PACIFIC NATIONAL SERVICES PTY LTD -v- TEAM GLOBAL EXPRESS PTY LTD [2026] WASC 337

[2026] WASC 337 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : PACIFIC NATIONAL SERVICES PTY LTD -v- TEAM GLOBAL EXPRESS PTY LTD [2026] WASC 337 CORAM : LUNDBERG J HEARD : 10 AUGUST 2026 DELIVERED : 14 AUGUST 2026 FILE NO/S : CIV 1519 of 2026 BETWEEN : PACIFIC NATIONAL SERVICES PTY LTD Plaintiff AND TEAM GLOBAL EXPRESS PTY LTD Defendant Catchwords: Practice and procedure - Appeal against Registrar's decision to refuse application for proceedings to be conducted as though commenced by writ of summons - Originating summons filed by plaintiff seeking proper construction of commercial instrument - Plaintiff sought to enlarge relief to include breach issue after the decision was made by the Registrar - Whether appropriate for proceeding to be conducted as though commenced by writ of summons - Whether hybrid approach to proceedings might be appropriate - Turns on own facts -- 1 of 12 -- [2026] WASC 337 Page 2 Legislation: Australian Consumer Law, s 236, s 237 Rules of the Supreme Court 1971 (WA), O 2, O 4, O 4A, O 58, O 59, O 60A Result: Defendant's appeal allowed. Category: B Representation: Counsel: Plaintiff : A J Papamatheos SC & P X R Mackenzie Defendant : S K Dharmananda SC & C E McKay Solicitors: Plaintiff : Schweikert Harris Defendant : Lander & Rogers Case(s) referred to in decision(s): Birla Nifty Pty Ltd v International Mining Industry Underwriters Ltd [2013] WASC 386 Carlin v Hamersley Iron Pty Ltd [2003] WASCA 270 City of Belmont v Link Interiors Pty Ltd [2001] WASC 64 CVW Group Holdings Pty Ltd v Addison [2011] WASC 267 Hamersley Iron Pty Ltd v Hancock (Unreported; SCt of WA (Olney J); Library No 5195; 23 December 1983) Koh v Samuel Conrad Buckeridge as executor of the estate of Leonard Walter Buckeridge [No 2] [2021] WASC 148 Priority Networking Pty Ltd v Peterson [2018] WASC 36 Re Deadman decd. Smith v Garland and Others [1971] 1 WLR 426 -- 2 of 12 -- [2026] WASC 337 LUNDBERG J Page 3 LUNDBERG J: 1 The parties to this proceeding, Pacific National Services Pty Ltd and Team Global Express Pty Ltd (TGE), are in dispute as to the proper construction of the Sublease instrument which governs the legal relationship between them. By the terms of that Sublease, TGE (as an assignee) leases industrial premises within the Perth freight terminal area in Kewdale from Pacific National (as the Sublease landlord).1 The land is owned by the Public Transport Authority. 2 By the originating summons, filed pursuant to O 58 r 10 of the Rules of the Supreme Court 1971 (WA) (RSC), Pacific National sought the following declarations: 1. A declaration that, properly construed, clause 10.1 of the Sublease (with Item 10.1 of the Schedule), means the Tenant shall not use the Premises for any purpose other than one or any combination of the uses listed in Item 10.1(a)-(d) of the Schedule, which are associated with the rail freight terminal use, where the freight processed, passing through or stored at the Premises consists predominantly, being at least 95% (or, alternatively, 90%, 85%, 80%, or 75%), of freight which has been or will be conveyed to or from the Premises via the Terminal in the course of the rail freight terminal use. 2. A declaration that, properly construed, the first sentence of the second paragraph of clause 21.3 of the Sublease, means the Tenant complying with the Permitted Use is a condition of any restriction in the balance of clause 21.3, non-compliance with which enables the Landlord to issue any notice for breach or initiate proceedings claiming orders in relation to an alleged breach of the Permitted Use. 3 The parties are also in dispute as to the form of the proceedings, and the present reasons are concerned with this procedural issue. In particular, the parties are in dispute as to whether the proceeding should continue in its current form, having been commenced by the plaintiff by way of originating summons, or, as the defendant contends, treated as a writ of summons and proceed as though it had been commenced by a writ. 4 To resolve this issue, it is necessary to outline the applicable rules, explain the procedural history of this matter, summarise the primary contentions advanced on appeal, and identify the relevant principles. 1 Referred to in the materials as the Freight Forwarding Precinct of the Perth Freight Terminal. -- 3 of 12 -- [2026] WASC 337 LUNDBERG J Page 4 5 It is appropriate to start by making reference to O 4 r 1, which identifies the methods by which civil proceedings may be commenced in this court: 1. Commencing civil proceedings Subject to the provisions of any Act and of these rules — (a) every action in the Court must be commenced by writ; (b) civil proceedings between parties to be heard in chambers must be commenced by originating summons; (c) all other civil proceedings must be commenced by originating motion. 6 As I will discuss further in these reasons, those proceedings in which there exists a dispute between the parties as to the facts will ordinarily need to be commenced by a writ of summons, filed in accordance with O 5 r 1, or converted to such a proceeding if otherwise commenced. Such matters are then determined at trial in open court. 7 Certain matters may, however, be heard in chambers, the historical origins of which are explained in the Red Book.2 The business of the court which may be disposed of in chambers, as distinct from open court, is addressed by O 59 r 1. A range of matters are identified in that provision, including civil proceedings commenced by originating summons under O 58. 8 Order 58 specifically permits an originating summons to be utilised for the determination of a question of construction arising under a contract. The terms of O 58 r 10 are as follows: 10. Construction of written instruments Any person claiming to be interested under a deed, will, or other written instrument, may apply by originating summons for the determination of any question of construction arising under the instrument, and for a declaration of the rights of the persons interested. 9 That provision must be read with rule 12, which provides that the court 'shall not be bound to determine any such question of construction if in the opinion of the Court it ought not to be determined on 2 Gething M, Joseph R and Tomasi B, Civil Procedure: Western Australia (Vol 1), [58.1.4]. -- 4 of 12 -- [2026] WASC 337 LUNDBERG J Page 5 originating summons'. Allied to this, O 59 r 2 empowers the court to order that a cause or matter commenced by originating summons be heard in open court and 'give all necessary directions for the further conduct of the cause or matter'. Further, O 2 r 1(1) provides that a failure to comply with the rules is an irregularity, and does not nullify the proceedings, and O 2 r 1(3) provides that the court: …shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these rules to be begun by an originating process other than the one employed. 10 The foregoing rules are similar in overall effect to O 28 r 8(1) of the old English rules, which expressly empowered the court to order that a cause or matter continue as if it had been begun by writ.3 11 In any event, there is no question that this court has power to order that a proceeding commenced by originating summons be converted to a proceeding as if begun by writ. 12 The procedural dispute between the parties as to the form of the proceedings was first determined in June 2026, by a Registrar.4 The Registrar favoured the status quo, and gave comprehensive reasons for determining that it was appropriate that the proceeding continue in its current form, particularly as the substantive dispute then only concerned the proper construction of the Sublease instrument. 13 The Registrar concluded, in part, that:5 If Pacific National were seeking a declaration as to the meaning of subclauses 10.1 and 21.3, together with a declaration that Team Global Express is in breach of the permitted use clause, I would be persuaded that pleadings would be necessary to identify the factual dispute between the parties and the factual basis of the claim Team Global Express has to meet. However, in circumstances where Pacific National doesn't ask for the finding that Team Global Express is in breach, I am satisfied, based on the evidence filed in this application to date, that an originating summons was the appropriate initiating document to enable Pacific National to obtain the declaratory relief from this court with respect to the proper construction of clause 10.1 and 21.3 of the sublease. 3 Re Deadman decd. Smith v Garland and Others [1971] 1 WLR 426 (Stamp J). 4 ts 36 - 49 (15 June 2026). 5 ts 44 - 45 (15 June 2026). -- 5 of 12 -- [2026] WASC 337 LUNDBERG J Page 6 14 But things have now changed since the Registrar made her decision. 15 In what TGE describes as a 'striking volte-face', Pacific National has now decided to seek a declaration that it is entitled to issue a notice for breach under the Sublease.6 TGE submits the effect of the court making such a declaration is that the court would need to find, as a fact, that TGE breached the Sublease. TGE submits that Pacific National has now 'crossed the bounds of the summons procedure'. 16 The further declaration now sought by Pacific National is in the following terms: 3. A declaration that, by the defendant's use of the Premises since 30 January 2026 to 20 April 2026 for one or any combination of the uses in Item 10.1(a)-(d) of the Schedule, either solely or for a majority of freight which has been conveyed by the defendant to or from the Premises by road haul truck only, and not predominantly by rail in the course of rail freight terminal use, the plaintiff is entitled to issue a notice for breach under clause 21.1 of the Sublease. 17 The foregoing development precipitated an appeal by TGE against the decision of the Registrar, brought pursuant to O 60A. Such an appeal is conducted as a hearing de novo, such that demonstrated legal or factual error is not necessary in order to succeed.7 In any event, TGE has made it clear that it does not seek to rely on any error in the Registrar's reasons. Rather, TGE now asks the court to determine the matter afresh, in light of the further declaratory relief sought by Pacific National and the consequences of that relief. 18 The court heard argument on the appeal on 10 August 2026. Prior to that, the court granted the stay application brought by TGE,8 in order to allow the appeal to be heard and determined without TGE filing its substantive affidavit evidence as had been required by the orders of the Registrar made on 15 June 2026.9 I accepted that, in the absence of a stay, the purpose of the present appeal would have been undermined. 19 The position advocated by TGE on appeal is that this matter should properly proceed by way of pleadings, and the orders made by 6 Minute of Proposed Declaratory Relief and Orders on the Originating Summons dated 19 June 2026. 7 CVW Group Holdings Pty Ltd v Addison [2011] WASC 267 [17] (Le Miere J); Priority Networking Pty Ltd v Peterson [2018] WASC 36 [27] (Le Miere J). 8 Folio 32 (orders made on 4 August 2026). 9 Folio 15 (orders made on 15 June 2026, see orders 4 and 5). -- 6 of 12 -- [2026] WASC 337 LUNDBERG J Page 7 the Registrar should be revised accordingly.10 TGE points to the disputed facts which arise in this proceeding, the substantive defences it intends to raise in response to the construction and breach claims, and emphasises the necessity for pleadings and the usual interlocutory processes which a party in an action might avail itself, including discovery orders. 20 TGE has also provided to the court an aide memoire setting out its proposed construction of the Sublease and the substantive defences it foreshadows.11 The defences include estoppel, misleading and deceptive conduct (with the prospect of relief being sought under s 237 and s 238 of the Australian Consumer Law), as well as discretionary defences to the declaratory relief, all of which may briefly be described as follows: (a) Pacific National and TGE held a common assumption as to the operation of cl 21.3, which is said to have been articulated at a meeting between their representatives on 24 November 2023. That common assumption was that Pacific National would not be entitled to issue a breach notice to TGE regarding the 'Permitted Use' under the Sublease unless Pacific National received a corresponding breach notice from the Public Transport Authority. This is referred to by TGE as the 'Corresponding Notice Assumption'. (b) The 'Corresponding Notice Assumption' is asserted to have been a representation in trade or commerce under s 18 of the Australian Consumer Law. (c) Further, at meeting on 24 November 2023, and thereafter, in all of the circumstances there was a reasonable expectation that Pacific National would take issue with TGE's use of the 'Premises', if there was a non-conforming use. However, Pacific National's conduct, including its silence for years after the 'Rail Haulage Agreement' expired, amounted to a representation that TGE was not in breach of the 'Permitted Use'. This is described as the 'No Breach Assumption'. (d) The 'Corresponding Notice Assumption' and the 'No Breach Assumption' were relied upon in the form of TGE's continuing conduct, use of the 'Premises', and development of its business, 10 Folio 26 (TGE's outline of submissions dated 10 July 2026). 11 TGE's aide memoire dated 7 August 2026. -- 7 of 12 -- [2026] WASC 337 LUNDBERG J Page 8 such that there arose either a conventional or promissory estoppel. (e) TGE asserts it would suffer detriment if Pacific National is permitted to resile from the 'Corresponding Notice Assumption' or the 'No Breach Assumption'. By reason of those assumptions, TGE says it forwent the opportunity to research and acquire other sites for its freight operations. (f) TGE will rely upon discretionary defences to the declaratory relief, such as delay, utility, and disentitling conduct such as the misleading conduct. 21 Pacific National has not been persuaded by these contentions, and continues to maintain the position it advanced before the Registrar, notwithstanding the addition of the third proposed declaration, namely that the case remains suitable for determination as an originating summons, and the processes involved in a proceeding brought by writ of summons are not required for the fair determination of the dispute.12 22 Pacific National casts some doubt on the force of the substantive defences which TGE has foreshadowed, and has encouraged the court to consider a flexible or hybrid approach to the proceedings, which would be dependent on whether TGE is able to demonstrate the factual basis for its opposition. Pacific National has also highlighted the narrowness of the construction issues arising under cl 10.1 and cl 21.3 of the Sublease. 23 The determination as to whether a proceeding is properly capable of being heard and determined through the originating summons procedure, or should proceed as though commenced by a writ, is the subject of well-established orthodox principles. Those principles are summarised below. 24 In this court, proceedings involving disputes of fact are to be commenced by writ of summons: Carlin v Hamersley Iron Pty Ltd13; City of Belmont v Link Interiors Pty Ltd14; and Birla Nifty Pty Ltd v International Mining Industry Underwriters Ltd.15 12 Folio 28 (Pacific National's outline of submissions dated 24 July 2026). 13 Carlin v Hamersley Iron Pty Ltd [2003] WASCA 270 [46] (McLure J). 14 City of Belmont v Link Interiors Pty Ltd [2001] WASC 64 [11] - [29] (Wheeler J). 15 Birla Nifty Pty Ltd v International Mining Industry Underwriters Ltd [2013] WASC 386 [28] (Hall J). -- 8 of 12 -- [2026] WASC 337 LUNDBERG J Page 9 25 In this court, proceedings involving only questions of law are commenced by originating summons, using the procedure in O 58 r 10. The procedure contemplated by rule 10 is only appropriate in cases where an issue of construction can be resolved on the instrument itself, and where there are no disputed questions of fact or any need to rely on evidence: Carlin v Hamersley Iron Pty Ltd16; and Koh v Samuel Conrad Buckeridge as executor of the estate of Leonard Walter Buckeridge [No 2].17 26 The operation of O 58 r 12 should be borne in mind in the analysis. As earlier explained, that rule provides that the court 'shall not be bound to determine any such question of construction if in the opinion of the Court it ought not to be determined on originating summons'. A range of circumstances may engage this provision, and provide the foundation for the requisite opinion on the part of the court. One example is where there has been an imprecise identification of issues in the proceeding. Another is where there is an absence of the appropriate factual matrix to permit the construction exercise to be properly undertaken. Such circumstances may render it inappropriate for the court to answer the questions posed in the originating summons because to do so would be unfair to the defendant: City of Belmont v Link Interiors Pty Ltd.18 27 In my view, the nature of the issues likely to arise in this case renders inappropriate the continuing use of the originating summons procedure, and it is now necessary for the proceeding to be conducted as though it was commenced by a writ of summons. There are five reasons why this is so. 28 First, it is desirable that the issues in the proceeding be expressly and clearly identified, through the filing of pleadings by both parties. This is required to ensure procedural fairness to the defendant, but also to assist the court to understand the issues in dispute and will likely facilitate a more efficient programming of the matter to trial, and a more efficient trial. The use of affidavit evidence alone, in the absence of pleadings, is simply not appropriate where substantive defences to the declarations have been foreshadowed. 16 Carlin v Hamersley Iron Pty Ltd [46] (McLure J), quoting from Olney J in Hamersley Iron Pty Ltd v Hancock (Unreported; SCt of WA (Olney J); Library No 5195; 23 December 1983) at 4. 17 Koh v Samuel Conrad Buckeridge as executor of the estate of Leonard Walter Buckeridge [No 2] [2021] WASC 148 [10] (Sanderson M). 18 City of Belmont v Link Interiors Pty Ltd [27] (Wheeler J). -- 9 of 12 -- [2026] WASC 337 LUNDBERG J Page 10 29 Second, it is evident that the trial of the matter will require the court to resolve contested issues of fact. The originating summons procedure is not appropriate where that is the case. 30 Third, it is evident that the usual interlocutory processes which are available to a litigant in an action commenced by writ of summons are likely to be required in this matter for the fair determination of the issues, including the process of discovery. TGE has expressly foreshadowed as much in its submissions. 31 Fourth, the third proposed declaration sought by Pacific National will require the court to make a finding that TGE breached the Sublease. TGE says this finding may create an issue estoppel, precluding it from contesting an allegation that it breached the Sublease in any later controversy between the parties or their privies. That may be so. But in any event, the necessity for the court to make such a finding is a matter of some seriousness and weighs against the use of the originating summons procedure from a fairness perspective. A party faced with such an allegation, in respect of which it proposes to adduce contentious evidence in support of its foreshadowed substantive defences, ought be entitled to the procedural benefits to which it would otherwise have access if the proceeding was conducted as an action. 32 Fifth, the hybrid approach proposed by Pacific National is not appropriate in my view. In essence, that hybrid or flexible approach would involve the litigation continuing using the originating process procedure, with a re-evaluation of the matter at trial, or shortly before trial, once all the affidavit evidence has been filed. The court might then proceed to determine at trial some, but not all, of the issues raised by the plaintiff, and make directions for the balance of the dispute to be determined separately. 33 This flexible approach finds support in the terms of O 58 r 27(1), O 58 r 28 and O 58 r 29(d), as well as O 4A r 2(2)(d). For example, O 58 r 27(1) provides that: If an originating summons is not disposed of altogether on the first hearing thereof, the Court shall give such directions as to the further conduct of the proceedings as it thinks best adapted to securing the just, expeditious, and economical disposal thereof. 34 Pacific National in effect submits it is premature to convert this proceeding to one commenced by writ of summons. In this regard, Pacific National has challenged the merits of the substantive defences -- 10 of 12 -- [2026] WASC 337 LUNDBERG J Page 11 raised by TGE, and emphasised that TGE has merely foreshadowed these further issues without any guarantee they will ultimately be agitated.19 Pacific National further notes that the third proposed declaration pertains only to the breaches by TGE after 30 January 2026 which would entitle Pacific National to issue a notice under the Sublease. 35 I accept that merely raising the prospect of disputed issues of fact or foreshadowing a substantive defence, without more, would not present a cogent case for the court to exercise the discretion to convert an originating summons to a proceeding commenced by a writ. Such an approach might wrongly encourage applications to be made by those parties who are motivated to avoid the efficient and timely resolution of the dispute. 36 I do not regard this as such a case, though. 37 The disputed issues of fact have been identified within the affidavit material filed by the defendant to date, albeit by the defendant's solicitor rather than by a witness of fact.20 Further, the submissions filed by the defendant and the aide memoire prepared for the court, provide sufficient insight into the issues and defences to be raised, at least at a level of generality at which the court can assess they are not spurious or unmeritorious. 38 Accordingly, being presently satisfied that there are disputed issues of fact arising in this matter and substantive defences which are likely to be agitated by the defendant, it would not be appropriate to allow the proceedings to continue in their present form, given the procedural unfairness likely to flow from doing so. 39 For the foregoing reasons, I consider the appeal should be upheld, the orders of the Registrar should be set aside, and I will order that the proceeding continue as though it had been commenced by a writ of summons. At the next scheduled hearing on 20 August 2026, I will hear from the parties in relation to the costs of the appeal, the costs of the proceedings below, and as to the further programming required for the matter. 19 Pacific National's outline of submissions dated 24 July 2026 [14] - [17] and [18] - [29]. 20 Folio 27 (Affidavit of Alexander David Bannister sworn on 10 July 2026, being a partner of the law firm acting for the defendant) [5] - [10] and Annexures ADB-3, ADB-4 and ADB-5. -- 11 of 12 -- [2026] WASC 337 LUNDBERG J Page 12 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. IR Associate to the Hon Justice Lundberg 14 AUGUST 2026 -- 12 of 12 --