ARGONAUT PARTNERS PTY LTD -v- ABYSSINIAN METALS LIMITED [2023] WASC 278 (26 July 2023)

(a) First, as a threshold issue, whether it is permissible for the plaintiff to seek leave for service following the filing of the originating process, or whether such leave was a required anterior step.
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> (b) Second, whether the procedural requirements of O 10 r 4(1) RSC have been satisfied, which requires that the plaintiff file an affidavit stating that in the deponent's belief the plaintiff has a good cause of action and stating where the person to be served is or probably may be.
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> (c) Third, whether the plaintiff's case falls within one of the categories set out in O 10 r 1(1) RSC.
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> (d) Fourth, whether the court is persuaded to exercise its discretion in favour of the grant of leave, with leave not to be granted unless it is made sufficiently apparent to the court that the case is a proper one for service outside of the jurisdiction, pursuant to O 10 r 4(2) RSC.
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> (e) Fifth and finally, provided the foregoing matters are satisfied, the plaintiff seeks particular directions as to the manner in which the various documents are to be served on the second and fifth defendants, including directions limiting the time for the second and fifth defendants to file an appearance.

1. The plaintiff commenced these proceedings by the filing of an originating process, as required by Rule 2.2(1)(a) of the Supreme Court (Corporations) (WA) Rules 2004 (WA) (Corporations Rules): Destec Pty Ltd v Mineral Resources Limited [2020] WASC 95 [11] and [18] (Hill J) and Civil Procedure in Western Australia, [4.1.4].
2. The Corporations Rules apply to these proceedings, unless the court otherwise orders: Rule 1.3(1)(a) Corporations Rules. The rules of this court as stated in the RSC will also apply to these proceedings, to the extent they are relevant and not inconsistent: Rule 1.3(2)(a) Corporations Rules. The Corporations Rules do not deal with matters concerning service of proceedings outside Australia - that is a matter which is exclusively dealt with in O 10 RSC.
3. Turning then to O 10 RSC, I should first observe that O 10 r 1A and r 1 RSC govern service out of the jurisdiction where the proceedings are to be commenced by a writ of summons. The operation of O 10 RSC is extended to other forms of originating process by O 10 r 7 RSC. In those circumstances, O 10 r 7 RSC states that O 10 r 1A, r 4 and r 5 apply with any necessary changes.
4. Order 10 r 1A(2) RSC provides that:

(2) A writ served on a person outside Australia, except a writ served on a person in New Zealand under the Trans-Tasman Proceedings Act 2010 (Commonwealth), has no effect unless:

(a) the Court, under this Order, granted leave to serve the person; and

(b) the person was served -

(i) under rule 9 to 11; or

(ii) under Order 11A and the convention referred to in that Order.

1. Where a writ of summons is the originating process, regard must be had O 5 r 9 RSC. Order 5 r 9 RSC provides that:

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

1. It is well accepted in this court that the interaction between O 10 r 1A(2) RSC and O 5 r 9 RSC requires that a plaintiff must seek leave to serve a writ of summons outside the jurisdiction as an anterior step to the filing of the writ itself: Kent v Lechmere Financial Corp [2002] WASC 75 [5] (Pullin J). A plaintiff may make one application seeking leave under both orders. The position is succinctly stated in Civil Procedure in Western Australia as follows:[2]

A plaintiff must obtain leave to issue a writ for service outside Australia (see O 5 r 9) and leave to serve a person outside Australia with a writ or notice of a writ (see O 10 r 1A(2)(a)): Micon Mining and Construction Products GmbH & Co KG v Macmahon Mining Services Pty Ltd [2022] WASCA 56; BC202204949 at [54]-[56]. Compliance with both O 5 r 9 and O 10 is necessary to give the court jurisdiction: see Bombardier Inc v Avwest Aircraft Pty Ltd [2020] WASCA 2; BC201221239 at [12]‑[13]; Koranna Nominees Pty Ltd v Roberts (Unreported, Full Court of the Supreme Court of Western Australia, 15 October 1981, Burt CJ, Smith and Kennedy JJ); BP Australia Ltd v Kirki Shipping Corporation (Unreported, Supreme Court of Western Australia, 1 November 1994, Adams M). A plaintiff may make one application seeking leave under both Orders: Micon Mining and Construction Products GmbH & Co KG v Macmahon Mining Services Pty Ltd [2022] WASCA 56; BC202204949 at [72]; see Common Form 14 at [8070]; see also Kent v Lechmere Financial Corp [2002] WASC 75; BC200201600 at [6]. Order 5 r 9 does not permit an order nunc pro tunc: Kent v Lechmere Financial Corp [2002] WASC 75; BC200201600 at [5]. The absence of leave pursuant to O 5 r 9 makes the writ defective, though not a nullity: Kent v Lechmere Financial Corp [2002] WASC 75; BC200201600 at [21].

1. The plaintiff submits that, unlike a writ of summons, neither the Corporations Rules nor the RSC impose any requirement that leave of the court be granted prior to the issue, for service outside Australia, of an originating process under the Corporations Rules. As just indicated, O 10 r 7 RSC applies O 10 to the service of originating processes other than writs, and expressly provides that r 1A, r 4 and r 5 apply with any necessary changes. No other requirements are imposed.
2. Neither counsel nor I were able to identify any authority which expressly deals with the present issue in the context of proceedings commenced by way of originating process. I have therefore approached the question on a first principles basis having regard to the text of O 10 RSC and the relevant provisions of the Corporations Rules. As no issue arises with respect to O 5 r 9 RSC where an originating process filed under the Corporations Rules is concerned, and that provision is the basis for the conclusion reached by Pullin J in Kent v Lechmere Financial Corp at [5], I consider it is permissible for the plaintiff to seek leave to serve the originating process and associated court documents in the present manner, that is, after the filing of the process and not as an anterior step.

C. Second issue - procedural requirements in O 10 r 4 RSC

(1) A n application for a grant of leave under rule 1 or 2 must be supported by an affidavit that states -

(a) that in the deponent's belief, the plaintiff has a good cause of action; and

(b) where, outside Australia, the person to be served is or probably may be.

1. The requirement to depose to a belief that the plaintiff has a good cause of action should not be approached in a formal or perfunctory manner. The supporting affidavit should depose to the facts and not to unsupported conclusions: Micon Mining and Construction Products GmbH & Co KG v Macmahon Mining Services Pty Ltd [2022] WASC 56 [73] (Buss P, Beech and Vaughan JJA).
2. The plaintiff submits that these requirements are satisfied by reference to the factual matters deposed to in the First Harrington Affidavit, the Second Harrington Affidavit and the First Rigg Affidavit.
3. I am satisfied the plaintiff has discharged this requirement, noting that the Second Harrington Affidavit expressly deposes to the requisite belief, and does so by reference to the allegations in the originating process, the evidence set out in both the First Rigg Affidavit and the First Harrington Affidavit, and the submissions filed by the plaintiff for the purposes of the injunction hearing.[3] The affidavits reference the supporting factual material in a fulsome manner. The First Rigg Affidavit and the First Harrington Affidavit attach the various supporting documents which are said by the plaintiff to underpin the claims in the originating process.
4. As to the second requirement, namely where, outside Australia, the person to be served is or probably may be, I am similarly satisfied that this has been demonstrated on the plaintiff's affidavit material. It is sufficient to note that an address for the first defendant in Scottburgh, South Africa appears in several corporate records of Abyssinian Metals which have been adduced in evidence (including the historical company extract which records the address of each director of the company), and an unknown address for the first defendant in Addis Ababa, Ethiopia appears in two other documents. It is not necessary, in my view, for the plaintiff to affirmatively demonstrate where the relevant persons are located - the rule is expressed in broad language. I am satisfied on the evidence that the second and fifth defendants may probably be at the address in South Africa, being the address recorded in the documents lodged with the corporate regulator. That is sufficient for the purposes of O 10 r 4(1)(b) RSC.

D. Third issue - substantive requirements in O 10 r 1(1) RSC

1. It is of course necessary for the plaintiff to demonstrate that its claims fall within one of the several grounds (or 'pigeonholes') specified in O 10 r 1(1) RSC. The plaintiff relies on the ground in O 10 r 1(1)(a)(ii) RSC, which provides as follows:

(1) The Court may grant leave to serve a person outside Australia with [an originating process] that begins an action if -

(a) the subject matter of the action, so far as it concerns the party to be served, is -

(i) ...

(ii) any shares or stock of a corporation or joint stock company having its principal place of business within the State.

1. The plaintiff's claims, as described in the originating process, are focused on allegations as to the invalidity of the issue of various shares in Abyssinian Metals. The shares which are alleged by the plaintiff to have been invalidly issued include a number of shares held in the names of the second and fifth defendants.
2. These allegations are supported, at least ex facie, by the evidence which is detailed in the plaintiff's supporting affidavits, which includes copies of the corporate records of Abyssinian Metals relating to the issue of the milestone or performance shares in question, and which includes the relevant resolution of the directors which was made on 8 March 2021 by which the disputed shares were issued. The plaintiff contends, as far as I can understand, that the relevant resolution of the directors was invalid for various reasons and, in any event, the milestone by which those shares were converted to ordinary shares has not yet occurred.
3. Given all of this, and noting that the first defendant is a public company registered in Western Australia with its registered office and principal place of business in West Perth, I am satisfied on the affidavit evidence which has been adduced there is a 'good arguable case' that the proceeding falls within O 10 r 1(1)(a)(ii) RSC, in the sense in which that phrase is described in Bombardier Inc v Avwest Aircraft Pty Ltd [2020] WASC 2 [15] (Buss P, Beech and Pritchard JJA) and Micon Mining and Construction [106] and [142] (Buss P, Beech and Vaughan JJA).
4. This is, to be clear, not a finding about the substantive merits of the dispute between the parties. It is confined to a finding in relation to the jurisdiction of this court.

(2) No such leave shall be granted 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.

1. The plaintiff submits this case is a proper one for service outside of the jurisdiction and the court should exercise its discretion to grant leave to serve the second and fifth defendants outside Australia. I agree. The plaintiff has at least a good cause of action as described in the originating process, although I am naturally unable to express any view at this stage, on this ex parte motion, as to the merits of the claims. The plaintiff has filed fulsome affidavit material in support of the claims, which I have had an opportunity to review in the last day or so.
2. Counsel has drawn my attention to the observations of the Court of Appeal in Bombardier Inc v Avwest Aircraft Pty Ltd in this regard. The Court of Appeal stated:[4]

[17] The court should not grant leave unless it is positively satisfied that it should do so. It should not be so persuaded unless the plaintiff satisfies it that the case falls within one of the pigeonholes and that the proceedings would not be subsequently stayed as an abuse of process on forum non conveniens (that is, inappropriate forum) grounds or for some other reason (for example, that the proceedings are liable to be struck out summarily).

1. There are no circumstances apparent to me which would justify a conclusion that the plaintiff's claims ought to be stayed as an abuse of process on inappropriate forum grounds or for any other reason, in the sense explained in Bombardier Inc v Avwest Aircraft Pty Ltd. The natural forum for this dispute is Western Australia. Indeed, it is the only forum in which this dispute, between these parties, could be properly heard and determined. As to whether there is 'some other reason', I cannot discern one here, and certainly it does not seem (given the nature of the allegations) that the proceedings are liable to be struck out summarily.
2. That being the case, I am satisfied that the relevant requirements of O 10 RSC have been made out, as just discussed.

1. The amended minute of proposed orders filed by the plaintiff today invites the court to make several directions as to the manner or mode in which the plaintiff will be required to effect service on the second and fifth defendants. The amended orders are said by the plaintiff to be supported by the Third Harrington Affidavit.
2. In essence, the plaintiff proposes to effect service, not by personally serving the two defendants, but by sending the relevant documents by email to Mr Tinney's usual email address, and by delivering the documents to Abyssinian Metals' offices and to the offices of the solicitors who represent that company. By doing so, the plaintiff submits that proper notice of the proceedings will be given to the second and fifth defendants.
3. Counsel for the plaintiff advanced submissions, both in writing and orally at the hearing, as to the power of the court to make these directions. Counsel approached the issue by starting with O 10 r 1A(2) RSC, which requires that service be effected either under O 10 r 9 to r 11 RSC (see O 10 r 1A(2)(b)(i) RSC), or under O 11A and the Hague Service Contention (see O 10 r 1A(2)(b)(ii) RSC).
4. I will now address these service options in more detail.

1. The plaintiff submits that the process for service under O 10 r 9 SC does not apply in relation to South Africa. This rule provides for service abroad through foreign or diplomatic officials. It does not apply to service in any country listed in Schedule 3 to the British Nationality Act 1981 (United Kingdom). South Africa is listed in that schedule, but Ethiopia is not.
2. The important point to note here is that the plaintiff has an address for service of the second and fifth defendants in South Africa, but no particular address to serve them in Ethiopia. As already noted, I am satisfied the second and fifth defendants are probably located at the address in South Africa.
3. On the materials adduced by the plaintiff, I agree with the submissions it makes in this regard and that service pursuant to O 10 r 9 RSC is not an available option to pursue in the present circumstances as the defendants in question are probably resident in South Africa and that country is excluded from this particular rule.

1. The process for service in accordance with O 11A RSC involves service in accordance with the Hague Service Convention. The plaintiff has explained in its submissions filed today (supported by the Third Harrington Affidavit) that neither the Republic of South Africa nor Ethiopia are parties to the Hague Service Convention. From this it follows, according to the plaintiff, that the process for service under O 10 r 1A(2)(b)(ii) RSC is inapplicable. I accept that submission.

1. That leaves a consideration of O 10 r 10 RSC. The plaintiff relies upon the power to make directions which appears in this provision. The rule relevantly provides:

(1) Subject to rule 9(9), to the following provisions of this rule and to any direction given by the Court as to the manner in which the writ shall be served or brought to the notice of the person, Order 9 rule 1 and Order 72 rule 4 apply in relation to the service of a writ, notwithstanding it is to be served outside Australia. (underlining added)

(2) Nothing in this Rule[5] or in any order or direction of the Court made by virtue of it shall authorise or require the doing of anything in a country in which service is to be effected which is contrary to the law of that country.

1. It must be accepted that rule 10 provides, ordinarily at least, that the personal service requirements (and alternatively the substituted service requirements) have application in relation to the service of an originating process, even though it is to be served outside Australia.
2. However, and importantly, the provision is made subject to any direction given by the court as to the manner in which the writ shall be served or brought to the notice of the person (see the underlined portion of the sub-rule referred to above). It appears to me, pursuant to this provision, there is broad power in rule 10 by which this court is able to make directions as to the manner in which service is to be effected outside Australia, in circumstances in which neither O 10 r 9 RSC or O 11A RSC apply, and in a manner which would modify the operation of O 9 r 1 RSC (as to personal service) and O 72 r 4 RSC (as to substituted service).
3. The subrule provides no limiting conditions or criteria as to the exercise of the power to make such directions. Of course, any direction should be exercised in accordance with, and having regard to the case management goals and objects stated in O 1 r 4A RSC (elimination of delays) and O 1 r 4B RSC (positive case flow management, including disposing efficiently of the business of the court), and having regard to the interests of justice.
4. The only express precondition stated in O 10 r 10 RSC is that which appears in O 10 r 10(2) RSC, which I have already mentioned. The plaintiff has adduced evidence on information and belief,[6] the source of which is a litigation attorney in South Africa, to the effect that there are no rules prescribing the process of effecting service of documents from foreign proceedings on parties in South Africa. The South African practitioner in question has expressed the view that service can be effected in accordance with orders made by the applicable court in that foreign jurisdiction (i.e. the Australian court in the present scenario).
5. Accordingly, the plaintiff contends that as there are no prescribed rules for effecting service of foreign legal documents in South Africa, any orders made by this court as to service would not be inconsistent with the rules relating to service in South Africa. On the materials adduced by the plaintiff, and for the purposes of this ex parte application, I am satisfied that directions as to service under O 10 r 10 RSC would not be inconsistent with the requirements for service in South Africa.
6. The directions for service proposed by the plaintiff appear to me to be generally suitable and appropriate to bring notice of these proceedings to the prompt attention of Mr Tinney (and therefore also Mrs Tinney). The broad circumstances of the dispute enable me to draw the inference that Mr Tinney (as a director of Abyssinian Metals, the first defendant) is already well aware of these proceedings and of the injunction hearing scheduled for tomorrow and that, if not, the process proposed by the plaintiff is very likely to bring the proceedings to his (and Mrs Tinney's) attention. I should note that, more than mere inference, there is evidence that the plaintiff's solicitors have forwarded copies of the relevant court documents to Mr Tinney and did so on 20 July 2023. I also note that Mr Tinney has been involved in the events leading to the scheduled general meeting, including through the dispatch of correspondence. One would naturally expect this, given his role as a director of Abyssinian Metals and the fact that allegations have been made which seek to impugn the validity of the almost six million shares which are held by him and his wife. Mr and Mrs Tinney are not strangers to the present dispute. Indeed, the company of which Mr Tinney is a director has already instructed solicitors to enter an appearance in the matter.
7. Quite properly, counsel for the plaintiff raised a number of matters in his submissions to ensure the court was aware of all relevant issues on this ex parte application, including those matters which tell against the making of the directions in question.[7] One of the matters raised by counsel is the question as to the interaction between O 10 r 10 RSC and the substituted service provisions applicable in this court. In this regard, counsel drew my attention to the decision of Dawson J in Mondial Trading Pty Ltd v Interocean Marine Transport Inc (1985) 65 ALR 155. I should say something briefly about his Honour's decision in that case.
8. In Mondial Trading, Dawson J held that until such time as application is made and orders have been obtained for leave to serve out of the jurisdiction, orders for substituted service are not available. Further, before substituted service orders are made, it would be necessary for the plaintiff to 'obtain leave for service outside the jurisdiction and must attempt to effect service by that mode' (at 156 ‑ 157).
9. In my respectful view, the decision of Dawson J can be distinguished in the present circumstances.[8] In Mondial Trading, the defendant had not been within the jurisdiction at any time and so at no time could personal service have been effected within Australia. Further, and importantly, the ex parte applications heard by his Honour were only for leave to renew the writ in question and for orders for substituted service (156). The plaintiff had not applied for leave to serve out. The plaintiff in Mondial Trading appears to have sought the substituted service orders as a means of avoiding the requirements governing service outside Australia. His Honour's decision is understandable in this context.
10. In contrast, the present case is not one in which the plaintiff is seeking the directions in question as a means to circumvent the requirements for obtaining leave to serve outside Australia. The plaintiff has addressed those matters and demonstrated, as I have explained, that the necessary requirements have been established for an exercise of the long arm jurisdiction of this court.
11. Having reached that point, in the context of a matter in which the process for effecting personal service upon the second and fifth defendants through the usual processes might stretch into weeks or months, it is in the interests of justice and good case management, that a practical solution be achieved to allow for prompt, but effective, service of the documents on these parties. The matters set out in [45] above provide support for the exercise of the power to make the directions sought by the plaintiff, pursuant to O 10 r 10 RSC.
12. To put the matter another way, an exercise of the power to give directions under O 10 r 10(1) RSC is not an exercise of a discretion to order substituted service. Rather, what is sought to be done is in the interests of justice to give directions as to the particular manner in which the writ shall be served or brought to the notice of the person in question. That is not to approach the matter from a substituted service perspective, which as counsel for the plaintiff has indicated would typically first require there to be some evidence that personal service is impracticable.
13. So far as I can see, the operation and effect of O 10 r 10 RSC appears to be free of authority at the moment. However, taking the matter at first principles, it seems to me O 10 r 10(1) RSC vests the court with a broad discretion as to the manner in which service may be directed in a case in which the relevant applicant has otherwise already demonstrated the prerequisites for the grant of leave for the service of process, in this case an originating process, outside Australia. That discretion should be exercised having regard to the objects and goals stated in O 1 r 4A RSC and O 1 r 4B RSC, and having regard to the interests of justice.

1. The final matter to note is the terms of order 3 of the plaintiff's amended minute of proposed orders, which relates to the fixing of a time within which a person who is served under O 10 RSC can enter an appearance. O 10 r 5 RSC provides:

(1) An order made under this Order granting leave to serve a writ outside Australia must limit the time within which the person to be served can enter an appearance.

1. The appropriate time period to set in this regard should be one which is not unduly burdensome on the second and fifth defendants. I have proposed that the relevant time period be a period of 10 days. This does not mean that the parties may not enter an appearance much sooner than this. It simply means that is the outer point at which an appearance may be entered.

1. Accordingly, for the foregoing reasons, I will grant the plaintiff's application and make orders in terms of the plaintiff's amended minute, in the terms discussed with counsel this afternoon. The orders made will be as follows:
   1. The plaintiff have leave, pursuant to Order 10 rule 7 RSC, to serve the second and fifth defendants with the following documents, outside Australia:

(a) originating process filed on 19 July 2023;
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> (b) affidavit of Edward Godfrey Rigg filed on 19 July 2023; and
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> (c) affidavit of Tegan Margaret Harrington filed on 19 July 2023;
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> (d) the plaintiff's submissions filed on 20 July 2023;
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> (e) the plaintiff's certificate of urgency filed on 20 July 2023;
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> (f) the plaintiff's undertaking as to damages filed on 20 July 2023;
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> (g) the memorandum of conferral filed on 20 July 2023; and
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> (h) the orders of the Supreme Court made on 25 July 2023.

2. Pursuant to Order 10 rule 10 RSC, the plaintiff is directed to serve the documents listed in order 1 above on the second and fifth defendants by:

(a) sending an electronic copy of those documents, or a link to a site from which they may be downloaded, to the email address: brucetinney@gmail.com;
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> (b) leaving them at, or posting them to, the first defendant's registered office; and
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> (c) sending an electronic copy of those documents, or a link to a site from which they may be downloaded, to the email addresses of the first defendant's solicitors, Thomson Geer: HvanAswegen@tglaw.com.au (Mr Hendrik van Aswegen) and mbowen@tglaw.com.au (Mr Michael Bowen).

3. Pursuant to Order 10 rule 5 RSC, the second and fifth defendants file any notice of appearance within 10 days after the date service is effected upon them pursuant to orders 1 and 2 above. 4. The plaintiff's costs of the application be costs in the cause. 5. There be liberty to apply.

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

[1] Ex parte chambers motion for leave to serve outside Australia dated 24 July 2023.

[2] Civil Procedure in Western Australia, [10.0.3].

[4] Bombardier Inc v Avwest Aircraft Pty Ltd [17] (Buss P, Beech and Pritchard JJA).

[5] The word 'Rule' is an error here. It should refer to 'Order', as explained by Pullin J in Channar Mining Pty Ltd v CMIEC (Channar) Pty Ltd [2003] WASC 253 [24].

[6] Third Harrington Affidavit, [6] - [9].

[7] Plaintiff's submissions dated 25 July 2023, [24] - [31].

[8] As was the approach taken by Bell J in Carter Holt Harvey Woodproducts Australia Pty Ltd v David [2015] VSC 393 [13].