RE EAST ROCKINGHAM RRF PROJECT CO PTY LTD, EAST ROCKINGHAM RRF FINANCE CO PTY LTD & EAST ROCKINGHAM RRF HOLD CO PTY LTD; EX PARTE WIGHT, NIPPS, BIRCH & CONNEELY as joint and several receivers and managers of EAST ROCKINGHAM RRF PROJECT CO PTY LTD, EAST ROCKINGHAM RRF FINANCE CO PTY LTD & EAST ROCKINGHAM RRF HOLD CO PTY LTD [2025] WASC 414 (30 September 2025)

1. The plaintiffs' claim in these proceedings arise in respect of an engineering, procurement and construction contract that was entered into on 20 December 2019 (EPC Contract) between East Rockingham RRF Project Co Pty Ltd (Project Co), the defendants (KVI), and three Acciona parties.
2. The EPC Contract concerned the construction of a waste‑to‑energy recovery facility in the Rockingham industry zone in East Rockingham, Western Australia. The KVI and Acciona parties entered into agreements with a number of subcontractors in respect of the works to be performed under the EPC Contract. Project Co and the contractor also entered into collateral warranty deeds with four approved sub‑contractors.
3. On 18 October 2024, receivers were appointed over Project Co and other companies within this group and on 28 October 2024, voluntary administrators were appointed to these companies. Since that date, there have been a number of changes to the identity of the receivers, with the current plaintiffs being appointed on 22 January 2025.
4. On 28 October 2024, a notice was issued terminating the EPC Contract with effect from 18 November 2024. On 31 December 2024, step‑in notices were issued to each of the four approved sub-contractors in relation to the collateral warranty deeds.
5. The plaintiffs have issued a direction and demand to KVI for the provision of copies of various documents, as well as all approved sub‑contracts, which they say they are entitled to under the terms of the EPC Contract. The plaintiffs contend that KVI has failed to comply with these directions and demands, and are currently in breach of their obligations under the EPC Contract.
6. On 21 November 2024, the receivers issued proceedings against the Acciona parties and the KVI parties in relation to the EPC Contract. These proceedings are CIV 2390 of 2024, which I am currently case managing. There have been significant amendments made to the claim in those proceedings since that time, with the latest iteration of the statement of claim filed on 23 June 2025.
7. The plaintiffs say that there is a close relationship between these proceedings. They say it was necessary to commence these proceedings, as the cause of action in these proceedings arose after the date of the issue of the writ in CIV 2390 of 2024.
8. From a brief review of the statement of claim annexed to the writ in these proceedings against the current statement of claim in CIV 2390 of 2024, I accept that a number of the claims in each proceeding are identical, although the statement of claim in these proceedings raises additional issues.

Should leave be granted to issue the writ of summons for service outside of Australia?

1. The plaintiffs accept that at the time these proceedings were filed, leave was not sought to issue the writ for service outside of Australia. This was because they had requested that DLA Piper (who acts for KVI in CIV 2390 of 2024) confirm whether or not they had instructions to accept service of the writ on behalf of KVI. On 1 July 2025, DLA Piper confirmed it did not have instructions to accept service.
2. The legal principles that govern this application were summarised by the Court of Appeal in Micon Mining and Construction Products GMBH & Co KG v MacMahon Mining Services Pty Ltd.[1] As is made clear by this decision, it is necessary to read O 5 r 9 of the Rules with O 10 of the Rules. That is, the court 'will not grant leave to issue a writ for service outside of Australia unless the court would also grant leave to serve the writ outside of Australia'.[2]
3. Since this decision, O 10 of the Rules has been substantially amended to bring it in line with the procedure that operates in most, if not all, superior courts of Australia. Order 10 of the Rules now sets out a significant number of categories of originating processes that can be served outside Australia without leave, although the requirement for leave to issue the writ remains.
4. To enable a court to consider whether leave ought be granted to issue a writ, it is necessary for an applicant to put before the court:

(a) the proposed writ in respect of which leave is sought;

(b) an affidavit which sufficiently and effectively verifies the claim in the writ;

(c) an identification by the applicant of the provisions of O 10 of the Rules within which the plaintiff says its claim comes; and

(d) any other matter which, as a party moving ex parte, the applicant is aware of and which may impact the court's exercise of discretion to grant leave.

1. As already noted, the writ of summons has been filed in these proceedings, which I have reviewed for the purposes of this application. The causes of action in the statement of claim are, in my view, sufficiently and effectively verified by Mr Birch in his affidavit.
2. In their letter which accompanies the application, the plaintiffs have identified the provisions of O 10 of the Rules which their claims fall within. These include that the EPC Contract was to be wholly or partly performed in Australia and is governed by the laws of Western Australia (O 10 r 5(b)(iii) and O 10 r 5(b)(iv)); the documents sought by the plaintiffs are located in Australia, and, as such, the subject matter of the claim is located in Australia (O 10 r 5(e)), and that the claim is founded on a cause of action which arises in Australia (O 10 r 5(n)).
3. The plaintiffs have also drawn to my attention an issue which could adversely impact on the exercise of the court's discretion - namely, whether the court would stay the action because of an alleged failure by the plaintiffs to comply with the dispute resolution provisions set out in cl 37 of the EPC Contract. This clause survived termination of the EPC Contract.
4. Clause 37 of the EPC Contract provides 'any Dispute which arises between the Parties shall be resolved in accordance with Schedule 24'.
5. Schedule 24 of the EPC Contract requires that 'Disputes' must, within 21 business days after service of a 'Dispute Notice', be discussed at a meeting of senior representatives of each party. Those representatives must have the power to settle the dispute and must act in good faith to resolve it.
6. If the senior representatives cannot resolve the dispute by agreement, either party is then free to litigate.
7. In correspondence that has been exchanged between the parties, DLA Piper contends that the plaintiffs were required to issue a dispute notice before the commencement of the proceedings. The plaintiffs' solicitors deny this is the case. In their view, these proceedings form part of the same dispute that is the subject of CIV 2390 of 2024.
8. Notwithstanding this position, to protect itself, the plaintiffs issued a notice of dispute on 17 July 2025. As at today's date, there is no evidence that any substantive response has been received to this notice, nor has any meeting taken place. Any such meeting, if Schedule 24 of the EPC Contract applies, must occur not later than 15 August 2025.
9. In my view, while I accept there is a potential issue as to whether the plaintiffs were required to comply with Schedule 24 of the EPC Contract, I do not consider this, by itself, is a sufficient reason to refuse the application for leave. This is because if these discussions are unsuccessful, the plaintiffs are entitled to commence litigation. In my view, if there is an obligation to comply with Schedule 24 of the EPC Contract, the appropriate order would simply be to stay the proceedings until 15 August 2025. The question as to whether this is an appropriate order that should be made is a matter that can be addressed if required.
10. For these reasons, subject to the question as to what date these orders are to take effect from, I consider it is appropriate to grant leave to issue the proceedings pursuant to O 5 r 9 of the Rules.

1. In CITIC Pacific Mining Management Pty Ltd v Joy Global (Australia) Surface Pty Ltd,[3] Howard J discussed whether orders could be made by the court for an order for leave to take effect at an earlier date. In his reasons, his Honour referred to the observations of Pullin J in Kent v Lechmere Financial Corporation.[4] I respectfully agree with Howard J, for the reasons given by his Honour, that the court has power under O 2 r 1(2) of the Rules to make the orders sought by the plaintiffs.
2. In the circumstances of this case, for the following reasons, I accept that it is appropriate to make the order for leave to take effect as of 23 June 2025.
3. First, at the time the writ was issued, I accept there was a reasonable basis for the plaintiffs' belief that DLA Piper might accept service on behalf of the first defendant which would have obviated the need for any application.
4. Second, had the application been made prior to the issue of the writ, for the reasons that I have already given, I consider that leave would have been granted.
5. Third, there does not appear to be any substantive injustice that will be suffered by the first defendant if the orders that are sought are made.
6. Finally, the making of these orders would not prevent the first defendant from seeking to have these orders revoked or discharged.

1. These orders are sought pursuant to O 72 r 4 of the Rules, which provide:

(1) Where by these rules personal service of a document is required and it appears to the Court that personal service of such document on a person required to be served is impracticable, the Court may order that the document be served on that person by substituted service.

...

(3) Substituted service pursuant to an order under this rule is effected by taking such steps as the Court directs to bring the document to the notice of the person to be served, and has the same operation as personal service.

1. That is, under the Rules, in order to obtain an order for substituted service, it is necessary for the court to be satisfied that:

(a) personal service is 'impracticable'; and

(b) whether the form of substituted service proposed by the plaintiffs will bring the document to the notice of the person to be served.

1. The evidence before the court is that the first defendant is a company incorporated in Switzerland, which is a party to the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Convention); Switzerland requires service of foreign processes only in accordance with the Hague Convention; and compliance with these provisions may take many months. The plaintiffs say that these proceedings need to be determined urgently and, on that basis, contend that personal service is impracticable. Counsel for the plaintiffs drew my attention to a series of decisions in both the Federal Court and the New South Wales Supreme Court where orders have been made for substituted service. These orders have been made even where there has been no attempt to serve the proceedings in accordance with the rules of the relevant court or the Hague Convention.
2. While there is a slight difference in the wording of the Federal Court Rules 2011 (Cth) as opposed to the Rules,[5] I do not consider this difference to be material.
3. Counsel for the plaintiffs also, quite properly, drew my attention to the decision of Dawson J in Mondial Trading Pty Ltd v Interocean Marine Transport Inc.[6] In Argonaut Partners Pty Ltd v Abyssinian Metals Ltd,[7] Lundberg J distinguished this case on the basis that the orders for substituted service were sought as a means to avoid the requirements governing service outside of Australia.
4. In this case, it is self-evident that the plaintiffs do not seek orders for substituted service in order to avoid the requirements to obtain leave to serve outside of Australia. The plaintiffs have already brought an application for leave to serve outside of Australia and, for the reasons I have given, I am satisfied that the necessary requirements have been established.
5. In that context, if the process for service under the Hague Convention is followed, I accept that these processes are likely to take a number of months. In my view, it is in the interests of justice and good case management that orders be made to allow for the prompt and effective service of documents that will bring these proceedings to the attention of the first defendant.
6. The plaintiffs propose that service be effected by a combination of service of hard copy documents on the offices of DLA Piper in Perth, who are instructed to act for KVI in the proceedings that I have already referred to, as well as a separate set of proceedings in which KVI is the plaintiff. They also seek orders for service by email on a partner of DLA Piper, its general email address for service of court proceedings, and to the first defendant's general counsel.
7. In my view, these proposed orders are likely to bring the writ to the attention of the first defendant, and it is appropriate for this order to be made.

Should the time for the first and second defendants to file a memorandum of appearance be abridged?

1. The evidence before the court is that the second defendant has been served with the writ and statement of claim and is required to enter an appearance by 31 July 2025.
2. The basis for the application for an abridgement is two‑fold: first, the plaintiffs say these proceedings are urgent; and second, the other proceedings between the parties are listed for a case management hearing on 30 July 2025.
3. It is clear from the evidence before the court that DLA Piper informed the plaintiffs' solicitors on 1 July 2025 that it did not have instructions to accept service. Despite this, no attempt was made to serve the second defendant until 10 July 2025, and this application was not brought until 24 July 2025. In my view, if the proceedings were as urgent as contended by the plaintiffs, these steps should and would have been taken immediately upon receipt of these instructions. On this basis, I am not satisfied that the time for the second defendant to file its memorandum of appearance should be abridged.
4. In relation to the service on the first defendant, the evidence before the court is that a copy of the writ and statement of claim was provided to the first defendant's solicitors on 3 July 2025. In the circumstances of this case, I consider it would be appropriate for the 42‑day period provided for in O 10 r 9 of the Rules commence on this date and for the time for the first defendant to enter an appearance to be abridged to 4.00 pm on 14 August 2025, with the matter being listed for directions shortly after this.

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

[1] Micon Mining and Construction Products GMBH & Co KG v MacMahon Mining Services Pty Ltd [2022] WASCA 56.

[2] Micon Mining and Construction Products GMBH & Co KG v MacMahon Mining Services Pty Ltd [67].

[3] CITIC Pacific Mining Management Pty Ltd v Joy Global (Australia) Surface Pty Ltd [2024] WASC 254.

[4] Kent v Lechmere Financial Corporation [2002] WASC 75.

[5] Rule 10.48 of the Federal Court Rules 2011 (Cth) provides that a party may apply for deemed service if it is 'not practicable' to serve the document on the person outside Australia in accordance with, among other instruments, the Hague Convention.

[6] Mondial Trading Pty Ltd v Interocean Marine Transport Inc (1985) 65 ALR 155.

[7] Argonaut Partners Pty Ltd v Abyssinian Metals Ltd [2023] WASC 278.