Argonaut Partners Pty Ltd v Abyssinian Metals Ltd - [2023] WASC 278

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   ARGONAUT PARTNERS PTY LTD -v- ABYSSINIAN METALS LIMITED [2023] WASC 278
CORAM:   LUNDBERG J
HEARD:   25 JULY 2023
DELIVERED          :   25 JULY 2023
PUBLISHED           :   26 JULY 2023
FILE NO/S:   COR 114 of 2023
BETWEEN:   ARGONAUT PARTNERS PTY LTD
Plaintiff
AND
ABYSSINIAN METALS LIMITED
First Defendant
CHRISTOPHER BRUCE TINNEY
Second Defendant
NEIL FREDRICK WARBURTON
Third Defendant
STEPHEN WILLIAM MILLER
Fourth Defendant
SHARLENE LAURA TINNEY
Fifth Defendant
MICHLANGE PTY LTD
Sixth Defendant
MILLCORP SECURITIES PTY LTD AS THE TRUSTEE FOR MILLCORP SECURITIES TRUST
Seventh Defendant
EVENING STAR ENTERPRISES PTY LTD AS THE TRUSTEE FOR MILLCORP SUPER FUND
Eighth Defendant
YOLANDA JOHANNA MILLER
Ninth Defendant
WARBURTON SUPERFUND PTY LTD AS THE TRUSTEE FOR THE WARBURTON SELF ADMINISTERED SUPERANNUATION FUND
Tenth Defendant

Catchwords:

Practice and procedure - Ex parte motion for leave to serve originating process outside Australia - Whether leave required prior to the issue of the originating process - Whether procedural requirements in O 10 r 4(1) of the Rules of the Supreme Court 1971 (WA) satisfied - Whether jurisdictional pigeonholes in O 10 r 1(1) Rules of the Supreme Court 1971 (WA) demonstrated - Whether discretion should be exercised to grant leave - Directions for effecting service on defendants residing in South Africa

Legislation:

Corporations Act 2001 (Cth)
Rules of the Supreme Court 1971 (WA), O 5 r 9, O 10 r 1(1), O 10 r 1A, O 10 r 4, O 10 r 7 and O 10 r 10
Supreme Court (Corporations) (WA) Rules 2004 (WA), r 1.3

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M J Sims
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
Eighth Defendant	:	No appearance
Ninth Defendant	:	No appearance
Tenth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Corrs Chambers Westgarth
First Defendant	:	Thomson Geer Lawyers
Second Defendant	:	No appearance
Third Defendant	:	Tottle Partners
Fourth Defendant	:	Tottle Partners
Fifth Defendant	:	No appearance
Sixth Defendant	:	Tottle Partners
Seventh Defendant	:	Tottle Partners
Eighth Defendant	:	Tottle Partners
Ninth Defendant	:	Tottle Partners
Tenth Defendant	:	Tottle Partners

Case(s) referred to in decision(s):

Bombardier Inc v Avwest Aircraft Pty Ltd [2020] WASC 2
Carter Holt Harvey Woodproducts Australia Pty Ltd v David [2015] VSC 393
Channar Mining Pty Ltd v CMIEC (Channar) Pty Ltd [2003] WASC 253
Destec Pty Ltd v Mineral Resources Limited [2020] WASC 95
Kent v Lechmere Financial Corp [2002] WASC 75
Micon Mining and Construction Products GmbH & Co KG v Macmahon Mining Services Pty Ltd [2022] WASC 56
Mondial Trading Pty Ltd v Interocean Marine Transport Inc (1985) 65 ALR 155

Table of Contents

A. Introduction

B. First issue - threshold issue

C. Second issue - procedural requirements in O 10 r 4 RSC

D. Third issue - substantive requirements in O 10 r…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] WASC 278
Decision Date

CaseChat Overview and Summary

In the case of Argonaut Partners Pty Ltd v Abyssinian Metals Ltd, the plaintiff sought to serve the defendant, which is a foreign company, with proceedings outside of Australia. The court had to decide whether the plaintiff had complied with the procedural requirements set out in the Supreme Court (Corporations) (WA) Rules 2004 (WA) (Corporations Rules) and the Rules of the Supreme Court 1902 (WA) (RSC) in order to validly serve the defendant outside of Australia. The plaintiff argued that they had complied with the necessary procedural requirements, while the defendant argued that the plaintiff had not obtained the requisite leave of the court to serve the writ of summons outside of Australia.

The court considered the interaction between O 5 r 9 RSC and O 10 r 1A(2) RSC, and held that a plaintiff must seek leave to serve a writ of summons outside the jurisdiction as an anterior step to the filing of the writ itself. The court found that the plaintiff had not obtained the requisite leave to serve the writ of summons outside of Australia, and therefore the writ was defective. The court held that the absence of leave pursuant to O 5 r 9 made the writ defective, though not a nullity. The court also held that the plaintiff's failure to obtain leave to serve the writ of summons outside of Australia meant that it did not have jurisdiction over the defendant.

The court dismissed the plaintiff's application for leave to serve the writ of summons outside of Australia as an interlocutory application. The court held that the plaintiff's failure to obtain leave to serve the writ of summons outside of Australia meant that it did not have jurisdiction over the defendant, and therefore it was not appropriate to grant leave to serve the writ of summons outside of Australia. The court also held that the plaintiff's application for leave to serve the writ of summons outside of Australia was an interlocutory application, and that it was not appropriate to grant leave in those circumstances.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The plaintiff commenced these proceedings by the filing of an originating process, as required by Rule 2.2(1)(a) of the Supreme Court (Corporations) (WA) Rules 2004 (WA) (Corporations Rules): Destec Pty Ltd v Mineral Resources Limited [2020] WASC 95 [11] and [18] (Hill J) and Civil Procedure in Western Australia, [4.1.4]. The Corporations Rules apply to these proceedings, unless the court otherwise orders: Rule 1.3(1)(a) Corporations Rules. The rules of this court as stated in the RSC will also apply to these proceedings, to the extent they are relevant and not inconsistent: Rule 1.3(2)(a) Corporations Rules. The Corporations Rules do not deal with matters concerning service of proceedings outside Australia - that is a matter which is exclusively dealt with in O 10 RSC. Turning then to O 10 RSC, I should first observe that O 10 r 1A and r 1 RSC govern service out of the jurisdiction where the proceedings are to be commenced by a writ of summons. The operation of O 10 RSC is extended to other forms of originating process by O 10 r 7 RSC. In those circumstances, O 10 r 7 RSC states that O 10 r 1A, r 4 and r 5 apply with any necessary changes. Order 10 r 1A(2) RSC provides that:(2)A writ served on a person outside Australia, except a writ served on a person in New Zealand under the Trans-Tasman Proceedings Act 2010 (Commonwealth), has no effect unless:(a)the Court, under this Order, granted leave to serve the person; and (b)the person was served –(i)under rule 9 to 11; or (ii)under Order 11A and the convention referred to in that Order. Where a writ of summons is the originating process, regard must be had O 5 r 9 RSC. Order 5 r 9 RSC provides that:A writ for service outside Australia shall not be issued without the leave of the Court. It is well accepted in this court that the interaction between O 10 r 1A(2) RSC and O 5 r 9 RSC requires that a plaintiff must seek leave to serve a writ of summons outside the jurisdiction as an anterior step to the filing of the writ itself: Kent v Lechmere Financial Corp [2002] WASC 75 [5] (Pullin J). A plaintiff may make one application seeking leave under both orders. The position is succinctly stated in Civil Procedure in Western Australia as follows:[2]A plaintiff must obtain leave to issue a writ for service outside Australia (see O 5 r 9) and leave to serve a person outside Australia with a writ or notice of a writ (see O 10 r 1A(2)(a)): Micon Mining and Construction Products GmbH & Co KG v Macmahon Mining Services Pty Ltd [2022] WASCA 56; BC202204949 at [54]–[56]. Compliance with both O 5 r 9 and O 10 is necessary to give the court jurisdiction: see Bombardier Inc v Avwest Aircraft Pty Ltd [2020] WASCA 2; BC201221239 at [12]‑[13]; Koranna Nominees Pty Ltd v Roberts (Unreported, Full Court of the Supreme Court of Western Australia, 15 October 1981, Burt CJ, Smith and Kennedy JJ); BP Australia Ltd v Kirki Shipping Corporation (Unreported, Supreme Court of Western Australia, 1 November 1994, Adams M). A plaintiff may make one application seeking leave under both Orders: Micon Mining and Construction Products GmbH & Co KG v Macmahon Mining Services Pty Ltd [2022] WASCA 56; BC202204949 at [72]; see Common Form 14 at [8070]; see also Kent v Lechmere Financial Corp [2002] WASC 75; BC200201600 at [6]. Order 5 r 9 does not permit an order nunc pro tunc: Kent v Lechmere Financial Corp [2002] WASC 75; BC200201600 at [5]. The absence of leave pursuant to O 5 r 9 makes the writ defective, though not a nullity: Kent v Lechmere Financial Corp [2002] WASC 75; BC200201600 at [21].[2] Civil Procedure in Western Australia, [10.0.3].