WRIGHT PROSPECTING PTY LTD v HANCOCK PROSPECTING PTY LTD [No 16]

(a) a stay or adjournment was warranted because, as a consequence of certain matters in the Rhodes proceedings having been referred to arbitration (the Rhodes Arbitration), the Rhodes proceedings could not be finally determined until those matters were resolved by the Martin Arbitration or the Rhodes Arbitration and the same was true of the WPPL proceedings (grounds 1 and 2);
>
> (b) a stay or adjournment would prevent issue estoppels arising in the Martin Arbitration and the Rhodes Arbitration (grounds 3 and 4);
>
> (c) a stay or adjournment would, in reality, not cause delay to the curial proceedings because the delivery of the award in the Martin Arbitration and the resolution of issues as to its validity and enforcement are necessary to the resolution of the curial proceedings (ground 5);
>
> (d) a stay or adjournment would prevent inconsistent findings between the Martin Arbitration and the curial proceedings (ground 6); and
>
> (e) a stay or adjournment would avoid complex issues associated with the HPPL parties' intended tender, in the curial proceedings, of the deed referred to as the Hope Downs Deed (grounds 7 to 9).

7. Finally, the HPPL parties contended that these errors, or some of them, justify this court re‑exercising the discretion reposed in the learned primary judge, and that the discretion should be exercised in favour of the grant of a stay or adjournment (ground 10).
8. Given the comprehensive challenge to almost all aspects of the learned primary judge's reasoning, the sheer number of grounds of appeal and alleged errors, the complexity of the issues raised by the HPPL parties, and the HPPL parties' ingenuity in shifting their forensic focus to respond to any changing winds in the litigation's landscape, it was easy to lose sight of the fact that, at bottom, these appeals concern a decision by the case manager of the proceedings not to defer a trial that has been listed for some considerable time.
9. When attention is properly restored to the true nature of the appeal, a number of important general principles come back into focus. First, to warrant leave to appeal from an interlocutory decision such as that in the present case, ordinarily, this court must be satisfied that the decision is plainly wrong or attended by sufficient doubt to warrant reconsideration on appeal and that substantial injustice would result if it remained undisturbed.[3] Secondly, as this court has also recognised, there is a need to exercise 'special restraint' when considering challenges to interlocutory orders concerning matters of practice and procedure, and all the more so with a decision by the judge with management of a case in the Commercial and Managed Cases list,[4] as the decision in this case plainly was.
10. If these principles are to have any meaning at all, it is important that the requirement for leave to appeal, and the special restraint to be exercised in relation to orders concerning matters of practice and procedure made by case managers, are not regarded as merely another hurdle to jump once each and every discrete complaint made by an appellant has been chased down its rabbit hole. Such an approach would merely add to, rather than ameliorate, the burden that such appeals could have on the administration of justice as a whole.
11. On the contrary, the court's concern to limit interlocutory appeals to those giving rise to substantial injustice and to keep a tight rein on interference with the discretion of case managers must be the lens through which the entirety of the appeal is viewed. In that context, as in other areas of appellate and judicial review,[5] this court should not approach a case manager's exercise of discretion 'with an eye keenly attuned to the perception of error', nor be concerned with looseness of language or unhappy phrasing.
12. In the present case, in our view, a fair reading of the learned primary judge's reasons does not reveal material error which could sustain appellate interference with the primary decision. On the contrary, her Honour considered all of the relevant considerations as they had been identified by the parties, and it was open to her Honour to accord those considerations the weight that her Honour did.
13. In particular, and by way of broad summary:

(a) the learned primary judge did not err in finding that the Rhodes proceedings and the WPPL proceedings could be finally determined, notwithstanding the referral of certain matters to the Rhodes Arbitration (grounds 1 and 2);
>
> (b) the learned primary judge did not err in finding that there was no realistic possibility of issue estoppels arising from a judgment in the curial proceedings that would bind the parties in the Martin Arbitration or in finding that the possibility of estoppels arising in the Rhodes Arbitration should not be given any weight (grounds 3 and 4);
>
> (c) the learned primary judge did not err in finding that the risk of inconsistent findings between the Martin Arbitration and the curial proceedings was not a factor in favour of a stay or adjournment (ground 6); and
>
> (d) while the learned primary judge arguably misapprehended the HPPL parties' submissions as to its intentions in relation to the tender of the Hope Downs Deed, any such misapprehension was immaterial to the exercise of her Honour's discretion (grounds 7, 8 and 9).

14. In relation to ground 5, concerning the learned primary judge's finding that a stay or adjournment of the proceedings would prejudice the plaintiffs in the curial proceedings (WPPL and the Rhodes parties, respectively), much of the HPPL parties' focus in the appeal was on what they submitted were inevitable and lengthy delays in the curial proceedings that would follow from the award in the Martin Arbitration. The HPPL parties' submissions as to those delays, and their inevitability, in large part rested upon the proposition that, whatever the outcome of the Martin Arbitration, the parties to that arbitration would become embroiled in lengthy and complex litigation that would, in turn, delay the curial proceedings.
15. So understood, the 'inevitable delays' were said to flow, not so much from the outcome of the Martin Arbitration itself, as from the arbitration parties' declared intention that they will not accept that outcome and will continue their ongoing battle elsewhere. Such an unpalatable submission ought to give pause to any court asked, by mechanism of a stay or adjournment, to defer the exercise of jurisdiction that has been regularly invoked by parties who are not parties to the arbitration.
16. Properly understood, however, that was not how the substance of the case for a stay or adjournment was put to the learned primary judge. On the contrary, while the HPPL parties' submissions before her Honour relied upon some of the consequences for the curial proceedings of the arbitral award, they did so primarily in the context of, and for the purpose of, identifying practical advantages for the curial proceedings in awaiting the outcome of the arbitral award. The HPPL parties' submissions below did not have, as their focus, the proposition that, whatever the consequence of the Martin Arbitration, the curial proceedings would grind to a halt.
17. The learned primary judge dealt with the potential effects of the award in the Martin Arbitration in accordance with the manner in which they were presented to her. Her Honour did not err in so doing.
18. In any event, we are not satisfied that substantial injustice would result if the learned primary judge's decision not to stay the proceedings or adjourn the trial remains undisturbed. The plaintiffs in the curial proceedings regularly invoked the jurisdiction of the court many years ago. Where jurisdiction exists, access to the courts is a right.[6] The spectre of further potential delays in the resolution of the curial proceedings, while a relevant matter to be weighed in the interests of justice, is not such that a substantial injustice will result by the trial of the curial proceedings commencing in July 2023. This is particularly so given that, notwithstanding the HPPL parties' endeavours to narrow the stay that they sought to a 'relatively short' one,[7] the reality (as found by the learned primary judge) is that the disputes that the HPPL parties have with Bianca and John, and which they contemplate will continue into the future, have years left to run.
19. In that context, the HPPL parties concluded their submissions by stressing the prejudice that would be visited on the public through the 'potentially massive waste of court resources' if the trial proceeds.[8] We accept that the risk of such prejudice is real.
20. The spectre of further delay, and the potential for a waste of resources, in the curial proceedings is therefore an important consideration. However, as explained in more detail below, in the circumstances of these proceedings, with their history, the prospect of further delay and some wastage of time already spent does not establish a substantial injustice in the commencement of the trial in accordance with the primary judge's orders.
21. The arbitration parties' continued disputes will no doubt continue to have an impact upon the court's ability to resolve the disputes brought before it in a timely and efficient manner. That is, regrettably, an irreducible risk in this litigation. It is not one that can or should divert the court from performance of its duty to resolve the proceedings brought by the plaintiffs.
22. For the reasons that follow, we would refuse leave to appeal and dismiss the appeals.

1. The background to the curial proceedings, and the history of associated interlocutory decisions and appeals, have been set out in detail in a number of decisions, including in the first stay appeal.[9] We adopt that outline without repeating it and, consequently, set out the background in an abbreviated form.

The claims and defences of the parties in the curial proceedings: overview

1. We commence with a broad overview of the claims and defences of the parties in the curial proceedings.

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

1. HPPL pleads that the ELs initially held by HML and HRL were held on trust for HPPL.
2. However, HPPL maintains that the rights held by, or on behalf of, HPPL were not a Partnership asset. HPPL was entitled to take up the opportunities resulting in its interest in the tenements and the Hope Downs Joint Venture without being obliged to offer WPPL any opportunity to participate in those activities and without any liability to pay royalties to WPPL in respect of iron ore produced from those activities.
3. Accordingly, HDIO does not hold its interest in the tenements as an asset of the Partnership or for WPPL, and HDIO is not required to account to WPPL with respect to royalties received by HDIO from Hamersley under the Hope Downs Joint Venture.

1. Bianca and John plead that the shares in HML and HRL were not held on trust for HPPL, but were ultimately held on trust for the beneficiaries of a trust (the HFMF Trust), being the fourth to seventh respondents in these appeals (the Children). As HML and HRL did not hold the interests in the tenements on trust for HPPL, HDIO never obtained beneficial title to the tenements and does not hold those tenements subject to a trust in favour of the Rhodes parties. Bianca and John plead that HPPL and HDIO hold the tenements on constructive trust for the Children. As HPPL and HDIO never held beneficial title to the tenements, they could not hold the tenements as a Partnership asset or on trust for the Partnership.
2. Alternatively, Bianca and John plead that WPPL is precluded from relief by laches and acquiescence.

The Rhodes parties' claims in the Rhodes proceedings

1. By an agreement in 1969 between the Rhodes parties, and HPPL and WPPL, HPPL and WPPL agreed to pay the Rhodes parties a royalty on ore produced from certain reserves (the 1969 Agreement). HPPL, WPPL and the Rhodes parties agreed that the Hope Downs areas would fall within the 1969 Agreement. Through a chain of applications for the grant of mining tenements, the Hope Downs and East Angelas areas are included in the area comprised in mining lease 282SA (ML282SA). Through a chain of corporate ownership, HPPL and WPPL caused the interest in ML282SA to be held by HDIO. Accordingly, HDIO holds its interest in ML282SA on trust for the Rhodes parties to the extent of the Rhodes parties' entitlement to royalties on iron ore produced from the area the subject of the lease.
2. Alternatively, the Rhodes parties are entitled to equitable compensation.

1. HPPL admits the 1969 Agreement, but denies that HPPL, WPPL and the Rhodes parties subsequently agreed that the Hope Downs areas would fall within the 1969 Agreement.
2. HPPL otherwise responds to the Rhodes parties' claims in similar terms to its defence to WPPL's claims. HPPL denies that the Rhodes parties are entitled to royalties or any relief.

Bianca and John's defence to the Rhodes parties' claims

1. As in their defences to WPPL's claims, Bianca and John maintain that the shares in HML and HRL were not held on trust for HPPL, but were ultimately held on trust for the beneficiaries of the HFMF trust, being the Children. As HML and HRL did not hold the interests in the tenements on trust for HPPL, HDIO never obtained beneficial title to the Hope Downs tenements and does not hold those tenements subject to a trust in favour of the Rhodes parties. As in their defence to WPPL's claim, Bianca and John plead that HPPL and HDIO hold the tenements on constructive trust for the Children.
2. In that context, Bianca and John pleaded the Children's interest in the tenements as existing for different reasons at different times. Significant parts of Bianca and John's case in this regard are summarised in the Rhodes stay appeal at [42] ‑ [56]. For present purposes, it is sufficient to note that those pleadings include:

(a) allegations as to the capacity in which HML and HRL acquired the tenements, leading to Bianca and John's plea that the tenements were beneficially owned by the Children as at 6 October 1992; and
>
> (b) allegations as to a series of transactions after 6 October 1992 whereby HRL transferred the ELs to HPPL and then HDIO. Bianca and John allege that those transactions were part of a fraudulent and dishonest design by Mrs Georgina Rhinehart (Gina) in breach of her fiduciary duties under the HFMF Trust.

3. The issues arising from these pleas by Bianca and John were referred to by the learned primary judge as the 'Acquisition Matter' and the 'Debt Reconstruction Matter', respectively.[10] For the purposes of these reasons, it is preferable to refer to those issues as the Acquisition Issue and the Debt Reconstruction Issue.[11] That is because, as we will return to, certain 'matters', properly so called, relating to the Acquisition Issue and the Debt Reconstruction Issue were the subject of a successful application by the HPPL parties for the matters so constituted to be stayed and referred to arbitration. The decision of Le Miere J granting that stay[12] was appealed by the Rhodes parties. This court dismissed that appeal in the Rhodes stay appeal.

1. The Hope Downs Deed is a deed entered into by a number of persons, including HPPL, Gina and the Children (John entered into a further deed in April 2007 in which he adopted the Hope Downs Deed).
2. The Hope Downs Deed purports to settle disputes about the title to various mining tenements, including what are defined in the deed as the Hope Downs tenements. Those disputes arose from claims initially made by John in around 2003.
3. The Hope Downs Deed provides for releases by the parties to the deed in relation to various claims and provides for acknowledgements as to the ownership of tenements referred to as the Hope Downs tenements.[13] Clause 20 of the Hope Downs Deed provides that any disputes under the deed are to be resolved by way of confidential arbitration.
4. WPPL and the Rhodes parties are not parties to, or bound by, the Hope Downs Deed, although, as has been set out, many of the defendants to the curial proceedings (including HPPL, HDIO and the Children) are parties to the deed.
5. In addition to filing defences in the curial proceedings, Bianca and John brought counterclaims against Gina and others, including all of the parties to the Hope Downs Deed (counterclaims).
6. HPPL applied for orders that all of the parties to the Rhodes proceedings and the WPPL proceedings, except for WPPL and the Rhodes parties, be referred to arbitration in respect of the defences and counterclaims of Bianca and John, and that those defences and counterclaims be stayed pursuant to s 8(1) of the Commercial Arbitration Act 2012 (WA) (the Act). HPPL also sought an order that the whole of the proceedings be stayed pending the outcome of any arbitration pursuant to the court's power to control its own proceedings.
7. Le Miere J stayed the counterclaims against the parties to the arbitration agreement in the Hope Downs Deed pursuant to s 8(1) of the Act and stayed the counterclaims against the other parties pursuant to the court's general power to control its own proceedings. His Honour declined to stay the whole of the curial proceedings or the defences of Bianca and John in each proceeding.[14] This court dismissed appeals and cross‑appeals from those orders in the first stay appeal.[15]
8. Following the stay of the counterclaims, the Martin Arbitration was commenced, the hearing of which was nearing completion by the time the applications the subject of the present appeal were heard by the learned primary judge.
9. Also following the stay of the counterclaims, the Rhodes parties amended their reply to Bianca and John's defence, including as to the Acquisition Issue and the Debt Reconstruction Issue. In the reply, the Rhodes parties pleaded, inter alia:

(a) in relation to the Acquisition Issue, that if Mr Lang Hancock or HPPL had caused the beneficial interest in the tenements to be held other than for HPPL and/or HPPL and WPPL, that such conduct was in breach of Mr Hancock's duty to HPPL; and
>
> (b) in relation to the Debt Reconstruction Issue, that Gina did not act in breach of any fiduciary duty, and that the directors of HRL and HFMF also acted properly, in relation to the series of transactions whereby HRL transferred the ELs to HPPL and then HDIO.

10. As noted at [45] above, the HPPL parties successfully applied for certain matters arising from the Rhodes parties' reply to Bianca and John's defence to be stayed pursuant to s 8(1) of the Act on the basis that the Rhodes parties were claiming 'through or under' a party to the Hope Downs Deed (the Rhodes stay). Those matters were referred to arbitration (namely the Rhodes Arbitration). Save for an amendment to the orders in relation to the scope of the matters that were the subject of the stay, this court dismissed the appeal from the Rhodes stay.
11. The matters that were referred to the Rhodes Arbitration, and the subject of the Rhodes stay, were referred to by Quinlan CJ and Beech JA in the Rhodes stay appeal as the 'acquisition matter' and the 'debt reconstruction matter'.[16]
12. In doing so, this court made clear that the matters the subject of the Rhodes stay (and the referral to the Rhodes Arbitration) were not the entirety of the issues that might arise in the curial proceedings as to the Acquisition Issue and the Debt Reconstruction Issue, as defined in [45] above. In particular, the amendment made to the orders for a stay in the Rhodes stay appeal (deleting reference to [3.3.2.2] of the Rhodes parties' reply) made clear that, to the extent that the Rhodes parties' reply did not claim 'through or under' a party to the Hope Downs Deed, it did not form part o[17]the stay.17
13. Elsewhere, Quinlan CJ and Beech JA identified that the 'matters' the subject of the Rhodes stay were 'the matters constituted by the controversy reflected in those paragraphs of Rhodes' amended reply and in the paragraphs of Bianca and John's defence to which they responded'.[18] That is, the 'matters' are the controversy constituted by the intersection of the defence and the reply, not the allegations pleaded in the defence or the reply per se and not all the issues arising from those allegations. We will return to this point in the course of resolving ground 1.
14. The Rhodes parties wrote to the parties in the Martin Arbitration seeking to participate in the Martin Arbitration. The parties to the Martin Arbitration did not agree. On 31 January 2022, the Rhodes parties commenced the Rhodes Arbitration. The Rhodes Arbitration has not progressed. The HPPL parties and Bianca and John submitted that the Rhodes Arbitration was not valid or on foot.[19]

The applications the subject of the present appeal

1. The HPPL parties applied for the trial of the curial proceedings, which was then listed to commence in June 2023, to be temporarily stayed or adjourned to allow for the making of an arbitral award in the Martin Arbitration. That application was heard on 24 November 2022.
2. In support of their applications, the HPPL parties submitted that there had been material changes in circumstances in two fundamental respects since this court dismissed the first stay appeal in July 2020.
3. First, the Martin Arbitration ought to have been completed by the time judgment in the curial proceedings was delivered, but had been stood over for final oral submissions in March 2023. If the curial proceedings proceeded to trial on 12 June 2023, an award would not yet have been delivered but might be delivered during the trial or after the judgment is reserved.[20]
4. Secondly, part of the Rhodes proceedings had been stayed and referred to arbitration.[21]
5. The HPPL parties claimed that WPPL and the Rhodes parties must necessarily await the outcome of the Martin Arbitration before their claims can be finally determined.[22]
6. The learned primary judge summarised the HPPL parties' five arguments in favour of the orders they sought:

(a) All the controversies between Bianca and John and the Rhodes parties depend upon the determination of the matters which have been referred to arbitration, so that the court cannot make a final determination in the Rhodes proceedings until either the award in the Martin Arbitration, in effect, renders the Rhodes Arbitration moot or the Rhodes Arbitration is determined and an award is issued by the arbitral tribunal.[23]
>
> (b) It is not practicable to determine the joint claims of the Rhodes parties and WPPL when some of the Rhodes parties' joint claims have been referred to arbitration because doing so might result in inconsistent findings and outcomes as regards the Acquisition Matter and the Debt Reconstruction Matter between the WPPL proceedings and Rhodes proceedings, despite them having been heard and determined together. Further, the HPPL parties submitted that the Rhodes parties claimed a competing equity in the tenements to that sought by WPPL, which the HPPL parties claimed could not be finally determined until the Rhodes parties' claim to an equity had been adjudicated.[24]
>
> (c) If the curial proceedings proceed to trial and a decision is delivered prior to the Martin Arbitration, the HPPL parties claimed they may face the prejudice of issue estoppels arising between them and Bianca and John concerning arbitral matters.
>
> (d) If the curial proceedings proceed to trial before a decision in the Martin Arbitration, the court will have to grapple with the issues arising from the HPPL parties seeking to tender the Hope Downs Deed. If the deed cannot be tendered, the HPPL parties may suffer prejudice and, if it can be tendered, the curial proceedings will need to await the arbitral determination of the challenge to the Hope Downs Deed by Bianca and John.[25]
>
> (e) If the curial proceedings proceed to trial and a decision in the Martin Arbitration is delivered prior to the decision in the curial proceedings, a number of complications are likely to occur which will necessarily impact the curial proceedings. In this context, the HPPL parties claimed that: > > > (i) the outcome of the Martin Arbitration is likely to reduce the issues remaining for determination in the WPPL and Rhodes proceedings, and consequently shorten and simplify the trial in the curial proceedings.[26] In that regard, her Honour recorded the HPPL parties' contentions that:[27] > > > > > (a) if the Tribunal in the Martin Arbitration finds that Bianca and John do not have any proprietary interest in the Tenements, they will not be a necessary party in the WPPL proceedings and their claims and contentions (including part of the Acquisition Matter and Debt Reconstruction Matter) would not need to be resolved by this court;
> > >
> > > (b) if the Martin Arbitration finds that the relevant deeds of settlement were binding on Bianca and John, in particular the Hope Downs Deed, and made orders restraining them from continuing their claims, the HPPL parties may seek to enforce those orders in this court precluding Bianca and John's defence from being run at all;
> > >
> > > (c) Bianca and John would be bound by the finding in the Martin Arbitration and an issue estoppel may arise as it is likely to be found that it is a clear abuse of process for them to argue that they have any interest in the Tenements;
> > >
> > > (d) if (a), (b) or (c) is the result of the award in the Martin Arbitration, the consequence will be that the Acquisition Matter in the WPPL proceedings will become confined to the question of whether Hancock Mining Ltd and Hancock Resources Ltd held the Tenements on trust for the Partnership for HPPL to be held subject to the rights and interests of the Partnership, or trust for HPPL alone. The Debt Reconstruction Matter will fall away entirely. This will mean, on HPPL's estimate, that the trial in the Curial Proceedings could take as little as five weeks (as opposed to the 15 ‑ 19 weeks for which it is presently set down), as well as removing the need to review and hear submissions upon thousands of documents. > > > >
> >
> > (ii) further, a stay would prevent Bianca and John from ventilating otherwise confidential matters in open court in breach of the deed, and to the great prejudice of the HPPL parties and others in respect of whom Bianca and John are likely to make disparaging allegations.[28] In addition, a stay would avoid the inevitable delay and further disputes arising when the award is issued.[29]

As will be seen, in our view this summary accurately reflects the HPPL parties' submissions to her Honour.

1. The learned primary judge delivered her decision on the HPPL parties' applications on 14 December 2022, a little under three weeks following the hearing of the applications.
2. After setting out the background of the proceedings, including this court's previous decisions, her Honour turned to consideration of the matters raised by the HPPL parties in support of their applications. As will be seen, her Honour made a number of observations and drew a number of conclusions in this part of the reasons, to which her Honour later made reference in the dispositive part of the reasons.
3. In setting out the learned primary judge's reasons, we have used the numbering of the headings adopted in the primary reasons. We have also, in the course of summarising the primary reasons, identified the principal parts of the reasons that are challenged by the grounds of appeal.

1. In relation to the potential prejudice of issue estoppels binding the arbitral parties in the Martin Arbitration arising from a judgment in the curial proceedings, the learned primary judge held:

[104] ... there is now no realistic possibility of issue estoppels arising from a judgment in these proceedings binding the arbitral parties in the Martin Arbitration.

[105] First, this is because the Martin Arbitration will be bound to make an award based only on the evidence already adduced and the submissions that are presented to it in March 2023.

[106] Second, and in any event, given the current status of the two sets of proceedings, the overwhelming likelihood is that a judgment in the Curial Proceedings will be delivered long after an award is delivered in the Martin Arbitration.

[107] The Martin Arbitration will have had a head start of approximately nine months on the commencement of the trial of the Curial Proceedings. In addition, there are three eminent and experienced arbitrators who comprise the tribunal in the Martin Arbitration, whereas the trial of the Curial Proceedings will be conducted by a single judge.

[108] When regard is had to these circumstances, it is difficult to contemplate how a decision could be given following the trial of the Curial Proceedings prior to the delivery of an award in the Martin Arbitration.

1. For these reasons, her Honour found that the risk of any issue estoppel arising from the findings in the curial proceedings giving rise to issue estoppels in the Martin Arbitration was unlikely and remote. The learned primary judge held that, for that reason, this factor should not be given any weight.[30]
2. This conclusion is challenged by ground 3.
3. In relation to the Rhodes Arbitration, the learned primary judge found that the Rhodes Arbitration had not been effectively commenced, that the HPPL parties had refused to allow the Rhodes parties to join the Martin Arbitration, and that the HPPL parties had expressed an intention not to be joined to any arbitration concerning the Rhodes parties and the Children.[31] Her Honour also observed that Bianca and John made no submissions about the prospect of findings in the curial proceedings giving rise to any issue estoppels binding on the parties to the Rhodes Arbitration.[32]
4. By contrast, the curial proceedings were effectively ready for trial. Therefore, any risk of issue estoppels in the Rhodes Arbitration may never materialise if the Rhodes Arbitration does not proceed, whereas the delay from granting a stay would be both very substantial and highly uncertain.[33]
5. The learned primary judge also found that it was highly uncertain whether an award in the Martin Arbitration would or could render the Rhodes Arbitration moot because the Rhodes parties were not parties to the Martin Arbitration and no findings made in the Martin Arbitration in an award could bind them.[34]
6. The learned primary judge found that, in light of the uncertainty as to whether the Rhodes Arbitration would progress at all, or as to the rate of its progression, this factor could not properly attract any weight in favour of a stay or adjournment and, consequently, should not be given any weight.[35]
7. This conclusion is challenged by ground 4.

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

1. The learned primary judge observed that, in response to questions from the bench, the HPPL parties posited the following scenarios that could result from potential findings in the Martin Arbitration:[36]

(a) The arbitration agreement is found to be valid, and Bianca and John are found to be bound by the releases in the Hope Downs Deed - the result would necessarily, according to the HPPL parties, be that Bianca and John would be prohibited by an issue estoppel or abuse of process from proceeding with their defences in the curial proceedings.
>
> (b) The arbitration agreement is found to be valid, but the releases in the Hope Downs Deed are found to be invalid - the result would be that the underlying facts of the disputed matters in the arbitration would need to be decided and the outcome would either be that the HPPL parties would be successful, or Bianca and John would be successful in establishing their claim that the tenements were held on trust for the HFMF Trust.
>
> (c) The arbitration clause in the Hope Downs Deed is set aside. This would result in the arbitrators finding that they have no jurisdiction to make any findings about the controversies between Bianca and John and the HPPL parties in the arbitral proceedings. The result would be that 'it would be necessary to effectively start again in [the learned primary judge's] hearing because there would need to be pleadings between Bianca and John and HPPL that have been referred off to arbitration. And the whole of the dispute between Bianca and John and HPPL will need to be pleaded and heard'.

2. Her Honour said that the HPPL parties went on to submit that if the arbitration agreement stands and the releases are found to be invalid, and if Bianca and John are found to have a proprietary interest in the tenements because the tenements were held on trust for HFMF, the HPPL parties would be bound by that finding. That would fundamentally alter the nature of the HPPL parties' defence to WPPL's claim (which is predicated on HDIO holding the requisite interest in the tenements). The 'contest' would then be between WPPL and Bianca and John as to who has the better title.[37]

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

1. The learned primary judged recorded that the HPPL parties argued that the entirety of the 'Acquisition Matter' and the 'Debt Reconstruction Matter' (as her Honour used those expressions) cannot be resolved in the Rhodes proceedings until any Rhodes Arbitration is determined. They argued that unless and until the Rhodes Arbitration is determined, or is rendered moot by the award in the Martin Arbitration, the Rhodes parties cannot be granted any final relief in the Rhodes proceedings.[38]
2. It is important to recognise, as we have noted at [45] above, that her Honour used the terms 'Acquisition Matter' and 'Debt Reconstruction Matter' in the broad sense of all issues between all parties as to those topics, rather than in the narrower sense used in the Rhodes stay appeal - namely the matters the subject of the stay (and the referral to the Rhodes Arbitration) (as explained at [56] ‑ [58] above). In other words, her Honour used the terms 'Acquisition Matter' and 'Debt Reconstruction Matter' to connote what we have described as the 'Acquisition Issue' and the 'Debt Reconstruction Issue'.
3. The HPPL parties submitted that the matters referred to the Rhodes Arbitration would likely be rendered moot by the award in the Martin Arbitration. They argued that if they succeed in the Martin Arbitration, the Rhodes Arbitration will be rendered moot.[39] They also argued that the whole of the Debt Reconstruction Matter in the Rhodes proceedings has been referred to the Rhodes Arbitration, and that the entirety of the Acquisition Matter also cannot be determined in the Rhodes proceedings.[40]
4. Thus, the HPPL parties argued, the Rhodes parties could not be granted any final relief.
5. The HPPL parties argued that, where there is a competition between the Rhodes parties and WPPL as to who has the better title to the tenements, it is impossible to determine that competition because the Rhodes parties claim a competing equity to the tenements to that sought by WPPL.[41] The learned judge observed that it was strongly arguable that the Rhodes parties claim a different interest to WPPL as they (the Rhodes parties) do not claim a proprietary interest and that, in any event, that was a matter for trial and any prejudice at this point would lay with WPPL and/or the Rhodes parties, not the HPPL parties.[42]
6. The learned primary judge found that the HPPL parties' contentions could not be made out for the following reasons:[43]

(a) All the findings made by the Martin Arbitration can only bind the parties to the arbitration in contract and can only affect the rights of the arbitral parties inter se.[44]
>
> (b) WPPL and the Rhodes parties are not parties to the Hope Downs Deed, nor parties to the Martin Arbitration, and so could not be bound by any finding made in the Martin Arbitration.
>
> (c) The Rhodes parties raise an alternative plea in their reply which is part of the Acquisition Matter not the subject of a referral to arbitration, and so the Rhodes parties can potentially obtain relief against Bianca and John in the curial proceedings.

7. The learned primary judge found, citing the findings of Beech and Vaughan JJA in the first stay appeal and the first stay appeal (supplementary),[45] that it would likely be necessary to litigate issues in the curial proceedings even if they had been decided between the arbitration parties in the Martin Arbitration.[46] Her Honour said that, given that the award in the Martin Arbitration would be no more than a contractual process between the relevant arbitration parties, it could not preclude the court from granting any of the relief sought by WPPL (or the Rhodes parties).[47]
8. The learned primary judge found that further, and in any event, there was uncertainty as to the findings that might be made in the Martin Arbitration.[48] In particular, it was possible that the Martin Arbitration might not make any findings about the Acquisition Matter or the Debt Reconstruction Matter. The learned primary judge identified various hypothetical scenarios in which the Martin Arbitration might not make any findings on those matters, such as the tribunal finding that the arbitration agreement is null and void or finding that the releases are valid.[49]
9. The learned primary judge then addressed the HPPL parties' submission that the Rhodes parties would be prohibited from obtaining relief in the curial proceedings because, as they argued, 'the entire controversy about the Acquisition Matter raised in Bianca and John's amended defence, and the entire Debt Reconstruction Matter, have been referred to arbitration' (again, the italicised terms are in the broad sense used by her Honour).[50]
10. The learned primary judge said that, even if, contrary to her Honour's view, the Rhodes parties would be prohibited from seeking relief in the curial proceedings until the matters referred to arbitration are determined in the Rhodes Arbitration, that consideration should not be given any weight because it is the Rhodes parties and not the HPPL parties who would be prohibited from seeking relief.[51] This conclusion is challenged by ground 2(e).
11. More significantly, the learned primary judge was not persuaded that the Rhodes parties would be prohibited from seeking relief in the curial proceedings until a determination in the Rhodes Arbitration.
12. After again summarising Bianca and John's defences to WPPL's claim and the Rhodes parties' claims, the learned primary judge summarised the position as including that:

(a) Bianca and John's defences to WPPL's claim included both the Acquisition Matter and the Debt Reconstruction Matter (in the broad sense in which her Honour used those terms);[52]
>
> (b) in WPPL's defence in the Rhodes proceedings, WPPL contends that if WPPL is held, in the WPPL proceedings, to be entitled to both the declaratory and other relief that it seeks, it accepts that, upon WPPL receiving the fruits of the judgment, the Rhodes parties would be entitled to be paid royalties;[53]
>
> (c) in response to the Rhodes parties' claim, Bianca and John raise the same Debt Reconstruction Matter defence as they raise in the WPPL proceedings, although there is no stay affecting the WPPL proceedings in relation to that matter (noting again the broad sense in which her Honour used those terms); and[54]
>
> (d) in the Rhodes parties' reply, the Rhodes parties raise three alternatives, two of which include part of the Acquisition Matter and the other the Debt Reconstruction Matter, which matters have been stayed and referred to arbitration.[55]

13. Her Honour observed that what had been referred to arbitration was the part of the Acquisition Matter whereby the Rhodes parties claim that the acquisition of the tenements by HML and HRL was a breach of duty owed to HPPL. However, part of the Acquisition Matter (broadly defined) had not been stayed, including the Rhodes parties' claim in [3.3.2.2] of their reply that any acquisition of the tenements by HML and HRL purporting to defeat the rights of the Partnership was in breach of duties owed to WPPL.
14. The Rhodes parties accordingly submitted that the court could hear Bianca and John's defence to the Rhodes parties' primary claim that the tenements are held on trust for the Children, and the part of the Rhodes parties' reply that contends that if the tenements were so dealt with it was in breach of HPPL's fiduciary duty to WPPL.[56] Insofar as the learned primary judge implicitly accepted this submission, her Honour's conclusion is challenged by ground 2(c).
15. The learned primary judge referred to the parties' competing submissions as to whether the Rhodes parties' claimed interest is a proprietary interest. WPPL submitted that the Rhodes parties' claimed interest is not a proprietary interest, and that if the court finds that WPPL has an interest, then the Rhodes parties' relief can be granted against WPPL (and/or the HPPL parties).[57] The HPPL parties submitted that the Rhodes parties' interest is a proprietary interest that is in conflict with the interest claimed by WPPL.[58] Her Honour said that, while this was a matter for trial, there is authority contrary to a royalty interest being a proprietary interest.[59] This conclusion is challenged by ground 2(a).
16. Her Honour observed that, in respect of the controversies that have been stayed and referred to arbitration in the Rhodes proceedings, the same defences of Bianca and John that form part of the controversies that have been so stayed are matters raised by them in the WPPL proceedings. The learned primary judge said that whether the Rhodes parties could make submissions about issues raised by Bianca and John in Bianca and John's defence to the WPPL proceedings that are part of the controversies that have been stayed in the Rhodes proceedings is a matter that can be dealt with at trial, and should not bear any weight when considering whether to stay or adjourn.[60]
17. The learned primary judge concluded that she was not persuaded that the HPPL parties' submissions on this point had sufficient merit to be given any weight when weighing the relevant factors in exercising the discretion.[61]
18. This conclusion is challenged by grounds 1 and 2.

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

1. The learned primary judge found that, given that the only step taken in the Rhodes Arbitration had been the appointment of an arbitrator by the Rhodes parties, the Rhodes Arbitration, if it proceeds, is likely to be in the distant future.[62]
2. Her Honour reasoned that, in circumstances where WPPL commenced its action in 2010 and the Rhodes parties commenced their action in 2013, and when all of the other relevant factors are considered, it could not be found that there are rare and compelling circumstances which would justify a stay or adjournment of the trial (which was otherwise ready to commence in June 2023) pending the outcome of an arbitration that was yet to progress. Consequently, the learned primary judge said that she had not given this factor, 'alone or together with other factors', any weight.[63]
3. This conclusion is challenged by ground 2(b).

6.5 The risk of inconsistent decisions between the curial proceedings and the Martin Arbitration

1. The learned primary judge said that, even if there was merit in the HPPL parties' contentions that some issues in the curial proceedings are likely to be resolved by an award in the Martin arbitration, her Honour was not persuaded that that was likely. Her Honour said that all that could be found, at that point in time, to any degree of certainty, was that there was a risk of inconsistent findings between the Martin Arbitration and the curial proceedings.[64]
2. The learned primary judge said that WPPL could not be prohibited by the matters referred to arbitration from arguing at trial that Bianca and John's claimed interest should not preclude the grant of relief that WPPL seeks in respect of HPPL's alleged breach of fiduciary duty in 1989.[65] The learned primary judge found that because of the HPPL parties' forensic decisions to make applications to refer to arbitration matters which are overlapping issues in the curial proceedings between non‑parties to the arbitration, the risk of the duplication of resources and inconsistent decisions was and is inevitable and that, even if the application before her Honour were granted, the risk remained.[66]
3. The learned primary judge held that this risk was therefore not to be regarded as a factor in favour of a stay or adjournment when weighed against the relevant factors.[67]
4. This conclusion is challenged by ground 6.

6.6 The issues raised by the HPPL parties' stated intention to tender the Hope Downs Deed in the curial proceedings in the event that they are successful in the Martin Arbitration

1. The learned primary judge then turned to the use of the Hope Downs Deed in the curial proceedings. While much of this part of the primary reasons, consistently with the heading, refers to the tender of the Hope Downs Deed, it is apparent from the reasons as a whole that her Honour also addressed in this context the broader submissions of the HPPL parties in relation to the impact of their potential success in the Martin Arbitration.
2. In this regard, as we will come to, to the extent that this part of the primary reasons includes some imprecision of language or unhappy phrasing, in the context of an application for leave to appeal against a case management decision, our focus is on the substance of whether her Honour properly addressed, and gave consideration to, the issues raised before her Honour, rather than on the precise form of the reasons.
3. In that regard, in the opening paragraphs of this part of the reasons, the learned primary judge referred to the HPPL parties' submission that in the Martin Arbitration they seek to restrain, by way of injunction, Bianca and John from asserting that they own the tenements, including by way of defence in the curial proceedings. The HPPL parties also submitted that if Bianca and John are so restrained, that will be the end of their defence in the curial proceedings because, pursuant to s 35 of the Act, the award will immediately be binding upon them, without any application to this or any other court.[68]
4. The learned primary judge observed, however, that to enforce the award, an application must be made to the court pursuant to s 35 and s 36 of the Act. Consequently, to 'deploy' the Hope Downs Deed, the HPPL parties would need to make an application pursuant to s 35.[69]
5. Her Honour recorded that the HPPL parties submitted that if the Martin Arbitration was determined in their favour, and the deed tendered, the trial length would shorten considerably because the deed would defeat the claim by Bianca and John that the tenements were acquired for the Children's benefit.[70] The learned primary judge found that it had been the stated objective of the HPPL parties to tender the deed in the curial proceedings since at least the first stay appeal.[71]
6. The HPPL parties submitted, the learned primary judge said, that they would suffer prejudice if the trial commenced prior to an award in the Martin Arbitration because they could not then make an application to tender the Hope Downs Deed.[72] Further, the learned primary judge said that the HPPL parties submitted that if the trial concluded before the Martin Arbitration award was delivered, the HPPL parties would have to apply to reopen the evidence to tender the deed.[73] This summary of the HPPL parties' submissions as to their use of the deed is challenged by ground 7 and is also raised by ground 8.
7. Her Honour noted that the HPPL parties pointed to the following various ways they could rely on the Hope Downs Deed in the curial proceedings:

(a) as a complete answer to WPPL's second alternative claim in [53C] of the 6FASSOC - although the learned primary judge noted that the deed was not pleaded, adding that the HPPL parties said they can only do so after the award is issued in the Martin Arbitration;[74] and
>
> (b) if the HPPL parties are successful in the Martin Arbitration, as a basis for an issue estoppel or abuse of process argument as against Bianca and John, which would result in [53C] of the 6FASSOC claim falling away.[75]

8. The learned primary judge summarised the parties' submissions as to the potential reduction of the length of the trial if the overlapping issues are removed from the curial proceedings. The parties gave differing estimates. The HPPL parties submitted that the trial would be significantly shortened and could be heard in around 20 days.[76] The HPPL parties also claimed that thousands of documents relating to Bianca and John's defence would not need to be received and considered by the court.[77] WPPL contended that even if the allegations made by Bianca and John in their defence were not litigated in the curial proceedings, the trial still may take somewhere between 36 to 56 days.[78]
9. The learned primary judge ultimately concluded that whether the trial would or could be shortened was uncertain.[79]
10. The learned primary judge also said that, if the award delivered by the Martin Arbitration is to the effect that both the arbitration agreement and the Hope Downs Deed fail, it would then be necessary to start the hearing again because there would need to be pleadings as between Bianca and John and the HPPL parties in respect of their stayed counterclaims.[80]
11. The learned primary judge noted that this court had accepted that it is not certain that WPPL, as a non‑party to the deed, would obtain a benefit from the extinguishment of any claim by Bianca and John affected by the release in the deed.[81] Her Honour observed that, in any event, it was not certain that, even if they were unsuccessful in the Martin Arbitration, Bianca and John would be precluded (by doctrines of abuse of process or issue estoppel) from agitating their defences in the curial proceedings.[82] Her Honour discussed a number of competing arguments in that regard.
12. As to other possible outcomes of the Martin Arbitration, her Honour said that, as WPPL had pointed out, if the Martin Arbitration declines to set aside the Hope Downs Deed, it does not follow that the Martin Arbitration will necessarily order injunctive relief restraining Bianca and John from maintaining their defence to these proceedings. The Martin Arbitration may conclude that the undertaking in cl 7(b) of the Hope Downs Deed ('not to challenge the right of any member of the Hancock Group to any of the Hancock Group Interests at any time') does not prevent Bianca and John from maintaining a claim over the 50% interest in the tenements claimed by WPPL.[83]
13. In relation to the tender of the Hope Downs Deed, the learned primary judge also said:[84]

In addition, if HPPL succeeds in the Martin Arbitration in respect of its arguments about the Hope Downs Deed, there may be real doubt as to whether the Hope Downs Deed can be tendered in the trial of the Curial Proceedings by the HPPL parties, when it does not plead reliance on the deed in its defence against either Rhodes or WPPL. This point, however, may be capable of being met by an application by the HPPL parties to amend their defences.

The HPPL parties reject any contention that they could seek to make an application in the trial that the deed be accepted into evidence on a provisional basis or marked for identification for the purposes of tender if an award is subsequently made in their favour after the evidence closes in the Curial Proceedings. I do not accept this contention. It clearly would be open to the HPPL parties to make such an application. Whether such an application should be accepted by the court would be a matter for argument at trial, which argument is likely to concern the effect, if any, of the terms of the deed as between the plaintiffs and Bianca and John.

1. The learned primary judge concluded, in relation to these issues, that:[85]

When regard is had to all of these matters, it cannot be found with any degree of certainty as to what will be the effect of an award in the Martin Arbitration, if the HPPL parties are successful in the arbitration. In particular, it is not clear whether some issues will fall away or not.

This is a factor that weighs in favour of a stay or adjournment that I must consider in the exercise of the discretion, together with all other relevant factors that should be given weight. This factor and the weight that it should be given is considered below in 8.0.

6.7 Potential effect on the curial proceedings if the Martin Arbitration finds it has no jurisdiction to determine the disputes between the HPPL parties and the other parties to the Hope Downs Deed

1. Her Honour recorded that the parties disagreed as to the effect on the curial proceedings if the Martin Arbitration concludes that the arbitration agreements are null and void, and that the dispute between Bianca and John and the HPPL parties will have to be resolved in court.[86]
2. The learned primary judge in effect addressed both parties' hypothesised scenarios, saying that the risk of the following scenarios were matters that weighed in favour of a stay or adjournment:[87]

(a) the trial of the curial proceedings having to be reopened with additional pleadings, evidence and further submissions if an application is granted to lift the stay and referral orders, resulting in the counterclaims being reactivated (the HPPL parties' hypothesis); or alternatively
>
> (b) inconsistent decisions resulting from the plaintiffs' claims and the counterclaims being conducted in separate trials, the other trial being in the Federal Court proceedings instituted by Bianca and John and currently stayed (WPPL's and the Rhodes parties' hypothesis).

3. Her Honour observed that this eventuality was not one raised by the HPPL parties in their written submissions, but rather was raised following questions from the bench as to what could be the effect of a finding by the Martin Arbitration that the arbitration agreement was void and invalid. Her Honour stated that the weight to be given to this factor would be considered in pt 8.0 of the reasons.[88]

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

1. The learned primary judge noted that the HPPL parties sought a stay until the award is issued and any disputes related thereto are resolved.[89] Her Honour noted a slight shift in the HPPL parties' position when they stated that an adjournment of six months may be sufficient.[90]
2. The learned primary judge considered that, in light of the parties' litigious history, enforcement of the award would likely be challenged by the unsuccessful party, including by way of appeal, and that any disputes arising from the Martin Arbitration could take up to two or three years to resolve.[91] There is no challenge to this conclusion.

1. The learned primary judge observed that courts routinely hear cases in open court that arise out of relationships that are subject to express or implied obligations of confidentiality. Her Honour said that '[p]arties cannot by agreement cloak their prior dealings in secrecy and shield them from the normal processes of the administration of justice'.[92]
2. The learned primary judge found that, in any event, it would be open to the parties to apply for suppression orders during the course of the trial.[93]
3. The learned primary judge therefore did not consider that this factor should be given much weight.[94]

7. The prejudice that WPPL and the Rhodes parties claim they would suffer if the adjournment or stay were granted

1. WPPL and the Rhodes parties submitted that the application interfered with their rights as plaintiffs to prosecute their claims to a conclusion.[95] They submitted that they would be subjected to a stay or adjournment that would be of substantial duration, highly uncertain and, practically speaking, beyond their control or influence.[96]
2. WPPL submitted that the HPPL parties offered no sound basis for a stay and that the problems they raised were either illusory or the inevitable result of their own forensic choices.[97] WPPL submitted also that much of its pre‑trial work would need to be repeated in the event of new trial dates, which would lead to substantial duplication of time and costs.[98] Further, two of WPPL's expert witnesses were of advancing age.[99]
3. The Rhodes parties submitted that although Rhodes is a wealthy private company, it is a family company, and the delay in finalisation of the curial proceedings is of real significance.[100]
4. Her Honour's dispositive reasoning is set out in pt 8 of the primary reasons.

8. Should the curial proceedings be adjourned or stayed?

1. The learned primary judge said, '[w]hen all the relevant factors are accorded weight and weighed together, the short answer to this question is, no'.[101]
2. The learned primary judge held that, other than there now being a conceivably shorter duration of delay, the considerations that strongly militated against a stay that the Court of Appeal took into account in the first stay appeal in 2020 (at [121] and [134] of the first stay appeal (supplementary)) largely remain unchanged.[102]
3. The learned primary judge held:[103]

The factors that strongly militate against an adjournment or stay of the Curial Proceedings at this present time are as follows:

(a) The Curial Proceedings have been on foot for many years, relate to events that occurred a long time ago, and on the plaintiffs' cases, each of them acquired their interests in the Tenements well before the Hope Downs Deed was entered into.

(b) The plaintiffs and the public have an obvious and important interest in the claims being resolved as soon as possible.

(c) From the plaintiffs' perspective, there is no proper reason why their interests should be adversely affected by the arbitration agreement in the Martin Arbitration as they are strangers to the Hope Downs Deed. For the reasons I gave in 6.3, I am not satisfied that the controversies between Bianca and John and Rhodes depend upon the determination of the matters that have been referred to the Rhodes Arbitration. These matters may not be rendered moot by findings made in the award of the Martin Arbitration. More importantly, for the reasons I give in 6.3, I am not satisfied that the court will not be able to finally determine Rhodes' and WPPL's claims until the question of Bianca and John's claimed interest in the Tenements is resolved in the Martin Arbitration.

(d) It is by no means certain that either WPPL or Rhodes, as a non‑party to the Hope Downs Deed, would obtain the benefit of any extinguishment of any claim by Bianca and John that is effected by a release in the Hope Downs Deed.

(e) The plaintiffs will not be bound by any outcome of the Martin Arbitration, which means there is a risk of duplication of resources and inconsistent decisions in any event, even if a stay or adjournment is ordered.

(f) Although the Martin Arbitration has commenced, it will not be finally completed until the end of March 2023. WPPL, Rhodes and the HPPL parties agree that an award in the Martin Arbitration may be delivered by the end of 2023 and the process of any unsuccessful party resisting enforcement may not be completed until March 2024. As Beech and Vaughan JJA found, the delay consequent upon a grant of a stay is magnified by the prospect of curial challenges to an arbitral award. Although the HPPL parties sought an adjournment of the trial until at least September 2024, they indicated they would embrace a more limited adjournment of the trial as WPPL but as Rhodes point out there could be no guarantee that they would not have to face a further application by the HPPL parties for a stay or an adjournment.

(g) The family members that stand behind at least Rhodes have suffered stress and have been subjected to the strain that litigation imposes upon litigants when proceedings are delayed.

(h) A refusal of an adjournment or stay advances the goal in O 1 r 4A of the Rules of the Supreme Court by minimising delays in the resolution of disputes whilst ensuring the fair and just determination of issues between parties.

Many of these conclusions are challenged - see grounds 2 and 5.

1. The learned primary judge reiterated which factors, relied on by the HPPL parties, her Honour gave little or no weight:[104]

(a) For the reasons I give in 6.1, the risk of any issue estoppel arising from findings made in the Curial Proceedings giving rise to issue estoppel in the Martin Arbitration is unlikely and remote.
>
> (b) For the reasons I give in 6.1 and 6.4, it is highly uncertain as to whether an award in the Martin Arbitration would or could render the Rhodes Arbitration moot, and, in any event, it is uncertain as to whether the Rhodes Arbitration will progress at all with the rate of its progression unknown.
>
> (c) For the reasons I give in 6.9, any real risk to confidential matters being disclosed in open court can be dealt with by an appropriate order where it is appropriate to make such an order after having regard to the principles of open justice.

2. The learned primary judge said that the risk of inconsistent findings was a neutral factor because there was a risk of duplication of resources and decisions in any event, because, for the reasons in pts 6.3 and 6.5, the Martin Arbitration cannot bind the plaintiffs.[105] The learned primary judge said that the prospect of the trial being shortened was a neutral factor because, although, as discussed in pt 6.6 of the reasons, there is a prospect that the length and complexity of the issues in the curial proceedings could be considerably shortened, due to the confidentiality of arbitration, the court could not properly assess the likelihood of any outcomes and thus of any consequent shortening.[106] Ground 5 challenges the first, and ground 6 challenges the second, of those conclusions.
3. The learned primary judge then identified the factors that must be weighed in favour of a stay or adjournment. Her Honour said:

[240] It must be accepted that because a decision in the Curial Proceedings is unlikely to be delivered prior to the delivery of an award in the Martin Arbitration, and the award is unlikely to be delivered prior to the commencement of the trial, there will be issues that will arise as to the effect and enforcement of the award which could give rise to arguments about:

(a) the tender of the Hope Downs Deed, issue estoppel and abuse of process if Bianca and John are found not to have a proprietary interest in the Tenements in the Martin Arbitration (which issues are discussed in 6.6 of these reasons). If, at the time the award in the Martin Arbitration is delivered, the evidence and submissions in the Curial Proceedings have been concluded and the decision in the trial is reserved, it may be necessary for the HPPL parties to make an application to reopen the proceedings; or

(b) alternatively, if the Martin Arbitration concludes that the arbitration agreements are null and void, it may become necessary to reopen the proceedings and interlocutory steps taken to enable defences to Bianca and John's counterclaims against WPPL by the HPPL parties to be pleaded and be heard.

[241] Given that the prospect of [240(b)] was not raised by the HPPL parties in their written submissions or in their oral submissions until questions were asked by the bench, and were not raised by the HPPL parties or Bianca or John in any previous application for a stay of the Curial Proceedings, the prospect of such a result of the Martin Arbitration should be not regarded as likely and should be accorded little weight.

1. The learned primary judge said that the factor to be given the most weight in favour of a stay must be the issues that arise out of the HPPL parties' intention to deploy the Hope Downs Deed if they are successful in the Martin Arbitration. The learned primary judge observed that it was not known whether the HPPL parties would be successful.[107] In any event, the learned primary judge said that the HPPL parties could apply to tender the deed on a conditional basis.[108] The learned primary judge observed that the ability of the deed to defeat Bianca and John's claims against the plaintiffs was not clear. The learned primary judge said:[109]

Whilst this factor must be given weight when considered alone or together in combination with the matter in [240(b)] and [242], when weighed against the factors counting against a stay or an adjournment of the trial, in particular the legitimate interests of the plaintiffs and the requirement that there should be no prejudice to the plaintiffs beyond that which the interests of justice justify when considering whether to stay court proceedings pending the resolution of arbitral proceedings, I am not persuaded that the Curial Proceedings should be stayed until the delivery of an award in the Martin Arbitration.

Nor am I satisfied that a stay would result in the most efficient and expeditious resolution of disputes between the parties to the Curial Proceedings, or that there are rare and compelling circumstances to justify a stay.

1. The learned primary judge was not satisfied that it was expedient and in the interests of justice to adjourn the trial (as opposed to a stay) because:[110]

(a) there have been long delays in bringing these proceedings to a conclusion by a trial;
>
> (b) trial dates have been set in the past and vacated; and
>
> (c) because there is in any event a risk [of] duplication of resources and inconsistent findings being made between the Martin Arbitration and a decision of the court in Curial Proceedings, I am not satisfied that a further adjournment would necessarily have the effect of maximising the efficient use of available judicial resources and facilitate the timely disposal of business.

Although there is a prospect that less judicial resources could be required because some issues could fall away, the likelihood of that occurring is too uncertain. As WPPL and Rhodes point out, even if the trial is only adjourned for a period of six months, if the award in the Martin Arbitration has not been delivered by the time the trial is to commence, given the history of prior applications for adjournments of the trial by the HPPL parties, there is likely to be a further application by the HPPL parties for an adjournment of the trial.

1. As we noted at the beginning of these reasons, the grounds of appeal, which are reproduced in the Appendix to these reasons, are many and varied. Grounds of appeal must be succinctly stated with concise particulars: Supreme Court (Court of Appeal) Rules 2005 (WA) r 32(4)(b). That certainly could not be said of the grounds of appeal in this case. In their prolixity, complexity and their assertion of so many errors, the grounds tended to obscure, rather than crystallise, the issues on appeal.
2. In addressing the merits of the appeal, it is important to reiterate that the appeal concerns the discretion of the case manager whether to stay or adjourn the trial. Her Honour has had conduct of the curial proceedings for some time.
3. In addition to the need for 'special restraint' addressed at [9] ‑ [11] above, it should also be recognised that the decision in this case was quintessentially one in relation to which the principles in House v The King apply. It is as well to re[112]t those principles:112

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

1. In accordance with these principles, absent an express or implied error of the kind described in House v The King, the weight to be accorded to individual matters or considerations is a matter for the primary judge. An alleged 'weighting error' is, in truth, no error at all - it cannot amount to an error that justifies appellate intervention.
2. In this context, it is necessary to be cautious not to elevate each evaluative statement made by a judge in the course of exercising a discretion into a finding of 'fact', so as to contend that the judge has made some express error by 'mistaking the facts'. Just as pieces of evidence are not relevant considerations for the purposes of establishing House v The King error,[113] so too the judge's reasons as to the weight to be accorded to particular considerations should not be parsed into smaller and smaller components in search of some mistaken 'fact'.
3. Take, for example, ground 3 in the present case. Ground 3 alleges that the learned primary judge erred in law in 'finding' that there was 'no realistic possibility' that issue estoppels would arise from a judgment in the curial proceedings that would bind the parties in the Martin Arbitration, for the reason that the 'overwhelming likelihood' is that a judgment in the curial proceedings will be delivered long after the award in the Martin Arbitration. The HPPL parties allege that this is an error of law because the 'risk of issue estoppels arising remains' and submit that there is 'no certainty' that an award in the Martin Arbitration will be issued before judgment in the curial proceedings.
4. Properly understood, distinctions such as this are matters of weight. To allege that a judge's evaluative judgment as to a future risk being not a 'realistic possibility' was an error of law (or even a mistake of fact), because there can be 'no certainty' about the matter, is ultimately an attempt to avoid, by linguistic manoeuvre, the limits on appellate review reflected in House v The King.
5. Similarly, in approaching the grounds of appeal in the present case, it is important to recognise, as the High Court said in Macedonian Orthodox Community Church St Petka Inc, that:[114]

when a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge's attention was drawn to those matters, at least unless they are fundamental and obvious.

1. As will be seen, this principle assumes some significance in the present case, given what is properly understood as a material shift in approach taken by the HPPL parties on appeal, compared with the focus of their submissions before the learned primary judge, particularly in relation to the issues arising in ground 5.
2. Similarly, particularly in the context of ground 5, it is important to recognise that in the exercise of a discretion, one fact or consideration may be relevant in multiple respects, each of which may point in opposite directions. This point was made long ago in Veen v The Queen (No 2)[115] in the context of the relevance of mental illness to the discretionary decision involved in sentencing.
3. In the same context, in a passage cited with approval in Bugmy v The Queen,[116] Gleeson CJ said in R v Engert:[117]

A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration.

1. Although made in a very different context, the observations made by Gleeson CJ are apt to describe the exercise of discretion required to be undertaken by the learned primary judge in the present case. The competing submissions were elaborate and raised a complex set of considerations that were said to be relevant, in various competing respects, to the proper exercise of discretion. Some of the matters relied upon by the parties were relevant in more than one respect, not all of which pointed in the same direction. The weighing exercise thereby arising as to the relevance of a particular matter and its tendency to point in one or both directions was an integral aspect of the primary judge's exercise of discretion. In such a case, there is no single correct answer as to the relative weight to be accorded to a particular matter's respective tendencies to count in favour of, and against, the grant of a stay or adjournment.
2. Further, in evaluating an assertion of appellable error in a failure to consider on the part of the learned primary judge, the complexity of the considerations to which the parties pointed in their submissions to the primary judge - and the circumstance that some of those matters were capable of being seen as relevant in more than one respect - underlines the need for care in identifying the substance of the submissions put to the primary judge and the framework in which various points were made.
3. Turning then to the grounds of appeal.

1. Grounds 1 and 2 may be considered together. Indeed, as is apparent from its opening words, ground 2 seeks to identify multiple subsidiary errors contributing to the essential error contended for in ground 1.
2. The essential error contended for in grounds 1 and 2 is that the learned primary judge erred in finding that the Rhodes Arbitration was not a matter to be given weight in the exercise of discretion. The HPPL parties contended by ground 1 that this was wrong because 'the Rhodes proceedings cannot be finally determined until' the Acquisition Issue and Debt Reconstruction Issue are resolved in either the Martin Arbitration or the Rhodes Arbitration. Similarly, ground 1 contends that the WPPL proceedings cannot be finally determined until the Rhodes parties' claimed interest is resolved.
3. These contentions rest on the proposition, advanced at considerable length by the HPPL parties before the learned primary judge,[118] that 'the entire controversy about the Acquisition Matter raised in Bianca and John's amended defence, and the entire Debt Reconstruction Matter, have been referred to arbitration' (in the broad sense used by her Honour) (see [87] above).
4. The learned trial judge rejected that proposition. In so doing, her Honour observed that only part of the Acquisition Matter (broadly described) had been referred to arbitration and was the subject of the Rhodes stay.[119] Her Honour also observed that the entirety of the Debt Reconstruction Matter (broadly described), as it formed part of Bianca and John's defence, remained to be determined in the WPPL proceedings. Her Honour stated that it was a matter for trial whether the Rhodes parties could make submissions as to that controversy in the WPPL proceedings.[120]
5. These conclusions led to her Honour's conclusions in [236](c) of the primary reasons that:[121]

I am not satisfied that the controversies between Bianca and John and Rhodes depend upon the determination of the matters that have been referred to the Rhodes Arbitration. ...

I am not satisfied that the court will not be able to finally determine Rhodes' and WPPL's claims until the question of Bianca and John's claimed interest in the Tenements is resolved in the Martin Arbitration.

1. In context, it is clear that her Honour was not here suggesting that all of the controversies between Bianca and John and the Rhodes' parties (including those controversies that are the subject of the Rhodes stay) could be finally determined in the curial proceedings. Rather, these conclusions reflect her Honour's conclusion, having regard to the matters arising in the curial proceedings that have not been referred to arbitration, that there are, in effect, a number of 'pathways' by which the proceedings can be the subject of judgment (in favour of either Bianca and John or the Rhodes parties).
2. In this, the learned primary judge was undoubtedly correct. The subject of the Rhodes stay is, as it must be, a matter or matters. A matter is a controversy between parties. As is emphasised in this court's earlier decisions, a pleading is not itself a matter.[122] Rather, a matter is a controversy arising from or revealed in the intersection of one party's pleadings with the pleadings of an opposing party. As set out at [58] above, the 'matters' the subject of the Rhodes stay are 'the matters constituted by the controversy reflected in those paragraphs of Rhodes' amended reply and in the paragraphs of Bianca and John's defence to which they responded', namely the controversy constituted by the intersection of the defence and the reply.
3. Most obviously, not all controversies in relation to the Acquisition Issue have been stayed. An element of Rhodes' claim is that the relevant tenements were acquired by HML and HRL, and ultimately came to be held by HDIO, for the benefit of HPPL and WPPL.[123] As between Rhodes and Bianca and John, there is a controversy regarding this element of Rhodes' claims. Bianca and John plead that HML and HRL did not hold the interests in the tenements on trust for HPPL and so HDIO never obtained beneficial title to the Hope Downs tenements and does not hold those tenements subject to a trust in favour of Rhodes. See [23.1](h), (i), (j) and (k) of Bianca and John's defence, where it is said that as at 6 October 1992, HRL held full legal and beneficial title to each of the Hope Downs ELs and East Angelas ELs and had no obligations to Rhodes, HPPL, WPPL, or the Partnership in respect of those tenements. Those pleas by Bianca and John are denied by Rhodes in [3.3] of their reply.
4. The matter constituted by this controversy is not the subject of the Rhodes stay.
5. Indeed, also in relation to the Acquisition Issue, the Rhodes parties' positive case (in [3.3.2.2] of their reply), that any acquisition of the tenements by HML and HRL purporting to defeat the rights of the Partnership was in breach of duties owed to WPPL, remains a controversy for determination in the curial proceedings. Thus, the learned primary judge's conclusion to that effect in [133](3) of the primary reasons - a conclusion which is not challenged on appeal - is correct.
6. Similarly, in relation to both the Acquisition Issue and the Debt Reconstruction Issue, there is no stay of the controversies constituted by the intersection of Bianca and John's defence and the Rhodes parties' pleadings in [3.5] of their reply - namely a variety of equitable defences (including absence of clean hands, failure to do equity, and laches). To that extent, the Debt Reconstruction Issue remains a controversy for determination in the Rhodes proceedings. And, as we have already observed, the entirety of the Debt Reconstruction Issue, as it forms part of Bianca and John's defence, remains to be determined in the WPPL proceedings.
7. Indeed, at the hearing of the appeal, senior counsel for the HPPL parties accepted that there were a number of routes or pathways by which the Rhodes proceedings and the WPPL proceedings could be the subject of final relief (including in the Rhodes parties' favour), having regard to the controversies that are not the subject of the Rhodes stay.[124] For example, senior counsel said:[125]

If Rhodes succeeded on - that the acquisition was for the purpose of a partnership, then, of course, ... that has not been sent to arbitration. The debt reconstruction would, by hypothesis, be irrelevant, because the children would have no interest. But all that means is there's one possible outcome of the Rhodes proceedings which might lead to final relief, but the proceedings as a whole can't be determined. You have to luck out.

1. Senior counsel later accepted that there were other pathways to relief, such as laches, albeit that the concession was expressed in somewhat derisive terms, namely that 'one can cobble together bits and pieces which may be able to follow through on certain hypotheses'.[126]
2. These concessions and our conclusions in [159] ‑ [163] above are, in our view, a complete answer to the gravamen of grounds 1 and 2. It is simply not the case, as contended in ground 1, and as the HPPL parties[127]bmitted in writing,127 that the curial proceedings (and in particular the Rhodes proceedings) 'cannot be finally determined until' the Acquisition Issue and Debt Reconstruction Issue are resolved in either the Martin Arbitration or the Rhodes Arbitration. Contrary to the submission reproduced at [164] above, a result which leads to final relief is a final determination of the proceedings as a whole. There is nothing unusual about curial proceedings being finally determined and relief given without it being necessary to resolve each and every issue or controversy that might exist between the parties.
3. Of course, depending upon the course of the trial and the findings made, the grant of the Rhodes stay may prevent the grant of final relief. However, that is something of which the judge was evidently well aware.
4. Ground 1 therefore fails.
5. Having made the concession, with respect correctly, that the curial proceedings could be the subject of final relief despite the referral of the matters the subject of the Rhodes stay to arbitration, the HPPL parties' submissions pivoted towards the contention that the fact that only some possible pathways to final relief remain open to the Rhodes parties in the curial proceedings was a powerful factor in favour of an adjournment. Hence their references to '[cobbling] together bits and pieces' and a 'truncated suit'.[128] This was not, however, the position put to the learned primary judge, nor the error alleged by ground 1.
6. In any event, the extent to which the Rhodes parties are, by reason of the Rhodes stay, limited to certain pathways or routes to potential success would, if anything, be a matter to be weighed in the exercise of the learned primary judge's discretion. Whether, as the Rhodes' parties put their case, 'everything remains in the Rhodes proceedings, except for two very confined controversies'[129] or, as the HPPL parties contended, 'the DFD Rhodes proceeding has taken out large issues which may have to be determined',[130] are very much matters in the eye of the beholder and will be affected by, among other things, each party's forensic assessment of their prospects on the remaining issues.
7. These are matters of weight. It was open to the learned primary judge to conclude, as her Honour did, that the limited pathways to relief for the Rhodes parties did not weigh materially in favour of an adjournment because, depending upon how the issues are determined, it is the Rhodes parties and not the HPPL parties who would be prohibited from seeking relief. As the Rhodes parties confirmed at the hearing of the appeal, '[if] Rhodes considers it can get home on its primary claim without those matters [ie, the arbitration matters] being determined that is entirely a matter for it'.[131] In the circumstances of these proceedings, it was open to her Honour to find that the fact that the Rhodes parties are prepared to run their case on that basis (and to run the risk of doing so) was not a matter that weighed to any material extent in favour of a stay or an adjournment at the instigation of the HPPL parties.
8. Given the above conclusions in relation to ground 1, the subsidiary matters raised by the HPPL parties in ground 2 may be dealt with briefly.
9. First, as to ground 2(a), properly understood, the learned primary judge did not find that the Rhodes parties do not claim a proprietary interest in the tenements, as WPPL had submitted. Rather, her Honour concluded that it was 'strongly arguable' that the Rhodes parties' claimed interest is different to that of WPPL as they do not claim a proprietary interest. While the learned primary judge identified authority that was contrary to the proposition that a claim for royalties was a proprietary claim, her Honour expressly said that this was a matter for trial and that any prejudice on this point would lay with WPPL and/or the Rhodes parties, not the HPPL parties.[132] Ground 2(a) is founded on a false premise as to what her Honour found and discloses no House v The King error.
10. Ground 2(b) contends that the learned primary judge erred in finding that the referral to arbitration in the Rhodes proceedings should not be given any weight because of the lack of progress of the Rhodes Arbitration and, in any event, contends that the lack of progress was irrelevant to whether the Rhodes proceedings can progress to finality. This sub‑ground discloses no error. The learned primary judge took into account the referral to arbitration in the Rhodes proceedings effected by the Rhodes stay, but in the exercise of discretion attributed no weight to it. The complaint by this ground is in substance no more than a complaint of a weighting error. Further, as we have already concluded, the learned primary judge was correct to conclude that the Rhodes proceedings can progress to finality. In those circumstances, the fact that the Rhodes Arbitration had yet to progress (and the uncertainty as to whether it will ever progress) was clearly relevant to the weight that could be accorded to that arbitration in determining whether to stay or adjourn the curial proceedings. Ground 2(b) fails.
11. We have already dealt with the substance of Ground 2(c). The learned primary judge did not conclude that all of the controversies between Bianca and John and the Rhodes parties can be finally determined in the curial proceedings (including those controversies that are the subject of the Rhodes' stay) and she was correct to conclude that final relief can be granted on those controversies that are not the subject of the Rhodes stay. Ground 2(c) fails.
12. Ground 2(d) misstates the effect of [37] and [151] of the primary reasons. The learned primary judge did not suggest that the matters referred to the Rhodes Arbitration were also raised in the WPPL proceedings. On the contrary, her Honour simply recorded that the Debt Reconstruction Matter - in the broad sense of the term used by her Honour - pleaded in Bianca and John's defence was pleaded in both the WPPL proceedings and the Rhodes proceedings. That was correct. Ground 2(d) fails.
13. The substance of ground 2(e) is dealt with in [171] above. The learned primary judge was entitled to conclude that any risk that the Rhodes parties may be unable to obtain final relief in the curial proceedings was not a matter to be given weight in favour of a stay or adjournment, given that it would be the Rhodes parties, and not the HPPL parties, that would be prohibited from obtaining relief. Ground 2(e) fails.
14. Grounds 1 and 2 must fail.

Grounds 3 and 4 - issue estoppels Ground 3 - issue estoppels in the curial proceedings that may bind the parties in the Martin Arbitration

1. By ground 3 the HPPL parties allege that the primary judge erred in law in finding that there was no realistic possibility of issue estoppels arising from a judgment in the curial proceedings that would bind the parties in the Martin Arbitration.
2. The learned primary judge's conclusions in that regard are set out at [69] ‑ [70] above.
3. In short, her Honour concluded that the risk of such issue estoppels was unlikely and remote. Her Honour categorised this as a factor that should be accorded little or no weight.[133]
4. The HPPL parties contended that the primary judge should have found that:

(a) the risk of issue estoppels arising remains; and
>
> (b) so too did the risk of prejudice to the HPPL parties caused through any issue estoppels.

The HPPL parties asserted that these matters weighed 'heavily' in favour of a stay or adjournment in accordance with this court's findings in the first stay appeal (supplementary).[134]

(a) there is no certainty that an award in the Martin Arbitration will be issued before judgment in the curial proceedings. Nor was there evidence on which that finding was based;
>
> (b) the primary judge accepted WPPL's and Rhodes' submissions that no issue estoppels could arise. That accorded with the HPPL parties' position. But the risk posed to the HPPL parties did not arise from the position of WPPL or Rhodes but rather the position of John and Bianca who had not conceded that no issue estoppels would arise; and
>
> (c) the risk of issue estoppels was not eliminated even if an award was issued in the Martin Arbitration before any judgment in the curial proceedings. The HPPL parties said that one possible outcome in the Martin Arbitration was the tribunal finding that it lacked jurisdiction. If that were to occur, the HPPL parties faced being bound by findings made by the court on issues to which they did not respond on account of those issues arising in matters that were subject to arbitration.

2. The learned primary judge's findings do not disclose any appellable discretionary error. To the contrary, this aspect of her Honour's reasons is unimpeachable. First, for the reasons in [143] ‑ [145] above, on a proper analysis, this ground is a complaint as to weight. In any event, the learned primary judge was correct to find, for the reasons given by her Honour, that the risk of any findings in the curial proceedings giving rise to an issue estoppel in the Martin Arbitration was unlikely and remote. That is all the more so given the HPPL parties' submissions before the learned primary judge. Before her Honour, the HPPL parties submitted that:

It is also quite likely that any award will be handed down before any judgment in these Proceedings, which would mean that no issue estoppel could possibly arise from these Proceedings that would then bind the parties to the Martin Arbitration.

...

... it is at best only a remote possibility that an issue estoppel could arise from a judgment of this Court that would be capable of binding the parties to the Martin Arbitration on the acquisition or Debt Reconstruction issues.[135] (emphasis added)

1. The HPPL parties' reliance on the views expressed in this court in the first stay appeal (supplementary) is misplaced. By definition, a relevant issue estoppel can only arise after judgment in the curial proceedings in circumstances where the curial proceedings are determined before an award in the Martin Arbitration. In assessing the weight to be given to this factor, at the time of the first stay appeal (supplementary), this court considered that the curial proceedings were 'undoubtedly distinctly' further progressed than the Martin Arbitration and 'the odds' favoured the curial proceedings being heard first.[136] That has not come to pass. The hearing in the Martin Arbitration has occurred.
2. For the reasons given by the primary judge, with which we agree, the overwhelming likelihood is that a judgment in the curial proceedings will be delivered after an award is delivered in the Martin Arbitration. It follows that there is no realistic possibility of an issue estoppel of the kind given weight by this court in the first stay appeal (supplementary).
3. As to the submission summarised above at [183](c), the HPPL parties do not identify what, if any, further issues they have elected not to raise in the curial proceedings due to the Martin Arbitration. If there are such issues, and if it comes to pass that the tribunal in the Martin Arbitration finds that it lacks jurisdiction, it will not follow automatically that findings will be made in the curial proceedings that are adverse to the HPPL parties' interests on issues to which they did not respond on account of those issues arising in matters that were subject to arbitration. It will, for example, be open to the HPPL parties to apply to reopen so as to be heard on those issues.
4. Ground 3 fails.

Ground 4 - issue estoppels in the curial proceedings that may bind the parties in the Rhodes Arbitration

1. By ground 4 the HPPL parties allege that the primary judge erred in law in finding that the question of issue estoppels binding parties in the Rhodes Arbitration should not be given any weight.
2. The HPPL parties contend that:

(a) there was no right or basis for the Rhodes parties to join the Martin Arbitration - this submission was apparently in answer to an observation by the primary judge that the HPPL parties had refused to allow the Rhodes parties to join the Martin Arbitration;[137]
>
> (b) the lack of progress of the Rhodes Arbitration is the product of the conduct of the Rhodes parties; and
>
> (c) the primary judge failed to consider the extent to which issue estoppels binding parties to the Rhodes Arbitration undermined the referral to arbitration under s 8 of the Act.

3. The learned primary judge considered whether there was a risk of an issue estoppel arising from a finding in the curial proceedings that would be binding on the parties in the Rhodes Arbitration.[138] The learned primary judge ultimately determined that in balancing the various matters for or against a stay or adjournment, this factor should not be given any weight.[139]
4. The learned primary judge's reasons for coming to that conclusion are summarised at [72] ‑ [75] above.
5. Ground 4, in terms, contends that the learned primary judge erred 'in law' in finding that the question of issue estoppels binding parties in the Rhodes Arbitration should not be given any weight 'because of':

(a) the HPPL parties' conduct in refusing to let the Rhodes parties join the Martin Arbitration; and
>
> (b) the circumstance that the Rhodes Arbitration had not been effectively commenced and may not progress.

6. It is evident, however, that these were not the only reasons that justified the learned primary judge's conclusion that this factor should not be given any weight in the exercise of discretion. The learned primary judge also took into account:

(a) the HPPL parties' position as to the Rhodes Arbitration - this being significant in that, as the HPPL parties resisted joinder to the Rhodes Arbitration, there was no material risk of prejudice to the HPPL parties by reason of issue estoppels arising from the curial proceedings that may be binding on the parties to the Rhodes Arbitration; and
>
> (b) Bianca and John's apparent neutrality to the risk of such issue estoppels.

7. The Rhodes parties were the only other party who might be adversely affected by findings in the curial proceedings creating issue estoppels in the Rhodes Arbitration. The learned primary judge did not expressly refer to the Rhodes parties' position and the risk that such issue estoppels might pose to the Rhodes parties. It was hardly necessary to do so in circumstances where the Rhodes parties actively opposed any stay or adjournment of the curial proceedings.
8. Individually and collectively, these matters justified the primary judge ascribing little or no weight to this factor as a reason in favour of the stay or adjournment of the trial. Once this is appreciated, ground 4 cannot rise above a mere weighting error. On that basis alone, ground 4 must fail.
9. In addition, the HHPL parties' contentions, as summarised at [190] above, do not establish appellable discretionary error as alleged in ground 4. First, the primary judge's conclusion that this factor should not be given any weight did not depend on her Honour's statement that the HPPL parties had refused to allow the Rhodes parties to join the Martin Arbitration. At this point, the primary judge was simply reciting the effect of some of the evidence in the affidavit sworn by the HPPL parties' solicitor.
10. Nor, in our view, so far as the learned primary judge referred to the lack of progress of the Rhodes Arbitration, can any error in not identifying that this was allegedly due to the conduct of the Rhodes parties affect her Honour's conclusion that the risk of issue estoppels in the Rhodes Arbitration should not be given any weight. The learned primary judge was taking into account the different stages of the curial proceedings and the Rhodes Arbitration. In this respect, the material consideration was not whether the lack of progress in the Rhodes Arbitration was due to the Rhodes parties' conduct. Rather, consistent with orthodox principles,[140] the primary judge was considering how far each proceeding was advanced. If there was to be a stay or adjournment due to the risk of issue estoppels affecting the parties in the Rhodes Arbitration, there would self‑evidently be a substantial delay in resolution of the curial proceedings. Accordingly, this was a matter going to the prejudice that would be suffered by WPPL and the Rhodes parties. It could not and did not affect the primary judge's conclusion that the risk of issue estoppels in the Rhodes Arbitration should not be given any weight.
11. We accept, however, that in evaluating the weight to be given to this factor, the primary judge determined that the Rhodes Arbitration may not proceed at all.[141] For the reasons given in dismissing grounds 1 and 2, there was no error in so concluding. It is not the case that the Rhodes parties cannot obtain relief against John and Bianca in the curial proceedings without the prior determination of the Rhodes Arbitration. The potential for issue estoppels to undermine the referral to arbitration would not arise, and need not be further addressed by the primary judge, insofar as the primary judge held, with respect correctly, that the risk of issue estoppels arising from findings made in the curial proceedings may never materialise if the Rhodes Arbitration does not proceed.[142]
12. Ground 4 fails.

Ground 5 - prejudice to WPPL and the Rhodes parties

1. Ground 5 emerged as the HPPL parties' primary focus in the appeal.
2. The complaint made by ground 5, as reflected in its chapeau, is that the judge 'erred at law' in finding that an adjournment of the curial proceedings would be to the prejudice of WPPL and the Rhodes parties because it would lead to delay and not avoid duplication of resources. The error is said to arise because the learned primary judge failed to 'consider and find' various matters set out in grounds 5(a) ‑ (h).
3. A number of the matters identified in grounds 5(a) ‑ (h) pointed, or were readily capable of being seen as pointing, in different directions, in the manner discussed at [148] ‑ [150] above. Moreover, those matters were capable of being brought to bear on the exercise of discretion in various different ways. At the hearing of the appeal, however, the HPPL parties' central contention as to ground 5 was identified by senior counsel i[143]he following terms:143

[The primary judge] failed to take into account the effect that the award in the Martin Arbitration will have on the WPPL and Rhodes proceedings, whatever its outcome, with the consequence that those proceedings cannot, as a practical matter, be resolved prior to the award being issued and will be delayed through the effect of the award, regardless of any adjournment or stay[.]

1. This contention concerned not merely that the curial proceedings would inevitably or very likely be delayed, but that whatever the outcome of the Martin Arbitration, the curial proceedings cannot, practically speaking, be resolved until all disputes as to the recognition or enforcement of the award have been determined. At least implicitly, and consistently with the terms of ground 5 itself, that contention includes the contention that the inevitable delay in the curial proceedings consequent upon the delivery of the arbitral award is such that the deferment of the trial sought by the HPPL parties does not cause delay (prolonged delay being inevitable anyway)[144] and so a stay or an adjournment causes no prejudice to the plaintiffs.
2. The way that the HPPL parties developed their central contention in their oral submissions on appeal may best be described as their having presented a number of 'contingent certainties': namely, 'if this is the outcome of the Martin Arbitration, then this interference and delay in the curial proceedings will necessarily follow'. Thus, for each identified contingent outcome of the Martin Arbitration, the HPPL parties submitted to this court that there were certain consequences that would derail the curial proceedings.
3. The HPPL parties generally attributed those consequences to the suggested likely intransigence of Bianca and John and their anticipated refusal to accept the outcome of the award if they are unsuccessful in the Martin Arbitration, leading to a 'very substantial piece of litigation',[145] or Bianca and John's litigation of their issues in their counterclaim if the arbitration agreement is set aside in the Martin Arbitration.[146] The HPPL parties were initially reluctant to suggest that they could appeal against a finding in the Martin Arbitration that it (the arbitral tribunal) did not have jurisdiction.[147] In reply, however, they embraced the possibility, identified by counsel for Bianca and John,[148] that they might do so, with the effect of 'further potentially embarrassing the hearing'.[149]
4. At every turn, therefore, the HPPL parties' position in the appeal was that the inevitable and substantial delays that would arise from the award in the Martin Arbitration, and the inevitability that the parties to the arbitration will not accept or recognise it, were such that the learned primary judge erred in concluding that a stay or adjournment of the curial proceedings would prejudice WPPL and the Rhodes parties.
5. The notion that the claims brought by WPPL and the Rhodes parties must be stayed or adjourned because of the inevitable delays that will result from the arbitration parties' intention to continue their disputes inter se, regardless of the outcome of the Martin Arbitration is, to say the least, unpalatable. Taken to its logical extreme, it would leave the court's capacity to exercise its jurisdiction beholden to the wills of the arbitration parties, who are the defendants in the curial proceedings, and their ingenuity in perpetuating those disputes. Senior counsel for the HPPL parties did not cavil with the characterisation of their submissions in this respect as distasteful, and at least accepted that the position was 'not fortunate'.[150] Senior counsel's response to that characterisation was that 'I don't for a moment suggest that there wasn't a better possible world, but one has to confront the fact that that's where we are'.[151]
6. Of course, it must be recognised that the learned primary judge did identify and consider the potential for the outcome of the Martin Arbitration to affect the curial proceedings. Her Honour addressed those issues in pt 6.6 and pt 6.7 of the primary reasons as well as, to a degree, at pt 6.3. Her Honour held (in a finding challenged by ground 5(h)) that there is uncertainty as to the issues that will be resolved and findings made in an award by the Martin Arbitration.[152] The primary judge held that it could not be concluded with any degree of certainty as to what the effect of the award in the Martin Arbitration would be,[153] but expressly identified that those potential effects were 'factors that must be weighed in favour of a stay or adjournment of the trial'.[154]
7. The primary judge also held that:

[E]ven if there is some merit in the HPPL parties' contentions that some issues in the Curial Proceedings are likely to be resolved by an award in the Martin Arbitration, I cannot be persuaded that is likely.[155]

...

When regard is had to all of these matters, it cannot be found with any degree of certainty as to what will be the effect of an award in the Martin Arbitration, if the HPPL parties are successful in the arbitration. In particular, it is not clear whether some issues will fall away or not.[156]

...

Although there is a prospect that less judicial resources could be required because some issues could fall away, the likelihood of that occurring is too uncertain.[157]

1. There is no challenge to any of those findings.
2. Nevertheless, it may be accepted that her Honour did not address, in the form in which it was presented on appeal in this court, the contention that whatever the outcome of the Martin Arbitration, the curial proceedings cannot be resolved until all disputes as to the recognition or enforcement of the award have been determined, so that the adjournment sought would cause no delay and thus no prejudice to the plaintiffs. Nor did her Honour make specific findings as to all of what we have identified as the 'contingent certainties' enumerated in the HPPL parties' submissions to this court.
3. To demonstrate appellable error on the part of the learned primary judge, however, it was necessary for the matters now relied upon by the HPPL parties as part of their central contention on the appeal to be drawn to her Honour's attention, at least unless they were fundamental and obvious. In assessing whether the considerations were fundamental and obvious, it is permissible to have regard to the nature of the litigation and the parties' approach to it. This is litigation where the parties - and, in respect of the application for a stay or adjournment, the HPPL parties in particular - have left no stone unturned in advancing their positions. It cannot lightly be supposed that in prosecuting their case for a stay or adjournment, the HPPL parties passed over something, leaving that matter without emphasising it and its significance for the stay or adjournment as sought in the application, because the primary judge was bound to take it into consideration as a matter that was fundamental and obvious.
4. In approaching the learned primary judge's reasons on this issue, and whether her Honour failed to have regard to some relevant consideration, it is therefore necessary to address, in more detail, the way in which the HPPL parties' case was put to her Honour.

Ground 5 - the submissions to the learned primary judge

1. The contention that whatever the outcome of the Martin Arbitration, the curial proceedings cannot be resolved until all disputes as to the recognition or enforcement of the award have been determined, so that the adjournment sought by the HPPL parties in truth causes no delay and so no prejudice to the plaintiffs, would, if presented to the learned primary judge and found to be the case, be a potentially powerful factor counting in favour of a stay or an adjournment. Consequently, such a contention would reasonably be expected to be front and centre of submissions in support of the HPPL parties' application.
2. As we have said, that is how the HPPL parties' case on appeal was presented. As will be seen, however, that could certainly not be said of the HPPL parties' submissions to the learned primary judge.
3. The HPPL parties made very detailed written and oral submissions in support of the application. Their written submissions exceeded 40 pages and their oral submissions occupy more than 80 pages of transcript. Ground 5 asserts a failure to consider.
4. In this regard, consistent with the nature of an appeal of the present kind, as discussed at the commencement of these reasons, it is not enough to identify a sentence or two somewhere in a mass of submissions before the primary judge and then to assert that her Honour failed to consider the matter. In determining an interlocutory application, a judge is not obliged to deal with every specific submission advanced. Indeed, to do so will often be inimical to the efficient and proportionate resolution of such an application. Rather, in determining an interlocutory application, the judge must have regard to the matters primarily emphasised by each party as bearing on the application. In our view, examination of the HPPL parties' submissions below and the primary reasons demonstrates that the judge amply fulfilled that requirement.
5. The HPPL parties' submissions referred to some of the consequences for the curial proceedings of the arbitral award. They did so primarily in the context of, and for the purpose of, identifying particular practical advantages for the curial proceedings in adjourning to await the outcome of the arbitral award, particularly if the HPPL parties are successful. In our view, that cannot be equated with a contention to the effect summarised in [202] ‑ [207] above.

1. Commencing with the HPPL parties' written submissions before the learned primary judge, those submissions provided the following overview:[158]

In particular, and for the reasons that are articulated further below:

(a) Claims cannot be finally determined (Parts E(1) and (3)): the Court will not be able to finally determine WPPL's and Rhodes' claims until, at the very least, the question of Bianca and John's claimed interest in the tenements the subject of the Proceedings - known as the 'Hope Downs Tenements' and 'East Angelas Tenements', or simply the 'Tenements' - is resolved in the Martin Arbitration. That is because certain issues that the Court will need to take into account in considering all of the competing claims to the Tenements are issues that can only be resolved in the Martin Arbitration;

(b) Issues Reduced (Part E(2)): the outcome of the Martin Arbitration is likely to reduce the issues remaining for determination in the WPPL and Rhodes Proceedings, and consequently shorten and simplify any trial;

(c) Prejudice Avoided (Parts E(5) and (6)): any risk of issue estoppels arising, were this Court to hand down its judgment before the award is issued in the Martin Arbitration, gives rise to substantial prejudice to HPPL that outweighs any minor inconvenience to WPPL and Rhodes in a delay to the trial, justifying an adjournment or temporary stay. Similarly, if HPPL succeeds in the Martin Arbitration on the validity and effect of certain settlement deeds that Bianca and John have entered into, awaiting that determination first will prevent Bianca and John from ventilating otherwise confidential matters in open court, in breach of those deeds, and to the great prejudice of HPPL and other persons who are not parties to the Proceedings, but against whom Bianca and John are likely to make a number of disparaging allegations; and

(d) Problems Avoided (Part F): a number of problems may arise for the Court were it to proceed with the trial, and any judgment, while an award is pending in the Martin Arbitration. These include:

(i) the inevitable delay and further disputes that will arise once the award is issued, which runs the risk of issues being left unresolved beyond the time that her Honour is scheduled to retire;

(ii) how the Court is possibly to resolve certain issues arising in disputes between non‑parties to arbitration agreements, such as HPPL's reliance on deeds of release in its dispute with WPPL when Bianca and John contend in arbitration for such deeds to be invalid, or Bianca and John's reliance on allegations concerning the so‑called 'Debt Reconstruction' in their dispute with WPPL when HPPL disputes those allegations in arbitration; and

(iii) the fact that Rhodes' claim cannot be progressed to finality in the face of the matters that have been referred to arbitration between Rhodes and Bianca and John, which presents a problem for hearing the WPPL and Rhodes Proceedings together, but which matters might disappear altogether depending on the resolution of the issues in the Martin Arbitration.

(Bold and italics in original; unbolded italics emphasis added)

1. As will be seen, this essential framework remained throughout the HPPL parties' written reply submissions and in their oral submissions. The primary reasons as delivered by her Honour largely reflected this essential framework.
2. It is notable that this framework does not contend that the inevitability and length of the delays that would result from the delivery of the award in the Martin Arbitration is such that the adjournment sought by the HPPL parties would not prejudice WPPL or the Rhodes parties (as contended for in ground 5). To the contrary, the HPPL parties accepted that a stay or an adjournment would cause prejudice (albeit that it was described as a 'minor inconvenience'). The submission that the prejudice to WPPL and the Rhodes parties was a 'minor inconvenience' must be understood in the context of the HPPL parties characterising the effect of the stay or an adjournment they sought as a 'further slight delay'.[159]
3. After setting out some of the background and applicable principles, the HPPL parties' submissions identified the advantages of deferring the trial to allow for the issue of the award in the Martin Arbitration, on the basis that it was the only course that:[160]

(a) allows for WPPL's (and possibly Rhodes') claims to be finally resolved (excluding those issues of quantum that have already been carved out - see orders of 8 September 2021 made in each of the WPPL and Rhodes Proceeding);
>
> (b) avoids the perils of inconsistent findings on common issues;
>
> (c) accommodates a significant reduction of the time required for any trial and the issues to be determined, subject to the resolution of common issues in the Martin Arbitration;
>
> (d) eliminates any risk of substantial prejudice flowing to parties to arbitration agreements by any issue estoppels that might arise from a judgment of this Court or breaches of confidence that would occur through advancing claims that are barred by settlement deeds;
>
> (e) permits the Court to best manage its resources in the face of any disputes concerning the award once issued, which disputes would otherwise have the capacity to delay any judgment or appeal following the trial; and
>
> (f) removes the need to grapple with complex questions of what issues or evidence can be ventilated in these Proceedings in light of the matters that are the subject of the arbitration agreements.

4. It may be accepted that, on a close reading of the submissions in which one is specifically looking for any development of the point raised by ground 5, some portions of the HPPL parties' written submissions had echoes of the central contention now made on appeal.[161] However, the point was given little emphasis and is one that, on a fair reading of the written submissions as a whole, does not appear as a distinct contention by which the HPPL parties challenged WPPL's and the Rhodes parties' anticipated contention that any deferral of the trial by reason of a stay or adjournment would be to their prejudice. This is particularly apparent when it comes to the HPPL parties' oral submissions.

1. Part B(5) of the HPPL parties' submissions in reply dealt with 'Impact of award - problems and efficiencies'. This part of the submissions in reply included the following.
2. The HPPL parties submitted that the handing down of the arbitral award during the trial or while judgment is reserved would cause 'numerous problems which are best avoided by an adjournment'.[162] The HPPL parties answered WPPL's submission that the arbitral award had no relevance whatever to resolution of WPPL's claim by submitting that if the HPPL parties succeed in the arbitration in restraining Bianca and John from advancing ownership claims in respect of the tenements, then they will no longer be able to advance that claim.[163] The submissions refer to and rely upon 'significant efficiencies' if the award in the Martin Arbitration is delivered prior to the trial of the curial proceedings.
3. The HPPL parties submitted that if the award was issued during or after the trial, problems and delays were inevitable.[164] Notably, however, it was not said in this context, as was the central contention on the appeal, that the delays were so inevitable and of such magnitude that the grant of the adjournment sought by the HPPL parties would in substance cause no delay in any event. That is telling in circumstances where WPPL had submitted that it would be prejudiced by the delay caused by an adjournment.[165]
4. The HPPL parties responded to a submission made by WPPL to the effect that the Martin Arbitration might not determine any overlapping issues. While accepting that to be true, the HPPL parties submitted that there were many ways in which the arbitral award would drastically affect the curial proceedings and referred to other potential outcomes. In that context, the HPPL parties answered WPPL's submission that Bianca and John might successfully challenge the arbitration agreements, by submitting that in those circumstances the trial would need to be aborted.[166] At the hearing of the appeal, the HPPL parties relied upon this paragraph of their submissions in reply as demonstrating the breadth of the contention as to inevitable delay put to the learned primary judge.[167] WPPL, to the contrary, submitted in the appeal that this submission was simply a response to WPPL's submissions and was not being advanced by the HPPL parties as something that may well happen or as a likely outcome.[168] As will be seen, we accept WPPL's characterisation of this submission.
5. The HPPL parties submitted in their written reply submissions that the overwhelming likelihood, and certainty if the award was delivered before judgment in the curial proceedings, was that the determination of the Martin Arbitration would 'have a significant impact on' the curial proceedings.[169] The HPPL parties submitted that the award may affect the proceedings because Bianca and John may be restrained from continuing to assert an ownership interest, they may be estopped from contending they have such interest, or it may be an abuse for them to so contend.[170] The HPPL parties submitted that if the Martin Arbitration determined that Bianca and John had no interest in the tenements, it would be a classic abuse of process for them to contend they have the very same interest against a third party such as WPPL or Rhodes.[171]
6. In the concluding part of their written reply submissions, the HPPL parties submitted as follows:[172]

The reality is that this delay [that is, the delay arising from the grant of a stay or adjournment] will not necessarily be avoided if the trial proceeds in earnest. Rather, all parties accept that the likelihood is that the award will be delivered sometime closely before, during or after the scheduled trial of the proceedings. It is probable that the award will affect the final determination of the proceedings (such as because John and Bianca's claims fail or they are restrained from making them in their defence to these proceedings). As such, these proceedings will be unable to be finally determined until that award has been recognised, any challenge determined, and the parties to the curial proceedings have been given an opportunity to properly address the impact of the award. That delay may occur after the parties have had a trial concerning issues which have been rendered nugatory, such as the Acquisition Issue and Debt Reconstruction Issue. (emphasis added)

1. In opening their oral submissions, senior counsel for the HPPL parties (who was not senior counsel for the HPPL parties at the appeal hearing) identified the following five reasons for the stay or adjournment:[173]

(a) as a consequence of the Rhodes stay, the Rhodes proceedings cannot be brought to a final determination, which also precludes a joint hearing of the Rhodes proceedings and the WPPL proceedings;

(b) independently of those issues, the WPPL proceedings cannot be finally determined before delivery of the award in the Martin arbitration;

(c) adjournment would avoid the risk of issue estoppels;

(d) adjournment would avoid problems and complexities, and possible prejudice to the HPPL parties, as to the Hope Downs Deed; and

(e) adjournment would avoid other problems because (i) proceeding to trial prior to the delivery of the arbitral award gives rise to complications and (ii) when the award is delivered during the trial or while it is reserved, the award will 'necessarily impact' the proceedings. By contrast, adjournment would avoid those difficulties and there are efficiencies to be gained because the issues raised by Bianca in John's defence 'may fall away.'

1. The HPPL parties' oral submissions were presented by reference to these five reasons, subject to a digression, to which we will come, arising from questions posed by the learned primary judge.
2. The second reason was advanced only by reference to WPPL's claim for a remedial constructive trust, which it was said could only be considered after resolution of the proprietary claim asserted by Bianca and John, which was to be resolved in the arbitral proceedings.[174] The HPPL parties did not seek to make good their second reason by reference to the binding effects of the arbitration - whatever its outcome - and the consequences of those effects for the curial proceedings.
3. These five reasons, and the HPPL parties' submissions in support of them, do not assert that once the arbitral award is delivered, the delay and disruption to the curial proceedings will inevitably or almost certainly be so substantial that the grant of the stay or adjournment sought by the HPPL parties would, in fact or in substance, cause no delay to the curial proceedings. Still less did they add that, consequently, a stay or an adjournment would not prejudice the plaintiffs.
4. Any such submission would have required the canvassing of the range of potential outcomes of the arbitration, in order to make good the submission against all those potential outcomes. The HPPL parties' written submissions certainly did not undertake that task. Rather, they focussed on the consequences for the curial proceedings of success on the part of the HPPL parties in the arbitral award. That focus was to support their submissions as to the potential advantages in awaiting the outcome of the curial proceedings, particularly in the potential narrowing of the issues.
5. In the course of oral submissions, the learned primary judge raised the question of the range of possible outcomes of the arbitration and the effect of those outcomes on the hearing and determination of the curial proceedings. In doing so, her Honour observed that the HPPL parties' submissions did not appear to address what was likely to occur if the HPPL parties were unsuccessful in the arbitration.[175] The HPPL parties' submissions as to those scenarios[176] were thus a response to the judge's question. They were not advanced to make good a contention that no delay (and thus no prejudice to WPPL and the Rhodes parties) would result from the stay or adjournment they sought.
6. In advancing their fifth reason for the stay or adjournment, the HPPL parties submitted that the delivery of the arbitral award would necessarily disrupt the orderly determination of the curial proceedings, whereas such problems would be avoided, and efficiencies would likely be realised, from allowing the Martin arbitration to be determined prior to the trial of the curial proceedings.[177] They submitted that the curial proceedings would be affected by the determination of the Martin Arbitration, giving examples by reference to some scenarios. At no point was the submission squarely put that the delays and disruptions to the curial proceedings arising from the determination of the Martin Arbitration - and the binding effect of the arbitral award once delivered - meant that an adjournment would not in fact cause delay in the resolution of the curial proceedings.
7. The same is true of the HPPL parties' oral submissions in reply. They submitted that, no matter how the Martin Arbitration is determined, it will have an impact on the curial proceedings and disrupt any trial that is underway.[178] Various scenarios were canvassed to support that contention.[179] Other submissions were made as to issues that may be removed, or other efficiencies that may be gained, following the handing down of the arbitral award.[180] In conclusion, the HPPL parties submitted that after the award was delivered, the court would be dealing with a case that could be bigger or smaller but would not be the same.[181] No submission was made that the delays and disruptions to the curial proceedings arising from the determination of the Martin Arbitration meant that an adjournment would not in fact cause delay in the resolution of the curial proceedings.
8. Again, that is telling in circumstances where WPPL had submitted orally that nothing in the HPPL parties' submissions addressed the prejudice to WPPL, were an adjournment to be granted.[182]

1. When the HPPL parties' submissions before the learned primary judge are considered in their full context, it is clear, in our view, that there has been a significant shift in the HPPL parties' position on appeal.
2. Before the learned primary judge, leaving aside the contention that the Rhodes stay meant that the court could not give final relief in the curial proceedings - which we have rejected in resolving grounds 1 and 2 - the focus of the HPPL parties' submissions was the significant benefits and practical advantages that would accrue to the curial proceedings by a short delay pending the imminent issue of an award in the Martin Arbitration.[183] That focus was developed by reference primarily to the effect of success on the part of the HPPL parties in the Martin Arbitration, hence their submission (repeated in the appeal and appearing in ground 5(a)) that the award would automatically be binding on the parties to the award and must be recognised by the court.
3. While the HPPL parties' submissions did refer to other potential effects of the Martin Arbitration, those references were not the focus of their submissions and arose either in response to particular submissions made by the other parties or to enquiries from the learned primary judge. That did not mean that the other potential outcomes were irrelevant, simply that they were not presented as part of an overarching contention that, whatever the outcome of the Martin Arbitration, the curial proceedings could not be resolved until all disputes as to the recognition or enforcement of the award have been determined. Still less was it said that, consequently, the adjournment sought by the HPPL parties would in fact cause no delay, and so no prejudice, to the plaintiffs.
4. It is also clear, in our view, that in the form in which the HPPL parties' submissions were put to the learned primary judge, her Honour properly addressed the uncertainties surrounding the effect of the Martin Arbitration and took them into account. Indeed, as we have pointed out at [210] ‑ [211] above, a number of her Honour's findings in that regard are unchallenged on appeal. As is clear from the reasons as a whole, her Honour gave the most attention to the potential effect of success on the part of the HPPL parties in the Martin Arbitration (discussed in pt 6.6 of the primary reasons). That was, however, because those potential effects were the focus of the HPPL parties' submissions before her Honour.
5. It may be accepted that, in discussing those potential effects, her Honour blended the issues that would arise from the proposed tender of the Hope Downs Deed and the impact of the HPPL parties' success in the Martin Arbitration per se. To that extent, the primary reasons suffer from what may be an understandable imprecision of language (understandable given the volume of submissions and the timely manner in which her Honour dealt with the application).
6. The learned primary judge nevertheless addressed the substance of the various issues raised by the HPPL parties as potentially arising from their success in the Martin Arbitration.
7. For example, in this context, her Honour recognised the HPPL parties' insistence that, pursuant to s 35 of the Act, the award would be immediately binding upon Bianca and John, without any application before this or any other court. At the same time, her Honour recognised that enforcement is subject to the grounds in s 36 of the Act. That, and the other matters considered by the learned primary judge, led to her Honour's ultimate conclusion that it could not be concluded with any degree of certainty as to what the effect of the award in the Martin Arbitration would be.[184]
8. Likewise, in this context, her Honour discussed the potential effects of abuse of process or issue estoppel in preventing Bianca and John from agitating their defences in the event that they were unsuccessful in the Martin Arbitration.[185] It is clear that her Honour was here addressing specific submissions put to her by the HPPL parties as to the effect of the award in the Martin Arbitration.[186]
9. Again, those effects contributed to her Honour's conclusion as to the uncertainties surrounding the outcome in the Martin Arbitration. Those uncertainties, as her Honour found, pointed in different directions in relation to whether the curial proceedings should be stayed or adjourned. The uncertainties surrounding various of the potential benefits to be obtained in the curial proceedings by the Hope Downs Deed or the HPPL parties' success in the Martin Arbitration, in narrowing the issues in the curial proceedings, militated against an adjournment or stay,[187] whereas the uncertain but potential adverse impacts for the curial proceedings of other potential consequences of the HPPL parties' success in the Martin Arbitration militated in favour of an adjournment or stay.[188] Her Honour also took into account, as she was entitled to do, the high likelihood of substantial disputation arising between the arbitral parties upon the delivery of the award, with its consequence that any stay or adjournment to await resolution of those disputes would entail delay of the order of two to three years.[189]
10. Finally, her Honour also recognised that the potential effect of Bianca and John's success in the Martin Arbitration militated in favour of a stay or an adjournment. Given the focus of the HPPL parties' submissions before the learned primary judge, it was open to her Honour to give that particular eventuality less weight. Nevertheless, it remained the case that her Honour gave weight to the impacts of the award in the Martin Arbitration in delaying the curial proceedings.
11. Her Honour did not misapprehend the substance of the parties' submissions in this regard. Moreover, it was, in our view, well open to approach the various uncertainties in the way that her Honour did. In particular, it was not necessary for her Honour to attempt to exhaustively predict all of the potential outcomes of the Martin Arbitration and predict what the certain or necessary effect of each outcome would be on the curial proceedings. Her Honour was not asked to do so - and, as we will develop, so far as specific scenarios were posited for the purpose of examining the potential consequences of the tribunal's award for the future conduct of the curial proceedings, the task of predicting the precise effect of each scenario was not readily susceptible to conclusive judicial determination.
12. In the latter respect, it was not fundamental and obvious that each of the permutations posited by the HPPL parties had the certain or necessary effects contended for by the HPPL parties in the appeal. If this litigation has demonstrated anything, it is that, for every proposition advanced (however forcefully) by one party, there is an equal and opposite proposition advanced (rightly or wrongly, but equally as forcefully) by another party. To attempt to predict, in advance, that any outcome in the Martin Arbitration will have a certain or necessary effect would be a bootless errand. This is particularly so given that, on this application and in the appeal before this court, Bianca and John remained silent. Bianca and John did not join with the HPPL parties in their submissions as to what would, or would not, occur following the Martin Arbitration or what, if any, arguments they (Bianca and John) might make in relation to the effect of any award, or indeed any challenge they might make to it. This application was not, and is not, the occasion to attempt to definitively resolve - on a contingent basis - the effects of the award in the Martin Arbitration.
13. Similarly, the submissions made by the HPPL parties as to the potential impacts of the award in the Martin Arbitration on the curial proceedings do not account for the variety of ways in which the court might deal with those impacts. Depending upon the particular circumstances arising, the trial judge, for example, may be able to make provisional findings, thereby addressing the contingency that some future challenge to the arbitral award is successful.
14. For these reasons, ground 5 must fail. Again, in light of what we have already said, the particular matters raised by the HPPL parties in ground 5(a) ‑ (h) may be dealt with briefly.
15. In relation to ground 5(a), as noted at [246] above, the learned primary judge did recognise the potential effect of s 35 of the Act, noting that it was subject to the grounds in s 36. While her Honour did not refer to the automatic 'recognition', as opposed to 'enforcement', of an award by a court in that part of her reasons, the omission is immaterial. Both recognition and enforcement of awards are subject to the exceptions in s 36 of the Act. In addition, illustrating the point we made earlier about every proposition in this case being met with an equal and opposite reaction, WPPL submitted at the hearing of the appeal that the recognition of an award required by s 35 of the Act would not apply in the curial proceedings in any event because there is no occasion for an award between the HPPL parties and Bianca and John to be recognised. Arguments of this kind simply underscore that the categorical and unqualified import of ground 5(a) is unwarranted.
16. In relation to sub‑grounds 5(b) ‑ (e), which variously contend that the learned primary judge erred in failing to make findings as to the enumerated 'contingent certainties', as we have explained, her Honour was not asked, nor was she required, to do so. It was sufficient that her Honour dealt with the various contingencies (and the differing significance of them) in the manner that she did. Taking, for example, sub‑ground 5(b), the complaint that the primary judge failed to consider and find that the outcome of the Martin Arbitration would necessarily affect the curial proceedings and delay their resolution even if there was no stay or adjournment ignores the primary judge's general findings at primary reasons [168], [201] and [246], none of which is challenged.
17. Sub‑ground 5(d) has a further difficulty. In sub‑ground 5(d) the HPPL parties claim that the primary judge erred in finding that the possible consequences for the curial proceedings of the Martin Arbitration finding it lacked jurisdiction should be given no weight because the HPPL parties did not raise the point in its written submissions. This assumes that if there was a factual error as to what was raised in the written submissions, the HPPL parties establish a House v The King error. But the relevant fact is not the contents of the HPPL parties' written submissions. The relevant fact is the primary judge's conclusion that 'the prospect of such a result in the Martin Arbitration should not be regarded as likely'.[190] The HPPL parties did not seek to gainsay that fact by ground 5(d).
18. All of sub‑grounds 5(b) ‑ (e) fail.
19. Nor, for the reasons already given, was the judge asked to make the compendious findings the subject of sub‑ground 5(f) and of the chapeau to sub‑ground 5(h). Her Honour's approach to the matters raised in these parts of sub‑grounds 5(f) and 5(h) does not reveal discretionary error by way of failure to consider a material consideration.
20. Sub‑grounds 5(f) and 5(h) also assert, seemingly in the alternative, that the primary judge made various factual errors. There is a tension in alleging, on the one hand, that the primary judge failed to consider and find something, but, on the other, that the primary judge erred in finding to the contrary. Logically only one possibility is open. We have already rejected the contention that the primary judge failed to consider the matters raised in sub‑grounds 5(f) and 5(h). Nor, in our view, does the alternate challenge by sub‑grounds 5(f) and 5(h) have any merit.
21. Sub‑ground 5(f) contends that any outcome in the Martin Arbitration would affect the relief available to WPPL and the Rhodes parties, alter the defences to their claims by Bianca and John or the HPPL parties, and affect whether the issues raised in the stayed counterclaims formed part of the curial proceedings once again. By their alternate plea in sub‑ground 5(f), the HPPL parties allege that the primary judge erred in finding otherwise, referring to primary reasons [113], [136] ‑ [137], [141], [170] ‑ [171], [192] ‑ [197], [200] and [236](c) ‑ (e). Correctly understood, only primary reasons [136] ‑ [137] make a finding to the effect of that complained of by sub‑ground 5(f) in the alternative - none of the other paragraphs address the universe of possibilities that may result from the outcome of the Martin Arbitration. There is no error in primary reasons [136] ‑ [137]. This court has already found that WPPL and the Rhodes parties will not be bound by the outcome of the Martin Arbitration.[191] That provides ample justification for the conclusions expressed at primary reasons [136] ‑ [137].
22. Two contentions are advanced in the alternate to the primary allegation of failure to consider and find as forms the chapeau of sub‑ground 5(h). The HPPL parties allege that the primary judge erred in finding:

(a) that the likely dispute about the recognition or enforcement of an award in the Martin Arbitration was not a factor to be considered in favour of a stay or adjournment;[192] and
>
> (b) that the court was not in a position to make a proper assessment as to the prospects or likelihood that the Martin Arbitration would shorten the trial in the proceedings.[193]

23. As to the first matter, the primary judge noted the view expressed in this court that the delay consequent on the grant of a stay would be magnified by the prospect of curial challenges to an arbitral award. Accordingly, her Honour saw this factor as impacting on the prejudice to WPPL and the Rhodes parties of any stay or adjournment. For the reasons given previously, there is no error in that conclusion. It was reasonably open to the primary judge to view and weigh the factor in this manner. All the more so, for the reasons that have been already given at length, there is no discretionary error in her Honour's view that while particular scenarios arising from an award in the Martin Arbitration might see a trial of the curial proceedings considerably shortened, the overall uncertainty as to that eventuating is so patent - with the competing possibilities as to the consequences of the Martin Arbitration being so different - that the court could not properly assess the prospects or likelihood of those scenarios eventuating. To so state is to do no more than to recognise that the HPPL parties bore an onus in this respect and did not satisfy it - a conclusion that has not been shown to be wrong on appeal.
24. In any event, as to sub‑ground 5(h), the HPPL parties' thesis that the curial proceedings will suffer inevitable delay as a result of all possible outcomes in the Martin Arbitration self‑evidently does not impugn the finding referred to at [261[194]) above.194
25. The primary judge did not err as asserted in sub‑ground 5(g). Her Honour expressly referred to the evidence as to a possible shortening of the trial if issues fell away as a result of findings in the Martin Arbitration.[195] The primary judge also referred to the possibility that the length and complexity of the issues could be 'considerably shortened'.[196] The weight to be attributed to this factor was a matter within her Honour's discretion.
26. Ground 5 fails.

1. By ground 6 the appellants alleged that the learned primary judge erred in law in finding that the risk of inconsistent findings in the Martin Arbitration and the curial proceedings should not be considered as a factor in favour of a stay or adjournment.
2. The learned primary judge found that there is a risk of inconsistent findings arising out of the award in the Martin Arbitration and the curial proceedings.[197] There is no challenge to that finding. Rather, the HPPL parties contended that the error lay in the finding that the risk of inconsistent findings was a neutral factor[198] because:

(a) her Honour found that the Martin Arbitration would not have any effect on the WPPL proceedings, as the same issues would need to be relitigated in the WPPL proceedings, whereas - on the HHPL parties' case - the Martin Arbitration would have substantial effects by reason of the matters addressed in ground 5; and
>
> (b) the risk of inconsistent decisions was the product of forensic decisions by the HPPL parties to apply for various matters to be referred to arbitration.

3. The first aspect of the HPPL parties' challenge by ground 6 is derivative upon, and falls with, ground 5. In any event, the HPPL parties did not challenge the primary judge's conclusion that there was a risk of inconsistent findings. The reason her Honour characterised this factor as being a neutral factor, as opposed to being a factor in favour of a stay or adjournment, was that the risk of inconsistent findings was inevitable as WPPL could not be bound by any adverse outcome (in the sense of adverse to the interests WPPL contends for in the WPPL proceedings) in the Martin Arbitration. This court has already found that to be the case.[199] There was no error in the learned primary judge taking the same approach.
4. The second aspect of the HPPL parties' challenge by ground 6 is based on a misreading of the primary reasons.
5. The HPPL parties submitted that the primary judge characterised the prospect of inconsistent findings as a neutral factor because any such inconsistency was the result of the HPPL parties' forensic decisions. The HPPL parties submitted that it would be an injustice, and contrary to the legislative policy underpinning s 8 of the Act, for a party to be prejudiced merely on account of it seeking to enforce its contractual rights of arbitration. There is support for this argument in the first stay appeal reasons (supplementary).[200] However, the HPPL parties' contention breaks down before getting to the legal proposition: it is not the case that her Honour reasoned that the factor was neutral on the ground that the risk of inconsistent decisions was the result of the HPPL parties' forensic decisions.
6. In the relevant passage, the primary judge stated:

Because of the forensic decisions made by the HPPL parties to make applications to have matters referred to arbitration which are overlapping issues in the Curial Proceedings between non‑parties to the arbitration, the risk of the duplication of resources and inconsistent decisions was and is inevitable and, even if the present application is granted, this risk remains.[201]

1. Reading the passage fairly and in context, as part of the primary reasons as a whole, the learned primary judge was not reasoning that the factor was neutral because the risk of inconsistent decisions was the result of forensic choices made by the HPPL parties. The reference to the HPPL parties' forensic decisions was only to explain the factual backdrop that made the risk of inconsistent decisions inevitable. It was the inevitable risk of inconsistent decisions, whatever the sequencing, that meant that the factor was assessed as being neutral. Nothing in that bespeaks discretionary error on the part of the learned primary judge in the terms contended for by ground 6.
2. Ground 6 fails.

Grounds 7 ‑ 9 - the Hope Downs Deed Ground 7 - alleged misapprehension as to the effect of the HPPL parties' submissions

1. By ground 7 the HPPL parties contended that the learned primary judge erred in stating the effect of the HPPL parties' submissions concerning the tender of the Hope Downs Deed.
2. In substance, the HPPL parties' argument in support of ground 7 is that:[202]

(a) her Honour understood the HPPL parties' submission to be that they could only tender the Hope Downs Deed if successful in the Martin Arbitration; and
>
> (b) in fact, the submission was that the HPPL parties intended to tender the Hope Downs Deed before the award - indeed, as then senior counsel for the HPPL parties colourfully submitted in the primary hearing, on 'day 1' of the trial.[203]

3. It may be, as we observed at [244] above, that her Honour misstated the effect of the HPPL parties' submissions as to when and how the HPPL parties might tender the Hope Downs Deed in the curial p[204]eedings.204 However, any misapprehension as to the effect of the HPPL parties' submissions was immaterial to the exercise of the learned primary judge's discretion. Her Honour held that it was open to the HPPL parties to make an application that the Hope Downs Deed be admitted on a provisional basis or marked for iden[205]ication.205
4. Critically, as far as ground 7 is concerned, the learned primary judge accepted there would be issues and could be arguments about the tender of the Hope Downs Deed insofar as the award in the Martin Arbitration was unlikely to be delivered prior to the commencement of trial in the curial proceedings.[206] This, in her Honour's view, was the factor to be given the most weight in favour of a stay or adjournment of the trial.[207]
5. Accordingly, insofar as issues and arguments about the tender of the Hope Downs Deed might prejudice the HPPL parties, the learned primary judge took into account and gave significant weight to this factor. Her Honour, with respect correctly, determined that this was a factor in favour of a stay or adjournment. Any apparent misapprehension as to the effect of the HPPL parties' submissions as to when they intended to deploy the Hope Downs Deed was immaterial to the exercise of her Honour's discretion.
6. Ground 7 fails.

Ground 8 - alleged necessity to plead the Hope Downs Deed

1. By ground 8 the HPPL parties contended that the learned primary judge erred in law in finding that the HPPL parties would need to plead reliance on the Hope Downs Deed.
2. In support of ground 8, the HPPL parties submitted that the Hope Downs Deed was not a matter that needed to be pleaded - it was said to be simply a matter of evidence relied on by the HPPL parties that contradicted the alternative claim to which [53C] of the 6FASSOC is directed.[208]
3. Ground 8 is expressed to be '[b]y reason of ground 7'. Ground 8 is thus conditional on ground 7 and cannot stand with the dismissal of ground 7. Putting this to one side, ground 8 goes nowhere when considered on its merits. It is true that the learned primary judge recorded that the HPPL parties did not plead the Hope Downs Deed in their defence in answer to WPPL's plea in [53C].[209] But the primary judge did not find - as is asserted by ground 8 - that the HPPL parties would need to plead reliance on the Hope Downs Deed. Rather, what her Honour stated was that 'there may be real doubt as to whether the Hope Downs Deed can be tendered in the trial of the Curial Proceedings by the HPPL parties, when it does not plead reliance on the deed in its defence against either Rhodes or WPPL'.[210] Accordingly, the primary judge did not err in the manner alleged in ground 8. Her Honour expressed 'real doubt' but stopped short of finding that there was a necessity to plead reliance on the Hope Downs Deed.
4. Further, her Honour noted that, even if the HPPL parties had to plead reliance on the Hope Downs Deed, the point may be capable of being dealt with by an application by the HPPL parties to amend their defence.[211] Thus the pleading point was not an answer to the potential risk of prejudice to the HPPL parties arising from possible issues and arguments about the tender of the Hope Downs Deed insofar as the award in the Martin Arbitration was unlikely to be delivered prior to the commencement of trial in the curial proceedings. It was for this reason that, as has been seen, the learned primary judge went on to find that the issues and arguments as to the admissibility of the Hope Downs Deed was a factor to be given weight in favour of a stay or adjournment of the trial.
5. In the latter respect, even if there was an error in terms of ground 8, the error was immaterial to the exercise of the learned primary judge's discretion. However, properly understood, there was no such error - her Honour did not find that the HPPL parties would need to plead reliance on the Hope Downs Deed.
6. Ground 8 fails.

Ground 9 - alleged failure to consider and find great complexities and prejudice in relation to the Hope Downs Deed

1. By ground 9 the HPPL parties contend that the learned primary judge erred in law, '[b]ecause of the errors set out in appeal grounds 7 and 8', by failing to consider the HPPL parties' submissions concerning the significance of the Hope Downs Deed and by failing to find that great complexities would arise, and that prejudice would be suffered by the HPPL parties, were a trial in the curial proceedings to proceed without first awaiting the outcome of the Martin Arbitration.
2. Senior counsel for the HPPL parties said that the HPPL parties' point was a simple one: if the court waited for the determination of the Martin Arbitration, all of the 'sophisticated problems' arising in relation to the Hope Downs Deed will 'go away'. Senior counsel said that the primary judge should have found that this point favoured a stay or adjournment.[212]
3. In its terms, ground 9 is premised on success of one or both of grounds 7 and 8. Both have failed. It follows that ground 9 must fail.
4. In any case, although the learned primary judge did not adopt the language of 'great complexities', her Honour plainly accepted that issues and arguments would arise about the tender of the Hope Downs Deed by proceeding to start the trial of the curial proceedings when the award in the Martin Arbitration had not been handed down. While pointing to possible procedural options that might ameliorate and overcome these difficulties,[213] her Honour also accepted that this created a risk of prejudice to the HPPL parties and was a factor to be given weight in favour of a stay or adjournment of the trial.[214] Accordingly, contrary to the implicit premise of ground 9 and the HPPL parties' argument in support of ground 9, it is not the case that her Honour failed to consider and make findings as to possible complexities and prejudice in relation to the Hope Downs Deed. To the contrary, the primary judge found that this point favoured the HPPL parties' case for a stay or adjournment.
5. In the circumstances, there was no House v The King failure to take into account a material consideration of the kind alleged by ground 9. The learned primary judge had regard to, and took into account, the complexities that would arise, and the relevant risk of prejudice to the HPPL parties, in relation to the tender of the Hope Downs Deed, were the trial to proceed without first awaiting the outcome of the Martin Arbitration. Ground 9 fails.

1. Ground 10 concerns the re‑exercise of the learned primary judge's discretion in the event that any of the other grounds of appeal meet with success. As we are not satisfied that her Honour did make any material error in the exercise of her discretion, it is not necessary to address ground 10.

1. No ground of appeal having succeeded, leave to appeal should be refused accordingly.
2. Nevertheless, it is appropriate, given its relevance to the question of leave, to address the HPPL parties' contention that a substantial injustice would be done by leaving the learned primary judge's decision undisturbed.
3. The interests of justice in a case such as this are the product of a vast range of competing considerations, all of which impact in different ways on the parties, on the court and, ultimately, on the public.
4. The interests of the parties are, of course, an important consideration. WPPL and the Rhodes parties regularly invoked the jurisdiction of this court many years ago and, for many years, have sought to have their claims determined. There have already been long delays in bringing the curial proceedings to trial. It is a truism that justice delayed is justice denied and that '[w]here there is delay the whole quality of justice deteriorates'.[215] As observed in the first stay appeal reasons (supplementary), WPPL and the Rhodes parties 'are strangers to the [Hope Downs] Deed and are adversaries of the parties to it' and '[r]egardless of the outcome of the arbitration, the plaintiffs' claims must be heard and determined by the court'.[216] The interests of the plaintiffs and the public in bringing the curial proceedings to a resolution are, as the learned primary judge recognised, a powerful consideration.
5. To demonstrate that a substantial injustice would be done by leaving the learned primary judge's decision undisturbed, it would be necessary to be satisfied that substantial injustice would flow from the court proceeding to hear WPPL and the Rhodes parties' claims, and in refusing to defer the trial until some unknown point in the future.
6. The orders sought by the HPPL parties in the appeal are simply that the presently listed trial be vacated. No alternative trial dates are proposed. The HPPL parties' primary submission is that the trial of WPPL's and the Rhodes parties' claims should not take place until the award in the Martin Arbitration is issued and all disputes related thereto are resolved. The learned primary judge's conclusion that any such disputes could take up to two or three years to resolve was not challenged in the appeal. Indeed, given the history of the disputes between the HPPL parties and Bianca and John, her Honour's estimate of two or three years may well be a conservative one. To defer the commencement of the trial of WPPL and the Rhodes parties' claims for such an indefinite period, and one the duration of which would be entirely beyond their control, would visit a serious injustice upon them.
7. Perhaps recognising this, and as they did before the learned primary judge, the HPPL parties' position shifted to one in which the proposed stay or adjournment would be limited until the outcome of the Martin Arbitration is known. Not for the trial to then commence, however, but for the court to 'interrogate the parties as to ... quo vadis [i.e. where are we going?] in respect of these proceedings'.[217] As the learned primary judge concluded,[218] the HPPL parties' alternative position is in all likelihood a distinction without a difference. The answer to the question 'quo vadis?' is very likely to be 'another adjournment application'.
8. And in any event, if the trial of the curial proceedings does not commence on the dates that it has been listed, it is no simple matter to simply list it again at some convenient dates in the near future. Trials of this size and complexity require considerable planning and allocation of resources. Needless to say, the court does not have those resources, judicial and otherwise, on standby, waiting in the wings until a time at which all of the parties are ready.
9. Against this of course, is the spectre that, no matter when the trial of the curial proceedings is listed to commence, there will be further delays. There is, we recognise, a real risk that, whenever the trial commences, it will be overtaken by other events that may derail the trial and lead to a waste of resources, both for the parties and for the court. To that end, the HPPL parties were at pains to emphasise the prejudice that would be visited on the public through the 'potentially massive waste of court resources' if the trial proceeds.[219]
10. The court is, of course, acutely aware of the very substantial impost that these proceedings, and those like it, have on the public's scarce judicial resources. The conduct of the curial proceedings, at first instance and in this court, have already consumed a massive amount of those resources. There can be no doubt that extremely well‑resourced litigants, such as those in the present appeals, consume a disproportionate share of the court's resources, which in turn adversely impacts upon every other litigant waiting for their disputes to be heard and determined. That disproportionate draw on scarce public resources will continue no matter what occurs in these proceedings. The solution to it must be found elsewhere.
11. The spectre of further delays, and the potential for a waste of resources, in the curial proceedings is therefore an important consideration. But the court cannot simply decline to exercise its jurisdiction because it is difficult or there is a risk that the hearing will be rendered nugatory. There is considerable uncertainty as to the nature and extent of the consequences of the award for the curial proceedings when the award is delivered. Among other things, those consequences will be influenced by the result and by the responses of the arbitral parties to the award. Once those things become known, the court can, and no doubt will, hear from the parties and take such steps as then seem best calculated to advance the resolution of the curial proceedings, while giving proper effect to the award. In the circumstances of these proceedings, with their history, the risk recognised in [300] above does not establish a substantial injustice in the commencement of the trial in accordance with the primary judge's orders.
12. The arbitration parties' ongoing disputes will no doubt continue to have an impact upon the court's ability to exercise its jurisdiction to resolve disputes before it in a timely and efficient manner. That is, regrettably, an irreducible risk in this litigation. It is not one that can or should divert the court from the performance of its duty to resolve the proceedings brought by the plaintiffs.
13. It would not cause a substantial injustice for the trial to proceed.

1. We would refuse leave to appeal and dismiss the appeals.

1. The primary judge erred at law in finding at J[162] ‑ [163] that the referral to arbitration of certain matters in the Rhodes Proceeding should not be considered when weighing the factors in favour or against a stay or adjournment, when the referral to arbitration was a significant factor in favour of a stay or adjournment because, in light of that referral, the Debt Reconstruction Issue (and much, if not all, of the Acquisition Issue) could not be considered, let alone resolved, in the Rhodes Proceeding until the matters referred to arbitration were either rendered moot by the outcome in the Martin Arbitration or resolved in the Rhodes Arbitration. As a result, the Rhodes Proceeding cannot be finally determined until, at the earliest, the outcome of the Martin Arbitration is resolved and staying or adjourning that Proceeding would not cause delay beyond that which is already inevitable. Further, the WPPL proceedings also cannot be finally determined until Rhodes' claimed interest in the Tenements is resolved, as that claim may affect WPPL's claimed interest.
2. In making the finding the subject of appeal ground 1, the primary judge also erred at law in the following respects:

(a) in finding at J[131] and [157] ‑ [160] that Rhodes do not claim a proprietary interest in the Tenements, even though: > > 1. Rhodes expressly allege and claim a proprietary interest in their Third Further Amended Substituted Statement of Claim at [37.3.3.4], [37.3.3.5], [37E], [37F.1], [37F.5], [41], [42.6], and [7] ‑ [8A] of the relief claimed; and > 2. that is contrary to the reasons for joining Bianca and John as necessary parties to the Rhodes Proceeding in the first place, as found by the court in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 7] [2016] WASC 305 at [13] ‑ [16] and [21] ‑ [22]; > >
>
> (b) in finding at J[164] ‑ [167] and [237](b) that the referral to arbitration in the Rhodes Proceeding should not be given any weight because of the lack of progress of the Rhodes Arbitration, even though that is the product of Rhodes failing to validly advance the arbitration and is, in any event, irrelevant to the issue as to whether the Rhodes Proceeding can progress towards finality in the face of the matters referred to arbitration;
>
> (c) in finding at J[144], [154] ‑ [156] and [236](c) that Bianca and John's defence on the Acquisition and Debt Reconstruction Issues, and aspects of Rhodes' reply to the same, can be considered and finally resolved in the Rhodes Proceeding, or at the least that question can be left for trial, even though the entire controversy between Bianca and John and Rhodes comprising the Debt Reconstruction Issue, and much of the controversy comprising the Acquisition Issue, were referred to arbitration and cannot be considered, let alone determined, in the Rhodes Proceeding;
>
> (d) in finding at J[37] and [151] that the matters referred to arbitration in the Rhodes Proceeding were also raised in the WPPL proceedings as between Bianca and John and WPPL, when the Debt Reconstruction Issue, which includes Rhodes' response to Bianca and John's allegations on the same, is not the same as that raised in the WPPL Proceeding; and
>
> (e) in finding at J[143] that, even if Rhodes could not be awarded final relief until the Rhodes Arbitration was determined or otherwise rendered moot by the outcome in the Martin Arbitration, that should not be considered as a factor for any stay or adjournment because it would cause prejudice only to Rhodes. The primary judge failed to consider that the inability to award Rhodes final relief necessarily meant that both the WPPL and Rhodes proceedings would have to await the outcome of at least the Martin Arbitration before final relief could be ordered, which is a highly relevant factor to consider in whether to stay or adjourn those Proceedings. Further, the primary judge erred in finding that the HPPL Parties would not be prejudiced, when they would be subject to a lengthy trial, much of which may be rendered inutile following an award in the Martin Arbitration or any Rhodes Arbitration.

3. The primary judge erred at law in finding at J[104] ‑ [109] and [237](a) that there was no realistic possibility of issue estoppels arising from a judgment in the WPPL and Rhodes proceedings that would bind the parties in the Martin Arbitration and therefore did not consider this as a factor in any stay or adjournment. To the contrary, the risk of issue estoppels arising remains, together with any prejudice caused through any issue estoppels, and these matters weighed heavily in favour of a stay or adjournment in accordance with this court's findings in Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASC 77 (S) at [141] ‑ [145].
4. The primary judge erred at law in finding at J[110] ‑ [114] that the question of issue estoppels binding in the Rhodes Arbitration should not be given any weight because of the HPPL Parties' conduct in refusing to let Rhodes join the Martin Arbitration and because the Rhodes Arbitration has not been effectively commenced and may not progress, even though:

(a) there was no right or basis for Rhodes to join the Martin Arbitration;
>
> (b) the lack of progress of the Rhodes Arbitration is the product of the conduct of Rhodes; and
>
> (c) the primary judge failed to consider the extent to which issue estoppels binding parties to the Rhodes Arbitration undermined the referral to arbitration under s 8 of the Commercial Arbitration Act 2012 (WA), which is a significant factor in favour of a stay or adjournment for the same reasons as with appeal ground 3.

5. The primary judge erred at law in finding at J[236](a) ‑ (b), (g) ‑ (h) and [245] that a stay or adjournment of the WPPL and Rhodes proceedings would be to the prejudice of WPPL and Rhodes because it would lead to delay and not avoid duplication of resources, while failing to consider and find that:

(a) any award issued in the Martin Arbitration would automatically be binding on the parties to that arbitration and must be recognised by the court subject only to the award being set aside under s 34, or the limited exceptions in s 36, of the Commercial Arbitration Act;
>
> (b) the outcome in the Martin Arbitration would necessarily affect the WPPL and Rhodes proceedings and delay their resolution, even if there was no stay or adjournment, because the findings in a valid award would bind Bianca and John and the HPPL Parties and affect what issues those parties could raise in the WPPL and Rhodes proceedings. The primary judge erred at law in conflating this issue with the separate issue (forming appeal grounds 7 to 9 below) concerning the tender of the Hope Downs Deed (J[177] ‑ [178] and [183]) and did not consider that a valid award is binding of its own force and to be recognised by the court even without an application for enforcement;
>
> (c) if the HPPL Parties were successful in the Martin Arbitration, recognition of the award would necessarily mean that Bianca and John do not have any interest in the Tenements and are not necessary parties to the WPPL or Rhodes proceedings. The award would also prevent Bianca and John from asserting any interest in the Tenements, even as against non‑parties to the Martin Arbitration, including because it would be an abuse of process for them to do so, thereby rendering the Acquisition and Debt Reconstruction Issues as raised in their defences to WPPL's and Rhodes' claims otiose;
>
> (d) if the tribunal in the Martin Arbitration found that it lacked jurisdiction, the stay of Bianca and John's counterclaims in the WPPL and Rhodes proceedings would be lifted and all issues raised therein would need to be the subject of further pleadings, discovery and evidence, as the primary judge acknowledged at J[205] ‑ [207]. The primary judge erred in finding at J[208] and [241] that this possibility should not be given any weight because the HPPL Parties did not raise it in written submissions, when in fact the HPPL Parties raised this point in their written submissions in reply at [37] and the point, whenever and howsoever raised, weighs strongly in favour of a stay or adjournment;
>
> (e) if Bianca and John were found in the Martin Arbitration to have an interest in the Tenements to the exclusion of the HPPL Parties, but the tribunal otherwise upheld its jurisdiction, that would fundamentally affect the HPPL Parties' defence in the WPPL and Rhodes proceedings and the relief available to WPPL and Rhodes, including (were the award valid and binding) by removing or substantively changing the issues raised by the HPPL Parties in their defence on the Acquisition Issue as pleaded at [53] ‑ [53DQ] of their Defence to the Sixth Further Amended Substituted Statement of Claim in the WPPL Proceeding;
>
> (f) by reason of (a) ‑ (e) above, it is beside the point that neither the WPPL nor Rhodes Parties would be bound by any outcome in the Martin Arbitration, because that outcome would nonetheless affect the relief available to WPPL and Rhodes, alter the defences raised to their claims by Bianca and John or the HPPL Parties, or otherwise affect whether the issues raised in the stayed counterclaims formed part of the Proceedings once again, and the primary judge erred in finding otherwise at J[113], [136] ‑ [137], [141], [170] ‑ [171], [192] ‑ [197], [200] and [236](c) ‑ (e);
>
> (g) even on the evidence submitted by WPPL (J[188]), if the issues raised in Bianca and John's defences fell away as a result of findings in the Martin Arbitration, that would save between 4.5 and 9.5 weeks of the court's time in any trial; and
>
> (h) once an award is issued in the Martin Arbitration, delays will inevitably occur to the WPPL and Rhodes proceedings, or any appeals therefrom, because parties to the Arbitration will inevitably seek to have the award recognised and enforced (or seek to set the award aside or have its recognition and enforcement refused), reopen the trial in light of findings made in the award and their consequences, adduce further evidence (including the award), amend pleadings and submissions, or otherwise seek to lift previous stays requiring the litigation of further matters, depending on the precise outcome of the Martin Arbitration. The primary judge erred in finding:

1. at J[214] and [236] that the likely dispute concerning the recognition or enforcement of the award in the Martin Arbitration is not a factor to be considered in favour of a stay or adjournment of the trial, when it is in fact a strong factor in favour of a stay or adjournment because such disputes will necessarily cause delay to the resolution of the WPPL and Rhodes proceedings even if a trial proceeds; and 2. at J[138] ‑ [139] and [238](b) that the court was not in a position to make any proper assessment as to the prospects or likelihood that the Martin Arbitration would shorten the trial in the proceedings, when by reason of the matters raised above, delay to the WPPL and Rhodes proceedings would inevitably occur from any and all of the permutations of possible outcomes in the Martin Arbitration.
2. The primary judge erred at law in finding at J[173] and [238](a) that the risk of inconsistent findings in the Martin Arbitration and in the WPPL and Rhodes proceedings should not be considered as a factor in favour of a stay or adjournment, including by:

(a) finding at J[170] ‑ [171] that the Martin Arbitration would not have any effect on the WPPL Proceeding, as the same issues would need to be relitigated in the WPPL Proceeding, even though the Martin Arbitration would have substantial effects by reason of appeal ground 5 above; and
>
> (b) finding at J[172] that the risk of inconsistent decisions was the product of forensic decisions by the HPPL Parties to refer matters to arbitration which overlapped with issues arising in the WPPL and Rhodes proceedings, which is not a relevant factor and contrary to the legislative policy underpinning s 8 of the Commercial Arbitration Act.

7. The primary judge erred at J[176] ‑ [177], [180], [183], [189] and [240](a) in stating the effect of the HPPL Parties' submissions concerning the tender of the Hope Downs Deed. It was not the case, as the primary judge found at J[180] and [189], that the HPPL Parties submitted they could only tender the Hope Downs Deed if they were successful in the Martin Arbitration (which would not be known until any award were issued). Rather, the HPPL Parties submitted that they intended to tender the Hope Downs Deed, even before any award was issued in the Martin Arbitration, to protect against possible issue estoppels and as evidence that contradicts the WPPL Parties' case as pleaded at [53C] of WPPL's Sixth Further Amended Substituted Statement of Claim.
8. By reason of appeal ground 7, the primary judge also erred at law in finding at J[181] and [198] that the HPPL Parties would need to plead reliance on the Hope Downs Deed, when instead it is a matter of evidence responding to the matters raised by the WPPL Parties.
9. Because of the errors set out in appeal grounds 7 and 8, the primary judge erred at law by failing to consider the submissions that the HPPL Parties made concerning the significance of the Hope Downs Deed (including as set out in their written submissions in chief at [90] ‑ [98], written submissions in reply at [24] ‑ [32], and submissions made orally at Transcript, 24 November 2022 at T2849‑52 and 25 November 2022 at T2962‑3) and in failing to find that great complexities would arise, and prejudice would be suffered by the HPPL Parties, were a trial to proceed without first awaiting the outcome of the Martin Arbitration.
10. This court, in re‑exercising the discretion, should order an adjournment of the trial in, or a stay of, the WPPL and Rhodes proceedings pending the issue of the award in the Martin Arbitration, because:

(a) neither the WPPL nor Rhodes proceedings can be finally determined in light of the matters that have been referred to arbitration in the Rhodes Proceeding, but the outcome in the Martin Arbitration may render those matters moot and then enable both the WPPL and Rhodes proceedings to progress towards finality;
>
> (b) it will uphold the efficacy of the arbitration agreements between the HPPL Parties and Bianca and John and prevent the undermining of the Martin Arbitration and the referral of various matters thereto, as found by this court in Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 at [512];
>
> (c) it will prevent prejudice being suffered by the HPPL Parties in the form identified by this court in Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASC 77 (S) at [141] ‑ [145] (issue estoppels) and [151] ‑ [153] (contractual rights of confidentiality);
>
> (d) findings validly made in the Martin Arbitration, binding on Bianca and John and the HPPL Parties, will substantially affect the issues that can be raised and determined in the WPPL and Rhodes proceedings, and any relief available to WPPL and Rhodes, thereby affecting the time of any trial, the amendment of pleadings, the evidence called and the submissions made; and
>
> (e) proceeding with a trial without first awaiting the award in the Martin Arbitration will itself cause substantial delays to the WPPL and Rhodes proceedings, give rise to great complexities that would otherwise be avoided and be productive of chaos capable of causing significant prejudice to the HPPL Parties and to other parties to the Proceedings.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

Principal Associate to the Honourable Chief Justice Peter Quinlan

[1] See Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77; (2020) 55 WAR 435 (first stay appeal); Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S) (first stay appeal (supplementary)); DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97 (Rhodes stay appeal).

[2] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd (No 16) [2022] WASC 432 [1] (primary reasons).

[3] Litopoulos v Indiana Holdings Pty Ltd [2021] WASCA 88 [11] ‑ [13] (Mitchell & Vaughan JJA); Kipoi Holdings Mauritius Ltd v Tiger Resources Ltd [2021] WASCA 186 [264] (Buss P, Murphy & Mitchell JJA).

[4] Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141 [49] ‑ [50] (Quinlan CJ & Vaughan JA).

[5] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271 ‑ 272 (Brennan CJ, Toohey, McHugh & Gummow JJ); Collector of Customs v Pozzolanic [1993] FCA 356; (1993) 43 FCR 280, 287 (Neaves, French & Cooper JJ); Strahan v Brennan [2014] WASC 190 [90] (Martin CJ).

[6] First stay appeal [396] (Quinlan CJ).

[9] First stay appeal [47] ‑ [93] (Quinlan CJ).

[11] The HPPL parties drew a similar distinction between the 'Acquisition Issue' and the 'Acquisition Matter' (and between the 'Debt Reconstruction Issue' and the 'Debt Reconstruction Matter') at the hearing of the appeal (appeal ts 7 ‑ 9).

[12] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 13] [2021] WASC 214 (Rhodes stay reasons).

[13] The Hope Downs tenements are defined in the Hope Downs Deed so as to encompass the tenements in the Hope Downs area and the East Angelas area referred to later in these reasons.

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

[16] Rhodes stay appeal [153] (Quinlan CJ & Beech JA).

[17] Rhodes stay appeal [176] ‑ [182] (Quinlan CJ & Beech JA).

[18] Rhodes stay appeal [171] (Quinlan CJ & Beech JA).

[31] Primary reasons [111] ‑ [112].

[36] Primary reasons [115] ‑ [117], citing ts 2826 ‑ 2831.

[37] Primary reasons [117], citing ts 2830.

[39] Primary reasons [116] ‑ [121].

[40] Primary reasons [122] ‑ [130].

[41] Primary reasons [131], citing ts 2838.

[44] Citing TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; (2013) 251 CLR 533 [28] ‑ [29], [108]; Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2022] SASCA 107; (2022) 406 ALR 293 [182].

[45] First stay appeal [402]; first stay appeal (supplementary) [124] ‑ [127].

[49] Primary reasons [139] ‑ [141].

[53] Primary reasons [150], citing second further amended defence [14](b), [29](a).

[57] Primary reasons [156] ‑ [157].

[59] Primary reasons [158] ‑ [160], citing Grimes Holdings Pty Ltd v Sceghi (Unreported, WASC, 20 August 1993, Library No 930453) (White J).

[63] Primary reasons [166] ‑ [167].

[64] Primary reasons [168] ‑ [169].

[65] Primary reasons [171], citing the Rhodes stay appeal [247] ‑ [249].

[71] Primary reasons [179], citing ts 2862.

[72] Primary reasons [180], citing ts 2804.

[75] Primary reasons [182] ‑ [184].

[77] Primary reasons [185] ‑ [186].

[80] Primary reasons [191], citing ts 2826 ‑ 2827.

[81] Primary reasons [192], citing the first stay appeal (supplementary) [126].

[82] Primary reasons [193] ‑ [194], citing Michael Wilson & Partners Ltd v Sinclair [2017] EWCA Civ 3 [67], [68], [87].

[84] Primary reasons [198] ‑ [199].

[85] Primary reasons [201] ‑ [202].

[86] Primary reasons [203] ‑ [205].

[88] Primary reasons [208] ‑ [209].

[91] Primary reasons [212] ‑ [213].

[92] Primary reasons [218], citing Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311 [42], [45], [49] ‑ [51].

[100] Primary reasons [227] ‑ [232], citing Affidavit of Godfrey Edward Taylor 15 November 2022 [25] ‑ [36].

[109] Primary reasons [243] ‑ [244].

[110] Primary reasons [245] ‑ [246].

[112] House v The King (1936) 55 CLR 499, 504 ‑ 505 (Dixon, Evatt & McTiernan JJ) (House v The King).

[113] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [57] (Buss JA, Wheeler & Pullin JJA agreeing); see also Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109 [53] (Owen JA, Buss & Newnes JJA agreeing).

[114] Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 [120] (Gummow ACJ, Kirby, Hayne & Heydon JJ). See also: Park Trent Properties Group Pty Ltd v Australian Securities and Investments Commission [2016] NSWCA 298; (2016) 116 ACSR 473 [51] (Leeming JA, McColl & Gleeson JJA agreeing); Mighty River International Ltd v Mineral Resources Ltd [2020] WASCA 44 [77] (Quinlan CJ, Beech & Vaughan JJA).

[115] Veen v The Queen (No 2) (1988) 164 CLR 465, 476 ‑ 477 (Mason CJ, Brennan, Dawson & Toohey JJ).

[116] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 [45] (French CJ, Hayne, Crennan, Kiefel, Bell & Keane JJ).

[117] R v Engert (1995) 84 A Crim R 67, 71.

[119] See [91] above.

[120] See [94] above.

[121] See [132] above.

[122] First stay appeal [212]; Rhodes stay appeal [164], [171].

[123] Rhodes 3FASSOC [23] ‑ [25]; BAB 1028 ‑ 1029, read with the preceding paragraphs of the pleading.

[127] HPPL parties' submissions [12], [19].

[134] First stay appeal (supplementary) [141] ‑ [148].

[135] HPPL parties' submissions dated 21 October 2022 [66], [68]. See also: HPPL parties' submissions dated 21 October 2022 [80]; ts 2826.

[136] First stay appeal reasons (supplementary) [156].

[138] Primary reasons [110] ‑ [114].

[139] Primary reasons [114], [237](b).

[140] First stay appeal (supplementary) [31](1).

[141] Primary reasons [112], [114].

[143] Appeal ts 12. See also appeal ts 28, 33.

[152] Primary reasons [138] ‑ [139].

[153] Primary reasons [201]; see [117] above

[154] Primary reasons [239]; see [135] above.

[158] HPPL parties' submissions dated 21 October 2022 [3] (CGAB 158).

[159] HPPL parties' submissions dated 21 October 2022 [74] (CGAB 181).

[160] HPPL parties' submissions dated 21 October 2022 [23] (CGAB 165).

[161] HPPL parties' submissions dated 21 October 2022 [58], [74], [82] ‑ [83] (CGAB 176 ‑ 177, 180 ‑ 181, 182 ‑ 183).

[162] HPPL parties' submissions in reply dated 22 November 2022 [33] (CGAB 243).

[163] HPPL parties' submissions in reply dated 22 November 2022 [35] (CGAB 243).

[164] HPPL parties' submissions in reply dated 22 November 2022 [36] (CGAB 243).

[165] WPPL's submissions dated 15 November 2022 [15] ‑ [17] (CGAB 192 ‑193).

[166] HPPL parties' submissions in reply dated 22 November 2022 [37] (CGAB 243).

[169] HPPL parties' submissions in reply dated 22 November 2022 [38] (CGAB 244).

[170] HPPL parties' submissions in reply dated 22 November 2022 [40] (CGAB 244).

[171] HPPL parties' submissions in reply dated 22 November 2022 [41] (CGAB 244).

[172] HPPL parties' submissions in reply dated 22 November 2022 [50] (CGAB 244).

[183] HPPL parties' submissions dated 21 October 2022 [73] (CGAB 180).

[184] Primary reasons [201]; see [117] above.

[185] Primary reasons [193] ‑ [194]; see [114] above.

[186] HPPL parties' submissions in reply dated 22 November 2022 [40] (CGAB 244).

[187] Primary reasons [236](d) & (e); see [132] above.

[188] Primary reasons [240](a); see [135] above.

[189] Primary reasons [212] ‑ [214], [236](f).

[191] First stay appeal (supplementary) [127]. See generally first stay appeal (supplementary) [124] ‑ [126].

[192] Referring to primary reasons [214], [236](f).

[193] Referring to primary reasons [138] ‑ [139], [238](b).

[194] See ground 5(h)(ii) ‑ the factual finding the subject of that sub‑ground is challenged on the basis that 'delay to the WPPL and Rhodes Proceedings would inevitably follow from any and all permutations of possible outcomes in the Martin Arbitration' (emphasis added).

[195] Primary reasons [188]. See also primary reasons [186].

[198] Primary reasons [173], [238](a).

[199] First stay appeal reasons (supplementary) [127].

[200] First stay appeal reasons (supplementary) [147].

[202] Ground 7. See also appellants' submissions [63] ‑ [65], [68].

[204] See for example primary reasons [176] ‑ [177], [180], [183], [189].

[205] Primary reasons [199], [243].

[213] Primary reasons [198] ‑ [199], [243].

[214] Primary reasons [239], [240](a), [242].

[215] R v Lawrence [1982] AC 510 , 517 (Lord Hailsham of St Marylebone LC).

[216] First stay appeal reasons (supplementary) [124].