Douglas v Republic of Nauru
[2004] VSC 500
•30 November 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 7742 of 2003
| KERRY DOUGLAS | Plaintiff |
| v | |
| REPUBLIC OF NAURU | Defendant |
---
JUDGE: | ASHLEY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 November 2004 | |
DATE OF JUDGMENT: | 30 November 2004 | |
CASE MAY BE CITED AS: | Douglas v Republic of Nauru | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 500 | |
---
Practice and procedure – service of initiating process – Foreign States Immunities Act 1985 (Cth) – service through the diplomatic channel – certificate of service - whether defendant immune from court’s jurisdiction by reason of s. 9 of Foreign States Immunities Act - whether Writ properly indorsed under R 7.02 - whether circumstances within R 7.01.1(g) - whether Victoria an inappropriate forum.
Foreign States Immunities Act 1985 (Cth), ss. 24, 40.
---
APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Mr R.M. Niall | Nationwide Legal Services |
| For the defendant | Mr G.L. Meehan | Tony Hargreaves & Partners |
HIS HONOUR:
Before the Court is a Summons filed by the defendant, Republic of Nauru ("Nauru"), on 2 April 2004. It arises out of the service of an Amended Writ and other documents upon its Acting Consul‑General at its Consulate‑General in Victoria on 8 December 2003. To that Writ Nauru filed a Notice of Conditional Appearance on 22 March 2004. On 22 April this year, it is convenient to add, Nauru filed a Defence under Protest.
By the Amended Writ the plaintiff, Kerry Douglas, alleges that ‑
·she was employed by Nauru for a three‑year period commencing 23 May 2001 as Solicitor‑General by written agreement made that day;
·the agreement was varied, in writing, in July 2002; specifically, by providing for an increase in her annual salary; and that Nauru would pay her a performance bonus of AU$1 million if certain litigation was successfully defended;
·she undertook her contractual duties until 5 August 2003;
·Nauru breached the contract in a number of ways, ultimately purporting to terminate her employment on 5 August 2003 on three months' notice as from 29 July that year, and then instructing her to cease employment immediately as of 5 August.
She claims damages for breach of contract.
By its Summons the defendant seeks that the Writ or service thereof be set aside; alternatively, that the proceeding be permanently stayed. The grounds relied upon by Nauru in its Summons, and as articulated by counsel, were not in every respect identical. Stated as a series of propositions, Nauru ultimately contended that ‑
·Service of the Amended Writ was not effected in accordance with s. 24 of the Foreign States Immunities Act 1985 (Cth) ("the Act").
·A certificate purportedly given under s. 40 of the Act did not establish good service under s. 24.
·The Amended Writ was not properly indorsed under R.7.02 because it did not sufficiently state the facts relied upon in support of service under R.7.01(1)(g).
·The Statement of Claim did not identify facts sufficient to entitle the plaintiff to service out of Australia under R.7.01(1)(g).
·The defendant was immune from the Court's jurisdiction by operation of s. 9 of the Act.
·This Court was a clearly inappropriate forum for trial of the proceeding.
Service
It is not in dispute that on 8 December 2003 three documents were handed to Nauru's Acting Consul‑General, Jesaulenko Dowiyogo, at Nauru's Consulate‑General in Victoria by a Consular Officer employed by the Department of Foreign Affairs and Trade ("DFAT"). The fact of service ‑ I use that word without deciding that it was good service ‑ of the Writ and Statement of Claim is established by a certificate dated 23 June 2004 to which I have earlier referred briefly. The other documents then served ‑ Mr Dowiyogo says that he was then handed three documents[1] ‑ were the documents referred to in s. 24(2)(a) and (b) of the Act.
[1]See paragraph 2 of his affidavit sworn 16 April 2004.
It is not in dispute, next, that service of initiating process was required to be made in accordance with the provisions of the Act. The provisions of the Act which pertain to service are ss.23 to 26.
There is no evidence of an agreement under s. 23 of the Act in accordance with which service might have been effected upon Nauru.
Nauru, as I have said, filed a Conditional Appearance. So no question of waiver of objection to service under s. 26 of the Act arises.
Service, then, must have been good under s. 24 or not at all. Section 25 provides that service of initiating process in Australia upon a foreign State otherwise than as allowed or provided by s. 23 or s. 24 is ineffective.
Neither s. 23 nor s. 24 specifically refers to service on a foreign State in Australia. But s. 25 evidently assumes that an agreement under s. 23 may include an agreement for service in Australia. Likewise, s. 25 evidently assumes that service under s. 24 may be effected in Australia. The same assumption can be found in s. 24(6).
It seems to me that, by s. 24, service of initiating process in Australia is essentially authorised by sub‑s.(1). Absent an agreement under s. 23, service must be effected through the so-called diplomatic channel. Section 24(1), in substance, provides for service through that channel. The sub‑section says nothing as to whether service is to be effected in Australia or in a foreign country. It leaves open both possibilities. What it requires is that the channel be abided.
Section 24(3) and (4) address the consequences of service in two particular situations ‑ specifically, when service is to be taken to have been effected. That bears upon the time for filing an appearance, although s. 24(6) and (7) are of general application.
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[2] 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.[3]
[2]See Report No. 24, Foreign State Immunity, paras. 48, 148 and 151.
[3]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; see also Acts Interpretation Act 1901 (Cth), ss.15AA and 15AB, and note the observations of Dodds‑Streeton J in Wells Fargo BankNorthwest & Anor v Victoria Aircraft Leasing Ltd & Ors [2004] VSC 262 at [65]‑[68], in which her Honour pointed out, inter alia, that the Report included draft legislation which appeared to be substantially identical to the legislation as enacted.
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[4] in its Report.
[4]At para.30.
In the present case, I doubt that service was effected in the circumstances to which s. 24(4) refers. That sub‑section, at least so far as the intent of the LRC discloses the situation, addresses service upon the diplomatic mission "of a third State looking after the interests of the defendant in Australia".[5]
[5]Report of Law Reform Commission, paras. 48 and 148; see also Explanatory Memorandum, Foreign States Immunities Bill 1985.
If the view which I have formed about s. 24(4) is correct, a question remains whether the plaintiff has otherwise established service of process in accordance with s. 24(1). Central to that question is the certificate to which I have earlier referred.
By s. 40(1), the Minister or his delegate may certify "for the purposes of this Act" that, inter alia -
"(d)service of a specified document as mentioned in s. 24 or s. 28 was effected on a specified day".
By s. 40(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".
Section 24(1) confides to DFAT the responsibility for transmitting initiating process and other documents to the equivalent department or organ of the foreign State. That responsibility requires DFAT to ascertain certain facts and to form certain conclusions ‑ the latter, for instance, as to the identity of the equivalent department or organ of the foreign State, and whether the documents are able to transmitted to that department or organ in Australia.
It would be nonsensical to read s. 40(1)(d) and (5) to mean that the facts or matters of which a pertinent certificate could conclusively speak are limited to the date of service of documents. No such argument was raised before me. Such an argument would leave open the critical question whether the initiating process was served in accordance with s. 24; and the sense of the provision is opposed to that question being left open.
It follows from what I have thus far said that s. 40(1)(d) should be read as authorising the Minister or his delegate to certify that "good" service of identified documents was effected on a specified day. So to conclude is wholly compatible with the important position assumed by DFAT, and with the role of a certificate as described at para 151 of the LRC Report. But the question is then whether the Minister or his delegate is to be confined to certifying the facts upon which he or she relied in concluding that service effected in a particular way was good service; or whether the Minister or his delegate should be entitled to certify facts together with conclusions reached in reliance upon such facts, or to certify simply the conclusions reached.
Bearing in mind the particular expertise of DFAT which must be brought to bear in identifying matters such as the equivalent department or organ of the foreign State, and in concluding whether documents are able to be transmitted to that department or organ in Australia, I consider that s. 40(1)(d) and (5) in combination contemplate that the certificate may address both primary facts and conclusions. The latter, if not themselves "facts", are at least "matters".
Counsel for Nauru attacked the certificate which was tendered in this case. It certified that ‑
"Service of the Writ and Statement of Claim in the proceeding was effected in accordance with s. 24 of the Act by Ms Amanda Moore, Consular Officer, Victorian State office, Department of Foreign Affairs and Trade, on Jesaulenko Dowiyogo, Acting Consul‑General, Consulate‑General of the Republic of Nauru, Victoria, on 8 December 2003."
According to counsel's argument, the certification that service was effected in accordance with s. 24 was an opinion; and "facts and matters" for the purposes of s. 40(5) do not include opinions. So, it was said, the certificate failed to establish good service. What was certified was not conclusive. Other evidence showed that service at the Consulate‑General was not service on the relevant department or organ. Nauru had a Department of Foreign Affairs as at December 2003. That Department did not have a representative person or office in Australia, let alone Melbourne. There was no Nauruan diplomatic mission in Australia at the time. Mr Dowiyogo was not authorised to accept service of the documents in this proceeding on behalf of Nauru.
For reasons which I mentioned a few moments ago, I do not accept the argument that a s. 40(5) certificate which pertains to service of initiating documents must be confined to statements of facts. It may extend to conclusions. That this must be so, I add, is clearer still when regard is had to the matters which may be certified in respect of s. 40(1)(a), (b) and (c).
What I have just said does not mean that a certificate would comply with s. 40(5) and be conclusive if it did no more than baldly state that service of documents was effected in accordance with s. 24. That is, it is one thing to say that a certificate may express conclusions springing from the application of DFAT's expertise to a particular situation. It is another thing to say that s. 40(5) enables certification of an ultimate conclusion without reference to the facts critical to such conclusion being formed. In my opinion the latter course is impermissible, or at least to the point of attracting conclusive evidentiary status under s. 40(5).
So, in the case of service in a foreign State, it could be expected that a certificate would be to the effect that documents were served on a specified department or organ of that State at a particular place on a particular day, that department or organ being the foreign State's equivalent of DFAT, service thus being in accordance with s. 24 of the Act. Such a certificate, in my opinion, would be conclusive of the facts and matters stated, including the conclusion about equivalence, and the ultimate conclusion that service was in accordance with s. 24.
So also, in the case of service of documents on a third party mission in Australia, it could be expected that the certificate would state the date and place of service, the fact that the diplomatic mission of the third party State was then looking after the interests of the defendant in Australia, and the conclusion that service was thus in accordance with s. 24 of the Act. It might be said that certification that a third party mission was looking after the defendant's interests also involved a conclusion. Even so, I consider that such certification would be good. There is a limit to which certification could be expected to go.
In the present case, it is implicit in the certificate now under challenge that for some reason the Minister or his delegate concluded that service on the Acting Consul‑General, at the Consulate‑General, was transmission of the relevant documents to the department or organ of Nauru that was equivalent to DFAT. The basis for that conclusion is revealed by DFAT's letter to the Commonwealth Attorney‑General's Department dated 18 June 2004.[6] Thus:
"Service of the documents on the Nauru Consulate‑General was effected in accordance with sub‑sections 24(1) and (4) of the Act which, taken together provide that initiating process may be transmitted to a person on behalf of and with the authority of the foreign State.
... Service of documents has been effected on the Consulate‑General on a number of occasions in the past, to which no objections were raised".
[6]Exhibit GS.8 to the affidavit of Giri Sivaraman, affirmed 2 July 2004.
I doubt, as I said earlier, the applicability of s. 24(4) in the present case. But whether or not that sub‑section could apply, or whether service could have been justified under s. 24(1) as being service upon the relevant Nauruan department or organ – being in accordance with past accepted practice ‑ the fact is that the certificate was silent as to pertinent factual matters. That is, nothing was certified as would link service on the Acting Consul‑General with the ultimate conclusion that service was effected in accordance with s. 24. In my opinion, absent such certification, the certificate cannot stand as conclusive by operation of s. 40(5).
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.[7] 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.
[7]See Re Ditfort; ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 368 and the cases there discussed.
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 is implicit in the orders which I have just foreshadowed that there is no impediment to the Amended Writ being served outside Australia; and that Victoria is not a clearly inappropriate forum for the hearing and determination of this proceeding. I have reached conclusions favourable to the plaintiff concerning those matters. I go to them now.
Insufficiency of Rule 7.02 Indorsement?
Section 24(5) of the Act provides that:
"(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."
The explanation for this provision is found at paragraph 151, dot point one, of the LRC Report.
The Amended Writ, as the plaintiff asserts and the defendant denies, was indorsed with a statement of the facts and the particular paragraph of R.7.01 relied upon in support of service on the defendant out of Australia. The indorsement was in purported compliance with R.7.02(1), the Amended Writ having been filed in pursuance of R.7.02(2) and (3).
The indorsement identified the plaintiff's reliance on R.7.01(1)(g). It was in these terms:
"This Writ is served out of Australia in accordance with Rule 7.01(1)(g) of the Rules of the Supreme Court of Victoria. The action is an action for damages for breach of a contract between the defendant and the plaintiff. The breach of contract consisted in each of the following the matters:
a)Failing to pay the plaintiff's salary in accordance with the agreement;
b)Failing to provide a motor vehicle to the plaintiff in accordance with the agreement;
c)Failing to pay expenses and other amounts to the plaintiff in accordance with the agreement;
d) Preventing the plaintiff from continuing to hold and act on instructions pursuant to the agreement.
The plaintiff's obligations under the agreement were to be discharged primarily in Melbourne in the State of Victoria. The defendant was obliged to make the said payments to the plaintiff in Melbourne in the State of Victoria. Accordingly, the action is brought in respect of breaches committed within Victoria of the contract between the parties."
The Writ was so indorsed even though leave of the Court was not required in order to effect service outside Australia. That was, I think, a correct step. Whether or not it was required by s. 24(5) of the Act, the Writ needed to be indorsed under R 7.02. If a defendant does not appear to a Writ indorsed and served out of Australia, the plaintiff must obtain leave to proceed: Rule 7.04(1).
According to the defendant's submission, the indorsement did not sufficiently state the facts relied upon which constituted a breach of the contract in Victoria. The indorsement did not say that the terms of the agreement or variation required payment of the plaintiff's salary and other benefits in Victoria; so the alleged failure to make such payments was not shown to be a breach of contract committed within Victoria. Further, counsel submitted, sub-paragraphs (a) to (d) of the indorsement were not statements of fact at all, but conclusions. The final paragraph of the indorsement did not cure that defect. Moreover, it was not permissible to shore up the indorsement by looking at it and the Statement of Claim in combination.
I consider that the attack on the indorsement was without merit. The indorsement shows that the action is one for breach of contract, identifies the alleged breaches and asserts that the breaches ‑ identified as a failure by the defendant to pay salary and other benefits ‑ occurred in Victoria. The plaintiff's contentions might or might not be made out; but the simple case that she makes, and why it falls within R 7.01(1)(g) is in my view clearly demonstrated by the indorsement. There is, I think, an element of conclusion in the bald statements that salary and other benefits were not paid "in accordance with the agreement". But even if that phrase was blue penciled, the alleged breaches would be clearly identified; and the last paragraph of the indorsement would make good the plaintiff's case that the breaches were committed in Victoria. It is unnecessary, in the circumstances, to say anything about what counsel submitted was a difference in judicial opinion whether regard can be had to a combination of the indorsement and the Statement of Claim in order to make out relevant facts.[8]
Insufficient Facts Pleaded by Statement of Claim to entitle the plaintiff to serve process out of Australia under Rule 7.01(1)(g)?
[8]Compare Fujitsu Australia Ltd v Dewar Electronics Pty Ltd [2001] VSC 222 at [21]‑[29] and Victorian WorkCover Authority v Orientstar Shipping Corporation [2003] VSC 311 at [15]‑[16]; and, to like effect as Orientstar, Pivot Ltd & Anor v Hoechst Australia Ltd & Anor [2000] VSC 262 at [13].
Counsel for the defendant submitted that, if good service had been effected, the Amended Writ should nonetheless be set aside, or the proceeding stayed. He relied upon R 7.05(2)(a) ‑ asserting that service outside Australia[9] was not authorised by the Rules. He submitted, alternatively, that if good service had not been effected, the Court should not extend the validity of the Writ ‑ see R 5.12(2) and (3) ‑ because that would simply permit fresh service of a Writ the service of which outside Australia was not authorised by the Rules.
[9]Service effected at the Consulate-General would be so deemed, see s. 24(6) of the Act.
Where there is objection to jurisdiction on the grounds that the plaintiff's claim is not within R 7.01(1), the plaintiff must show that on consideration of all the admissible material there is a strong argument for the opinion that the conditions stated in the particular paragraph of the rule that is relied upon are satisfied. The plaintiff must make out the facts ‑ though not as at trial, for the matter is an interlocutory one ‑ that would bring the proceeding within the rule. Resolution of such a dispute is not limited to consideration of the pleadings.
The argument which was advanced for the defendant depended upon analysis of the Statement of Claim. It appears to have taken as a starting point the truth of the matters alleged, notwithstanding that the Defence under Protest denied almost everything alleged by the Statement of Claim. The argument appears also to have ignored other material relied upon by the plaintiff as would tend to show that contractual breaches were committed in Victoria.
In my opinion the Statement of Claim alone ‑ if the allegations which it makes are to be taken as representing the fact ‑ sufficiently establishes matters as would call R 7.01(1)(g) into play. But if that is not so, other material relied upon by the plaintiff taken together with the Statement of Claim does so.
Paragraph 1 of the Statement of Claim pleads the initial agreement, paragraph 2(c) makes reference to payment in Australian dollars, paragraph 2(e) to provision for the plaintiff of a motor vehicle and parking space at the plaintiff's place of employment, and paragraph 2(f) to the plaintiff being based at the defendant's consular offices in Melbourne. Paragraph 4 refers to performance by the plaintiff of her duties primarily at those offices.
The allegations of breach made by paragraph 5 identify failures to pay salary, bonus, expenses; and failure to provide the plaintiff with a motor vehicle. In respect of an employment contract which was to be performed by the employee primarily in Melbourne, which provided for payment of salary and a bonus in Australian dollars, and which provided that the plaintiff should have a motor vehicle and parking space at her place of employment, there seems to me to be a very strong case for concluding that the alleged breaches were committed in Victoria.
Further, by paragraphs 7 and 8 of the Statement of Claim the plaintiff alleges that the defendant purported to terminate her employment on 5 August 2003, first to take effect three months after 29 July that year, and then immediately. Whilst it is not as clear as in the case of the alleged failures to pay salary, a bonus, and to provide a vehicle, the fact that the plaintiff was, according to the Statement of Claim, to perform her duties primarily at the defendant's consular offices in Melbourne implies the likelihood that the allegedly unlawful termination of employment took place in Victoria.
Travelling beyond the Statement of Claim, though I think it is unnecessary to do so, the plaintiff's affidavit sworn 25 May 2004 at paras 12, 13, 14, 15, 16, 17, 22, 24 and 25 satisfies me to the necessary degree of the existence of facts calling R 7.01(1)(g) into play.
Immunity under Section 9 of the Act?
Counsel for Nauru faintly submitted that in this proceeding s. 9 of the Act rendered his client immune from the jurisdiction of this Court. That submission faced the problem created by s. 12. On its face, the plaintiff's claim falls within s. 12(1) and none of the exceptions set out in sub‑sections (2) to (6) could apply. Counsel eventually retreated to a submission that if the Court ultimately determined that the employment agreement was invalid, then his client would be entitled to claim foreign State immunity. That possibility is not germane to the Summons now before me.
An Inappropriate Forum?
Defendant's counsel submitted that, if service had been effected outside Australia,[10] the Court should make an order staying the proceeding on the ground that Victoria is not a convenient forum for the trial of this proceeding: Rule 7.05(2)(b). But if good service had not been effected, I should not extend the period of validity of the Writ; for to do so would simply permit service of a proceeding which should not go to trial in Victoria.
[10]That is, by the deeming effect of s. 24(6).
It was common ground that it was for Nauru to show that Victoria is a clearly inappropriate forum for the trial of the proceeding. There is no point available that R 7.05(2)(b) conveys some different notion.[11]
[11]Gutnick v Dow Jones & Co Inc [2001] VSC 305 at [102]‑[104]; and see (2002) 210 CLR 575 at 640‑642; Regie Nationale des Usines Renault SA v 2 hang (2002) 210 CLR 491 at 503.
According to the defendant's submission, Victoria is a clearly inappropriate forum because:
·The relevant law is the law of Nauru.
·The proceeding involves questions as to the administration of the Government of Nauru, and interpretation of its Constitution and Public Service Act. Such questions are not suitable for determination by an Australian Court.
·The proceeding involves a question whether there is or was an office of Solicitor‑General of Nauru. That should be determined in Nauru.
·The defendant's principal witnesses reside in Nauru.
·The question whether the plaintiff's alleged termination was lawful or unlawful or in breach of any arrangement between the parties requires consideration in some part of the Public Service Act of Nauru.
·There is an appropriate foreign tribunal ‑ the Supreme Court of Nauru.
According to the submissions for the plaintiff, this Court is not a clearly inappropriate forum for the trial of the proceeding. Rather, it is the evidently appropriate forum. Thus:
·The plaintiff was interviewed for her position in Melbourne.
·The plaintiff's duties were very largely performed in Melbourne.
·The plaintiff was paid in Melbourne in Australian dollars.
·The plaintiff received, in Victoria, other contractual benefits ‑ payment of certain expenses, superannuation contributions, provision of a motor vehicle.
·Breaches of contract were committed in Victoria.
·The plaintiff proposes to call at least three witnesses who are located in Melbourne.
·The plaintiff's lawyers are located in Melbourne.
·The plaintiff is able to enforce a judgment against assets of the defendant in Melbourne.
·The plaintiff is or may be unable to be adequately represented in Nauru.
·Whilst the Constitution of Nauru provides for appeal from a single judge of the Supreme Court of Nauru to the Supreme Court constituted by not less than two judges, there is only one judge of the Supreme Court of Nauru; and insofar as there is nominally appeal from the Supreme Court of Nauru to the High Court of Australia, the constitutionality of such an appeal is presently being challenged by an organ of Nauru itself.
·The proper law of the agreement and the variation is very likely Australian law.
·The agreement and variation are simple employment contracts. They require no recourse to the Public Service Act of Nauru, or to the Constitution of that country. Even if they did, Victoria would not be an inappropriate forum for determination of the proceeding. Moreover, the point raised by Nauru that there is no position of Solicitor‑General raises a false issue. The agreement[12] shows only that the position for which the plaintiff was engaged was to be so described: to give gravitas to the plaintiff's work as an "in‑house international lawyer".
·Nauru is not immune from the jurisdiction of this Court. See s. 12 sub‑section (1) of the Act.
[12]Exhibit KD.1 to the plaintiff's affidavit sworn 25 May 2004.
In my opinion the submissions made for the plaintiff were in substance and in most of their detail highly persuasive. That said, it is unnecessary to conclude, and I do not conclude, that the structure of Nauru's court system and provision for representation would disqualify Nauru's Supreme Court as an alternative venue. Neither, there being a question what unencumbered assets the defendant now has in Victoria, do I rely upon that aspect of the plaintiff's submissions.
It appears to me very pertinent that, as the plaintiff alleges, this proceeding arises out of a contract initially mooted in Victoria, mainly performed in Victoria, paid in Victoria, and breached in Victoria.
The "Solicitor‑General" point does not impress me at all as a point requiring determination by a Nauruan court. If, which I will assume is the case, there is no such office under Nauru's laws, the question will remain whether the plaintiff was employed by Nauru under a contract that so described her position.
The defendant alleges in its Defence under Protest that the proper law of any agreement was the law of Nauru, including its Constitution and Public Service Act. According to the affidavit of its Secretary for Justice, Mr Seneviratne, sworn 5 May 2004, the employment of persons in the public service is governed by Article 68 of the Constitution, and the appointment, disciplinary control and removal of persons who hold or act in offices in the public service is confided to the Chief Secretary.
Assume that the law of Nauru was the proper law of the alleged agreement and variation. The plaintiff makes no allegation that she was employed under the Public Service Act of that country. Neither does Nauru make any such allegation in its Defence under Protest. Even on a view of the disclosed circumstances most favourable to Nauru, I cannot see that issues are raised by this proceeding which reasonably require adjudication by the Supreme Court of Nauru, and which ‑ critically ‑ make this Court a clearly inappropriate forum for the hearing and determination of the proceeding. If this proceeding did require consideration of provisions of the Public Service Act of Nauru, I add, it would not be the first occasion upon which this Court had embarked upon such an exercise.[13]
[13]Reid v Republic of Nauru [1993] 1 VR 251.
Further Interlocutory Steps
I have said that the Writ must be re‑served. The operation of s. 24(7) of the Act will delay the proceeding unnecessarily in the particular circumstances of this matter; but I do not think that such delay can be obviated, except by orders that will speed up the interlocutory processes thereafter. I intend to make orders today which will achieve that outcome.
Costs
In my opinion there was no merit in substance to the one point upon which the defendant has succeeded. I say "in substance" because it appears that the defendant had accepted service of process at its Melbourne consular office without demur in the past, because no question arises of the defendant not in fact learning of the existence of the proceeding, because having taken a point about the inadequacies of a certificate first prepared, it then caviled with the second certificate, because a certificate meeting the conclusive evidence requirements of s. 40 of the Act might well have been prepared, and because no question arises of discourtesy to a foreign State. The defendant's success on the service point, acknowledging that proper service is a matter of importance, is a triumph of form over substance.
The defendant, service apart, has otherwise failed upon its Summons. It has failed upon a clear majority of the issues raised.
In all the circumstances, I consider the defendant should pay 75 per cent of the costs of the application, including any reserved costs.
Orders
Subject to anything that counsel may say as to form, I shall make orders in accordance with the following minutes:
(1)Service of the Amended Writ effected on 8 December 2003 be set aside.
(2)The period of validity of the Amended Writ be extended for a period of six months from this day.
(3)The Defence under Protest filed 22 April 2004 stand as the defendant's Defence to this proceeding, subject to striking out the words "Under Protest" in the heading and paragraph 13 thereof, unless by the date referred to in paragraph 4 hereof an Amended Defence be filed and served.
(4)The Defence referred to in paragraph (3) hereof be deemed to be served on the day after the day on which the defendant files an appearance.
(5)In the event that the plaintiff is required to serve a Reply, the same be served within seven days after the date of deemed service of the Defence.
(6)Any notice for discovery be served within seven days after close of pleadings.
(7)An affidavit of documents be served within 14 days after service upon a party of a notice for discovery.
(8)Within 14 days after service of an affidavit of documents, there be inspection of such documents.
(9)The proceeding be listed for mention before me on a date as close as practicable to 43 days after the day on which the defendant delivers an appearance.
(10)The defendant pay 75 per cent of the plaintiff's costs of the application made by the defendant's Summons filed 2 April 2004, including any reserved costs.
(11)There be liberty to apply.
---
6
7
0