CHANNAR MINING PTY LTD & ANOR -v- CMIEC (CHANNAR) PTY LTD & ORS [2003] WASC 253

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 253
Case No:	CIV:2250/2003	Heard:	5 DECEMBER 2003
Coram:	PULLIN J	Delivered:	18/12/03
No of pages:	12	Judgment Part:	1 of 1
Result:	Application to set aside service of notice of writ dismissed
Category:	A
PDF Version

Parties:	CHANNAR MINING PTY LTD HAMERSLEY IRON PTY LTD (ACN 004 558 276) CMIEC (CHANNAR) PTY LTD CMIEC (AUSTRALIA) PTY LTD (ACN 009 277 230) CHINA METALLURGICAL IMPORT AND EXPORT CORPORATION CHINA IRON & STEEL TRADE GROUP CORPORATION
Catchwords:	Practice and procedure Order for service of notice of writ out of jurisdiction Application to set aside Whether service contrary to the domestic law of the People's Republic of China
Legislation:	Supreme Court Rules, O 10 r 10
Case References:	Australian Securities Commission v Bank Leumi Le-Israel (1995) 134 ALR 101 Beddington v Beddington (1876) 1 PD 426 Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79 Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 In re Dulles' Settlement (No 2) [1951] 1 Ch 842 Johnson v Taylor Bros & Co Ltd [1920] AC 144 Saraswati v The Queen (1991) 172 CLR 1 Scruples Imports Pty Ltd v Crabtree & Evelyn Pty Ltd (1983) 1 IPR 315 Szechter v Szechter [1971] P 286 Adams v Cape Industries Plc [1990] Ch 433 Akai Pty Ltd v People's Insurance Co Ltd [1998] 1 Lloyd's Rep 90 Australian Commercial Research & Development v ANZ McCaughan Merchant Bank [1990] 1 Qd R 101 Boyle v Sacker (1888) 39 Ch D 249 BP Australia Ltd v Kirki Shipping Corporation, unreported; SCt of WA (Master Adams); Library No 940612; 1 November 1994 Castagna v Conceria Pell Mec Spa, unreported; NSW Ct of Appeal; 15 March 1996 Kent v Lechmere Financial Corporation [2002] WASC 75 Leal v Dunlop Bio-Processes International Ltd [1984] 2 All ER 207 Lindgran v Lindgran [1956] VLR 215 Rein v Stein (1892) 66 LT 469 Williams & Glyn's Bank Plc v Astro Dinamico Compania Naviera SA [1948] 1 Lloyd's Rep 453

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CHANNAR MINING PTY LTD & ANOR -v- CMIEC (CHANNAR) PTY LTD & ORS [2003] WASC 253 CORAM : PULLIN J HEARD : 5 DECEMBER 2003 DELIVERED : 18 DECEMBER 2003 FILE NO/S : CIV 2250 of 2003 BETWEEN : CHANNAR MINING PTY LTD

First Plaintiff

HAMERSLEY IRON PTY LTD (ACN 004 558 276)

Second Plaintiff

AND

CMIEC (CHANNAR) PTY LTD

First Defendant

CMIEC (AUSTRALIA) PTY LTD (ACN 009 277 230)

Second Defendant

CHINA METALLURGICAL IMPORT AND EXPORT CORPORATION

Third Defendant

CHINA IRON & STEEL TRADE GROUP CORPORATION

Fourth Defendant

(Page 2)

Catchwords:

Practice and procedure - Order for service of notice of writ out of jurisdiction - Application to set aside - Whether service contrary to the domestic law of the People's Republic of China

Legislation:

Supreme Court Rules, 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: [2003] WASC 253
Decision Date

CaseChat Overview and Summary

The case of Channar Mining Pty Ltd v CMIEC (Channar) Pty Ltd is an application to set aside service of notice of writ out of jurisdiction. The plaintiffs, Channar Mining Pty Ltd and Hamersley Iron Pty Ltd, are suing the defendants, CMIEC (Channar) Pty Ltd, CMIEC (Australia) Pty Ltd, China Metallurgical Import and Export Corporation, and China Iron & Steel Trade Group Corporation. The defendants are companies located in the People's Republic of China. The third and fourth defendants sought to set aside the service of notice of writ, arguing that it was contrary to the domestic law of the People's Republic of China. The court had to decide whether the service of notice of writ was contrary to the domestic law of the People's Republic of China. The court found that the service of notice of writ was not contrary to the domestic law of the People's Republic of China, as the domestic law requires a formal request by the Australian court through diplomatic channels seeking the assistance of Chinese authorities in serving the documents. The court also found that the service of notice of writ was not a command by the sovereign but a notice by the solicitors for the plaintiffs that a writ has issued and of the consequences which may flow if no appearance is entered. The court dismissed the application to set aside the service of notice of writ.

Orders