| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : THOMSON -v- RAUTE CORPORATION [2010] WADC 173 CORAM : PRINCIPAL REGISTRAR GETHING HEARD : 10 NOVEMBER 2010 DELIVERED : 29 NOVEMBER 2010 FILE NO/S : CIV 3208 of 2009 BETWEEN : IAN JOHN THOMSON Plaintiff
AND
RAUTE CORPORATION
Defendant
Catchwords: Private international law - Action founded on a tort - Whether tort committed within the jurisdiction - Cause sued on not committed within the jurisdiction Legislation: Rules of the Supreme Court 1971 (WA)O 10 Result: Leave to serve out of jurisdiction set aside
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Representation: Counsel:
Plaintiff : Mr A J Stewart
Defendant : Ms K Vernon
Solicitors:
Plaintiff : Chapmans
Defendant : DLA Phillips Fox
Case(s) referred to in judgment(s):
Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458
Hart v Robinson Helicopter Co Inc (Unreported, WASC, Library No 7404, 5 September 1988
Hartwell Trent (Aust) Pty Ltd v Tefal Societe Anonyme [1968] VR 3
ICI Australia Operations Pty Ltd v Kidde-Graviner Limited (Unreported, WADC, Library No D 980035, 11 February 1998
ICI Australia Operations Pty Ltd v Kidde-Graviner Ltd [1999] WASCA 65
Jackson v Spittall (1870) LR 5 CP 542
Koranna Nominees Pty Ltd v Roberts (Unreported, WASC, Library No 4289, 15 October 1981
Laurie v Carroll (1958) 98 CLR 310
Vitkovice Horni A Hunti Tezirstvo v Korner [1951] AC 869
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
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1 PRINCIPAL REGISTRAR GETHING: The application before me for determination is an application by the defendant dated 8 September 2010 to set aside the writ of summons in this action. Pursuant to orders made in a related application (CIVO 37 of 2009), the plaintiff obtained leave to serve the defendant out of the jurisdiction and in Finland. The defendant also seeks to set aside subsequent service of the notice of the writ of summons on the basis that an order allowing service by facsimile in substitution for personal service on its head office was irregular. The defendant has filed a conditional appearance in the action.
2 In the action, the plaintiff claims damages for personal injuries arising out of negligence or a breach of statutory duty on or about 14 March 2007. At all material times the plaintiff was an employee of Wesbeam Pty Ltd (Wesbeam). Wesbeam carries on the business, among other things, of manufacturing laminated veneer timber products. The plaintiff alleges that the accident occurred during the course of his employment at Wesbeam. The accident occurred when he was cleaning a jam from a conveyor belt used in the production of laminated veneer timber. The conveyor belt started up without notice and threw the plaintiff to the floor of the factory. He alleges he sustained back, shoulder and leg injuries. 3 The factual material relied on by the parties is in two stages. The plaintiff relied on two affidavits from the leave application (CIVO 37 of 2009). These are an affidavit of the plaintiff sworn 1 October 2009 (plaintiff's first affidavit) and an affidavit of James Grant sworn 1 May 2009. Mr Grant is an accident investigator engaged by the plaintiff's solicitors. 4 The defendant filed an affidavit of one Kalle Antero Hyvőnen, an employee of the defendant, dated 6 October 2010 (Hyvőnen affidavit). 5 The plaintiff filed a second affidavit which he sworn on 4 November 2010 (plaintiff's second affidavit). This affidavit was filed in the current action (CIV 3208 of 2009). The defendant objected to the court relying on this affidavit. Its objection was three fold. Firstly, the affidavit was filed after the time within which the plaintiff had to file his affidavits in response as set out in the programming orders made by the court on 28 September 2010. In relation to this issue I enquired of counsel for the defendant whether the defendant would have filed any additional affidavits had it had further notice. Counsel advised that the defendant would not have filed any further affidavits. In my view, the (Page 4)
timing issues do not give rise to sufficient prejudice to the defendant such that the affidavit ought to be excluded on that basis.
6 The second objection is that certain paragraphs of the affidavit contained conclusions, namely pars 9 – 10 and pars 18 – 19. To the extent that it does, I am not minded to exclude the paragraphs. This is because they set out what the plaintiff intends to claim should the action be allowed to proceed. Some measure of latitude should be permitted in this regard.
7 The third objection is that in an application to set aside leave to serve notice of a writ outside the jurisdiction, the plaintiff is only permitted to rely on the evidence before the court on the leave application. The plaintiff's second affidavit is thus said to be irrelevant. I will return to this issue having considered the relevant law.
Relevant law
8 The plaintiff sought to rely on the head of jurisdiction in Rules of the Supreme Court 1971 (WA) (RSC) O 10 r 1(1)(k), namely that the action is 'founded on a tort committed within the jurisdiction'. In determining where a tort is committed, the court ascertains the place of 'the act on the part of the defendant which gives the plaintiff his cause of complaint': Jackson v Spittall(1870) LR 5 CP 542, 552, followed in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, 566 - 569 andICI Australia Operations Pty Ltd v Kidde-Graviner Ltd[1999] WASCA 65 (ICI), [4], [13], [29]. The court looks back over the series of events and asks where in substance the tort occurred: Distillers Co (Biochemicals) Ltd v Thompson[1971] AC 458, 467; Voth 566 – 569; ICI [4].
9 In the present case, the plaintiff conceded in submissions that the design and manufacture of the relevant machinery occurred outside Australia. I did not understand the defendant to dispute the proposition that negligence in the installation of the machinery in Western Australia would give rise to a tort committed in Western Australia. The key dispute is as to whether the defendant installed the machinery in Western Australia. A second issue is whether leave can be granted in relation to other acts by the defendant occurring in Western Australia which could found a tort.
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10 In dealing with the question of where a tort occurred the court will be careful to look behind what is pleaded or asserted to what in substance occurred. In this regard, Kennedy J stated in ICI [10]:
In Sykes E I & Pryles M C, "Australian Private International Law", 3rd edn (1991) at 40, the authors observe that the courts will not permit a plaintiff, by adroit pleading, to bring a tort within the jurisdiction by alleging as a particular of negligence the wrongful act or omission within the forum when the substance of the wrongful conduct occurred elsewhere, and they go on to cite a number of authorities where the plaintiff had endeavoured to rely upon a failure to warn of a danger. These authorities include Buttigeig v Universal Terminal & Stevedoring Corp [1972] VR 626 and Macgregor v Application des Gaz [1976] Qd R 175. They also refer to two cases in which the decision has gone the other way, Jacobs v Australian Abrasives Pty Ltd [1971] Tas SR 92 and Castree v E R Squibb & Sons Ltd [1980] 1 WLR 1248. The latter case was not, like the present, a case concerning the design and manufacture in England of a one-off system which was delivered in England. See also George Monro Ltd v American Cyanamid and Chemical Corporation [1944] 1 KB 432, at 439. 440 - 441; Cordova Land v Victor Brothers Inc [1966] 1 WLR 793; Koop v Bebb (1951) 84 CLR 629, at 648; and Distillers Co v Thompson [1971] AC 458, at 469. 11 Where there is a dispute as to the facts upon which leave to serve out of the jurisdiction was granted, the onus is on the plaintiff to sustain the grant of leave. In Koranna Nominees Pty Ltd v Roberts (Unreported, WASC, Library No 4289, 15 October 1981 Burt CJ said (5): In my opinion, on an application by a defendant served with a writ out of the jurisdiction pursuant to O 10, r 1 to set the service aside - O 12, r 6(1) - the plaintiff is required to sustain the service on the ground or grounds relied upon by him in the affidavit upon which the order was made and he cannot at that stage sustain the service upon some other ground. 12 This passage appears to have been endorsed by the Full Court in ICI ([11], [23]), having been relied on by the judge hearing the appeal in the District Court. 13 To like effect is the decision of Pape J in Hartwell Trent (Aust) Pty Ltd v Tefal Societe Anonyme [1968] VR 3. In that case his Honour stated that, on a motion to set aside service out of the jurisdiction, 'further evidence is receivable, provided that that evidence is directed to sustaining the cause of action alleged in the pleadings, and not a different cause of action altogether' (6). His Honour also confirmed that 'a defendant against whom an order is made is entitled on a motion to set such order aside to put further evidence before the court in order to show that the order should not have been made' (7). (Page 6)
14 The plaintiff's second affidavit is thus relevant, but only in so far as it sustains the cause of action upon which leave to serve outside the jurisdiction was granted. I will allow it to be read for that purpose. 15 This raises the issue of the test that the court must use in resolving a factual conflict. The RSC provides the starting point. RSC O 10 r 4(2) provides that the court is not to grant leave 'unless it shall be made sufficiently to appear to the court that the case is a proper one for service out of the jurisdiction under this Order'. In relation to the same rule in the English rules, Lord Radcliffe stated in Vitkovice Horni A Hunti Tezirstvo v Korner [1951] AC 869, 883: I suggest, however, to your Lordships that it is from these words, and these words alone, that it is possible to ascertain what measure of proof the judge should require before deciding that he is authorised to make an order under this procedure. It must sufficiently appear to him that it is a proper case. The phrase is a composite one and it is not elucidated by taking it to pieces, but it seems to me clear that the use of the word “sufficiently” in this context shows that it is not necessary that the judge should be satisfied beyond reasonable doubt as to the existence of the qualifying conditions. Further, a case does not sufficiently appear to be a proper case for the purposes of this order unless, on consideration of all admissible material, there remains a strong argument for the opinion that the qualifying conditions are, indeed, satisfied. 16 Lord Tucker agreed with this formulation (890). His Lordship also commented that 'it is to be remembered that it has frequently been laid down that this jurisdiction is to be exercised with great care and that any doubts should be resolved in favour of the foreigner' (889). This comment was endorsed by Kennedy J in ICI [2]. 17 In Hartwell, Pape J approved of the formulation adopted by Lord Radcliffe in Vitkovice. His Honour also referred to a second test, namely that 'reasonable evidence has been produced that a case has been made out to satisfy the rule relied upon' (10 - 11). These two tests were used by the judge in the District Court appeal in ICI Australia Operations Pty Ltd v Kidde-Graviner Limited (Unreported, WADC, Library No D 980035, 11 February 1998 (ICI (DC)) andseem to have been approved on appeal by Pidgeon J (with whom Miller J agreed) (ICI [23], [33]).
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18 Likewise in Hart v Robinson Helicopter Co Inc (Unreported, WASC, Library No 7404, 5 September 1988 Master White (as he then was) stated (6):
The onus of establishing that this Court has jurisdiction lies upon the plaintiff, who must establish a 'good arguable case' and something stronger than merely a prima facie case …
Material before the court on the leave application 19 Following the decisions in Hartwell and Koranna, the starting point in the analysis is to consider the nature of the claim before the learned deputy registrar on the application for leave to serve out the jurisdiction. The endorsement in the writ, then a minute of proposed writ of summons, is brief. Specifically it provides: The Plaintiff's Claim is for damages for personal injuries caused to the Plaintiff as a result of the negligence and/or breach of statutory duty by the Defendant, its servants and/or agents on or about 14 March 2007. 20 Mr Grant in his affidavit annexed certain information, including photographs of the conveyor in question. He then deposed that from his enquires he believed that 'the designer/installer of the conveyor involved in Mr Thomson's accident, was Raute Corporation of Finland'. 21 The key paragraph in the plaintiff's first affidavit is par 6. It provides: In my view, Rauter Corporation as the manufacture/installer of the conveyor on which I was hurt, are liable in negligence to me and in that regard I believe that I have a good cause of action against Rauter Corporation as they installed the conveyor system with faults in it, and specifically a fault whereby the conveyor was capable of starting up without warning to operators who were involved in its maintenance. 22 The critical two pieces of evidence before the court on the leave application were thus that: 23 On this evidence, the court gave leave to serve notice of the writ outside the jurisdiction. (Page 8)
24 I can not discern from the court file in relation to the leave application any specific reference to the relevant head in RSCO 10 r 1. However, from the nature of the endorsement on the minute of proposed writ of summons and the affidavit evidence before the court, the only relevant ground is O 10 r 1(1)(k). It was not argued before me that any other ground in O 10 r 1(1) was relevant.
Evidence adduced by the defendant 25 In his affidavit, Mr Hyvőnen deposes that on 11 April 2003 the defendant entered into contract with Wesbeam for the defendant to supply machinery for a laminated veneer lumber and special plywood mill. The contract is annexed to his affidavit. He was one of the two people who signed the contract on behalf of the defendant in Perth at a meeting with Wesbeam's directors. 26 Pursuant to the contract, it was agreed that the defendant would supply machinery for a laminated veneer lumber and special plywood mill to Wesbeam as set out in the appendix to the contract (Article 2). The transfer of risk relating to the machinery supplied, along with the transfer of title to the machinery, occurred at the point of delivery (cl 3.7 and cl 3.8). It appears that delivery took place outside Australia, and that Wesbeam had the obligation of arranging delivery to its site in Western Australia (cl 5.4, Article 9). Wesbeam was also obliged to make the site available to representatives of the defendant and give them 'free and uninterrupted access' to the site (cl 5.6). 27 A critical term of the contract for present purposes is Article 13, dealing with installation. It provides: ARTICLE 13 – INSTALLATION 13.1 The Buyer shall install the Supplies at the Site in accordance with the Seller's reasonable and proper advice. The Seller shall send Experts to supervise the Installation of the Supplies. Before the arrival of the Seller's Experts, the obligations on the Site Check-List provided by Raute's Project Manager shall be met. 13.2 The Buyer shall bear the responsibility that the installation work is made according to valid safety stipulations. He shall also perform the required testing of the installed equipment to verify that they meet the said stipulations. (Page 9)
13.3 The Installation of any and every part of parts of the Supplies shall be regarded as completed after their successful operation without load has been stated (Completion of Installation). 13.4 Before any piece of machinery or equipment is operated under production conditions, a certificate for the Completion of Installation shall be completed and signed by the representatives of each Party, stating the said completion and its date. Form for the certificate of Completion of Installation shall be enclosed as an Appendix to the Contract. 28 Article 14 provides for a commissioning process. The commissioning included measurements being taken as to the performance of the machinery. The relevant measurements were to be performed by Wesbeam in the accordance with the advice of, and in the presence of, representatives of the defendant. 29 Mr Hyvőnen goes on to depose that the defendant supplied Wesbeam with the machinery in accordance with the contract. He annexes to his affidavit a document entitled 'Certificate of Completion of Installation' dated 16 September 2004. He also annexes a further document entitled 'Certificate of Acceptance' dated 22 February 2005. This document confirmed that 'performance of Supplies meets 80% of the capacity requirements set forth in the Contract'. He then annexes a second Certificate of Acceptance dated 23 June 2005. That document contains a certification that 'the performance of Supplies meet all requirements set forth in the contract, and that the Seller has fulfilled all his contractual obligations (to the exclusion of limited mechanical guarantee granted by the Seller)'. 30 Based on these certificates, Mr Hyvőnen deposes that: (a) supply of the machinery by the defendant was completed under the contract; (b) Wesbeam completed the installation of the machinery supplied by the defendant by 16 September 2004; (c) Wesbeam tested the machinery and the performance met all of the requirements set out in the contract; and (d) the defendant completed all its contractual obligations by 23 June 2005. 31 Mr Hyvőnen concluded by deposing that he believed that: (Page 10)
32 It is apparent that there is a factual conflict between the assertion in the plaintiff's first affidavit that the equipment was installed by the defendant and the position as set out in the Hyvőnen affidavit, that the equipment was installed by Wesbeam. 33 As noted, the onus is on the plaintiff to persuade the court that there 'remains a strong argument for the opinion that the qualifying conditions are satisfied' or perhaps that 'reasonable evidence has been produced that a case has been made out to satisfy the rule relied upon'. Applying this test, on the basis of the evidence before the court on the leave application and the evidence of Mr Hyvőnen, the plaintiff has not persuaded me that there remains a strong argument for the opinion that the qualifying conditions are satisfied on the basis that the defendant installed the machinery. Nor am I even satisfied that reasonable evidence has been produced that a case has been made out that the machinery was installed by the defendant. The evidence of Mr Hyvőnen as to the nature of the contractual relationship between the defendant and Wesbeam is detailed, cogent and compelling. Against this, the plaintiff's case at its strongest was his 'view' that the defendant was the installer of the relevant conveyor. 34 The only remaining issue is whether there is any evidence in the plaintiff's second affidavit which I am permitted to take into account, and which changes this conclusion.
Plaintiff's second affidavit 35 The essence of the evidence in the plaintiff's second affidavit is that from when the plaintiff commenced working at Wesbeam (February 2006) until March 2008 (that is after the date of the accident) engineers employed by the defendant 'continued working at the Wesbeam factory and were directly responsible for maintaining and modifying the press line to ensure it worked correctly' par 18. 36 The evidence in the plaintiff's second affidavit does not directly challenge the evidence in Mr Hyvőnen's affidavit that installation was complete by 23 June 2005. At its best, the evidence in the plaintiff's second affidavit discloses that representatives of the defendant were working at the premises of Wesbeam on the relevant conveyor after the (Page 11)
date of installation. It would have been open for the plaintiff to have brought an action against the defendant on the basis that engineers employed by the defendant 'had control of the press line and were in charge of its entire operation', being an allegation made in the plaintiff's second affidavit par 19. A cause of action founded upon that allegation would be to the effect that the control exercised by the defendant through its onsite representatives was such as to give rise to a duty of care to employees of Wesbeam. However, the affidavit evidence upon which leave was granted limits the allegations to a 'cause of action against Raute Corporation as they installed the conveyor system with faults in it' par 6. There is no reference to liability arising out of subsequent maintenance and modification of the conveyor systems. 37 Counsel for the plaintiff sought to argue that the references to installation in the plaintiff's first affidavit are broad enough to include ongoing maintenance and modification. In its ordinary English meaning, the word 'install' means 'to place in position for service or use … to establish in any office, position, or place'. (The Macquarie Dictionary 2nd ed revised). On its ordinary meaning, the word install does not extend to subsequent maintenance and modification. The authorities to which I have referred above make it clear that jurisdiction under O 10 r 1 is to be exercised with great care and that any doubts should be resolved in favour of the foreigner. If there were any doubt as to the meaning of the word 'install' that doubt would need to be resolved in favour of the defendant.
The decision in ICI 38 The case is similar to the decision in ICI. In that case, the equipment in question was an explosion suppression system for a chemical manufacturing plant. The equipment was alleged to have malfunctioned and caused substantial damage to the plant. The claim as initially pleaded was that the respondent negligently designed, manufactured and installed the equipment. Leave was granted on the basis that the relevant tort occurred within the jurisdiction. The respondent subsequently sought to set aside the grant of leave and was successful at first instance before a deputy registrar of this court. Appeals to a judge of this court (ICI (DC))and to the Full Court (ICI)were unsuccessful. 39 At the hearing to set aside the writ, the appellant had conceded that the respondent did not install the system, and that it was designed and manufactured outside the jurisdiction. The only relevant activity of the respondent that occurred in the jurisdiction was commissioning. There was an unsuccessful attempt before the deputy registrar to amend the (Page 12)
claim to refer to negligence in the commissioning process, based either on approval of a defective system or failure to warn of defects. 40 On appeal in the District Court, Clarke J relied on the decision in Koranna that the plaintiff (appellant) had to sustain the service on the grounds relied on in the leave application (6). The respondent argued that commissioning was referred to by implication in the use of the word 'install' in the statement of claim endorsed on the writ (pages 5 - 6). The basis on which Clarke J decided the matter is unclear. On appeal to the Full Court, Pidgeon J proceeded on the basis that Clarke J dealt with the matter before him on the basis that the proposed amendment was part of the statement of claim, but that even if it was, there would still be no jurisdiction in a Western Australian court (see ICI [19]). 41 On appeal to the Full Court, Kennedy J dismissed the appeal, finding that 'the place of the act on the part of the respondent which gives the appellant its cause of complaint was England' par 13. Pidgeon J, with whom Miller J agreed, also dismissed the appeal. His Honour seemed to follow the approach of Clarke J, and held that the facts before the court did not support the allegation based on defects in commissioning (par 27). Pidgeon J also noted that the appellants had sought to advance a further alternative version of the claim based on delivery of a defective product. His Honour declined to deal with this alternative on the basis that it was not submitted to either the deputy registrar or to Clarke J that this was part of the claim (par 30). 42 The decision in ICIdirects me to consider where in substance the tort occurred notwithstanding the way in which the tort is pleaded. On the material before me, what is alleged to have caused the accident was an inadequate safety cut out procedure. This was either a design defect (in which case the tort occurred in Finland by the defendant) or the defective installation of an appropriately designed system (in which case the tort occurred in Western Australia by Wesbeam). 43 Even if I were to take an expansive view of the word 'install' in the plaintiff's first affidavit so as to include commissioning (as the court seemed to do in ICI), the result would be the same. On the material before me in relation to commissioning in Mr Hyvőnen's affidavit, the commissioning process seems to be limited to testing capacity (see Article 14). There is no stand alone safety certification contemplated. On the limited scope of commissioning, there is no reasonable evidence before me that a breach of commissioning in any way caused the accident, let alone a 'strong argument' that this was so. (Page 13)
44 The plaintiff could follow the path taken by the appellant inICI and argue that there was a breach of a duty by the manufacturer to warn of defects in the product. If he did, this would meet the same fate as occurred in ICIwhich was to the effect that such a pleading would be 'adroit' and not reflect what occurred in substance. The decision in ICI supports the conclusion which I reached in the present case on the authorities generally, that there was no tort in substance committed by the defendant in Western Australia in relation to the installation of the machinery. 45 The decision in Hart also supports the decision I have come to on authorities generally. In that case the plaintiff was seriously injured when a helicopter lost power and crashed. The helicopter was being used for aerial cattle mustering. The first defendant designed and manufactured the helicopter in the USA. Master White followed the decision in Distillers, determining the relevant rule to be that 'the cause of action arises within the jurisdiction if the act on the part of the defendant, which gives the plaintiff, his cause of complaint, has occurred within the jurisdiction' (8). The learned master found that if there was a defect in the design or manufacture of the helicopter, then it occurred out of jurisdiction. 46 The plaintiff had also alleged against the first defendant a breach of duty of care to give appropriate warning and maintenance procedures if the helicopter was to be used in cattle mustering. On this issue Master White concluded (12): This evidence, as it seems to me, establishes a good arguable case that the first defendant should have issued an appropriate warning to distributors, assemblers, repairers and prospective users of the helicopter of the need for frequent inspection of the belts and sheaves in circumstances that the helicopter was to be flown in dusty conditions with frequent power changes. No such warning was given and this could, in my view, readily have been done by way of inclusion in the assembly instructions and the operating manuals relating to the helicopter. In my opinion that obligation was a continuing one and, in permitting the helicopter to be brought into Australia by its Australian distributor and to be sold without such warning, the first defendant was arguably in breach of that obligation at all material times, including the time when the helicopter was brought into Western Australia. If that be right, the wrongful omission took place within the jurisdiction of this Court and, when damage was caused, the tort was arguably committed within the jurisdiction. (Page 14)
47 In Hart, the relevant allegation found to have been breached in Western Australia was that there had to be warnings about a product that was not inherently defectively designed, but for which special care had to be taken when used for cattle mustering. In the present case, the defect alleged is inherent, namely that 'the conveyor was capable of starting up without warning to operators who were involved in its maintenance' (plaintiff's first affidavit, par 6). It would not make sense for the defendant to have provided warning to the effect that 'this conveyor belt has a fault in it which means that it is capable of starting up without warning to operators who are involved in its maintenance'. In substance the duty of care can only be satisfied by not designing a conveyor belt with this sort of fault in it.
Conclusion 48 As a matter of principle, negligence in the installation of machinery in Western Australia could found a tort committed within Western Australia. However, in the present case the relevant machinery was not installed by the defendant. Leave to serve the writ outside the jurisdiction ought to be set aside. 49 Having reached this conclusion, it is not necessary for me to determine whether or not the order made by the court on 26 August 2010 substituting the mode of giving notice was irregular. Specifically, it is not necessary for me to decide that, had the claim fallen within O 10 r 1 (k), the court had power to alter the mode of giving notice to the overseas defendant from that originally ordered pursuant to O 10 r 6. The decision in Laurie v Carroll (1958) 98 CLR 310 makes it clear that an order for substituted service cannot be used to circumvent requirement to obtain leave for service out of the jurisdiction pursuant to O 10 r 1. 50 There then remains the form of the order. My preliminary views follow. The application by the defendant seeks dismissal of the proceedings. This would have the consequence of barring the plaintiff from commencing any further proceedings falling within the writ. As noted, the endorsement of claim on the writ is in broad terms. It is not limited to negligence and/or breach of statutory duty arising out of the design, manufacture or installation of the machinery. It would theoretically be possible for the plaintiff to commence a fresh action against the defendant based on a breach of duty arising out of its ongoing control, maintenance and modification of the relevant conveyor system. It seems to me that the order made in these proceedings should go only so far as is necessary. No ruling has been made on whether or not it would (Page 15)
be appropriate for the plaintiff to have leave to serve out of the jurisdiction based on a claim other than the design, manufacture and installation of the relevant machinery. It seems thus sufficient to me that the writ be set aside and that the action be discontinued. If the plaintiff wishes to commence a fresh action then the issues in that action will need to be determined on their merits. This would no doubt include potential abuse of process issues. 51 I will hear from counsel on the question of costs as well as any further submissions on the final form of orders in the light of my preliminary views. |