Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170

FEDERAL COURT OF AUSTRALIA

Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170 Appeal from: Rinehart v Rinehart (No 3) [2016] FCA 539

File numbers: NSD 916 of 2016 NSD 922 of 2016

Judges: ALLSOP CJ, BESANKO AND O'CALLAGHAN JJ

Date of judgment: 27 October 2017

Catchwords: ARBITRATION – appeal from interlocutory decision on an application under s 8(1) of the Commercial Arbitration Act 2010 (NSW) seeking an order that the parties to the proceeding be referred to arbitration in respect of the subject matter of various deeds – whether the primary judge erred in ordering a proviso trial under s 8(1) ARBITRATION – whether the arbitration contemplated by the arbitration agreements is commercial for the purposes of the Commercial Arbitration Act 2010 (NSW) – meaning of the phrase "commercial arbitration" – whether parties need to demonstrate the existence of a pre-existing commercial relationship between the parties to the dispute – whether a family or domestic dispute and the arbitration to resolve it can also be characterised as a commercial dispute ARBITRATION – proper approach to determination of an application under s 8(1) of the Commercial Arbitration Act 2010 (NSW) – proper approach to construction of an arbitration agreement – whether the disputes in question are the subject of an arbitration agreement – where arbitration agreements refer to "any dispute under this deed" – whether that phrase should be read as limited to those disputes governed or controlled by the deed – breadth of the potential meaning of entire phrase "any dispute under this deed" ARBITRATION – whether parties that are not parties to the deeds and arbitration agreements can be referred to arbitration because they claim "through or under" entities who are parties – definition of party within s 2(1) of the Commercial Arbitration Act 2010 (NSW) – whether the claims against third parties are part of the same "matter" within s 8(1) of the Commercial Arbitration Act 2010 (NSW) – circumstances in which claims against third party companies can be stayed under the Court's general power to stay proceedings ARBITRATION – principles of separability and competence – whether any of the arbitration agreements can be said to be null and void, inoperative or incapable of being performed – whether the requisite separate attack on the arbitration agreement present – character of the necessary attack on the arbitration agreement for the proviso of s 8(1) – construction of phrase "null and void" – circumstances in which the Court should hear the separate attack or permit the arbitral tribunal to hear the attack CONSTITUTIONAL LAW – Constitutional validity of s 8(1) of the Commercial Arbitration Act 2010 (NSW) – whether s 8(1) is picked up by s 79 of the Judiciary Act 1903 (Cth) – whether allowing the arbitrator to decide the proviso challenge under s 8(1) impermissibly confers judicial power upon the arbitrator