Micon Mining and Construction Products GMBH & Co Kg v Macmahon Mining Services Pty Ltd

[2022] WASCA 56

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Practice and Procedure
2. › Service out of jurisdiction
3. › Leave to issue and serve writ outside Australia
4. › Application to set aside leave granted ex parte
5. › Evidential standard of proof to demonstrate 'good arguable case'
6. › Proper test for determining questions of jurisdiction at interlocutory stage
7. › Whether UK approach in Brownlie and Kaefer should be adopted
8. › Rules of the Supreme Court 1971 (WA), O 10 r 1(1)
1. Practice and Procedure
2. › Service out of jurisdiction
3. › Jurisdictional gateways
4. › Whether applicant must establish all claims fall within a jurisdictional gateway
5. › Whether leave confined to grounds on which it was sought
6. › Rules of the Supreme Court 1971 (WA), O 10 r 1(1)(e)(iii)
1. Contract
2. › Formation of contract
3. › Identity of contracting party
4. › Whether contract formed with appellant or related company
5. › Objective assessment of documentary evidence
6. › Whether letter of intent constituted binding contract
7. › Masters v Cameron categories
8. › Vienna Convention on Contracts for the International Sale of Goods
1. Private International Law
2. › Proper law of contract
3. › Multifactorial approach
4. › Whether contract governed by law of Western Australia or Federal Republic of Germany
5. › Relevance of place of performance, currency, language, and delivery terms

Quick Take

The 'good arguable case' standard for jurisdictional gateways under O 10 r 1(1) RSC (WA) requires the plaintiff to show it has the better of the argument on available material (where a reliable assessment can be made) or a plausible albeit contested evidential basis (where it cannot), following the UK approach in Brownlie and Kaefer rather than the Agar v Hyde approach. This is a comparative exercise, not merely a test of arguability. The approach in Agar v Hyde is confined to rules of court that are materially different from O 10 RSC.