Marley v In Vitro Technologies Pty Ltd - [2016] WADC 50

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MARLEY -v- IN VITRO TECHNOLOGIES PTY LTD [2016] WADC 50

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 10 MARCH 2016

DELIVERED : 13 APRIL 2016

FILE NO/S: CIV 3233 of 2013

BETWEEN: JOHN JOSEPH MARLEY
Plaintiff
AND
IN VITRO TECHNOLOGIES PTY LTD
Defendant
INTERNATIONAL STEEL CO SPA
Third Party

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia 1971 - Application to set aside service of Third Party notice - Sufficiency of evidence

Legislation:

Nil

Result:

Application successful

Representation:

Counsel:

Plaintiff:     No appearance
Defendant:     Mr J Ludlow
Third Party                   :     Mr M D Howard SC

Solicitors:

Plaintiff:     Slater & Gordon
Defendant:     HWL Ebsworth Lawyers
Third Party                   :     Corrs Chambers Westgarth

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

DEPUTY REGISTRAR HARMAN: The plaintiff claims damages for personal injury. In the statement of claim he asserts that the plaintiff (I take to be the defendant) was engaged by the plaintiff's employer to maintain a trolley in good working order. He pleads that in the process of placing the trolley '… into position the left hand rear wheel … dislodged, …'. In a context where he has pleaded that the defendant knew or ought to have known that the wheel was not properly secured and/or affixed and posed a danger he has provided particulars of the allegation of breach of duty of care that it was or ought to have been aware that the wheel of the trolley required tightening and that unspecified parts were defective.
On 30 April 2015 I take it that the court ordered as follows:
1.the defendant do have leave to issue third party proceedings against International Steel Co SpA in the form of its draft third party notice dated 24 April 2015; and
2.the defendant do have leave to serve the third party notice outside the jurisdiction.
By minute of consent order dated 3 July 2015 the words 'pursuant to the Hague Convention' were added to par 2.
The notice that issued expresses the defendant's claims as follows:
1.An indemnity against any liability the defendant has to the plaintiff in the action and its costs of defending the action, alternatively damages for breach of contract in respect of the written contract known as 'Distributorship Agreement' between International Steel Co SpA and the defendant dated 19 July 2007, and further or alternatively, damages for negligence;
2.Pursuant to the provisions of the Law Reform (Contributory Negligence and Joint Tortfeasors Contribution) Act 1947, an indemnity against or, alternatively, contribution towards, any sum which the plaintiff may recover against the defendant …
The third party's application under its conditional appearance is for an order that service of the third party notice in Italy be set aside. Although not the applicant, the defendant carries the onus of persuasion that the order of the 30 April 2015 as amended should stand.
The issue for consideration is whether the defendant's claims are within the scope of O 10 r 1(1) of the Rules of the Supreme Court 1971. By that rule the court has expressed the scope of its extra-territorial jurisdiction. Having regard to the terms of the defendant's notice, the relevant parts of the rule are as follows:
The Court may grant leave to serve a person outside Australia with a writ, or notice of a writ, that begins an action if –
…
(f)the action is brought in respect of a breach committed within the jurisdiction of a contract wherever made and irrespective of the fact, if such be the case, that the breach was preceded or accompanied by a breach committed out of the jurisdiction that rendered impossible the performance of so much of the contract as ought to have been performed within the jurisdiction;
…
(k)the action is founded on a tort committed within the jurisdiction.
The material upon which the defendant relies is contained in two affidavits of its solicitor. In his first affidavit he states that he has been instructed that the trolley had been designed and manufactured by the third party in Italy for supply in Australia. According to O 37 r 6 of the Rules of the Supreme Court the content of an affidavit must be confined to such facts as the deponent is able to prove. There is no deposition that the content of either of the affidavits is within the solicitor's knowledge. As there is no other deposition upon which the defendant relies, there is no evidence to support any of the solicitor's contentions.
The deponent identifies a document titled 'Distributorship Agreement' that he asserts is between the defendant and the third party which provides the terms of supply of products by the third party to the defendant. I make the same observations. There is no evidence that any particular trolley had been supplied by the third party to the defendant under the distributorship agreement. Regardless, he proceeds to draw upon Article 7 of that agreement which provides that products so supplied would be fit for purpose as represented; refers to the detail of the incident in the plaintiff's claim and to a report of a consultant mechanical engineer from which he draws conclusions expressed at par 15 of the affidavit as follows:
Based on the content of Mr Bailey's report, it is the Defendant's position that:
(a)The failure of the Trolley was a defect in the weld applied by SteelCo in the manufacture of the Trolley;
(b)The Trolley was supplied by SteelCo to the Defendant subject to the warranty that it was fit for purpose;
(c)The manufacturing defect was concealed and not reasonably identifiable to the defendant or its servants; and
(d)Any liability in negligence as a result of the defective manufacture of the trolley should rest with SteelCo.
Patently the deponent has drawn upon the content of the report of the consulting mechanical engineer to justify those assertions. The content of the report is not evidence: the report is simply identified and attached to the affidavit. Depending upon the view one takes of the nature of the proceeding, at best, had the content been qualified by the deponent it may be taken as admissible hearsay; however regardless the evidentiary questions, for present purposes the utility of parts of its content would be compromised by the fact its author did not examine the relevant trolley and because is not clear whether the wheel unit securing bolt and bush he examined were the relevant wheel unit securing bolt and bush.
Accordingly each of the propositions at par 15 is unsupported.
In his second affidavit at par 19 the solicitor states as follows:
If:
(a)the plaintiff correct in alleging that the trolley was dangerous because its left hand rear wheel was not properly affixed and therefore posed a danger to her [sic], and
(b)if Mr Bailey is correct in his view to the effect that the defendant would not have been able, in the absence of appropriate maintenance instructions, to identify a potential weakness or defect in the weld securing the wheel assembly to the trolley,
then it is my view that the circumstances were such that the third party was required by Article 5 to endeavour, of its own volition to provide full technical support to the defendant, including to its representatives in Western Australia, to enable the defendant to identify, and arrange for the rectification of, the improper affixation of the left hand wheel to the trolley.
In effect par 19 is nothing more than a submission that the third party breached the terms of the contract by its failure to communicate however there is no evidence that there had been no relevant communication.
According to O 10 r 4(2) the standard to be applied in considering the discharge of the onus in the application is that there be sufficient to establish the case as proper for service out of the jurisdiction. Because it is clear that the defendant carries that ouns it ought be difficult for the defendant to justify the existing order by putting conjecture, belief and inference where evidence is required. For present purposes there is little of utility in either of the affidavits filed by the defendant. It is noteworthy that the deponent now believes that the defendant has a good cause of action against the third party: that requirement of r 4(1) had not been met before the order was made.
The third party has filed an affidavit of its solicitor and of Fabio Zardini, who deposes that he is its founder, managing director and technical director. There is nothing in those affidavits that assists the defendant in making out its case in the application. Indeed the third party drew on the terms of Zardini's affidavit to put the case that the particular trolley had been supplied to defendant in Italy.
At the hearing the submissions of the defendant countenanced breach of contract by reference to two provisions of the distribution agreement. The first for supply of a trolley of which the third party had warranted fitness for purpose, the second for the failure of the third party to communicate with the defendant in relation to the condition of the relevant trolley.
I have already recorded that there is no evidence relating to the process of supply of the trolley. In order for the defendant to rely upon the provision of jurisdiction by O 10 r 1(f) it would need to provide evidence that some part of the process of supply took place within the State of Western Australia.
As to the contention that the third party breached the agreement by its failure to initiate a process of communication there is no evidence of any such failure. Beyond that observation, the proposition put by the defendant would have the defendant located in the State of Western Australia and the third party, in Italy and that the failure of the third party to initiate relevant communication would amount to a breach of agreement located by reference to the location of the defendant. In my opinion the location of such a failure would not be ascertained along the same line of analysis that relates to a process of communication; but rather that the contended breach would be located at the place where the party obliged to communicate had been mute. Accordingly had there been evidence that could found such breach, I would not consider that the result would engage O 10 r 1(f).
Turning to the defendant's submissions relating to the existence of a duty of care and its breach, it maintained that the supply of the trolley to the defendant was the act of supply to the Western Australian market. There is no evidence upon which it could found that proposition.
As for the terms of par 1 of the Third Party Notice, I observe that there is no evidence that allows for identification of any entitlement of the defendant to the benefit of an indemnity. There was no particular submission addressed in relation to that claim.
Obviously a claim under the Law Reform (Contributory Negligence and Joint Tortfeasors Contribution) Act 1947 would be founded upon the alleged commission of a tort. The significance of the claim at par 2 of the defendant's notice is that recourse to the benefit of provisions of the Act is not within the scope of jurisdiction established by O 10 r 1(1).
Regardless any other defect in the defendant's case to sustain the order for leave, I am satisfied that the first alternative claim under par 1 and the claim under par 2 of the notice are not supported by the terms of O 10 r 1(1).
The defendant contended that it remained open to the court to exercise its remedial power in order to establish opportunities for the defendant that may have been utilised at the hearing on 30 April 2015.
It is my understanding that the issues raised in the application by the third party are the same as those that precipitated its conditional appearance. It is not now open to the defendant to seek to have recourse to the remedial power of the court to cure what now may be considered to be flaws in earlier proceedings. In any event the defendant did not actually so apply.
It follows that within the context of the application the defendant has not established that it has any sufficient case within the scope of O 10 r 1(1)(f) or r 1(1)(k) such that it would be proper for the order of 30 April 2015 to stand. Regardless the order ought be set aside as the defendant's notice exceeds the scope of jurisdiction provided by O 10 r 1(1).
The applicant applied to extend time to apply. The evidence upon which it relied was that its solicitors had commenced the process of making the application prior to 4.00 pm on the last day for filing such an application but that their various attempts to lodge the application within time failed. The position adopted by the defendant in relation to that application was that if the third party was successful in the substantive application it would not oppose the extension.