This is not a matter which can be raised by a notice of contention. We would first make the point that the enquiry is not binary. After pointing out six matters that her Honour considered supported the conclusion that the appellants raised serious challenges to the applicants’ claims of undue influence, duress and other species of misconduct (at [664]), her Honour said, as to the two matters we have identified, the following (at [666]): We refused this application during the course of the hearing and these are our reasons for doing so. It will be a matter for resolution, but a real and substantial issue as to the effect of the releases is raised such that a decision will be required on the operation of the deed – this is a dispute under the deed. However, none of the foregoing is to say that there cannot be a dispute between the parties to an arbitration agreement about or concerning the right of one of the parties to pursue claims against a non-party. The proper approach will be elucidated in the discussion of the parties’ contentions as to the primary judge’s approach. The correspondence leading up to its signature is discussed by the primary judge at [349]-[363] of her Honour’s reasons. It was submitted that aspects of the reasoning in the Court of Appeal in. There are, however, passages in some cases that suggest that if the arbitration agreement is separately impeached (so as to satisfy the separability principle) and that attack is to the effect that it was never formed or is now void, such should only be heard by the Court. We will return to this in more detail in section G below. Thus, as between the parties to the Hope Downs Deed, there was a sustainable argument that the setting up of a defence under cl 7(b) in relation to all substantive claims was a dispute under the deed. In those circumstances, it would be an unusual case in which a competitor would seek a “commercial relationship” with a rival. The applicants allege that the conduct concerning the Mulga Downs Tenement was in breach of fiduciary duty and pursuant to a dishonest and fraudulent design. These will be dealt with to the extent necessary to dispose of the main issues. Sections 13 and 14 claim a constructive trust in favour of the children over a 25.5% shareholding held by Mrs Rinehart in HPPL (that is, the percentage above 51%). Each party will be bound by the Arbitrator’s decision. It is the matter, the differences between the parties, the controversy between the parties, which, under the agreement, the parties have agreed to submit to arbitration. The primary judge did not separately consider whether the validity claims relating to the 2005 Deed of Obligation and Release were “disputes hereunder”. Their Honours said at 169 CLR 353: We do not think a person is claiming through or under another person merely because they are in a close relationship or because their respective rights are “closely related”.

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