The case of Australia and New Zealand Banking Group Ltd v Defendant [2023] WASC 428 concerned an application by ANZ for leave to serve a writ on a defendant outside of Australia. Justice Howard initially refused the application as ANZ had not included a draft writ, making it impossible to assess if the requirements for leave were met. After several further hearings and amended applications, Justice Howard granted leave, but expressed concern about the convoluted process for what should have been a straightforward application.

Justice Howard held that without a draft writ, the Court cannot assess if the plaintiff has shown its action falls within the required heads of jurisdiction under Order 10 Rule 1(1) of the Rules of the Supreme Court 1971 (WA) (paragraph 26).

His Honour emphasised that each cause of action must fall within the head of jurisdiction relied upon in the ex parte application (paragraphs 24, 25, 76 from Micon Mining and Construction Products GMBH & Co KG v MacMahon Mining Services Pty Ltd [2022] WASCA 56). Justice Howard also held the plaintiff must identify the precise rule under which leave is sought, and the proposed method of service (paragraph 22).

On costs, Justice Howard was concerned the defendant may be prejudiced by the plaintiff's failure to prosecute its application properly from the beginning (paragraphs 41, 67). His Honour considered it inappropriate for the actual costs of the convoluted process to be visited upon the defendant, whether by court order or contractually (paragraphs 68, 69). Justice Howard fixed the plaintiff's costs at $1,600 inclusive of filing fees, on condition the plaintiff provide an undertaking not to seek to recover more than this from the defendant (paragraphs 70, 71).

The case demonstrates courts may consider potential prejudice to defendants from a convoluted process when making costs orders. Applicants must prosecute such applications properly from the outset to avoid adverse costs consequences.