JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: PONGGOS -v- CAESARSTONE LTD [2023] WASC 427
CORAM: HOWARD J
HEARD: 8 NOVEMBER 2023
DELIVERED : 9 NOVEMBER 2023
FILE NO/S: CIV 2168 of 2023
BETWEEN: RONALD ESELLANA PONGGOS
Plaintiff by ex parte
AND
CAESARSTONE LTD
First Defendant
CAESARSTONE AUSTRALIA PTY LTD
Second Defendant
CARSILSTONE PTY LTD
Third Defendant
WK MARBLE AND GRANITE PTY LTD
Fourth Defendant
COSENTINO AUSTRALIA PTY LTD
Fifth Defendant
LAMINEX GROUP PTY LTD
Sixth Defendant
PORTOFIINO PTY LTD
Seventh Defendant
J H WILBERFORCE PTY LTD
Eighth Defendant
Q STONE PTY LTD
Ninth Defendant
Catchwords:
Practice and procedure - Ex parte application for leave to issue and then serve a writ outside Australia - Whether requirements were satisfied for O 10 r 1(1)(h) or (k) - Whether each cause of action was within a head of jurisdiction for leave to serve out - Plaintiff then only relied on O 10 r 1(1)(k) - Adequacy of evidence relied upon - Affidavits deficient - Jurisdiction to grant under O 10 r 1(1)(k) not enlivened - Application dismissed
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff by ex parte | : | Mr A J Stewart |
| 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 |
Solicitors:
| Plaintiff by ex parte | : | Stephen Browne Lawyers (South Perth) |
| First Defendant | : | In person |
| Second Defendant | : | In person |
| Third Defendant | : | In person |
| Fourth Defendant | : | In person |
| Fifth Defendant | : | In person |
| Sixth Defendant | : | In person |
| Seventh Defendant | : | In person |
| Eighth Defendant | : | In person |
| Ninth Defendant | : | In person |
Case(s) referred to in decision(s):
Antz Inya Pantz Coffee Pty Ltd v Muhl [2023] WASC 320
Australian Insurance Brokers Ltd v Hudig Langeveldt [No 2] (1991) 7 WAR 343
Bombardier Inc v Avwest Aircraft [2020] WASC 2
Bombardier Inc v Avwest Aircraft Pty Ltd [2020] WASCA 2
Centurion Trust Company Pty Ltd v Director of Public Prosecutions (WA) [2008] WASCA 6
Crawley Investments v Elman [2014] WASC 233
Glendalough Holdings Pty Ltd v Summit Chemicals Pty Ltd [2003] WASC 183
Goldman Sachs International v Novo Banco SA [2018] UKSC 34
ICI Australia Operations Pty Ltd v Kiddle-Graviner Ltd [1991] WASCA 65
Kent v Lechmere Financial Corporation [2002] WASC 75
Kent v MacLellan [2002] WASC 199
Lipohar v R (1999) 200 CLR 485
Micon Mining and Construction Products GMBH & Co KG v MacMahon Mining Services Pty Ltd [2022] WASCA 56
Obeid v R (2015) 91 NSWLR 226
HOWARD J:
(This judgment was delivered extemporaneously on 8 November 2023 and has been lightly edited for clarity from the transcript.)
By an originating motion dated 12 October 2023, the plaintiff sought leave pursuant to O 5 r 2…
Continue reading Ponggos v Caesarstone Ltd
Sign in free to access the full text
- AGLC
- Ponggos v Caesarstone Ltd [2023] WASC 427
- Case
- [2023] WASC 427
- Decision Date
CaseChat Overview and Summary
The court found that the plaintiff's affidavits were deficient and did not provide the necessary evidential basis to positively persuade the court that the jurisdictional requirements were met. The plaintiff had only relied on rule 10(1)(k) for leave to serve out, which pertains to cases involving property or things situated outside Australia. However, the plaintiff's claims were not based on property or things but on personal injury and defective products. Moreover, there was no evidence that any relevant steps or omissions occurred within Western Australia, further undermining the jurisdictional basis. The court held that the plaintiff had not satisfied the jurisdictional gateway for leave to serve out and dismissed the application.
The court's decision hinged on the plaintiff's failure to provide adequate evidence to support the jurisdictional basis for leave to serve out. The affidavits were insufficient to establish a plausible evidential basis for the jurisdictional gateway relied upon. The court emphasised that leave to serve out is a statutory extension of the court's jurisdiction and that unless the plaintiff positively persuades the court of the proper cause of action within one of the heads of jurisdiction, the court's discretion to allow service is not activated. The application was dismissed, leaving the plaintiff to consider their options in light of the statutory limitation period and potential loss of chance.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Further, there is no evidence, whether admissible or not, that Caesarstone Ltd had not taken any of the steps (or omissions) said to found the cause of action - within Western Australia: see, eg, ICI Australia Operations Pty Ltd v Kiddle-Graviner Ltd[1991] WASCA 65; and Glendalough Holdings Pty Ltd v Summit Chemicals Pty Ltd [2003] WASC 183 [32] (McKechnie J). Counsel for the plaintiff took me to [133] of Micon Mining to submit that the difficulties for the plaintiff that I have identified might effectively be left to a contested hearing (rather than an ex parte hearing) based on what the Court of Appeal described as a three-limbed test from the Goldman Sachs[9] decision which it quoted at [133] of the Micon Mining judgment. [9] Goldman Sachs International v Novo Banco SA [2018] UKSC 34 (Lord Sumption JSC). The difficulty remains, in my view, that on an ex parte hearing, as I understand the authorities, whether it is expressed as the Court having to be positively persuaded or the plaintiff needing to establish a "plausible evidential basis" for the jurisdictional gateway or head relied upon, the plaintiff cannot meet that standard on this application. Counsel for the plaintiff has submitted that is a problem a plaintiff in this plaintiff's position would regularly face. In exchanges with the bench, it was accepted that one possible way the plaintiff may have approached this difficulty was by pre-action discovery against parties within Australia. Counsel for the plaintiff submitted that was not a course regularly adopted by a plaintiff in personal injury matters. Without expressing a view as to that, I can readily understand why it might be that a plaintiff may not wish to go down that route. As is obvious from the well established principles from the authorities, leave to serve out is a statutory extension of this Court's jurisdiction. Unless a plaintiff positively persuades the Court that they have proper cause of action within one of the heads of jurisdiction, this Court's discretion to allow service is not enlivened. Leaving aside any problem with their non‑compliance with O 37 r 6, Mr Taylor's two affidavits are, with respect, manifestly deficient in that they did not, for present purposes, contain any evidential basis on which the plaintiff could positively persuade the Court that his claim was within O 10 r 1(1)(k): see Micon Mining [73] quoted above. 14 14 14 The result is that I must dismiss the plaintiff's application by applying what ought to be well known principles which properly can be described as trite. Mr Taylor's second affidavit in [7], as quoted above, referred to the prejudice he believes the plaintiff may suffer if leave is not granted. That a plaintiff having retained solicitors to seek redress for a serious illness might find themselves in such a position is to be deplored. Regrettably, if I am correct and if the plaintiff now has a difficulty with a statutory limitation period, and recovering against Caesarstone Ltd, it will now be a matter for the plaintiff's solicitors to advise him as to his options as to that loss of chance and, may be, and I express no view on it, a matter for the plaintiff's solicitors' insurer in due course.