Alramadi v Saudi Arabian Cultural Mission
[2023] FedCFamC2G 895
•6 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Alramadi v Saudi Arabian Cultural Mission [2023] FedCFamC2G 895
File number(s): CAG 46 of 2021 Judgment of: JUDGE W J NEVILLE Date of judgment: 6 October 2023 Catchwords: PRACTICE & PROCEDURE – original Application under the Fair Work Act 2009 (Cth) – Respondents refuse to submit to jurisdiction – issue of “service” through the diplomatic channel as permitted under the Foreign States Immunities Act 1985 (Cth) – where the Respondents initially sought summary dismissal of the original Application but then only ran very limited arguments at hearing – “conclusive Certificate” under the Foreign States Immunities Act 1985 (Cth) issued twice but the Certificate was never addressed by the Respondents who also did not address relevant authority including by the High Court – Application to re-open granted and Application for summary dismissal and general declaration of immunity dismissed. Legislation: Foreign States Immunities Act 1985 (Cth), s.9, 10, 11, 12, 24, 40 Cases cited: Australian Securities and Investments Commission v Rich (2006) 58 ACSR 414
Banque Commerciale SA (en liq) v Akhil Holdings Pty Ltd (1990) 169 CLR 279
Douglas v Republic of Nauru (2004) 187 FLR 221
Eliezer v University of Sydney (2015) 239 FCR 381
Ezra Abrahams Pty Ltd v Milburn [2017] VSCA 355
Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31
Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
Kimber v The Owners Strata Plan No.48216 (2017) 258 FCR 575
The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132
Republic of Italy v Benvenuto (2018) 261 FCR 19; 279 IR 55; 356 ALR 409
Smith v NSW Bar Association (1992) 176 CLR 256
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Professor Richard Garnett, “The Rights of Diplomatic and Consular Employees in Australia” (2018) 31 Australian Journal of Labour Law 1
Division: Division 2 General Federal Law Number of paragraphs: 83 Date of last submission/s: 19 July 2023 Date of hearing: 27 March 2023 Place: Canberra Counsel for the Applicants Ms K Edwards & Ms A Costin Solicitor for the Applicants Snedden Hall & Gallop Lawyers Counsel for the Respondents Mr J Phillips SC Solicitor for the Respondents Holding Redlich ORDERS
CAG 46 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NIDAL ALRAMADI
First ApplicantALAA ELKILANY
Third ApplicantAMER HAMZE
Fifteenth ApplicantAND: SAUDI ARABIAN CULTURAL MISSION
First RespondentTHE ROYAL EMBASSY OF SAUDI ARABIA IN AUSTRALIA (CULTURAL OFFICE)
Second Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
6 OCTOBER 2023
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1.The Respondent’s Application in a Proceeding filed 15th February 2023 be dismissed.
2.The Applicant’s Application in a Proceeding filed 19th May 2023 to re-open the proceedings be granted.
3.The costs of the Applicants be reserved.
4.Within 14 days, the parties are to advise the Court whether there is agreement (and if so, the terms of agreement) regarding the procedural course ahead (including possible mediation).
THE COURT DECLARES THAT:
5.Pursuant to the s.40 Certificate, dated 27th April 2023, issued under the Foreign States Immunities Act 1985 (Cth), the Respondents have been duly served with the documents set out in that Certificate.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
The principal Application before the Court concerning various claims under the Fair Work Act 2009 (Cth) (“the FW Act”), initially made by 17 former employees of the Respondents, has been on foot since October 2021. As things stand at the moment, there are now only three Applicants in the proceeding.
The litigation has progressed little past the Application and Statement of Claim, filed 18th October 2021, because the Respondents have consistently denied (as they are entitled to do) that the Court has jurisdiction to hear the matter in circumstances where the Respondents contends that they have never acceded to the jurisdiction of the Court in relation to the Application. The Respondents further contend that they have diplomatic immunity.
I need not record other reasons why the proceeding has not had the smoothest or quickest passage through the Court, other than to note that (a) there was a relatively recent change in solicitors for the Applicants, and (b) after a significant period of time, the Respondents filed an Application in a Proceeding on 10th February 2023, which required a number of preliminary matters to be determined. By that Application, the Respondents sought, at least in form if not in terms, (i) a declaration that the Saudi Arabia Cultural Mission and the Royal Embassy of Saudi Arabia in Australia (Cultural Office) (hereafter “the Embassy”) is immune from the jurisdiction of this Court in respect of the proceedings brought against it by the Applicants, and (ii) that the proceeding brought against the Embassy by the Applicants be summarily dismissed.
Among other arguments advanced by the Respondents, set out in full below, they argued, inter alia, that (i) there had been no effective service of the Application, (ii) specific protections were provided to the Respondents by the Foreign States Immunities Act 1985 (Cth) (“the FSI Act”),(iii) the “employment” exception under the FSI Act was not satisfied here, and that (iv) there was also a risk that the Application would (or could) strip the Respondents of immunity of a sovereign state, contrary to the Vienna Convention on Diplomatic Relations (“VCDR”). It was further contended that there were risks posed that could be in contravention of the Vienna Convention on the Law of Treaties (“VCLT”), and that the objects of these Conventions was “to maintain international peace and security to promote friendly relations among nations.”[1] The Respondents’ submissions went on to quote part of the decision from the International Court of Justice in Germany v Italy: Greece intervening (ICJ, 2002, par.57). The submissions were made almost as if to cast the contest as one where the Fair Work Act 2009 (Cth) was pitted against the ICJ and the Conventions noted. According to these submissions, especially those that referred to the need to ensure or to maintain “international peace and security”, clearly the stakes were high regarding the claims being made by these former workers of the Embassy.
[1][1] See par.2.6 (h) of the Respondents’ Submissions, filed 10th February 2023.
The procedural course was made even more difficult when the Applicants sought to re-open the evidence, particularly as a result of a further Certificate issued by the Department of Foreign Affairs and Trade under the FSI Act.. This Application in a Proceeding was filed on 19th May 2023. The Embassy filed a Response to this Application to re-open on 16th June 2023. That Response attached to it substantial further submissions. Yet further submissions on behalf of the Embassy were filed on 19th July 2023.
Finally, on a procedural note, on 17th June 2023, the Attorney-General’s Department (and/or the Department of Foreign Affairs and Trade) were invited to provide written submissions given the competing claims, for example, regarding what had, or had not, been done by one or either Department in relation to service of process on the Embassy. A timeframe for the “possible” submissions was confirmed by the Court on 2nd August 2023 to allow both Departments to seek or take instructions whether they would take up this opportunity. Only at the very end of this 21-day timeframe (i.e. on 22nd August 2023) did the Attorney-General’s Department advise that no submissions would be provided in the matter.
In what follows, I deal firstly with the Application to re-open first, followed by the Respondents’ Application to have the primary Application under the FW Act summarily dismissed. The latter obviously includes the very much more limited arguments advanced by the Respondents at the hearing.
The Application to re-open: Applicants’ Evidence
This Application was supported by an Affidavit from the Applicants’ lawyer, Ms Shoemark, filed 19th May 2023. Ms Shoemark deposed as follows:
(a)At par.3, Ms Shoemark stated that, on 10th March 2023, she wrote to Mr Ben Milton, Assistant Secretary and Corporate Counsel, Corporate Law Branch, Department of Foreign Affairs and Trade, “seeking clarification regarding the Certificate of compliance issued on 14th July 2022 in relation to service of the Initiating Process in these proceedings.” A copy of that letter is annexed to this Affidavit, at ES-1. Why no earlier inquiry was made in relation to Mr Milton’s letter of 14th July 2022 was not explained, although some clarification came indirectly from the later correspondence noted below. After referring to comments by Ashley J in Douglas v Department of Nauru (2004) 187 FLR 221 that specify certain matters that should form part of a Certificate under the FSI Act to satisfy a Court that service has been properly effected, the letter from Ms Shoemark stated, in part:
The Certificate with which our client was provided relies only on section 24 of the FSIA but does not provide the factual basis for that conclusion, including on whom it was served and on what instrumentality that was equivalent to the Department of Foreign Affairs …
(b)Ms Shoemark next deposed (par.4) that she received a response to her inquiry to Mr Milton by letter from Ms Mendelsohn, dated 27th April 2023. Ms Mendelsohn is the Director, General Litigation and Corporate Law, Legal Division, Department of Foreign Affairs and Trade (“DFAT”). Ms Mendelsohn confirmed that service of the Initiating Application in the current matter had been effected in accordance with s.24 of the FSI Act. A copy of Ms Mendelsohn’s letter is annexure ES-2 to the Affidavit. The letter from Ms Mendelsohn confirmed that, in DFAT’s view, service on the Respondents was effected “in accordance with section 24 of the Foreign State Immunities Act and relevant jurisprudence and, accordingly, has issued a fresh section 40 Certificate … clarifying the issues you raise in your letter.” The letter continued:
With respect to section 24(1), the Department considers the Embassy in Canberra to be part of the Kingdom of Saudi Arabia that is equivalent to the Department of Foreign Affairs and Trade.
In Douglas v Republic of Nauru (2004) 187 FLR 221 … at [13], Ashley J held that the ‘transmission of process to the department or organ of the foreign country that is equivalent to DFAT may be possible by transmission to a foreign country’s diplomatic mission in Australia.’
(c)Also attached to Ms Shoemark’s Affidavit (par.5), at ES-3, is a “fresh s.40 Certificate”, dated 27th April 2023, which is referred to in Ms Mendelsohn’s letter (a copy of that Certificate, dated 27th April 2023 is attached to these reasons); and
(d)On 4th May 2023, (par.6) Ms Shoemark’s office received a letter from the Office of International law, Attorney-General’s Department, which enclosed “the original re-issued section 40 Certificate.” A copy of that letter and attached Certificate is at ES-4. Significantly in my view, the letter from the Office of International Law confirmed that (i) the Certificate under s.40 was re-issued after an inquiry was made by the Respondents dated 10th March 2023, which requested details of service of the initiating process, and in particular, “how the Certificate complies with the Act”; and (ii) that DFAT confirmed that the re-issued s.40 Certificate set out how the Department “met its requirements under section 24(1) and 24(2) of the Act.”
The Application to re-open: Respondents’ Evidence
Although, in form, the Respondents filed a Response to an Application in a Proceeding, in fact, the “Response” was filed (on 16th June 2023) as “submissions.” As such, there was no Affidavit filed on behalf of the Respondents, and therefore no formal evidence. Further, the document styled “Response” has an Annexure, styled “Response to an Application in a Proceedings [sic].” This Annexure contains just over 6 pages of submissions. The filing of a document styled “Response” but having it described electronically as “submissions” obviously meant compliance with pesky Rules regarding the filing of Affidavits in support of such documents were quickly overcome.
On 19th July 2023, the Respondents filed a further set of submissions. Respectfully, and simply as an observation, based on the plenitude of submissions, some of them (I have to say) a tad on the exotic side, it seems rather likely that the amount paid to lawyers in this matter is perhaps likely to exceed anything that the Applicant workers might ultimately receive, if the Court gets that far. Of course, and accepting the Respondents’ acute sensitivity about submitting to the jurisdiction of the Court, this observation is not said critically, although how and why so many submissions were filed, and no Affidavit on the Respondents’ behalf, remained something of a mystery.
In this regard, I should also note the Court’s Orders of 26th June 2023 regarding the filing of submissions in relation to the re-opening:
3.By no later than 4:00pm on 19 July 2023, the parties are to file and serve an Outline of Written Submissions of no more than 2 pages in length in relation to the Applicants’ Application in a Proceeding filed 18th May 2023.
Assuming there was not compliance, another area of presumption by the Respondents – a comment only at this stage!
Written Submissions on behalf of the Applicants – re-opening
The Applicant’s brief written submissions (of the allocated two pages) were filed on 19th July 2023; they were as follows (emphasis in original; footnotes omitted):
APPLICANTS’ SUBMISSIONS ON LEAVE TO ADDUCE ADDITIONAL EVIDENCE
A. ISSUES TO BE DETERMINED
1.The Applicants in the Application in a Proceeding dated 19 May 2023 (AAiP) and the substantive proceedings, seek the following orders on the grounds set out in the AAiP and the Affidavit of Ms Emily Shoemark dated 1 May 2023:
a)The Applicants have leave to reopen the evidence in relation to the Respondents' Application in a Proceeding dated 10 February 2023 (RAiP);
b)The Applicants' affidavit filed with the AAiP annexing correspondence between the Applicants' solicitors and the Department of Foreign Affairs and Trade (DFAT), and the new Certificate issued by DFAT be admitted into evidence in relation to the AAiP (the Additional Evidence).
c) The Respondents pay the Applicants’ costs associated with the AAiP.
B. GROUNDS FOR THE EVIDENCE BE REOPENED
2.The RAiP was heard on 27 March 2023 when the Applicants adduced evidence including a Certificate of service provided by DFAT dated 14 July 2022 (the First Certificate).1 Since then, the Applicants received an updated Certificate under section 40 of the Foreign State Immunities Act 1985 (Cth) (FSIA) dated 23 April 2023 (the Second Certificate).
3.The Applicants rely on the principles set down in in The Movie Network Channels Pty Ltd v Optus Vision Ltd citing ASIC v Rich with approval (as per Austin J), regarding the factors to be considered by the Court when exercising the discretion to reopen evidence:
a)The importance of the issue on which the further evidence sought is to be adduced to the pleaded issues in the case. The issue regarding service of pleadings is central to determination of the RAiP. Its importance is self-evident. While the Respondents accepted service, as confirmed by the First Certificate, the Respondents questioned the validity of service based on the information contained in the First Certificate. The Second Certificate must be considered to properly determine the RAiP pursuant to the case law. To fail to consider that matter would be an error of law.
b)The degree of relevance and probative value of the further evidence sought to be adduced and its potential in an undue waste of time. The Second Certificate is fundamentally relevant as it shows why and how the requirements for service pursuant to FSIA have been met. It settles any issues raised by the Respondents in their oral and written submissions when the RAiP was heard.
c)The prejudice to the defendant in terms of delay in the completion of the proceedings and consequential costs. There is no prejudice to the Respondents and there was no delay in providing the evidence to the Respondents. As soon as the evidence became available to the Applicants, which was after the hearing of the RAiP, they sought to have that evidence introduced in order that the matter might be properly considered. The Respondents do not dispute that the relevant documents were handed and accepted by the Deputy Head of Mission, Mr Al Dagreer, on behalf of the Respondents.6 Any delay in completion of the proceedings is minimal and outweighed by the importance of the evidence to a determination of the factual and legal issues.
C. RESPONDENT’S GROUNDS OF OPPOSITION
a) Ground One
4.In relation to paragraph [1] of the Annexure, the Second Certificate introduces new facts which are material to determining whether service had occurred, namely, the service was conducted by hand, the service was accepted by the Deputy Head of Mission on behalf of the Respondents in Canberra and the Royal Embassy of Saudi Arabia in Canberra is the representative in Australia of the organ of the Kingdom of Saudi Arabia that is equivalent to DFAT. Therefore, the Second Certificate elucidates the information provided in the First Certificate and introduces new material facts relevant to the assessment of service (as per the decision of Ashley J in Douglas).
5.The Respondents’ submissions, at 2(b) in particular, are contrary to the case law. DFAT issued the two Certificates to comply with sections 24 and 40 of FSIA. The Applicants rely on the Certificates for these reasons. The Certificates are determinative of whether the proceedings have been properly served. Specifically, the Second Certificate is a material fact relevant to determining service by reference to section 40(5) of FSIA, which provides that a “Certificate under this section is admissible as evidence of the facts and matters stated in it and is conclusive as to those facts and matters”. Therefore, the facts and matters stated in the two Certificates constitute the evidence in relation to the steps taken by DFAT to serve the Respondents. The Court would fall into error if these facts were not taken into account.
b)Ground Two
6.The Second Certificate, represent the Australian Government’s compliance with the FSIA and evidence of action taken by it in respect of a foreign government pursuant to that legislation. It cannot and does not represent ‘submissions’ made by DFAT, but the exercise of a statutory power. The Certificates are legal documents authorised by legislation that DFAT must issue if asked to serve documents on a foreign state under the FSIA. DFAT’s obligations to issue the Certificates are prescribed and authorised by the FSIA. DFAT is required to specify when, where and on whom the documents were served, that a department or organ being the foreign State equivalent of DFAT, and that service was done in accordance with section 24 of FSIA.
c)Ground Three
7.The Applicants did not know until they received the RAiP that the Respondents would take issue with service not being compliant with sections 24 and 40 of the FSIA. Once that was articulated, the Applicants wrote to DFAT seeking a new Certificate be issued if DFAT formed the view that the First Certificate was not compliant.
d)Ground Four
8.Firstly, the submissions are contrary to the existing case law including Douglas. The Court is under an obligation pursuant to section 40(5) of FSIA, to admit as evidence the facts and matters stated in the Second Certificate which is conclusive as to those facts and matters. DFAT had to comply with the provisions in FSIA and the findings in Douglas, as an authority in relation to service on foreign states. Therefore, the Respondents’ submission “that the relevant Certificate should only state what documents were served and on what day” is misconceived.
9.Secondly, in response to paragraphs [18] and [19] of the Annexure, there is no requirement in section 24 of FSIA for DFAT to provide an explanation about “how the named diplomat has the authority from the foreign state to receive the documents”. It is sufficient for the Court to take on notice that the documents were accepted by the Deputy Head of Mission, the second in charge of the Mission after the Ambassador. It is not for the Applicants to argue, nor for DFAT to explain, whether or not the Deputy Head of Mission has the authority from the foreign state to receive the documents as it is not required pursuant to section 24 of FSIA.
10.Thirdly, the Respondents’ submissions at paragraphs [20] to [25] of the Annexure should be disregarded by the Court for the following reasons:
a)DFAT is entitled to determine, for the purposes of complying with section 24 of FSIA, that The Royal Embassy of Saudi Arabia Canberra is part of the organ of the Kingdom of Saudi Arabia that is equivalent to DFAT.
b)Once that determination is made by DFAT, section 24(3) of FSIA allows for the circumstances “[w]here the process and documents are delivered to the equivalent department or organ of the foreign State in the foreign State, service shall be taken to have been effected when they are so delivered”.
c)Section 24(1) of FSIA makes no provisions or requirements for a Certificate to “state who is the equivalent to the deputy head of mission” as argued by the Respondents as not being provided in the Second Certificate. The authorities also do not refer a similar situation.
d)The Respondents’ reference to Holden v Commonwealth of Australia, a decision of the U.S. District Court for the Northern District of California which is not good authority in Australia.
D. CONCLUSION
11.As “in every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to reopen”, the Applicants submit that the AAIP should be granted with costs as otherwise the interests of justice to allow the Second Certificate in evidence would not be served.
Written Submissions on behalf of the Respondents – re-opening
As noted earlier, and not pursuant to any Order of the Court, the Respondents filed a Response to an Application in a Proceeding on 16th June 2023. Annexure A to this Response were 6 pages plus of submissions. Those submissions, whether treated as some sort of pre-emptive, longer salvo or otherwise, fortunately, were summarised in the Respondents’ submissions, which were filed, pursuant to Orders, on 19th July 2023, were as follows (emphasis in original):[2]
[2] The Court will only have regard to submissions filed pursuant to Orders.
Grounds
1The Respondent (to the current Application in the proceedings) relies on each single clause of all of the grounds that it raised in its Response (as filed with the Court on 16 June 2023). A non-comprehensive summary of those grounds is set out below.
Ground One – New materials have no probative value
2The Respondent submits that none of the materials that the Applicant seeks to introduce, as attached to Ms Shoemark’s affidavit, dated 9 May 2023 (Ms Shoemark’s affidavit) (new materials), have any probative value. This is because nothing in the new materials: i) introduces any new material facts; ii) negates any of the material facts that have been raised in the pleadings; or, iii) elucidates on any of the material facts that have been raised in the pleadings.
Ground Two – New materials represent a view by the Department of Foreign Affairs and Trade (DFAT) and consequently an unwarranted intrusion into the proceedings
3The Respondent submits that the new materials (including the new Certificate), rather than representing facts as clearly mentioned in section 40(1)(d) of the Foreign States Immunities Act 1985 (FSI Act), represent DFAT’s view about section 24(1) and 24 (5) of the FSI Act.
4DFAT is not a party to the proceedings. It is therefore, in the Respondent’s submission, inappropriate for a view expressed by DFAT to form any part of the proceedings.
Ground Three – New materials could have been obtained earlier/the Court could have been informed earlier
5The Respondent submits that it was open to the Applicants to seek and obtain the new materials at the interlocutory hearing in the proceedings on 27 March 2023 or to have informed the Court that it had requested the new materials at or prior to these proceedings.
Ground Four – The view provided by DFAT as to the validity of service to the Embassy in the new is wrong
6The Respondent submits that the new Certificate transgresses the mandate of section 40(1)(d) of the FSI Act in relation to the service of documents and the view expressed in it and otherwise in the new materials are, with respect, wrong, and therefore are of no assistance to the Court.
7The view expressed by DFAT that the Respondent’s Embassy in Canberra is equivalent to DFAT or that it is part of the organ of the Kingdom of Saudi Arabia that is equivalent to DFAT is incorrect. Particularly, it is directly at odds with the definitions of those entities in the Vienna Convention 1961 (VCDR), the Diplomatic Privileges and Immunities Act 1967 and the FSI Act itself, including its section 24(1). It is also at odds with the interpretation rules of articles 31 & 32 of the Vienna Convention on the Law of Treaties 1969. In diplomatic relations, the Ministry of Foreign Affairs and diplomatic missions are well-known and recognised entities (this has been the case before, during and after the establishment of the VCDR in 1961). Serving judicial documents to an embassy by any means is prohibited by article 22 of the VCDR whether by the receiving state itself or on behalf of third party. This obligation is undisputed in international law. For example, Article 22 (1)(i) of the United Nations Convention on Jurisdictional Immunities of States and Their Property (2004) provides that ‘Service of process shall be effected: by transmission through diplomatic channels to the Ministry of Foreign Affairs of the State concerned’. Clause (2) of the same article provides that ‘Service of process referred to in paragraph 1(c) (i) is deemed to have been effected by receipt of the documents by the Ministry of Foreign Affairs’.
8Regional conventions on state immunity, as well as the states that have legislated immunity acts, always include articles that serving of process through diplomatic channel to the ministry of foreign affairs. For example, Article 16 of the European Convention on State Immunity 1972 states that the transmission shall be “through the diplomatic channel to the Ministry of Foreign Affairs of the defendant State”.
9Examples of legislated acts by states around the World providing for service on the relevant Ministry of Foreign Affairs include: Article 12(1) of the UK State Immunity Act 1978 which states that: “Any writ or other document required to be served for instituting proceedings against a State shall be served by being transmitted through the Foreign, Commonwealth and Development Office to the Ministry of Foreign Affairs of the State and service shall be deemed to have been effected when the writ or document is received at the Ministry’; Article 14(1) of the Singapore State Immunity Act 1979 states that: ‘Any writ or other document required to be served for instituting proceedings against a State must be served by being transmitted through the Ministry of Foreign Affairs, Singapore, to the ministry of foreign affairs of that State, and service is deemed to have been effected when the writ or document is received at that ministry’; Article 13(1) of South Africa’s Foreign States Immunities Act 1981 states that: ‘Any process or other document required to be served for instituting proceedings against a foreign state shall be served by being transmitted through the Department of Foreign Affairs and Information of the Republic to the ministry of foreign affairs of the foreign state’; Article 13(1) of Pakistan State Immunity Ordinance 1981 states that ‘Any notice or other document required to be served for instituting proceedings against a State shall be served by being transmitted through the Ministry of Foreign Affairs or Pakistan to the Ministry of Foreign Affairs of the State and service shall be deemed to have been effected when the notice or document is received at the latter Ministry’; and, Article 20 (2) of Japan’s Act on the Civil Jurisdiction with Respect to Foreign States 2009 provides the same.
10The examples given above demonstrate that it is recognised by many countries around the world that serving judicial documents directly to an embassy violates the obligation of maintaining the inviolability of diplomatic missions and that documents should instead be served on the state’s Ministry of Foreign Affairs.
11We note in respect of the above that Article 22 (2) of the VCDR stipulates that ‘The receiving State is under a special duty to take all appropriate steps to prevent any disturbance of the peace of the mission or impairment of its dignity’. In addition, Article 25 of the same convention stipulates that ‘The receiving State shall accord full facilities for the performance of the functions of the mission’. Further, Article 45 (a) of the same convention stipulates that ‘the receiving State must, even in case of armed conflict, respect and protect the premises of the mission, together with its property and archives’. All the previous mentioned requirements are the minimum obligations that the receiving state cannot provide less than, or derogate from, more favourable treatment than is required by the provisions of the VCDR, as stated in its Article 47.
Outline of principle: re-opening
Each of the following authorities provides summaries of principle regarding “re-opening”: Smith v NSW Bar Association, Australian Securities and Investments Commission v Rich (Austin J), The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd (Einstein J), and Ezra Abrahams Pty Ltd v Milburn (Victorian Court of Appeal).[3]
[3] Smith v NSW Bar Association (1992) 176 CLR256 especially at 265 – 267; Australian Securities and Investments Commission v Rich (2006) 58 ACSR 414 at [16] – [18]; The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132 at [4] – [8]; and Ezra Abrahams Pty Ltd v Milburn [2017] VSCA 355 at [47].
For current purposes, it is sufficient that the following principles be noted.
In The Movie Network, Einstein J noted, at [4], that it is of central importance in every case that the “overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application to re-open.” At [6], by reference to a Federal Court of Australia decision by Kenny J (Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22) his Honour noted certain recognised classes of cases where a grant of leave to re-open may typically be granted. The non-exhaustive list of cases includes one where there “is a mistaken apprehension of the facts.”
Even more summarily, in Ezra Abrahams, at [47], the Court of Appeal of the Victorian Supreme Court listed four general principles where leave to re-open is sought, namely, where:
(a)Fresh evidence becomes known and available;
(b)There has been inadvertent error;
(c)There has been a mistaken apprehension of the facts; and
(d)There has been a mistaken apprehension of the law.
There are a range of provisions from the Foreign States Immunities Act 1985 (Cth) (“the FSI Act”), which should be noted here.
First, the general immunity from jurisdiction is set out in s.9 in the following broad terms:
Except as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding.
Secondly, although not directly or immediately relevant to the “re-opening” Application, for completeness and ease of reference, s.12 of the FSI Act deals with “contracts of employment”. That section is in the following terms:
(1) A foreign State, as employer, is not immune in a proceeding in so far as the proceeding concerns the employment of a person under a contract of employment that was made in Australia or was to be performed wholly or partly in Australia.
(2) A reference in subsection (1) to a proceeding includes a reference to a proceeding concerning:
(1)a right or obligation conferred or imposed by a law of Australia on a person as employer or employee; or
(2)a payment the entitlement to which arises under a contract of employment.
(3) Where, at the time when the contract of employment was made, the person employed was:
(a)a national of the foreign State but not a permanent resident of Australia; or
(b)an habitual resident of the foreign State;
subsection (1) does not apply.
(4) Subsection (1) does not apply where:
(a)an inconsistent provision is included in the contract of employment; and
(b)a law of Australia does not avoid the operation of, or prohibit or render unlawful the inclusion of, the provision.
(5) Subsection (1) does not apply in relation to the employment of:
(a)a member of the diplomatic staff of a mission as defined by the Vienna Convention on Diplomatic Relations, being the Convention the English text of which is set out in the Schedule to the Diplomatic Privileges and Immunities Act 1967; or
(b)a consular officer as defined by the Vienna Convention on Consular Relations, being the Convention the English text of which is set out in the Schedule to the Consular Privileges and Immunities Act 1972.
(6) Subsection (1) does not apply in relation to the employment of:
(a)a member of the administrative and technical staff of a mission as defined by the Convention referred to in paragraph (5)(a); or
(b)a consular employee as defined by the Convention referred to in paragraph (5)(b);
unless the member or employee was, at the time when the contract of employment was made, a permanent resident of Australia.
(7) In this section, permanent resident of Australia means:
(a)an Australian citizen; or
(b)a person resident in Australia whose continued presence in Australia is not subject to a limitation as to time imposed by or under a law of Australia.
Thirdly, s.24 of this Act deals with “service through the diplomatic channel.” The section provides:
(1) Initiating process that is to be served on a foreign State may be delivered to the Attorney‑General for transmission by the Department of Foreign Affairs to the department or organ of the foreign State that is equivalent to that Department.
(2) The initiating process shall be accompanied by:
(a)a request in accordance with Form 1 in the Schedule;
(b)a statutory declaration of the plaintiff or applicant in the proceeding stating that the rules of court or other laws (if any) in respect of service outside the jurisdiction of the court concerned have been complied with; and
(c)if English is not an official language of the foreign State:
(i)a translation of the initiating process into an official language of the foreign State; and
(ii)a Certificate in that language, signed by the translator, setting out particulars of his or her qualifications as a translator and stating that the translation is an accurate translation of the initiating process.
(3) Where the process and documents are delivered to the equivalent department or organ of the foreign State in the foreign State, service shall be taken to have been effected when they are so delivered.
(4) Where the process and documents are delivered to some other person on behalf of and with the authority of the foreign State, service shall be taken to have been effected when they are so delivered.
(5) Subsections (1) to (4) (inclusive) do not exclude the operation of any rule of court or other law under which the leave of a court is required in relation to service of the initiating process outside the jurisdiction.
(6) Service of initiating process under this section shall be taken to have been effected outside the jurisdiction and in the foreign State concerned, wherever the service is actually effected.
(7) The time for entering an appearance begins to run at the expiration of 2 months after the date on which service of the initiating process was effected…
Finally, s.40 provides for the Minister for Foreign Affairs and Trade to issue a Certificate that contains certain information. The section provides as follows:
(1) The Minister for Foreign Affairs may certify in writing that, for the purposes of this Act:
(a)a specified country is, or was on a specified day, a foreign State;
(b)a specified territory is or is not, or was or was not on a specified day, part of a foreign State;
(c)a specified person is, or was at a specified time, the head of, or the government or part of the government of, a foreign State or a former foreign State; or
(d)service of a specified document as mentioned in section 24 or 28 was effected on a specified day.
(2) The Minister for Foreign Affairs may, either generally or as otherwise provided by the instrument of delegation, delegate by instrument in writing to a person his or her powers under subsection (1) in relation to the service of documents.
(3) A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Minister.
(4) A delegation under subsection (2) does not prevent the exercise of the power by the Minister.
(5) A Certificate under this section is admissible as evidence of the facts and matters stated in it and is conclusive as to those facts and matters.
In the course of the interlocutory hearing on 27th March 2023, I noted to all present an article by Professor Richard Garnett, “The Rights of Diplomatic and Consular Employees in Australia” published in the Australian Journal of Labour Law.[4] Among other authorities referred to in this article is the High Court decision in Firebird Global Master Fund II Ltd v Republic of Nauru.[5] Having “flagged” this article with those present at the hearing, I confess to being a little surprised that there was no mention of it, let alone any of the authorities discussed in it, perhaps especially so those from the High Court.
[4] Professor Richard Garnett, “The Rights of Diplomatic and Consular Employees in Australia” (2018) 31 Australian Journal of Labour Law 1. See T 29 of the transcript of the hearing.
[5] Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31. This authority was noted to both parties in the course of the hearing. See T 25 & 26. Only the Applicants addressed it, albeit obliquely.
Be that as it may, I simply record that, in general terms, in Firebird Global Master Fund II Ltd v Republic of Nauru (“Firebird”), the High Court discussed at some length (in the particular circumstances of that case, which related particularly to registration and enforcement of judgments) the operation of certain sections in Part III of the FSI Act, which deal with “service and judgments.”[6] Simply as an observation at this stage, given how plentiful are the references in the Respondents’ submissions to various international Conventions, it is striking how there are no references in the High Court’s reasons to any of the Conventions relied upon by the Respondents here. It might also be observed, without it being taken as any view of this Court in the current matter at this stage, that at [195] in Firebird, Nettle and Gordon JJ said:
In general terms, s.12 of the Immunities Act provides that a foreign state is not immune in a proceeding in so far as the proceeding concerns the employment of a person under a contract of employment made in Australia or to be performed wholly or partly in Australia. … In summary, therefore, ss.12 - 16 apply where a proceeding concerns an act done or omitted to be done in Australia.
[6] Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31. See, for example, the discussion by French CJ and Kiefel J at [94] – [97]; by Gageler J at [132] – [145]; and by Nettle and Gordon JJ at [211] – [216], this latter discussion under the heading “The need for service in accordance with the Immunities Act.”
A little later in their reasons, at [198] in Firebird, Nettle and Gordon JJ observed:
As may be discerned from the ALRC report, the purpose of each of the exceptions to immunity provided for in ss.12 – 16 is to deal specifically with the different considerations which apply to different kinds of cases. So, in the case of employment contracts which are provided for in s.12, the basis of the exception to immunity is that, where a foreign state enters into an employment contract in Australia or which is to be performed in Australia, the interest of Australia in providing a local forum outweighs the interest of the foreign state in exclusive jurisdiction …
Their Honours went on to say, at [212] and [213] (internal citations omitted; emphasis added)):
[212] … Firebird submitted that, apart from ss.27 and 28, the only function of Pt III is to provide an exclusive means of service in cases where service is required by some other statutory provision or rule of court dehors Pt III; and, it was said, that view of the matter is supported by parts of the ALRC report which show that the aim of Pt III was to provide a means of service which would eliminate the uncertainties and other problems which, until then, had attended other forms of service on foreign states.
[213] There is force in those contentions…
Consideration & disposition - re-opening
The first and most appropriate course is to consider the Respondents’ submissions opposing the granting of leave to re-open. In their Outline of Submissions, filed 19th July 2023, the Respondents summarised four basic grounds of opposition to the Court granting leave to re-open. As noted above, these submissions essentially summarise the much longer submissions that were annexed to the Respondents’ Response to the Application to re-open.
Grounds 1-3 of the submissions focus upon the “new materials”, albeit in slightly different ways. Ground one contends that these materials (being the s.40 Certificate under the FSI Act re-issued by the Department and related material) does not “introduce new material”, does not negate any of the material facts already before the Court, and does not “elucidate” any of the material facts. Respectfully, I disagree, primarily for two reasons.
First, in the letter from the Office of International Law, dated 4th May 2023, revealed for the first and only time, is the fact that, by letter dated 10th March 2023, the Respondents wrote to the Department of Foreign Affairs and Trade “requesting details of service of the initiating process, and in particular, how the Certificate complies with the Act.”
Somewhat concerningly, this letter was never disclosed to the Court by the Respondents, nor any background given to it. This material fact goes a significant way, in my view, to answer almost all of the other objections. This is because, secondly, the re-issued s.40 Certificate (a) answers the questions posed in the Respondents’ letter, and (b) complies with the requirements specified by Ashley J in Douglas v Republic of Nauru.
Further, the previously undisclosed letter from the Respondents specifically asked for information regarding details of service of the initiating process and how there had been compliance with the FSI Act. The re-issued s.40 Certificate plainly does that, and does so presumably in direct response to the inquiry from the Respondents. This is also to say that it is the relevant Department (a) exercising its statutory responsibilities, and (b) simply providing the information sought by the Respondents regarding compliance with the relevant Act. It mis-characterises the information provided, as the Respondents do in submissions, as some “view” of the Department of Foreign Affairs and Trade. Compliance with the FSI Act is not the expression of a “view”; it is compliance with the Act that, according to the High Court in Firebird, governs a proceeding that concerns an act done or omitted to be done in Australia. It equally complies with the principles set out by Ashley J in Douglas v Republic of Nauru.
The same comments apply regarding the timeliness of the information provided by the Office of International Law, and the information provided in the re-issued Certificate; the detailed information only came to light (a) after the Respondents’ letter of inquiry referred to by the Office but not otherwise disclosed, and (b) in the same regard, to comply more directly with the directions set out by Ashley J in Douglas v Republic of Nauru.
Finally, the detailed submissions at pars.6 – 11 of the Respondents’ submissions declaim that the “view provided by DFAT” is wrong regarding the service on the Respondents. Respectfully, I disagree. Among other things, these summarised submissions on behalf of the Respondents (a) do not engage with the specific terms of the FSI Act, especially in relation to service; (b) the submissions ignore, indeed make no reference to, the decision of Ashley J in Douglas v Nauru, and (c) also make no reference to the High Court’s discussion about service under the FSI Act in Firebird. Rather, the submissions focus almost exclusively upon various Conventions, and upon various legislation around the world that relate to “service.” Unfortunately, however, proper engagement with the FSI Act was significantly lacking. Further still, only in its formally unauthorised earlier “extensive submissions” in the “Response” is there reference to Ashley J’s comments in Douglas v Nauru. The Respondents submit that that decision is wrong. Respectfully, I disagree with this assessment of his Honour’s judgment. Among other things, if it was considered to be “wrong” by the Respondents, why did they bother to make an inquiry of the Office of International Law (“OIL”) regarding compliance with the requirements of the FSI Act? Upon receiving a response from the Office of International Law, the Court and the Applicants continue to remain “in the dark’ as to what the Respondents now, or continue, to think about the principles set out by Ashley J in Douglas v Nauru.
What is further surprising is that, although the Respondents were clearly “alive” to the nature and presumably the purport of any s.40 Certificate, which obviously prompted the undisclosed inquiry to OIL, the terms and operation of s.40 of the FSI Act, and the “conclusiveness” of a Certificate issued under that section, were never addressed by the Respondents, either in written or oral submissions. In my view, this was a remarkable, surprising, and unfortunate omission.
In the light of what I have said already in rejecting the submissions of the Respondents as being, among other things, inaccurate, I can be especially brief with those on behalf of the Applicants.
The Applicants fairly note that both of the Certificates issued by DFAT, once issued, lead to the consequence, under ss.24 and 40 of the FSI Act, that the facts contained in them are conclusive of those facts and matters.
Likewise, as already noted, the Certificates issued under s.40 of the FSI Act confirm that service has been effected pursuant to s.24 of that Act. Matters regarding “service” were canvassed by Ashley J in Douglas v Nauru at [26] – [27] and [28] – [30].
I agree with the submission that DFAT did not have any relevant discretion regarding the information contained in both of the Certificates issued under s.40 of the FSI Act. And as the correspondence recorded, which has been noted multiple times already, there is the detailed decision of the Victorian Supreme Court in Douglas v Nauru which specified certain, specific details that should be included in such Certificates.
In my view, it is not for either the Respondents (after the event), or for DFAT beforehand, to explain or to divine what specific or general authority a particular person at an embassy does, or does not, have. All that is required, as the High Court made plain in Firebird, as did Ashley J did in Douglas v Nauru, is to comply with the provisions of the FSI Act, which governs such matters.
Finally, as noted earlier in these reasons and the authorities there mentioned, it is the overriding principle of what best serves the interests of justice that ultimately guides the Court.[7]
[7] Simply as an exercise in detail, at the hearing on the Application to re-open, I noted to the lawyer for the Respondents that his Response, on its face, explicitly acknowledged that service had been effected on his clients. Thus Order 3 in the Response filed on 16th June 2023, sought the following Order: “The service of the proceedings that are the subject of the previous Application be set aside.” Having so vociferously, at every mention, directions hearing, and in every other way, denied any concession that there had been any service, or that this Court had any jurisdiction in the matter, I thought that I should bring this rather blatant change in the Respondents’ position, recorded in its own documents, acknowledging service, to the attention of the Respondents’ lawyer. Tempting as it might have been to some, it seemed that it would be a tad unfair to take advantage of such a clear drafting error, which had obviously not been caught in the checking of material, as a sudden and clear admission that there had been due service on the Respondents.
In addition to my own reasons, I accept the submissions on behalf of the Applicants on the discrete issue of re-opening. The Application to re-open must be, and is, granted.
I next turn to the Respondents’ Application in a Proceeding by which it sought that the Applicant’s primary Application, which seeks relief under the FW Act, should be summarily dismissed.
The Respondents’ [abandoned] Application for summary dismissal
By an Application in a Proceeding, filed 15th February 2023, the Respondents sought Orders in the following terms: (a) although formally described as an Order, the Respondents effectively sought that the Court make a declaration that the Respondents enjoyed a “general immunity” from the jurisdiction of this Court pursuant s.9 of the FSI Act, and (b) in consequence of the general immunity sought, the proceeding brought by the Applicants should be summarily dismissed. As a general observation, what is and remains a very curious situation is that there is no mention in any of the submissions, on either side, of any authority regarding principles that govern summary dismissal Applications, notably the High Court decision in Spencer v Commonwealth of Australia.[8] Put another way: the Court has before it a summary dismissal Application but not a single authority regarding such Applications. “Unusual, unhelpful and unfortunate” might be apt descriptions. Further to this, how one actually runs a summary dismissal Application without reference to any authority on the point was, at least, somewhat bemusing. All of this said, and although not stated by the Respondents in their oral submissions but made by the Applicants, to contest the merits of the claim which a summary dismissal Application would require, could (if not would) inevitably lead to a submission that the Respondents had submitted to the jurisdiction of the Court – something that it has been at great pains to stress that it does not do.
[8] Spencer v Commonwealth of Australia (2010) 241 CLR 118. See also the summary of general principle by Perry J in Eliezer v University of Sydney (2015) 239 FCR 381 at [34] – [35]; and the Full Court decision in Kimber v The Owners Strata Plan No.48216 (2017) 258 FCR 575 at [62], which endorsed the summary of principle provided by Perry J in Eliezer.
It all rather begs the question: why would the Respondents seek an Order for summary dismissal, as it did in the Application in a Proceeding noted above, if it never intended to run such an Application when it was heard? Rather a waste of public and other resources as a result.
For completeness, I should note that the declaratory relief sought, as described above, was crafted in astonishingly wide and inappropriate terms. The actual Order sought stated: “The general immunity from the jurisdiction of the Australian Courts .…” This Court has no jurisdiction to make such an Order that applies to “the Australian Courts”, or to make a generalised Order conferring “general immunity.” Arguably, on its face, because of its extraordinarily broad terms, the Order would be ultra vires and could not be made. There was no Application to amend the Order. As such, the Court could simply dismiss it. It will not do so and will simply treat it, like much of the Respondents’ material, as unfortunate “over-reach”, and confine it to the terms indicated, namely as a declaration sought only in relation to the current litigation in this Court and to no other Court.
As they did with most of its other documents, the Respondents filed detailed submissions as part of their Application (6 pages of submissions) and then filed a further 4 pages of submissions on 21st March 2023. All of those submissions are set out below. As a general observation again, the submissions were excessive. It often seemed the case that the Respondents considered that the more submissions provided to the Court, the greater the likelihood that the general immunity sought would be granted; as if by overwhelming force, that immunity would be recognised and formalised. Fortunately, the Respondents’ oral submissions had a more succinct and precise focus. Those oral submissions are summarised below.
The Respondents’ submissions, included in its Application filed 15th February 2023, were as follows (emphasis in original):
1. Orders Sought
(a)The general immunity from the jurisdiction of the Australian courts provided by section 9 of the Foreign States Immunities Act 1985 applies so that the Saudi Arabia Cultural Mission and the Royal Embassy of Saudi Arabia in Australia (Cultural Office) is immune from the jurisdiction of the Federal Circuit and Family Court of Australia in respect of the proceedings brought against it by Nidal Alramadi and Ors.
(b)The proceedings brought by Nidal Alramadi and Ors against the Saudi Arabia Cultural Mission and the Royal Embassy of Saudi Arabia in Australia (Cultural Office) are summarily dismissed for want of jurisdiction.
2. Grounds
2.1 The default position that immunity applies has not been disturbed
(a)RESA submits that it is entitled to the Immunity and the immunities and privileges that are provided for in the FSI Act and by the other Acts and laws referred to in section 6 of the FSI Act.
(b)RESA further submits in support of the proposition above, that the FSI Act places a statutory duty on Australian courts to protect and preserve the default position of the general immunity applying in respect of sovereign states and their diplomatic missions in Australia and that this is the case even in circumstances where the sovereign state does not participate or appear in the proceeding in question. Noting in this respect that section 27 of FSI Act provides that:
“(1) A judgment in default of appearance shall not be entered against a foreign State unless:
(a) it is proved that service of the initiating process was effected in accordance with this Act and that the time for appearance has expired; and
(b) the court is satisfied that, in the proceeding, the foreign State is not immune.
(2) A judgment in default of appearance shall not be entered against a separate entity of a foreign State unless the court is satisfied that, in the proceeding, the separate entity is not immune.”
(c)The application of the Immunity to sovereign state is, in RESA’s submission, a default position. RESA therefore submits that there is an onus on the party bringing a proceeding to make the argument/provide evidence as to why the Immunity has been displaced rather than there being an onus on the sovereign state and its diplomatic mission to establish that it does apply.
(d)Additionally, RESA notes, in support of the proposition that there is a default position that the Immunity applies, that Part III of the FSI Act provides for several procedural immunities for sovereign states (including the immunity provided by section 27 of the FSI Act, as referred to in paragraph 2.1(b) of this application above).
(e)Further, subsection 10(2) of the FSI Act provides that even if a foreign state is a party to an agreement, the proper law of which is the law of Australia, this will not be taken as a waiver of the Immunity or a submission to the jurisdiction of the Australian courts. In this respect, section 3(1) of the FSI Act defines an agreement as follows:
“…in this Act, unless the contrary intention appears:
agreement means an agreement in writing and includes:
(a)a treaty or other international agreement in writing; and
(b)a contract or other agreement in writing.”
2.2 Service of the initiating process was not effective
(a)RESA submits that the service of the Proceedings was not effective and that there is therefore no validly served proceedings before the Court which can disturb the default position of the Immunity applying.
(b)RESA objects to the service of the Proceedings on the basis that it was not served in accordance with the requirements of section 24 of FSI Act and the service was therefore, as per section 25 of the FSI Act, ineffective.
(c)Specifically, RESA submits that:
(i)the Proceedings was not served, as is required by subsection 24(1) and subsection 24(3) of the FSI Act, on the equivalent of the Australian Department of Foreign Affairs as defined in the FSI Act (currently the Department of Foreign Affairs and Trade), being the Ministry of Foreign Affairs in the Kingdom of Saudi Arabia, but rather was served on the Royal Embassy of Saudi Arabia in Australia. This also constitutes a breach of Article 22 of the Vienna Convention of Diplomatic Relations (VCDR) which provides for the inviolability of the premises of diplomatic missions, which has the force of law in Australia.
(ii)The Proceedings did not (as required as an ‘initiating process’, as defined in subsection 3(1) of the FSI Act) include a clear statement of claim in respect of each of the parties to it. Rather, the Proceedings only contained a bulk of allegations, with no specificity as to which alleged contravention related to which party, how the alleged contravention came about or when. The Proceedings therefore did not function as an effective and valid ‘initiating process’ for the purposes of the FSI Act, including its section 24 and section 25.
(iii)The leave of the Court was not obtained, as is required by Section 24 (5) of the FSI Act, noting that Schedule 1 of the Court’s rules provides that Division 10.05 of the Federal Court Rules 2011 applies to require the leave of the Court for service through diplomatic channel.
(iv)The Proceedings represents a collective claim (being a claim involving more than one applicant) which (as detailed in paragraph 2.3 of this Application below) RESA submits are not provided for in the FSI Act (including in respect of the service of such claims).
2.3 FSI Act does not allow for collective claims
(a)RESA submits that the FSI Act does not contain any express reference to collective claims. Instead, the relevant language used suggests that actions in the singular were contemplated by the drafters of the FSI Act. For example, subsection 12(1) of the FSIA provides that a foreign state [my emphasis]: ‘is not immune in a proceeding in so far as the proceeding concerns the employment of a person under a contract of employment ...'. The reference to ‘a person under a contract of employment’ clearly, in RESA’s submission, suggests that only individual, not collective claims are contemplated.
(b)Further, RESA submits that a collective claim represents a significantly more invasive intrusion into the functions of diplomatic missions in Australia. In this respect a collective claim is at odds with the intended purpose of section 6 in the Diplomatic Privileges and Immunities Act 1967 (DP&I Act) (which has been adopted, including the VCDR as being part of Australian law), including its article 22(2) which provides that:
“The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.”
(c)The FSI Act does not, in RESA’s submission, therefore provide for an exception to the Immunity in respect of collective claims.
2.4 Contract related exception to the application of the Immunity does not apply to any of the parties to the proceedings
(a)As stated in the solicitors’ affidavit sworn by Andrew Klein on 10 February 2023 (that accompanies this application) (Mr Klein’s affidavit) the Saudi Arabia Cultural Mission (SACM) and the Royal Embassy of Saudi Arabia in Australia (Cultural Office) (collectively RESA) says that all of the Applicants were independent contractors throughout the entirety of their engagement with SACM, rather than employees (as asserted in the proceedings brought against it by Nidal Alramadi and Ors (the Proceedings)) then the exception to the application of the general immunity from the jurisdiction of the Australian court that is provided by section 9 of the Foreign States Immunities At 1985 (FSI Act) (the Immunity)provided by subsection 12(1) of the Foreign States Immunities Act 1985 (FSI Act)(the Employment Exception) will not apply to any of the Applicants. This is because section 12 of the FSI Act only concerns circumstances involving the employment of a person under a contract of employment.
(b)Further, if the Applicants were, as RESA says they were, independent contractors, then the Applicants do not fall within the exception to the application of the Immunity provided by subsection 11(1) of the FSI Act for their professional service..
(c)This is because subparagraph 11(2)(a)(ii) of the FSI Act provides an exclusion for such contract by providing that
“(2) Subsection (1) does not apply:
(a) if all of the parties to the proceeding:
(ii) have otherwise agreed in writing.”
(d)RESA submits that article 21 of the contract that was signed by all of the parties to the Proceedings (the Contract), as referred to in Mr Klein’s affidavit, represents a clear agreement in writing between it and each of the parties to the Proceedings that the jurisdiction of relevant authorities of Saudi Arabia, rather than Australia, is to apply to the contractual relationship between the parties and any disputes that may arise and consequently also represents an agreement that means that subsection 11(1) of the FSI Act will not apply.
2.5 Employment related exception to the application of the immunity does not apply to any of the parties to the proceedings
(a)Subsection 12(6) of the FSI Act provides as follows:
“(6) Subsection (1) does not apply in relation to the employment of:
(a)a member of the administrative and technical staff of a mission as defined by the Convention referred to in paragraph (5)(a); or
(b)a consular employee as defined by the Convention referred to in paragraph (5)(b) unless the member or employee was, at the time when the contract of employment was made, a permanent resident of Australia.”
(b)Paragraph 12(5)(a) of the FSI Act defines the Convention as follows:
“Vienna Convention on Diplomatic Relations, being the Convention the English text of which is set out in the Schedule to the Diplomatic Privileges and Immunities Act 1967”
(c)Administrative and technical staff of a mission’ is defined in paragraph (f) of Article 1 of the VCDR as follows:
“the ‘members of the administrative and technical staff’ are the members of the staff of the mission employed in the administrative and technical service of the mission…”
(d)All the parties to the Proceedings were, as detailed in Mr Klein’s affidavit, members of the administrative or technical staff of RESA.
(e)The following individuals were, as detailed in Mr Klein’s affidavit that accompanies this Application), not permanent residents of Australia, as defined in subsection 12(7) of the FSI Act (being ‘a person resident in Australia whose continued presence in Australia is not subject to a limitation as to time imposed by or under a law of Australia’), at the time they were engaged by RESA: Alaa Elkilany and Amer Hamze.
(f)RESA therefore submits that, if the individuals referred to above were employees of RESA, as stated in the Proceedings (which as stated in Mr Klein’s affidavit which accompanies this Application, RESA says they were not), they consequently do not fall within Employment Exception.
(g)Additionally, subsection 12(4) of the FSI Act provides an exclusion to the Employment Exception, by providing that:
“…Subsection (1) does not apply where:
(a)an inconsistent provision is included in the contract of employment.”
(h)The exclusion to the Employment Exception provided by subsection 12(4) of the FSI Act is reflective of the provision in Article 7 of the VCDR that:
“…the sending State may freely appoint the members of the staff of the mission.”
(i)Article 21 of the Contract, that was signed by all of the parties to the Proceedings, as referred to in Mr Klein’s affidavit, makes it clear that the jurisdiction of the relevant authorities in Saudi Arabia, rather than Australia, is to apply to the relationship between the parties and any dispute that may arise between them, in stating that:
“The Arabic copy shall be considered the original authentic copy, and any dispute arising between the parties of the contract regarding any of its articles shall be presented to the Ministry of Civil Service in the Kingdom of Saudi Arabia, and its decision on the matter shall be considered final.”
(j)Additionally, Article 20 of the Contract provides that it is intended to apply to all of the entitlements of SACM’s workers, and consequently exclude any entitlements provided under Australian law, stating:
“The signing by both parties on this contract shall be considered a commitment on their part to its content. The (Second Party) signature is also considered final, and he/she shall not have the right to request other than what is included in the contract.”
(k)Article 20 and Article 21 of the Contract are therefore clearly inconsistent with the Employment Exception applying to the parties to the Proceedings.
2.6 Preservation of the Immunity under section 6 of the FSI Act
(a)Section 6 of the FSI Act entitled ‘Saving of other laws’ provides that:
“This Act does not affect an immunity or privilege that is conferred by or under the Consular Privileges and Immunities Act 1972,…, the Diplomatic Privileges and Immunities Act 1967 or any other Act.”
(b)In respect of claims against a sovereign state in relation to its diplomatic mission, RESA submits that the whole of the FSI Act, including its exceptions (at sections 11 and 12 of the FSI Act inclusive), is subject to the provisions of its section 6. Therefore, the default position that the Immunity applies is maintained (see section 2.1 of this application above), unless the sovereign state submits to the jurisdiction voluntarily in accordance with section 10 of the FSI Act.
(c)RESA further submits that the maintenance of the Immunity (as referred to in section 6 of the FSI Act) is absolutely fundamental to maintain the sovereign equality of nation states as clearly stated in the preamble of the VCDR. This is demonstrated by provisions of the VCDR referred to in section 6 of the FSI Act, to which Australia is a party without any reservation whatsoever, which protect the sovereign state and its diplomatic missions from intrusions by the receiving state.
(d)It is also for this reason, as is reflected in section 6 of the FSI Act, that the Immunity must be viewed as a default position, rather than something that needs to be proven by a foreign state, particularly in the context of diplomatic relations.
(e)Subsection 4(2) of the Diplomatic Privileges and Immunities Act 1967 (DP&I Act) provides that:
“In this Act, expressions defined by the Convention have the same respective meanings as they have in the Convention. “
This section is in conformity with the preamble of the Vienna Convention on the Law of Treaties 1969 (the VCLT) which states that ‘that good faith and the pacta sunt servanda rule are universally recognized’.
(f)Further, the Vienna Convention on the Law of Treaties 1969 (VCLT) provides in its article 27 that ‘a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.’ In addition, article 31 of the VCLT provides that:
“…a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose…The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes. “
(g)The principle of sovereign equality of states established in the VCDR means that a sovereign state will not be subject another sovereign state and its diplomatic mission to its jurisdiction especially when a claim involve diplomatic relations. Any state that tries to subject another sovereign state to its jurisdiction will therefore be in great violation of the universally recognised principle of sovereign equality of states that is already confirmed in the preamble of the VCDR.
(h)The whole purpose and objects of the VCDR is to maintain international peace and security to promote friendly relations among nations. This will be in danger of collapse if states who are parties to it do not fulfil their obligations. The international court of justice (ICJ) stated in its renowned judgement that the rule of state immunity occupies an important place in international law and international relations. It derives from the principle of sovereign equality of states, which, as Article 2, paragraph 1, of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal order Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening, ICJ, 2012, para 57).
(i)RESA submits in respect of the above, that the purpose and the objects of the VCDR and the intention of parties who negotiated it was not to strip the immunity of sovereign states and their diplomatic missions.
The Respondents filed a further 4 pages of submissions on 21st March 2023; they were as follows (emphasis in original; footnotes omitted):
The default position that Immunity applies has not been disturbed (ground 2.1 in the Application)
1The immunity for sovereign states and its diplomatic missions (the Immunity), as recognised in section 9 of the Foreign States Immunities Act 1985 (FSI Act), is based on international obligations that have been adopted as part of Australian law. The purpose of the Immunity is clearly provided in the preamble of the Vienna Convention on Diplomatic Relations 1961 (VCDR) and its articles. In this context, the main and original purpose for establishing the FSI Act was because, at the time, foreign states had more involvement in trade and commercial transactions than before. Hence, the Royal Embassy of Saudi Arabia in Australia (Cultural Office), of which the Saudi Arabia Cultural Mission is an emanation (RESA), submits that the FSI Act is an important and essential part of maintaining diplomatic relations and international order. This is reflected in the fact that most of the provisions in the FSI Act relate to matters such as trade and arbitration. The report of the Australian Law Reform Commission (ALRC), Australian Law Reform Commission No.24 – Foreign State Immunity (Report), notes, with regard to section 6 of the FSI Act, that this clause is not to derogate from specific immunities conferred by or under other Acts, with particular attention being drawn to the Diplomatic Privileges and Immunities Act 1967, the Consular Privileges and Immunities Act 1972 and the Defence (Visiting Forces) Act 1963. RESA notes that the ALRC was very cautious in its discussion of employment of staff by diplomatic and consular missions in the Report, noting that it designates a separate section for employees at the diplomatic and consular missions. The ALRC was clear in the Report that the relevant instruments in respect of diplomatic missions should continue to apply, despite the operation of the FSI Act.
2Based upon what has been called the purposive method of interpretation, the applicants bear the factual and legal onus of proving that the Immunity has been ousted. This requires them to demonstrate that they come within one of the exemptions in section 12, section 11 or any other provisions of the FSI Act.6 RESA submits that the conditions to satisfy any of the exemptions from the Immunity in the FSI Act are not satisfied by any the Applicants, being Nidal Alramadi and Ors, in the proceedings brought against it (Proceedings).
3As set out in ground 2.1 of the Application, the default position is that the Immunity applies and the onus is therefore on the Applicants in the Proceedings to demonstrate that it has been disturbed.
Service of the initiating process was not effective (ground 2.2 from the Application)
4RESA objects to the service of the process on the basis set out in ground 2.2 of the Application (see page 6 of the Application). On the basis of that objection, there is no validly served process before the Court which can disturb the default position of the Immunity applying.
5As set out in the Application, RESA objects to the service of the initiating process to the Royal Embassy of Saudi Arabia in Canberra. This is because the Embassy is not the equivalent entity to the Australian Department of Foreign Affairs and Trade. Rather, the Royal Embassy of Saudi Arabia in Canberra is the equivalent to the Australian embassy in Riyadh. Additionally, serving judicial documents to the Embassy premises represents a breach of article 22 of the VCDR, which is part of Australian law. This is reflective of the fact that correctly serving processes on foreign states is important to protect the inviolable nature of their position in Australia (which is reciprocated to Australian missions overseas) (see Adams v Director of Public Prosecutions [2000] 2 ILRM 401, where it was held that service of proceedings on the British Ambassador to Ireland was illegal under Article 22 of the VCDR). This is demonstrated by the fact that at the Vienna Conference in 1961, the negotiating parties and the Committee for the VCDR unanimously rejected a proposition to serve judicial documents by any means, even by post, to the premises of a diplomatic mission, as this would represent a breach of the inviolability of a mission’s premises.
6The requirement for a serving party to have the leave of the Court is another essential requirement to protect the inviolable nature of foreign states. One of the primary reasons for the requirement for leave before service is effected on foreign states is so as to eliminate vexatious and frivolous claims.
7RESA submits in respect of the above that the documents, including the relevant Certificates, provided by the previous lawyers of the Applicants in the Proceedings, Recover Legal, in respect of service were consequently not correct.
8RESA further submits that subsection 24(5) of the FSI Act states that any rule requiring leave of the Court before an initiating process is served outside of jurisdiction needs to be complied with.
FSI Act does not allow for collective claims (ground 2.3 in the Application)
9RESA submits, for the reasons set out in ground 2.3 in the Application, that the FSI Act does not provide for an exception to the Immunity in respect of collective, generic, claims, which are lacking in particulars required for the foreign state to clearly understand what is alleged against it by each of the applicants, particularly in circumstances where each party has different characteristics and circumstances, as well as separate and distinct claims. RESA further submits that service of collective claims allows more potential for vexatious and frivolous claims to be made (as, in RESA’s submission, is the case in respect of the Proceedings) which consequently significantly intrudes into the functions of the mission.
All of the applicants in the Proceedings were independent contractors not employees - neither of the exceptions provided by section 12(1) or subsection 11(1) of the FSI Act applies to any of the parties to the proceedings (ground 2.4 in the Application)
10RESA submits, for the reasons set out in ground 2.4 of the Application that neither of the exceptions provided by section 12(1) or subsection 11(1) of the FSI Act applies to any of the parties to the proceedings because they were independent contractors rather than employees (as asserted in the Proceedings) and there was no written agreement that subsection 11(1) of the FSI Act would not apply.
11RESA notes that foreign missions are allowed to engage staff of the mission either as contractors or employees (as is reflected in section 11 and section 12 of the FSI Act). This is also in conformity with Article 7 of the VCDR. For example, it has been made clear in the United Kingdom its policy is to classify security officers as administrative and technical staff where justified by their functions, even though they are employed by private military and security companies and not by the United Kingdom government.
Subsection 12(6) of the FSI Act applies to all of the Applicants in the Proceedings to exclude them from the Employment Exception (items (a) to (f) of ground 2.5 in the Application)
12RESA submits, for the reasons set out at items (a) to (f) of ground 2.5 in the Application that if Mr Elkilany and Mr Hamze were employees of RESA, as stated in the Proceedings, they are excluded from the exception to the Immunity provided by subsection 12(1) of the FSI Act by the operation of subsection 12(6) of the FSI Act.
13RESA further submits in respect of this ground that the operation of subsection 12(6) of the FSI Act is dependent on whether a relevant individual was a ‘permanent resident’ (as defined in subsection 12(7) of the FSI Act) at the time he or she was engaged by the foreign state, rather than whether he or she was a permanent resident as defined by the title of an Australian visa or whether he or she later became an Australian citizen.
Subsection 12(4) of the FSI Act applies to all the Applicants in the Proceedings to exclude them from the Employment Exception (items (g) to (k) of ground 2.5 in the Application)
14RESA submits that, for the reasons set out at items (g) to (k) of ground 2.5 in the Application, subsection 12(4) of the FSI Act operates so as to exclude all of the Applicants in the Proceedings from the exception to the Immunity provided by subsection 12(1) of the FSI Act.
15RESA further submits in this regard that Article 21 of the contract that was signed by all of the parties to the Proceedings (Contract) represents a mandatory agreement in writing between it and each of the parties to the Proceedings that the jurisdiction of relevant authorities of Saudi Arabia, rather than the courts of Australia, is to apply to the relationship between the parties and the locus fori of any disputes that may arise (satisfying paragraph 12(4)(a) of the FSI Act).
16Additionally, Article 20 of the Contract provides that it is intended to apply to all of the entitlements of SACM’s workers, and consequently exclude any entitlements provided under Australian law (satisfying paragraph 12(4)(b) of the FSI Act).
17RESA submits in this respect that the relevant terms of the Contract can be clearly distinguished from the arrangements that were present in the matter of Republic of Italy (Minister of Foreign Affairs and International Cooperation – Adelaide Consulate) v Benvenuto [2018] FCAFC 64 (Benvenuto). Specifically, the Contract does not, as was the case in Benvenuto, provide that for a ‘choice of law’, i.e., that the relevant authorities in Saudi Arabia ‘could hear and determine’ a dispute (see paragraph 47 of the decision in Benvenuto) but rather that in any dispute these authorities in Saudi Arabia, rather than the Australian courts, must hear and determine any disputes that arise under the Contract and its decision is final. In the Contract before the Court there is an ‘express inconsistency‘ (in its Articles 20 and 21) as contemplated in Benevenuto at [54].
18Further, the fact that Article 21 of the Contract clearly and unequivocally stated that its Arabic copy was to be considered the original lends further weight to the proposition that it was clear that there was no ‘choice of law’ as was the case in Benvenuto.
19Additionally, unlike the contract that applied to the parties in Benvenuto, Article 20 of the Contract clearly excludes any entitlements under Australian law.
Immunity is preserved under section 6 of the FSI Act (ground 2.6 in the Application)
20RESA submits, for the reasons set out in ground 2.6 of the Application, that section 6 of the FSI Act preserves the Immunity despite the exceptions to it provided in sections 11 to 21 of the FSI Act.
I need only note here that in these submissions, there is no mention of the decisions by Ashley J in Douglas v Nauru, or by the High Court in Firebird.
The Respondents’ actual, limited oral Application
It is important at this juncture to note the way the Respondents ran their “Application” at the interlocutory hearing on 27th March 2023. It bore no resemblance to any of its filed submissions, or to the terms of the Application filed on 15th February 2023. In short, according to Senior Counsel for the Respondents, the only two matters addressed at this hearing were: (a) the “service question” (argued to be defective), and (b) the nature of the Statement of Claim not being a proper Application. Senior Counsel for the Respondents stated in Reply:[9]
… I’ve today focused on the points which are capable of being disposed of in an interlocutory basis on the service question and on the question of the nature of the statement of claim being not a proper application. They’re the points I focused on. We reserve all our rights in relation to the issues in relation to section 12(4) and section 11 as to what applies and what defences, because the defences between the two provisions are slightly different, although they do say things about that.
[9] T 34.
Thus, two matters only were proposed by the Respondents to be addressed: (a) whether the Application or Statement of Claim had been properly served, and (b) whether the Statement of Claim was, in fact, a proper form of process (my term).
Earlier in his submissions, Senior Counsel for the Respondents delineated these matters in the following terms:[10]
[10] Respectively, T 7, 8, 11, 12 & 13.
MR PHILLIPS: Your Honour, how this case has crystallised in terms of what we really need you to determine, is that the service is faulty and therefore – under I think it’s section 25 of the Foreign States Immunities Act – service is ineffective. And that’s really the point we are really focusing on today. The service is ineffective.
…
MR PHILLIPS: Yes. Yes, these preliminary matters, we say, are important to have determined at the outset because we don’t get to the next point. Or we may not get to them except in a different way.
HIS HONOUR: I understand that. So can I come back to my question.
MR PHILLIPS: Yes.
HIS HONOUR: Do those cases, sections of the Act or Rules that deal with summary dismissal, do you say they have no application here or not?
MR PHILLIPS: Well, only to the extent that the service has been ineffective. So, if there’s no service, if there’s ineffective service, there’s nothing before you.
HIS HONOUR: Right. Okay.
MR PHILLIPS: And we shouldn’t be troubled any further. And that’s reaching for the stars.
HIS HONOUR: Nor should the court, you say.
MR PHILLIPS: That’s reaching for the stars.
HIS HONOUR: No, I understand. Whether or not you get to Jupiter or somewhere else, we will see where, if you get there.
MR PHILLIPS: Exactly.
…
Six:
Service of the initiating process under this section shall be taken to have been effected outside the jurisdiction and in the foreign state concerned whenever that service is actually effected.
And what we say here is no leave was sought of this court, using either this court’s rules or the Federal Court rules to serve the process. And we say that is a fundamental error in what the applicants purport to do. And there’s one last section I just want to take you to because it goes to this question of why the statement of claim is – another reason why the statement of claim is deficient. And it’s section 34 of this Act.
…
MR PHILLIPS: The applicants, as I understand it, who remain are the first applicant, the third applicant and the fifteenth applicant. The problems about this, then I will take you through the statement of claim, why it offends against rule 4.02 and why leave may not have been granted to serve it outside the jurisdiction – and I will have to take you to part 10 in particular as to what the rules are. Is that it looks like a shelf statement of claim.
It’s generic in the extreme and it doesn’t set out the facts, matters and circumstances for the remaining applicants as to what it is said about their contracts of employment or what laws is it said weren’t complied with by the respondents; what’s owed to them, under what provision under what instrument or what period of service they may have had. It is simply completely deficient. And, of course, this is a statement of claim which is filed quite some time ago when there was – and there’s new solicitors now acting. But it didn’t change. The only thing that changed about it was the number of applicants; from 17 we now have three.
…
HIS HONOUR: It’s a bit of a catch 22, isn’t it? I’m just thinking out loud here, Mr Phillips ‑ ‑ ‑
MR PHILLIPS: Yes.
HIS HONOUR: ‑ ‑ ‑ that where the statement of claim, not only here but elsewhere, refers to, “Look, further particulars will be provided”, but we’ve got a respondent who says, “I’m not here”, so who do they seek further and better particulars from?
MR PHILLIPS: Well, this is the problem, your Honour, because one of the problems about being a respondent in our circumstances is that might be seen to be taking a step in the proceedings.
HIS HONOUR: No, no, I understand, I’m just asking the question.
MR PHILLIPS: And I accept that. And it’s a very good question. But I’m saying in terms of the Foreign States Act one has always got to be so careful in not admitting to the jurisdiction because if you take a step in the proceeding, you may have waived your rights to object.
The Applicants’ Response opposing summary dismissal
Like the Respondents, the Applicants filed a Response, dated 10th March 2023, which incorporated or provided detailed submissions. These were supplemented by further submissions, filed 20th March 2023. Those separate sets of submissions are outlined below.
The submissions contained in the Applicant’s Response, filed on 10th March 2023, followed various Orders Sought; they were as follows (emphasis in original; footnotes omitted):
…
B. Ground
Ground 2.1
3.Ground 2.1 (a): The Respondents' position that they are entitled to immunity and privileges pursuant to FSIA is misconceived and seeks to avoid the clear exception provided by section 12 FSIA which allows employees to commence proceedings against their employers, even if the employer is a foreign state, provided that certain conditions are met.
4.Ground 2.1 (b): The Applicants repeat the response provided above under Ground 2.1 (a). The default position invoked by the Respondents regarding general immunity excludes employment relationships. The immunity provisions in FSIA are captured under Part II of FSIA. There is no utility, but more so it is incorrect, to interpret the issue of immunity by considering and referencing other sections of FSIA (for example section 27 FSIA as done by the Respondents) to enhance the immunity argument. There are cogent public policy reasons behind the decision to include the exception in section 12 FSIA and not afford the sovereign states the blanket immunity argued for by the Respondents.
5.Ground 2.1 (c): The Respondents' submission that there is a default position amounting to immunity for a sovereign state is also incorrect. The exception at section 12 FSIA cannot be disregarded. The Respondents bear the onus as the parties who claim that they are immune from the application of FSIA and that the section 12 exemption does not apply. In respect of claims relying upon section 12 FSIA, all that is required of the Applicants is to commence proceedings by pleadings of material facts asserting:
a)The Applicants are, or were, employees of the Respondents at the time of commencing proceedings;
b)Their employment contact was made in Australia, or was performed wholly or partially in Australia; and
c)When the employment contract was made, the Applicants were citizens or a permanent resident of Australia.
6.Ground 2.1 (d): The Applicants repeat the response provided under Ground 2.1 (a), namely that Part II of FSIA is the only part of the Act that deals with immunity from jurisdiction. Part III of FSIA is only relevant to service and judgment. Therefore, the Respondents' submissions regarding ''procedural immunities for sovereign states” is plainly incorrect. There are no procedural immunities provided for, but requirements for service and judgment to be conducted in a particular manner, which is different to immunities. The procedures regarding service and judgments do not give rise to a foreign state's immunity from prosecution relating to employment relationships.
7.Ground 2.1 (e): Section 10 of FSIA is about submission to jurisdiction and, as such, is irrelevant to the issue that needs to be presently determined by the Court and it should be disregarded.
Ground 2.2
8.Ground 2.2 (a): As a matter of well settled principles of statutory interpretation, service and immunity are two separate concepts dealt with in different ways by the FSIA. If service was ineffective, it does not follow that the foreign state is immune from the applicability of the exceptions to prosecution, including s 12 of the FSIA. If service was ineffective, orders may be made to allow service to be carried out in accordance with the legislation.
9.Ground 2.2 (b) and (c):
a)Ground 2.2 (c) (i): The Australian Department of Foreign Affairs served the originating process and provided a Certificate of service in that regard. The Respondent, which bears the burden of proof, has not put on any evidence about whom was served and so may not rely on the factual matters alleged in 2.2I(i) of the Application.
b)Ground 2.2 (c) (ii): There is no authority for the Respondents' proposition regarding this ground. Nothing in the definition of section 3(1) FSIA allows the Respondents to avoid jurisdiction as asserted. This amounts to an attempt to strike out the application without submitting to jurisdiction. The Applicants must plead material facts satisfying the exception under s 12, which they have done (see Douglas). Section 3(1) FSIA provides the definition of an initiating process but does not discuss the quality or clarity of the documents forming part of the initiating process. That argument is not relevant whatsoever to an application, initiated by the Respondents, where they claim they are immune from the jurisdiction of the Australian Courts.
10.Ground 2.2(c) (iii): The Respondents rely on the Federal Court Rules and whether was leave obtained in accordance with r 10.51, despite the fact these proceedings were commenced in the Federal Circuit and Family Court of Australia (FCFC). The Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (FCFCR), have clear and comprehensive rules for service. In particular, rules 1.08 and 6.04 allows the Court to authorize service in a way not provided for by the Part, in which case the court may give effect to service in accordance with section 24 FSIA it has been done consistent with the obligations found in FSIA. Further, under the FCFCR, the Court may dispense with the rules and may also make orders inconsistent with the Rules (rule 1.07). Finally, rule 1.06 says that it is intended that the FCFCR will apply to proceedings in the FCFC - it is only where the Rules are insufficient or inappropriate that the Court may apply the FCR - there is no basis for that in this case.
11.Ground 2.2 (c) (iv): There is no authority for this proposition, and it is contrary to a plain reading of FSIA. This ground it is dealt with below in submissions regarding Ground 2.3.
Ground 2.3
12.Ground 2.3 (a): The Respondents' submissions exhort the court to adopt an interpretation of the FSIA, unsupported by principles of statutory interpretation or case law. The fact the FSIA refers to "a person" cannot amount to an exclusion of collective claims. Rather it authorizes collective claims where multiple individuals are able to make out the exemption under section 12 FSIA. The ability to bring collective claims is also a matter determined by procedural laws of courts. The FSIA does not expressly seek to limit the rights of employees relying upon the section 12 FSIA exemption as to how they might commence proceedings, as would be required under well-established principles of statutory interpretation, indeed the reverse is true (see Douglas). Further, headings are part of the FSIA for the purpose of interpreting that Act, section 12 FSIA is expressed to be about "contracts of employment" (in the plural), thus clearly contemplates claims relating to multiple contracts, which could mean multiple employees as well as multiple contracts held by the one employee. The Applicants say the correct interpretation of the FSIA is that it has the same effect in relation to each person named as if the current proceedings were only commenced by one person. The Respondents' claim is otherwise illogical as it would allow multiple individual complaints, which would have the same effect as the claim as presently pleaded. The approach for which they contend is thus, also is contrary to sections 190 and 191 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
13.Ground 2.3 (b): The issue of whether a collective claim is more or less "invasive' of the functions of a diplomatic mission is no part of the test under section 12 FSIA. The Respondents must provide evidence that the Applicants do not fall under the exemption, such as by reference to subsections 12(5) and (6) FSIA but have failed to do. Section 6 of the Diplomatic Privileges and Immunities Act 1967 does not assist the Respondents' argument in relation to collective claims. The same point applies in relation to section 22(2) of the Vienna Convention of Diplomatic Relations. The Applicants otherwise rely on the paragraph immediately above.
14.Ground 2.3 (c): This ground effectively asserts that because the FSIA does not expressly authorize collective claims, they cannot be brought. That is wrong for the reasons set out above.
Ground 2.4
15.Ground 2.4 (a): It is well established that a factual matter cannot be disposed of in the absence of evidence and argument from the parties in an interlocutory hearing. This claim is predicated on material facts pleaded as showing that the so called "Contractor's Declaration Forms" were a sham and that all the Applicants were really employees. That includes the following matters.
a)The Applicants were employed as employees and remained Respondents' employees for the entire duration of the employment relationship.
b)On or about July 2014, they were all made to sign Contractor's Declaration Forms on substantially the same terms.
c)After two of the Applicants signed the Contractor's Declaration Forms, there were no changes, inter alia, to their monthly pay, their tasks, duties, and they did not get an ABN number and did not issue invoices for their work to the Respondents. Their employment relationship with the Respondents remained unchanged.
d)In particular, one of the employees says his signature on the relevant Form was a forgery.
16.The Court is unable to determine whether the contract was a shame [sic] and whether the Applicants were employees on an interlocutory basis and, to the extent, when the Applicants can make out a prima facie case the Respondents will be unsuccessful on the interlocutory application (see Douglas v Nauru: 229, [39]).
17.The approach urged on the Court is contrary to the case law (see Italy v Benvenuto: [36]-[47] 65-67 as per White J Allsop CJ and Besanko J agreeing at 57, [1] and [2]). The Respondents' contention that the proceedings be summarily dismissed for want of jurisdiction cannot be made.
18.Ground 2.4 (b) and (c): Section 11 FSIA has no operation in respect of the Applicants' claims because they were employees, not contractors in a commercial transaction as defined in the section. The Applicants' do not rely on section 11 FSIA exception and so it is not relevant. For the reasons set out above, this is a matter that can only be determined as a matter of fact after hearing the evidence from all the parties regarding why the Contractor's Declaration Form was a sham.
19.Ground 2.4 (d): Firstly, choice of law does not determine jurisdiction (see Italy v Benvenuto. 67, [47] as per White J Allsop CJ and Besanko J agreeing at 57, [1] and [2]). Secondly, the Applicants do not rely on section 11 FSIA for reasons already explained above.
Ground 2.5
20.Ground 2.5 (a) to (f): The Applicants summit [sic: “submit”] that they were permanent residents of Australia at all relevant times.
21.Ground 2.S(g)-(k). This is inconsistent with Full Court authority in Italy v Benvenuto.
Ground 2.6
22.Ground 2.6 (a) to (i): Given that these are substantially the same Ground 2.1 above, the Applicants repeat their response under Ground 2.1. Further, these submissions made by the Respondents are contrary to current case law including Italy v Benvenuto.
C. Conclusion
23.The Court has jurisdiction to determine the matter pleaded by the Applicants in these proceedings for the reasons provided above. The current application should be dismissed with costs.
The Applicant’s filed further submissions on 20th March 2023; they were as follows (emphasis in original; footnotes omitted):
A. ISSUES TO BE DETERMINED
1. The Applicant’s make the following submissions in relation to the Respondents’ application in a proceeding dated 10 March 2023 (Application) and replies upon their Response dated 10 March 2023. The Respondents assert immunity from the jurisdiction of the Australian Courts relying on section 9 of the Foreign State Immunities Act 1985 (Cth) (FSIA). The Respondents’ Application is misconceived. The Respondents cannot rely on that section for the reasons set out below and including that section 12 of the FSA provides an exception to the immunity provided by section 9 of the FSIA.
2. The Application requires the Court to assess whether the Applicants’ statement of claim (SOC) and the evidence filed by the Applicant’s on this motion, shows the test under s 12 of the FSIA is satisfied.1 The Applicants say the test is satisfied because the SOC pleads material facts consistent with s 12 as set out below.
a)The Applicants were each:
i.an employee of the First or Second Respondents and
ii.employed under a contract of employment (Contract),
The material facts pleaded in relation to the former are at paragraphs [1], [2] and [4] of the Statement of Claim (SOC). See also the affidavit of Ms Emily Shoemark, dated 10 March 2023 (Shoemark Affidavit) at paragraphs [3]-[9]. The material facts pleaded in relation to the latter are at paragraphs [6]-[8] of the SOC, noting paragraphs [9], [10h], [12] and [16] of the SOC plead the material facts giving rise to the sham contracting claim. The Shoemark Affidavit provides further particulars of the pleadings illustrating the issues likely to be raised in relation to these pleadings, including but not limited to forgery of signatures on the contracting agreements and that the new contracts fail for consideration at paragraphs [10]-[15].
b)Each of the Employees’ Contracts were made in Australia and were performed wholly or partly in Australia, The material facts pleaded at paragraphs [5] and [8g] of the SOC and paragraph [4] of Ms Shoemark’s second affidavit dated 15 March 2023.
c)Each employee’s claim concerned:
i.rights conferred or imposed by a law of Australia on the Applicants employees and the Respondents as employers and/or
ii.each employee’s claim concerned entitlements to payments arising under a contract of employment.
The material facts pleaded at paragraphs [15]-[42] of the SOC.
d)At the time each contract was made, each Applicant was a permanent resident of Australia, being:
i.an Australian citizen, or
ii.a person whose continued presence in Australian is not subject to any limitation as to time imposed by or under a law of Australia.
Pleaded at paragraph [5] of the SOC. See also Ms Shoemark’s affidavits.
B. RESPONDENTS’ CLAIM
3. In general, the Respondents cannot succeed on this interlocutory application as the Applicants SOC clearly make out the section 12 exemption (see above). In particular, the Respondents’ Application must fail for the following reasons and by reference to the outline of evidence provided by Ms Shoemark.
a)The Respondents are effectively seeking a ruling on the substantive issues, which may not be determined on an interlocutory application. The substantive matters require the Court to determine issues of fact and law that can only be determined after evidence and submissions from the parties including but not limited to: whether the Respondents’ purported contracting agreement was signed by the Applicants; whether it was void for consideration; and whether it was a sham, given what the Applicants did, how they worked and were paid, did not change.
b)The employment contracts were made and/or performed wholly within Australia (noting this does not appear to be in dispute).
c)The Applicants were citizens or permanent residents of Australia when the employment contracts were entered into, noting the Applicants’ employment contracts were renewed yearly.
B.1 Default Immunity
4. The Respondents’ claim under s 9 of the FSIA fails to engage at all with the s 12 exception as set out in the Applicant’s’ response and also by reference to the case law, well established principles of statutory interpretation, the relevant Law Reform Commission Report12 and the Explanatory Memorandum.
B.2 Service
5. The Applicants rely on the Certificate of service provided by the Department of Foreign Affairs and Trade dated 14 July 2022. The recommendations made by the Law Reform Commission makes clear that the purpose of the legislation was to be “… sufficiently flexible to allow service by the Department [of Foreign Affairs and Trade (DFAT)] upon the foreign mission in Australia, upon a mission of a third state looking after the interests of the defendant in Australia, or by the Australian mission in the foreign state on its Foreign Ministry, as appropriate in the particular case”.
6. Importantly, the Respondents accepted service as confirmed by the Certificate issued by DFAT, notwithstanding the contentions now asserted by the Respondents, apparently questioning the validity of service.
7. Otherwise, the Court may make orders allowing service to be effective in accordance with the FSIA or otherwise by way of substituted service.
B.3 FSIA does not govern procedural matters
8. Section 23 of the Acts Interpretation Act 1901 (Cth) make it clear that words in the singular include the plural. This is a complete answer to this ground. Otherwise, as a matter of well settled principles of statutory interpretation, the rights of the Applicants to bring substantive claims in relation to employment are governed by s FSIA. The FSIA does expressly or impliedly purport to govern the procedural aspects of claims satisfying the exception set out in section 12 of the FSIA, such as whether proceedings may be commenced concerning more than one claim by Applicants making out the requirements of s 12 of the FSIA. This part of the Respondent’s claim is unsustainable as a matter of law.
B.4 Contract exceptions regarding immunity
9. The Respondent’s submissions are contrary to the case law including the Full Court Decision of Benvenuto. For the reasons outlined above, and in the Response, this ground must fail.
B.5 Employment exceptions regarding immunity
10. The Respondents’ arguments are predicated on a false premise that the Applicants were not permanent residents when the employment contract was made. In 2008 and 2011 respectively, the Applicants became permanent residents of Australia. Thus, they were employees from the time the contract was renewed for another 12 months.
B.6 Preservation of immunity
These submissions should be rejected and amount to a failure to engage with the terms of section 12 of the FSIA. The exception applies as a matter of law.
C. CONCLUSION
11. The Applicants submit that the current application should be dismissed with costs.
Outline of Principle – immunity, exceptions
Although certain parts of it are referred to above in the extracts from the High Court decision in Firebird, the first matter to address is to record relevant parts of the FSI Act. For current purposes, it is sufficient to record ss.9 (the general statement of immunity, subject to exceptions as set out in the Act), 12 (regarding the exceptions in relation to contracts of employment), 24 (regarding service through the diplomatic channel), and 40 regarding a conclusive Certificate.
9 General immunity from jurisdiction
Except as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding.
…
12 Contracts of employment
(1) A foreign State, as employer, is not immune in a proceeding in so far as the proceeding concerns the employment of a person under a contract of employment that was made in Australia or was to be performed wholly or partly in Australia.
(2) A reference in subsection (1) to a proceeding includes a reference to a proceeding concerning:
(a)a right or obligation conferred or imposed by a law of Australia on a person as employer or employee; or
(b)a payment the entitlement to which arises under a contract of employment.
(3) Where, at the time when the contract of employment was made, the person employed was:
(a)a national of the foreign State but not a permanent resident of Australia; or
(b)an habitual resident of the foreign State;
subsection (1) does not apply.
(4) Subsection (1) does not apply where:
(a)an inconsistent provision is included in the contract of employment; and
(b)a law of Australia does not avoid the operation of, or prohibit or render unlawful the inclusion of, the provision.
(5) Subsection (1) does not apply in relation to the employment of:
(a)a member of the diplomatic staff of a mission as defined by the Vienna Convention on Diplomatic Relations, being the Convention the English text of which is set out in the Schedule to the Diplomatic Privileges and Immunities Act 1967; or
(b)a consular officer as defined by the Vienna Convention on Consular Relations, being the Convention the English text of which is set out in the Schedule to the Consular Privileges and Immunities Act 1972.
(6) Subsection (1) does not apply in relation to the employment of:
(a)a member of the administrative and technical staff of a mission as defined by the Convention referred to in paragraph (5)(a); or
(b)a consular employee as defined by the Convention referred to in paragraph (5)(b);
(c)unless the member or employee was, at the time when the contract of employment was made, a permanent resident of Australia.
(7) In this section, permanent resident of Australia means:
(a)an Australian citizen; or
(b)a person resident in Australia whose continued presence in Australia is not subject to a limitation as to time imposed by or under a law of Australia.
…
24 Service through the diplomatic channel
(1) Initiating process that is to be served on a foreign State may be delivered to the Attorney‑General for transmission by the Department of Foreign Affairs to the department or organ of the foreign State that is equivalent to that Department.
(2) The initiating process shall be accompanied by:
(a)a request in accordance with Form 1 in the Schedule;
(b)a statutory declaration of the plaintiff or applicant in the proceeding stating that the rules of court or other laws (if any) in respect of service outside the jurisdiction of the court concerned have been complied with; and
(c)if English is not an official language of the foreign State:
(i) a translation of the initiating process into an official language of the foreign State; and
(ii)a Certificate in that language, signed by the translator, setting out particulars of his or her qualifications as a translator and stating that the translation is an accurate translation of the initiating process.
(3) Where the process and documents are delivered to the equivalent department or organ of the foreign State in the foreign State, service shall be taken to have been effected when they are so delivered.
(4) Where the process and documents are delivered to some other person on behalf of and with the authority of the foreign State, service shall be taken to have been effected when they are so delivered.
(5) Subsections (1) to (4) (inclusive) do not exclude the operation of any rule of court or other law under which the leave of a court is required in relation to service of the initiating process outside the jurisdiction.
(6) Service of initiating process under this section shall be taken to have been effected outside the jurisdiction and in the foreign State concerned, wherever the service is actually effected.
(7) The time for entering an appearance begins to run at the expiration of 2 months after the date on which service of the initiating process was effected.
(8) This section does not apply to service of initiating process in a proceeding commenced as an action in rem.
…
40 Certificate as to foreign State etc.
(1) The Minister for Foreign Affairs may certify in writing that, for the purposes of this Act:
(a)a specified country is, or was on a specified day, a foreign State;
(b)a specified territory is or is not, or was or was not on a specified day, part of a foreign State;
(c)a specified person is, or was at a specified time, the head of, or the government or part of the government of, a foreign State or a former foreign State; or
(d)service of a specified document as mentioned in section 24 or 28 was effected on a specified day.
(2) The Minister for Foreign Affairs may, either generally or as otherwise provided by the instrument of delegation, delegate by instrument in writing to a person his or her powers under subsection (1) in relation to the service of documents.
(3) A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Minister.
(4) A delegation under subsection (2) does not prevent the exercise of the power by the Minister.
(5) A Certificate under this section is admissible as evidence of the facts and matters stated in it and is conclusive as to those facts and matters.
Outline of principle – summary dismissal
As earlier remarked, I note the remarkable, singular absence of reference by either party to principles regarding summary dismissal, especially by the Respondents, being the party that formally seeks to have the primary Application summarily dismissed. I also record again that if this part of the Application was run, it could be tantamount to acknowledging the jurisdiction of the Court, which the Respondents steadfastly seek to avoid. As also earlier noted, this part of its own Application was never addressed by the Respondents, either in its written, or oral, submissions. Likewise, the Respondents never ran, in accordance with the Order sought in its Application, that there be a general declaration of immunity in their favour. To state the obvious: no one should file an Application and seek Orders that are never pursued. Such was the case here regarding summary dismissal, and equally so regarding a declaration of “general immunity”. To repeat: in these respects, the relief sought by the Respondents in its Application was never pursued. As such, the Application was plainly a waste of time, a waste of public (and other) resources, if not also formally misleading. Thus, because the relief sought in the Application was never formally pursued, it will be struck out. The matter will be dealt with on the bases of what the Court will take was an [implied] oral Application by the Respondents (although never formally put in these terms) to challenge the Applicants’ Application in relation to (a) service) and (b) the adequacy of the Statement of Claim.
Consideration and Disposition
Having regard to how the Respondents ran its “Summary Dismissal” Application, namely, that Application did not run and instead, it prosecuted only the issues of “service” and the quality or character of the Statement of Claim, as indicated above, I will deal only with those matters. I will deal with the Statement of Claim issue first.
By definition, “pleadings”, such as a Statement of Claim, serve the long-recognised functions of giving notice of the case that is to be met at trial, and thereby delineating the issues between the parties. As such, pleadings define the substantive issues in dispute.[11] Here, in quite general terms [mainly] in their oral submissions, the Respondents put in issue a range of matters, such as whether there were contracts of employment between the Applicants and the Respondents (which would bring the matter within the terms of s.12 of the FSI Act), or whether the Applicants were engaged only in contracts for the provision of “services”. I do not need to determine such issues here. I note, however, not for the first time, that in these submissions, the Respondents never referred to the High Court’s comments in Firebird regarding the operation of s.12 of the FSI Act.[12] One might have thought, as I do, that the comments of the High Court on this central section would be important. Similarly, the Respondents put in issue matters pleaded, albeit in general terms, regarding the relief sought. Again, for current, interlocutory purposes, I do not need to determine such issues. Indeed, in order to make any ruling on such matters would require some significant consideration of the pleadings and the facts set out in them, each, or all, of which could result in a finding that the Respondents had submitted to the jurisdiction of the Court. During the course of the hearing, the Applicants seemed to indicate that there may be (or likely will be) some amendment to the pleadings.[13]
[11] Among many places, see the discussion in Banque Commerciale SA (en liq) v Akhil Holdings Pty Ltd (1990) 169 CLR 279 at 286-287.
[12] Although noted earlier in these reasons, see the comments by Nettle and Gordon JJ at [198] of Firebird. To emphasise the point: not to even mention let alone discuss this seminal authority when canvasing matters such as s.12 of the FSI Act was a very serious and glaring omission.
[13] See the comments by Counsel for the Applicants regarding a “re-assessment” of the current pleadings at T 27.
At one early stage in oral submissions, Senior Counsel for the Respondents suggested that in fact the Application before the Court was miscast because what the Court was actually dealing with were individual contracts for “services”, which brought the matter under s.11 and not s.12 of the FSI Act.[14] Whether this be so or not, the proper characterisation of the contracts between the Applicants and the Respondents are, in my view, plainly issues for trial and should not be (and cannot be) determined at an interlocutory hearing. When the Court noted that this seemed to be getting into matters of “substance” Senior Counsel for the Respondents agreed.
[14] See T 7.
The Respondents also put in issue that there are insufficient particulars of the claims made. The extracts from the Transcript from the hearing set out above make plain the supreme difficulty for the Applicants to seek relevant particulars from the currently not-engaged Respondents, who are entitled, as they have done, to take every course available to them to resist submitting to the jurisdiction of the Court. In such circumstances to complain, as the Respondents do, about the lack of relevant detail in the Statement of Claim, where the Applicants are effectively shadow-boxing a non-existent, phantom-like litigious opponent, is perhaps a tad extreme. Put another way, the Respondents basically want it “both ways” in the sense that they (a) wish to be able to keep resisting submitting to the jurisdiction of the Court, including by taking any active steps in the proceeding, but, at the same time, (b) they want to challenge some basic details of the Applicants’ pleading. Effectively (to mix metaphors): the Respondents want to keep their immunity cake and to eat it too.
Of greater moment, however, is the fact that, in my view, given the specific nature and purpose of pleadings, to challenge the pleadings here is to engage specifically about not only matters of practice and procedure, but also to engage with matters of substance, being details concerning the nature and substance of the claims made. In my view, to so engage, even with multiple and ongoing qualifications, must be taken to be engaging with issues of both practice and procedure (as I have said) and with issues of substance. To put it somewhat rhetorically: why is it not of the greatest and most direct purpose and moment to engage and challenge the primary document (i.e the Statement of Claim) that sets out the claim made by the Applicants against the Respondents? This being the case, any formal challenge by the Respondents to the jurisdiction of the Court based on the adequacy or otherwise of the Statement of Claim must fail. Moreover, to attempt to do this at an interlocutory hearing, which means that substantive matters relating to the pleading cannot be addressed in any detail, is inapposite and inappropriate. This is also in circumstances where, at best implicitly, the Court assumes that the relief sought, but never articulated, by the Respondents regarding the Statement of Claim, was to have it either struck out or amended.
Further, because relevant particulars can still be provided, it remains, up to a point, for the Applicants to provide such information and/or detail sought by the Respondents. And there remains, as intimated during submissions, that the Applicants may ultimately amend their pleadings in any event. To speak somewhat colloquially: everyone is essentially currently engaged in a preliminary stage of “shadowboxing” in terms of the primary Application under the FW Act.
Turning then to the issue of “service”, some general but significant matters need to be recorded immediately.
First, in both its written and oral submissions, the Respondents never referred to the detailed discussion by the High Court in Firebird, which (among other things) deals, at length, with the issue of “service” under the FSI Act. I come back to this decision later in these reasons. It is concerning and surprising that such a seminal case was not discussed, addressed or even noted by the Respondents, particularly since the issue of “service” was a central feature of its opposition to the current proceeding. It is even more surprising that it was not even noted given that the Court referred to it in the course of submissions.
Secondly, also in oral submissions, the Respondents never addressed the further, signal authority of Douglas v Republic of Nauru, also on the subject of “service”.[15] This was also in circumstances where the letter from OIL, noted above, referred specifically to the decision of Ashley J in Douglas in the context of confirming that service had properly been effected, and in consequence, a fresh s.40 Certificate, had issued, notably following the [undisclosed] inquiry made by the Respondents regarding details of service. To state the obvious: the further, more detailed s.40 Certificate, which complies specifically with the requirements specified by Ashley J in Douglas, arose only and specifically because of the inquiry made by the Respondents, which for reasons known only to themselves, they decided not to disclose to the Court.
[15] Douglas v Republic of Nauru (2004) 187 FLR 221.
Thirdly, the Respondents never addressed the operation of s.40 of the FSI Act and the import and conclusive effect of the Certificate issued under that Act for the current matter.
Fourthly, the Respondents never addressed the import and effect of the Full Court’s decision in Republic of Italy v Benvenuto on the current matter, notably in relation to the purport and operation of s.12 of the FSI Act, which was the subject of some discussion during submissions.[16]
[16] Republic of Italy v Benvenuto (2018) 261 FCR 19; 279 IR 55; 356 ALR 409.
I turn then to the principles outlined in the cases to which I have referred, again noting the complete absence of them from the Respondents’ submissions.
In Douglas v Republic of Nauru (“Douglas”), Ashley J said, at [12] – [13] (internal citations omitted):
[12] I do not consider that s.24(3) and (4) are to be regarded as specifying the only methods by which service may be effected under s.24(1) through the diplomatic channel. They do not purport to do so, to read them in that way would restrict the ambit of operation of s.24(1), to so read them would be inconsistent with the approach of the Commonwealth Law Reform Commission ("LRC") whose work spawned the Act and so to read them would deprive sub-ss. (6) and (7) of a good deal of their possible area of operation. There is no doubt, I add, that the Report may be considered, at least to show the mischief which the statute was intended to cure.
[13] It follows from what I have said that s.24(1) is to be read as authorising service of initiating process upon a foreign country in Australia in circumstances other than those referred to by s.24(4). In a particular case, for example, transmission of process to the department or organ of the foreign country that is equivalent to DFAT may be possible by transmission to a foreign country's diplomatic mission in Australia. Transmission through the diplomatic channel, I add, would not raise the problem of personal service at the premises of a diplomatic mission to which the LRC adverted in its Report.
In relation to the “certification” regarding service and other things under s.40 of the FSI Act, his Honour said, at [30] – [31] (internal citations omitted):
[30] In determining, as I have, that to attract the operation of s.40(5) there must be certification which reveals the facts leading to the ultimate conclusion, and not merely certification of the ultimate conclusion, I have not overlooked the line of common law authority which shows that certain statements by the Executive Government are, though subject to interpretation by the courts, conclusive evidence once construed. In my opinion those authorities assist in giving an explanation why DFAT is entitled, as I conclude is the case, to express conclusions, including the ultimate conclusion pertinent to the operation of s.24. But I do not consider that such line of authority can be applied to the construction of s.40(1) and (5) without qualification. The operation of those provisions must be decided as an exercise in statutory construction, necessarily considering s.40 in its statutory context.
[31] There was argument whether service upon a consulate could ever be service for the purposes of s.24. Counsel for Nauru expanded upon the different functions of embassies and consulates. That is an area into which I need not go, for in my opinion the Certificate was not conclusive evidence of service complying with s.24, service of the initiating documents should be set aside, and the best course is that the period of validity of the Amended Writ should be extended for a period of six months from this day and that relevant documents be re-served in Nauru. The alterative course would be to adjourn the matter in order to permit the plaintiff to obtain a further Certificate. But that would likely be just as time-consuming; and a fresh Certificate might simply generate more sterile debate.
It will be recalled that a ‘fresh Certificate’, under s.40 of the FSI Act, was issued by the Department of Foreign Affairs and Trade on 27th April 2023, confirming service of the documents set out in that Certificate, including a copy of the Statement of Claim, dated 15th October 2021. As earlier noted, a copy of that [new] Certificate is Annexure ES-3 to the Affidavit of Ms Shoemark, filed 19th May 2023.
By way of further “instruction” from the High Court, I note the following matters regarding service and the FSI Act from Firebird. To state the obvious: the Court should not have to be stating principles, especially from the High Court, regarding matters that are central to the issues raised by the Respondents, but which were never addressed or even noted by them. This is in circumstances where obviously prodigious amounts of time, energy and composition were expended in framing detailed submissions, which invariably focussed upon issues of “immunity”, historical and otherwise, but curiously and unfortunately did not even refer to the principal High Court authority on the crucial issue of service.
French CJ and Kiefel J noted the following in relation to matters of service, at [90] then at [94] and [95] (internal citations omitted; emphasis added):
[90] … It may also be preferable, if not more convenient, to use the process for service with respect to a foreign State which is provided for in Australia by Pt III of the Immunities Act, rather than those provided for by the rules of court.
…
[94] The definition of "initiating process" is wide and would include a summons for registration of a foreign judgment. However, none of the other relevant provisions of Pt III lend support to Nauru's argument. Sections 23 and 24 are concerned with methods of service, not when it is to be effected. Section 25, which provides that service otherwise than in accordance with s.23 or s.24 is ineffective, is limited in its application to service in Australia. These provisions do not suggest that any extension of the requirements of s.27(1) is necessary to give effect to the purposes of Pt III.
[95] Nothing in the ALRC report suggests that the prohibition in s.27(1) is to apply to judgments other than one entered in default of appearance. The rationale for Pt III was not only to facilitate service in Australia, it was to reduce the possibility of offence being caused to a foreign State. The likelihood of offence was considered to be greater where the foreign State had not agreed to the method of service and a default judgment was obtained against it. It was therefore proposed that methods of service which utilised the diplomatic channel and any method to which the foreign State had agreed be adopted.
His Honour, Gageler J said, firstly, at [136] – [139] (internal citations omitted):
[136] Neither party to the appeal, nor the Attorney-General of the Commonwealth, who intervenes by leave, argues that there has emerged a rule of customary international law which governs the international service of an initiating process on a State. The ALRC noted varying State practice in its 1984 report. Service of process and the entry of default judgment have been made the subject of specific obligations in the United Nations Convention on Jurisdictional Immunities of States and Their Property, but that Convention has not entered into force.
[137] The construction of Pt II of the Immunities Act which is to be preferred because it conforms to customary international law nevertheless has consequences for the construction of Pt III That is because the Immunities Act is structured on the assumption that an exercise of judicial power against a foreign State will occur only in a proceeding to which the foreign State is a party. Within the scheme of the Immunities Act, "judgment" in Pt III is naturally read as commensurate in scope with "proceeding" in Pt II The term is sufficiently broad to encompass any order made by a court against a foreign State on any application made to that court in civil jurisdiction. In particular, the term is sufficiently broad to encompass an order for the registration of a foreign judgment under s.6(3) of the Foreign Judgments Act.
[138] The further assumption which underlies the structure of the Immunities Act is that a foreign State will become a party to a proceeding only through service of initiating process on the foreign State in accordance with either of the methods of service for which provision is made in s.23 (which permits service by agreement) and s.24 (which permits service through the diplomatic channel). Consistently with that assumption, "initiating process" is defined in s.3(1) to mean "an instrument (including a statement of claim, application, summons, writ, order or third party notice) by reference to which a person becomes a party to a proceeding", and s.26 provides that "[w]here a foreign State enters an appearance in a proceeding without making an objection in relation to the service of the initiating process, the provisions of this Act in relation to that service shall be taken to have been complied with".
[139] The territorial focus of s 25, rendering ineffective service of an initiating process on a foreign State in Australia otherwise than in accordance with s 23 or s 24, is best explained on the basis that (other than where service is in accordance with an agreement pursuant to s 23) s 24 makes service through the diplomatic channel the exclusive method of service of the initiating process on a foreign State and treats that service as occurring outside Australia.
At [141], his Honour went on to say:
In conformity with those recommendations of the ALRC: s.24(5) makes clear that s.24 does not exclude the operation of any rule of court under which the leave of the court is required in relation to service of initiating process outside the jurisdiction; s.24(6) provides that service of initiating process under s.24 "shall be taken to have been effected outside the jurisdiction and in the foreign State concerned, wherever the service is actually effected"; and s.24(7) provides that the time for entering an appearance only begins to run at the expiration of two months after the date on which service of the initiating process was effected.
Finally, I note that relevant parts from the joint reasons of Nettle and Gordon JJ regarding service under the FSI Act, notably at [212] – [213], were set out earlier in these reasons. I need not repeat them here. I will note, however, that, at [216], their Honours refer to Rules of Court as “facultative”. Accepting that the Court was there dealing with the registration of a foreign judgment, in contrast to the facts and circumstances here, their Honours said (internal citations omitted; emphasis added):
[216] Of course, that does not mean that an Australian court cannot require service of the summons before proceeding to registration where that is considered to be expedient. The UCPR allow for that possibility and, in any event, a court may so require if in doubt about the amenability of a judgment debtor to the court's jurisdiction. There may also be practical difficulties associated with some foreign states responding to a notice of the registration of a foreign judgment within the minimum 14-day requirement for such an application under the UCPR. Thus, where a foreign state is a judgment debtor, a court would usually set a longer period for an application to be made to set aside the registration under s.6(4) of the Foreign Judgments Act and, similarly, there may be good reason to extend that period following an application under s.6(5) by a foreign state. The point remains, however, that the rules in this respect are facultative. They enable appropriate orders for service to be made according to the facts and circumstances of each case, rather than imposing an inevitable and ineluctable service requirement regardless of the facts and circumstances of the case.
In my view, in the light of (a) the comments by Ashley J in Douglas, and (b) by the High Court in Firebird (especially by French CJ and Kiefel, on the one hand, together with the comments by Nettle and Gordon JJ, on the other), the arguments and contentions raised by the Respondents regarding “service” have not been established and no substance. This is because,
(a)any Rules of Court regarding service are facultative,
(b)service was effected, in accordance with s.24 FSI Act, through the diplomatic channel,
(c)the Certificate issued under s.40 of the FSI Act in April 2023 is conclusive regarding the matters contained in it (which includes “service”),
(d)it was, and remains, for the Respondents to provide evidence regarding the relevant “authority” (or purported lack of it) of the person from the Embassy who was served as set out in the s.40 Certificate. This is also to confirm that no such evidence has been provided. In my view, it is insufficient simply to argue, as the Respondents have done, that service was in some way “defective” without providing any evidence to support such a bald contention.
To repeat: these conclusions are reached in circumstances where the Respondents never referred to any of the authorities discussed here. It is also in circumstances where the Respondents never addressed the conclusive form and substance of the s.40 Certificate issued in April 2023, other than to suggest that there was a problem with one of the statutory declarations referred to.
In addition to these reasons, I accept the submissions of the Applicants, those in writing and orally. This includes the remarkable situation where, as noted multiple times already, the Respondents filed extremely detailed written submissions (more than once), but come the day of the interlocutory hearing, only two relatively short issues were addressed, which formally were not canvassed in its Application in a Proceeding. For the Respondents to complain, as they did, at some length, about “process” and the like, it showed remarkable chutzpah to make such complaints where it had so radically changed tack in the arguments it ran on the day of the hearing compared to the voluminous documentation and submissions it had filed. Moreover, to run such arguments but not even refer to the most basic and central authorities also showed remarkable albeit misdirected “zeal”.
Given that the new, more detailed s.40 Certificate issued precisely as a result of the Respondents’ inquiries about the detail surrounding service, it is even more remarkable, if not egregious, that the Respondents did not favour the Court with any submissions regarding the operation and conclusive effect of the s.40 Certificate and the matters it contained, including matters relating to service.
In my view, the most appropriate Orders and declarations are as follows:
(a)the Respondent’s Application in a Proceeding, filed 15th February 2023, be dismissed;
(b)the Application, filed 19th May 2023, to re-open sought by the Applicants be granted;
(c)the Court declares that, pursuant to the s.40 Certificate dated 27th April 2023, issued under the Foreign States Immunities Act, the Respondents have been duly served with the documents set out in that Certificate;
(d)the costs of the Applicants be reserved; and
(e)within 14 days, the parties are to advise the Court whether there is agreement (and if so, the terms of that agreement) regarding the procedural course ahead (including possible mediation).
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 6 October 2023
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