Re Veolia Water Technologies (Australia) Pty Ltd

[2025] WASC 46

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   RE VEOLIA WATER TECHNOLOGIES (AUSTRALIA) PTY LTD; EX PARTE VEOLIA WATER TECHNOLOGIES (AUSTRALIA) PTY LTD [2025] WASC 46

CORAM:   LUNDBERG J

HEARD:   18 FEBRUARY 2025

DELIVERED          :   18 FEBRUARY 2025

FILE NO/S:   CIV 1152 of 2025

EX PARTE

VEOLIA WATER TECHNOLOGIES (AUSTRALIA) PTY LTD

Plaintiff

AND

DESALITECH INC.

Defendant

Catchwords:

Practice and procedure - Ex parte application for leave to issue a writ of summons for service outside Australia - Leave required pursuant to Order 5 Rule 9 of the Rules of the Supreme Court 1971 (WA) - Leave granted

Legislation:

Rules of the Supreme Court 1971 (WA), O 5 r 9, O 10 r 5

Result:

Leave granted

Category:    B

Representation:

Counsel:

Plaintiff	:	R R Joseph
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Lander & Rogers
Defendant	:	No appearance

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

Citic Pacific Mining Management Pty Ltd v Joy Global (Aus) Surface Pty Ltd [2024] WASC 254

Micon Mining and Construction Products GmbH & Co KG v Macmahon Mining Services Pty Ltd [2022] WASCA 56; (2022) 58 WAR 334

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

Table of Contents

A.      Introduction

B.       The requirement for leave

C.      Factual background

Contractual instruments

The chemical spill incident

Proposed claims

D.      Disposition

E.       Conclusion and orders

LUNDBERG J:

(This decision was delivered ex temporaneously on 18 February 2025 and has been edited to correct matters of grammar, add headings, and include complete references.)

A.     Introduction

1. This is an ex parte application for leave to issue a writ of summons pursuant to O 5 r 9 of the Rules of the Supreme Court 1971 (WA) (RSC), which has been brought on for hearing in urgent circumstances.  The rule provides as follows:

   9.Writ for service outside Australia, leave to issue needed

   A writ for service outside Australia shall not be issued without the leave of the Court.

2. The urgency arises in light of the plaintiff's apprehension that a limitation period applicable to one of its asserted causes of actions may expire on 22 February 2025.[1]

   [1] The supporting affidavit requested that the matter be heard and determined before 19 February 2025.

3. The application has been brought by originating motion with a supporting affidavit sworn by a partner of the law firm which represents the plaintiff's interests.  The deponent is Ms Colleen Palmkvist, who is a partner of the firm Lander & Rogers, based in Sydney.  I refer to her affidavit affirmed on 13 February 2025 (Palmkvist Affidavit), to which the proposed writ of summons is attached (Proposed Writ). 

4. The Proposed Writ is Attachment CP-1 to the Palmkvist Affidavit.  The writ has been indorsed with a detailed statement of claim settled by counsel. 

5. Ms Palmkvist deposes in her affidavit to the factual background to the proceedings, and verifies her belief in the proper and factual basis for the claims based on information provided to her by a representative of the plaintiff, Ms Miriam Singh.[2]  A number of supporting documents have been attached to the affidavit.

   [2] Palmkvist Affidavit [10].

6. The plaintiff asserts several causes of action against the defendant, which is a company organised under the laws of Delaware and registered under the laws of Massachusetts, in the United States of America.[3] 

   [3] Palmkvist Affidavit [11] – [13], Attachment CP-3 and Attachment CP-4.

7. The plaintiff and its solicitors have been in communication with the representatives for the defendant, both in the United States and in Australia, for some years now, regarding these matters.  It appears the solicitors in Western Australia who represent the defendant have informed the plaintiff they do not hold instructions to accept service, which, when viewed in light of the apprehended limitation period, appears to have been the immediate catalyst for the filing of this urgent application.[4]

   [4] Palmkvist Affidavit [16] – [22].

B.     The requirement for leave

1. The rules of this Court were amended with effect from 9 April 2024 to replace Order 10 and to remove the need to obtain leave prior to serving proceedings out of Australia.[5] However, the requirement under O 5 r 9 RSC for leave to be obtained to issue a writ which is to be served out of Australia has been maintained under the rules. 

   [5] Supreme Court Amendment Rules 2024 (WA).

2. Accordingly, in order to issue the Proposed Writ, which is to be served outside Australia, the plaintiff requires leave pursuant to O 5 r 9 RSC. I will approach the grant of leave in this regard by reference to the matters identified in Citic Pacific Mining Management Pty Ltd v Joy Global (Aus) Surface Pty Ltd.[6]  The matters identified by Howard J in that decision, which in essence identify the material which should be included in or addressed by the application by for leave, are as follows:[7]

   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.

   [6] Citic Pacific Mining Management Pty Ltd v Joy Global (Aus) Surface Pty Ltd [2024] WASC 254 (Howard J) (Citic Pacific Mining).

   [7] Citic Pacific Mining [27] (Howard J).

3. As to the third point identified above, those provisions are the various circumstances or gateways which are described in O 10 r 5 RSC (which forms part of div 3 relating to service outside Australia), from par (a) to par (s) thereof, which remain relevant to the assessment of leave under O 5 r 9 RSC.[8]  Those paragraphs set out the circumstances in which an originating proceeding may be served outside Australia without leave.

   [8] Micon Mining and Construction Products GmbH & Co KG v Macmahon Mining Services Pty Ltd [2022] WASCA 56; (2022) 58 WAR 334 [52] – [53] (Buss P, Beech and Vaughan JJA); Re Jadewest 2024 Pty Ltd; Ex Parte Jadewest  2024 Pty Ltd [2024] WASC 165 [16] (Hill J).

C.     Factual background

1. It is convenient at this point to explain the factual background to the proceedings, the substance of which is found in the Palmkvist Affidavit and in the terms of the Proposed Writ.  Given the nature of the present application, the following summary of the factual background is necessarily and appropriately brief.

Contractual instruments

1. The claims which are sought to be agitated are connected with a lithium project located south of Perth, which is owned and operated by Talison Lithium Australia Pty Ltd (Talison Lithium Australia).[9]  This project is referred to as the Greenbushes Project. 

   [9] Palmkvist Affidavit [6]; Proposed Writ [3] – [14].

2. On or about 18 October 2017, it is pleaded that the plaintiff and Talison Lithium Australia entered into an agreement by which the plaintiff agreed to design and supply a water treatment plant (Talison Contract).[10] 

   [10] Proposed Writ [8].

3. It is further pleaded that the plaintiff and the defendant were parties to a commercial agreement (Desalitech Contract)[11] pursuant to which the defendant was responsible for the design, supply, installation and commissioning of a closed-circuit desalination reverse osmosis system (conveniently abbreviated to CCD-RO system).[12]  The Desalitech Contract was entered into on or about 31 October 2017, and incorporates various documents and schedules.  Not all of the terms of the contract have been included, but my assessment is that the additional portions of the contract are not material to the question of leave.

   [11] Palmkvist Affidavit, Attachment CP-2.  The instrument is entitled 'Talison Lithium - Greenbushes (WA) Design & Supply of WTP (Li removal)'.

   [12] Proposed Writ [9] – [14].

4. The CCD-RO system was to form part of the water treatment plant which the plaintiff had contracted to supply to Talison Lithium Australia.  In order to be operable, the plaintiff pleads that the part of the CCD-RO system described as the 'Primary RO ski #1' must be connected to a hydrochloric acid dosing line (Dosing Line).[13]  Further, it is pleaded that the Dosing Line was required to be a rigid pipe.[14]

   [13] Proposed Writ [16].

   [14] Proposed Writ [17].

5. Counsel for the plaintiff has drawn my attention to the fact the Desalitech Contract is governed by the laws in force in the State of New South Wales.  In this regard, I have been referred to item 9 of Part A of the Annexure to the General Conditions.

6. Subsequent to the Desalitech Contract being executed, and in accordance with it, the plaintiff alleges that it issued a purchase order on 22 February 2019 (Purchase Order) to the defendant in relation to the defendant's obligation to provide commissioning engineers to supervise the commissioning of the CCD-RO system.[15]

   [15] Proposed Writ [12].

7. By reason of the Desalitech Contract and the Purchase Order, the plaintiff asserts through the pleading that the defendant owed it various duties and was subject to various obligations.[16]  Additional duties have been pleaded by the plaintiff, to exercise reasonable care, skill and diligence.[17]

The chemical spill incident

[16] Proposed Writ 13] – [14].

[17] Proposed Writ [30].

1. The plaintiff pleads that a chemical spill occurred at the Greenbushes Project on or about 14 February 2020.  It is pleaded that the Dosing Line became detached from the tube connection compression fitting assembly,[18] which led to the spill.

   [18] Proposed Writ [20] – [21].

2. The plaintiff asserts that the Dosing Line became detached because 'the design of the Dosing Line had been changed from a rigid pipe to a flexible tube and, or alternatively, the Dosing Line had been incorrectly installed by the Desalitech Commissioning Engineer'.[19] 

   [19] Proposed Writ [21].

3. There is material in the Palmkvist Affidavit which indicates that the spill of hydrochloric acid on the site occurred for around 3 hours and some 135 litres of acid escaped, causing damage.[20]

Proposed claims

[20] Palmkvist Affidavit, Attachment CP-5.

1. The Proposed Writ asserts a claim in negligence against the defendant, which is asserted to have occurred wholly or partly in Western Australia.[21]  The allegedly negligent conduct is also pleaded to have caused damage to be sustained wholly in Australia, namely loss and damage to the water treatment plant forming part of the Greenbushes Project which is located in this State.

   [21] Proposed Writ [29] – [36].

2. The Proposed Writ also asserts a claim for breach of contract.[22]  The plaintiff contends the Desalitech Contract, which is said to have been breached, was in part to be performed in Western Australia given the contractual provisions contemplated the design, supply and commissioning of the CCD-RO system in connection with the project. 

   [22] Proposed Writ [26] – [28].

3. Finally, a claim pursuant to the Australian Consumer Law is pleaded, alleging that the defendant made representations to the plaintiff, which it relied upon in Australia and which caused damage to the plaintiff in Australia.[23]

   [23] Proposed Writ [37] – [46].

D.     Disposition

1. The task of the Court in considering an application pursuant to O 5 r 9 RSC is to satisfy itself as to whether the requirements for the grant of leave, in order to issue a writ to be served beyond the territorial jurisdiction of the Court, have been demonstrated by the plaintiff.

2. As noted by Howard J, this rule represents a statutory extension of the Court's jurisdiction, and so there must be precise compliance with the requirements of the rules.[24] 

   [24] Citic Pacific Mining [30] and the authorities cited by Howard J at footnote 19.

3. At this stage of the proceeding, the Court is not required to form any view as to the ultimate merits of the proposed claims, provided the Court has the proper material before it to address the matters I have identified above. 

4. Counsel for the plaintiff has addressed the Court on these matters, drawing the Court's attention to the terms of the Proposed Writ and the indorsed statement of claim (which I had the opportunity to review before the hearing), to the verification of the claims in the supporting affidavit, and then identifying the provisions within O 10 r 5 RSC upon which the plaintiff relies. I am satisfied as to those matters, and will return to them below.

5. The particular paragraphs within O 10 r 5 RSC upon which the plaintiff relies are as follows:

   5.When allowed without leave under Division

   An originating process may be served outside Australia without leave in the following cases —

   (a) when the claim is founded on a tortious act or omission —

   (i) which was done or which occurred wholly or partly in Australia; or

   (ii) in respect of which the damage was sustained wholly or partly in Australia;

   (b)  when the claim is for the enforcement, rescission, dissolution, annulment, cancellation, rectification, interpretation or other treatment of, or for damages or other relief in respect of a breach of, a contract which —

   (i)  was made or entered into in Australia; or

   (ii) was made by or through an agent trading or residing in Australia; or

   (iii) was to be wholly or in part performed in Australia; or

   (iv) was by its terms or by implication to be governed by Australian law or to be enforceable or cognisable in an Australian court;

   …

   (j) when the claim arises under an Australian enactment and —

   (i)    any act or omission to which the claim relates was done or occurred in Australia; or

   (ii) any loss or damage to which the claim relates was sustained in Australia; or

   (iii)   the enactment applies expressly or by implication to an act or omission that was done or occurred outside Australia in the circumstances alleged; or

   (iv)  the enactment expressly or by implication confers jurisdiction on the Court over persons outside Australia (in which case any requirements of the enactment relating to service must be complied with);

6. Further, counsel for the plaintiff has identified one aspect of the matter which might bear on the exercise of the Court's discretion to grant the leave sought.  That is, counsel has highlighted the term of the Desalitech Contract which provides that it is governed by the law of the State of New South Wales.  Counsel observed that the defendant might submit the proper forum is New South Wales, rather than Western Australia.  In the broader circumstances of the case, bearing in mind the factual connections to Western Australia, this consideration is not a material matter in my view which would preclude the grant of leave.  I accept the force of the submissions which were advanced by counsel for the plaintiff in this regard.

7. In my view, when read together, the detailed affidavit and the terms of the Proposed Writ adequately set out the plaintiff's proposed claims and the connections to this jurisdiction which are necessary in order to engage the sub-rules under O 10 r 5 RSC (for the purposes of assessing the grant of leave under O 5 r 9 RSC).

8. In general terms, it can be said that the claims which are articulated in the Proposed Writ, arising from or out of the commercial arrangements between the plaintiff and the defendant for the design, supply, installation and commissioning of the CCD-RO system as part of the Greenbushes Project, have a close connection with this State.  I recognise that at least some of the design aspects undertaken by the overseas defendant are likely to have taken place outside Australia, of course.

9. Addressing the matter at a more granular level for the purposes of O 10 r 5 RSC (and thus O 5 r 9 RSC), having regard to the Palmkvist Affidavit and the formulation of the claims in the Proposed Writ:

   (a)I accept that the plaintiff's claim in negligence satisfies both limbs of O 10 r 5(a), being a claim founded on tortious acts or omissions which occurred wholly or partly in Australia, and in respect of which the damage was sustained wholly or partly in Australia. Satisfaction of either limb is sufficient to engage the sub-rule.

   (b)As to the plaintiff's claim under the Desalitech Contract, I accept that the claim satisfies O 10 r 5(b)(iii) and r 5 (b)(iv).

   (c)As to the plaintiff's claim pursuant to the Australian Consumer Law, which is an 'Australian enactment' for the purposes of the rules, I accept that claim satisfies one or more of the limbs to O 10 r 5(j) RSC, and specifically O 10 r 5(j)(ii) RSC.

E.     Conclusion and orders

1. I am accordingly satisfied leave should be given in terms of the originating motion and the minute of proposed orders filed by the plaintiff.  I will hear from counsel as to the precise form of the orders which are sought.

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

IR

Associate to the Hon Justice Lundberg

18 FEBRUARY 2025