Citic Pacific Mining Management Pty Ltd v Joy Global (Aus) Surface Pty Ltd

[2024] WASC 254

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   CITIC PACIFIC MINING MANAGEMENT PTY LTD -v- JOY GLOBAL (AUS) SURFACE PTY LTD [2024] WASC 254

CORAM:   HOWARD J

HEARD:   29 MAY 2024

DELIVERED          :   16 JULY 2024

FILE NO/S:   CIV 1541 of 2024

EX PARTE

CITIC PACIFIC MINING MANAGEMENT PTY LTD

Plaintiff

AND

JOY GLOBAL (AUS) SURFACE PTY LTD

First Defendant

AND

JOY GLOBAL AUSTRALIA PTY LTD

Second Defendant

AND

KOMATSU MINING CORPORATION

Third Defendant

AND

KOMATSU AUSTRALIA PTY LTD

Fourth Defendant

AND

PENSKE AUSTRALIA PTY LTD

Fifth Defendant

Catchwords:

Practice and procedure - Writ for service outside of Australia filed without prior leave - Ex parte application for leave to issue a writ of summons for service outside Australia under O 5 r 9 of the Rules of the Supreme Court 1971 (WA) - Application of O 2 r 1 to issue as of the date of filing - Application granted

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application granted

Category:    B

Representation:

Counsel:

Plaintiff	:	G R Donaldson SC & K De Kerloy
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Kennedys Law
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance

Cases referred to in decision(s):

ANZ Grindlays Bank v Fattah (1991) 4 WAR 296

Australian Insurance Brokers Ltd v Hudig Langeveldt Pty Ltd [No 2] (1991) 7 WAR 343

Centurion Trust Company Pty Ltd v Director of Public Prosecutions (WA) (2008) 35 WAR 463

Checked-Out Pty v Eagle Eye Inspections Pty Ltd [1999] FCA 536

Chittleborough v Troy Group Pty Ltd [2024] WASCA 22

Kaldas v Barbour [2017] NSWCA 275

Kent v Lechmere Financial Corporation [2002] WASC 75

Lipohar v R (1999) 200 CLR 485

Micon Mining and Construction Products GmbH & Co Kg v Macmahon Mining Services Pty Ltd (2022) 58 WAR 334

Obeid v R (2015) 91 NSWLR 226

Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd (2007) 35 WAR 412

PT Garuda Indonesia Ltd v ACCC (2012) 247 CLR 240

Re Jadewest 2024 Pty Ltd; Ex Parte Jadewest 2024 Pty Ltd [2024] WASC 165

The Siskina [1979] AC 210

HOWARD J:

1. The plaintiff says that its Wheel Loader caught fire on 21 April 2018 in the course of being operated.[1]

   [1] Affidavit of Rhianedd Llinos Kent filed 10 May 2024 (Ms Kent's first affidavit) [12].

2. On 30 August 2019, the plaintiff sent a letter of demand to Komatsu Australia Pty Ltd, putting it on notice that the plaintiff was investigating a potential claim against it and other entities in relation to the plaintiff's loss from the fire.[2]

   [2] Ms Kent's first affidavit [17].

3. The plaintiff says that it only identified Komatsu Mining Corporation (Komatsu US), a company incorporated in the United States of America, as a potential defendant to its claim on 11 April 2024.[3]

   [3] Ms Kent's first affidavit [37].

4. As the plaintiff considered the limitation period was due to expire on 21 April 2024, it issued 'protective proceedings' by filing a writ on 19 April 2024.[4]  The Writ was endorsed with a long 'Indorsement of Claim' and was allocated the number CIV 1438 of 2024 (CIV 1438 Writ).[5]

   [4] Ms Kent's first affidavit [38].

   [5] The CIV 1438 Writ was Attachment 'AB' to Ms Kent's first affidavit, page 5.

5. The CIV 1438 Writ was filed electronically. 

6. The CIV 1438 Writ named Komatsu US as the third defendant, and gave for it an address in Milwaukee, Wisconsin, in the United States of America.

7. No application pursuant to the Rules of the Supreme Court 1971 (WA) O 5 r 9 (Rules)[6] was made prior to the filing of the CIV 1438 Writ. 

   [6] Unless otherwise indicated all statutory references from here are to the Rules.

8. On the material before me, it appears that the plaintiff simply overlooked the requirement of O 5 r 9.

9. On 29 April 2024, the plaintiff's solicitors (based in Sydney, New South Wales) became aware that the CIV 1438 Writ had:

   1.not been issued; and

   2.been referred to the Principal Registrar because leave had not been sought under O 5 r 9.[7]

   [7] Ms Kent's first affidavit [39].

10. On 1 May 2024, the plaintiff's solicitors wrote to the Principal Registrar.[8] That letter did not refer to O 5 r 9 but did, correctly, note that O 10 had been amended on 9 April 2024.

    [8] Attachment 'T' to Ms Kent's first affidavit, page 368.

11. On 3 May 2024, a Registrar of this Court wrote to the plaintiff's solicitors and referred, amongst other things, to the requirement for leave under O 5 r 9.[9]

    [9] Attachment 'U' to Ms Kent's first affidavit, page 390.

12. There was some further correspondence between the plaintiff's solicitors and the Registrar's Chambers on 8 May 2024.[10]

    [10] Attachment 'W', page 393 and Attachment 'X', page 395 to Ms Kent's first affidavit.

13. On 8 May 2024 at 2.23 pm AWST, the associate to Registrar Whitbread stated that ' … the Writ will not be accepted for filing'.[11]

    [11] Attachment 'Z' to the Affidavit of Rhianedd Llinos Kent filed 16 May 2024 (Ms Kent's second affidavit), page 5.

14. On that same day, at 4.37 pm AWST, the associate to Registrar Whitbread stated by email:

    Please refer to the email sent to you at 2.23 pm [AWST] at the direction of Registrar Whitbread.  I can confirm that the Registrar has refused the Writ for filing.  The Supreme Court Registry has now contacted you to refund the filing fee.[12]

    [12] Attachment 'AA' to Ms Kent's second affidavit, page 7.

This application

1. On 9 May 2024, the plaintiff filed an Originating Motion in these proceedings (CIV 1541 of 2024). 

2. At the hearing of this application on 29 May 2024, the plaintiff handed up an Amended Originating Motion[13] which applied for orders:

   1.pursuant to O 5 r 9 [of the Rules] for leave to issue the Writ of Summons as of 19 April 2024 (being the Writ of Summons filed with the Court on 19 April 2024;

   2.alternatively, for orders that the Writ of Summons (being the Writ of Summons filed with the Court on 19 April 2024) be issued as of 19 April 2024 and that the action against the third defendant be discontinued nunc pro tunc.

   [13] That was subsequently filed on 12 July 2024.

3. The plaintiff relied on the affidavits of:

   1.Rhianedd Llinos Kent filed 10 May 2024 (Ms Kent's first affidavit);

   2.Rhianedd Llinos Kent filed 16 May 2024 (Ms Kent's second affidavit); and

   3.Rhianedd Llinos Kent filed 28 May 2024 (Ms Kent's third affidavit).

Applications for leave to issue under O 5 r 9

1. The Rules were significantly amended with effect from 9 April 2024 removing, generally speaking, the need to obtain leave prior to serving proceedings out of Australia.

2. That brought this Court's Rules largely into line with the rules on service out of Australia in the Federal Court of Australia, and the Supreme Courts of New South Wales, Queensland, Victoria and South Australia.

3. While the amendments made to the rules from 9 April 2024 were significant, it is plain that leave is still required to issue a writ which is to be served out of Australia. O 5 r 9 was not amended.

4. There is not an equivalent requirement in the rules of the other mentioned jurisdictions.

5. The plaintiff submitted here that if the subject matter of an action falls within, for example, the new O 10 r 5 (and so leave to serve is not required), then leave to issue under O 5 r 9 would be 'axiomatically be granted'.[14] 

   [14] Plaintiff's outline of submissions filed 22 May 2024 [34], [36].

6. The plaintiff submits that is supported by the decision in ReJadewest 2024 Pty Ltd [2024] WASC 165. With respect, I am not sure that the plaintiff's proposition is supported in such terms.

7. With respect, I am not sure that the plaintiff's proposition is supported in such terms.  On my reading of that decision, Hill J did not expressly consider the proposition advanced by the plaintiff. 

8. I consider that the plaintiff's submission, with respect, is too sweeping if it is intended to mean that it is the only potential consideration for the Court in an application under O 5 r 9.

9. As Pullin J (as he then was) observed in Kent v Lechmere Financial Corporation [2002] WASC 75 [5]:

   These important provisions [including O 5 r 9] are not mere procedural provisions which govern proceedings after they have been properly instituted. These are provisions which confer jurisdiction on the court.[15]

   [15] Obviously Pullin J was referring there, also, to O 10 r 1(1) as it was prior to 9 April 2024.

10. To allow the Court to consider it, an application for leave to issue a writ under O 5 r 9 generally would include:

    1.the proposed writ in respect of which leave is sought;

    2.an affidavit sufficiently and effectively verifying the claims in the writ;

    3.an identification by the applicant of the provision/s of O 10 within which the plaintiff says its claim comes; and

    4.any other matter which, as a party moving ex parte, the applicant is aware of and which may impact upon the exercise of the Court's discretion to grant leave.  For example, if the putative plaintiff was aware of a matter which would or may lead to the Court subsequently staying the action, that ought be brought to the Court's attention on the application.  By providing that example, I am not suggesting that is the only sort of matter which ought be brought to the Court's attention on an ex parte application. 

11. In my view, the discretion on an application under O 5 r 9 will be exercised having regard to the fact that the issuing of the writ remains a necessary step prior to its service which, in turn, establishes this Court's personal jurisdiction over a defendant.

12. Service is central to this Court's personal jurisdiction over a defendant and their amenability to this Court's writ.[16] 

    [16] Lipohar v R (1999) 200 CLR 485 [79] (Gaudron, Gummow & Hayne JJ) as approved in PT Garuda Indonesia Ltd v ACCC (2012) 247 CLR 240 [15] (French CJ, Gummow, Hayne & Crennan JJ); see also Obeid v R (2015) 91 NSWLR 226 [10] (Bathurst CJ, Beazley P & Leeming JA).

13. The following well-established matters may be noted about service out of Australia (of which O 5 r 9 remains a necessary step):

    1.in an action in personam, the rules of service of a writ (or other originating proceedings) define the limits of the Court's (personal) jurisdiction;[17]

    2.the authority of the Court to give leave to serve its process beyond its (territorial) jurisdiction has always been purely a creature of statute;[18] and

3.as a statutory extension of the Court's jurisdiction, the relevant rules must be precisely complied with.[19]

[17] Centurion Trust Company Pty Ltd v Director of Public Prosecutions (WA) (2008) 35 WAR 463 [99] (McLure JA with whom Buss JA agreed).

[18] ANZ Grindlays Bank v Fattah (1991) 4 WAR 296 at 302 l 20 (Anderson J) approving Bridge LJ in The Siskina [1979] AC 210, 240; see also Owen J in Australian Insurance Brokers Ltd v Hudig Langeveldt Pty Ltd [No 2] (1991) 7 WAR 343, 345 l. 50; and Kent v Lechmere Financial Corporation [2002] WASC 75 [5].

[19] Australian Insurance Brokers Ltd v Hudig Langeveldt Pty Ltd [No 2] (1991) 7 WAR 343, 345 l. 45; ANZ Grindlays Bank v Fattah (1991) 4 WAR 296, 302 l. 31.

1. So, I consider that the Court still needs to be satisfied that it is appropriate for leave to be granted to issue a writ under O 5 r 9. And, it will do so by taking into account at least the matters which should be included in an application identified in par [27] above. That is, there are considerations which come into the Court's consideration outside of whether the writ might be served without leave.

This application under O 5 r 9

1. Leaving aside the date of issue (to which I return to below), the plaintiff submits,[20] and I accept for this application, that the plaintiff pleads and asserts:

   [20] The plaintiff's outline of submissions filed 22 May 2024.

   [54]In the present case:

   1.the acts and omissions and the negligent misrepresentations about the operation and maintenance of the Wheel Loader were received and acted upon in Australia;

   2.the loss or damage to which the [Australian Consumer Law] and common law claims relates was sustained in Australia;

   3.both the [Australian Consumer Law] and common law claims are founded on acts or omissions in respect of which damage to the Wheel Loader was sustained wholly in Australia; and

   4.the causes of action under the [Australian Consumer Law] and for negligent misrepresentation arise in Australia.

   [55]Accordingly,

   1.the common law claim falls within both limbs of sub-rule 5(a) [of O.10];

   2.the [Australian Consumer Law] claim falls within one or more limbs of sub-rule 5(j); and

   3.both claims fall within sub-rule 5(n).

2. The causes of action contained in the Indorsement have been sufficiently and effectively verified by Ms Kent's first affidavit. 

3. Further, the plaintiff did not raise any matters with the Court which may adversely impact upon the exercise of the Court's discretion. 

4. So, subject to the question of the date of issue, I would make orders as sought by the plaintiff pursuant to O 5 r 9.

Date of the issue of the Writ

1. As noted, by its Amended Originating Motion, the plaintiff seeks orders for leave to issue the CIV 1438 Writ as of 19 April 2024.

2. The plaintiff says that O 2 r 1 applies here, with the result that the CIV 1438 Writ as filed was not a nullity but rather was an irregularity.

3. Order 2 r 1 provides as follows:

   Non-compliance with rules

   (1)Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything its done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.

   (2)Subject to subrule (3) the Court may, on the ground that there has been such a failure as is mentioned in subrule (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings, or any document, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.

   (3)The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these rules to be begun by an originating process other than the one employed. (emphasis added)

4. The plaintiff contends that there were two things 'left undone' or which failed to comply with the Rules for the purposes of O 2 r 1.

5. The plaintiff says that the first thing 'left undone', within O 2 r 1(1), was its failure to seek leave under O 5 r 9.

6. The plaintiff accepts that it ought to have obtained leave to issue the CIV 1438 Writ before it presented the writ (by filing it) for sealing.

7. The plaintiff also contends that there was a different, further thing 'left undone'; that is the (non-) affixing by the Court of its seal on the CIV 1438 Writ.[21]  As noted, the CIV 1438 Writ has not yet been issued.

   [21] Plaintiff's outline of submissions dated 22 May 2024 [43].

8. The plaintiff contends that 'failure' to seal or issue the CIV 1438 Writ should also be treated as an irregularity under O 2 r 1.

9. I will deal with this second contention first.

10. The issuing of a writ is dealt with by O 5 r 4 and r 6:

    4.Place of issue

    Every writ shall be issued out of the Central Office.

    …

    6.Sealing of writ

    Issue of a writ takes place upon its being sealed by the proper officer.

11. The plaintiff submits that the CIV 1438 Writ as filed was in the format of a Form 1,[22] and should have been issued pursuant to O 5 r 6, notwithstanding that it contained the Milwaukee, Wisconsin address of Komatsu US.

    [22] ts 10.

12. The plaintiff's submission was that the mere inclusion of a foreign address did not, of itself, require leave to issue the writ under O 5 r 9, and should not have caused the Court not to seal the CIV 1438 Writ.[23]

    [23] ts 15 - 16.

13. The plaintiff submitted that the CIV 1438 Writ 'looked like a Form 1 and should have been treated as a Form 1'.[24]

    [24] ts 13.

14. With respect, I do not accept this submission as to the second thing left 'undone'. It seems to me that the non‑sealing of the writ was within the Rules.  That is in the present circumstances where the plaintiff intended to serve Komatsu US outside of Australia and had, itself, wrongly used a Form 1, rather than a Form 3.[25] 

    [25] ts 13, 17.

15. In those circumstances, it appears that the Rules (including O 5 r 9) were followed and I do not consider it can be said the 'failure' to seal was within O 2 r 1(1).

16. I do not need to decide whether, in other circumstances, the inclusion of a foreign address on a Form 1 should prevent the Court issuing that Writ if leave had not been obtained under O 5 r 9.

17. I return now to the plaintiff's primary submission concerning its failure to seek prior leave under O 5 r 9.

18. In short, I accept that the plaintiff filing the CIV 1438 Writ without having obtained leave under O 5 r 9 was a thing left undone or a failure to comply with the Rules, relevantly within O 2 r 1(1).

19. My view is that the filing of the CIV 1458 Writ was relevantly 'in beginning or purporting to begin any proceedings … or in connection with any proceedings …' within O 2 r 1(1). 

20. The CIV 1438 Writ being filed without the requisite leave having been granted for it to be issued, means that the writ is an irregularity and not a nullity.

21. Although not put expressly pursuant to O 2 r 1(2), I have understood that the principal order sought - that the CIV 1438 Writ be issued as of 19 April 2024 - is sought as an 'order … dealing with the proceedings generally as [the Court] thinks fit' within O 2 r 1(2).

22. Secondly, the plaintiff contends that the Court could make the order sought in its inherent jurisdiction (in the sense of having power to make the order).[26]

    [26] ts 22.

23. The plaintiff, properly, brought to my attention the observations of Pullin J (as he then was) in Kent.  It may be thought that the observations are against the Court having power to make the order sought by the plaintiff in so far as it concerns the date of the issue.

24. His Honour noted that no leave pursuant to O 5 r 9 had been sought and, on that basis, the writ was defective, but not a nullity by reference to O 2 r 1: [21].

25. The plaintiff in Kent applied for an order under O 2 r 1(2): [22]. 

26. Pullin J stated in Kent [5] that:

    …The court, by these rules, has decided to supervise the extension of its jurisdiction and to ensure that only in appropriate cases will a writ issue for service outside the jurisdiction. Thus, O 5 r 9 requires an application to be made to the court for leave to issue a writ which is to be served out of the jurisdiction. The court has to grant leave before the proper officer seals the writ, whereby the writ 'issues' (see O 5 r 6). Order 5 r 9 does not permit an order nunc pro tunc.  Then, before service is effected, it is necessary to obtain the leave of the court to serve out of the jurisdiction, by showing that the subject-matter of the action falls within the description of one of the sub-paragraphs of O 10 r 1(1). (emphasis added)

27. Notwithstanding the emphasised observation, it may be noted that Kent did not turn on whether O 5 r 9 permitted an order nunc pro tunc.

28. Consistently with the observation emphasised above, Pullin J said there may be an argument that O 2 r 1 did not overcome irregularities flowing from non-compliance of O 5 r 9: Kent [23].

1. Pullin J however, assumed, without deciding, that the language of O 2 r 1 could overcome irregularities or defects flowing from non‑compliance with O 5 r 9: Kent [23].

2. On the (unusual) facts of that case, Pullin J would have been 'most reluctant to cure [the] irregularity' in that way: Kent [24].

3. The plaintiff submits that Pullin J gave no reasons for this observation and, relying on cases such as Checked-Out Pty v Eagle Eye InspectionsPty Ltd [1999] FCA 536 and Kaldas v Barbour [2017] NSWCA 275 [48], [323] - [325]: submitted that 'there is nothing in the nature of judicial power that disables its exercise nunc pro tunc'.[27]

   [27] Plaintiff's submissions filed 22 May 2024 [50].

4. The plaintiff further relied on the Court of Appeal decision in Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd (2007) 35 WAR 412 [48] where the Court said of O 2 r 1:

   This order was in the rules when they came into existence in 1971.  The order is in the same terms as the English O 2 r 1, which was introduced into the English rules in 1964. According to Lord Denning in Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729 at 735 - 736:

   This new rule does away with the old distinction between nullities and irregularities. Every omission or mistake in practice or procedure is henceforward to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice.

   Lord Denning said at page 734 that the new rule was enacted so as to 'get over the decision in Re Pritchard (Deceased) [1963] Ch 502'. In Metroinvest Ansalt v Commercial Union Cumming-Bruce LJ said at 518:

   It is quite clear from Harkness v Bell's Asbestos and Engineering Ltd … that the mischief at which the revision of the rules was aimed was to remove the distinction between irregular purported proceedings which were ab initio a nullity from irregular proceedings which were not void ab initio. The content of Order 2 is designed to enable the court, whenever faced with anything done or left undone in proceedings which constitutes a failure to comply with the requirements of the rules, to exercise the powers conferred by the rules without having first to decide whether the jurisdiction conferred by the rules applies at all.

   See also the discussion by Spender J in Re Zagoridis; Ex parte Q'Plas Group Pty Ltd (1990) 27 FCR 108 about the history of the rule.

5. The rule was also recently considered by the Court of Appeal in Chittleborough v Troy Group Pty Ltd [2024] WASCA 22 [29] and following.

6. The Court of Appeal in Chittleborough [31] (Mitchell and Vaughan JJA) stated that O 67A:

   … must be read with, and operates subject to, O 2 r 1 of the Rules. In reconciling the two provisions of the Rules, it is necessary to bear in mind the requirement in O 1 r 4B(2) that the Rules are to be construed so as best to ensure the attainment of the objects referred to in O 1 r 4B(1) of the Rules. Those objects include promoting the just determination of litigation'.[28]

   [28] See also, Chittleborough v Troy Group Pty Ltd [2024] WASCA 22 [34] - [36].

7. If Pullin J's above observation in Kent about the unavailability of a nunc pro tunc order were accepted on its face, it would cut significantly across the curative provisions in O 2 r 1, and the later statements of the Court of Appeal quoted above.

8. It would also have the effect of elevating leave under O 5 r 9 above the very many other provisions in various statutes and rules which provide for prior leave to be obtained before a proceeding is commenced, but in respect of which courts have consistently allowed such failures to obtain leave to be cured by an order nunc pro tunc.

9. Consistently with cases which have allowed nunc pro tunc orders in the commencement of proceedings, if one accepted Pullin J's observations at its face, one might be left with the anomalous situation where if the CIV 1438 Writ had been issued by the Court (without prior leave), that might have been cured by an order nunc pro tunc.  But not in the present circumstances where the CIV 1438 Writ was filed, but not issued, because of a failure to obtain prior leave.

10. Consistently with the intention of O 2 r 1(1), I read O 2 r 1(2) as being intended to have a wide, curative operation.  I consider that reading to be consistent, also, with the statements of the Court of Appeal.

11. I would not adopt the observation of Pullin J, with respect.  I consider that it is not necessarily consistent with later statements made by the Court of Appeal as to the scope of O 2 r 1.  And, significantly, it was not determinative of that case and, indeed, his Honour assumed (to the contrary of the observation) that there was such a power, which he would not have exercised.

12. Further, if the true explanation of the observation is that Pullin J did not consider that a failure to obtain leave within O 5 r 9 was within O 2 r 1(1), then I would respectfully disagree.

13. Having decided there is power under O 2 r 1(2), I do not need to decide whether there is also inherent power to make the order sought.  Without deciding, I would have been disposed to accept the plaintiff's submissions that there was such power.

Disposition

1. I will grant leave to issue the CIV 1438 Writ under O 5 r 9 as of 19 April 2024.

2. I would include 'as of 19 April 2024' as being an order under O 2 r 1(2). 

3. I consider that it is appropriate to do so when regard is had to the following:

   1.that prior leave was not obtained was by reason of an oversight only;

   2.the plaintiff applied for curative orders promptly;

   3.this is a case where leave under O 5 r 9 ought be granted and, I conclude, would have been readily granted prior to 19 April 2024;

   4.there appears to be no substantive injustice occasioned to the putative foreign defendant if the order is made; and

   5.in any event, the making of the order now does not shut out, to my understanding, the putative defendant (when served) from seeking to have the leave as granted discharged.[29]

   [29] See for example Micon Mining and Construction Products GmbH & Co Kg v Macmahon Mining Services Pty Ltd (2002) 58 WAR 334 [72].

4. Subject to hearing further from the plaintiff if necessary as to the precise form of them, I would make the following orders:

   1.leave be granted for the issue of the writ of summons filed with the Court on 19 April 2024 (Writ), save that the days for the entering of an appearance be amended to 42 days;

   2.the Court accept the Writ for filing;

   3.a proper officer of the Court issue the Writ;

   4.Orders 1 to 3 are made as of 19 April 2024; and

   5.the Writ be served on the third defendant with a copy of these Reasons.

5. Having decided that I will grant orders to the effect of those primarily sought by the Amended Motion, I have not considered the alternative order sought by the plaintiff.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

JR

Associate to Hon Justice Howard

16 JULY 2024