KOMATSU MINING CORPORATION -v- CITIC PACIFIC MINING MANAGEMENT PTY LTD [2025] WASC 372 (5 September 2025)

1. In these proceedings, the parties relied upon three affidavits of Rhianedd Llinos Kent, a partner of Kennedys, dated 10, 16 and 28 May 2024 (respectively the 10 May Affidavit, 16 May Affidavit and 28 May Affidavit), which were filed in CIV 1541. CITIC also relied upon a further affidavit of Ms Kent dated 18 June 2025, filed in CIV 1017 (June Affidavit). The background below is taken from those affidavits which were admitted into evidence without objection.
2. By letter dated 30 August 2019, Kennedys on behalf of CITIC wrote to Komatsu Australia Pty Ltd (Komatsu Australia) giving notice of a potential claim in contract, negligence and under Sch 2 of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law).[2]
3. A letter from the law firm Clyde & Co dated 23 September 2019 was provided in response. In that letter, Clyde & Co defined Komatsu Australia as 'KAL'. Immediately following that definition, Clyde & Co advised that it had been appointed by 'Komatsu'. It is not clear whether by 'KAL' and 'Komatsu', Clyde & Co intended to refer to the same entity or different entities. Be that as it may, the letter from Clyde & Co also provided some information regarding various companies associated with the history of the machine that was destroyed. That included reference to Joy Global Australia Pty Ltd which was said to be a wholly owned subsidiary of Joy Global Holding Company Pty Ltd which the letter advised 'is owned by Komatsu Mining Corporation an entity incorporated in the United States'.[3] From that it was obviously to be inferred that Komatsu Mining Corporation was an incorporated entity and that it was said to be incorporated in the United States. Later evidence cast some confusion upon this - a matter to which I will return. In the letter, Komatsu Australia denied liability and asserted that the claim was made against the wrong entity.
4. By email dated 30 October 2019, Colin Biggers & Paisley - a law firm based in Sydney, Australia - advised Kennedys that it acted for Joy Global Australia Pty Ltd.[4]
5. Further correspondence ensued about the matter. This included correspondence from Kennedys to Clyde & Co dated 30 June 2020, referring to the complexity arising from the various related corporate entities that are 'part of a complex global company structure'.[5] There was a brief email response to that letter which took the matter no further.[6]
6. There was further correspondence between the lawyers for the various entities. In September 2020, an expert report was produced to Kennedys regarding the cause of the incident in April 2018. On 24 September 2021, Kennedys wrote to Colin Biggers & Paisley to advise of the outcomes of the expert report. On the basis of that report, Kennedys asserted in the letter that CITIC had three viable causes of action against Joy Global Australia Pty Ltd; in contract, in negligence and under the Australian Consumer Law.[7]
7. Further correspondence between Kennedys and Colin Biggers & Paisley then followed over the balance of 2021, and into 2022 and 2023. It is not necessary to descend to the detail of that correspondence. It is sufficient to observe that it cannot fairly be said that CITIC and Kennedys let the matter rest until the limitation period was looming in 2024. The matter was being pursued, information was being requested and provided, and solutions were being sought in that interim period.
8. The evidence establishes that on 2 April 2024, Kennedys received a draft writ from counsel. That draft writ was sent to Colin Biggers & Paisley by email on 5 April 2025. The email also attached a proposed 'Standstill Agreement' which included an agreement to suspend the statutory limitation period. The email advised that the writ would be filed if the proposed Standstill Agreement was not agreed to by 12 April 2024.[8]
9. The named defendants in the draft writ were:
   1. Joy Global (AUS) Surface Pty Ltd;
   2. Joy Global Australia Pty Ltd;
   3. Komatsu US (referred to in the draft writ as 'Komatsu Mining Corporation').
10. Australian addresses for all three defendants were provided on the face of the draft writ.[9] The email from Kennedys stated that the Standstill Agreement was 'prepared on the assumption that you [Colin Biggers & Paisley] act for the first and second proposed defendant to the draft Writ of Summons'.[10] The draft writ contained a detailed General Indorsement of Claim which identified causes of action in contract, negligence and under the Australian Consumer Law for misleading and deceptive conduct.
11. The draft writ and Standstill Agreement were sent to Komatsu Australia on 8 April 2024. An amended draft writ adding Komatsu Australia as the fourth defendant was sent to Komatsu Australia on 11 April 2024 with a further request to enter into the Standstill Agreement and advising that in the absence of agreement by 16 April 2024, CITIC would proceed to file the writ. The draft writ of 8 April 2024 stated an Australian address for Komatsu US. The draft writ of 11 April 2024 stated an address in the United States for Komatsu US. Both drafts referred to the third defendant as Komatsu Mining Corporation.[11]
12. Ms Kent explained in the June Affidavit that between 9 and 11 April 2024, Kennedys undertook further enquiries regarding the status of Komatsu US. Those enquiries included a business names search which revealed that 'Komatsu Mining Corp' and 'Komatsu Mining Corp Group' were business names owned by Joy Global Australia Pty Ltd.[12] Ms Kent in the June Affidavit made reference to communications between Kennedys and counsel who had drafted the writ. The communications remain privileged. Ms Kent deposed to the fact that Kennedys only appreciated the basis for Komatsu US's inclusion as the third defendant on 11 April 2024, following receipt of privileged advice from counsel and the relevant investigations.[13] I infer from Ms Kent's affidavit that the precise identity of the third defendant 'Komatsu Mining Corporation' remained unclear, and the subject of ongoing advice from counsel and investigation until 11 April 2024.
13. On 11 April 2024 Kennedys also wrote directly to Komatsu US enclosing a draft writ naming four defendants, with Komatsu US as third defendant. As with the draft writ of 11 April 2024 sent to Komatsu Australia, this version of the draft writ (unlike the previous draft, dated 8 April 2024, which gave an Australian address for Komatsu US), gave an address in the United States for the third defendant. The letter repeated the request for consideration of the Standstill Agreement together with the threat to file the writ without further notice if no standstill agreement could be reached by 16 April 2024.[14]
14. Komatsu US contended in this application that Ms Kent's evidence - that Kennedys only appreciated the basis on which Komatsu US was included as the third defendant on 11 April 2024 - ought to be rejected as implausible. It was submitted that Kennedys must have identified Komatsu US as the third defendant when it received from counsel the draft writ naming Komatsu US as the third defendant, which Kennedys sent to Colin Biggers & Paisley on 5 April 2024.[15]
15. While there is some superficial force to that submission, a careful review of the evidence lends credibility to Ms Kent's evidence that it was not until 11 April 2024 that Kennedys were able to be confident of the precise identity and domicile of Komatsu US. In the circumstances, I am not prepared to reject Ms Kent's evidence, and I will therefore proceed on the basis that it was not until 11 April 2024 that Kennedys properly appreciated the identity and domicile of Komatsu US.
16. The Standstill Agreement was not accepted by any of the proposed defendants. CITIC instructed Kennedys to file the writ.
17. Kennedys filed the writ electronically on 19 April 2024. The payment receipt from the court registry is time-stamped 3.25 pm on 19 April 2024. The writ contained a detailed Indorsement of Claim referring to claims for breach of contract and claims under the Australian Consumer Law for misleading and deceptive conduct and negligence. Damages were sought under the general law, under the Sale of Goods Act 1895 (WA) or under the Australian Consumer Law.
18. It is not in dispute that Kennedys filed a writ using Form 1 of Sch 2 of the Rules. I will return to the significance of that later in these reasons.
19. Komatsu US contends, on the basis of the evidence disclosed, that CITIC intended to serve Komatsu US in the United States at its registered office or in any event, outside Australia. I accept that is a real possibility that is suggested by the emails from Kennedys to the court referred to below at [‎26], particularly the email of 1 May 2024 from Kennedys which stated that the third defendant would 'need to be served out of the j[16]isdiction.16 Nor did Kennedys disavow the statement from the Registrar on 6 May 2024 (discussed below at [‎27]) that Kennedys had sought to file the writ to 'serve o[17] of the jurisdiction'.17 Kennedys' response as set out below at [‎28] was to advise the court that the 'plaintiff has decided not to serve the writ outside Australia'. However, the correspondence does not appear to have been written with a mind directed to the actual intent of Kenn[18]ys at the time of filing the writ.18 It is equally possible that Kennedys did not have that intent at the time, or indeed any particular intent. It is entirely plausible that Kennedys were focused on filing the writ within time and left for another day the question of service, including the prospect of serving the third defendant on solicitors in Australia. In my view, the evidence does not rise to the point that justifies a finding of an actual intent to file the writ of summons outside Australia. As will be explained, in my view in any event, the subjective intent of Kennedys is unlikely to be material to the manner in which the writ ought to have been dealt with by the court registry.
20. In a similar vein, Komatsu US contested the proposition that CITIC's failure to apply for leave under O 5 r 9 of the Rules was simply an oversight. In that regard, Komatsu US sought to challenge the conclusion at [8] of the Howard J reasons that CITIC had 'simply overlooked the requirement of O 5 r 9'. At the same time, counsel for Komatsu US expressly disavowed any contention that CITIC had deliberately sought to circumvent the Rules. In those circumstances and on the basis of the evidence before the court I would reach the same conclusion as Howard J; to the extent that it was relevant, CITIC simply overlooked the requirement of O 5 r 9.
21. The writ was not sealed by the court registry. This does not appear to have been formally conveyed to Kennedys until some time later. On the afternoon of 24 April 2024, someone from the Perth office of Kennedys discovered from a conversation with a court officer that the writ had not been sealed and issued. On 1 May 2024, a lawyer from Kennedys emailed the associate to the Principal Registrar to clarify the position. The email advised that the writ was filed on 19 April 2024 to avoid the claim being defeated by the limitation period.[19]
22. On 6 May 2024,[20] a Registrar of the court emailed a letter to Kennedys. The letter was dated 3 May 2024 and included the following:

The Writ of Summons that you have sought to file [on] 19 April 2024 and serve out of the jurisdiction has been referred to me for consideration.

The writ has named as a second defendant a company located in the United States.

There are two distinct requirements in relation to such a writ:

1. A writ for service outside Australia shall not be issued without the leave of the Court: Order 5 r 9 Rules of the Supreme Court 1971 (WA) (RSC).
2. Service of the writ outside Australia: O 10 RSC. Requirements for leave to serve depend upon the circumstances.

If leave for service of the writ were required, the application for leave may be made concurrently with the application for leave to issue the writ.

...

... To my knowledge, no application has been made for leave pursuant to O 5 r 9 RSC for the writ to be issued to enable it to be sealed ...

...

The plaintiff is required to make an application to the Court for leave, on an ex parte basis, to issue the writ to be served outside the jurisdiction (in circumstances where the court must grant leave before the proper office can seal the writ, causing it to issue) ...

Upon leave being granted, and subject to any order made as to the grant of leave by the Judge making the order, the writ may be sealed.

As you have expressed concern as to the limitation period, and for the avoidance of doubt, I have not refused at this stage to accept the writ for filing on file CIV 1438 of 2024 but will provide you with the opportunity to obtain leave to issue the writ pursuant to O 5 r 9 RSC as of 19 April 2024 when it was provided to the Court and the proposed orders should reflect that so that orders may be obtained in those terms.

1. On 8 May 2024, Kennedys responded to the Registrar in the following terms:[21]

We have taken our client's instructions and the Plaintiff has decided not to serve the Writ outside Australia and undertakes to the Court not to do so without obtaining the Court's leave.

In those circumstances and having regard to the Plaintiff's undertaking, please advise whether the Court is prepared to seal the Writ.

If you remain of the view that the Plaintiff should seek the leave of the Court before the Writ is sealed, then the Plaintiff will make the application.

1. In response to that email, Kennedys received an email from the associate to the Registrar which advised:[22]

The correct procedure is set out in the letter of [the Registrar] dated 3 May 2024.

An undertaking not to serve the Writ outside Australia does not resolve the issue as the Writ cannot be sealed until leave has been given.

Accordingly, the Writ will not be accepted for filing.

1. Kennedys promptly responded with a further email which included the following:[23]

We note the procedure set out in the letter of [the Registrar] dated 3 May 2024. In that regard, please note that our email of earlier today should not be read that our client has instructed us not to apply for the Court's leave to issue. We are in the process of finalising an application for leave. We should be grateful if [the Registrar] would await receipt of the application before taking steps to reject the Writ. No discourtesy is intended by the delay.

1. Later that afternoon, a further email was sent to Kennedys. It was sent from the same associate but this time on behalf of a different Registrar. The email advised as follows:[24]

Please disregard the [email set out at [‎29] above] which was sent in error ... I can confirm that the Registrar has refused the Writ for filing. The Supreme court Registry has contacted you to refund the filing fee.

1. The next day, 9 May 2024, Kennedys sought to file an application for leave under O 5 r 9. That was not possible because the proceeding number of CIV 1438 had been closed by the registry. CITIC commenced CIV 1541 on the same day.
2. The application in CIV 1541 was argued before Howard J ex parte on 29 May 2024. As the Howard J reasons make clear, his Honour was persuaded that leave under O 5 r 9 should be granted and that in the circumstances the court had the power to grant that leave nunc pro tunc so that the writ operated retroactively to the date on which CITIC filed it, that is, 19 April 2024. Howard J was persuaded that the power should be exercised in those terms, in all the circumstances.

1. In this proceeding, Komatsu US seeks to set aside the orders of Howard J in CIV 1541. Broadly, the application was put on two bases. First, it was contended that the court did not have the power under O 2 r 1 to cure the lack of leave under O 5 r 9 retrospectively. Secondly, it was put that even if the court was so empowered, to do so would not be a proper exercise of the discretionary power.
2. I shall deal with each limb of the application in turn. Before doing so, it is convenient to set out the relevant rules.

(1) Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.

(2) Subject to subrule (3) the Court may, on the ground that there has been such a failure as is mentioned in subrule (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings, or any document, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.

1. Order 5 deals with writs of summons. It includes the following rules:
   1. Form of writ

The writ for the commencement of an action, shall, except in the cases in which any different form is provided in these rules, be in Form No. 1 or 2, whichever is appropriate.

A writ to be served outside the State shall be in the form of Form 3.

...

Every writ shall be issued out of the Central Office.

Writs shall be prepared by the plaintiff or his solicitor.

Issue of a writ takes place upon its being sealed by the proper officer.

...

1. 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.

1. Order 7 includes provision for concurrent writs to allow the same writ to be served in and out of the jurisdiction to different defendants. Order 7 r 3(1), (2) and (3) provide:

Concurrent writs

(1) One or more concurrent writs may, at the request of the plaintiff, be issued at the time when the original writ is issued or at any time thereafter before the original writ ceases to be valid.

(2) Each concurrent writ shall bear teste of the same day as the original writ, and shall be sealed by the proper officer with a seal bearing the word "Concurrent" and the date of issue of the concurrent writ.

(3) Without affecting the generality of subrule (1) - (a) a writ to be served within the jurisdiction may be issued as a concurrent writ with one to be served out of the jurisdiction; and (b) a writ to be served out of the jurisdiction may be issued as a concurrent writ with one to be served within the jurisdiction.

1. Order 9 deals with service of an originating process. Order 9 r 3 is concerned with service pursuant to the mechanism provided by a contract. It provides:

Effect of serving writ in accordance with contract

(1) Where -

(a) a contract contains a term to the effect that the Supreme Court shall have jurisdiction to hear and determine any action in respect of a contract or, apart from any such term, the Supreme Court has jurisdiction to hear and determine any such action; and

(b) the contract provides that, in the event of any action in respect of the contract being begun, the process by which it is begun may be served on the defendant, or on such other person on his behalf as may be specified in the contract, in such manner or at such place (whether within or out of the jurisdiction), as may be so specified,

then if an action in respect of the contract is begun in the Supreme Court and the writ by which it is begun is served in accordance with the contract the writ shall, subject to subrule (2), be deemed to have been duly served on the defendant.

1. Order 10 is concerned with service outside the jurisdiction. It was the subject of significant amendment in 2024 so as to permit service outside the jurisdiction without leave in a wide variety of circumstances that would encompass the overwhelming majority of proceedings. Order 10 r 5 provides:

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;

(c) when the claim is in respect of a breach in Australia of any contract, wherever made, whether or not that breach was preceded or accompanied by a breach outside Australia that rendered impossible the performance of that part of the contract that ought to have been performed in Australia;

(d) when the claim -

(i) is for an injunction to compel or restrain the performance of any act in Australia; or

(ii) is for interim or ancillary relief in respect of any matter or thing in or connected with Australia, if that relief is sought in relation to judicial or arbitral proceedings commenced or to be commenced, or an arbitration agreement made, in or outside Australia (including, without limitation, interim or ancillary relief in relation to any proceedings under the International Arbitration Act 1974 (Commonwealth) or the Commercial Arbitration Act 2012); or

(iii) without limiting subparagraph (ii), is an application for a freezing order or ancillary order under Order 52A in respect of any matter or thing in or connected with Australia.

(e) when the subject matter of the claim is land or other property situated in Australia, or any act, deed, will, instrument, or thing affecting the land or property, or the proceeding is for the perpetuation of testimony relating to the land or property;

(f) when the claim relates to the carrying out or discharge of the trusts of any written instrument of which the person to be served is a trustee and which ought to be carried out or discharged according to Australian law;

(g) when any relief is sought against any person domiciled or ordinarily or habitually resident in Australia (whether present in Australia or not);

(h) when any person outside Australia is

(i) a necessary or proper party to a proceeding properly brought against another person served or to be served (whether in Australia or outside Australia) under any other provision of these rules; or

(ii) a defendant to a claim for contribution or indemnity in respect of a liability enforceable by a proceeding in the Court;

(i) when the claim is for the administration of the estate of any deceased person who at the time of death was domiciled in Australia or is for any relief or remedy which might be obtained in any such proceeding;

(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);

(k) when the person to be served has submitted to the jurisdiction of the Court;

(l) when a claim is made for restitution or for the remedy of constructive trust and the person to be served's alleged liability arises out of an act or omission that was done or occurred wholly or partly in Australia;

(m) when it is sought to recognise or enforce any judgment;

(n) when the claim is founded on a cause of action arising in Australia;

(o) when the claim affects the person to be served in respect of the person's membership of a corporation incorporated in Australia, or of a partnership or an association formed or carrying on any part of its affairs in Australia;

(p) when the claim concerns the construction, effect or enforcement of an Australian enactment;

(q) when the claim -

(i) relates to an arbitration held in Australia or governed by Australian law; or

(ii) is to enforce in Australia an arbitral award wherever made; or

(iii) is for orders necessary or convenient for carrying into effect in Australia the whole or any part of an arbitral award wherever made;

(r) when the claim is for relief relating to the custody, guardianship, protection or welfare of a minor present in Australia or who is domiciled or ordinarily or habitually resident in Australia (whether present in Australia or not);

(s) when the claim, so far as concerns the person to be served, falls partly within 1 or more of the above paragraphs and, as to the residue, within 1 or more of the others of the above paragraphs.

1. There can be no doubt, and it was not contended otherwise, that the claim in CITIC's writ in CIV 1438 came within the scope of O 10 r 5 and that leave would not have been required for service of the writ outside the jurisdiction once issued.
2. Finally, it is convenient to refer to O 67A, which deals with the filing of documents. It includes the following rules:
   1. Terms used

In this Order -

complying document means a document the form and content of which comply with these rules and any Court order or direction;

...

(1) A person who is required by these rules or the Court to file a document, or who wants to do so, must, in accordance with this Order, present a complying document to the Court for filing.

(2) The complying document must be presented together with any fee required to be paid when filing it or with the information the Court needs to enable the Court to be paid the fee.

(3) A person must not present more than 1 copy of a document to the Court for filing unless these rules or the Court requires more than 1 copy to be filed.

(4) If a party is required by these rules or the Court to file a document, the party cannot, without the Court's leave, refer to or rely on the document in any hearing or in any other filed document unless it has been filed.

(5) If under subrule (4) a party is given leave, the party must file the document as soon as practicable after the leave is given.

(6) The Principal Registrar may refuse to file a document that is presented for filing if it is not a complying document or has been presented in contravention of this Order or a direction given under rule 3(4).

(1) To present a complying document to the Court for filing, a person must present it electronically using the ECMS and in accordance with rule 4 unless -

(a) the ECMS has been declared unavailable for use under Order 67 rule 19, is otherwise unavailable for use or does not permit the document to be presented; or

(b) these rules state that the document cannot be filed electronically; or

(c) the document is filed for the purposes of proceedings or matters referred to in Order 1 rule 3(2) or (3); or

(d) the document is filed for the purposes of Order 75A or 81H; or

(e) the document is filed for the purposes of a criminal appeal, as defined in the Supreme Court (Court of Appeal) Rules 2005 rule 3(1); or

(f) the document is filed for the purposes of an application under the Terrorism (Extraordinary Powers) Act 2005 or the Terrorism (Preventative Detention) Act 2006; or

(g) the document is filed for the purposes of an urgent application made outside office hours; or

(h) the document is filed by a person given permission under subrule (3) to file it otherwise than in accordance with this rule; or

(i) the document is in a class of documents declared in the Practice Directions to be exempt from the requirement to be filed using the ECMS; or

(j) the document is filed by a person in a class of persons declared in the Practice Directions to be exempt from the requirement to file using the ECMS.

1. Documents presented for filing using ECMS or email

(11) A document filed by email is taken to have been filed on the day and at the time when the Court receives the email.

1. As this matter concerns the issue of a writ of summons and the consequences arising under the Limitation Act 2005 (WA) (Limitation Act), reference should also be made to s 12 of that Act. Section 12 of the Limitation Act provides that a reference to the commencement of an action is a reference to the issue in the appropriate court of a writ. As noted above, O 5 r 6 provides that the issue of a writ takes place upon its being sealed.
2. It was not in dispute that Komatsu US was entitled to a review. Whether that review is entirely de novo or requires the demonstration of error or new material remains a matter of some uncertainty in this jurisdiction. The appropriate course is to consider the matter on both bases.[25]

1. Order 2 r 1 provides a broadly expressed remedial power.
2. In these proceedings, Komatsu US filed primary submissions dated 16 May 2025 and responsive submissions dated 30 July 2025. In those submissions, which it supplemented with oral argument, Komatsu US submitted that notwithstanding its breadth, on its proper construction O 2 r 1 was not enlivened. That is because proceedings are extant when they are issued. If a writ is not issued, there are no proceedings in respect of which the remedial power may operate. Under O 5 r 6 the writ is not issued until it is sealed. The writ here was not sealed and was therefore not issued. Order 2 r 1 could not therefore be enlivened.
3. In Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; 35 WAR 412 the Court of Appeal considered the history of Order 2 r 1 at [48]:

This order was in the rules when they came into existence in 1971. The order is in the same terms as the English O 2 r 1, which was introduced into the English rules in 1964. According to Lord Denning in Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729 at 735 - 736:

This new rule does away with the old distinction between nullities and irregularities. Every omission or mistake in practice or procedure is henceforward to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice.

Lord Denning said at page 734 that the new rule was enacted so as to 'get over the decision in Re Pritchard (Deceased) [1963] Ch 502'. In Metroinvest Ansalt v Commercial Union Cumming-Bruce LJ said at 518:

It is quite clear from Harkness v Bell's Asbestos and Engineering Ltd ... that the mischief at which the revision of the rules was aimed was to remove the distinction between irregular purported proceedings which were ab initio a nullity from irregular proceedings which were not void ab initio. The content of Order 2 is designed to enable the court, whenever faced with anything done or left undone in proceedings which constitutes a failure to comply with the requirements of the rules, to exercise the powers conferred by the rules without having first to decide whether the jurisdiction conferred by the rules applies at all.

See also the discussion by Spender J in Re Zagoridis; Ex parte Q'Plas Group Pty Ltd [1990] FCA 459; (1990) 27 FCR 108 about the history of the rule.

1. In Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729 (Harkness), Mr Harkness discovered his asbestosis in May 1963. The statutory regime set a three-year limitation period that had long passed. However, the legislation permitted leave of the court to be given where the person was unaware of the disease, provided the plaintiff brought the action within 12 months of discovering the disease. That meant Mr Harkness had to obtain leave from the court and issue his writ by May 1964. In April 1964, Mr Harkness applied for leave. He obtained an order from the district registrar and issued a writ on 17 April 1964. However, the registrar did not have jurisdiction to give leave and the form of the order was defective - it did not in terms grant leave as required by the statute. Mr Harkness applied under the equivalent of O 2 r 1 (which was in fact also O 2, r 1 of the applicable English rules) to rectify the registrar's order and have it treated as valid. In the Court of Appeal, it was submitted against Mr Harkness that O 2 r 1 could not be enlivened to rectify the order of the registrar because it was made prior to the issue of any writ. There was therefore no 'proceeding' in respect of which O 2 r 1 could operate. Of that contention Lord Denning said the following:[26]

First, it is said that at the time of the registrar's order, there were no 'proceedings'; because no writ had been issued. So the rule, it was said, did not apply. I think this is far too narrow an interpretation. This rule should be construed widely and generously to give effect to its manifest intentions. I think that any application to the court, however informal, is a 'proceeding'. There were 'proceedings' in being at the very moment that the plaintiff made his affidavit.

1. Lord Denning thus characterised the approach to the provision - it is to be construed 'widely and generously'. And that has been the approach to its application, consistent with its obviously remedial object.
2. In my view where a writ has been issued without leave having been granted under O 5 r 9 the deficiency can be cured under O 2 r 1. There is no shortage of authority to that effect in this and other jurisdictions; see Leal v Dunlop Bio‑Processes International Ltd [1984] 1 WLR 874 at 884; Re QBE Insurance Ltd; ex parte Darmoko [2002] WASC 34 at [27]; QBE Insurance Ltd v Darmoko [2001] WADC 61 at [9] - [10]; Australian Commercial Research and Development Limited v ANZ McCaughan Merchant Bank Limited [1990] 1 Qd R 101 at 109 - 110; Lightsource Technologies Australia Pty Ltd v Pointsec Mobile Technologies AB [2011] ACTSC 59; (2011) 250 FLR 63 at [56].[27]
3. Nor do I consider that the position is different if the writ had not been sealed. In Melglow Pty Ltd v Ballygrowman Pty Ltd [2006] WASC 383 (Melglow), Banks-Smith J said of a failure to seal an originating process:

I consider failure to affix a seal to be an irregularity in the issuing of proceedings. It falls squarely within the words of O 2: something has been left undone or there has been a failure to comply with a rule, 'in beginning or purporting to begin any proceedings'. The error is not such as to fall within any of the identified categories where O 2 cannot be utilised. Accordingly, it is open to me to exercise my discretion to regularise the irregularity. I note for completion that in Leal v Dunlop Bio-Processes International Ltd, whilst obiter, Slade LJ considered that the wording of O 2 r 1 was broad enough to give the court jurisdiction to cure the irregular 'issue' of a writ.[28]

1. In that case, the court was not dealing with a writ that had been neither sealed nor issued. Rather, it was dealing with a writ that had been issued but without a seal. It would seem to me to be odd, however, if the court had a power to cure a writ that was erroneously issued without a seal but did not have the power to cure a writ filed in proper form that was erroneously neither sealed nor issued. Whether that is what happened here is a matter considered below in respect of the discretionary factors.
2. In its responsive submissions, Komatsu US accepted that the court has the power under O 2 r 1 to cure a writ that was issued without necessary leave having been obtained under O 5 r 9. Komatsu went on to submit, however, that whether the limitation period had expired was 'a critical issue in considering whether to exercise such power'.[29] That is, in the circumstances of the writ having been erroneously issued, the issue is one of discretion, not power.
3. That is, Komatsu US accepted that if the court had sealed and issued the writ in error without leave having been granted under O 5 r 9, then O 2 r 1 would operate to empower the court to cure the absence of leave. As will be considered further, in relation to the issue of discretion, Komatsu US contended that the court registry was correct to refuse the writ. On the position urged by Komatsu US, if the court had, in error, failed to seal and issue the writ for whatever reason, then a plaintiff would not have the benefit of the remedial power of O 2 r 1 because the writ had not been issued.[30] The result of that approach is that where the plaintiff is the beneficiary of the court's error, the plaintiff enjoys the benefit of the court's remedial power. But where the plaintiff is the victim of the court's error, it is denied the benefit of the remedial power. That rather perverse outcome suggests it is unlikely to reflect the proper construction of the rule.
4. Turning to the text of O 2 r 1, it should first be noted that the provision is plainly remedial in character. As a general principle, remedial legislation is to be given a fair, large and liberal interpretation and is to be beneficially construed so as to provide the most complete remedy of the situation which it is intended to address.[31]
5. In my view, giving the provision a broad and liberal construction, CITIC's apparent failure to obtain leave under O 5 r 9 if that was required, was a thing left undone or a failure to comply with the rules in beginning or purporting to begin a proceeding or in connection with any proceedings.
6. It must be accepted that O 2 r 1 does not empower the court to cure a substantive or jurisdictional deficiency or to cure the breach of a statue.[32] But the rule conveys a broad power to cure the failure to obtain leave which the court would have had power to grant had there been an application. In my respectful view, the submission of Komatsu US that there was no power because there was no issued writ and therefore no proceeding is an unduly legalistic construction that is inconsistent with the manner in which a remedial provision should sensibly be construed.
7. Moreover, if the court wrongly failed to seal and issue the writ then I consider that was a thing left undone in connection with a proceeding or in purporting to begin a proceeding, as is squarely contemplated by O 2 r 1(1).
8. Accordingly, under O 2 r 1(2) the court in my view was empowered to make such order dealing with the proceedings generally as it thinks fit.
9. For those reasons I consider that the orders made by Howard J were within the power of the court.

1. Having concluded that the court had the power to make the orders made by Howard J, it is necessary to consider the exercise of the discretionary power in the circumstances. That, again, is appropriately done by a de novo review and also by looking at whether there was any error in the exercise of the discretion at the first hearing, a failure to provide relevant information or on the basis of new information that has come to light.
2. Komatsu US placed particular emphasis on the fact that the retrospective nature of the orders of Howard J had the effect of depriving Komatsu US of a statutory limitation defence. Komatsu US contends that is unjust and prejudicial because it deprives Komatsu US of a limitation defence which it would otherwise have been able to deploy.[33] Further, Komatsu US points out that there is no case in which the power under O 2 r 1 has been exercised to cure a failure to obtain leave under O 5 r 9 in circumstances where that would deprive the defendant of the benefit of a limitation defence.[34]
3. I do not consider there was any error in the exercise of the discretion by Howard J. I agree with Howard J in respect of each of the discretionary factors his Honour set out at [79(1) - (4)] of the Howard J reasons.
4. I would add the following considerations.
5. First, as I have observed above, there was some degree of complexity and understandable confusion about the precise identity of 'Komatsu Mining Corporation'.[35] That is not a matter in respect of which it is appropriate or even possible to apportion blame or responsibility. The complexity and confusion were nevertheless a reality.
6. Secondly, as I have also observed above, this is not a case where the plaintiff sat on its hands, did not communicate with the proposed defendants, and then arose from obscurity at the last moment to assert its rights as they were about to expire. The evidence shows that CITIC was communicating fairly candidly with the group of related defendants, sharing relevant information and foreshadowing its intentions from around August 2019 onwards.[36]
7. Thirdly, in the context of CITIC's promptitude in bringing its application for leave (the point at [79(2)] of the Howard J reasons), it is relevant that it was CITIC's lawyers rather than the court who appear to have initiated the enquiries that led to CITIC's belated discovery of the problem.[37] No criticism can be levelled in circumstances where CITIC had left the filing of the writ, effectively, to the last day of the limitation period (which was a Friday), when the following week included a public holiday (Anzac Day). However, the fact appears to be that some time passed before Kennedys were made aware of the situation.
8. Fourthly, an important factor in the exercise of the court's discretion is whether the court registry was correct or otherwise in refusing and therefore not sealing and issuing the writ. That is of particular significance to the prejudice asserted by Komatsu US through the loss of its statutory limitation defence. If the court ought to have sealed and issued the writ on the day it was filed, 19 April 2024, then in my view that would be a powerful factor weighing in favour of CITIC in the exercise of the court's discretion.
9. Komatsu US contends that the registry was correct to take the view that leave under O 5 r 9 was required and the writ ought not to have been sealed and issued.[38] That is because CITIC included as the third defendant, an entity, Komatsu US for which a foreign address was provided on the face of the writ. Komatsu US pointed to O 67A. It submits that the failure to obtain leave under O 5 r 9 meant that the writ was not a 'complying document'. Under O 67A r 2(1) the writ was required to be a complying document. The registry was entitled, and indeed quite properly refused, to accept the document pursuant to O 67A r 2(6).[39]
10. O 5 r 9 provides that leave is required in respect of a writ 'for service outside Australia'. A writ to be served on a person or entity ordinarily domiciled outside Australia need not be served outside Australia. For example, it is commonly the case that a law firm in Western Australia will have instructions to accept service for such a person or entity. Under O 9 r 3 there may be service on a foreign entity within the jurisdiction in accordance with a contractual provision. Simply put, the notation of a foreign address of a defendant on the face of a writ does not of itself mean that the writ is necessarily 'for service outside Australia'.
11. In my view the words 'for service outside Australia' contained in O 5 r 9 are not necessarily referable to the address of the defendant disclosed on the writ. Rather, it is a reference to the process of service intended by the plaintiff. If the plaintiff is proposing to serve the foreign person or entity in Western Australia no leave is required. Conversely, if the plaintiff proposes to serve a defendant outside Australia, then leave under O 5 r 9 if required. And that is the case even if the defendant is ordinarily domiciled in Australia and the address disclosed on the face of the writ is an Australian address. That is, O 5 r 9 is enlivened whenever it is proposed that the plaintiff will serve a writ outside Australia - irrespective of the address on the face of the writ and irrespective of the domicile of the defendant.
12. That in turn raises the question of the basis upon which the registry is to determine whether leave under O 5 r 9 is required.
13. In my view, the answer is provided by the Rules themselves. Order 7 provides for a request to be made for concurrent writs so that the writ may be served both within and outside the jurisdiction. Order 9 r 3 makes plain that a contractual provision may embody an agreement for service of a foreign entity within the jurisdiction. Order 5 r 1 and O 5 r 2 prescribe the different forms depending on where the writ is to be served. A Form 3 'shall' be used for a writ to be served outside Western Australia.
14. In this matter, CITIC filed a writ using a Form 1, not a Form 3. It named five defendants. Four of the five had Australian addresses. The address of the third defendant on the face of the writ was in the United States. The fourth defendant also bore the name 'Komatsu' and its address was in Australia. No concurrent writ was issued to facilitate service both within and outside the jurisdiction as permitted by O 7 r 3(3). In all the circumstances, there seems to me to be force in the argument that the registry was not in a position to refuse the writ simply on the basis of the foreign address of the third defendant.
15. It may be accepted that the issue is attended with some uncertainty for both practitioners and the registry itself. The uncertainty is possibly compounded by amendments to O 10 in April 2024, that for most cases removed the requirement for leave to serve outside the jurisdiction.
16. In Perpetual Corporate Trust Limited v Kottalewala [2025] WASC 250 Gething J recently observed at [26] - [27]:

RSC O 10 was amended significantly with effect from 9 April 2024 by removing, generally speaking, the need to obtain leave prior to serving proceedings outside Australia. This brought the RSC largely into line with the rules for service out of the jurisdiction in the Federal Court of Australia, and the Supreme Courts of New South Wales, Queensland, Victoria and South Australia. Relevantly for present purposes, RSC O 10 r 5 sets out a large number of circumstances in which an originating process may be served outside Australia without leave.

There is some tension between RSC O 10 r 5 and RSC O 5 r 9. RSC O 5 r 9 was not amended at the same time as RSC O 10. There is no equivalent provision in the rules of the other mentioned jurisdictions. So it does appear anomalous. Be that as it may, until such time as it is removed, RSC O 5 r 9 must be given effect to. This creates a requirement for leave to be obtained to issue a writ which is to be served out of Australia, even though leave to serve it is not required.

1. In his Honour's reasons, Howard J explained why the leave under O 5 r 9 may still serve an important function. The seemingly anomalous outcome to which Gething J referred may nevertheless require further consideration. A question may arise in circumstances where the plaintiff intended to serve within Australia and then later, due to a change of circumstances, resolved to serve the writ outside Australia. For example, an arrangement for solicitors within the jurisdiction to accept service may be undone by the termination of the solicitors' engagement. Or a defendant ordinarily resident in Australia may have moved overseas at the point that the limitation period or the writ itself is to about to expire.
2. It might also be said that if the matter is to be determined in the registry by the plaintiff's choice of form, then the necessity for leave under O 5 r 9 can be too easily circumvented. That concern might be answered by the ability of an entity that has been served overseas without leave having been obtained under O 5 r 9 to challenge the court's jurisdiction. That will likely in turn trigger a forensic enquiry that will provide the opportunity to expose any deliberate circumvention of the Rules.
3. These may be questions for another day. For present purposes I do not consider that I need to decide conclusively whether or not the registry ought to have sealed and issued the writ. It seems to me, with respect, for the reasons I have outlined, that in the circumstances set out at [‎74], it is at least reasonably arguable that the registry ought to have done so.
4. On the basis that such a contention is at least arguable, it seems to me that it is a consideration which weighs in favour of the orders made by Howard J.
5. It is also necessary to consider Komatsu US's contention that CITIC failed to give a full and frank disclosure as to when it first identified Komatsu US as a prospective defendant. That is because Ms Kent in her affidavit material before Howard J deposed to the fact that it was only on 11 April 2024 that Kennedys identified Komatsu US as a proper defendant, whereas the evidence shows that in truth Kennedys must have known that on 2 April 2024 (at the latest). For the reasons explained at [19] - [20] above, I am not prepared to accept that there was a material failure of disclosure in that regard.

1. In the circumstances, I consider that no material error has been exposed in the Howard J reasons. I would in any event come to the same conclusion as Howard J on a de novo reconsideration of the matter.
2. For those reasons, I conclude that:
   1. There was no material error in the Howard J reasons;
   2. There was no material non-disclosure in the proceedings before Howard J;
   3. There is no new material that would persuade me to come a different conclusion to that reached by Howard J;
   4. On a de novo review, I would come to the same conclusion as Howard J. I consider that the court had the power to make the orders made by Howard J, and I would exercise that discretionary power to arrive at the same outcome.
3. In the circumstances, Komatsu US's application ought to be dismissed.

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

[1] Affidavit of Rhianedd Llinos Kent, 10 May 2024 (10 May Affidavit) [12].

[2] 10 May Affidavit; see also Plaintiff's Amended Chronology, 27 August 2025, 1 (Plaintiff's Amended Chronology).

[3] 10 May Affidavit, Attachment B, 18 - 19; see also Plaintiff's Amended Chronology, 1.

[4] 10 May Affidavit, Attachment O, 109.

[7] 10 May Affidavit, Attachment Q, 253.

[8] 10 May Affidavit, Attachment R, 314; see also Plaintiff's Amended Chronology, 2.

[9] 10 May Affidavit, Attachment R, 325.

[10] 10 May Affidavit, Attachment R, 314.

[11] Plaintiff's Amended Chronology, 2 - 3.

[14] 10 May Affidavit, Attachment K, 53; Plaintiff's Responsive Submissions [18].

[15] 10 May Affidavit, Attachment R, 314.

[16] 10 May Affidavit, Attachment T, 368.

[17] 10 May Affidavit, Attachment U, 390.

[18] 10 May Affidavit, Attachment U, 390.

[19] 10 May Affidavit, Attachment T, 368.

[20] The letter bears the date 3 May 2024, which was a Friday. Ms Kent in her first affidavit at [41] deposes that the letter was received by Kennedys on 6 May 2024. The letter appears to have been sent by email. It appears it was prepared on Friday, 3 May 2024 then sent by email on Monday, 6 May 2024; 10 May Affidavit, Attachment U, 390 - 391.

[21] 10 May Affidavit, Attachment W, 394.

[22] 10 May Affidavit, Attachment W, 393.

[23] 10 May Affidavit, Attachment X, 395.

[24] 16 May Affidavit, Attachment AA, 7.

[25] See the discussion in GH1 Pty Ltd (In Liquidation) v Bazzo [2025] WASC 351, [39] - [46].

[27] See also Kent v Lechmere Financial Corporation [2002] WASC 75 at [23], Pullin J assumed without deciding that O 2 r 1 can cure a writ served without leave required by O 5 r 9.

[29] Plaintiff's Responsive Submissions [6].

[30] Plaintiff's Responsive Submissions [6] - [7].

[31] AB v Western Australia (2011) 244 CLR 390, 402 [24]; Khoury v Government Insurance Office of New South Wales [1984] HCA 55; (1984) 165 CLR 622, 638 (Mason, Brennan, Deane and Dawson JJ); In Barnes J, Dharmananda J and Moran E, Modern Statutory Interpretation: Framework, Principles and Practice (2023) 247.

[33] Plaintiff's Submissions in Support of the Application, 16 May 2025 [18(e)] (Plaintiff's Submissions).

[34] Plaintiff's Responsive Submissions, 30 July 2025 [6] (Plaintiff's Responsive Submissions).

[36] See [12] of these reasons; Plaintiff's Amended Chronology.

[37] 10 May Affidavit, Attachment T, 368.

[38] Plaintiff's Responsive Submissions [18].

[39] Plaintiff's Responsive Submissions [4].