HANCOCK PROSPECTING PTY LTD -v- DFD RHODES PTY LTD [2020] WASCA 77 | Case summary

HANCOCK PROSPECTING PTY LTD -v- DFD RHODES PTY LTD [2020] WASCA 77 | Case summary | Zoe

[46]

In addition to the substantive appeals, there are a number of cross‑appeals, notices of contention and further appeals in relation to programming orders made by Le Miere J, of which more will be said later.
These appeals are the latest in a series of proceedings, both curial and arbitral, concerned with the effect of what has become known as the Hope Downs Deed.
The Hope Downs Deed is a deed entered into by a number of persons including, HPPL, Mrs Rinehart, Bianca Hope Rinehart (Ms Rinehart), Hope Rinehart Welker (Ms Welker) and Ginia Hope Frances Rinehart (Ms Ginia Rinehart). John Langley Hancock (Mr Hancock) entered into a further deed in April 2007 in which he adopted the Hope Downs Deed (the April 2007 Deed).[4]
Mr Hancock, Ms Rinehart, Ms Welker and Ms Ginia Rinehart are Mrs Rinehart's children (collectively, the Children).
One of the purposes of the Hope Downs Deed was to quell disputes about the title to various mining tenements, including what are defined in the Deed as the Hope Downs Tenements.[5] Those disputes arose from claims initially made by Mr Hancock in around 2003.
The Hope Downs Deed provides for releases by the parties to the Deed in relation to various Claims (as defined) and acknowledgements as to the ownership of the Hope Downs Tenements. Significantly the Hope Downs Deed, in cl 20, 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, Mr Hancock and Ms Rinehart have sought to bring proceedings in various courts throughout Australia, making claims concerning the conduct of Mrs Rinehart, HPPL and others. Those claims include claims relating to the ownership of the Hope Downs Tenements.
Despite some early success,[6] Mr Hancock and Ms Rinehart have been prevented from prosecuting those claims in court proceedings, each of which has been stayed, pending the determination of those disputes by arbitration. The disputes have been referred to arbitration pursuant to s 8(1) of both the Commercial Arbitration Act 2010 (NSW) and the Commercial Arbitration Act 2012 (WA) (Commercial Arbitration Act or Act).[7]
Of particular relevance to the present case are proceedings brought in 2014 by Mr Hancock and Ms Rinehart against Mrs Rinehart, HPPL and others in the Federal Court of Australia (the Federal Court proceedings). In the Federal Court proceedings Mr Hancock and Ms Rinehart claimed, inter alia, that the Hope Downs Tenements were held on trust for the Children. In addition to those substantive claims, the Federal Court proceedings also challenged the validity of the Hope Downs Deed itself (the validity claims).
The Federal Court proceedings were ultimately stayed, both as to the substantive claims and the validity claims, pending any arbitral reference between the parties to the Hope Downs Deed.
In all of these cases, the relevant court proceedings were commenced by one or more of the persons who are parties to the Hope Downs Deed. In the Federal Court proceedings, for example, Mr Hancock and Ms Rinehart sought relief against a number of respondents, all of whom (save for one) was a 'party' within the meaning of the Commercial Arbitration Act 2010 (NSW) (either on the basis that they were parties to the arbitration agreement in the Hope Downs Deed or claimed 'under or through' such a party).[8]
The primary proceedings in the present case are different.
The plaintiffs in the primary proceedings, WPPL and DFD Rhodes, are not parties to, or bound by, the Hope Downs Deed. In the primary proceedings, WPPL and DFD Rhodes claim interests in the Hope Downs Tenements.[9] The defendants to the WPPL proceedings are HPPL, Hope Downs Iron Ore Pty (HDIO) and the Children. The defendants to the DFD Rhodes proceedings include all of those parties, with the addition of WPPL.
In addition to filing defences in the primary proceedings, Mr Hancock and Ms Rinehart brought counterclaims against Mrs Rinehart and others, including all of the parties to the Hope Downs Deed (counterclaims). The counterclaims raise the same claims as the Federal Court proceedings.
Le Miere J stayed the counterclaims against parties to the arbitration agreement in the Hope Downs Deed, pursuant to s 8(1) of the Commercial Arbitration Act. His Honour also stayed the counterclaims against the other parties pursuant to the Court's general power to control its own proceedings.[10]
His Honour did not, however, stay the whole of the primary proceedings.
The appellants contend that, notwithstanding that WPPL and DFD Rhodes are not bound by the Hope Downs Deed, the Court must stay the primary proceedings (or, at least, the defences filed by Mr Hancock and Ms Rinehart) pending any arbitral proceedings between the parties to the Hope Downs Deed, pursuant to the Commercial Arbitration Act. In the alternative, they contend that Le Miere J erred in not staying the primary proceedings (or the defences) pursuant to the Court's general power. The appellants further contend that his Honour erred in not restraining Mr Hancock and Ms Rinehart from making claims in the proceedings in respect of the Hope Downs Tenements.
The correctness or otherwise of these contentions are the principal issues in these appeals. Before setting out the issues in more detail, it is appropriate to set out the various grounds of appeal, cross appeal and contentions in the substantive appeals (i.e. CACV 12 of 2019 and CACV 16 of 2019) so as to place them in their proper context.

[91]

As can be seen, there is a good deal of overlap between these grounds and the grounds in the HPPL appeal. In that regard, Rinehart Ground 1 and Rinehart Ground 2, in substance advance the same contention as HPPL Ground 1, namely that s 8 of the Commercial Arbitration Act mandated a stay of Mr Hancock and Ms Rinehart's defences in the primary proceedings. Rinehart Ground 3 is also concerned with that issue.
Rinehart Ground 4 is in identical terms to HPPL Ground 3.
Rinehart Ground 5 is in a similar form to HPPL Ground 4, and indeed would appear to be modelled on it. It should be noted, however, that while HPPL Ground 4 asserts error in the exercise of the learned primary judge's exercise of discretion not to order a stay of the primary proceedings, Rinehart Ground 5 asserts error in the learned primary judge's discretionary decision not to restrain Mr Hancock and Ms Rinehart from making a claim to the Tenements (that is, the alternative relief identified in Rinehart Ground 4). Presumably that is because, unlike HPPL, Mrs Rinehart is not a defendant in the primary proceedings. Mrs Rinehart would thus need to seek to enforce the negative stipulation in the Hope Downs Deed by coercive order rather than seek a stay of proceedings to which she is not a party.
At the hearing of the appeals, senior counsel for Mrs Rinehart did not draw a distinction between the discretion to grant a stay and the discretion to grant an injunction. Indeed, senior counsel developed the submissions on the basis that the discretionary considerations in relation to both the proposed stay and the proposed injunction were the same.[13] For that reason, I have addressed many of the discretionary considerations raised in Rinehart Ground 5 when dealing with HPPL Ground 4. It should be emphasised, however, that Rinehart Ground 5 is confined to the claim for injunctive relief. There is no ground of appeal in which Mrs Rinehart challenges the decision not to grant a stay of the primary proceedings (or of Mr Hancock and Mr Rinehart's defences) in the exercise of the Court's discretion.
WPPL filed a notice of contention in relation to Mrs Rinehart's appeal. It is in identical terms to its notice of contention in HPPL's appeal (set out at [25] above) and need not be repeated.
Similarly, Mr Hancock and Ms Rinehart filed a notice of contention and cross-appeal in relation to Mrs Rinehart's appeal, each of which is in the same terms as their contentions and cross-appeal in relation to HPPL's appeal (set out at [28] and [30] above).

[92]

From the above grounds of appeal, contentions and grounds of cross-appeal a number of broad issues emerge for determination in these appeals. Logically, they arise in the following order.
The first broad issue concerns the extent of any mandatory stay required by the Commercial Arbitration Act. Much, in that regard, turns upon the proper construction of s 8 of the Commercial Arbitration Act and, in particular, of the phrase 'matter which is the subject of an arbitration agreement'. Mr Hancock and Ms Rinehart rely upon that provision for contending that the learned primary judge was in error in ordering a stay of their counterclaims (Cross-appeal Ground 1). Both HPPL and Mrs Rinehart, by contrast, rely upon s 8 as the basis for contending that his Honour erred in not ordering a mandatory stay of Mr Hancock and Ms Rinehart's defences (HPPL Grounds 1 and 2, Rinehart Grounds 1, 2 and 3, WPPL Contention 1 and H & R Contention 1).
As the submissions in relation to these grounds and contentions were developed, however, it became apparent that HPPL and Mrs Rinehart's position is not limited to the effect of s 8 of the Commercial Arbitration Act. In particular, at the hearing of the appeals, both HPPL and Mrs Rinehart relied upon s 5 of the Commercial Arbitration Act as independently giving rise to a prohibition on the Court determining the issues raised in Mr Hancock and Ms Rinehart's defences.
The second broad issue in the appeals concerns the challenge to the learned primary judge's decision whether to stay the primary proceedings, or Mr Hancock and Ms Rinehart's defences, in the exercise of the Court's general power to control its own processes. As his Honour's decision not to grant a stay in the exercise of that power involved the exercise of a discretion, that challenge requires the demonstration of an express or implied error of the kind identified in House v The King[14] (HPPL Ground 4[15]).
HPPL alleges that the learned primary judge failed to take into account a number of material considerations and took into account a number of irrelevant considerations. As noted above, Mrs Rinehart raised a number of these matters in the context of the alternative claim for injunctive relief.
The third broad issue in the appeals concerns HPPL and Mrs Rinehart's alternative claims for injunctive relief on the various bases identified in their grounds of appeal (HPPL Ground 3, Rinehart Ground 4 and 5, WPPL Contentions 2 and 3). Those claims rely, in particular, upon the clause in the Hope Downs Deed whereby the parties undertake 'not to challenge the right of any member of the Hancock Group to any of the Hancock Group Interests at any time' (cl 7(b)).
In dealing with the appeals, I will address the grounds of appeal in the context of these broad issues. No doubt other issues will arise to be resolved along the way.
Before turning to the resolution of the principal issues in the appeals, it is appropriate to briefly set out relevant provisions of the Hope Downs Deed and to summarise the issues raised in the primary proceedings.

[127]

It is uncontroversial that beginning in about 1958 WPPL and HPPL carried on business as a partnership, which included exploring and prospecting for minerals, investing in property and other assets, mining for minerals and receiving royalties (the Partnership).
The WPPL proceedings start from the premise that the opportunity to explore for minerals, and acquire tenements, on the areas covered by the Hope Downs Tenements was a Partnership asset.[17]
WPPL pleads that, throughout the 1980s, two other entities in the Hancock Group, Hancock Mining Ltd (HML) and Hancock Resources Ltd (HRL), acquired various exploration licences over the areas ultimately covered by the Tenements.[18] Those areas, and the exploration licences, are variously referred to as being in the 'Hope Downs' area and the 'East Angelas' area. In that regard, the pleadings in the primary proceedings draw a distinction, particularly in relation to exploration licences (ELs), between 'Hope Downs ELs' and 'East Angelas ELs'. For present purposes, however, nothing turns on this distinction. Ultimately, the claims with respect to the Hope Downs Tenements cover claims to interests in both the Hope Downs area and the East Angelas area.
WPPL pleads that, prior to 1992, the shares in HML and HRL were held by HFMF and that those shares were held on trust for HPPL[19]. WPPL, accordingly, pleads that HML and HRL held their interests in the various exploration licences on trust for HPPL.[20]
WPPL pleads that HPPL's beneficial interest in those exploration licences were, in turn, held as an asset on trust for the Partnership.
The exploration licences were later transferred to HPPL and then to HDIO, a subsidiary of HPPL. WPPL maintains that HDIO then held the Tenements as an asset or interest of the Partnership.
WPPL pleads that on about 1 July 2005, HDIO and HPPL entered into a 50/50 unincorporated joint venture with Rio Tinto (and/or its subsidiaries) to develop the Tenements. As a consequence of the joint venture agreement, Hamersley WA Pty Ltd, a subsidiary of Rio Tinto, became a 50% shareholder in the Tenements.
This unincorporated joint venture is the 'Hope Downs Joint Venture' referred to in the Hope Downs Deed (thus making clear the identification of the tenements the subject of the primary proceedings as the Hope Downs Tenements, as defined in the Deed).
WPPL accordingly maintains that HDIO continues to hold its interest in the Tenements as an asset of the Partnership and that WPPL is entitled to 50% of the royalties that will in future be received by HDIO from Hamersley WA Pty Ltd in respect of the operation of the Tenements.
WPPL seeks, inter alia, declaratory relief, to recognise its asserted proprietary interests in the Tenements and the royalties.
The DFD Rhodes proceedings proceed from the same premise as the WPPL proceedings, namely that the opportunities giving rise to the Tenements were a Partnership asset and that WPPL's interest in the Tenements survived the various changes in legal ownership.
To this premise, DFD Rhodes adds the claim that the Partnership's interests are subject to a royalty agreement between the Partnership and DFD Rhodes, together with its former director the late Donovan Frances Duncan Rhodes (Mr Rhodes). As a consequence of that agreement with the Partnership, DFD Rhodes claims that the areas the subject of the Tenements are held on trust for DFD Rhodes to the extent of its royalty entitlement.[21]
DFD Rhodes, also seeks declaratory relief to recognise the proprietary interests that they claim.

[134]

A similar plea is made in relation to the shares in HRL.[27]
The 1995 Deed referred to in paragraph [4.4] is a deed between HPPL, HFMF and HRL, by reference to which WPPL pleads that the shares in HML and HRL were held by HFMF on trust for HPPL.[28]
Mr Hancock and Ms Rinehart's defences go on to plead that the various transfers in title to the Tenements have been impressed with a trust in favour of the Children, as the beneficiaries of the HFMF Trust.[29] Mr Hancock and Ms Rinehart deny that the Partnership or WPPL has, or had at the relevant times, any interest in the pleaded tenements.[30]
In addition to these defences based upon their asserted ownership of the Tenements, Mr Hancock and Ms Rinehart also plead a number of other defences to the claims, including laches and acquiescence, unclean hands and limitation defences. Those defences include, at least in part, pleadings as to the Children's ownership of the Tenements.[31]
As appears from paragraph [3A.3] of Mr Hancock and Ms Rinehart's defences, their defences to the primary proceedings, incorporate, by reference, both their pleadings in the counterclaims and in the Federal Court proceedings. Leaving aside the issues in these appeals, this is a method of pleading not to be emulated, and has the real potential to embarrass the future conduct of the proceedings (particularly in circumstances in which the counterclaims have been stayed).
At the hearing of the appeals, counsel for Mr Hancock and Ms Rinehart clarified that the references to the counterclaims and the Federal Court proceedings in their defences were included out of 'an abundance of caution' and that the defences were not intended to incorporate every argument that is made in the counterclaims, only those aspects that support their allegation that they have an equitable interest in the Hope Downs Tenements.[32] For the purposes of considering the appeals I will read the pleadings in accordance with counsel's clarification. Mr Hancock and Ms Rinehart accepted that, if these appeals were dismissed, the pleadings concerning their alleged interest in the Hope Downs Tenements (and only those pleadings) should be pleaded in the defences.

[177]

As the second paragraph of this extract explains, the reference in s 7(2) to staying 'so much of the proceedings as involves the determination of [a matter that is capable of settlement by arbitration]' makes it clear that the proceedings may encompass issues additional to those constituting a matter capable of settlement by arbitration. Consequently, the claims within the scope of the curial controversy need not be coextensive with the matter capable of settlement by arbitration. In my view, the same result is inherent in the phrase in s 8 'an action is brought in a matter which is the subject of an arbitration agreement'.
Tanning Research, and in particular its approach to the identification of the relevant 'matter' in the third paragraph extracted above, has since been cited and applied in the context of both s 7(2) of the International Arbitration Act and s 8 of the Commercial Arbitration Act.
In Recyclers of Australia Pty Ltd v Hettinga Equipment Inc,[47] for example, Merkel J described Tanning Research as authority for the view that, for the purposes of s 7(2), the matter to be determined in a proceeding is to be ascertained by reference to the subject matter of the dispute in the proceeding in the substantive, although not necessarily the ultimate, question for determination in the proceeding. The scope of the matter is to be ascertained from the pleadings and from the underlying subject matter upon which the pleadings, including the defence, are based.
Merkel J went on to observe that the manner in which a claim or defence is pleaded is of importance to, but is not determinative of, the characterisation of a 'matter' for the purpose of s 7(2). Once the 'matter' is properly characterised, the question to be determined is whether that matter is capable of settlement under the arbitration clause.[48]
The principles identified in Recyclers have been cited with approval in many cases concerning s 7(2): see, for example, Paharpur Cooling Towers Ltd v Paramount (WA) Ltd[49] and Flint Inc NZ Ltd v Huhtamaki Australia Pty Ltd.[50]
I pause to observe that Merkel J's reference to the 'matter' being determined by reference to the 'underlying subject matter' must be understood in the context of s 7(2) of the International Arbitration Act as a whole. In that regard, the proceedings to which s 7(2) applies (and can only ever apply), will, by reason of s 7(2)(a), always be a 'matter' in a proceeding brought by one party to the relevant arbitration agreement against another party to the arbitration agreement.
In Australian Maritime Systems, Mitchell J referred to a number of these authorities in the context of s 8 of the Commercial Arbitration Act. While recognising the differences between the language in s 8 and that in s 7(2) of the International Arbitration Act, his Honour's construction of s 8 largely accorded with the approach in Recyclers and the cases that have followed it.
Mitchell J said:[51]

[180]

Mitchell J's reference to the term 'matter' as invoking the concept of a controversy for determination points to another aspect of s 8 of the Commercial Arbitration Act that is important: namely, the identification of the parties to the relevant controversy for determination.
In this regard, it is important to note that the word 'matter' in s 8, falls within the context of the composite phrase 'an action ... brought in a matter which is the subject of an arbitration agreement'. In addition to identifying the 'matter' which is the subject of the arbitration agreement, as Deane and Gaudron JJ explained in Tanning Research in the first paragraph of the passage quoted at [125] above, the controversy falling for determination in the action must be identified. In that way, s 8 requires attention to, and characterisation of, the matter(s) in which the action [52] brought.52 The composite phrase requires attention, not only to the 'subject matter' of the controversy the subject of the action, but also (as explained below) the authorities suggest, to the parties who have the dispute or difference about that 'subject matter'.
As noted at [131] above, in the context of s 7(2) of the International Arbitration Act, it is an express condition of the application of the provision that there be a precisely delimited nexus between the parties to the action and the parties to the arbitration agreement. Section 7(2) only applies in the case of 'proceedings instituted by a party to an arbitration agreement ... against another party to the agreement' (s 7(2)(a)).
Accordingly, while the parties to the arbitration agreement and the parties to the court action need not be coextensive in every respect for s 7(2) to operate (see [163]-[171] below), s 7(2) can only ever apply where one party to the arbitration has commenced proceedings against another party to the arbitration agreement. Statements of principle, expressed in broad language, in cases concerned with s 7(2) must be read with this in mind.
According to its express terms, for example, s 7(2) of the International Arbitration Act could have no application to the plaintiffs' claims in the WPPL proceedings or the DFD Rhodes proceedings because neither proceedings 'were instituted by a party to an arbitration agreement'.
Even leaving aside the express terms of s 7(2)(a), the authorities support the notion that it is also inherent in the phrase 'a matter that, in pursuance of the agreement, is capable of settlement by arbitration' (in s 7(2)(b)) that the 'matter' is confined to disputes between the parties to the arbitration agreement.
In Comandate Marine Corp v Pan Australia Shipping Pty Ltd,[53] for example, Allsop J (with whom Finn J and Finkelstein J relevantly agreed) said:[54]

[183]

On this reading of s 7(2), the 'matter' is to be understood by reference to the parties to the arbitration agreement. The 'matter' is, relevantly, 'the differences between the parties, the controversy between the parties, which, under the agreement, the parties have agreed to submit to arbitration'.
This approach - which identifies the relevant 'matter' as being the differences between the parties to the agreement - has been adopted by this Court in relation to s 7(2)[55] and was applied by the Full Court of the Federal Court, in the context of s 8 of the Commercial Arbitration Act 2010 (NSW) in HPPL v Rinehart FFC.
In HPPL v Rinehart FFC Allsop CJ, Besanko and O'Callaghan JJ concluded that the claims made by Mr Hancock and Ms Rinehart in the Federal Court proceedings against HPPL, Mrs Rinehart and the other parties to the Deed, formed part of a 'matter' within the meaning of s 8(1) of the Act.
Their Honours then went on to consider whether the 'third party companies' (HDIO, MDIO and RHIO) were parties claiming 'through or under' the parties to the arbitration agreement (for the purposes of the extended definition of 'party' in the Commercial Arbitration Act 2010 (NSW)).
The Court determined that the third party companies did not claim 'through or under' the parties to the arbitration agreement.
Nevertheless, having so determined, their Honours went on to consider the argument put to the primary judge in that case that, even if they were wrong in that regard, the claims brought against those parties would in any event form part of the same 'matter' as the claims against HPPL and Mrs Rinehart. For this reason, and as further explained below, while the conclusion that HDIO, MDIO and RHIO did not claim 'through or under' the parties to the arbitration agreement was ultimately reversed by the High Court, the Full Court's reasoning in relation to true 'strangers' to an arbitration agreement, in my view, remains undiminished.
In relation to that issue, Allsop CJ, Besanko and O'Callaghan JJ identified the relevant issue as being concerned, in part, with the proposition 'that the claims of a party to an arbitration agreement against a non-party fall within an arbitration clause and an unwilling party or an unwilling non-party can be required to bring those claims or defend them in an arbitration'.[56]
In rejecting that proposition their Honours said:[57]

[195]

As can be seen, the High Court retained the distinction between the two forms of stay, excluding the remaining true 'stranger', Mulga Downs Investments, from the stay under s 8(1) of the Commercial Arbitration Act 2010 (NSW). The underlying premise of the Full Court's decision therefore remained: the 'body of differences' constituting the matter under the arbitration agreement did not include Mr Hancock and Ms Rinehart's actual pursuit of claims against Mulga Downs Investments.[65]
It should be stressed that none of the above should be taken to suggest that s 8 has no application where the action commenced in the court also includes 'parties' other than those who are 'parties' within the extended definition of the Act.
On the contrary, where a particular dispute between the parties to the arbitration agreement falls within the relevant arbitration clause,[66] the fact that the relevant court proceedings also involve strangers to the arbitration does not prevent the dispute between the parties to the arbitration agreement from constituting a 'matter which is the subject of an arbitration agreement' within the meaning of s 8 of the Commercial Arbitration Act.
To so conclude is simply to recognise, as noted in [120] to [121] and [125] to [126] above, that the 'matter' and the controversy (or controversies) in the court proceedings are not coextensive.
There are a number of cases in which a plaintiff, party to an arbitration agreement, has commenced an action against one or more other parties to the arbitration agreement, and the plaintiff has been referred to arbitration and the plaintiff's action stayed, notwithstanding that the plaintiff also sued one or more other persons who were not parties to the arbitration agreement.
For example, in John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd,[67] the plaintiff (John Holland) sued two defendants, with each of whom it had contracted. Its contract with the first defendant (Kellogg Brown & Root) contained an arbitration clause (as did the contract with the second defendant, although his Honour found that that arbitration agreement was inoperative).[68]
John Holland, relying on this Court's decision in Paharpur v Paramount argued that the arbitration clause in its contract with Kellogg Brown & Root only extended to disputes solely between the parties to the contract and did not apply where the dispute also involved strangers to the contract.
In rejecting that argument, Hammerschlag J said:[69]

[213]

In the same way, in my view, it is inconceivable that a person in the position of the parties, or an objective third party, would think that the agreement to resolve their disputes by way of confidential arbitration would not apply in circumstances in which there also existed disputes between the parties to the Deed and unrelated third parties as to the ownership of the Tenements.
Unlike in the decision in Paharpur v Paramount, there is no basis to attribute to the parties to the Deed a contractual intention to avoid a multiplicity of forums for the resolution of different disputes as to the ownership of the Tenements. Indeed in my view the parties to the Deed should be taken to have intended that as much of the dispute as they are able to have determined confidentially, should be determined confidentially (even if there exist other disputes involving parties to the Deed and strangers to the Deed).
Of course, whether, and to what extent, the Commercial Arbitration Act enables the parties to the Deed, by their contractual agreement, to affect the determination of the strangers' claims is a different issue and lies at the heart of HPPL and Mrs Rinehart's appeals. As a matter of construction of the Hope Downs Deed, however, it is clear that all disputes between the parties to the Deed inter se, however they arise, are intended to fall within the scope of cl 20.
Mr Hancock and Ms Rinehart's submissions in relation to the characterisation of the 'matter' within the meaning of s 8(1) of the Commercial Arbitration Act must also be rejected.
In that regard, Mr Hancock and Ms Rinehart's submissions, in my view, proceeded from the flawed premise that the 'matter' within the meaning of s 8(1) of the Commercial Arbitration Act is co-extensive with the 'entire' controversy in the legal proceedings (including the counterclaims). This is reflected in Mr Hancock and Ms Rinehart's purported identification of a 'single' controversy, which they submit is to be equated to the 'matter'.
This approach is more akin to the identification of a 'matter' for the purposes of Chapter III of the Commonwealth Constitution, which involves identifying the 'whole' matter encompassing all claims 'within the scope of the controversy'.[77] Such an approach is contrary to the authority of the High Court, including Tanning Research and Rinehart v HPPL HC (see [121]-[126] above), which in the context of both the International Arbitration Act and the Commercial Arbitration Act, makes clear that the 'matter' for the purposes of those Acts, is not (or need not be) co-extensive with the 'matter' in the constitutional sense. The same point was made by Allsop J in Comandate Marine Corp v Pan Australia Shipping Pty Ltd in the passage extracted at [140] above.
The fact that the 'whole' of the proceedings (or even the 'whole' of the counterclaims) may be said to involve a 'four-way dispute' in relation to the Tenements, and that that 'four-way dispute' cannot be the subject of an arbitration under the Deed, does not deprive a discrete controversy within the 'four-way dispute' (such as that between the parties to the Deed) of its character as a 'matter which is the subject of an arbitration agreement'.
In light of the authorities discussed above, in my view the involvement of WPPL and DFD Rhodes in the broader dispute (or the 'matter' in a Chapter III sense) does not deprive the dispute between the parties to the Deed (and those claiming under or through them) of the character of a 'matter' within the meaning of s 8(1) of the Commercial Arbitration Act. That dispute in the counterclaims against the parties to the Deed (in the extended sense) is in my view clearly a 'matter' in the latter sense. In this regard it is no different from the claims brought by Mr Hancock and Ms Rinehart in the Federal Court proceedings.
This is not to say that, insofar as the counterclaims are brought against WPPL and DFD Rhodes, the controversy (or controversies) with those parties forms part of the 'matter' for the purposes of s 8(1) of the Commercial Arbitration Act. Whether that is so is a question addressed below.
For the purposes of the cross-appeal it suffices to conclude that the claims made by Mr Hancock and Ms Rinehart in the counterclaims, against other parties to the Deed (and those claiming under or through them) are a 'matter' within the meaning of s 8(1) of the Commercial Arbitration Act. The learned primary judge was therefore correct to refer those parties to arbitration and stay the counterclaims against those parties pursuant to s 8(1).[78]
The cross-appeal must be dismissed.
Consistently with the decision in HPPL v Rinehart FFC the learned primary judge concluded that the claims made in the counterclaims against parties who were not parties to the Hope Downs Deed could not be the subject of a stay pursuant to s 8(1),[79] but that they should be stayed in the exercise of the Court's general power.[80] Beyond the issue raised in the cross-appeal, there is no challenge to that particular conclusion in relation to the counterclaims.
Nevertheless, as noted above, the learned primary judge's conclusion that the claims made in the counterclaims against parties who were not parties to the Hope Downs Deed did not form part of the 'matter' within the meaning of s 8(1) of the Commercial Arbitration Act, raises the principal contention made by HPPL and Mrs Rinehart in their appeals: namely, that the Act (and s 8(1) in particular) mandated a stay of Mr Hancock and Ms Rinehart's defences to the claims made by WPPL and DFD Rhodes.
This is the issue raised by HPPL Grounds 1 and 2 and Rinehart Grounds 1, 2 and 3, to which I now turn.

[219]

HPPL and Mrs Rinehart's submissions, in contending that Mr Hancock and Ms Rinehart's defences should be 'stayed' rather elided what, in a practical sense, they meant by the notion of 'staying' a defence and what effect such a stay would have on the primary proceedings.
No case was cited in which a court had 'stayed' a defence in proceedings or which identified what that might mean for the conduct of the proceedings in relation to which the defence has been 'stayed'.
HPPL, in its written submissions in support of HPPL Ground 1, submitted that 'a defence to a claim can also constitute a "matter" the subject of an arbitration agreement',[83] citing, in support of that proposition, In the matter of Ikon Group Ltd (No 2)[84] and Flint Ink.
No doubt this last proposition is correct. Ikon Group and Flint Ink both recognise that the characterisation of a proceeding as involving a 'matter which is the subject of an arbitration agreement' requires attention both to the relief claimed in the proceedings and the defences raised in relation to that claim. So much, indeed, is reflected in the early authorities, including Tanning Research and Recyclers, to the effect that the 'matter' is ascertained by reference to the substance of the underlying controversy between the parties.
Nevertheless, it must be emphasised that it is not the defence itself that is the relevant 'matter'; it is the controversy that relevantly constitutes the 'matter'. That is, while the defence to a claim may well give rise to a controversy that is the subject of an arbitration agreement, s 8 operates on the 'matter' itself, rather than the 'defence'.
Thus, for example, in Ikon Group, while recognising that certain claims for relief were 'caught by the arbitration agreement' because of the defences that would be raised to them, it was the claims themselves, against those particular defendants (rather than the defences) that were the subject of the stay.[85] Similarly, in Flint Ink, once it was determined that the respondent was claiming through or under a party to an arbitration agreement in its third party proceedings, it was the third party claim itself that was stayed.[86]
It remains the case, therefore, that there is no case cited in which a defence itself has been stayed. Nor have my researches revealed any Australian case.
The jurisdiction to 'stay a defence' was referred to in the recent decision of the High Court of New Zealand, Barfoot v O'Meara.[87] In Barfoot, Walker J had found the respondents in contempt of court orders requiring them to produce records relevant to a judicial review application. As a consequence, her Honour made an order that the respondents be prohibited from taking any further step in the underlying substantive proceedings (effectively leaving those proceedings undefended).
In doing so, her Honour said:[88]

[240]

Underlying HPPL and Mrs Rinehart's submissions, in this regard, is an approach that focuses solely on the 'subject matter' of the dispute constituting the controversy without adequate regard to (and separated from) the identification of the parties between whom there is a dispute about that subject matter.
By submitting, for example, that the 'claims to the Hope Downs tenements made by Ms Rinehart and Mr Hancock in their defence [is] a matter the subject of the arbitration in cl 20 of the Hope Downs Deed', and that HPPL is entitled to refer that matter to arbitration, HPPL can only be referring to those claims (i.e. factual and legal issues in the defences) in the abstract, and not by reference to the particular parties in relation to which those issues are joined.
In this regard it may be noted that HPPL and Mrs Rinehart do not go so far as to submit (in terms) that the 'matter' includes the disputes inter se between Mr Hancock and Ms Rinehart, on one hand, and WPPL and DFD Rhodes, on the other. A submission in those terms would, of course, confront the immediate problem that any dispute to which WPPL or DFD Rhodes is a party cannot be referred to arbitration.
Nevertheless, the effect of HPPL and Mrs Rinehart's submissions is, necessarily, that the 'matter' to which s 8 applies is, or includes, Mr Hancock and Ms Rinehart's defences to the claims made by WPPL and DFD Rhodes and that the Act mandates a stay of those proceedings, to that extent.
In this context, senior counsel for HPPL recognised that the logic of its position was that the Full Court of the Federal Court in HPPL v Rinehart FFC ought to have ordered a stay under s 8 in relation to all of the third parties (HDIO, RHIO, MDIO and Mulga Downs Investments) notwithstanding the Court's erroneous view that HDIO, RHIO and MDIO were not 'parties' within the extended definition in the Act.[105] It would also follow that, likewise, the final orders made by the High Court in Rinehart v HPPL HC ought to have included Mulga Downs Investments in the s 8 stay.
In this regard, HPPL submitted that the Full Court of the Federal Court had not turned its mind to the question whether s 8 mandated a stay of the claims made against third parties in any event.
I reject that submission. In my view, notwithstanding that the Full Court proceeded upon what was ultimately found to be an erroneous view that HDIO, RHIO and MDIO were not 'parties' within the extended definition in the Act, it did consider whether, in any event, s 8 extended to a dispute between true 'third parties' where that dispute relates to the subject matter of an arbitration agreement between other parties.
In particular, in my view this was the very issue dealt with by the Full Court at [324] to [331] of HPPL v Rinehart FFC and which I have summarised at [142] to [154] above.
To reiterate, the Court there concluded that, in light of the authorities, (including Tanning Research and Comandate Marine), the 'matter' includes the 'body of differences' between the parties to the relevant arbitration agreement, and not the actual pursuit of claims against the third parties.
In that context, the Court specifically recognised that a dispute between the arbitration parties may well include the 'right of one of the parties to pursue claims against a non-party'.[106] In so recognising, the Court referred to cl 7(b) of the Hope Downs Deed and was satisfied that HPPL and Mrs Rinehart's disputation of Mr Hancock and Ms Rinehart's right to bring a claim against HDIO was itself a dispute under the Deed.[107]
In doing so, however, the Court drew a crucial distinction between:

[243]

This distinction was crucial because, as the Court concluded, it was only the former, and not the latter, dispute that fell within the 'matter' for the purposes of s 8 of the Commercial Arbitration Act.
Notwithstanding that the Full Court proceeded upon what was ultimately an erroneous view as to whether HDIO, RHIO and MDIO were indeed third parties in this sense, in my respectful view, as a matter of principle, the distinction drawn by the Court was correct and in accordance with authority.
I reject HPPL and Mrs Rinehart's submissions to the contrary.
In my view, the authorities recognise that the identification, by a process of characterisation, of the relevant 'matter' for the purposes of s 8 of the Act, requires attention to the parties to a relevant dispute as much as to the subject matter of that dispute. And, save for those persons falling within the extended definition of 'party' under the Act, only a dispute between the parties to the arbitration agreement can constitute a relevant 'matter' - in other words, a 'matter which is the subject of an arbitration agreement' for the purposes of s 8.
In my view, this accords with, and finds support in, the objects and purpose of the Commercial Arbitration Act as a whole and the mandatory nature, and evident purpose, of the power in s 8. As s 1C(2)(a) of the Act makes clear the paramount objects of the Act are to be achieved, inter alia, 'by enabling parties to agree about how their commercial disputes are to be resolved'.
The emphasis in the Act is upon the voluntary submission by parties of their disputes to arbitration. By its terms, s 8 provides that when its preconditions are satisfied, the court must refer the parties to arbitration (subject to exceptions which are presently immaterial). Section 8 of the Act confers power on the court, together with a duty to exercise the power in a case where the power arises. If the statutory conditions are satisfied, the court 'must' make an order referring the parties to arbitration.[110] Where, despite agreement by the parties to submit identified disputes to arbitration, one of those parties commences an action in a court in relation to such a dispute, s 8 provides the mechanism for making effectual the parties' agreement as to how their commercial disputes are to be resolved. The mandatory nature of s 8 ensures that the parties to an arbitration agreement are held to their bargain to resolve their disputes by arbitration rather than curial determination.
None of this justifies reading s 8 as mandating a stay of a claim made by a person not a party (even in the extended sense) to an arbitration agreement.
Where persons other than those who are parties to an arbitration agreement are directly affected by the Act, the Act makes express provision in that regard (for example by the extended definition of 'party'). Otherwise, in my view, the Act does not operate directly upon disputes between parties who have not agreed to arbitration.
The definition of 'arbitration agreement' refers to 'disputes which have arisen or which may arise between them [i.e. the parties to the agreement]'. That definition, by referring to 'disputes ... between [the parties]', reinforces that the 'matters' the subject of the agreement are confined to such 'disputes'.
The term 'dispute' is consistently used elsewhere in the Commercial Arbitration Act, including in s 8 itself. Notably, arbitral proceedings are commenced in respect of a particular dispute (s 21) and the arbitral tribunal decides the dispute (s 28).
The construction I prefer is also, in my view, supported by the words in s 8(1) to the effect that the Court, 'must ... refer the parties to arbitration' (emphasis added).
As is clear from its language, s 8 provides for the parties, rather than the proceedings, to be referred to arbitration. For present purposes, this is significant for two reasons. First, it is obvious, both from the definition and from the statutory context, that this can only mean that the 'parties' as defined by the Act must be referred to arbitration; the Court cannot refer a true 'third party' to arbitration. Indeed no one in the present case suggested otherwise.[111]
The requirement in s 8 to refer 'the parties' to arbitration is significant because, as explained below, in my view there is a symmetry between the 'reference' under s 8 of the Act and any 'stay' to give effect to that reference under s 8 of the Act.
In that regard, unlike s 7(2) of the International Arbitration Act, s 8 does not expressly provide that the court is to order a 'stay of proceedings'. Nevertheless, it has been recognised, even in the context of s 7(2) of the International Arbitration Act, that a 'stay order is simply the mechanism whereby the parties are referred to arbitration'.
This principle can be traced to the decision of the Full Court of the Federal Court in Hi-Fert v Kiukiang. In that case, Emmett J, with whom Branson J relevantly agreed, said:[112]

[249]

Section 8 of the Commercial Arbitration Act, of course, does not expressly provide that the court must order a stay of proceedings between the relevant parties. Nevertheless, the recognition, in Hi‑Fert v Kiukiang, that a stay order is the mechanism whereby the parties are referred to arbitration, logically suggests that the obligation to refer the parties to arbitration, in s 8, should be construed as also involving, ordinarily at least, an obligation to grant a stay.
This has been the conclusion reached in relation to the equivalent to s 8 in other jurisdictions, namely that s 8, where it is engaged, requires a stay in order to effect a referral of the parties to arbitration.[113]
WPPL, in its notice of contention (WPPL Contention 1), challenges this conclusion and submits that the terms of s 8 do not mandate a stay. It submits that s 8 is silent as to what follows from a mandatory referral and that an order for a stay always remains a matter of discretion. In making that submission, WPPL did not identify how the court, where s 8(1) is engaged, might otherwise 'refer the parties to arbitration'. For reasons set out below, however, it is not ultimately necessary to deal with this contention.
WPPL's submissions nevertheless did appear to accept that, where a stay is ordered, the purpose of the stay is to give effect to the referral. In that regard it does not challenge the fundamental principle, reflected in Hi-Fert v Kiukiang, that a stay order is the mechanism whereby the parties are referred to arbitration.
There is therefore an essential correspondence between the referral under s 8(1) and the stay under s 8(1). One is the means of giving effect to the other. For that reason, in my view, there must also 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.
The fact that only 'the parties' can (and indeed must) be referred to arbitration, in my view supports my preferred construction that it is only proceedings as between those 'parties' that can, on a proper construction of s 8, be the subject of a mandatory stay under s 8(1).
A stay of proceedings between parties who or which cannot be referred to arbitration under s 8(1), in my view, would go beyond what is necessary to effect the referral of the parties whose dispute can (and must) be referred to arbitration under s 8(1). Indeed, the effect of such a stay may be such as to produce a result in which there is no forum in which a particular dispute can be resolved (i.e. court proceedings having been stayed and there being no relevant arbitration agreement binding those parties). This consequence of the appellants' construction, explained in more detail immediately below, is the second reason referred to in [256] above.
It is clear, and not in doubt, that an order under s 8 does not have compulsive effect, in that it does not require the parties to submit to arbitration. So much is clear from what Emmett J said in Hi-Fert v Kiukiang the passage set out in [259] above. In my view, this feature of s 8 - that an order under it does not require the parties to arbitrate - counts against the appellants' construction and supports the construction which I prefer.
On the appellants' construction, a claim advanced by a non-arbitrating party may be stayed on the basis of a referral to arbitration of the parties to an arbitration agreement. As it is possible that none of the arbitrating parties might then pursue an arbitration, the claim of the non-arbitrating party is left in abeyance in circumstances where the existence of any arbitration is outside the knowledge of the non- arbitrating party.
A construction compelling such a result cannot, in my view, be the proper construction of s 8(1). HPPL sought to meet this point by contending that the court could lift the stay, and the reference to arbitration, if the arbitrating parties were taken to have abandoned the arbitration.[114] It also submitted that the court could, in referring the parties to arbitration, order a stay of limited duration.[115]
In my view, it is difficult to find a textual foothold for reading the unqualified and mandatory language of s 8 as permitting such orders to be made. The language of s 8 sits more easily with a construction that involves a one-off exercise of the duty it imposes.
Moreover, what was said by Emmett J in Hi-Fert v Kiukiang tends against the reading invited by HPPL. In my view, the need to read s 8 as empowering orders of the kind referred to in paragraph [269] above counts against the appellants' construction. By contrast, on my preferred construction there is no need to read s 8 as permitting such orders, as no occasion for making them would arise. Section 8 applies, on my construction, only between parties (including parties under the extended definition) to an arbitration agreement. When an order is made in referring the parties to arbitration, they are free to arbitrate, or not, and to proceed at whatever speed they choose.
No doubt, in an appropriate case, the court might stay proceedings between parties that cannot be referred to arbitration in exercise of the court's discretionary power to control its own processes.[116] However, it is quite another thing to construe s 8 as requiring the court to stay proceedings brought by, or against, a person who is not a 'party' within the meaning of the Act.
Applying these principles to the present case, in my view, while the right of Mr Hancock and Ms Rinehart to dispute HDIO and its predecessor's title to the Tenements may well give rise to a 'matter' between Mr Hancock and Ms Rinehart and other parties to the Hope Downs Deed (in relation to which those other parties might seek relief against Mr Hancock and Ms Rinehart), the defences themselves are not, and do not mean that the primary proceedings are 'in', 'a matter which is the subject of an arbitration agreement'. That is because the defences themselves are confined to disputes between Mr Hancock and Ms Rinehart, on one hand, and WPPL and DFD Rhodes, on the other.
There is no respect in which the defences 'join issue' with any party to the Hope Downs Deed or with a party to that deed within the extended meaning in the Commercial Arbitration Act. To use the Full Court's expression from HPPL v Rinehart FFC, the 'body of differences' to which s 8 applies does not include the claims brought by WPPL and DFD Rhodes; nor does it include the defences to those claims.
In the same way, returning to the issue referred to at [196] above, insofar as the counterclaims are brought against WPPL and DFD Rhodes, neither do the claims in the counterclaims, against those parties, form part of the 'matter' for the purposes of s 8(1) of the Commercial Arbitration Act.
In this way, the application of s 8 of the Act to the defences and to the counterclaims is entirely consistent. It is only to the extent that each involves a dispute as between the parties to the Hope Downs Deed (or the extended definition of 'party' in the Act) that they give rise to a 'matter'.
In this regard, the learned primary judge was correct to reach the following conclusions:[117]

[253]

These conclusions, in my view, properly reflect the distinction to be drawn between the subject matter of the defences and counterclaims (in the sense of the factual and legal issues raised) and the disputes inter parties which give rise to the 'matter' or 'matters' which are the subject of the arbitration agreement in the Hope Downs Deed.
In this regard, the first of the paragraphs quoted in [277] above should be understood in the context of what follows. His Honour's recognition that the claims made by Mr Hancock and Ms Rinehart 'in their counterclaims and defences in which they dispute the right and title of HDIO ... is a matter which is the subject of the arbitration agreement' is not a reference to the 'actual claims' made against WPPL and DFD Rhodes.
In this context it is not, as Mrs Rinehart submits in support of Rinehart Ground 3, the fact that the counterclaims seek relief, and the defences do not, that is the critical distinction. It is the identity of the parties, in each case, in relation to whom issue is joined, that determines whether the dispute in relation to that issue is one that falls within scope of the arbitration agreement.
Nor, in my view, did the learned primary judge err in recognising that the 'claims' in relation to the Hope Downs Tenements which Mr Hancock and Ms Rinehart assert in their defences are not claims in the sense that they seek any relief. His Honour made that observation in the context of the alternative claim by HPPL and Mrs Rinehart for injunctive relief. The observation was entirely correct and did not lead the learned primary judge into error.
The learned primary judge was, accordingly, correct to conclude that s 8 of the Commercial Arbitration Act did not require a mandatory stay of the primary proceedings or the defences filed by Mr Hancock and Ms Rinehart.
Subject to the effect of s 5 of the Commercial Arbitration Act, that conclusion is sufficient to dispose of HPPL Grounds 1, 2(a) and (b) and Rinehart Grounds 1, 2 and 3.
I turn, therefore, to s 5 of the Act.

[265]

In providing that 'no court must intervene' in matters governed by the Act, (except where so provided by the Act), the purpose and effect of s 5 is not to prevent the courts from exercising their ordinary jurisdiction in relation to disputes between persons who are not parties to arbitration agreements.
Where a court proceeds to hear and determine a dispute that is not 'a matter which is the subject of an arbitration agreement' (as I have found to be the case in relation to the disputes with WPPL and DFD Rhodes), the fact that the resolution of that dispute may have some practical or legal effect on a party to an arbitration agreement does not involve the court 'intervening' in a matter that is subject to the Act.
Rather, in my view, s 5 is intended to reflect and give effect to the precept that, in relation to the involvement of courts in the conduct of arbitrations under the Act, from their establishment to their termination, the Commercial Arbitration Act is, in relation to matters governed by the Act, intended to be a code.
The use of the word 'intervene' in this context is significant. To 'intervene', in its natural meaning, means 'to come between',[131] 'to come in as something extraneous'.[132] In the context of s 5, in my view, it refers to the court intervening in, that is 'coming into', the arbitral process itself otherwise than in accordance with the Act.
In that regard, the Act confers upon the courts (and in particular the Supreme Court) a variety of powers and functions in relation to which the court may intervene in the arbitral process. They include matters such as the appointment of arbitrators,[133] challenging arbitrators,[134] termination of an arbitrator's mandate,[135] recognition and enforcement of interim measures,[136] assistance with taking evidence,[137] determining questions of law,[138] recourse against awards,[139] and enforcement of awards.[140] In relation to these matters, the Court may only intervene in the manner provided for in the Act.
More broadly, in my view, it is action of this kind that is contemplated by the term 'intervene' in s 5, not the exercise of the court's jurisdiction in relation to proceedings between persons who have not entered into (or are otherwise bound by) arbitration agreements.
It will be immediately apparent that an aspect of my preferred construction is that the word 'matters' as it appears in s 5 (i.e. 'matters governed by this Act') is not to be equated with the use of the word 'matter' in s 8 (i.e. 'matter which is the subject of an arbitration agreement'). Contrary to HPPL's submissions,[141] the word 'matter' does not have the same meaning in the two provisions.
In this regard, it is important to recognise that there is no definition of the term 'matter' in the Commercial Arbitration Act and word is used in a variety of different ways throughout the Act.
At some points the use of the word 'matter' clearly designates a particular thing as previously referred to (e.g. s 11(5), s 16(6), s 16(9), s 24B(2)(a)) or is otherwise used in the sense of 'thing' (e.g. s 40(1)(e), s 41, s 42). There are a number of references to the 'subject matter of the dispute' (e.g. s 17(3)(d) to (f), s 34(2)(b)(i), s 36(b)(i)) or 'subject matter' (s 25(3)(a)). At other times, the term is used in a sense that appears accordant with its usage in s 8(1) (e.g. s 34A(3)(d)).
In the particular context of s 5, in my view, the word 'matters' is used in the sense of 'circumstances or things regulated by the Act'. This construction is borne out by its context in the phrase 'matters governed by this Act'. The notion of a matter being 'governed' by the Act points to the kind of matters' identified in [301] above.
My preferred construction of s 5 is supported by the 'Explanatory Note by the UNCITRAL secretariat on the 1985 Model Law on International Commercial Arbitration as amended in 2006' (Explanatory Note). Section 2A(3) of the Commercial Arbitration Act provides that, in interpreting the Act, reference may be had to UNCITRAL documents relating to the Model Law.
The Explanatory Note provides the following commentary in relation to Article 5 of the Model Law (the progenitor of s 5):

[267]

Recent amendments to arbitration laws reveal a trend in favour of limiting and clearly defining court involvement in international commercial arbitration. This is justified in view of the fact that the parties to an arbitration agreement make a conscious decision to exclude court jurisdiction and prefer the finality and expediency of the arbitral process.
In this spirit the Model Law envisages court involvement in the following instances. A first group comprises issues of appointment, challenge and termination of the mandate of an arbitrator (articles 11, 13 and 14), jurisdiction of the arbitral tribunal (article 16) and setting aside of the arbitral award (article 34). These instances are listed in article 6 as functions that should be entrusted, for the sake of centralization, specialization and efficiency, to a specially designated court or, with respect to articles 11, 13 and 14, possibly to another authority (for example, an arbitral institution or a chamber of commerce). A second group comprises issues of court assistance in taking evidence (article 27), recognition of the arbitration agreement, including its compatibility with court‑ordered interim measures (articles 8 and 9), court‑ordered interim measures (article 17 J), and recognition and enforcement of interim measures (articles 17 H and 17 I) and of arbitral awards (articles 35 and 36).
Beyond the instances in these two groups, 'no court shall intervene, in matters governed by this Law'. Article 5 thus guarantees that all instances of possible court intervention are found in the piece of legislation enacting the Model Law, except for matters not regulated by it (for example, consolidation of arbitral proceedings, contractual relationship between arbitrators and parties or arbitral institutions, or fixing of costs and fees, including deposits). Protecting the arbitral process from unpredictable or disruptive court interference is essential to parties who choose arbitration (in particular foreign parties).
The Explanatory Note, in my view, supports a construction of Article 5 that is focused upon the arbitral process itself, and court 'involvement' or 'interference' in that process. The reference to the exclusion of court 'jurisdiction' in paragraph [15] of the note is clearly a reference to the contractual freedom of the parties to an arbitration agreement and their conscious decision to refer their dispute to arbitration.
Beyond that, the Explanatory Note provides no support for the notion that Article 5 (or s 5) create an area of jurisdictional void, in which the court is prohibited from determining disputes between persons who are not subject to an arbitration agreement because of the potential that its determination may overlap with issues in a dispute between parties that are so subject.
Whether the determination of those issues in the court proceedings might have an effect on parties to an arbitration proceeding is, no doubt, a matter relevant to the exercise of the court's powers over its own processes (see [272] above). It is not, however, a basis for interpreting s 5 as a basis for excluding the Court's jurisdiction entirely.
Both HPPL and WPPL called in aid, in this context, the decision of High Court of New Zealand in Carter Holt Harvey Ltd v Genesis Power Ltd.[142]
Carter Holt concerned an application, by Rolls Royce New Zealand Ltd (Rolls Royce) to stay an arbitration commenced by the issue of an arbitration notice by Genesis Power Ltd (Genesis). The application for a stay of the arbitration was made in court proceedings commenced by Carter Holt against both Genesis and Rolls Royce, as defendants.
Genesis argued that Article 5 of the First Schedule to the Arbitration Act 1996 (NZ) (the equivalent provision to s 5 of the Act) prevented the court from ordering a stay of the arbitration proceedings.
It will be immediately apparent that Carter Holt concerned an application to have the court interfere with, or become involved in, the arbitral proceedings themselves. The case is therefore concerned with the kind of involvement in an arbitration that I would regard as 'intervention' within the meaning of s 5.
And indeed, the discussion of Article 5, and the nature of the court's powers prior to the Arbitration Act, makes clear that it is involvement of this kind that has consistently been characterised as 'intervention'.
In relation to the reforms brought about by the Model Law, Randerson J said:[143]

[310]

In relation to these considerations, his Honour said:
1. I do not find those arguments convincing. Allowing both the arbitration and the court proceedings to proceed in tandem will lead to duplication of resources, and may force Hope Downs deed parties to litigate on two fronts. It gives rise to the risk of inconsistent decisions if the arbitration and the court proceedings proceed to judgment concurrently. If the court proceedings are resolved before arbitration, then the court proceedings may well envelop and practically dispose of the issue in the arbitration (ie whether HDIO holds the Hope Downs on trust for the HFMF Trust beneficiaries). That would enable Ms Rinehart and Mr Hancock to circumvent the arbitration clause in the Hope Downs deed.
2. On the other hand, staying the court proceedings pending the arbitration may not avoid any duplication or saving of resources. Upon the completion of the arbitration the disputes will have to come back to the court to resolve the issues between WPPL and the Rhodes parties and the defendants to the original action. When the matters return to the court, the parties who were not parties to the arbitration may seek to challenge findings made in the arbitration to which they were not party and by which they would not be bound. If those defendants do so, they would, in the broad sense, re-litigate issues already decided in the arbitration. That gives rise to not only duplication of resources but also the risk of inconsistent decisions.
3. I accept that if the court proceedings continue and are resolved before the arbitration then that might enable Ms Rinehart and Mr Hancock to circumvent the arbitration agreement in the Hope Downs deed. That is unfortunate but a result of the disputes between Ms Rinehart and Mr Hancock on the one hand and the other parties to the Hope Downs deed on the other hand being entangled with disputes between those parties and parties who are not parties to the Hope Downs deed. Ms Rinehart and Mr Hancock did not initiate the proceedings in this court. They were joined as defendants on the application of the plaintiffs who are not parties to the Hope Downs deed and whose disputes with Ms Rinehart and Mr Hancock cannot be resolved in the arbitration.
The learned primary judge then identified four considerations weighing heavily against a stay of the primary proceedings. His Honour said:
1. I find that four considerations weigh heavily against staying the court proceedings pending the arbitration. First, the plaintiffs in these proceedings commenced the proceedings before Ms Rinehart and Mr Hancock commenced the Federal Court proceeding.
2. Secondly, the plaintiffs' claims cannot and will not be determined in the arbitration. The exercise of the court's discretion to stay the proceedings involves a significant interference with the plaintiffs' rights to pursue proceedings in the court. The court should not lightly interfere with the exercise by the plaintiffs of their right to pursue their rights in the court.
3. Thirdly, this court is the only forum in which all of the claims to the Hope Downs tenements can be resolved. If the court proceedings are resolved first there will remain matters to be resolved by the arbitral tribunal but the major part of the dispute will have been resolved.
4. Fourthly, the proceedings in this court are considerably more advanced than the arbitral proceedings. It is likely, though not certain, that these proceedings will be resolved before the conclusion of the arbitral proceedings.
The learned primary judge concluded that, in all of the circumstances, to order a temporary stay of the primary proceedings pending the outcome of the arbitral proceedings would not promote the efficient or expeditious resolution of the whole of the disputes between the parties. His Honour held that it was not in the interests of justice to stay the whole of the primary proceedings pending the outcome of the arbitral proceedings.[153]

[331]

Having taken that matter into account, it was a matter for the learned primary judge what weight he accorded to it.
In that context, his Honour was correct to recognise that staying the primary proceedings pending the arbitration may not avoid duplication or save resources.[174] In that regard, it is clear that neither WPPL nor DFD Rhodes could be bound by anything that happens in the arbitration. The learned primary judge was therefore correct to take into account the fact that, whichever course was adopted, there was a risk of inconsistent decisions.
Given the variety of permutation of outcomes, in both the arbitration and the primary proceedings, it would not have been possible for the learned primary judge to attempt to quantify the different risks, depending upon which course ensued. His Honour did not err in his treatment of that consideration.
The passage in the reasons referred to in HPPL Ground 4(a)(iii) was specifically addressing the eventuality that the primary proceedings were completed before the arbitration. In that event, his Honour recognised the potential that the court proceedings, 'may well envelop and practically dispose of the issue in the arbitration', namely whether HDIO holds the Tenements on trust for the HFMF beneficiaries. His Honour also recognised that, should that occur, it would enable Mr Hancock and Ms Rinehart to 'circumvent the arbitration'.
I would make a number of preliminary points about this passage.
First, I do not read his Honour to be suggesting that, if the primary proceedings were resolved before arbitration, there would not be a risk of inconsistent decisions. That is, I would not read the third and fourth sentences of Reasons [202] as referring to distinct (or mutually exclusive) scenarios.[175] Rather in my view his Honour, in the fourth sentence of [202] was referring to one path to inconsistent decisions (where the primary proceedings are completed first) and in [203] was referring to another path to inconsistent decisions (where the arbitral proceedings are completed first).
In this way, as I have said above, in my view the learned primary judge took into account the fact that, whichever course was adopted, there was a risk of inconsistent decisions.[176] The reference to the two proceedings proceeding to judgment 'concurrently'[177] should not be understood as referring only to the highly unlikely event that judgment is given in the two proceedings at precisely the same time. Realistically, one set of proceedings would come first, even if they both 'proceed to judgment' concurrently.
Secondly, in recognising that the resolution of the primary proceedings before the arbitration 'may well envelop and practically dispose of the issue in the arbitration' his Honour was not undertaking a detailed analysis of whether, in a legal sense, the parties to the arbitration would be bound by the outcome of the primary proceedings in the later arbitration (as, for example, by the operation of res judicata or issue estoppel). Rather, his Honour was recognising, in a broad way, the potential for the outcome in the primary proceedings to affect the arbitral proceedings. In saying this I do not suggest that by describing the potential effect in this broad way, his Honour was excluding the possible application of those principles. It is simply to recognise that his Honour was not taken to, and did not express a concluded view as to, the application of those principles.
It is not surprising that the learned primary judge considered the issue in this way. The parties made very limited submissions before his Honour as to the extent to which res judicata or an issue estoppel might arise from the primary proceeding. As Beech and Vaughan JJA have observed (at [486]) DFD Rhodes' written submissions asserted, somewhat categorically, that there would be such an effect. At the hearing before his Honour, DFD Rhodes was more circumspect as to that effect and subm[178]ed that:178

[333]

Similarly, on appeal, HPPL's written submissions as to the effect of the primary proceedings on the arbitration were only put on the basis that there was 'risk' (in the sense of a potential) for res judicata or an issue estoppel to arise.[179]
Again that is not surprising. Whether and to what extent the outcome of the primary proceeding could bind a party in subsequent proceeding would necessarily depend upon the course of the primary proceedings, how those were decided and what findings were necessary to decide them (as I have discussed further at [410]-[412] below).
His Honour was therefore correct to approach this consideration in the broad manner that he did.
Finally, in recognising that the potential for the resolution of the primary proceedings to 'envelop and practically dispose of the issue in the arbitration' would enable Mr Hancock and Ms Rinehart to 'circumvent the arbitration', in my view his Honour clearly recognised that such an outcome was a consideration in favour of the grant of a stay. In that regard, therefore, his Honour properly had regard to that possibility as a relevant consideration.
As to the substance of HPPL Ground 4(a)(iii), namely that a determination of the primary proceedings which 'enveloped or practically disposed of' an issue in the arbitration would be an impermissible 'intervention' by the Court contrary to s 5 of the Act, it will be apparent from my conclusions in relation to the proper construction of s 5 that I reject that contention.
As I have concluded at [298] above, the fact that the resolution of proceedings that are not in 'a matter which is the subject of an arbitration agreement' may have some practical or legal effect on a party to an arbitration agreement does not involve the Court 'intervening' in a matter that is subject to the Act.
More broadly, in my view, it is apparent that his Honour did have regard to the potential for the outcome in the primary proceedings to affect the arbitral proceedings. The weight to which his Honour gave that consideration was a matter for his Honour.
The fact that HPPL did not initiate the primary proceedings and was not responsible for the timing of the stay application relative to the commencement of the proceedings (per HPPL Grounds 4(a)iv and v) were not, in my view, considerations the learned primary judge was required to take into account. At best those matters were neutral factors in the exercise of the discretion. Further, to the extent those matters were material, they were of such slender weight that the fact that the judge did not expressly refer to them could not sustain an inference that his Honour failed to take them into account.
The matter of timing that was material, in my view, was which proceeding (i.e. the primary proceedings vs the arbitral proceedings) were commenced first. The learned primary judge identified that the order in which the proceedings were commenced was a relevant consideration[180] and also the fact that the primary proceedings were considerably more advanced than the arbitral proceedings.[181]
From this aspect of the Reasons HPPL contended that his Honour considered that the timing of the stay application was a factor weighing against the granting of a stay.[182] I do not accept that construction of his Honour's reasons. The reference to the advanced stage of the primary proceedings was relevant, not as a criticism of the timing of the stay application, but as to which proceeding was likely to be resolved first.
His Honour made no finding, adverse to HPPL as to the timing of the stay application.
The final matter which it is alleged his Honour failed to take in account was the prejudicial effect of the proceedings on Mrs Rinehart. Consistent with the form of Rinehart Ground 5, this complaint was, strictly, made in the context of the alternative claim for an injunction. Nevertheless, as the submissions were developed on the basis that the discretionary considerations were common to both claims (see [36] above), it is convenient that I address that complaint now.
Mrs Rinehart's focus, in relation to the prejudicial effect of the proceedings on her, was on her substantive complaint that Mr Hancock and Ms Rinehart, by pleading their defences, are making serious allegations against Mrs Rinehart that they have contracted not to make.[183]
It is true that the learned primary judge, in identifying the considerations relevant to the exercise of his discretion in relation to the stay, did not separately address the particular prejudice to Mrs Rinehart by reason of the allegations raised in the defences being litigated in the Court, rather than in an arbitration in accordance with the parties' agreement in the Hope Downs Deed. Nevertheless, his Honour did clearly acknowledge, twice, that the effect of WPPL and DFD Rhodes' claims proceedings 'would enable Ms Rinehart and Mr Hancock to circumvent the arbitration clause in the Hope Downs deed', which his Honour described as an unfortunate result.[184]
Given the learned primary judge's conclusion that the Commercial Arbitration Act did not mandate a stay of the primary proceedings, in my view, consistent with what I have said at [365] to [369] above, his Honour was here using the word 'circumvent' in a broad sense, to refer to potentially adverse effects on the parties to the Deed.
Those particular references to 'circumventing' the arbitration agreement in the Deed, were specifically made in the context of the potential for inconsistent decisions between the primary proceedings and the arbitration. Nevertheless, in my view, the learned primary judge's consideration of the adverse effect on the parties to the Deed, by the continuation of the primary proceedings, cannot be so limited.
His Honour had, for example, earlier concluded that it was a tenable construction of cl 7(b) of the Deed that by raising the defences, Mr Hancock and Ms Rinehart were in breach of the Deed - and that the act of doing so was a dispute under the Deed (as between the parties to the Deed).[185] Indeed, his Honour found that there was a prima facie case of such a breach, in the context of his consideration of the claim for an injunction (which, of course, is the matter to which Mrs Rinehart's submissions in this regard were ultimately directed).[186]
Having regard to the learned primary judge's reasons as a whole, I am satisfied that his Honour had regard to the prejudicial effect of the proceedings on Mrs Rinehart, by the prima facie breach of the Deed. As with the other considerations, the weight to be given to that effect was a matter for the learned trial judge. No error has been demonstrated.
The learned primary judge did not err by failing to take into account any relevant considerations.

[335]

In alleging that the learned primary judge took into account a number of irrelevant and wrong considerations, HPPL challenges each of the matters relied upon by his Honour at Reasons [204] to [208]. Mrs Rinehart raises the same matters (with the exception of Reasons [204]) in the context of the claim for an injunction.
Dealing with each of those matters in turn.
As to Reasons [204], as I have already observed, in my view his Honour did regard the potential for Mr Hancock and Ms Rinehart to circumvent the arbitrations as a factor in favour of the stay application being granted (see [370], [380] to [381] above). The fact that that would be, in his Honour's words, 'unfortunate', in my view, demonstrates that to be the case. His Honour was not in error to observe that that result was a consequence of the entanglement of the disputes under the Deed with the disputes with plaintiffs, who are not parties to the Deed.
At Reasons [205] the learned primary judge referred to the fact that the primary proceedings were commenced prior to the Federal Court proceedings. That was, of course, correct. It was also, in my view, a relevant consideration. As a number of authorities referred to by his Honour recognise,[187] both the order in which the proceedings are commenced and the relative progress of each proceeding are relevant to the exercise of the discretion whether to stay parallel proceedings. Those matters obviously bear upon both the efficient and the expeditious resolution of all of the disputes.
In the present case, therefore, it was relevant that the issues raised by Mr Hancock and Ms Rinehart, which had been referred to arbitration, were commenced after the primary proceedings.
As noted at [376] above, HPPL contended that, by referring to the timing of the primary proceedings, his Honour considered that the timing of the stay application was a factor weighing against the granting[188] a stay.188 As I have already said, I do not accept that characterisation of his Honour's reasons. His Honour made no finding, adverse to HPPL or Mrs Rinehart, as to the timing of the stay application.
For the same reasons, his Honour was not in error in taking into account, at Reasons [208], the fact that the primary proceedings were considerably more advanced than the arbitral proceedings.
The consideration referred to in Reasons [206] was that:

[337]

HPPL submits that the fact that the plaintiffs' claims cannot be determined in the arbitration was neutral, because the matter the subject of the arbitration agreement cannot be determined in the Court. The reasoning underpinning that submission is specious. HPPL's contention that the matter the subject of the arbitration agreement cannot be determined in the Court is irrelevant to the point being made by his Honour in Reasons [206]. No one has suggested that there should be a stay of the arbitration. On the contrary, the parties to the Deed are free to pursue the arbitration with alacrity. They do not have to await the primary proceedings in order to do so.
The learned primary judge's reference to the fact that the plaintiffs' claims cannot be determined in the arbitration must be understood in the context of Reasons [206] as a whole, namely that the Court is the only relevant forum that is able to determine the plaintiffs' claims. For that reason, it followed that a stay of the primary proceedings would prejudice the plaintiffs by interfering with their rights.
In that context, the prejudice to the plaintiffs is obvious. HPPL, somewhat audaciously, submitted that 'his Honour [did not] identify how a stay would involve a "significant interference" with the plaintiffs' rights'.[189] The interference with the plaintiffs' rights involved in a stay of the proceedings hardly requires explication. It is a basic tenet of our jurisprudence that, where jurisdiction exists, access to the courts is a right.[190] WPPL and DFD Rhodes have exercised that right by commencing the primary proceedings. The proceedings have already been listed for trial once, which trial had to be vacated because of the claims raised by parties to the Hope Downs Deed.[191] The plaintiffs are not bound by, or interested in, the Hope Downs Deed. To stay their properly constituted actions, to await an arbitration in which they are not concerned, would clearly interfere with their rights as litigants.
The appellants' complaint in relation to Reasons [207] was that his Honour 'wrongly held that this Court is the only forum in which all claims to the Hope Downs tenements could be resolved, when in fact some claims can only be determined in arbitration'.
In this respect, the focus of this complaint is on the first sentence in Reasons [207]. That paragraph as a whole reads:

[339]

Notwithstanding that the ground is concerned with the first sentence in this passage, there was much debate at the hearing of the appeals as to the second sentence and, in particular, the extent to which his Honour was making findings as to whether HPPL, HDIO and the Children would be bound, in the arbitration by the outcome of the primary proceedings.[192] The parties' submissions ranged from submitting that his Honour was 'simply wrong'[193] to being 'entirely correct'.[194]
As to the first sentence in Reasons [207], which is that part expressly challenged by HPPL Ground 4(b)v, in my view, properly understood, his Honour's reasons are correct and reveal no error.
As his Honour had observed in the preceding paragraph (Reasons [206]), the Court is the only relevant forum that is able to determine WPPL or DFD Rhodes' claims. And, insofar, as they claim rights that are inconsistent with the claims made by WPPL and DFD Rhodes, all of the defendants are necessary parties to the primary proceedings. The Court is, indeed, the only forum that can determine that four way contest (in the sense of resolving the claims made by the plaintiffs in a way that would bind all of those parties).
His Honour's statement in Reasons [207] that the Court is the only forum in which all of the claims to the Hope Downs tenements can be resolved, then, is to be understood in the context that it is the only forum in which the claims, as they arise in the primary proceedings (as between the plaintiffs and the defendants), can be resolved. In my view his Honour was correct to so conclude, and correctly regarded that conclusion as a consideration militating against the grant of a stay (it being relevant to the efficient and expeditious resolution of the dispute).
That is not to deny, as HPPL Ground 4(b)v asserts, that there are some claims that can only be determined in the arbitration. At this point in the Reasons, however, his Honour was not saying anything in relation to the rights of Children vis-à-vis HPPL and HDIO, namely, the claims in the counterclaims that have been referred to arbitration.
For these reasons, in my view, HPPL Ground 4(b)v is without merit.
As it was the subject of attention at the hearing of the appeals, and is the point at which Beech and Vaughan JJA and I respectfully differ as to the construction of the Reasons, it is appropriate that I address the second sentence of Reasons [207].
It is apparent from that sentence that his Honour did contemplate (or perhaps assume) that resolution of the primary proceedings may have some binding effect on the scope of the issues in the arbitration. Nevertheless, I do not consider that his Honour was here making any definitive finding as to the effect of the primary proceedings on the parties to the arbitration.
Insofar as the learned primary judge did contemplate that the resolution of the primary proceedings may have some effect on the scope of the issues in the arbitration, in my view, his Honour was correct.
As I have observed at [365] to [368], his Honour did not undertake a detailed analysis of whether, in a legal sense, the parties to the arbitration would be bound by the outcome of the primary proceedings in the later arbitration (as for example, by the operation of res judicata or issue estoppel). His Honour should not be taken to have expressed a definitive view in the second sentence of Reasons [207] either.
Nevertheless, his Honour was correct to recognise, in a broad way, the prospect of some potential effect on the parties to the arbitration.
For example, if WPPL or DFD Rhodes (or both) are successful in their claims to an interest in the Tenements, each of the defendants to the primary proceedings, including HPPL, HDIO and the Children would be bound by that result vis-à-vis WPPL and DFD Rhodes. An arbitration between the parties to the Hope Downs Deed could not affect those interests.
In that eventuality, the Court would also necessarily have found that HDIO holds the Tenements on trust for HPPL. That is because WPPL and DFD Rhodes' claim is dependent upon the conclusion that the opportunities in relation to the areas covered by the Tenements were, at all times, held by HPPL as a Partnership asset.[195] Such a finding would be inconsistent with Mr Hancock and Ms Rinehart's claim that the Tenements have all times been held in trust for the Children as beneficiaries of the HFMF Trust. It might reasonably be argued that, in those circumstances, Mr Hancock and Ms Rinehart would be estopped from denying HPPL's interests in the arbitration.[196]
That is, of course, only one example of how the primary proceedings might be resolved. More difficult issues might arise if the primary proceedings are dismissed, in which case the Court's judgment would not make declarations as to any parties' interest in the Tenements. Whether, and to what extent, an issue estoppel might arise in those circumstances would depend upon what findings were necessary to dispose of the plaintiffs' claims.
While the second sentence in Reasons [207] leaves open the potential for the resolution of the primary proceedings to resolve issues beyond the interests of WPPL and DFD Rhodes, however, I do not take his Honour to have reached any definitive conclusions in that regard (and in particular as to which circumstances that would occur).
In this context, in my view Reasons [207] must be read in the context of Reasons [202], discussed at [361] to [369] above.
Again, his Honour was not there reaching any final conclusion as to legal effect on the arbitration ('may well envelop and practically dispose of the issue'). Much would depend upon how the issues in the primary proceedings were resolved. His Honour was simply recognising the range of possibilities.
Nor, in my view, should the second sentence of Reasons [207] be taken as a conclusion that the potential for the resolution of the primary proceedings to affect the scope of the issues in the arbitration per se was a consideration positively against the grant of a stay of the primary proceedings.
His Honour had just identified the potential for the determination of the primary proceedings to 'envelop and practically dispose' of an issue in the arbitration as 'circumventing' the arbitration and 'unfortunate' (Reasons [202], [204]). In my view, his Honour was there clearly identifying it as a consideration in favour of the grant of the stay (albeit that he did not find it convincing).
I recognise the force of Beech and Vaughan JJA's contrary view, particularly in light of the written submissions of DFD Rhodes to which they have referred. Nevertheless, I am not persuaded that his Honour should be taken to have accepted (indeed adopted) those submissions in their entirety. His Honour's reasons as a whole, in my view, reveal that he properly regarded the prospect of the primary proceedings 'circumventing' the arbitration agreement a consideration in favour of a stay. In those circumstances, I would not construe his Honour's reference in Reasons [207] to the potential effect of the primary proceedings on the arbitration as erroneously suggesting to the contrary.
For these reasons, in my view, Reasons [207] reveals no error. His Honour was correct to take into account that the Court was the only forum in which the four-way contest could be resolved (in the sense of resolving the claims made by the plaintiffs in a way that binds all the parties).
The final matter raised by HPPL in this context (and Mrs Rinehart in the context of Rinehart Ground 5) is that by misapplying John Alexander's, his Honour wrongly held that Mr Hancock and Ms Rinehart would not be bound in the primary proceedings if their defences were stayed.
I have already addressed the appellants' submissions in relation John Alexander's at [219] to [222] above. As I have there set out, the appellants did not maintain the submission that that the learned primary judge has misapprehended the effect of John Alexander's and accepted that that Mr Hancock and Ms Rinehart could not be bound by the primary proceedings if their defences were stayed.
In light of that concession, there is no basis for the contention that his Honour 'wrongly' relied upon John Alexander's.
The learned primary judge did not err by taking into account irrelevant considerations.

[362]

The challenge to the learned primary judge's refusal to grant an injunction is without merit.
In my view it is clear that the learned primary judge correctly apprehended the test to be applied in relation to the grant of an interim injunction and correctly identified the considerations relevant to the application of that test in the present case.
As to the test to be applied, the two main enquiries that arise on an application for an interim injunction are whether the applicant has made out a prima facie case and whether the balance of convenience favours the grant of the injunction.[202]
In relation to the first matter, the learned trial judge found that there was prima facie case of a breach of cl 7(b) of the Hope Downs Deed.[203]
In relation to the second matter, his Honour concluded that the balance of convenience was against the grant of an injunction, for the same reasons that there should not be a stay of the primary proceedings.[204]
In this context, the learned primary judge was not only, as HPPL submitted, 'aware of the possibility' that Mr Hancock and Ms Rinehart might 'circumvent' the arbitral proceedings in this regard, his Honour specifically acknowledged that possibility and took it into account. The weight that his Honour attached to that consideration was, as with the decision whether to order a stay, a matter for his Honour.
I have already addressed the matters raised by Mrs Rinehart in this regard in the context of Issue 2. For the reasons I have set out at [378] to [384] and [389] to [422] above, in my view, Mrs Rinehart has not established that the learned primary judge erred in failing to take into account material considerations or in taking into account any irrelevant considerations.
HPPL submits that his Honour did not specifically refer to the statutory conditions set out in s 17A of the Commercial Arbitration Act for the granting of interim measures.
There are two problems with this submission.
First, s 17A does not provide conditions for the grant of an interim measure by a court. Section 17A is expressly concerned with a request for an interim measure from an arbitral tribunal. As s 17A(1) says:

[366]

These conditions, to a large extent, reflect the test to be applied in an application for an interim injunction (the balance of convenience and the need for a prima face case, respectively).
Nevertheless, s 17A does not apply to an application to a court. While s 17J certainly provides that the court has the power to issue an interim measure (within the meaning of s 17(2)), it does not incorporate the provisions of s 17A. Indeed it provides that the court's power is the same 'as it has in relation to proceedings in courts'.
Secondly, and in any event, there is no basis to conclude that the learned primary judge did not have regard to the matters referred to by HPPL: namely, whether the harm to one party outweighs the harm to another. Such an assessment is precisely what the assessment of the balance of convenience is concerned with. That assessment includes the adequacy of damages which, on the balance of the authorities, is an aspect of the balance of convenience, rather than a separate requirement.[205] His Honour clearly had regard to the balance of convenience in refusing the injunction.
No House v The King error has been identified.
Before leaving Issue 3, there is another feature of the claim for an injunction that supports the learned primary judge's decision to refuse the injunction. It is a matter alluded to in WPPL's notice of contention in WPPL Contention 3.
Given that HPPL's claim for an injunction was based on the negative stipulation in cl 7(b) of the Hope Downs Deed, a claim that the Court should enforce that negative stipulation could not, ultimately, be separated from the issue (sought to be raised by Mr Hancock and Ms Rinehart in the counterclaims) as to whether the Hope Downs Deed is liable to be set aside. That is, a claim to enforce cl 7(b) - as a substantive covenant - itself raises the validity claim that the High Court in Rinehart v HPPL HC has clearly held to be a dispute under the Deed.
The proper forum to determine that claim, as HPPL and Mrs Rinehart have successfully contended in relation to the Federal Court proceedings and the counterclaims in the present case, is in an arbitration. Given that the interim measure in the present case, at least indirectly, raises the validity claim, in my view, a more appropriate forum in which to seek that interim measure is in an arbitration under the Hope Downs Deed.
While this aspect of the matter was not expressly referred to by the learned primary judge in the context of the balance of convenience, it is clear, in my view, that his Honour was mindful of it. The significance of the validity claim was referred to by his Honour in the context of Mr Hancock and Ms Rinehart's submissions in relation to the stay of the counterclaims. In that regard, Mr Hancock and Ms Rinehart had submitted that his Honour should decline to stay the counterclaims because the rights under the Deed were improperly obtained.
His Honour said, in relation to those submissions:[206]

[381]

I do not find those arguments convincing. Allowing both the arbitration and the court proceedings to proceed in tandem will lead to duplication of resources, and may force Hope Downs deed parties to litigate on two fronts. It gives rise to the risk of inconsistent decisions if the arbitration and the court proceedings proceed to judgment concurrently. If the court proceedings are resolved before arbitration, then the court proceedings may well envelop and practically dispose of the issue in the arbitration (ie whether HDIO holds the Hope Downs on trust for the HFMF Trust beneficiaries). That would enable Ms Rinehart and Mr Hancock to circumvent the arbitration clause in the Hope Downs deed.
On the other hand, staying the court proceedings pending the arbitration may not avoid any duplication or saving of resources. Upon the completion of the arbitration the disputes will have to come back to the court to resolve the issues between WPPL and the Rhodes parties and the defendants to the original action. When the matters return to the court, the parties who were not parties to the arbitration may seek to challenge findings made in the arbitration to which they were not party and by which they would not be bound. If those defendants do so, they would, in the broad sense, re‑litigate issues already decided in the arbitration. That gives rise to not only duplication of resources but also the risk of inconsistent decisions.
I accept that if the court proceedings continue and are resolved before the arbitration then that might enable Ms Rinehart and Mr Hancock to circumvent the arbitration agreement in the Hope Downs deed. That is unfortunate but a result of the disputes between Ms Rinehart and Mr Hancock on the one hand and the other parties to the Hope Downs deed on the other hand being entangled with disputes between those parties and parties who are not parties to the Hope Downs deed. Ms Rinehart and Mr Hancock did not initiate the proceedings in this court. They were joined as defendants on the application of the plaintiffs who are not parties to the Hope Downs deed and whose disputes with Ms Rinehart and Mr Hancock cannot be resolved in the arbitration.
I find that four considerations weigh heavily against staying the court proceedings pending the arbitration. First, the plaintiffs in these proceedings commenced the proceedings before Ms Rinehart and Mr Hancock commenced the Federal Court proceeding.
Secondly, the plaintiffs' claims cannot and will not be determined in the arbitration. The exercise of the court's discretion to stay the proceedings involves a significant interference with the plaintiffs' rights to pursue proceedings in the court. The court should not lightly interfere with the exercise by the plaintiffs of their right to pursue their rights in the court.
Thirdly, this court is the only forum in which all of the claims to the Hope Downs tenements can be resolved. If the court proceedings are resolved first there will remain matters to be resolved by the arbitral tribunal but the major part of the dispute will have been resolved.
Fourthly, the proceedings in this court are considerably more advanced than the arbitral proceedings. It is likely, though not certain, that these proceedings will be resolved before the conclusion of the arbitral proceedings.
The considerations in favour of staying the court proceedings pending arbitration are not convincing. In all of the circumstances to order a temporary stay of these proceedings pending the outcome of the arbitral proceedings will not promote the efficient or expeditious resolution of the whole of the disputes between the parties. It is not in the interests of justice to stay the whole of the proceedings in this court pending the outcome of the arbitral proceedings.
Accordingly, the primary judge approached the consideration of his exercise of discretion in the following manner. First, his Honour identified that there were only two 'sensible' options: (i) to stay the two primary proceedings ‑ allowing the arbitral proceedings to be completed before the curial proceedings; or (ii) to refuse the stay and thereby allow the curial proceedings to proceed in parallel with the arbitral proceedings (see [200]). There is no complaint on appeal in this respect. Secondly, his Honour identified and weighed the factors in support of staying the curial proceedings ‑ which were largely in the form of avoiding disadvantages associated or potentially associated with parallel curial and arbitral proceedings, one of which was the circumvention of the arbitration agreement (see [201]‑[204]). Thirdly, his Honour identified and weighed the factors in support of refusing the stay (and thus allowing the curial and arbitral proceedings to proceed in parallel) ‑ some of which were in the form of avoiding disadvantages associated with staying the curial proceedings and others of which were advantages associated with or potentially associated with parallel curial and arbitral proceedings (see [205]‑[208]).
The primary judge concluded ‑ having identified and weighed the factors in support of refusing the stay ‑ that the considerations in favour of staying the curial proceedings were not convincing (see [209]). In so doing his Honour was conscious of the overlap in issues between the curial and arbitration proceedings (see [197]).
In its terms, HPPL Ground 4(b)(v) focuses on the judge's statement, in the first sentence of [207], that all claims to the Hope Downs Tenements could be resolved in the court, contending that the stay of Mr Hancock and Ms Rinehart's counterclaim meant that their claim could only be determined in arbitration. However, in oral submissions, the parties joined issue on whether, as HPPL contended, the judge had erred by finding that resolution of issues in the court proceedings might bind the arbitral parties to the Hope Downs Deed as between themselves; and, if so, its significance for the exercise of the discretion. In the latter respect the chapeau to HPPL Ground 4(b)(v) identified that one of the complaints was that the primary judge took into account 'considerations that have a different effect if approached in accordance with principle'.
The parties' arguments concerning [207] of the reasons all proceeded from the premise that in [207] the judge found that the resolution of the issues in the curial proceedings might bind those defendants who are arbitral parties to the Hope Downs Deed as between themselves. HPPL submitted that the judge so found, and erred because the court proceedings cannot resolve any issue between the parties to the Hope Downs Deed.[211] Mrs Rinehart adopted the same position.[212] DFD Rhodes asserted that the judge was 'entirely correct', as the only place in which all the issues could be addressed was the court, this being a 'major part' of the primary judge's discretionary consideration of why the court proceedings should not be stayed in its general jurisdiction to control its own process.[213] WPPL adopted what had been said on behalf of DFD Rhodes.[214] Mr Hancock and Ms Rinehart submitted that 'what his Honour was talking about' was that the court's judgment in the primary proceedings would have a binding effect on the parties in the arbitration on the issue of the parties for whose benefit the Tenements were acquired.[215]
Thus, the debate included whether to reason that this was a factor that weighed against a stay of the curial proceedings pending the resolution of the arbitral proceedings was correct.[216]
We accept the shared premise of the parties' submissions as the proper construction of the primary judge's reasons at [207]. For the reasons that follow, in our view, the passage at [207] means what it says: the court is the only place in which all claims to beneficial ownership of the Hope Downs Tenements (including the defensive claims of Mr Hancock and Ms Rinehart that the Tenements were acquired for the benefit of the Children) can be resolved; and if the curial proceedings are resolved first (even with the stay of the counterclaim) the major part of the dispute in the arbitration (namely the competing claims as to the beneficial ownership, at acquisition, of the Hope Downs Tenements) will have been resolved.
In our view, the judge's reasons, read as a whole, reveal that his Honour proceeded on the basis that a decision by the court in the two primary proceedings on the issue of the basis on which, and parties for whose benefit, HML/HRL acquired, and HDIO holds, the Hope Downs Tenements will be binding as between the parties to the Hope Downs Deed and will bind them in the arbitration. As Quinlan CJ's reasons explain at [60]‑[89], that issue arises in both of the primary proceedings between the plaintiffs, on the one hand, and Mr Hancock and Ms Rinehart, on the other hand; HPPL admits the plaintiffs' pleas that HML/HRL acquired the Tenements on trust for HPPL.
We acknowledge that, as is pointed out in the Chief Justice's reasons, the parties did not refer the judge to any relevant authorities, and the parties made very limited submissions, concerning the potentially binding effect, as between the parties to the Hope Downs Deed as co‑defendants in the primary proceedings, of the resolution of issues in the primary proceedings. Nevertheless, DFD Rhodes' submissions to the primary judge provide some context for reading his Honour's reasons. DFD Rhodes submitted to the primary judge, in effect, that a significant reason to refuse a stay was that, without a stay there was a lesser risk of inconsistent findings than if a stay were granted. That was so, according to the submission, because the arbitrator's findings could not bind the plaintiffs (they not being parties to the arbitral proceedings), whereas the court's findings on an important issue would bind the arbitrating parties in the arbitration. As will be seen, it seems to us that, in substance, his Honour accepted that submission.
In this regard, DFD Rhodes made the following submissions:[217]

[389]

In reply submissions filed in advance of the hearing before the primary judge, Mrs Rinehart joined issue with these submissions, submitting that if a stay of Ms Rinehart and Mr Hancock's counterclaim were granted, having referred a matter to arbitration, the court could not itself then determine that same matter.[218]
In oral submissions, DFD Rhodes maintained its submission that the lesser risk of inconsistent findings if a stay were refused was a significant reason to refuse a stay. Immediately before the passage set out in [366] of Quinlan CJ's reasons, DFD Rhodes submitted that 'the arbitration will not have a material effect on the court proceedings, ... but the revers[219]s true'.219
The following features of the primary reasons persuade us that the reasons are to be read in the manner we have indicated.
The judge's statement of principles recognised the risk of inconsistent findings, as between the court and the arbitration, and of re‑litigation of common issues, as an important consideration in the exercise of the court's discretion.[220] At [202] and [203], the judge considered the scenarios that could arise if the stay were granted and if it were refused. In our view, the spheres in which there is, and is not, discussion in [202] and [203] of (i) the risk of inconsistent decisions; and (ii) the risk of a party re‑litigating a common issue, tends strongly to indicate a view on the part of the primary judge that the court's judgment on the issue referred to in [484] above would bind the arbitration and hence give rise to no risk of conflicting decisions.
In [202], the judge recognised the risk of inconsistent decisions if the arbitration and the court proceedings proceed to judgment concurrently. His Honour then referred to the position if the court proceedings are resolved before the arbitration. In that scenario, the judge said nothing more as to the risk of inconsistent decisions. Rather, he observed that the court proceedings may well 'envelop and practically dispose of' the issue in the arbitration, referring to whether HDIO holds the Hope Downs Tenements for the HFMF Trust beneficiaries. In so observing, the judge's use of the word 'practically' rather than 'legally' might suggest that his Honour was not referring to any binding effect. However, in our respectful view, three considerations indicate that the judge considered that the arbitrating parties would be legally bound.
First, in our view, the judge's failure to say anything more as to any risk of conflicting decisions is significant; the implication is that because, and to the extent that, the parties in the arbitration would be bound, no risk of conflicting decisions would arise. That is not to say that the judge found that there would be no risk of inconsistent decisions in any respect in the scenario that the primary proceedings were resolved first. Rather, the judge found that that risk is greatly diminished because, on the important issue of whether HDIO holds the Hope Downs Tenements on trust for the HFMF Trust beneficiaries, a finding by the court would be binding in the arbitration. Secondly, the judge observed that, if the court proceedings were to envelop and practically dispose of the issue as to for whose benefit HDIO holds the Tenements, that would enable Mr Hancock and Ms Rinehart to circumvent the arbitration clause. Insofar as the mention of circumvention was coupled with disposal of an issue in the arbitration, the primary judge was not referring to the mere circumstance that a dispute was being determined outside of arbitration, in breach of cl 20.2 of the Hope Downs Deed. It is difficult to see how circumvention would arise in the postulated scenario ‑ that the court proceedings dispose of the issue as to the parties for whose benefit the Tenements are held ‑ unless the parties were legally bound in relation to that issue. Thirdly, this is reinforced by what his Honour said in [203], to which we now turn.
In [203], the judge considered the scenario where the court proceedings are stayed pending the arbitration. The judge said that, by contrast with the scenario considered in [202] (namely, the scenario where the stay is refused), staying the court proceedings pending the arbitration may not avoid any duplication or saving of resources, because parties who are not parties to the arbitration may seek to challenge findings made in the arbitration to which they were not party and by which they would not be bound. In that scenario, his Honour said, those parties would, in a broad sense, re‑litigate issues already decided in the arbitration, giving rise to the risk of inconsistent decisions. Notably and by contrast, in [202] there is no corresponding discussion of the prospect that those not bound by the court's findings might 'challenge' them, and so re‑litigate the court's findings, in the arbitration.
In [204], the judge reiterated that, if the court proceedings were resolved before the arbitration, that may enable Ms Rinehart and Mr Hancock to circumvent the arbitration agreement in the Hope Downs Deed, thereby acknowledging the consideration constituting the third principal argument for a stay (as identified in [201]). His Honour then proceeded in [204] to point to matters tending to reduce the weight to be given to that consideration.
In our respectful opinion, the second sentence of [207] is a key indicator of the basis on which the judge proceeded. In that sentence, the judge considered the scenario in which the court proceedings were resolved before arbitration. In that scenario, his Honour observed that there would 'remain matters to be resolved by the arbitral tribunal but the major part of the dispute will have been resolved'. In context, the judge's reference to the 'major part of the dispute' can only mean the major part of the dispute in the arbitration (all disputes in the court proceedings having been resolved by judgment). Reading the judge's reasons as a whole, in our view, the reference to the 'major part' of that dispute is a reference to the issue of the parties for whose benefit HML/HRL acquired the Hope Downs Tenements. So read, the judge was saying, in effect, that if the court proceedings are determined first, this issue will have been resolved between the parties, including for the purposes of the arbitration. That reflects the submission made to the primary judge by DFD Rhodes.[221]
We acknowledge that it is possible to read these parts of the judge's reasons as meaning that the issue will have been resolved, but without having a legally binding effect on the parties to the Hope Downs Deed. However, we do not so read the judge's reasons. In our view, if that were the sense intended by the judge, his Honour would have made some reference to the risk of inconsistent decisions arising if any party to the Hope Downs Deed, being not bound, sought to challenge findings that had been made by the court. In this respect, to our mind, the contrast with the judge's reasoning in [203] is telling. Moreover, and significantly, the reference to other matters 'remain[ing] ... to be resolved' seems to us to indicate that the major part of the dispute would have been definitively and finally resolved ‑ only the balance remaining to be resolved in the arbitration.
At [205] the judge foreshadowed four considerations weighing heavily against a stay. All of what is said in [207], not solely its first sentence, is the third such consideration. In other words, the judge considered the effect of the court's decision, as explained in the second sentence of [207], as weighing against a stay.
It might fairly be said that there is some tension between what the judge said in [204] and in [207]. In [204], the judge recognised that insofar as the court proceedings were resolved first, potentially enabling Mr Hancock and Ms Rinehart to circumvent the arbitration agreement through the binding effect of the court's decision, that circumvention was a factor in favour of a stay (albeit that, in his Honour's view, its weight was diminished by the matters set out in [204]). In [207], the judge found that the binding effect of the judgment by the court on the issue of the parties for whose benefit HML/HRL acquired the Hope Downs Tenements would mean that the major part of the dispute in the arbitration had been resolved. As we have said, the structure of his Honour's reasons, and the location of this consideration in [207], to our minds compel a conclusion that the judge found that this consideration weighed against a stay. In our view, the tension between [204] and [207] does not justify reading [207] as meaning anything other than what, to our minds, it says. Rather, the tension reflects the difficulty in principle with the judge's approach in [207], dealt with in the next section of our reasons.
For these reasons, we construe the judge's reasons in a manner consistent with the parties' submissions to this court concerning [207] of the reasons. In effect, the judge accepted DFD Rhodes' submissions set out at [486] above and found that:

[396]

The facts in Munni Bibi, and the Privy Council's application of these principles to those facts, are explained by Murphy JA in QBE Insurance (Australia) Ltd v Lois Nominees Pty Ltd[225] in terms we adopt.
The principles stated in Munni Bibi have been applied and followed in other decisions of the Privy Council referred to by Murphy JA in QBE Insurance (Australia) Ltd.[226] The principles have not been doubted in decisions of intermediate appellate courts in Australia. In JN Taylor Holdings Ltd (in liq) v Bond,[227] King CJ observed, having set out the three conditions stated in Munni Bibi, that '[t]he existence of an actual lis, in the sense of proceedings, between the defendants concerned is not one of the requisites'. While McPherson JA expressed a contrary view in Interchase Corporation Ltd (in liq) v FAI General Insurance Co Ltd,[228] like Murphy JA in QBE Insurance (Australia) Ltd,[229] we consider that the decision in Munni Bibi itself demonstrates that a counterclaim between the defendants is not necessary in order that an estoppel may arise between them. In Interchase Corporation Ltd (in liq), Byrne J, with whom McPherson JA agreed, found, in effect, that because the co‑defendants were not relevantly in controversy, the three criteria outlined in Munni Bibi were not established.[230] The principles in Munni Bibi were also cited with evident approval in Insurance Exchange of Australasia v Dooley.[231]
We turn to consider how those principles might apply to a decision in the two primary proceedings. There are, of course, many different ways in which each of the primary proceedings might be resolved. In particular, there are a variety of bases on which the claim of each plaintiff might be found to fail. On many of them, no issue estoppel could arise between the defendants. Nevertheless, in our view, there are ways in which an issue estoppel between the defendants to the primary proceedings would appear to arise.
First, in order for a plaintiff to succeed in its claim, it must establish that when the Tenements were acquired by HML/HRL, they were held on trust for HPPL. That is an issue on which the defendants' interests are, or would appear to be, in conflict in the relevant sense. HPPL admits the position asserted by the plaintiffs, while Mr Hancock and Ms Rinehart assert that the Tenements were acquired for their benefit, not for HPPL. That issue has to be finally decided in the context of the court giving any proprietary relief to WPPL or DFD Rhodes in relation to the Tenements.
Secondly, the plaintiffs' claims might fail on the ground of failing on that issue ‑ that the Tenements were not acquired for the benefit of HPPL, but rather were acquired for the benefit of the Children. Again, that issue would have to be finally decided if it were to be the basis for defeating the plaintiffs' claims.
For these reasons, if the two primary proceedings are decided first, and the plaintiffs' claims succeed, or are rejected on the ground of the basis on which the Hope Downs Tenements were acquired, then, prima facie at least, an estoppel between the HPPL parties, on the one hand, and Mr Hancock and Ms Rinehart on the other, would appear to arise in relation to that issue.
The second step in the judge's reasoning as outlined in [499] above follows from this conclusion.

[398]

However, in our respectful view, the judge erred in treating this potential binding effect of a decision by the court in the two primary proceedings upon the parties to the arbitration as a factor counting against the grant of a stay. In essence, that is because, for the reasons explained below, where the court refers parties to arbitration pursuant to s 8 of the Act, the potential for the court's determination of parallel curial proceedings to bind the arbitral parties between themselves and thereby dispose of substantial issues in the arbitral proceedings (there being overlap between the curial and arbitral proceedings) is not a factor against a stay of the curial proceedings. Rather, in our respectful view, it is a factor ‑ one of many to be weighed in the balance ‑ in support of staying the curial proceedings.
Generally speaking, the weight to be given to competing considerations in a discretionary decision is a matter for the decision‑maker. However, in the present case, the court's discretion fell to be exercised in the framework that the court's power and duty under s 8 had been engaged in respect of the counterclaim. The primary judge referred the parties to arbitration in respect of the counterclaims and granted a stay of them. The object of the referral under s 8 is to give effect to the parties' agreement that the matters the subject of the arbitration agreement be settled by arbitration in accordance with that agreement.
In our respectful view, in circumstances where Mr Hancock and Ms Rinehart's counterclaims were the subject of a mandatory referral to arbitration, for the court to decide an issue so as to bind the parties to the arbitration agreement in relation to a matter the subject of the agreement, and in respect of which the court had referred the parties to arbitration, would (i) tend to undermine the efficacy of the parties' agreement to arbitrate and the arbitration itself; and (ii) undermine and, to the extent of that issue, sidestep and render inutile the mandatory referral under s 8.
In our view, that does not, as HPPL submits, result in the invalidity of the court's ultimate decision in the two primary proceedings insofar as the court decides an issue that would bind the arbitrating parties. Rather, having referred the parties to arbitration in relation to the counterclaim, in our respectful view it was not open to treat the prospect of a decision by the court ‑ as to the issue concerning for whose benefit the Tenements were acquired ‑ being binding upon the parties in that arbitration as a factor counting in favour of allowing the primary proceedings to proceed without being stayed. To do so would not be consonant with ‑ and would undermine ‑ the mandatory referral under s 8. To the contrary, the potential for the court to make a finding that was binding in the arbitration was a factor pointing the other way, in favour of a stay.
For the above reasons, we would uphold HPPL Grounds 2(e), 4(b)(ii) and 4(b)(v).

[470]

Beech and Vaughan JJA have concluded that the application for a stay of the primary proceedings should be refused. The consequence of that conclusion is that the appeals should be dismissed.
As I would have dismissed the appeals, for the reasons I gave in the appeal reasons, it is not necessary for me to determine whether I would have exercised the discretion differently to the learned primary judge. Nevertheless, it is appropriate that I record my agreement with Beech and Vaughan JJA's reasons for declining to order a stay.
In particular, I agree with their Honours that the interests of justice could not justify a stay of the primary proceedings that would prevent them from being progressed to the point where they were ready for trial. Given the size and complexity of the primary proceedings, to order a stay that would prevent the parties from completing all necessary pre-trial steps, thereby putting the litigation in a state of indefinite stasis, would have the capacity to cause significant delays in the resolution of WPPL and DFD Rhodes' claims.
In that context, the prospect of the parties to the Hope Downs Deed being twice vexed is of little weight in all of the circumstances. As Beech and Vaughan JJA observe at [152] those parties are undoubtedly well resourced. Their appetite for disputation, both arbitral and curial, rather supports the inference that they would take any potential duplication of resources in their stride.
I also record my express agreement with their Honours' observation that HPPL would be at liberty to make a further application for a stay if the primary proceedings are ready for trial before the arbitration, on the basis that there has been a change in circumstances. The result of any such application would, of course, depend upon the circumstances then existing, including the progress of the arbitration.
While I concluded in the appeal decision that I would have refused leave to appeal in each appeal, my view as to whether the learned primary judge was in error was a minority one. In light of Beech and Vaughan JJA's conclusions in HPPL's appeal (CACV 12 of 2019) the appropriate orders in that appeal are that leave to appeal be granted, but the appeal be dismissed.
In her separate appeal (CACV 16 of 2019) Mrs Rinehart did not demonstrate error on any basis. The orders in Mrs Rinehart's appeal should be that leave to appeal be refused and the appeal be dismissed.

[528]

the extent to which [John] and [Bianca] have released, or covenanted not to make, any claims to the Hope Downs tenements on multiple occasions; and 2. the knowledge of WPPL and/or the Rhodes parties of the matters above.
HPPL submits that, contrary to the submissions of the stay opponents, Bianca and John's defences assert a current interest in the Tenements that is enforceable against the plaintiffs - the issue is thus not confined to the question of for whose benefit the Hope Downs Tenements were acquired.[274] That, it says, reflects what the primary judge said[275] and what was said by the plurality in the appeal reasons [484] and [492].[276]
Consequently, HPPL submits, an issue estoppel may arise in relation to the question of for whose benefits the Tenements are now held - it is not restricted to the question of for whose benefit the Tenements were acquired.
HPPL submits that whether any issue estoppels arise and, if so, their nature and scope is uncertain.[277] It submits that, for reasons explained in its submissions, Ginia and Hope may not be bound. If that was so, it is unclear how HPPL and HDIO could be bound against some of the Children, namely Bianca and John, while not being bound as against Ginia and Hope.[278] Further, HPPL submits that it is unclear whether an issue estoppel can arise between co‑defendants in the absence of a counterclaim, referring to authority that casts doubt upon that.[279] It points to the unsettled state of the law and the absence of clear authority.
HPPL submits that the uncertainty as to the extent of the risk of issue estoppels, and their potential scope, cannot be resolved by this court in giving reasons on this application.[280] HPPL points to the risk of issue estoppels, and the attendant uncertainty, in support of the stay. It submits that the nature and extent of issue estoppels will not be known until the end of the arbitration and that the arbitrator's decision in that regard will be effectively unappellable.[281]
HPPL also points to authority that an issue estoppel cannot be waived.[282] However, it accepts that it may be open to parties to an arbitration agreement to, in effect, agree that there is no issue estoppel in defining the matters requiring arbitral resolution.[283] For reasons to be explained, it is not necessary to consider whether this apparent concession is correct (see [108], [137], [139] and [140] below).
In this framework, HPPL advances a number of reasons why the stay should be granted.
First, a stay will avoid the risk that HPPL and HDIO are prevented from relying upon the Hope Downs Deed and related deeds in the primary proceedings.[284] It submits that given the risk that HPPL and HDIO will be bound by a finding in favour of Bianca and John, HPPL and HDIO will be 'required to deploy' the Hope Downs Deed and related deeds, which would answer a number of the assertions made by Bianca and John. Provisions of the deeds, including the acknowledgement, the release and the covenant not to sue, could defeat a claim by Bianca and John that the Hope Downs Tenements were acquired for the Children's benefit - thereby avoiding the finding, potentially binding in the arbitration, identified in this court's reasons at [507]. It is clear that other parties would contest the relevance of the Hope Downs Deed, or otherwise seek to prevent HPPL from relying upon it in the proceedings. The primary proceedings should be stayed to avoid the risk that HPPL would be so prevented, which would give rise to injustice to HPPL and HDIO.
HPPL challenges submissions by certain stay opponents to the effect that HPPL could not rely on the Hope Downs Deed in the primary proceedings. HPPL submits that, given the risk of issue estoppels already identified, as a matter of fairness, it must be able to tender the Deed as evidence that Bianca and John's claims have been extinguished - it says the Deed is a complete answer to their claims as to the acquisition of the Tenements.[285] While HPPL accepts that the validity of the deeds is being challenged in the arbitration, with the result that Bianca and John could not, in the primary proceedings, advance their challenge to validity, in its submission that cannot or should not prevent HPPL from relying on the deeds in the primary proceedings.[286]
Secondly, granting a stay would allow the validity of the Hope Downs Deed to be determined first in the arbitration, which is likely to have the result that some issues in the primary proceedings fall away.[287] Because that challenge to the validity is to be determined solely in the arbitration, the arbitration should proceed first - if the arbitration determines that the Hope Downs Deed is valid, Bianca and John will be precluded from agitating their defences in the primary proceedings. In this way, the arbitration will determine the proper defendant to WPPL's and Rhodes' claims.
In support of this submission, HPPL refers to the decision of the Court of Appeal of Singapore in PUBG Corporation v Garena International I Private Ltd,[288] submitting that the same reasoning applies in the present case. In particular, it submits that if there is a valid settlement that has the effect of compromising claims the subject of court proceedings, the court proceedings should not proceed - the validity of the settlement must be determined first. Only if, and after, it is determined that there is no valid settlement, should the court proceedings continue.[289]
Thirdly, a stay would avoid the circumvention and undermining of the deeds and of the Act.[290] To permit the proceedings to continue in open court, without the benefit of confidentiality, would 'obliterate the contractual bargain struck by the parties to the Hope Downs and related deeds'.[291] HPPL points to what the plurality said in Rinehart v Hancock Prospecting Pty Ltd[292] in the High Court at [45] - [46]. Allowing the two sets of proceedings to continue in parallel and to determine the same issues also undermines the Act. The majority of this court recognised at [512] - [513] that the circumvention of the contract and the statute in this way are considerations in favour of, not against, the stay of the proceedings.
HPPL rejects the stay opponents' contention that it is not prejudiced because it will be free to rely upon the Hope Downs Deed in the arbitration, so that if the Hope Downs Deed is a complete answer to the claims, that will be given effect in the arbitration. It submits that this would undermine one of the evident and fundamental purposes of the Deed - to have all disputes as to title and as to the Deed determined in a single forum.[293] Further, HPPL submits that if a finding as to beneficial interest is made by the court, this will give rise to a question of construction of the Deed, to be determined in the arbitration, which should not have arisen and which has the potential to operate to the prejudice of HPPL. That question of construction is whether the release, expressed to extinguish a claim, extinguishes or releases an established interest.[294]
To this may be added a point made on behalf of Mrs Rinehart. Binding factual findings as to beneficial interest may affect the arbitrator's approach to the question of validity, given that the validity claims incorporate and rely upon the substantive claims.[295]
In these respects, HPPL submits its substantive rights are liable to be prejudiced if no stay is granted, whereas the delay arising from a stay will not affect the plaintiffs' substantive rights.[296]
Fourthly, a stay would avoid a massive duplication of resources and the possibility of inconsistent findings, outcomes which are to be avoided.[297]
In written submissions, HPPL asserted that the arbitration was likely to be resolved before the proceedings.[298] Its oral submissions were less ambitious, and more realistic. It submits that the primary proceedings may not be resolved before the arbitration.[299]
HPPL offers an undertaking to provide an update in relation to the status of the arbitration every three months to WPPL, Rhodes and the trial judge, and to prosecute the arbitration expeditiously.[300]
Finally, HPPL submits that any prejudice to WPPL and Rhodes is confined to delay. While it acknowledges that the court might see that as a weighty factor, HPPL submits that it is outweighed by the risk of impairment of its substantive rights in the manner and respects already outlined.[301]

[529]

Mrs Rinehart's submissions substantially overlap with HPPL's submissions.
By way of summary, Mrs Rinehart submits that the court should stay the proceedings, thereby ensuring the arbitral proceedings would be determined first, because it is just and efficient for the validity and application of the releases, acknowledgments and covenants in the Hope Downs Deed to be determined first.[302] Those issues may have a dramatic effect on the issues raised by Bianca and John in the primary proceedings because, if enforceable, they will mean that those parties do not have any claim to a beneficial interest in the Hope Downs Tenements and, thus, no defence to WPPL's and Rhodes' cases based on those claimed. Only the arbitration can determine the availability of the releases and covenants. Allowing the arbitration to be determined first will assist in resolution of the curial proceedings by reducing the number of issues to be determined, potentially reducing the number of parties, minimising costs and the court's and the parties' time. By contrast, not staying the curial proceedings will produce overlap, uncertainty, potential prejudice, additional costs, likely inconsistent findings, undermine the court's referral of the counterclaims to the arbitration and will not result in the proceedings being determined efficiently. There may also be serious prejudice to Mrs Rinehart.
To the extent Mrs Rinehart's submissions substantially reflect what is said by HPPL, we will not repeat them. So far as delay is concerned, however, Mrs Rinehart contends that the right of a litigant to pursue proceedings is not absolute; and, so far as a stay would result in delay, there can be compensation in terms of interest and an account of profit.[303]
Mrs Rinehart submits that Bianca and John's defences include serious allegations of fraud against her.[304] Those serious allegations have been released under the Hope Downs Deed and are the subject of agreement for confidential arbitration.[305] Absent a stay, Mrs Rinehart will be prejudiced by the determination of those allegations, including the making of findings by a court.[306]
Further, as Bianca and John's submissions in this appeal make clear, there is a risk that Mrs Rinehart will be bound, as a privy of HPPL, by any issue estoppel arising from the court's findings in the primary proceedings.[307] Those estoppels potentially encompass not only for whose benefit the Tenements were acquired, but extend to for whose benefit they are now held.[308] The uncertainty in this regard will put her in the invidious position of being required to choose whether to actively assist HPPL and HDIO in defending the primary proceedings, when to do so would be to lose the benefit of the bargain that was made in the Hope Downs Deed.[309]
Further, the wide‑ranging allegations against Mrs Rinehart and HPPL are relevant to the time likely to be necessary before the curial proceedings are ready for trial. While the plaintiffs may choose not to engage with those allegations, given the risk of issue estoppels, if HPPL does so, which (by implication) should be anticipated, it will be a large and time‑consuming exercise.[310]

[531]

At the hearing on 2 July 2020, the court gave the parties liberty to file supplementary submissions, after the hearing was completed, as to a possible outcome of the re‑exercise of discretion: an order that the application for a stay be dismissed, but with liberty to apply to the case manager for the application to be renewed when the case is ready for trial and before it is heard. That was put on the basis that at that time the issues might be better delineated, so as to better enable the risk of issue estoppels and their content to be identified, and more would be known as to the progress of the arbitration.[314]
HPPL and Mrs Rinehart submit that, at the stage the proceedings are ready for trial, there will be no greater certainty in relation to the potential issue estoppels that might arise in the proceedings.[315] HPPL submits that there will be no pleadings between Bianca and John, on the one hand, and HPPL and HDIO, on the other. HPPL and Mrs Rinehart submit that, at a subsequent stay application, HPPL and HDIO, and potentially Mrs Rinehart, will face the same risk of issue estoppels, giving rise to the same need for HPPL to tender the Hope Downs Deed.[316]
HPPL submits that, at a hearing of a further stay application, it will face the same prospect of losing its contractual and statutory rights that it faces today, including its right to have any and all disputes with Bianca and John finally determined in arbitration and its right to rely upon the releases, acknowledgements and covenants in the Hope Downs Deed.[317]
HPPL and Mrs Rinehart submit that, to permit the primary proceedings to continue to the point where they are ready for trial will itself give rise to serious prejudice to them. HPPL submits that, by that stage, it will have lost its right to have the dispute determined confidentially, given that there will have been discovery, evidence and submissions in respect of those disputes without the cloak of confidentiality. Further, it will have been vexed twice with the same claims in two different forums, with the consequent increase and duplication of time, cost and resources.[318] Mrs Rinehart makes those points and contends that she will suffer substantive prejudice, as follows: the looming risk of issue estoppels against HPPL, HDIO and also Mrs Rinehart would remain, as would uncertainty as to whether and, if so, how, the Hope Downs Deed could be used in the proceedings. In those circumstances, Mrs Rinehart may have to assist HPPL by preparation of a witness statement in the proceedings. If she did so, that evidence would be provided to parties to the curial proceedings who are not arbitral parties, including the plaintiffs. That would be contrary to the critical object of the Hope Downs Deed, namely the maintenance of confidentiality about the intra‑family dispute. In that regard, the damage to Mrs Rinehart's rights would be irreparable and substantial because, 'what is seen cannot be unseen; what is known cannot be unknown'.[319]
Ginia submits that the stay should be granted immediately because otherwise she would be vexed with parallel proceedings.[320] Further, she submits, as the history of this application demonstrates, any further application for a stay is liable to take a substantial period, years not months, before it is resolved, thereby giving rise to substantial delay in the curial proceedings in any event.[321] Alternatively, Ginia submits that, if a stay were refused, the court should also make orders maintaining the confidentiality regime presently in place.[322]

[532]

By way of overview, WPPL contends that all but one of the factors relied on by the primary judge continue to count against a stay. The second of them strongly counts against a stay because the continuing lapse of time is a serious intrusion into the plaintiffs' rights to litigate in court. The plaintiffs are strangers to the agreement to arbitrate, which was entered into years after, on WPPL's case, WPPL acquired its interest in the Tenements. The factor where the primary judge erred was simply one of many to be weighed in the balance and should not be given determinative weight. The arbitral tribunal cannot decide the overlapping issue in a way that binds WPPL or Rhodes. The only significant new factor is the progress of the arbitration. The lack of progress in the arbitration counts against the grant of an indefinite stay.
WPPL emphasises four principles, accepted by the primary judge, which should be borne in mind on the re‑exercise of discretion:[323] (1) prima facie, where a plaintiff has properly commenced proceedings in court, it is entitled to prosecute those proceedings; (2) court proceedings will only be stayed on a discretionary basis to await the outcome of arbitration in 'rare and compelling circumstances'; (3) in considering whether to stay court proceedings in favour of an arbitration, 'there should be no prejudice to plaintiffs beyond that which the interests of justice [are] thought to justify'; and (4) where the relevant factors are evenly balanced the discretion should be exercised against granting a stay.
Three of the factors identified by the primary judge are now the subject of concurrent findings by the primary judge and this court that they militate against a stay.[324] The first is that the plaintiffs commenced the primary proceedings before John and Bianca commenced the Federal Court proceedings. Secondly, the plaintiffs' claims cannot and will not be determined in the arbitration. The court should not lightly interfere with the exercise by the plaintiffs of their right to pursue their rights in the court. The lapse of time adds to the significance of this factor. The fourth factor was that the proceedings in the court are considerably more advanced than the arbitral proceedings. The primary judge found that it was very likely, although not certain, that these proceedings would be resolved before the conclusion of the arbitration.
WPPL acknowledges the inherent tension between the primary judge's second factor, which favours refusal of a stay, and the third factor, which favours a stay.[325]
WPPL submits that the third factor (which favours a stay) has, in light of the evidence adduced, diminished in significance because the parties to the arbitration have not pursued it with expedition; a very substantial and highly uncertain length of time is still to elapse before the arbitration will be determined; and the plaintiffs would be subjected to a stay which prevent them litigating their cases in court.[326]
WPPL submits that the only overlapping issue that is likely to give rise to a binding issue estoppel is the question of the capacity in which HML acquired the Hope Downs Tenements. Only the court can finally determine that issue in a manner which binds all the parties, in particular, including the plaintiffs. As this court accepted at [499(2)] and [509] of the appeal reasons, the plaintiffs as non‑parties to the arbitration agreement may choose to advance a case in court that is contrary to findings made in the arbitration. That gives rise to the risk of inconsistent decisions. In the circumstances, the potential for binding issue estoppels should not be viewed as a weighty factor in favour of a stay.[327]
WPPL emphasises the delay and consequent prejudice it has already suffered and will suffer if a stay is granted.[328] It points to the fact that, in 2015, the matter was set down for hearing in 2016 and that a witness, Mr Ken Rhodes, died earlier in 2020.
WPPL submits that further evidence has been adduced as to the arbitration's progress and that this demonstrates that the arbitration has not been substantively progressed and is not progressing expeditiously. It submits that the lack of progress of the arbitration counts significantly against the grant of a stay.[329]
Further, as to the progress and likely time before the hearing of the arbitration, WPPL points to the following matters:[330]

[537]

In contrast, the court proceedings are very considerably advanced.[332] Some progress has been made consistent with the modified stay. Hope and Ginia have filed defences and general discovery has been completed. The parties have exchanged written submissions as to objections to inspection of that discovery and a hearing in relation to that issue was listed for April 2020, but was adjourned. The discrete steps remaining to prepare the proceedings are resolution of objections to the inspection of discovery provided by John and Bianca, the delivery of witness outlines of those parties and updating the tender bundle to include any additional documents pertaining to the Children's defences.
The current pace of the arbitration underlines the extent of the significant interference with WPPL's right to bring its action to trial. That is detrimental to not only the plaintiffs, but to the quality of justice and the administration of justice.[333] It becomes more, not less, significant, given the lapse of time since the original hearing before the primary judge.[334]
WPPL also contends that the public interest in the speedy resolution of commercial disputes counts against the grant of a stay.[335]
WPPL submits that the court should reject the stay proponents' submissions that the risk that they (the proponents) are prevented from relying on the Hope Downs Deed is a ground for a stay.[336] It submits that HPPL chose to invoke s 8 of the Act. It is bound by that choice - if HPPL sought to invoke the releases in the Deed in the curial proceedings, a claim to do so would fall within the scope of the mandatory referral. Further, it is submitted that it is far from clear ‑ indeed, in the words of senior counsel for WPPL, it is 'unfathomable' ‑ how HPPL could deploy the Deed when it has not pleaded it.[337] WPPL further submits that the deeds have no relevance to 'the anterior question' of for whose benefit HML acquired the Tenements. It submits that a finding that HML acquired the Tenements for the Children's benefit would not, if binding in the arbitration, be prejudicial to HPPL as HPPL would still have whatever rights it has under the Hope Downs Deed.[338]
WPPL submits that HPPL exaggerates the overlap between the litigation and the arbitration. There is no doubt that the capacity in which HML acquired the Hope Downs Tenements is a common issue. WPPL suggests that many of the other issues post‑date the acquisition of the Hope Downs Tenements and concern the conduct of Mrs Rinehart in her capacity as trustee, issues which have nothing to do with the plaintiffs.
In response to HPPL's submission summarised at [46] above, WPPL submits that it cannot be assumed that WPPL would get the benefit of the release in the Hope Downs Deed. It asserts that there is uncertainty as to whether the release in the Deed will operate in the favour of a third party su[339]as WPPL.339
WPPL submits that little comfort can be gained from HPPL's offer to provide the parties in the court proceedings updates as to the progress of the arbitration. Such updates might reasonably be expected to be in broad and general terms.[340]
WPPL submits that Mrs Rinehart and 150 Investments do not have standing in that they are not parties to the proceedings and their appeal as to the injunction has been refused. In any event, the primary concern of confidentiality in relation to allegations of misconduct does not advance the position - those matters are not relevant to the claims of WPPL and Rhodes and will be heard and determined in the confidential arbitration.[341]
WPPL says that Ginia's submissions should be rejected.[342] It refers to the nature of her defence and that she has made no discovery. The litigation will impose a minimal burden on her. Alleged delay in joining the Children was addressed in the joinder reasons.

[538]

Rhodes invites application of the principles summarised by the primary judge and not criticised on appeal, set out in Quinlan CJ's reasons at [333]. It submits that, where a plaintiff has already commenced proceedings and the proceedings overlap with an arbitral claim, a court exercises its discretion to stay the proceedings pending the arbitration only in 'rare and compelling' or 'convincing' circumstances, recognising that a party who has regularly invoked the jurisdiction has a prima facie right to insist on its exercise.[343]
Rhodes points to a number of matters in opposing a stay.
First, it contends that there is a limited overlap between the primary proceedings and the arbitration, relying on Mr Taylor's affidavit.[344] It submits that the primary proceedings involve a range of issues spanning from the late 1960s through to 2013, only a relative few of which overlap with the arbitration. Also, the arbitration will address many significant and substantial issues which do not overlap with the litigation, including issues relating to the Roy Hill project and mine, the Mulga Downs project, the Nicholas Downs project, the disputed 25.55% shareholding in HPPL and the liability of Mrs Rinehart and related parties.
It asserts that the overlapping issues are subsidiary to the non‑arbitrable matters the subject of the court proceedings.
Rhodes submits that it cannot now be said with any clarity what issue estoppels may or will arise from findings made in the primary proceedings.[345] It submits that the issues are not yet fully and finally identified in the proceedings. Once that occurs, the issues may be more confined. Further, it contends that the trial judge could craft findings that reduce or eliminate the risk of any issue estoppel. The court can be astute to preserve the matters that are for arbitration so far as possible and to decide only what is necessary for the purpose of the primary proceedings.[346]
Secondly, as the primary judge found and this court accepted, a factor against the grant of a stay was that the plaintiffs in each of the proceedings commenced their proceedings before Bianca and John commenced the Federal Court proceedings.[347] A stay would interfere with the plaintiffs' right to have the court determine their claims. It was, as this court found,[348] open to give significant weight to the interests of the plaintiffs.[349]
Further, the Rhodes parties point to the absence of any case in which curial proceedings have been stayed pending an arbitration where the plaintiffs are strangers to the arbitration agreement, unrelated to the arbitrating parties, opposed to a stay and have brought substantive claims in court and face the prospect of having the court proceedings stayed for a period of years.[350]
Thirdly, Rhodes submits that the primary proceedings are well advanced and comparatively considerably more advanced than the arbitration. It points to the assessments made by Mr Taylor and Mr Cooper, experienced solicitors, that the court proceedings would be ready for trial by mid to late 2021.[351]
Rhodes submits that when the arbitration will be heard is highly uncertain.[352] It is reasonable to expect it will require a significant further period of years. Further, it is reasonable to anticipate challenges to the arbitral award. Rhodes submits that the arbitration has not been pursued by the parties with alacrity. In particular, it has not been pursued by HPPL with the alacrity that is incumbent on a party who seeks to stay curial proceedings pending the resolution of an arbitration.[353]
Next, Rhodes points to the absence of exact identity in the parties to the arbitration and the primary proceedings.[354] The plaintiffs' claims are not dependent on the arbitral matters being decided first. Regardless of the outcome of the arbitration, the plaintiffs' claims will need to be determined in court. The plaintiffs will not be bound by the arbitration and so will, to the extent necessary, challenge any awards or legal or factual findings adverse to their interests. That gives rise to both the duplication of resources and the risk of inconsistent decisions in any event.
Fifthly, Rhodes submits that whether and to what extent the decision in the arbitration will have a material or useful effect in curial proceedings is speculative.[355] It submits that if Bianca and John succeed in their claim to ownership of Hope Downs, the stay will have been for nothing. Both HPPL and the Children will remain necessary parties and the court would have to consider the substantive issues again. The arbitration will only assist the court proceedings if the HPPL parties succeed at arbitration to an extent that it includes obtaining injunctive relief preventing the Children from challenging title to the Hope Downs assets in the primary proceedings.[356]
Sixthly, Rhodes submits that the grant of a stay would occasion significant prejudice to it as a family company that is not generally in the business of conducting litigation and that seeks the resolution of its claim.[357] Rhodes has already suffered the prejudice flowing from the death of Mr Ken Rhodes.[358]
The HPPL parties' offer to provide updates to the parties in the court proceedings on the status of the arbitration does not ameliorate the Rhodes parties' concerns of prejudice arising from delay. Confidentiality requirements undermine the utility of such an offer. Further, there is substantial room for debate as to how well the arbitration is progressing and how much longer is needed for its completion, as the competing evidence before this court demonstrates.[359]
Rhodes points to the fact that its claims (and WPPL's claims) against the HPPL parties are detrimental to the financial interests of all of the arbitrating parties.[360] There is no guarantee that the arbitrating parties will not pursue a course that advances their interests to the detriment of the plaintiffs. Moreover, Bianca and John are opposed to the arbitration and have provided no undertaking to progress it expeditiously.
In conclusion, Rhodes submits that the potential for the court to make a finding that is binding in the arbitration does not outweigh or constitute such rare and compelling circumstances as to outweigh the prejudice to the plaintiffs in having delayed, indefinitely and for a substantial period of years, their right to pursue the proceedings they have regularly invoked through to final determination.[361]

[539]

Bianca and John submit that the controversy in the primary proceedings is limited to the factual and legal matters arising on the plaintiffs' claims. If the plaintiffs succeed and defeat Bianca and John's assertion of beneficial title over the Hope Downs assets, the court will need to determine whether the plaintiffs succeed against HPPL. On the other hand, if Bianca and John succeed in defeating the plaintiffs' claims, their pursuit of ownership of the assets will remain to be determined in the arbitration, in which the validity of the Hope Downs Deed and the application of the releases and undertakings will be determined. If the Deed is invalid, as Bianca and John contend, they will be recognised by the arbitral tribunal, as between them and HPPL, as having beneficial ownership of the Tenements. If the Hope Downs Deed is valid and the releases and undertakings apply in the manner contended by HPPL, then Bianca and John will not be successful in their claim to beneficial ownership.
Bianca and John submit that issue estoppels would arise, at least between them and HPPL, in relation to factual issues concerning for whose benefit HML/HRL acquired the Hope Downs Tenements and the capacity in which that acquisition occurred (referring to the majority's reasons at [495], [499], [506] ‑ [508]). Nevertheless, they contend that substantial issues will remain to be determined in the arbitration.[362]
One of those will be whether whatever rights Bianca and John may have had in relation to the Tenements have been compromised through the Hope Downs Deed. That in turn involves various sub issues as to the scope of the releases, whether the Deed is invalid and unenforceable and whether it has been affirmed.[363]
Bianca and John accept that if WPPL, Rhodes and HPPL successfully argue that the Tenements were acquired by HML/HRL for the benefit of HPPL, Bianca and John's defence to the plaintiffs' claims will have failed and that outcome will bind Bianca and John in the arbitration.[364] If Bianca and John make out their defence that the Tenements were acquired for their benefit, the plaintiffs' claims will fail. The legal consequences of that conclusion, as to who owns the assets as between Bianca and John on the one hand and HPPL on the other, will still fall to be determined in the arbitration in light of the Hope Downs Deed. Consequently, the risk of issue estoppel does not require HPPL to deploy the Hope Downs Deed nor give them an entitlement to do so.
In argument, counsel for Bianca and John accepted that they contend that the Tenements are held for their benefit - in other words, their contentions in their defence go beyond the historical question of for whose benefit the Tenements were acquired.[365] Counsel also acknowledged that it was likely that Bianca and John would assert issue estoppel in relation to factual findings concerning that subject matter.[366] However, he stated that Bianca and John will not contend that an issue estoppel arose in relation to the question of who is the beneficial owner of the Tenements.[367]
Bianca and John challenge HPPL's contention that HPPL will be able to rely on the Hope Downs Deed in answer to Bianca and John's defences.[368] First, they say that Bianca and John's defences do not seek relief against HPPL or Mrs Rinehart and one defence does not create an issue with another defendant. Secondly, for HPPL to do so would be contrary to its decision to refer claims under the Hope Downs Deed to arbitration.
Bianca and John submit that a stay of indefinite duration, beyond the control or influence of the plaintiffs, will cause the plaintiffs significant prejudice that is not ameliorated by receiving periodic updates.[369] Further, they submit that delay in the resolution of the plaintiffs' claims in the primary proceedings causes prejudice to Bianca and John, not only to the plaintiffs.[370]
Bianca and John submit that a stay pending the outcome of the arbitration will involve an extremely long delay in resolution of the litigation. They suggest that the period of five years the subject of the confidentiality orders made by Ward CJ in Equity is a reasonable estimate of the likely length of the delay.[371] They also identify the prospect that they would, if unsuccessful in the arbitration, invoke their right to apply to the court under s 34(2)(a) of the Act for an order that the arbitration agreement be set aside on the ground that it is not valid.[372]
Bianca and John submit that a stay of indefinite duration may, in the end, achieve nothing. The likelihood of various different arbitral outcomes is too uncertain to be gauged.[373]
They submit that, contrary to what is said by various stay proponents, the present situation should not be seen to be their fault. Rather, it is a consequence of the entanglement of the various disputes as to title to the Tenements, one of which is between parties to an arbitration agreement and the others of which are not. As the primary judge found at [218], Bianca and John did not bring the claim - they were joined as defendants on the application of the plaintiffs. There is reasonable justification for their advancing their claims in relation to their rights relating to the Tenements, given that the plaintiffs are seeking relief which is inconsistent with the rights to the Tenements that are claimed by Bianca and John.[374]

[542]

Consideration of the effects of a stay upon each of the plaintiffs in the primary proceedings reinforces that starting point and militates strongly against the grant of a stay.
Both the primary proceedings have been on foot for many years, and relate to events that occurred a long time ago. They were commenced before Bianca and John instituted the Federal Court proceedings. On the plaintiffs' cases, each of them acquired their interest in the Tenements well before the Hope Downs Deed was entered into.
The plaintiffs have an obvious and important interest in their claims being allowed to progress to the point where the proceedings are ready for trial and resolved as soon as possible thereafter. There is also a public interest in not delaying the resolution of the dispute as to beneficial ownership of very valuable mining tenements.
From the plaintiffs' perspective, there is no evident reason why their interests should be adversely affected by the arbitration agreement that is found in the Hope Downs Deed. The plaintiffs are strangers to the Deed and are adversaries of the parties to it. Regardless of the outcome of the arbitration, the plaintiffs' claims must be heard and determined by the court.
It is possible that the outcome of the arbitration will identify the proper defendants to the plaintiffs' claims. However, whether that will occur is highly uncertain, given the wide range of possible outcomes and the court's present inability to evaluate the likelihood of, or even comprehensively identify, the various possible outcomes of the arbitration.
For example, we accept WPPL's submission that it is by no means certain that WPPL, as a non‑party to the Hope Downs Deed, would obtain the benefit of any extinguishment of any claim by Bianca and John that is effected by the release in the Hope Downs Deed. While HPPL submits that WPPL would so benefit, we are not convinced that the position is free of doubt; and it is inappropriate to come to a final decision on the point in the context of the re‑exercise of discretion in which we are presently engaged. In this respect, success on HPPL's part in the arbitration will not necessarily lead to a beneficial consequence for the curial proceedings.
The plaintiffs will not be bound by any outcome of the arbitration. They will be free to, and to the extent necessary are likely to, challenge or contradict any findings in the arbitration proceedings that are adverse to their interests. This means there is a risk of duplication of resources and inconsistent decisions in any event if a stay is ordered - a risk which is, in our view, at least as real, and carries as much weight, as the possible benefits for the curial proceedings that may arise from the prior determination of the arbitration proceedings.
The delay arising from the grant of a stay will be both very substantial and highly uncertain. While this court is not well placed to make an assessment of the likely timing of the hearing of the arbitration, especially given that it is at an early stage, it can safely be said that the hearing of the arbitration is years away. Moreover, there is very considerable uncertainty as to how many years away the hearing is.
The delay consequent upon the grant of a stay is magnified by the prospect of curial challenges to an arbitral award, at least in relation to an award that is unfavourable to Bianca and John.
Contrary to Mrs Rinehart's submissions, the prejudice to the plaintiffs arising from the delay caused by the grant of a stay would not be removed or substantially ameliorated by an award of interest or an account of profit. The following observations of Quinlan CJ in Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 18],[381] addressed to breach of a contractual obligation, apply with at least equal force in relation to the proprietary claims made by the plaintiffs in the primary proceeding:

[544]

Moreover, the law recognises the strain that litigation imposes upon litigants and that justice cannot always be measured in money.[382] Substantial delay in the progressing and hearing of the primary proceedings will undoubtedly, as Mr Taylor says in his affidavit, add to the strain imposed on the plaintiffs by the litigation.
Further, in the circumstances outlined above, refusal of the stay advances the goal in O 1 r 4A of the Rules of the Supreme Court 1971 (WA) - the elimination of any lapse of time from initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues between the parties and the preparation of the case for trial.
If a stay is granted, it seems to us that, practically speaking, the plaintiffs will have no control and very little influence over the period for which their proceedings are then delayed. The progress of the arbitration is, of course, in the hands of the arbitrating parties and the arbitral tribunal. As defendants to the primary proceedings, none of the arbitrating parties has any evident interest in the expeditious resolution of the curial proceedings. It would be possible for the plaintiffs to apply to discharge the stay. However, given the starting point we have mentioned, that possibility is one to which we would ascribe little weight. At the moment it is for the stay proponents to justify a stay in the interests of justice and the possibility that the stay opponents may be able to persuade the court that any stay should be discharged is a secondary factor. Moreover, once a stay were granted, given the considerable room for debate about whether an arbitration is progressing with reasonable expedition, the plaintiffs are likely to face substantial difficulty in satisfying the court that the stay should be lifted.
In short, the grant of a stay would subject the plaintiffs to a stay of a duration that is (i) substantial - measured in years not months; (ii) highly uncertain; and (iii) practically speaking, beyond their control or influence and based on an agreement, made between the defendants, to which they are strangers. Those matters create a substantial obstacle to a conclusion that the interests of justice require a stay pending completion of the arbitral proceedings.

[547]

The parties are at issue as to the scope of the issues arising from Bianca and John's defences and, relatedly, the scope of findings that are potentially the subject of an issue estoppel. The stay opponents contend that both are, in substance, confined to the question of for whose benefit the Hope Downs Tenements were acquired. The stay proponents contend that the issues do, and the issue estoppels may, extend to a number of wider questions, including the question of for whose benefit the Tenements are currently held.
We accept the stay proponents' submissions that, upon analysis of Bianca and John's pleading, their case asserts a current interest in the Tenements enforceable against the plaintiffs.[383] Counsel for Bianca and John accepted in argument that their defence contends that the Tenements are held for, and not merely were acquired for, their benefit.[384] However, he stated unequivocally that Bianca and John will not contend that an issue estoppel arose in relation to the question of who is the beneficial owner of the Tenements.[385] On the other hand, he acknowledged, noting that he was without instructions, that it was likely that Bianca and John would assert an issue estoppel in relation to factual findings concerning the broader subject matter of for whose benefit the Tenements are held.[386]
The parties referred to various passages in our earlier reasons in support of their contentions as to the scope of potential issue estoppels.[387] The precise scope of any potential issue estoppels did not need to be, and was not, decided in our earlier reasons.
The extent of the risk of issue estoppels in relation to these wider questions is not clear. Indeed, more generally - as HPPL submitted[388] and counsel for Bianca and John seemingly accepted[389] - the precise parameters of a binding issue estoppel, if any, is incapable of present determination and will not be known until the end of the arbitration. However, we are satisfied that there is a real risk, one that is more than merely fanciful, that an issue estoppel might arise in relation to factual findings relevant to the question of whether Bianca and John have a current interest in the Tenements, beyond the question of beneficial ownership at acquisition.
The position is less clear in relation to the ultimate question of whether Bianca and John have a current beneficial interest in the Tenements, leaving aside the effect of the Hope Downs Deed.[390] Counsel for Bianca and John has unequivocally indicated that they would not assert any such estoppel in the arbitral proceedings. In effect, Bianca and John have indicated that they will not plead or otherwise rely on an issue estoppel of this kind. It not being pleaded, on the face of it, the arbitrators will not be bound to give effect to an issue estoppel as to who holds the current beneficial interest. However, it is not necessary to definitively resolve whether this is so - our view as to where the balance lies does not depend upon whether the potential scope of issue estoppels encompasses the question of current beneficial ownership, leaving aside the effect of the Hope Downs Deed.

[548]

To the extent that findings in the curial proceedings were to give rise to an issue estoppel, in our view, in several respects that would or may thereby have consequences that weigh firmly in favour of the grant of a stay. That is so, in our view, even if the potential issue estoppel is confined to the question of for whose benefit the Tenements were acquired.
First, as identified in the appeal reasons [512] - [513], it would undermine the court's referral of the parties to arbitration and undermine the parties' agreement to arbitrate in the Hope Downs Deed.
Secondly, a finding that the Hope Downs Tenements were acquired for the Children's benefit would, if binding in the arbitration, materially prejudice HPPL and benefit Bianca and John. That is because one element of Bianca and John's claim to set aside the Deed is their assertion as to the original acquisition of the Tenements - they say the Tenements were acquired for their benefit. In Rinehart v Hancock Prospecting Pty Ltd,[391] the High Court observed, in the context of the Federal Court proceedings, that Bianca and John's validity claims were not discrete from their substantive claims - the validity claims incorporate and rely upon the substantive claims. That observation is equally true of Bianca and John's claim in the arbitral proceedings.
Further, we accept HPPL's submission that a binding finding as to for whose benefit the Tenements were acquired would give rise to a question of construction of the Hope Downs Deed, not otherwise arising, and that is capable of prejudicing HPPL.[392]
For these reasons, we do not accept the stay opponents' submission that, if the Deed is the complete answer which HPPL contends it to be, that complete answer will be given effect in the arbitration, thereby ensuring there is no injustice to HPPL. A binding finding as to the original acquisition of the Tenements will assist Bianca and John in the arbitration and be to the prejudice of HPPL.
Thirdly, if, as may be the case,[393] HPPL is precluded from relying on the Hope Downs Deed in the curial proceedings, but an issue estoppel nevertheless arose, that can fairly be said to give rise to injustice to HPPL. Part of the scheme of the Hope Downs Deed is to have all disputes arising under it, including disputes as to beneficial interests in the Tenements encompassed by the Deed, determined in one forum, namely arbitration. HPPL contends, and it is at least arguable, that the Deed is a complete answer to Bianca and John's claims that the Tenements were acquired and are held for their benefit. Yet, in this scenario, a finding as to for whose benefit the Tenements were acquired or are held could be made in the curial proceedings and be binding in the arbitration notwithstanding that HPPL has not been permitted to invoke the Deed in answer to Bianca and John's claims.
We do not accept the stay opponents' contention that, in this scenario, HPPL's inability to rely on the Hope Downs Deed would give rise to no injustice because it would be a consequence of its choice to invoke s 8 of the Act. In invoking s 8, HPPL sought to uphold the parties' bargain to submit their disputes to arbitration. We are unable to see why a consequence of that should be that HPPL loses the benefit of the acknowledgment, release and covenant not to sue in a context that is precisely where HPPL would wish to rely upon them - namely, in answer to a claim that the Tenements were acquired for another party's benefit.
If an issue estoppel were found to arise, HPPL's substantive rights would be impaired in the manner and respects outlined above. As explained above, we recognise the weight to be given to the plaintiffs' interest in avoiding delay. Nevertheless, the impairment of substantive rights seems to us to attract considerable weight when balanced against the adverse consequences of delay.

[549]

However, for the reasons that follow, balancing the considerations previously referred to, we are not persuaded that, at this stage, the risk (and as explained below, it is highly uncertain whether the risk will materialise) that findings in the curial proceedings may give rise to an issue estoppel, in itself or in combination with the other matters on which the stay proponents rely, justifies the grant of a stay of the curial proceedings.
Putting aside for the moment whether the primary proceedings should be permitted to be heard and determined before the arbitration, we are not satisfied that the interests of justice justify a stay of the primary proceedings that would prevent them from being progressed to the point where they were ready for trial. On our assessment, the curial proceedings are unlikely to be heard before some time in 2022. We consider that the interests of justice distinctly favour permitting those proceedings to complete all necessary pre‑trial steps, rather than granting an immediate stay. An immediate stay would potentially leave the proceedings with significant interlocutory steps, causing substantial further delay, to be completed only after the arbitral proceedings have been determined - potentially many years away.
Leaving aside issue estoppels, to which we return below, in support of the need for an immediate stay of the primary proceedings, the stay proponents point to (i) the need to avoid their being twice vexed, with the consequent duplication of resources; and (ii) the loss of confidentiality which would result from the proceedings continuing.[394]
To our minds, in the circumstances of this case, the first of these considerations does not attract significant weight. To the extent that issues in the curial proceedings and arbitral proceedings overlap, the steps necessary for preparation will need to be undertaken and applied to both proceedings. Broadly speaking, at least the bulk of those steps would have been necessary even if the issues arose only in the arbitral proceedings. The additional time and expense arising from dealing with overlapping issues in both the curial proceedings and arbitral proceedings rather than only in the arbitral proceedings is not significant when weighed against the competing considerations, especially those arising from the plaintiffs' interests. This is particularly so in this case, bearing in mind the undoubted resources of the parties who would be involved in both sets of proceedings, as is manifest from the industry of their legal representatives on every conceivable point in the litigation.
As to the second, it will be open to the parties, to the extent they think necessary and appropriate, to seek confidentiality orders from the primary judge in relation to interlocutory steps in the proceedings. We acknowledge that, to some extent, HPPL, Mrs Rinehart and Ginia may be at risk of losing confidentiality in relation to some matters the subject of the Hope Downs Deed in the course of the primary proceedings progressing to the point where they are ready for trial. For example, it is likely that any witness statement of Mrs Rinehart, or of other witnesses relied upon by HPPL, concerning matters within the ambit of the confidentiality of the Hope Downs Deed would be revealed to non‑parties to those deeds, namely the plaintiffs and their legal advisers. Nevertheless, in our view, bearing in mind the matters outlined in [122] ‑ [134], the interests of justice distinctly favour permitting the primary proceedings to continue, at least to the point where they are ready for trial.
An aspect of Mrs Rinehart's complaint as to loss of confidentiality is her submission that she would be prejudiced by the court making findings - which will be public - on matters the subject of confidential arbitration in accordance with the Hope Downs Deed. That risk does not arise in the pre‑trial period and does not, in our view, (alone or in combination with the other matters on which the stay proponents rely) sustain the grant of a stay at this stage.
That brings us back to the risk of issue estoppels as a consideration weighing in favour of a stay. Four points may be made as to the risk of any issue estoppels arising from findings made in the primary proceedings.
First, and significantly, the risk is not imminent and it may never materialise. As already noted, on our assessment, the Supreme Court proceedings are unlikely to be heard before some time in 2022. By definition, an issue estoppel can only arise (i) after the Supreme Court proceedings are determined; and (ii) if the curial proceedings are determined before the arbitral proceedings. The latter may or may not occur. At this stage, the curial proceedings are undoubtedly distinctly further progressed than the arbitration and the odds currently favour the curial proceedings being heard first. Nonetheless, there is considerable uncertainty in that regard, and the position may change.
Given what we have already said, the prospect that, in the absence of a stay, the arbitral proceedings may, in the end, reach resolution before the curial proceedings is a factor counting against a stay. That prospect cannot be discounted. As we have said, in our view the odds favour the proceedings in this court being heard first. But HPPL's own solicitor has opined that a substantive hearing in the arbitration will be completed by mid‑2022[395] whereas the primary proceedings will not be ready for a hearing for at least three and possibly four years (ie mid‑2023 to 2024).[396] While we do not share this view, it underlines the uncertainty as to the likely relative progress of the curial proceedings and the arbitral proceedings. In the scenario where the arbitration is completed first there is no risk of any issue estoppel arising and, for the reasons already given at [120] ‑ [134] and [149] ‑ [154], a stay is not otherwise justified.
Secondly, an issue estoppel could arise against HPPL only if a plaintiff's claim is found to fail on a ground that is or includes that the Hope Downs Tenements were acquired for the benefit of the Children and not for the benefit of HPPL. Bianca and John's defences that the Tenements are held for their benefit take the acquisition for their benefit as a starting point.
HPPL submits that Bianca and John assert a claim based on the Debt Reconstruction Deed, as pleaded in pts 10, 11 and 15 of the counterclaim, as a standalone claim to beneficial ownership of the Hope Downs Tenements. We do not understand Bianca and John's pleading in that manner. Rather, as we understand it, Bianca and John's claim relating to the Debt Reconstruction Deed is premised on their assertion that the Hope Downs Tenements had been acquired, as to legal and beneficial ownership, by HRL, which was then a subsidiary of HFMF, the assets of which were beneficially owned by the Children.
Taking Bianca and John's defence and counterclaim in the Rhodes' proceedings as an example, pts 10, 11 and 15 of the counterclaim are incorporated in the defence in par 23. That paragraph pleads, relevantly:

[554]

Similarly, the plea in par 229 of the counterclaim (in pt 15) asserts that by its execution of the Debt Reconstruction Deed and the Deed of Acknowledgment and Release, HPPL participated in a fraudulent and dishonest design, together with Mrs Rinehart, for the purposes of conferring a benefit on HPPL, namely full legal and beneficial title to the Hope Downs Tenements. This, as we would understand it, is premised on the earlier assertions that beneficial title to the Hope Downs Tenements lay with the beneficiaries of the HFMF Trust, namely the Children.
If, by contrast to [158] above, a plaintiff's claim fails for want of proof of any other factual or legal element of the claim (and there are many), or fails on any ground advanced by HPPL in its defence (again, there are many), no issue estoppel will arise. While this court cannot attempt to evaluate the relative likelihood of these scenarios, it is relevant that only on the specific scenario identified will an issue estoppel arise.
Thirdly, if a plaintiff's claim succeeds, there may be an estoppel against Bianca and John, as Bianca and John acknowledge, in relation to the finding necessary for a plaintiff to succeed - that the Hope Downs Tenements were acquired for the benefit of HPPL. Bianca and John do not complain in that regard. No prejudice to HPPL, or to Mrs Rinehart, by way of an adverse issue estoppel arises in that scenario.
Fourthly, in light of the further submissions of the parties, we now consider it more doubtful that, even if the contingencies in [156] and [158] are fulfilled, any issue estoppel would arise even in relation to the question of for whose benefit the Hope Downs Tenements were acquired.
In the appeal reasons, we observed[397] that if the primary proceedings are decided before the arbitral proceedings and the plaintiffs' claims succeed, or are rejected on the ground of the basis on which the Hope Downs Tenements were acquired, then, prima facie at least, an estoppel between the HPPL parties, on the one hand, and Bianca and John, on the other, would appear to arise in relation to that issue. However, the parties' further submissions on the appeal give rise to substantial reasons for questioning whether any issue estoppel will arise.
HPPL's submissions summarised in [40] above emphasise the uncertainty as to whether any issue estoppel will arise and point to a number of reasons for doubting whether any issue estoppel will arise.
The parties' further submissions have given closer attention to how, if at all, the Hope Downs Deed might be relied upon by HPPL in answer to Bianca and John's contention in the primary proceedings as to the acquisition and beneficial ownership of the Hope Downs Tenements. As already noted, HPPL contends that it must be entitled to rely on the Hope Downs Deed to avoid the risk that it might be bound, by an issue estoppel, by a finding in favour of Bianca and John. Whether an issue estoppel may arise, and whether HPPL can rely on the Hope Downs Deed, are related questions.
It is not for this court to, in effect, make a pre‑trial admissibility ruling in relation to the Hope Downs Deed, that being a matter that may well arise for decision by the trial judge. Nevertheless, the following preliminary observations may be made. First, as senior counsel for HPPL appeared to accept in argument,[398] the only basis for HPPL's tender of the Hope Downs Deed is the threat that HPPL will be subject to an issue estoppel in relation to a finding that, on HPPL's case, is answered by the Deed. Secondly, there is some difficulty in concluding that HPPL can be permitted to rely on the Hope Downs Deed given that:

[562]

We have decided that, for the above reasons, the current circumstances do not justify the grant of a stay and, consequently, the application for a stay should be dismissed. Thus, we have not adopted the approach on which supplementary submissions were invited, as outlined in [66] above - rather, the application for a stay fails on its merits.
Our conclusion that, on the present application, a stay should not be ordered does not preclude a different approach upon an application made at the point when the primary proceedings are ready for trial (assuming that, by then, the arbitration has not been heard and determined).
For a start, the risk of issue estoppels arising from findings in the proceedings would then be imminent. Also, at that stage, the state of the pleadings may (we do not say it is a certainty) enable a more informed view to be reached as to the risk of any issue estoppel. Contrary to HPPL's submissions, there is a reasonable likelihood that, by the time the proceedings are ready for trial, the pleadings will be refined and the issues better defined than is presently the case. There is ground to anticipate amendment of the pleadings, whether as a result of any strike out application - one being foreshadowed already by WPPL - or at the initiative of a pleading party. Further, it would be open to the parties to seek a pre‑trial ruling by the trial judge as to whether the Hope Downs Deed can be relied upon. The result of that ruling would bear upon the exercise of discretion. Finally, and potentially significantly, more will then be known about the progress of the arbitration and the likely time before its hearing.
There is no need to reserve liberty to the stay proponents to make a further application when the curial proceedings are ready for trial. If the primary proceedings are ready for trial before the arbitral proceedings, that will constitute a change of circumstances from the present situation, in which it is uncertain which of the proceedings will be ready for trial first and where that uncertainty is a factor materially favouring the refusal of a stay. Thus, if the primary proceedings are ready for trial before the arbitration, the stay proponents will, at that stage, be entitled to make a further application for a stay.[400]
As already noted, Ginia submits that this court should, if refusing a stay, make orders maintaining the confidentiality regime presently in place. We do not accept that submission. The orders for confidentiality made by this court were (and are) interlocutory in character - when the appeal is determined the occasion for the orders is removed. Thus the interim orders should be discharged when orders are made substantively disposing of the appeals. Any application for confidentiality orders should be made to the case manager.

HANCOCK PROSPECTING PTY LTD -v- DFD RHODES PTY LTD [2020] WASCA 77 (19 May 2020)

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Legislation Cited (10)

Cases Cited (76)

HANCOCK PROSPECTING PTY LTD -v- DFD RHODES PTY LTD [2020] WASCA 77 (7 August 2020)

Cited By (2)