenements referred to as the Hope Downs tenements.[6] Clause 20 of the Hope Downs Deed provides that any disputes under the deed are to be resolved by way of confidential arbitration.
Since entering into, or agreeing to be bound by, the Hope Downs Deed, Bianca and John have brought various court proceedings making claims concerning the conduct of Gina, HPPL and others. Those claims include claims relating to the ownership of the Hope Downs tenements. Bianca and John brought proceedings in 2014 against Gina, HPPL, HDIO and others in the Federal Court of Australia (the Federal Court proceedings). In the Federal Court proceedings, Bianca and John claimed, amongst other things, that the Hope Downs tenements were held on trust for the Children. Those claims are described as the substantive claims.[7]
After an appeal to the Full Court of the Federal Court[8] and the High Court,[9] the Federal Court proceedings were ultimately stayed under s 8(1) of the Commercial Arbitration Act 2010 (NSW) pending any arbitral reference between the parties or until further order.
The plaintiff in the WPPL proceedings, WPPL, and the plaintiffs in the Rhodes proceedings, Rhodes, are not parties to, or bound by, the Hope Downs Deed. WPPL and Rhodes claim interests in the Hope Downs tenements, or some of them. The defendants to the WPPL proceedings are HPPL, HDIO and the Children. The defendants to the Rhodes proceedings include all of those parties, with the addition of WPPL.
In addition to filing defences in these proceedings, Bianca and John brought counterclaims against Gina and others, including all of the parties to the Hope Downs Deed (counterclaims). Bianca and John made the same claims in the counterclaims as in the Federal Court proceedings.
HPPL applied for orders that all of the parties to the Rhodes proceedings and the WPPL proceedings, except the plaintiffs in each of the proceedings (WPPL and Rhodes), be referred to arbitration in respect of the defence and counterclaim of Bianca and John, and that those defences and counterclaims be stayed pursuant to s 8(1) of the Act. HPPL also sought an order that the whole of the proceedings be stayed pending the outcome of any arbitration pursuant to the court's power to control its own proceedings.
Le Miere J stayed the counterclaims against the parties to the arbitration agreement in the Hope Downs Deed pursuant to s 8(1) of the Act and stayed the counterclaims against the other parties pursuant to the court's general power to control its own proceedings. His Honour declined to stay the whole of the proceedings or the defences of Bianca and John in each proceeding.[10] This court dismissed appeals and cross‑appeals from those orders in the first stay appeal reasons.[11]
Before the appeals to this court were heard, Rhodes filed a reply to the defence of Bianca and John on 20 September 2019. That reply was not referred to before or by this court.
After this court's dismissal of those appeals, Bianca and John amended their defence by filing their amended defence of 29 January 2021 in each of the WPPL proceedings and the Rhodes proceedings. On 21 March 2021, Bianca and John filed a further amended defence in the WPPL proceedings. In the Rhodes proceedings, Rhodes filed an amended reply to the defence of Bianca and John on 26 March 2021.
On 15 February 2021, WPPL amended its statement of claim in the WPPL proceedings by filing its sixth further amended substituted statement of claim (6FASSOC).

[9]

WPPL and HPPL carried on business as a partnership exploring and prospecting for minerals, investing in property and other assets, mining for minerals and receiving royalties (the Partnership).
WPPL claims that the opportunity to explore and prospect for minerals and acquire tenements in the Hope Downs and East Angelas areas was a Partnership asset. Two other companies in the Hancock group, Hancock Mining Ltd (HML) and Hancock Resources Ltd (HRL), acquired exploration licences (ELs) over the Hope Downs and East Angelas areas. These are respectively called the Hope Downs ELs and the East Angelas ELs. The shares in HML and HRL (which were held by Hancock Family Memorial Foundation Ltd (HFMF)) were held on trust for HPPL, and HML and HRL held their interests in the ELs on trust for HPPL. The ELs were transferred from HRL to HPPL, via Hope Downs Ltd (HDL), another company in the Hancock Group, and then from HPPL to HDIO by a series of transactions.
The claims made by WPPL differ as between the areas covered by the Hope Downs ELs and the East Angelas ELs, respectively.
In relation to the areas covered by the Hope Downs ELs, WPPL claims it is entitled to a number of personal remedies, including damages, equitable compensation and an account of profits. In that regard, WPPL's claims arise from an agreement between WPPL and HPPL in 1987 (1987 Agreement), pursuant to which WPPL relinquished its interest in the Hope Downs area on the terms set out in the 1987 Agreement.
In relation to the areas covered by the East Angelas ELs, WPPL claims that the Partnership interest in East Angelas gives rise to a number of alternative proprietary and personal claims by WPPL against HPPL and HDIO.
WPPL's primary claim is that HDIO holds its interest in the tenements in respect of the areas covered by the East Angelas ELs as an asset of, or on trust for, the Partnership.
WPPL advances an alternative claim at 6FASSOC [53C], substantially previously pleaded in WPPL's fifth further amended substituted statement of claim (5FASSOC), that if HML did not hold the East Angelas ELs on trust for HPPL or as assets, interests, or property of, or on trust for, the Partnership, then it held them on trust for itself and for WPPL in equal shares. That plea addresses the factual allegation by Bianca and John that HML took the East Angelas tenements in furtherance of a commercial purpose, which they describe as the income protection purpose, which was to quarantine the entities that are entitled to the royalty income from entities undertaking development within the Hancock Group. WPPL's alternative case is that it should be inferred that HPPL and HML intended that WPPL should retain or obtain an interest in the tenements.
It is said that HDIO is obliged to account to WPPL with respect to royalties received by HDIO from Hamersley WA Pty Ltd (Hamersley) under the Hope Downs Joint Venture, an unincorporated joint venture between members of the Hancock Group and others.
As an alternative to its claims to interests in the tenements and royalties, WPPL claims damages for breach of contract and equitable compensation for breach of fiduciary duties.

[21]

As can be seen, there is a certain tension within [23.1] of Bianca and John's defence. Whereas [23.1(j)] pleads that, as of 6 October 1992, HRL held 'full legal and beneficial title to each of the Hope Downs ELs and East Angelas ELs', [23.1(k)] pleads that, being the property of the HFMF Trust, those tenements were 'therefore beneficially owned by the beneficiaries of the HFMF Trust, being [the Children]'. Given that the HFMF Trust was a trust over the shares of the controlling shareholder of HFMF, which in turn was the controlling shareholder of HRL, which in turn owned the tenements, insofar as [23.1(k)] suggests that the tenements were, at that time, held on trust for the Children, that part of Bianca and John's pleading would appear, as a matter of law, to go too far. Holding a beneficial interest in the shares of a company does not, of itself, give rise to an equitable beneficial interest in the assets of the company. As at 6 October 1992, the Children (having a beneficial interest in the shares of a company, which had shares in another company, which owned the assets), were at an even further remove from the ownership of the Hope Downs ELs and East Angelas ELs. We will return to this point.
This would appear to be accepted, and reflected, in the subparagraphs that follow, and, in particular, [23.1(m)] of Bianca and John's defence, which plead the constructive trust over the Hope Downs ELs and East Angelas ELs in favour of the Children as having arisen at later points in time as a consequence of the alleged breaches of fiduciary duty by Gina. As will be seen, this understanding of Bianca and John's case is also reflected in the detailed pleas referred to at [53] to [56] below.
At [31.2], [34.2] and [37.2(a)] of their defence, Bianca and John plead that, in the premises, the beneficiaries of the HFMF Trust, being the Children, are not liable to account to, or pay damages or compensation in equity to, Rhodes in respect of their interest in ML282SA.
At [44] of their defence, Bianca and John plead in further answer to Rhodes' claims for proprietary relief that such relief is not appropriate and should not be granted because the grant of such relief would be injurious to, and/or prejudice the interests of, third parties, namely, the Children.
At [45], Bianca and John plead that HPPL does not hold proceeds received, and any further proceeds which it receives, from ML282SA on constructive trust for Rhodes to any extent because HPPL holds such proceeds on constructive trust for the beneficiaries of the HFMF Trust, being the Children.
At [47], Bianca and John plead that neither HPPL, WPPL, nor HDIO held, or hold, any interest in mining tenements in respect of the East Angelas and Hope Downs areas on trust for Rhodes to any extent because HPPL held, and HDIO now holds, those tenements on trust for the beneficiaries of the HFMF Trust and because WPPL does not hold any interest in those tenements by reason of the matters pleaded in Bianca and John's defence to the WPPL proceedings.
At [49], Bianca and John plead that Rhodes is not entitled to an equitable lien over the specified areas as against Bianca and John (who hold an equitable interest in those areas by reason of the matters pleaded in their defence) because Bianca and John are not obliged to pay any royalties to Rhodes on iron ore produced from such areas.
At [50] and [51], Bianca and John plead that HDIO does not hold its interests in ML282SA on trust for or subject to an equitable lien in favour of Rhodes because HDIO's interests in ML282SA are held on constructive trust for the beneficiaries of the HFMF Trust.
At [164] to [465], Bianca and John plead matters which they say give rise to the Children's equitable interest in the Hope Downs tenements.
Paragraph [165] sets out a summary of Bianca and John's case by summarising the matters pleaded in specified paragraphs of the defence. Paragraph [165], omitting the references to the paragraphs of the defence at which the summarised matters are pleaded, is as follows:

[97]

We reject ground 2 and Rhodes' submissions in support of it. We do so essentially for the reasons given by the primary judge. In short, rejection of the ground is compelled by the High Court's decision in Rinehart v Hancock.
In Rinehart v Hancock, the majority held that a party claims 'through or under' another when an essential element of the first party's claim or defence is a right or interest vested in, or exercisable by, a signatory to the arbitration agreement.[37]
The majority gave, as an example of when that is so, a case where an alleged knowing recipient of trust property invokes, as a defence to the claim, the contention that the trustee was beneficially entitled to the subject property. In such circumstances, the alleged knowing recipient would be claiming through or under the trustee.[38]
Similarly, where an assignee of mining tenements is alleged to have taken the assignment with knowledge that the tenements were held by the assignor on trust and assigned to the assignee in breach of trust, and where the assignee contests that claim on the ground that there was no breach of trust, or, if there were, then, by reason of a deed of settlement, the assignor is absolved of responsibility for the breach of trust, then 'the assignee takes its stand upon a ground which is available to the assignor and stands in the same position vis-à-vis the claimant as the assignor'.[39] Consequently, the claim must be determined as between the claimant and the assignee in the same way as it will be determined between the claimant and the assignor.[40]
This reasoning is inconsistent with any requirement of 'proximity' of the type suggested by Rhodes. The focus is on the nature and source of the claims and defences of the person said to be claiming through or under a signatory to the arbitration agreement, not on the relationship between the two parties or on the relationship of the first person to the arbitration agreement.
The judge correctly identified the test stated in Rinehart v Hancock - namely, whether an essential element of the claim or defence is vested in, or exercisable by, a party to the arbitration agreement. Save for the limited extent identified in ground 1 (see [176] to [182] below), the paragraphs of Rhodes' amended reply referred to by his Honour in the order for a stay include, as an essential element of Rhodes' response to Bianca and John's defence, a right or interest vested in, or exercisable by, signatories to the arbitration agreement (including HPPL and Gina). In particular:

[101]

The parties advance competing constructions of s 8 of the Act. In particular, they advance competing constructions of the words 'a party' in s 8.
Rhodes submits that, in s 8, 'a party' refers only to a party to an arbitration agreement who, in the action, is a party to the dispute constituting the matter which is the subject of the arbitration agreement.[41] It points to the following features of s 8 in support of this construction.
First, it submits, as is common ground, that the reference to 'the party's' first statement is a reference to the first statement of the party who makes the request. Only those who are a party - in the curial proceedings - to the dispute will be required to submit a statement on the substance of that dispute. Consequently, it submits, s 8 should be understood as enabling only such persons to make a request.[42]
Secondly, Rhodes points to the purpose and effect of an exercise of the court's power and duty under s 8; namely, to refer 'the parties' to arbitration. It submits that only parties to the dispute in the curial proceedings are parties who it is apt to refer to arbitration.[43]
Further, Rhodes submits that its construction finds support in s 1C of the Act, which sets out the paramount object of the Act as facilitating 'the fair and final resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense'. It submits that its construction better achieves the paramount object of the Act because it promotes the fast, fair and cost-effective resolution of the proceedings.[44]
Rhodes submits that the broad construction invited by HPPL would not achieve the paramount object as it would enable a party to an arbitration agreement who is not a party to litigation, or who is not a party to the dispute in the litigation which is the subject of the arbitration agreement, to permit the parties to that dispute in the curial proceedings to progress those proceedings almost to the point of completion before requesting a referral to arbitration under s 8.[45]
Rhodes also relied on the decision of the Court of Appeal of England and Wales in Etri Fans Ltd v NMB (UK) Ltd[46] and the decision of the British Columbia Court of Appeal in Stancroft Trust Ltd v Can‑Asia Capital Co.[47]
HPPL submits that the words 'a party' should be construed to mean any party to the arbitration agreement. Alternatively, they support the primary judge's conclusion[48] that s 8 empowers any person who is a party to the arbitration agreement and a party to the curial proceedings to make a request. In the further alternative, they submit that s 8 should be construed to empower a party to the arbitration agreement, through or under whom another party is claiming, to request that the parties to the dispute arising from the making of that claim be referred to arbitration.[49]

[104]

Fourthly, all parties to an arbitration agreement may be taken to have an interest in its enforcement. Construed in the context of the long history of arbitration, the provision in s 1C(2)(a) - that the Act aims to enable parties to agree about how their commercial disputes are to be resolved - must be understood as including the parties' freedom to agree to have the disputes resolved out of the public eye by invoking the confidential processes of arbitration.
That is reinforced by the presumption of confidentiality arising from s 27E of the Act, read with the broad definition of 'confidential information' in s 2.
So, in the case of an arbitration agreement between more than two parties, if two of those parties (A and B) were engaged in litigation, a party (C) to the arbitration agreement who was not a party to the curial proceedings has, in our view, an interest in the enforcement of the agreement by all parties to arbitrate any disputes among them. In particular, parties to an arbitration agreement have an evident interest in the protection of the confidentiality that comes with the parties' choice to resolve their disputes by arbitration.
For the reasons in [128] ‑ [131] above, construing 'a party' in s 8 to mean - as the definition of 'party' states - any party to the relevant arbitration agreement better promotes the purpose of s 8 than does Rhodes' construction. By enabling C - the party to the arbitration agreement who is not a party to the curial proceedings in the situation postulated in [131] - to invoke s 8, this construction provides such a party with a means of enforcing the agreement to arbitrate. That outcome advances the Act's aim, set out in s 1C(2)(a), of achieving its paramount object by enabling parties to agree about how their commercial disputes are to be resolved. Parties are better enabled to agree if they are provided with a means of enforcing the agreement. By contrast, Rhodes' construction would mean that the Act provides C with no means of enforcing the agreement between A, B and C to settle their disputes by arbitration.
In our view, the extension of the definition of 'party' effected in subparagraph (a) of the s 2 definition by the inclusion of those who claim 'through or under' does not justify any different approach. That aspect of the definition, which is not mirrored in the UNCITRAL Model Law on International Commercial Arbitration (1985), should not drive the attribution of meaning to the term 'a party' in s 8 of the Act. Paragraph (a) does not detract from the definition of 'a party' as meaning 'a party to an arbitration agreement'; it simply extends the ambit of the term in the manner stipulated in subparagraph (a). Put another way, the construction of 'a party' in s 8 requires the identification of the meaning to be attributed to that phrase. The meaning so identified applies equally to the situation postulated in [131], and to a situation such as the present where there is a 'through or under' party to the arbitration agreement.
The matters pointed to by Rhodes in [118] to [121] above do not sustain a different construction. In particular, they do not overcome the considerations of purpose and object outlined in [128] ‑ [132].
As to the submission in [118], in our view, the evident purpose of that element of s 8 is to cater for the no doubt commonplace situation where the requesting party is a party before the court by providing a time limitation to ensure that any request must be made in a timely manner. However, like the pri[52]ry judge,52 we consider that this provision does not reveal or carry an implication that only a party to the matter may make a request under that provision.
As to Rhodes' submission in [119] above, we accept that, in exercising its power and duty under s 8 to refer 'the parties' to arbitration, the court will refer to arbitration only those who are parties to the arbitral matter(s) in the curial proceedings. That is because the other parties to the arbitration agreement are not before the court and because the mechanism by which the reference under s 8 is effected is by way of a stay of that part of the curial proceedings that is the 'matter' (or controversy) which is the subject of the arbitration[53]greement.53 There is no occasion for the court to, nor mechanism by which it could, exercise any power in connection with a party to the arbitration agreement that is not party to the controversy in the curial proceeding. In that sense the reference to 'the parties' in s 8 has a potentially more confined application than all of the parties to the arbitration agreement in the particular case.
However such a construction of 'the parties' in s 8 does not, in our view, ultimately sustain Rhodes' construction of s 8 as to the 'party' entitled to request the reference. Rather, it simply reflects the fact that there is no occasion to exercise the power to refer to arbitration in relation to those who are not party to the arbitral matter in the curial proceedings. While our preferred construction gives 'a party' a potentially broader application in a particular case than the phrase 'the parties' in the later part of s 8, the presumption that the same word is used in a statutory provision with the same meaning readily yields to the statutory context.[54] In our view, in the context of s 8 that presumption is decisively outweighed by the considerations of purpose in [128] ‑ [132] above.
In our view, s 1C of the Act does not support Rhodes' construction. In that regard, while Rhodes submitted that its construction achieves the paramount object because it promotes the fast, fair and cost‑effective resolution of the proceedings, the paramount object stated in s 1C is to facilitate the fair and final resolution of disputes by impartial arbitral tribunals without unnecessary delay or expense.
In our view, Rhodes' submission in [121] above carries little weight in the process of construction of s 8. In the extreme circumstances postulated, other doctrines of the law, such as abuse of process, waiver and estoppel, may preclude a party from belatedly making a request under s 8.
The two cases from other jurisdictions relied on by Rhodes concerned materially different legislative provisions and do not assist the process of construction of s 8 of the Act.
For these reasons, in our opinion, on the proper construction of s 8, any party to an arbitration agreement may make a request for the court to refer the parties to arbitration.
Consequently, ground 4 must be dismissed.
As a consequence, ground 2 of HPPL's notice of contention, which is contingent on the success of ground 4, does not arise.

[109]

The starting point, in determining whether HPPL has made a 'statement on the substance of the dispute', is to identify the 'dispute' there referred to. Rhodes accepts that, as the primary judge found,[64] the dispute referred to in s 8 is the dispute arising in a 'matter which is the subject of an arbitration agreement'. Here, the matter which is the subject of an arbitration agreement is by no means the entirety of the matters in controversy in the proceedings. Rather, it is the controversy constituted by the Arbitration Dispute Matters pleaded in Bianca and John's defence and Rhodes' response to those matters in its amended reply.[65]
Once this is understood, HPPL's filing of a defence to Rhodes' claims cannot be seen as a statement on the substance of the dispute in relation to the relevant matter.
In the first stay appeal, this court determined that, in order to be a matter the subject of an arbitration agreement, a dispute must meet two requirements. First, the subject matter of the dispute must fall within the ambit of the arbitration agreement. Secondly, the dispute must be between parties to the arbitration agreement.[66]
The dispute between Rhodes and Bianca and John concerning the two matters identified by the primary judge, referred to in [78] and [79] above, which may be respectively termed the acquisition matter and the debt reconstruction matter, is the subject of an arbitration agreement. The subject of those matters is within the scope of the arbitration and the dispute arises between parties to the arbitration agreement, given the conclusion that Rhodes claims through or under HPPL and so is a 'party' within the extended definition in the Act.
The dispute between Rhodes and HPPL does not concern either of the two arbitral matters identified at [153]. The acquisition matter does not arise as a dispute between Rhodes and HPPL. Rhodes' claim against HPPL is founded on HPPL's holding of an interest in the tenements. The debt reconstruction matter is not raised in Rhodes' statement of claim. Moreover, the dispute between Rhodes and HPPL does not involve parties to the arbitration agreements on both sides of the dispute, since Rhodes is not a 'through or under' party in its claim against HPPL.
Whether a party to an arbitration agreement has lost its right to make a request under s 8 by making a statement on the substance of an arbitral dispute is not to be determined by whether it is possible to confidently surmise the position that the party would take were it called upon to state its position on the substance of the dispute.
HPPL's previous application for a stay under s 8 of Bianca and John's counterclaim - which was successful - and for a stay of the matters arising from Bianca and John's defence - which was not successful - was not a statement on the substance of the dispute. That conduct did not involve a statement going to the merits of the dispute. HPPL's actions reflected an intention to seek that any arbitral matter be determined in the contractually agreed manner.
Moreover, Rhodes' reply to Bianca and John's defence was first filed after HPPL's stay application had been heard and determined. The appeal from that decision was concerned with its correctness and, thus, was not concerned with any issues arising from Rhodes' reply.
No occasion has arisen for HPPL to make a statement on the substance of the dispute between Rhodes and Bianca and John, and it has not done so.
For these reasons, which substantially mirror the primary judge's reasons, ground 3 fails.

[115]

That conclusion reflected an acceptance of HPPL's submission that the relevant allegations in Bianca and John's defence, and the response to those allegations in Rhodes' amended reply, gave rise to matters the subject of the arbitration agreement.
This view is readily apparent from reading the primary judge's reasons as a whole.
In describing HPPL's application, the judge said that HPPL sought 'a stay of certain matters or controversies arising from paragraphs in Bianca and John's amended defence and the response to those pleas in Rhodes' amended reply'.[79] A little later, the judge described the HPPL application as an application 'to stay matters constituted by parts of Bianca and John's defence and Rhodes' amended reply'.[80] The judge explained the necessity to set out parts of Bianca and John's defence in detail because it was paragraphs in that defence, and Rhodes' response to them, which HPPL submitted gave rise to a matter the subject of the arbitration agreement.[81]
Later in the reasons, the judge explained that the matter which was the subject of an arbitration agreement, and in respect of which HPPL requested that Bianca and John and Rhodes be referred to arbitration, was not the whole matter in controversy in the action. Rather, it was 'the controversy constituted by the Arbitration Dispute Matters and Rhodes' response to those matters in their amended reply'.[82]
While expressed in a succinct manner, that is the effect of his Honour's order. The judge ordered that the proceedings be stayed to the extent that they concerned the matters in the stipulated paragraphs of Rhodes' amended reply. By definition, paragraphs of a reply (or any other form of pleading) cannot, standing alone, constitute a matter; there must be two sides to a controversy. Understood in light of that basic precept, and understood in light of the primary judge's reasons,[83] it is clear that in the judge's order, 'the matters in' the stipulated paragraphs of Rhodes' amended reply was a reference to the matters constituted by the controversy reflected in those paragraphs of Rhodes' amended reply and in the paragraphs of Bianca and John's defence to which they responded.
Thus, we reject Bianca and John's submissions in [161](a) to (c) above.
Further, as to the submissions in [161](d), (e) and (f) above, the fact that the relevant paragraphs of Rhodes' amended reply do not themselves seek relief does not prevent the matter, constituted as we have identified, from being a matter the subject of an arbitration agreement within the meaning of s 8 of the Act. Three well‑established, fundamental propositions require rejection of those submissions advanced by Bianca and John.
First, in order for s 8 to be engaged, it is not necessary that a matter the subject of an arbitration agreement constitute the whole of the matter or matters in controversy in an action. An action may involve an arbitral matter in part only.[84] Secondly, an arbitral matter need not involve a claim to relief. That is made clear by the decision in Tanning Research Laboratories Inc v O'Brien.[85] Thirdly, a defence to a claim may give rise to a matter the subject of an arbitration agreement, enabling a party to make a request under s 8.[86] That is illustrated by the knowing recipient example given by the majority in Rinehart v Hancock, outlined in [109] above. Like an allegation in a defence, an allegation in a reply may give rise to a matter the subject of an arbitration agreement. For the reasons already given, that was so in the present case.
For these reasons, ground 5, in its amended form, fails. While the ground as amended is without merit, we would give leave to amend as sought so as to facilitate determination of the merits of the contentions advanced by Bianca and John.

[124]

In essence, HPPL contends that, between WPPL and Bianca and John, the only issue requiring resolution is the question of the beneficial entitlements to the various tenements at the point in time at which each was acquired by HML or HRL. HPPL contends that WPPL's proprietary claims to the tenements and Bianca and John's claim to a proprietary interest in the same property, 'diverge, part company, or become mutually inconsistent' at the point of initial acquisition of the tenements. HPPL further contends that WPPL's personal claims are premised on the acceptance of WPPL's contention that the tenements were initially acquired for the benefit of HPPL, WPPL or the Partnership.
For the reasons that follow, we would dismiss the appeal. In short, there are two reasons why, in our respectful view, the primary judge was correct to refuse HPPL's strike‑out application.
First, WPPL invites an inference that HML held the ELs on trust for HPPL from the matters in pars (a) to (f) of the particulars to [53A] of WPPL's 6FASSOC (see [198] below). Several of those paragraphs particularise instruments, executed variously in 1992, 1995 and 1996, that are the subject of Bianca and John's allegation of the fraudulent and dishonest design concerning the Debt Reconstruction. In other words, Bianca and John contend that those instruments do not sustain the inference invited by WPPL because there is a very different explanation for them. Thus, Bianca and John's pleas concerning matters after the initial acquisition bear on the determination of the issues between the parties concerning the identification of for whose benefit HML or HRL initially acquired the tenements.
Secondly, and in any event, we do not accept that WPPL's personal claims all depend critically upon it establishing that the tenements were acquired for its benefit, or for HPPL's benefit, at the point of acquisition.
Although concerned with striking out parts of Bianca and John's defence, the disposition of the application to the primary judge, and of the appeal to this court, ultimately turns upon a proper appreciation of WPPL's claims in the WPPL proceedings. Consequently, we commence by outlining WPPL's claims in some detail.

[158]

Senior counsel for Bianca and John, Mr Withers SC, advanced three arguments in opposition to Mr Hutley's analysis. First, in circumstances where WPPL and Rhodes have joined Bianca and John on the basis that Bianca and John claim an equitable interest in the Hope Downs tenements and seek to establish a res judicata which would prevent Bianca and John asserting that interest against them, it is not unnecessary or irrelevant in answer to WPPL's claim for Bianca and John to assert their equitable interest in the tenements and to plead the basis on which they say that they are entitled to that interest.

Secondly, Mr Withers submits that HPPL ignores the causes of action pleaded by WPPL, and also by Rhodes, which do not depend upon them establishing a proprietary interest in the Hope Downs tenements and hence do not stand or fall depending upon the basis on which HML/HRL are ultimately found to have acquired exploration licences over the Hope Downs tenements between 1986 and 1992. In particular, in its 6FASSOC, after pleading that the mining tenements in relation to the East Angelas reserves acquired by HPPL or HML were Partnership assets or held on trust for the Partnership, WPPL pleads breaches of fiduciary and statutory obligations by HPPL, for which it claims HPPL is liable to pay equitable compensation in respect of the profits or benefits it has received from the Hope Downs tenements, and breaches of agreements between WPPL and HPPL, for which it claims a lost opportunity to earn profits or benefits from the development of the East Angelas reserves. Those claims are premised on the basis that the East Angelas ELs and any mining tenements acquired by HPPL or HML were not acquired as an asset, interest or property or held on trust for the Partnership.

In answer to WPPL's claim for equitable compensation or damages, Bianca and John deny that entitlement and assert that all income and profits earned by HPPL or HDIO in respect of the area of land formerly subject to the East Angelas ELs and the East Angelas Reserves and/or royalties to be received by HDIO from that area are subject to a constructive trust for the beneficiaries of the HFMF Trust, incorporating in that pleading Bianca and John's allegations of a fraudulent and dishonest design which are the foundation for the claim of a constructive trust.

Furthermore, WPPL's alternative claim pleaded at 6FASSOC [53C] is based upon the assumption that HML did not acquire the tenements on trust for HPPL or the Partnership. Bianca and John's positive case responds to that claim. Mr Hutley's answer to that proposition is, as I have said, that 6FASSOC [53C] is bad in law, should be struck out and should be disregarded. However, I have rejected the HPPL parties' application to strike out 6FASSOC [53C], that pleading remains and accordingly Bianca and John's positive case pleading the Children's equitable interest in the Hope Downs tenements is not irrelevant, unnecessary or vexatious.

Mr Withers' third submission is that WPPL relies, in support of its position that HML/HRL acquired exploration licences over the Hope Downs tenements on trust for HPPL for the benefit of the Partnership, on the transactions which Bianca and John say were part of a dishonest and fraudulent design by Gina.

At 6FASSOC [53A] WPPL pleads that HML held the exploration licences on trust for HPPL which is to be inferred from six matters particularised. The first five of those matters, which are various deeds, transfers and the assertion of a constructive trust by HPPL from 1992 to 1996 are alleged by Bianca and John to have been part of Gina's fraudulent and dishonest design pleaded at [465] of Bianca and John's defence. That paragraph is premised on [462] which in turn relies on the allegations at [166] to [455] of their defence. WPPL relies on the matters asserted at 6FASSOC [53A] in particulars elsewhere in its pleading. Bianca and John's response is to assert that the relevant matters are part of Gina's fraudulent and dishonest design.

[163]

Insofar as WPPL advances personal claims, it is necessary, according to HPPL's submissions, to distinguish between those in respect of which personal remedies are sought and those in respect of which proprietary remedies are sought. Bianca and John's defence cannot be relevant to personal claims of the former kind.[105] HPPL submits that, insofar as WPPL seeks proprietary remedies for its personal claims, those personal claims are dependent on HML and HRL having acquired the ELs for, and on behalf of, HPPL.[106]
HPPL emphasises that [111] of 6FASSOC pleads conduct and breaches by HPPL, not by any other legal entity. Thus, it submits, the premise of [111.1] is that HPPL acquired, and subsequently dealt with and disposed of, parts of the East Angelas ELs directly or indirectly, or through its subsidiaries or HML. The only acquisition pleaded is that in [49], namely the initial acquisition.[107] Thus, WPPL pleads that the tenements were acquired by HPPL either directly or through HML.[108]
HPPL further submits that the only significance to WPPL's case of the transactions during the 1990s pleaded in 6FASSOC [71] to [84] is that they explain the change in legal title from HML to HRL, and eventually to HDIO. WPPL's claim is based on WPPL, or the Partnership, having a continuing equitable interest in the East Angelas ELs by reason of the initial acquisition. WPPL alleges, in effect, that notwithstanding the changes in legal title, HDIO continued to hold the East Angelas ELs as a Partnership asset, or, alternatively, on trust for the Partnership, or, alternatively, 50 per cent on trust for WPPL and 50 per cent on trust for others (the three alternative proprietary claims described above).[109]
As the only acquisition pleaded is the initial acquisition, the claim is premised on that initial acquisition being for the benefit of HPPL. WPPL's claim for a constructive trust must therefore be premised on HDIO having an equitable beneficial interest in the tenement and HPPL having acquired a beneficial interest at initial acquisition. Otherwise, the constructive trust would have nothing to attach to.[110]
HPPL submits that, because WPPL pleads that HPPL acquired the tenement, WPPL's case is inconsistent with Bianca and John's case on initial acquisition, which is that HML took a full legal and beneficial interest in the tenements.[111] On Bianca and John's case concerning initial acquisition, HPPL acquired nothing at initial acquisition. Bianca and John's competing proprietary claim is founded on HML having acquired the tenements beneficially in 1988 to 1990.[112]
Thus, HPPL submits, no personal claim pleaded by WPPL can survive if Bianca and John succeed in establishing their case on initial acquisition.[113] Moreover, in that scenario, for WPPL to advance such a claim would require it to plead how HPPL acquired an interest, which would be liable to give rise to a 'through and under' problem and thus be subject to the arbitration agreement in the Hope Downs Deed.[114]
In relation to Bianca and John's third argument as accepted by the primary judge,[115] HPPL submits that the fact that WPPL mentions the 1992 Transfer Deed, the 1995 Deed and the 1996 Deed in its particulars of trust under [53A] does not make relevant all of Bianca and John's allegations of wrongdoing in relation to the Debt Reconstruction transactions.[116] HPPL submits that:[117]

[167]

Part of Bianca and John's response to that aspect of WPPL's case is to assert that the 1992 Transfer Deed, the 1995 Deed and the 1996 Deed were each a part of Gina's fraudulent and dishonest design pleaded elsewhere in their defence.[123]
In those circumstances, Bianca and John's pleas as to the fraudulent and dishonest design are material to the resolution of an aspect of WPPL's claim. In essence, Bianca and John contend that the instruments, which comprise some of the matters on which WPPL relies to invite an inference that HML held the tenements on trust for HPPL, do not sustain that inference because there is a very different explanation for them. Thus, Bianca and John's pleas concerning matters after the initial acquisition of the tenements bear on the determination of the issues between the parties concerning the identification of those for whose benefit HML or HRL initially acquired the tenements.
We do not accept HPPL's submissions summarised at [224] above. No party has applied to strike out 6FASSOC [53A]. The fact that the deeds pleaded by WPPL come later in time than HML's acquisition is not determinative. It is open to a party to point to a range of matters in support of an inference about another party's state of mind at a given time, including matters subsequent to that given time. The proper inference to be drawn will require attention to all of the relevant facts and circumstances. In the context of an appeal against refusal of an application to strike out paragraphs of the defence, it is neither practically possible nor appropriate for this court to attempt to summarily determine the merits of paragraphs of a plea in the statement of claim. Nor is it appropriate for this court to seek to determine questions of admissibility, which are properly matters for trial.
Secondly, we do not accept that WPPL's personal claims all depend critically upon it establishing that the tenements were acquired for HPPL's benefit, or for WPPL's benefit, at the point of acquisition.
In so concluding, we accept the outline of WPPL's case proffered by its senior counsel, which seems to us to arise on a fair reading of WPPL's statement of claim. We reject HPPL's submission that the language of WPPL's pleading does not encompass the case outlined below.[124]
Paragraphs [46A] and [49A] plead that the relevant applications for ELs were made in various alternative capacities by HML. These include that they were made by HML as 'the agent, corporate creature, vehicle or alter ego' of HPPL, or by HML acting in concert with HPPL. It may be immediately noted that this language echoes the language of the Full Federal Court in Grimaldi v Chameleon Mining NL (No 2)[125] in describing a case where a third person is a corporate creature, vehicle or alter ego of a wrongdoing fiduciary.
WPPL's pleas in [111] and following paragraphs are in the alternative to the three alternative forms of its primary claim of a proprietary interest that arose upon acquisition of the tenements. To be clear, WPPL's pleas at [111] are not to be understood as alleging that the tenements were acquired subject to a trust in favour of WPPL. Rather, as further explained in [242] below, those pleas are to be understood as making personal claims (albeit that at [121] of the 6FASSOC WPPL claims to be entitled to a remedial constructive trust by reason of those personal claims).
Paragraph [111] must be understood in the context of [109] to which it expressly refers.
Paragraph [109] pleads fiduciary and statutory obligations said to be owed by HPPL to WPPL as WPPL's partner. These include obligations:

[173]

WPPL further pleads that HDIO received the East Angelas ELs with notice that HPPL was acting in breach of its fiduciary duties.[126] WPPL then claims, among other things, that, consequently, HDIO holds half of its interest in the Hope Downs Mining Lease, insofar as it concerns the land the subject of the East Angelas ELs, on trust as trustee for WPPL.[127] Such a claim is encompassed by the claim for relief in [146.1.1] of what is, in effect, WPPL's prayer for relief against HDIO and Bianca and John.
In essence, WPPL claims that HDIO received and became the registered holder of the ELs in the knowledge that they were the fruits of HPPL's breaches of fiduciary duty owed to its partner WPPL, and the obligations so arising continued upon the East Angelas ELs becoming encompassed by the Hope Downs Mining Lease.
This aspect of WPPL's case does not assert a proprietary interest. Rather, it involves a personal claim for which a proprietary remedy is sought. The nature of such claims has been explained in many cases. See, for example, Muschinski v Dodds,[128] Giumelli v Giumelli[129] and Bofinger v Kingsway Group Ltd.[130]
At least on one view of their case, Bianca and John contend that, upon acquisition of the ELs in February 1989, HML held legal title to the tenements with full beneficial ownership, in the sense that no other person had any equitable beneficial interest. At that stage, the Children had no equitable interest in the ELs - their interest was merely reflective of HFMF's ownership of the shares in HML.[131] As we observed in relation to Bianca and John's defence in the Rhodes proceeding (see [44] to [46] above), holding a beneficial interest in the shares of a company does not give rise to an equitable beneficial interest in the assets of the company. On this view of Bianca and John's case, their equitable interest in the ELs themselves, as distinct from in HFMF and HFMF's assets including its shares in HML, arose subsequently, after Lang's death, as a result of Gina's alleged misconduct.
As we have said, the strand of WPPL's case outlined in [238] above is capable of encompassing the scenario that HML acquired the ELs as beneficial owner. Thus, this aspect of WPPL's case is not necessarily inconsistent with Bianca and John's case on initial acquisition.
Contrary to HPPL's submissions in [221] to [223] above, this strand of WPPL's case cannot be said to necessarily depend on HPPL having acquired a beneficial interest in the ELs at initial acquisition. The personal claim asserted by WPPL seeks to attach a constructive trust to the title to the Hope Downs Mining Lease held by HDIO, not to any interest, legal or equitable, held by HPPL. While HPPL challenges the legal soundness of a claim of the kind outlined in [239] above, that is a matter for trial; it cannot be said, with the high level of certainty necessary to strike out a pleading, that this strand of WPPL's case is legally unsustainable. That being so, nor can it be said with the requisite degree of certainty that this strand of WPPL's case is doomed to fail if it fails to establish that HPPL acquired a beneficial interest in the ELs when HML initially acquired them.
It is well established that whether relief of the kind described in [242] above is appropriate must take into account all of the circumstances of the case, including the impact of the order on any oth[132]parties.132
Consequently, in our view, Bianca and John's competing claim to an equitable interest in the tenements is material to determination of this part of WPPL's claim. The court would not grant WPPL the relief that it seeks without considering the equitable interest claimed by Bianca and John.
HPPL submits that, if a claim to the effect outlined in [239] above were made out, a constructive trust would immediately arise at the point when HML acquired the[133]nements.133 That might well have been so in a hypothetical situation where WPPL immediately went to court in 1989 and asserted its claim for a constructive trust. However, the question of whether any, and if so what, proprietary remedy is appropriate will be determined by the court as at the time of trial, in light of all the circumstances then existing. Such circumstances include any claim to interest in the tenements asserted by any other party.
At trial, in support of the relief it seeks for its personal claims, WPPL would, no doubt, point to the fact that its claim arises from events earlier in time than the alleged wrongdoing asserted by Bianca and John as the foundation of their claim to the tenements. Consequently, WPPL would argue, Bianca and John's claimed interest should not preclude the grant of relief WPPL seeks to remedy HPPL's breach of fiduciary duty in 1989. However, there are few hard and fast rules in equity's fashioning of appropriate relief. The fact that WPPL's claim is founded on a breach of fiduciary duty alleged to have occurred prior to the alleged breaches of duty said to found Bianca and John's claim is not inevitably decisive. Contrary to HPPL's submission,[134] it cannot be said, with the degree of certainty necessary to sustain a strike‑out application, that Bianca and John's claimed equitable interest, and the subsequent events on which they rely, can be excluded from consideration in the court's determination of whether to grant proprietary relief for the claim outlined in [239] above.

[194]

We do not accept the construction of O 26 r 7(3) advanced by HPPL. We comfortably prefer the broad construction adopted by the primary judge.
As the primary judge observed, the natural and ordinary meaning of the text of O 26 r 7 firmly supports the broad construction he adopted. A number of textual features of O 26 r 7 should be noticed.
First, the court's powers are not confined to circumstances where a party applies pursuant to O 26 r 7(1). The court is expressly empowered to make discovery orders of its own motion.
Secondly, par (a) of O 26 r 7(3) identifies the persons who may be the subject of an order. It empowers the court to 'order any ... of the parties to give discovery'. Thus, the provision empowering the court and identifying those in respect of whom an order may be made is expressed in broad terms, encompassing any of the parties. The breadth and generality of the expression of the power to order any party to give discovery is not consistent with a construction that empowers the court to order discovery by one kind of party, namely a defendant, in favour of another defendant only on the condition that there are rights to be adjusted between them.
Thirdly, the subject matter of par (b) of O 26 r 7(3) is the identification of the documents to be discovered by a party in respect of whom the court orders discovery. Subparagraphs (ii) and (iii) of O 26 r 7(3)(b) confer power on the court to limit documents to be discovered by reference to direct relevance or relevance to specified matters in question, or permit discovery of all documents relating to all matters in question. These provisions are facilitative in nature. The purpose and effect of par (b) of O 26 r 7(3) is to confer powers on the court to confine the scope of an order for discovery, not to confine the court's powers.
Fourthly, we are unable to discern how the text of O 26 r 7(3) is capable of giving rise to the construction asserted by HPPL. HPPL did not explain its construction by reference to the text of O 26 r 7(3). HPPL's submissions focus on O 26 r 1, attributing meaning to its text largely by reference to the older authorities, and then invite a transplanting of the concepts informing O 26 r 1 into O 26 r 7. But this is done in a manner untethered from the text of O 26 r 7. HPPL does not identify which parts of the text are to be attributed what meaning in order to arrive at the construction it advances. We are unable to discern any means by which the text of the provision is capable of being read in the manner invited by HPPL.
These textual considerations count decisively against the confined construction advanced by HPPL. Indeed, the fourth consideration is fatal in itself.
Other considerations reinforce our rejection of HPPL's narrow construction.
HPPL's construction involves making implications or imposing limitations on the broad and general language of O 26 r 7(3). It is well established that it is inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.[152]
Relatedly, we reject HPPL's submission outlined at [280] above. The court's powers concerning discovery are broad in scope, but are hedged with considerable discretion. The objects of O 1 r 4B of the Supreme Court Rules, which promote the just and efficient conduct of litigation, will inform the court's exercise of discretion concerning discovery. The court's exercise of discretion, in light of those objects, will ensure that inappropriately wide orders for discovery are not made.
Further, HPPL's construction is founded on cases decided in earlier times, under materially different rules.
In 1996, the provisions of the Rules of the Supreme Court concerning discovery were substantially revised. Earlier iterations of the rules applying in Western Australia concerning discovery had been founded on the English rules. However, in 1996, the then existing O 26 r 7 was repealed and the present rule inserted in its place. That rule materially broadened the court's powers in various respects. In substance, it replaced a confined power in O 26 r 1(5) with the power in the broad terms we have described. Further, at the same time in 1996, O 26A was introduced, providing for non‑party discovery.
Moreover, as already observed, the cases on which HPPL relies concern the equivalent of O 26 r 1, not O 26 r 7.
For these reasons, the cases on which HPPL relies provide little assistance in identifying the proper construction of O 26 r 7.
Finally, HPPL's construction of O 26 r 7(3) has the consequence that the court has no power whatsoever to order one defendant to give discovery to another defendant in relation to whom there is no right to be adjusted, notwithstanding that a defendant can apply for non‑party discovery against any non‑party. Contrary to HPPL's submission,[153] no application for non-party discovery could be made in the hypothesised circumstance because O 26A r 5 applies only to 'a person who is not a party to an action'. A construction that means the court's power to order discovery is significantly more limited in relation to a co‑defendant than it is in relation to a stranger to the litigation produces a result that is, to say the least, unlikely to have been objectively intended.
For these reasons, ground 1 fails.
HPPL properly accepted that grounds 2 and 3 only arise if HPPL succeeds on ground 1.[154] Consequently, ground 1 having failed, grounds 2 and 3 should be dismissed. In any event, even if there was an error in terms of ground 3, we are not persuaded that it was material. On re-exercising the costs discretion we too would decline to make a pre-emptive costs order requiring that Bianca and John pay HPPL's anticipated costs of giving the discovery. There will be ample opportunity for the trial judge to revisit any issues as to the costs of the discovery post-trial at a time when the trial judge will be far better informed as to the necessity for the discovery and what is in the interests of justice as to costs.

[206]

Accordingly, on the primary judge's construction, HPPL could request that the court refer Rhodes and Bianca & John to arbitration so far as they were litigants in the court before which an action was brought in a matter (or matters) which was the subject of an arbitration agreement. HPPL was entitled to do so even though HPPL was not itself a party to the relevant matters the subject of the arbitration agreement. It was enough that HPPL was a party to the relevant arbitration agreement and the action before the court brought in the arbitral matters.
There is a distinction, in this respect, between:
1. The controversy as to the arbitral matters arising out of Bianca & John's defence and Rhodes' reply as summarised at [78] and [79] above - which raised issues only as between Rhodes, on the one hand, and Bianca & John, on the other; and
2. The action constituted by the Rhodes proceedings - to which HPPL was undoubtedly a party.
By ground 4 Rhodes contends, in substance, that the term 'party' in the words 'if a party so requests' in s 8(1) of the Act refers to one of the litigants to the relevant matters the subject of the arbitration agreement, ie a litigant contesting the controversy as to the arbitral matters. In the present case that was only Rhodes or Bianca & John. On Rhodes' preferred construction, HPPL is not a 'party' entitled to request pursuant to s 8(1) that Rhodes and Bianca & John be referred to arbitration.
The constructional question presented by ground 4 raises a stand-alone issue. It cannot be affected by the circumstance that Rhodes - although not a signatory to the Hope Downs Deed - is relevantly a 'party' to the arbitration agreement as a 'though or under' party.[160] Rhodes challenges its characterisation as a 'through or under' party by ground 2. Consideration of ground 4 proceeds on the premise that ground 2 fails. Moreover, as ought to be plain, the constructional question presented by ground 4 is one that may arise where the litigants in the particular matter the subject of the arbitration agreement are all signatories to the arbitration agreement (ie none is a 'through or under' party). The proper construction of the term 'party' in the words 'if a party so requests' in s 8(1) of the Act must apply to that scenario as well as the present scenario.

[213]

Section 8(1) mentions the terms 'a party', 'the party's' and 'the parties'.
'A party' must request that the court refer the parties to arbitration. This is the term that falls to be construed in resolving ground 4. Two observations ought to be made at the outset:
1. First, the application of s 8(1) is dependent on a request - ie the court cannot act on its own motion to refer the parties to arbitration.
2. Second, as a corollary of the necessity for a request by 'a party', in the absence of such a request the court may proceed to exercise its jurisdiction despite the arbitration agreement.
The latter possibility is in keeping with the consensual bargain that underpins domestic commercial arbitration. Persons to an arbitration agreement may decide (either expressly or impliedly by their conduct) to proceed with a curial determination despite prior agreement to such disputes being submitted to arbitration. In the absence of any request by a party for referral to arbitration there is no basis for the court to enforce the negative stipulation that disputes of the kind governed by the arbitration agreement are not to be heard and determined by a court.
The reference to 'the party's' is in the context of s 8(1) imposing a time limit within which a party may request that the court refer the parties to arbitration. The request must be made 'no later than when submitting the party's first statement on the substance of the dispute'. As will be seen, this stipulation is integral to Rhodes' argument in support of ground 4. Separately, it was common ground between Rhodes and HPPL on the appeal,[165] and I accept, that in referring to 'the party's' first statement, s 8(1) was referring to the first statement on the substance of the dispute by the 'a party' who requests that the court refer the parties to arbitration - ie the 'a [requesting] party' and 'the party's first statement' are referring to one and the same person.
Counsel for Bianca & John contended that s 8(1)'s requirement that a requesting party seek referral to arbitration no later than when submitting the party's first statement on the substance of the dispute had to do with submission to the court's jurisdiction. Counsel argued that this requirement identified the point at which the party should be taken to have submitted to the court's jurisdiction and waived its right to arbitrate the relevant dispute. This had obvious implications for Rhodes' argument in support of ground 4. It supported the contention that the reference to 'a party' (being a person who would in due course submit its first statement on the substance of the dispute) must be a party to the controversy constituting the arbitral matter. Other parties to the arbitration agreement (not being a party to the controversy) would never be called on to submit to the court's jurisdiction in respect of the controversy constituting the arbitral matter.[166]
I would not analyse this aspect of s 8(1) in terms of submission to the court's jurisdiction or waiver of the right to arbitrate. If that is what underpinned the requirement it might arguably be negated by submitting a first statement on the substance of the dispute which expressly denied the court's jurisdiction or reserved the right to apply to stay the proceedings pending arbitral proceedings. Those possibilities are not contemplated by s 8(1). Rather, as a procedural requirement, this aspect of s 8(1) imposes a time limit to be complied with as to any request that the court refer the parties to arbitration. Failure to make application within the requisite time has the result that one of the statutory pre-conditions to the court's obligation under s 8(1) will be unfulfilled and the statutory conditions for a mandatory stay will not be satisfied.
Finally, s 8(1) contemplates that, where its conditions are met, the court must refer 'the parties' to arbitration. Rhodes and HPPL had different views as to who was included within 'the parties' that must be referred to arbitration - those views being driven by their respective preferred construction of the term 'a party'. Rhodes contended that 'the parties' were those persons in controversy in the matter or matters the subject of the arbitration agreement.[167] HPPL contended that there was no reason why 'the parties' would not mean all the parties to the arbitration agreement.[168]
This difference will be explored further when considering the proper construction of the term 'a party'. However, beyond its contextual significance to the constructional question raised by ground 4, the parties' contentions as to who the court is to refer to arbitration have no practical significance to the proper disposition of the appeal. Insofar as, ordinarily, a stay order is the practical mechanism by which the court refers parties to arbitration, the court need not identify the parties in its order - although there must be an underlying symmetry between the extent of the referral under s 8(1) and the extent of the stay to give effect to that referral.[169] That is what occurred in the present case. The primary judge's order did not state that any particular persons were referred to arbitration. Instead, conformably with accepted practice, the primary judge stayed the curial proceedings to the extent that they concerned identified arbitral matters.
The term 'party' is defined in s 2(1) of the Act as follows:

[216]

A definition of 'party' is not included in the Model Law. Nor is there a specific definition of the term in pt III of the International Arbitration Act 1974 (Cth) dealing with international commercial arbitrations and the adoption of the Model Law. However, in pt II of the International Arbitration Act, dealing with enforcement of foreign arbitration agreement and awards, for certain purposes (including a stay under s 7(2)) a reference to a 'party' includes a reference to a person claiming through or under a party.[170]
The Explanatory Memorandum to the Commercial Arbitration Bill 2011 (WA) refers to the definition of 'party' in passing[171] but gives no indication as to why its inclusion was considered necessary. Nor was that subject discussed in the Second Reading Speech that introduced the Bill.[172] In introducing the Bill the relevant minister informed the Western Australian Parliament that it was based on the model commercial arbitration bill as prepared by New South Wales[173] (as became the Commercial Arbitration Act 2010 (NSW)). The definition of 'party' in the New South Wales Act is said to be based on s 4 of the earlier Uniform Commercial Arbitration Acts[174] and s 2(1) of the Arbitration Act 1996 (NZ).[175] In the Uniform Acts the earlier legislative model defined 'party', in relation to an arbitration agreement, as including 'any person claiming though or under a party to the arbitration agreement'. Section 2(1) of the New Zealand Act defined the term 'party' as 'a party to an arbitration agreement, or, in any case where an arbitration does not involve all of the parties to the arbitration agreement, means a party to the arbitration'.
My researches into the available secondary materials concerning the Commercial Arbitration Act 2010 (NSW) have not revealed any explanation as to why it was considered necessary or desirable to introduce the s 2(1) definition of 'party' into the Model Law.
The primary judge relied on the definition of 'party' in coming to his construction. His Honour did not discern from the text an intention that the word 'party' in the phrase 'if a party so requests' bears a different or narrower meaning than that defined by its terms read with the statutory definition.[176] Likewise, HPPL relied on the definition.[177] In this respect HPPL expanded on what was relied on by the primary judge by pointing to various parts of the Act where, as a matter of context, in seeking to limit the application of a provision to a particular party (as opposed to all parties to the arbitration agreement) the Act expressly qualified the party to which it was referring. HPPL referred to s 13(4) ('challenging party'), s 17A(1) and s 17G(1) ('party requesting an interim measure'), s 34(2)(a)(ii) ('party making the application') and s 35(2) ('party relying on an award').[178]
I accept that there are relevant qualifications in those provisions which expressly confine, in the situations covered by the provision, the reference to 'party'. Those are not the only occasions on which this occurs in the Act. Indeed, the definition itself identifies the ambulatory nature of the concept of 'party' throughout the Act. Paragraph (b) of the definition confines the term 'party' to those persons who are parties to the arbitral proceedings where the arbitration does not involve all of the parties to the arbitration agreement.
However, I do not accept that on all occasions where the Act uses the word 'party' a qualifier is expressly introduced where it is sought to limit the application of the provision to a particular party. There are, for example, numerous provisions within the Act where, in context and consistently with par (b) of the s 2(1) definition, the term 'party' is referring to a party to arbitral proceedings rather than the parties to the arbitration agreement (see eg s 2(1) (par (a) and par (b) of the definition of 'confidential information'), s 4, s 11(3)(a), s 12(4), s 14(2), s 14(4), s 16(5), s 16(9), s 18, s 23(3), s 24(2), s 24(4), s 24A(2), s 25(1)(c), s 25(2), s 25(3), s 26(1)(b), s 26(2), s 27(1), ss 27A(1) - (2), ss 27B(2) - (3), s 27C(8), s 27F(1)(a), s 27F(4), s 27H(1), s 27H(3), s 31(6), s 33(1), s 33(5), s 33B(6) and s 33D). Sometimes this is evident from the words of the provision (see eg s 27C(1), s 27G(1), s 27H(2), ss 27I(2) - (3)) but often it is just the context that signifies that the reference to 'party' is a reference to a party to the arbitral proceedings.
The Act also uses the word 'party' in a context wholly outside the statutory definition so far as, at times, it uses the phrase 'third party' (see eg s 2(2), s 11(4)(c), s 27F(5)). There is also a reference to costs as between 'party and party' (s 33B(4)(c)).

[225]

Four possible constructions of the term 'party' in the words 'if a party so requests' in s 8(1) of the Act were posited at the appeal hearing. Each assumes that there is a curial action brought in a matter that is the subject of an arbitration agreement. The four possibilities as to the proper construction of the requesting 'party' were said to be:
1. Any party to the arbitral matter (such person also being a party to the curial action and the arbitration agreement). This is Rhodes' preferred construction.
2. Any party to the arbitration agreement (whether or not that person is a party to the arbitral matter and whether or not that person is a party to the curial action). This is HPPL's preferred construction.
3. Any party to the arbitration agreement who is also a party to the curial action (whether or not that person is a party to the arbitral matter). This is the primary judge's construction.
4. Any party to the arbitration agreement in respect of whom a party to the arbitral matter claims through or under. This is an alternate construction put forward by HPPL. It was, in substance, a construction that informed ground 2 of HPPL's notice of contention.
I do not intend to give further consideration to the fourth suggested construction. It is, as I understand it, a construction advanced by HPPL in the alternative as a way of upholding the primary judge's decision on an additional basis. For reasons I develop below, HPPL's preferred construction is the correct construction. There is no need to rely on HPPL's alternate construction. In any event, I am unable to discern any textual basis for the alternate construction from the words of s 8(1) even when read with the s 2(1) definition of party.
Rhodes submitted that the term 'a party' must be read down - as must the statutory definition of the term. Rhodes emphasised that the words in s 8(1) were part of a composite phrase that should not be read in isolation. It pointed to the circumstance that the requesting 'party' had to be one and the same person as 'the party' making a first statement on the substance of the dispute; and, moreover, that the first statement would be made in the curial action in respect of the arbitral matter that comprised the dispute. Accordingly, in Rhodes' submission, the 'a party' had to be a person who was entitled to make such a first statement. This meant that to constitute 'a party' the person must be a party to the arbitral matter and the curial action. In support of this construction Rhodes said that 'the parties' as referred to arbitration need only be, and were only to be, the parties to the arbitral matter that comprised the dispute. Rhodes also contended that HPPL's preferred construction and the primary judge's construction led to absurd results. By contrast, according to Rhodes, its preferred construction better achieved the paramount object of the Act as specified in s 1C. Finally, Rhodes relied on two overseas authorities - Etri Fans Ltd v NMB (UK) Ltd[187] and Stancroft Trust Ltd v Can-Asia Capital Co.[188]
I will deal with the authorities relied on by Rhodes before outlining HPPL's submissions.
In Etri Fans Ltd v NMB (UK) Ltd the Court of Appeal of England & Wales found that, under s 1(1) of the Arbitration Act 1975 (UK), only a party to a curial action against whom proceedings had been brought in respect of an arbitral matter was entitled to seek a stay. However, the relevant legislation was different to s 8(1) of the Act. It provided that 'any party to the proceedings' could apply for a stay after entering an appearance but before delivering any pleadings or taking any other step in the proceedings. The Court of Appeal held that it was not the intention of the provision that a person who had not been sued in respect of the arbitral matter should be able to take advantage of the provision by applying to become a party to the proceedings purely for the purpose of obtaining a stay of an action which had not been commenced against it. The difference in the legislation is such that the decision is of no material assistance on the proper construction of the term 'a party' in s 8(1) of the Act.
Stancroft Trust Ltd v Can-Asia Capital Co is a Canadian authority. The British Columbia Court of Appeal held that, under the applicable Canadian legislation, so far as there were multiple defendants only one of which had a right to a stay pending arbitral proceedings, a stay as to one defendant would not stay the proceedings against all of the defendants. However, no reasoning was provided for the court's conclusion. In any case, the legislation under consideration is again in materially different terms to s 8(1) of the Act. It referred to a 'party to the legal proceedings' rather than a 'party to an arbitration agreement' as found in s 2(1) of the Commercial Arbitration Act. This decision is also of no material assistance on the constructional question raised by ground 4.
HPPL submitted that there were four reasons why the term 'a party' referred to any party to the arbitration agreement:
1. The word 'party' bears its usual meaning as provided for in the s 2(1) statutory definition - ie a party to the arbitration agreement.
2. Section 8(1)'s reference to 'a party', without qualification, refers to any party to the arbitration agreement. This is because whenever the Act seeks to limit the application of a provision to a particular party, as opposed to any party to the arbitration agreement, it introduces an express qualifier. (I have dealt with this submission at [333] - [336] above. While, in limited respects, there is superficial support for the contention, it has no real force. The different ways in which the term 'party' is used throughout the Act mean that close attention must be given to its use in the context of, and having regard to the purpose of, s 8(1) rather than drawing any conclusion from textual comparisons at other points of the Act.)
3. Section 8(1) sits within pt 2 of the Act dealing with arbitration agreements and follows s 7 - s 7(1) thereof defining the term 'arbitration agreement'. Section 8(1) then picks up the term 'arbitration agreement' demonstrating that the 'party' and the 'parties' can only be referring to a party and the parties to the 'arbitration agreement'.
4. The application of the s 2(1) statutory definition is consistent with the purpose of s 8(1) of the Act.
HPPL also relied on the circumstance that Singapore's adoption of the Model Law provides that 'any party to the agreement may ... apply ... to stay the proceedings ...' (emphasis added).[189]
The Singaporean provision is of no assistance in construing s 8(1) of the Commercial Arbitration Act. Although not adverted to in HPPL's submissions,[190] s 6(1) of the Singapore Act commences with '[d]espite Article 8 of the Model Law'. That is important so far as the Singapore Act adopts the Model Law '[s]ubject to this Act'.[191] In other words, s 6(1) of the Singapore Act displaces art 8 of the Model Law. What follows in s 6(1) then departs substantially from the language of art 8 of the Model Law and s 8(1) of the Western Australian Act. There is constant reference to 'party to the agreement'. While, given the desirability of uniformity of application, an important consideration in examining legislation intended to implement international agreements is to give weight to the construction which the international community has attributed to the relevant instrument or concept, no construction is evinced in choosing to adopt a particular regime despite the language of art 8 of the Model Law. This is an example of a State determining to implement a regime tailored to its own requirements rather than adopting the provision provided for in the Model Law.
Perhaps the most that can be taken from s 6(1) of the Singapore Act is the reminder that a domestic law may choose to depart from the Model Law. That has occurred in relation to the Commercial Arbitration Act so far as it has introduced the definition of 'party'. The significance of this departure is something that must now be considered.
The introduction of the defined term 'party', and its implications for the present case, may be contrasted with the issue in Subway Systems Australia Pty Ltd v Ireland. There the question was whether the Victorian Civil and Administrative Tribunal was a 'court' within the meaning and for the purpose of s 8(1) of the Commercial Arbitration Act 2011 (Vic). The Victorian legislation (like the Western Australian Act) omitted the Model Law's definition of 'court' even though it substantially enacted the Model Law. Maxwell P nevertheless had regard to the definition of 'court' in the Model Law in determining that VCAT was a court for the purposes of the mandatory stay provision.[192] His Honour stated:

[227]

Beach JA reached the same conclusion as Maxwell P. His Honour noted the textual difference between the Model Law and the Victorian Act and identified that a question arose as to whether, given the lack of any note drawing attention to substantive changes from the Model Law, the failure to define 'court' did not involve a substantive change.[194] Ultimately, however, Beach JA had regard to the Model Law definition in concluding that VCAT was a court for the purposes of s 8(1).[195] Kyrou AJA, who dissented, took a different view. His Honour stated that the question must be answered by the application of the ordinary rules of statutory interpretation as expanded by the Act.[196] In that respect Kyrou AJA did not agree that resort could be had to the definition of 'court' in the Model Law to determine the meaning of 'court' in s 8(1) of the Act - the definition had been omitted meaning that it was not intended to apply to the Act.[197]
While, in Subway Systems Australia Pty Ltd v Ireland, contrary views were taken as to the significance of the omission of a definition from the Model Law, there is a difference between the omission of a definition from the Model Law and the explicit introduction - within the Act - of a definition not found in the Model Law. The note to s 2(1) of the Act identifies that the definition of 'party' is not included in the Model Law. Such notes are included to draw attention to substantive changes from the Model Law.[198] The introduction of a substantive change as to the defined term 'party' is reflective of a deliberate decision by the Western Australian Parliament as to how the Model Law finds form and is carried into law in this jurisdiction.
It is not permissible to construe the term 'party' in the words 'if a party so requests' as if s 8 of the Act did no more than embody and effectuate art 8 of the Model Law. The task of statutory construction begins and ends with the statutory text.[199] The constructional question that arises requires the court to address the statutory text of the Act rather than the Model Law. It is necessary to construe s 8(1) of the Act having proper regard to the statutory definition of 'party' as found in s 2(1).

[228]

HPPL submitted that there is no textual basis for Rhodes' preferred construction. I reject that submission. It is true that, as HPPL contended, there is a substantial textual basis for HPPL's preferred construction. That textual basis is readily apparent in the statutory definition of the word 'party' in s 2(1). Assuming, for now, that the definition applies, the orthodox approach is to read the words of the definition into the substantive enactment and then construe the substantive enactment. Here that involves the salient words in s 8(1) being read as 'if a party to an arbitration agreement so requests' (emphasis indicating the words read in through the s 2(1) definition). Accordingly, as Rhodes accepted, its preferred construction necessitated a reading down of the statutory language.
The textual basis for Rhodes' preferred construction is threefold. First, s 8(1) opens with 'an action is brought in a matter which is the subject of an arbitration agreement'. Accordingly, the statutory text focusses on the curial action in an identifiable arbitral matter. In that context the 'a party' logically refers to a person who is a party to the dispute as constituted by the arbitral matter.
Second, and reinforcing the textual indicator already mentioned, the requesting party must request the referral to arbitration before submitting 'the party's first statement on the substance of the dispute'. This logically suggests that the party is a person who is entitled to - and would be expected to - submit a first statement on the substance of the dispute. Where there is a multi-party arbitration agreement it is not necessarily the case that this extends to all parties to the arbitration agreement. Rather, it is those persons who are parties to the arbitration agreement who are also parties to the action brought in the arbitral matter.
Third, s 8(1) contemplates the court referring 'the parties' to arbitration. I accept Rhodes' submission that, in context, this reference to 'the parties' is to the litigants contesting the arbitral matters in the curial action. There is no need - and indeed no basis - for the court to refer all parties to the arbitration agreement to arbitration. In referring the parties to arbitration the court is only concerned with those persons before it who are in controversy as to the arbitral matters. Persons who are parties to the arbitration agreement, but who are not parties to the arbitral matters in the action before the court, are outside the court's purview. They cannot be included within the term 'the parties' even giving due regard to the expansive definition in s 2(1) of the Act (as to which see [361] below). The recognition that 'the parties' to be referred to arbitration are only those litigants to the arbitral matters in the curial action provides strong support for Rhodes' preferred construction. Insofar as, ordinarily, words are assumed to be used consistently within a statutory provision, the meaning ascribed to the term 'the parties' logically bears upon and informs the meaning to be given to the term 'a party' in the phrase 'if a party so requests'.
For these three reasons there is, in my view, a respectable textual basis for Rhodes' preferred construction. But so too there is a substantial textual basis for HPPL's preferred construction. There is, in the circumstances, a constructional choice that falls for determination.
The constructional choice, and the parties' respective arguments, are influenced by the application of the s 2(1) statutory definition of 'party'. Rhodes urged that the definition was to be read down. In substance the submission was that, properly construed in the context of and having regard to the purpose of s 8(1) of the Act, the definition did not apply. There is a presumption that defined words in a statute have their defined meanings which are not to be displaced without good reason.[200] The definitions in s 2(1) of the Act are not expressed to be subject to the contrary intention appearing. It is accepted, however, that all statutory definitions yield to a contrary intention.[201] A statutory definition may be displaced expressly or by implication. In this respect, interpretation clauses must be interpreted reasonably - and so as to promote, not to defeat, the purposes of the Act which they are intended to elucidate.[202]
The ease or difficulty of fitting a definition into a particular operative provision may be a primary basis for deciding whether the definition should be excluded by implication.[203]
Rhodes did not contend that the application of the definition to the requesting 'party' resulted in s 8(1) being unworkable so far as a party to the arbitration agreement - not being a litigant in the curial proceedings - sought that the court refer the parties to arbitration. Perhaps that is because, in this particular case, HPPL is a party to the proceedings. Accordingly, HPPL had standing to make the application for a stay. But that will not always be the position. HPPL's preferred construction must also be considered in the scenario where the party to the arbitration agreement requesting referral to arbitration under s 8(1) is a stranger to the curial proceedings. Assuming the correctness of HPPL's preferred construction, how might such a non-party to the curial proceedings hold other parties to the arbitration agreement to their bargain to resolve their disputes by arbitration?
There is an available procedural means for such a person to invoke s 8(1) of the Act: the person may seek leave to intervene in the curial proceedings.
The court may permit a non-party to be heard in a proceeding as an incident of the court's power to hear and determine matters within its jurisdiction. Such intervention is rooted in the requirement to accord procedural fairness. The exercise of the court's jurisdiction should not affect the legal interests of persons who have not had an opportunity to be heard. Accordingly, a non-party whose legal interests would be directly affected by a decision in a proceeding will be entitled to intervene to protect his or her interests.[204]
In the situation under consideration in this appeal, a party to an arbitration agreement has a relevant legal interest which is directly affected by the court exercising jurisdiction even if that person is not a party to the curial proceedings. Insofar as, by agreeing to submit their disputes to arbitration, the parties have agreed that such matters are not to be heard and determined by a court, the continued prosecution of the curial proceedings breaches the negative stipulation that disputes of the kind governed by the arbitration agreement are not to be heard and determined by a court. A party to the arbitration agreement has an interest in holding the other parties to the arbitration agreement to their bargain and in putting a stop to a continuing breach of the arbitration agreement. That interest, in my view, is a legal interest that would suffice to permit intervention to invoke s 8(1) of the Act in circumstances where it is the court's very exercise of its jurisdiction that directly affects the interest.
This conclusion assumes that, conformably with HPPL's preferred construction, the requesting 'party' may be any party to the arbitration agreement. The significance of the conclusion is that the mechanism provided by s 8(1) is workable applying the s 2(1) definition of 'party'. There is no particular difficulty in fitting the definition into the operative provision. If the term 'party' is to be read down, as urged by Rhodes, the basis for doing so must be found in the text, context and purpose of the provision.
I have already addressed the text and relevant context of the term 'party' in the words 'if a party so requests' in s 8(1) of the Act. Additional consideration must now be given to the purpose of the provision - a topic that provides an appropriate setting in which to examine Rhodes' contention that HPPL's preferred construction led to potential absurd results.
Senior counsel for Rhodes posited a scenario where two parties to a multi-party arbitration agreement were content to proceed with a court determination despite the arbitration agreement. Those parties might proceed to a lengthy trial and be awaiting judgment. But then another party to the arbitration agreement - being a stranger to the litigation - might come along after the hearing and request that the court refer the parties to arbitration. There would be no bar on doing so given that the stranger could never have been required to submit, and would not have submitted, a first statement on the substance of the dispute. This, according to senior counsel for Rhodes, was an absurd result which could not have been the intention of the legislation when one looked to the purpose of the provision. Senior counsel for Rhodes submitted that, so understood, HPPL's preferred construction defeated the paramount object of the Act as found in s 1C. Senior counsel for Rhodes referred, in particular, to s 1C(1)'s reference to the resolution of commercial disputes without unnecessary expense or delay.
The proper construction of s 8(1) must cater to all possible scenarios. Nevertheless, there is danger in positing an anomalous scenario - one which produces an incongruous result - and having that aberrant outcome drive the constructional task. It is legitimate to test a proposed construction by applying it to various scenarios. Inconvenience or improbability of result may tell against the acceptance of a particular construction. But to reason solely that a proposed construction must be erroneous because it produces an incongruous result in an extreme situation is to invert the usual reasoning process of arriving at the proper construction of a statutory provision by construing the statutory language in context having proper regard to the purpose of the provision.
In any case, it should not be supposed that the scenario posited by senior counsel for Rhodes will inevitably result in a mandatory stay of proceedings. Section 8(1) falls to be applied within the context of the court's usual processes. Prima facie, if it is assumed that the stranger to the litigation knew of the curial proceedings but stood by taking no timeous action to invoke s 8(1), the doctrine of abuse of process is likely to be available to preclude an application of the kind postulated by senior counsel for Rhodes in seeking to undermine HPPL's preferred construction.
There are two further difficulties with this aspect of Rhodes' argument.
First, so far as Rhodes points to s 1C and the paramount object of the Act, the paramount object is not expressed merely in terms of avoiding unnecessary delay or expense. Rather, the paramount object is to facilitate the fair and final resolution of commercial dispute by impartial arbitral tribunals without unnecessary delay or expense (see s 1C(1)). The paramount object does not speak to determination by curial proceedings. So understood, the scenario posited by Rhodes is, at worst, neutral so far as the paramount object is concerned.
I say 'at worst' as, by s 1C(2)(a), the Act aims to achieve its paramount object by enabling parties to agree how their commercial disputes are to be resolved. This step along the way to the paramount object - akin to a secondary object - highlights the importance that the Act ascribes to the autonomy accorded to the parties to an arbitration agreement to determine how their commercial disputes are to be resolved. Section 8 furthers that secondary object, thereby better effectuating the paramount object. Viewed in this way, s 1C and the paramount object of the Act are supportive of HHPL's preferred construction in as much as that construction operates to allow each party to a multi-party arbitration to hold all other parties to their agreement.
Second, contrary to Rhodes' contention and closely related to the previous matter, I am satisfied that HPPL's preferred construction promotes the purpose or object underlying s 8(1) of the Act. By contrast, Rhodes' preferred construction would not promote that purpose or object.
It cannot be assumed that all arbitration agreements are bilateral. On occasions, as is the case with the Hope Downs Deed, there will be multiple parties to an arbitration agreement. In that circumstance, where each party to the arbitration agreement mutually covenants with each other party that any dispute between one or more of them in respect of a defined legal relationship is to be resolved by arbitration, all parties to the arbitration agreement have an interest in holding the other parties to the arbitration agreement to their bargain and in putting a stop to a continuing breach of the arbitration agreement. Commonly, but not exclusively, that interest will have been sought and obtained to ensure that disputes of the kind governed by the arbitration agreement are heard and determined confidentially - something recognised, at least implicitly, by the Act (see s 27E and the s 2(1) definition of 'confidential information'). But, whatever the motivation for the parties to mutually covenant that relevant disputes between one or more of them are to be submitted to arbitration, the very fact of the arbitration agreement means that where two parties to an arbitration agreement (A and B) are involved in curial proceedings in an arbitral matter, another party to the arbitration agreement (X) has an interest in A and B being referred to arbitration even if X is a stranger to the curial proceedings between A and B (X not being involved in the arbitral matter).
A person's interest, as party to an arbitration agreement, in holding other parties to the arbitration agreement to their collective bargain to submit disputes of a particular kind to arbitration, informs the proper construction of the term 'party' in the words 'if a party so requests' in s 8(1) of the Act.
The statutory purpose of s 8(1) is well established. I have identified that purpose at [319] - [320] above. Section 8(1) is premised on there being a matter that is required, by agreement, to be sub[205]ted to arbitration.205 Section 8(1) provides the Act's mechanism to enforce the parties' agreement to submit the relevant dispute to arbitration. It serves an integral role under the Act. So far as, by s 1C(2)(a), the Act aims to achieve its paramount object by enabling parties to an arbitration agreement to agree about how their commercial disputes are to be resolved, fulfilment of that aim is encouraged and advanced by providing a means to enforce the parties' agreement. The absence of an available mechanism to hold the parties to their bargain is liable to render the bargain illusory - and consequently to detract from achievement of the paramount object of the Act.
In this respect, adherence to the s 2(1) definition meaning of 'party' as 'party to an arbitration agreement' in the context of s 8(1) of the Act promotes the purpose underlying s 8(1) and the aim prescribed by s 1C(2)(a) of the Act.
Applying the statutory definition allows each person who has an interest in holding the parties to the arbitration agreement to their bargain to require the court to do so. By contrast, reading down the definition as urged by Rhodes does not promote the purpose underlying s 8(1) or the aim prescribed by s 1C(2)(a). Rather, contrary to the constructional guidelines in s 1C of the Act and s 18 of the Interpretation Act, reading and construing the term 'party' in the words 'if a party so requests' in s 8(1) as displacing the statutory definition and being confined to a party to the arbitral matter is apt to prevent or impede a party to the arbitration agreement from holding the other parties to the agreement to their collective bargain. Section 8(1)'s operation will be circumscribed. A mandatory stay will not be available notwithstanding that, as a party to the arbitration agreement, the person has an interest in holding the other parties to the arbitration agreement to their agreement to submit relevant disputes to arbitration. So understood, the narrower construction contended for by Rhodes will undermine the arbitration agreement in a manner that is inconsistent with s 1C of the Act.
For these reasons I accept HPPL's submission that the application of the s 2(1) statutory definition of 'party' to the term 'party' in the words 'if a party so requests' is consistent with the purpose of s 8(1) of the Act. Indeed, I would go further. In my view, for the reasons I have given, the application of the statutory definition - resulting in s 8(1) being read and construed as 'if a party to an arbitration agreement so requests' - promotes the purpose underlying s 8(1) and better achieves the paramount object of the Act.
As a result, like the primary judge, I would apply the statutory definition of 'party' to the term 'party' in the words 'if a party so requests' in s 8(1). I am not satisfied that a contrary intention appears so as to displace the statutory definition. To the contrary, the purpose of s 8(1) is promoted by the application of the statutory definition. It follows that, in my opinion, any party to the arbitration agreement may be a requesting 'party' within the meaning and for the purpose of s 8(1) of the Act - even if that person is not a party to the arbitral matter and whether or not that person is a party to the curial proceedings. This construction of s 8(1) is consistent with the text of the statutory provision, read and construed in context, and promotes the purpose underlying s 8(1) and the achievement of the paramount object of the Act.
I acknowledge that this construction of s 8(1) results in two textual incongruities. First, as previously mentioned, I would read down the 'parties' to be referred to arbitration to those parties in the arbitral matter in the curial proceedings rather than all of the parties to the arbitration proceeding. So, in this respect, the term 'parties' has a different meaning to the term 'party' notwithstanding that both terms are used in s 8(1). While, ordinarily, it is to be expected that a term will be used consistently within a statutory provision, that is not always so - indeed it has been said to be 'not a presumption of very much weight' and not a rigid rule, it all depends on context.[206] This is an occasion where the relevant term has not been used consistently. In this respect it is evident that the meaning of the term 'party' alters throughout the Act.
Second, as Rhodes emphasised, the requesting party must request referral 'not later than when submitting the party's first statement on the substance of the dispute'. I accept that the term 'party' must be construed in a context where there is a composite expression to this effect. There is, however, no warrant to read the latter part of the expression as confining the range of persons who are a 'party' able to invoke s 8(1). Rather, as I have previously observed, the latter part of the expression introduces a time limit within which a party may request that the court refer the parties to arbitration. So understood the latter part of the expression does not derogate from the generality of the earlier part of the expression.
In any event, for the reasons I have given, these internal linguistic considerations cannot control the proper construction of the requesting 'party' having regard to the statutory purpose of s 8(1) of the Act.
For these reasons I construe the term 'party' in the words 'if a party so requests' in s 8(1) of the Act to mean any party to the arbitration agreement. Accordingly, the primary judge was correct to hold that HPPL was able to invoke s 8(1) notwithstanding that it was not a party to the arbitral matter involving Rhodes and Bianca & John.
Ground 4 of the Stay Appeal must be dismissed.

DFD RHODES PTY LTD -v- HANCOCK PROSPECTING PTY LTD [2022] WASCA 97 (2 August 2022)

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