Ponggos v Caesarstone Ltd - [2023] WASC 427

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

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 and O 5 r 9 to issue a writ of summons for service on the first defendant (Caesarstone Ltd) outside of Australia.
Further, the plaintiff in the originating motion sought leave pursuant to O 10 r 1 to serve notice of the writ of summons dated 15 May 2023 on Caesarstone Ltd pursuant to O 11A. Notwithstanding that date, I have approached the plaintiff's application as though the originating motion intended to rely on a proposed writ dated 10 October 2023 which was annexed as KT1 to the first affidavit of Mr Taylor referred to below.
In support of the originating motion, the plaintiff initially relied on an affidavit of Keith Taylor, a solicitor with his solicitors, said to be made 11 November 2023. The affidavit was filed on 12 October 2023. I will assume that the affidavit was duly made on 11 October 2023 (Mr Taylor's first affidavit).
The application first came before me on 31 October 2023.
At the first hearing, the plaintiff said he relied upon O 10 r 1(1)(h) and r 1(1)(k) as the heads of jurisdiction pursuant to which he sought leave to serve out and to support the leave to issue the writ out of the jurisdiction.
At the hearing on 31 October 2023, counsel for the plaintiff was asked:
1.whether in light of the authorities, the plaintiff could bring himself within O 10 r 1(1)(h) where no other parties had been served, whether within or without the jurisdiction. I referred to Australian Insurance Brokers Ltd v Hudig Langeveldt [No 2] (1991) 7 WAR 343, 346 (Owen J); and Kent v MacLellan [2002] WASC 199 [26] (Pullin J); and
2.what evidence was relied upon to make good the allegation that there was a tort committed within the jurisdiction within O 10 r 1(1)(k).
The matter was adjourned to allow the plaintiff to consider his position.
On 6 November 2023 the plaintiff's solicitors sought the relisting of the matter urgently. That was said to be because the 'potential expiry of the statutory limitation period is on Thursday, 9 November 2023'.
With the letter seeking a relisting, there was also a proposed statement of claim also filed. The letter indicated that the plaintiff was no longer relying on O 10 r1(1)(h) and was now relying solely on O 10 r 1(1)(k).
The matter was relisted urgently after other Court commitments on the afternoon of 8 November 2023.
Service raises the question of this Court's personal jurisdiction over a defendant in the sense of a defendant's amenability to this Court's writ and the geographical reach of that writ.[1] As McLure JA (as she then was) summarised in Centurion Trust Company Pty Ltd v Director of Public Prosecutions (WA) [2008] WASCA 6 [99]:
A court's in personam jurisdiction over a defendant in civil proceedings derives from the fact of service of originating process on the defendant in the jurisdiction or by the invocation of the long arm provisions in O 10 of the Rules. Thus, in an action in personam the rules as to the legal service of a writ or other originating proceedings define the limits of the court's jurisdiction. (citations omitted).
[1] 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).

It is useful here to state some (trite) foundational principles which apply to this application:
1.the Court's personal jurisdiction over a defendant depends on service being duly effected;
2.generally, service is to be made personally within the Court's jurisdiction (in the sense of its geographical area or its 'law area');[2]
3.service out of the jurisdiction is a purely statutory extension of the Court's personal jurisdiction over defendants;
4.the 'heads of jurisdiction' available for service out are more confined than this Court's subject matter jurisdiction;
5.this Court's power to give leave to serve out is to be exercised narrowly and strictly in accordance with the Rules; and
6.the Court must be positively persuaded to grant leave to serve out of the jurisdiction.[3]
[2] See Lipohar v R (1999) 200 CLR 485 [79].
[3] See O 10 r 4(2) and Bombardier Inc v Avwest Aircraft Pty Ltd [2020] WASCA 2 [17] (Buss P, Beech & Pritchard JJA).
Further, the Court of Appeal in Micon Mining and Construction Products GMBH & Co KG v MacMahon Mining Services Pty Ltd [2022] WASCA 56 (Buss P, Beech and Vaughan JJA) said:[4]
Order 10 r 1 (1) and r 2 RSC must be read with O 10 r 4 RSC and O 5 r 9 RSC must be read with O 10 RSC. Putting aside the exception in O 10 r 1A(2) RSC, the court would not grant leave to issue a writ for service outside of Australia unless the court would also grant leave to serve the writ outside Australia. O 10 r 1(1) and r 2 RSC set out relevant conditions or gateways, one of which must be satisfied … before the discretion to grant leave under O 10 RSC is enlivened. Moreover, the discretion is not at large. In terms of O 10 r 4(2) RSC leave will not be granted unless it sufficiently appears that the case is a proper one for service out of jurisdiction under O 10 RSC. (original emphasis)
[4] Micon Mining and Construction Products GMBH & Co KG v MacMahon Mining Services [2022] WASCA 56 [67].
The plaintiff in such an application bears an onus on its ex parte application to show two things:
1. that its action is within a head, pigeonhole,[5] or gateway[6] which allows service out; and
2. that the Court should exercise its discretion; e.g. the plaintiff must show that the action is not likely to be subsequently stayed on forum non conveniens grounds or some other basis (such as being liable to summary dismissal).[7]
[5] Crawley Investments v Elman [2014] WASC 233 [45(2)(i)] (Edelman J).
[6] Micon Mining and Construction Products v MacMahon Mining Services [2022] WASCA 56 [67].
[7] Micon Mining and Construction Products v MacMahon Mining Services [2022] WASCA 56 [71].
Order 10 r 4(2) provides:
No such leave [under r 1 or r 2] shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one of service out of the jurisdiction under this Order.
As per O 10 r 4(2) quoted above, a Court should not grant leave unless it is positively persuaded that it should do so both as to the action falling within a head of service out, and in the exercise of its discretion.[8]
[8] Bombardier Inc v Avwest Aircraft [2020] WASC 2 [60]; Micon Mining and Construction Products v MacMahon Mining Services [2022] WASCA 56 [71].
The Court of Appeal in Micon Mining in [73] and [74] referred to the importance of the supporting affidavit and what was required of it. At [73] the Court said:
It is well established that:
1.The supporting affidavit should not be formal or perfunctory; it should depose to facts and not to unsupported conclusions.
2.the supporting affidavit must show both:
(a)the facts which bring the case within O 10 r 1(1) or r 2 RSC - ie the facts establishing the jurisdictional gateway relied on by the plaintiff; and
(b)any additional facts which are relevant to the exercise of the court's discretion. For example, the affidavit should address the merits of the claim and why the Supreme Court is contended to be an appropriate forum. (citations omitted)
The Court of Appeal in Micon Mining further stated, relevantly:
[76]The applicant for leave must establish that all of the claims in the proceedings fall within O 10 r 1(1) or r 2 RSC. The plaintiff will not be allowed to proceed with causes of action for which service outside Australia cannot be sustained under O 10 RSC. Nor can there be leave to amend a writ which has not been served outside Australia to add a cause of action which does not qualify under O 10 RSC. (original emphasis) (citations omitted)
See also Kent v Lechmere Financial Corporation [2002] WASC 75 [7] (Pullin J).
The relevant paragraphs of Micon Mining were brought to the attention of the plaintiff's solicitors before the second hearing before me. The plaintiff then filed a second affidavit of Mr Taylor made 7 November 2023 (Mr Taylor's second affidavit).
Mr Taylor's first affidavit deposes, without stating the source of the assertion or his belief in the same, that the plaintiff:
1.was employed as a stonemason in Western Australia from around 2009 until 2020;
2.was diagnosed with silicosis on about 11 December 2020;
3.used, handled or otherwise fabricated stone products branded 'Caesarstone'.
Mr Taylor deposes (in his first affidavit) that Caesarstone Ltd manufactured Caesarstone engineered stone products at factories in Israel and in the USA and then at [11]:
I understand and verily believe that [Caesarstone Ltd] has engaged in tortious conduct in the jurisdiction of Western Australia, which is detailed in the Writ of Summons enclosed at KT1.
The proposed writ which was KT1 to Mr Taylor's first affidavit alleged that the stone products which the plaintiff used, handled, manipulated and/or otherwise fabricated and installed were 'manufactured and/or supplied, or, alternatively, imported and/or supplied' by the defendants. The proposed writ then says that the plaintiff's injuries were caused by the defendants (assumedly all nine of them, including Caesarstone Ltd) breaching their common law duty of care and/or statutory duty of care.
Mr Taylor's first affidavit did not comply with O 37 r 6 in that almost all of the matters 'deposed to' were not, obviously, matters within his own knowledge. He did not state the source of his information, nor his belief in their truth.
Order 37 r 6(2)(c) allows an affidavit to contain statements of information or belief if the affidavit is made for the purposes of interlocutory proceedings. That provides an exception to O 37 r 6(1) which provides:
An affidavit must be confined to such facts as the deponent is able of his or her own knowledge to prove.
Further, O 37 r 6(3A) provides relevantly:
(3A)An affidavit containing statements of information or belief must set out the sources or grounds of that information or belief unless
(a)[which is not applicable here] or
(b)[which is not applicable here].
The rules in O 37 r 6 ought to be well known and are not difficult to apply.
In Antz Inya Pantz Coffee Pty Ltd v Muhl [2023] WASC 320 [14] - [18] I referred to the Court of Appeal decisions as to what was required of an affidavit to be admissible pursuant to O 37 r 6(2)(a) and the reasons for that - leaving aside that a requirement of the rules ought not be ignored in any event. I have not repeated that summary here.
The proposed statement of claim filed 6 November 2023 alleges against the first defendant:
6.At all times material to this proceeding, the first defendant -
(a)was a company incorporated in Israel;
(b)carried on the business of manufacturing and/or supplying, engineered stone products under the brand name 'Caesarstone';
(c)supplied those engineered stone products to the plaintiff's employers and the self employed contractors directly and/or through its wholly owned subsidiary, the first defendant and/or through the third defendant;
(d)supplied those engineered stone products to the second and third defendants for distribution to the Australian market;'
(e)controlled the operations of the second defendant including with respect to the marketing, sale and distribution of engineered stone products;
(f)knew, or ought reasonably to have known directly and/or through its wholly owned subsidiary, the second defendant, and/or through the third defendant -
(i)that those engineered stone products would be used, handled, manipulated and/or otherwise fabricated by stonemasons;
(ii)that the employers had not taken any measures to obviate or minimise the production, liberation, inhalation and ingestion of RCSD by its stonemasons engaged in the fabrication of those engineered stone products;
(iii)that the first and second defendants had not taken any measures to obviate or minimise the production, liberation, inhalation and ingestion of RCSD by stonemasons engaged in the fabrication of those engineered stone products;
(iv)of the matters pleaded in paragraphs 3, 4 and 5 herein.
…
16.At all material times and throughout the period that the Plaintiff performed the work duties for Unica Stone, Global Marble, Paz Stone, European Ceramics, Rolling Stone, and Challenger Cabinets, the Defendants, their employees, servants and/or agents owed the Plaintiff a common law duty of care and/or statutory duty of care to take reasonable care to avoid exposing the plaintiff for foreseeable risk of injury.
…
(b)The Defendants carried on the business of supplying, or alternatively the importing of, engineered stone products and therefore knew, or ought reasonably to have known, of the matters pleaded at paragraphs 3, 4 and 5 herein;
(c)The defendants knew, or ought reasonably to have known -
(i)that the engineered stone products would be used, handled, manipulated and/or otherwise fabricated by stonemasons, including the Plaintiff;
(ii)that the plaintiff's employers had not taken any measures to obviate or minimise the production, liberation, inhalation and ingestion of RCSD by its stonemasons engaged in the fabrication of the engineered stone products;
(iii)of the matters pleaded in paragraphs 3, 4 and 5 herein;
(d)With respect to the second defendant, it knew or ought reasonably to have known directly and/or through its wholly owned subsidiary, the first defendant, and/or through the fifth defendant -
(i)that the engineered stone products would be used, handled, manipulated and/or otherwise fabricated by stonemasons, including the Plaintiff;
(ii)that the plaintiff's employers had not taken any measures to obviate or minimise the production, liberation, inhalation and ingestion of RCSD by its stonemasons, including the Plaintiff, engaged in the fabrication of the engineered stone products;
(iii)that the first and second defendants had not taken any measures to obviate or minimise the production, liberation, inhalation and ingestion of RCSD by stonemasons, including the Plaintiff, engaged in the fabrication of the engineered stone products;
(iv)of the matters pleaded in paragraphs 3, 4 and 5 herein;
(e)The Defendants were in a position by which they had the power to provide training and/or instruction with respect to the safe performance of the plaintiff's duties and/or the safe use of their engineered stone products;
(f)The Defendants were in a position by which they had the power to provide warning as to the risks associated with the use, handling, manipulation and/or fabrication of their stone products and the inhalation and/or ingestion of RCSD;
(g)The Defendants designed and/or manufactured and/or imported and/or supplied the engineered stone for use at the workplace of each of the plaintiff's employers such that section 23(3) of the Occupational Safety and Health Act 1984 gave rise to a duty of care to ensure that adequate toxicological data in respect of the engineered stone and such other data relevant to the safe use, handling, processing, storage, transportation and disposal of the engineered stone was provided to the plaintiff's employers;
(h)The Defendants supplied the engineered stone for use at the workplace of each of the plaintiff's employers such that regulation 5.8 of the Occupational Safety and Health Regulations 1996 gave rise to a duty of care to ensure that a current Material Safety Data Sheet (MSDS) for the engineered stone was provided to the plaintiff's employers.
In Mr Taylor's second affidavit at [2] he deposed to his understanding as to the manufacture and supply of the engineered stone products under the brand name 'Caesarstone'. Again, [2] does not comply with O 37 r 6. The reference to manufacture read with the other evidence relied on by the plaintiff is to manufacture in Israel or the United States of America.
The reference in [2] of Mr Taylor's second affidavit to supply does not contain any evidence as to where it is said that Caesarstone Ltd supplied the stone product.
In Mr Taylor's second affidavit at [4] he deposed to a belief that the engineered stone products were supplied and distributed in Australia, either directly by Caesarstone Ltd or through the second and, or, third defendants. Again, [4] does not comply with O 37 r 6 in that it states a belief without a source.
In Mr Taylor's second affidavit at [5] he deposed to an understanding as to what the plaintiff will say as to receiving no instruction or training in the safe handling of the engineered stone products. As may be noted, there is no link between what Mr Taylor deposes to as to what the plaintiff will say and the first sentence of [5] which seeks to say something about the knowledge of Caesarstone Ltd.

Crucially, [6] and [7] of Mr Taylor's second affidavit say:
[6]At this time, the precise relationship between the first, second and third defendants in so far as the supply and distribution of these products is not known.
[7] Given the precise relationship between the first, second and third defendants is unclear at this time, I believe the plaintiff may be prejudiced if leave is not granted. This is because the plaintiff's evidence is that during his employment as a stonemason, around fifty per cent of his exposure to respirable crystalline silica dust occurred when he was working on Caesarstone products. Therefore, Caesarstone products may account for around half of his “dose” and potentially fifty per cent of any compensation. This would be lost to the plaintiff if he were not allowed to pursue the first defendant and it was later determined that responsibility for supply and distribution (amongst other things) of these products lay with the first defendant (and not the second or third defendant).
Quite properly, when counsel for the plaintiff was asked whether [6] and the first sentence of [5] effectively was the plaintiff saying that he did not know what, if anything, Caesarstone Ltd had done within the jurisdiction, he confirmed that to be the case. I consider that was most properly conceded.
So, notwithstanding the questions posed for the plaintiff at the hearing on 31 October 2023, the plaintiff's material comprises of two affidavits of Mr Taylor, chose to file the draft statement of claim (which is not effectively verified or supported in any material way) and to continue to rely on the writ which was KT1. Regrettably, that material does not meet what the Court of Appeal in Micon Mining at [73] stated was required.
The real difficulty for the plaintiff remains that which I identified at the first hearing on 31 October 2023: on what evidential basis does the plaintiff says that there was a tort committed by Caesarstone Ltd within the jurisdiction. There is no evidence, whether admissible or not, that Caesarstone Ltd supplied Caesarstone products into Western Australia (rather than supplying them to some parties outside of Australia where they were manufactured, say, in Israel or the USA).
Indeed [6] of Mr Taylor's second affidavit and the first sentence in [7] is precisely to that effect.
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.
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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.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JC
Associate to the Honourable Justice Howard
9 NOVEMBER 2023