Medium Neutral Citation: Firebird Global Master Fund II Ltd v Republic of Nauru [2014] NSWCA 360
Hearing dates: 13 and 14 October 2014
Decision date: 23 October 2014
Before: Bathurst CJ at [1];
Beazley P at [210],
Basten JA at [211]
Decision:
(1)   With respect to the summons filed by Firebird Global Master Fund II Ltd in matter 2014/290988:

(i)   Grant the applicant leave to appeal.

(ii)   Dismiss the appeal and order that the summons filed in the Common Law Division on 9 May 2012 be dismissed.

(iii)   Order that the applicant pay the costs of the Republic of Nauru in this Court.

(2)   In relation to the summons filed by the Commonwealth of Australia in matter 2014/293924:

(i)   Refuse the applicant leave to appeal.

(ii)   No order as to the costs of the summons.

Order a stay in the following terms:

(1)   Vacate all previous orders with respect to the coming into effect of order (1) made on 3 October 2014 in the Common Law Division (namely, registration of foreign judgment and consequential garnishee order set aside with costs).

(2)   Stay the order made and entered on 3 October 2014 setting aside (a) the registration of the foreign judgment and (b) the garnishee order made and issued on 10 September 2014 in favour of the applicant against Westpac Banking Corporation - until 5pm (Sydney time) on Monday, 27 October 2014.
(3)   Order that the garnishee order made not be complied with during the period of any stay with respect to the order setting aside the garnishee order.
Catchwords:
STATUTORY INTERPRETATION – principles - implied repeal of earlier statute - whether inconsistency between provisions concerning service - Foreign States Immunities Act 1985 (Cth) and Foreign Judgments Act 1991 (Cth) - whether provision was a code - scope of each Act - consideration of pre-existing equivalent state legislation

WORDS AND PHRASES – “judgment” - Foreign States Immunities Act 1985 (Cth), s 27 - whether order to register judgment is a judgment

JURISDICTION – sovereign immunity - application of immunity - whether application to register foreign judgment is a proceeding - Foreign States Immunities Act 1985 (Cth), s 9

WORDS AND PHRASES – “proceeding” - Foreign States Immunities Act 1985 (Cth), s 9 - whether application to register a foreign judgment is a proceeding

JURISDICTION – sovereign immunity - waiver - submission to jurisdiction - exception - whether step in proceeding was for the purpose of asserting immunity - Foreign States Immunities Act 1985 (Cth), s 10

JURISDICTION – sovereign immunity - exceptions – whether proceeding “concerns” a commercial transaction - whether application to register a foreign judgment under Foreign Judgments Act 1991 (Cth) is a proceeding concerning a commercial transaction - Foreign States Immunities Act 1985 (Cth), ss 11(1), (3)

STATUTORY INTERPRETATION – principles - consideration of text - consequences of particular interpretation - whether legislature intended provision to have an ambulatory meaning - whether principle of developing meaning of term in enactment with developing circumstances should be applied - role of legislature

EVIDENCE – proof - sufficiency - Blatch v Archer (1774) 1 Cowper 63; (1774) 98 ER 969 - urgency of proceedings - lack of findings of fact by trial judge - certificate under Foreign States Immunities Act 1985 (Cth), s 41 - evidence of senior member of government

JURISIDICTION – sovereign immunity from execution - exceptions - funds in bank accounts - whether commercial property - whether funds in use - whether in use for substantially commercial purposes
PUBLIC INTERNATIONAL LAW – sovereign immunity - nature of sovereign immunity - whether the Foreign States Immunities Act 1985 (Cth) should be construed in light of international developments in the doctrine of sovereign immunity
Legislation Cited: Acts Interpretation Act 1901 (Cth), ss 2C and 15AB
Administration of Justice Act 1924 (NSW)
Civil Jurisdiction and Judgments Act 1982 (UK), s 31
Civil Procedure Act 2005 (NSW), ss 8 and 9
Constitution, ss 51(xxix) and 109
Diplomatic Privileges and Immunities Act 1967 (Cth)
Foreign Judgments Act 1973 (NSW), s 8
Foreign Judgments Act 1991 (Cth), ss 5-7, 12, 14, 17 and Pt 2
Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK)
Foreign Sovereign Immunities Act 1976 (US)
Foreign States Immunities Act 1985 (Cth), ss 9-27, 28, 30, 32, 38, 39, 41 Pts II, III and IV
Judiciary Act 1903 (Cth), ss 79 and 80
Reciprocal Enforcement of Judgments Act 1959 (Qld), s 5
State Immunity Act 1978 (UK), s 3(1)
State Immunity Act 1985 (Can), s 5
Supreme Court Act 1970 (NSW), ss 23 and 101(2)
Supreme Court Civil Rules 2006 (SA), r 311(2)
Trade Practices Act 1974 (Cth), Pt IV
UN Convention on Jurisdictional Immunities of States and Their Property (2004)
Uniform Civil Procedure Rules 2005 (NSW), rr 6.1A, 11.5, 18.2, 36.15, 36.16, 52.3, 53.6 and Pt 53
Cases Cited: Abdi v Release on Licence Board (1987) 10 NSWLR 294
AIG Capital Partners Inc v Republic of Kazakhstan (National Bank of Kazakhstan intervening) [2006] 1 WLR 1420
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27
Alcom Ltd v Republic of Colombia [1984] AC 580
Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345
Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567
Bermingham v Corrective Services
Commission of New South Wales (1988) 15 NSWLR 292
Blatch v Archer (1774) 1 Cowper 63; (1774) 98 ER 969
Bombardier Inc v AS Estonian Air and the Republic of Estonia (2013) 115 OR (3d) 183
Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; (1997) 187 CLR 384
Commissioner of Police v Eaton [2013] HCA 2; (2013) 87 ALJR 267
Compania Naviera Vascongado v Steamship “Cristina” [1938] AC 485
Dorais v Saudi Arabian General Investment Authority (2013) CarswellQue 9504
Dsane v Hagan [1962] Ch 193
Ex Parte Caucasian Trading Corporation Limited; In re A Bankruptcy Petition (1896) 1 QB 368
Export-Import Bank of the Republic of China v Grenada [2014] F 3d WL 4773451 C.A.2
Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130
FG Hemisphere Associates LLC v Democratic Republic of the Congo [2010] 2 HKLRD 66
Firebird Global Master Fund II Ltd v Republic of Nauru [2014] NSWSC 1358
Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; (2007) 231 CLR 531
Hore v Albury Radio Taxis Co-operative Society Ltd [2002] NSWSC 1130; (2002) 56 NSWLR 210
Hunt v BP Exploration Co (Libya) Limited [1980] HCA 7; (1980) 144 CLR 565
Jurisdictional Immunities of the State (Germany v Italy, Greece intervening) [2012] ICJ Reports 99
Kais v Abu Dhabi Education Council (2011) Carswell Ont 36
Kuwait Airways Corporation v Republic of Iraq and Bombardier Aerospace [2010] 2 SCR 571
Li v Zhou [2014] NSWCA 176; (2014) 310 ALR 66
Liberian Eastern Timber Corp v Government of Republic of Liberia (1987) 659 F Supp 606
McIvor v Watson [1960] HCA 43; (1960) 103 CLR 658
NML Capital Ltd v Republic of Argentina [2011] UKSC 31; [2011] 2 AC 495
Philippine Admiral v Wallem Shipping (Hong Kong) Ltd [1977] AC 373
Plaintiff M61/2010E v The Commonwealth of Australia (Offshore Processing Case) [2010] HCA 41; (2010) 243 CLR 319
Playa Larga (Owners of Cargo Lately Laden on Board) v I Congreso del Partido [1983] 1 AC 244
Pt Bayan Resources Tbk v BcBc Singapore Pte Ltd [2014] WASCA 178
PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2012] HCA 33; (2012) 247 CLR 240
Re Ley; Ex Parte Best (1949) 14 ABC 191
Re Macks; Ex Parte Saint [2000] HCA 62; (2000) 204 CLR 158
Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1
Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119
Svenska Petroleum Exploration AB v Government of the Republic of Lithuania (No 2) [2007] QB 886
TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; (2013) 87 ALJR 410
Technical Products Pty Limited v State Government Insurance Office (Queensland) [1989] HCA 24; (1989) 167 CLR 45
Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529
Victory Transport Inc v Comisaria General 336 F2d 354 (2nd Cir 1964)
Texts Cited: Australian Law Reform Commission, Foreign State Immunity, Report No 24 (1984)
Bennion on Statutory Interpretation (5th ed 2008, LexisNexis)
Davies, Bell and Brereton, Nygh’s Conflict of Laws in Australia, (9th ed 2014, LexisNexis Butterworths)
Hazel Fox and Philippa Webb, The Law of State Immunity (3rd ed 2013, Oxford University Press)
James Crawford, “International Legal and Foreign Sovereigns: Distinguishing Immune Transactions” (1983) 54 BYIL 75
Category: Principal judgment
Parties:
In matter 2014/290988
Firebird Global Master Fund II Ltd (Applicant)
Republic of Nauru (First respondent)
Westpac Banking Corporation (ACN 007 457 141) (Second respondent)
In matter 2014/293924
Commonwealth of Australia (Applicant)
Firebird Global Master Fund II Ltd (First respondent)
Republic of Nauru (Second Respondent)
Westpac Banking Corporation (ACN 007 457 141) (Third respondent)
Representation:
In matter 2014/293924
Counsel:
T G R Parker SC / J A C Potts (Applicant)
R A Dick SC / D Barnett / N Oreb (First respondent)
R Harris (solicitor) (Second respondent)

Solicitors:
Clayton Utz (Applicant)
Ashurst (First respondent)
Allens (Second respondent)

In matter 2014/293924
Counsel:
N M Bender (Applicant)
T G R Parker SC / J A C Potts (First respondent)
R A Dick SC / D Barnett / N Oreb (Second respondent)
R Harris (solicitor) (Third respondent)
Solicitors:
King & Wood Mallesons (Applicant)
Clayton Utz (First respondent)
Ashurst (Second respondent)
Allens (Third respondent)

File Number(s): 2014/290988; 2014/293924
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Citation:

[2014] NSWSC 1358

Date of Decision:

03 October 2014

Before:

Young AJA

File Number(s):

2012/147600

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 28 October 2011, a judgment was given in the Tokyo District Court in favour of the applicant, Firebird, against the Republic of Nauru ("Nauru") in the sum of 1.3 billion Yen plus interest. Firebird filed a summons in the Common Law Division of the Supreme Court seeking registration of the Japanese judgment under Part 2 of the Foreign Judgments Act 1991 (Cth). The summons was never served on Nauru. On 6 June 2012, orders were made to register the judgment. Firebird sought and was granted leave to serve a notice of registration of judgment outside Australia.

Nauru conducted its banking through a number of bank accounts held by Westpac Banking Corporation ("Westpac"). On 10 September 2014, a garnishee order was made requiring Westpac to pay the full amount of the judgment debt within 14 days of the service of the order. Nauru filed a notice of motion seeking to have the garnishee order set aside or stayed. On 3 October 2014, Young AJA set aside the registration of the foreign judgment and the consequential garnishee order: Firebird Global Master Fund II Ltd v Republic of Nauru [2014] NSWSC 1358. Firebird appealed to this Court.

The issues on appeal concerned whether Firebird was required to comply with the service requirements for commencing proceedings against a foreign State under Part III of the Foreign States Immunities Act 1985 (Cth) ("Immunities Act"); whether Nauru was out of time to apply under s 38 of the Immunities Act to set aside the registered judgment; whether Nauru was immune from jurisdiction in the proceeding to register the Japanese judgment under s 9 of the ImmunitiesAct; and whether the Westpac accounts fell within an exception to the immunity from execution under s 30 of the Immunities Act because the funds were used substantially for commercial purposes.

The Court dismissed the appeal:

Compliance with service requirements of the Immunities Act

1. The Immunities Act implicitly requires that a foreign judgment cannot be entered against a foreign State unless there has been compliance with the requirements of service under Pt III. Those requirements do not conflict with the Foreign Judgments Act, which neither requires nor prohibits service. Accordingly, no issue of implied repeal by the Foreign Judgments Act arises: [44], [48]-[49] (Bathurst CJ); [210] (Beazley P); [251], [261]-[262] (Basten JA)

Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1; Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130; Commissioner of Police v Eaton [2013] HCA 2; (2013) 87 ALJR 267; Pt Bayan Resources Tbk v BcBc Singapore Pte Ltd [2014] WASCA 178.

2. An order for registration of a judgment is a "judgment" for the purposes of s 27 of the Immunities Act: [51]-[53] (Bathurst CJ); [210] (Beazley P)

TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; (2013) 87 ALJR 410.

Setting aside the judgment

3. If service of the initiating process under the Immunities Act is required, relief under s 38 to set aside the judgment is available - regardless of the time limit under the Foreign Judgment Act for an application to set aside a judgment: [55]-[56] (Bathurst CJ); [210] (Beazley P); [270] (Basten JA).

Nauru's immunity under the Immunities Act

4. An application to register a foreign judgment constitutes a "proceeding" for the purposes of s 9 of the Immunities Act: [59]-[60] (Bathurst CJ); [210] (Beazley P); [240]-[241], [243]-[246] (Basten JA)

PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2012] HCA 33; (2012) 247 CLR 240; Re Lay; Ex Parte Best (1949) 14 ABC 191; Ex Parte Caucasian Trading Corporation Limited; In re A Bankruptcy Petition (1896) 1 QB 368; Kuwait Airways Corporation v Republic of Iraq and Bombardier Aerospace [2010] 2 SCR 571.

5. The immunity granted by s 9 is a freedom from the liability from the imposition of duties by the process of the Australian Courts: [61]-[62] (Bathurst CJ); [210] (Beazley P)

Hunt v BP Exploration Co (Libya) Limited [1980] HCA 7; (1980) 144 CLR 565 (considered); PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2012] HCA 33; (2012) 247 CLR 240

6. The filing of a notice of motion seeking to set aside the garnishee order was an assertion of immunity by Nauru; it was not a submission to the jurisdiction of the Court under s 10 of the Immunities Act: [64], [67] (Bathurst CJ); [210] (Beazley P)

7. The exception to immunity under s 11 where a proceeding "concerns a commercial transaction" does not apply to the registration of a foreign judgment. The word "concerns" has a narrow meaning and does not extend to considering whether the underlying subject matter of a judgment is a "commercial transaction": [69]-[90] (Bathurst CJ); [210] (Beazley P); [292], [293]-[294], [297] [307] (Basten JA)

NML Capital Ltd v Republic of Argentina [2011] UKSC 31; [2011] 2 AC 495; Kuwait Airways Corporation v Republic of Iraq and Bombardier Aerospace [2010] 2 SCR 571

Immunity of bank accounts from execution

8. The immunity from execution does not apply where property is used substantially for commercial purposes. If funds are to be used for the purpose of government administration, performance of government's civic duties and functions to its citizens or for the advancement of the community, the fact that that object is achieved by entering into commercial transactions does not necessarily mean that the funds are used for commercial purposes: [172] (Bathurst CJ); [210] (Beazley P)

Bombardier Inc v AS Estonian Air and the Republic of Estonia (2013) 115 OR (3d) 183; FG Hemisphere Associates LLC v Democratic Republic of the Congo [2010] 2 HKLRD 66; Dorais v Saudi Arabian General Investment Authority (2013) CarswellQue 9504; Export-Import Bank of the Republic of China v Grenada [2014] F 3d WL 4773451 C.A. 2 AIG Capital Partners Inc v Republic of Kazakhstan (National Bank of Kazakhstan intervening) [2006] 1 WLR 1420.

9. The bank accounts are immune from execution of the garnishee order under s 30 as the evidence and the individual circumstances of Nauru establish that the funds were set aside for purposes other than commercial purposes: [206] (Bathurst CJ); [210] (Beazley P)

Liberian Eastern Timber Corp v Government of Republic of Liberia (1987) 659 F Supp 606.

Judgment

BATHURST CJ: On 28 October 2011 judgment was given in the Tokyo District Court in favour of the Applicant (Firebird) against the Republic of Nauru (Nauru) in the sum of 1.3 billion Yen plus interest (the Japanese judgment). The proceedings related to Japanese Yen bearer bond certificates held by Firebird, issued by the Republic of Nauru Finance Corporation and guaranteed by Nauru. There was no dispute in the current proceedings that the Japanese Court had had jurisdiction.
On 9 May 2012 Firebird filed a summons (the Originating Process) in the Common Law Division of this Court, seeking registration of the Japanese judgment under Part 2 of the Foreign Judgments Act 1991 (Cth) (Foreign Judgments Act). Neither the Originating Process nor the supporting affidavit were served on Nauru.
On 6 June 2012 a Deputy Registrar registered the Japanese judgment under Part 2 of the Foreign Judgments Act (the Registered judgment). The order to register the Japanese judgment provided that Nauru may, within 14 days after service of the notice of registration of the judgment, apply to have it set aside.
Thereafter Firebird applied for leave to serve a notice of registration of the judgment outside Australia and that it be effected by means of private process on the Secretary for Justice of Nauru.
On 19 March 2013 Schmidt J made the following orders:

“1. Pursuant to rule 18.2(2) of the Uniform Civil Procedure Rules 2005 (NSW) (the Rules) the Plaintiff may proceed without service on the Defendant of the notice of motion filed 8 March 2013.
2.   Pursuant to rule 53.2(3) of the Rules, the Plaintiff may proceed without service of the summons filed 9 May 2012 on the Defendant.
3.   Pursuant to rule 11.5 of the Rules, the Plaintiff be granted leave to serve the Notice of Registration of Judgment annexed to the notice of motion filed 8 March 2013 and marked ‘A’ outside Australia.
4.   Pursuant to rule 11.5 of the Rules, the Plaintiff be granted leave to serve the Notice of Change of Solicitor filed 8 March 2013 outside Australia.
5.   Pursuant to rule 53.6(2) of the Rules, service of the Notice of Registration of Judgment be effected by way of private process server on the Secretary for Justice of the Defendant.
6.   The costs of the motion are costs in the cause.”

It should be noted that Order 1 of her Honour’s orders related to the motion to serve outside Australia whilst Order 2 related to the summons seeking registration of the Japanese judgment.
On 18 August 2014 a notice of registration of the Registered judgment was purportedly served by leaving the documents at the office of the Secretary for Justice in Nauru.
On 5 September 2014 Firebird filed a notice of motion seeking a garnishee order. On 10 September a garnishee order was made against Westpac Banking Corporation (Westpac) in the following terms (the Garnishee order):

It is ordered that all debts that are due or accruing from the garnishee to the judgment debtor at the time of service of this order are attached to the extent of $31,242,825.81 to answer a judgment in these proceedings.

You are ordered to pay any amount so attached to the judgment creditor within 14 days after the date on which the order is served on the garnishee or, if the debt attached is a debt that falls due after that date, within 14 days after the date on which the debt becomes due.

On 19 September 2014 Nauru filed a notice of motion seeking to set aside or stay the Garnishee order. The hearing of that notice of motion commenced on 22 September but was adjourned from 23 September for further hearing on 29 September.

On 25 September 2014 Nauru filed an amended notice of motion seeking orders setting aside the Registered judgment as well as the Garnishee order.
The primary judge ordered that the Registered judgment and the consequential Garnishee order be set aside. This order is the subject of Firebird’s appeal.
The primary judge, however, also indicated that if he had not set the Registered judgment aside he would have upheld the Garnishee order at least in part. By a notice of contention Nauru contends that this conclusion was incorrect.
The Garnishee order covered 30 bank accounts held by Westpac on behalf of Nauru. As at 22 September 2014 the accounts had a combined balance totalling $32,491,914.65. One of the accounts, described as an AusAID account, contained money said to have been donated by the Commonwealth of Australia. The Commonwealth filed a notice of motion seeking to set aside the Garnishee order in so far as it related to this account. In addition to supporting the arguments raised by Nauru it asserted that the funds in the AusAid account were the subject of a trust of the nature of that considered by the House of Lords in Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567. The Commonwealth seeks to maintain that argument, which was not finally dealt with by the primary judge, in the event that Firebird’s appeal is successful. It was agreed, having regard to the urgency of the matter, that this issue would be postponed.
Because of the urgency of the matter I have not set out the reasons of the primary judge in any detail, nor have I referred to all of the parties’ submissions. However, the reasons and the whole of the parties’ written and oral submissions have been taken into account in reaching the conclusions to which I have referred below.
To understand the issues raised in the appeal it is necessary to have regard to the legislative regime dealing with State immunity in the Foreign States Immunities Act 1985 (Cth) (Immunities Act) and the regime dealing the registration of foreign judgments contained in the Foreign Judgments Act.

The Immunities Act

Up to at least the early 1970s the common law adopted what has been described as a doctrine of “absolute immunity”. The doctrine was described by Lord Atkin in Compania Naviera Vascongado v Steamship “Cristina” [1938] AC 485 in the following terms at 490:

“The foundation for the application to set aside the writ and arrest the ship is to be found in two propositions of international law engrafted into our domestic law which seem to me to be well established and to be beyond dispute. The first is that courts of a country will not implead a foreign sovereign, that is, they will not by their process make him against his will a party to legal proceedings whether the proceedings involve process against his person or seek to recover from him specific property or damages.
The second is that they will not by their process, whether the sovereign is a party to the proceedings or not, seize or detain property which is his or of which he is in possession or control. There has been some difference in the practice of nations as to possible limitations of this second principle as to whether it extends to property only used for the commercial purposes of the sovereign or to personal private property. In this country it is in my opinion well settled that it applies to both.”

See also Hazel Fox and Philippa Webb, The Law of State Immunity, (3rd ed 2013, Oxford University Press) (Fox on State Immunity) at 26-32.

However, with the increasing involvement of sovereign states in commercial activities, public international law developed what came to be termed the “restrictive theory” of sovereign immunity. That theory distinguished between activities which a State undertakes jure imperii, that is, in the exercise of sovereign authority, and activities which it undertakes jure gestionis, that is transactions of a kind which might appropriately be undertaken by private individuals instead of sovereign States. In that context the jurisdiction of national courts was exercised over foreign States in claims against them which arose out of commercial or trading transactions into which they had entered with private individuals. The doctrine was adopted as part of the common law by the Privy Council in the Philippine Admiral v Wallem Shipping (Hong Kong) Ltd [1977] AC 373 and Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529. See also Alcom Ltd v Republic of Colombia [1984] AC 580 at 597-598. In the United Kingdom, the restrictive theory was first given statutory recognition in the State Immunity Act 1978 (UK) (the UK State Immunity Act) and in the United States in the Foreign Sovereign Immunities Act 1976 (US).
Following Report No. 24 Foreign State Immunity by the Australian Law Reform Commission in 1984 (the Foreign State Immunity Report) statutory recognition was given to the doctrine of restrictive immunity in the Immunities Act. The Immunities Act deals with questions of immunity from jurisdiction (Part II) and enforcement (Part IV) separately.
Section 9 of the Immunities Act contains a general immunity. The section is in the following 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.”

That immunity, however, is subject to a number of exceptions. The first is in circumstances where a foreign State submits to the court’s jurisdiction. Relevant for present purposes are s 10(1), s 10(6) and s 10(7) of the Immunities Act. These sections provide as follows:

“(1)   A foreign State is not immune in a proceeding in which it has submitted to the jurisdiction in accordance with this section.”
…
“(6)   Subject to subsections (7), (8) and (9), a foreign State may submit to the jurisdiction in a proceeding by:
(a)   instituting the proceeding; or
(b)   intervening in, or taking a step as a party to, the proceeding.

(7)   A foreign State shall not be taken to have submitted to the jurisdiction in a proceeding by reason only that:
(a)   It has made an application for costs; or
(b)   It has intervened, or has taken a step, in the proceeding for the purpose or in the course of asserting immunity.”

Section 11 of the Immunities Act provides a general exception to what are described as “commercial transactions”. The section is in the following terms:

“(1)   A foreign State is not immune in a proceeding in so far as the proceeding concerns a commercial transaction.
(2)   Subsection (1) does not apply:
(a)   if all the parties to the proceeding:
(i)   are foreign States or are the Commonwealth and one or more foreign States; or
(ii)   have otherwise agreed in writing; or

(b)   in so far as the proceeding concerns a payment in respect of a grant, a scholarship, a pension or a payment of a like kind.
(3)   In this section, commercial transaction means a commercial, trading, business, professional or industrial or like transaction into which the foreign State has entered or a like activity in which the State has engaged and, without limiting the generality of the foregoing, includes:
(a)   a contract for the supply of goods or services;
(b)   an agreement for a loan or some other transaction for or in respect of the provision of finance; and
(c)   a guarantee or indemnity in respect of a financial obligation; but does not include a contract of employment or a bill of exchange.”

Sections 12 to 20 of the Immunities Act deal with certain specific exceptions to the immunity. It is not necessary to set them out in detail, although they do have some bearing on the construction of s 11.
Part III of the Immunities Act deals with service and judgments. Sections 23 and 24 provide for service by agreement, or through what is described as the diplomatic channel. Section 25 provides that service, other than in accordance with those sections, is ineffective.
Section 27 of the Immunities Act deals with judgment in default of appearance. It is in the following terms:

“(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.”

Section 28 of the Immunities Act imposes restrictions on the enforcement of default judgments.
Part IV of the Immunities Act deals with enforcement. Section 30 is in the following terms:

“Except as provided by this Part, the property of a foreign State is not subject to any process or order (whether interim or final) of the courts of Australia for the satisfaction or enforcement of a judgment, order or arbitration award or, in Admiralty proceedings, for the arrest, detention or sale of the property.”

Section 32 of the Immunities Act, however, permits enforcement against commercial property. This section provides as follows:

“(1) Subject to the operation of any submission that is effective by reason of section 10, section 30 does not apply in relation to commercial property.
(2) Where a foreign State is not immune in a proceeding against or in connection with a ship or cargo, section 30 does not prevent the arrest, detention or sale of the ship or cargo if, at the time of the arrest or detention:
(a) the ship or cargo was commercial property; and
(b) in the case of a cargo that was then being carried by a ship belonging to the same or to some other foreign State – the ship was commercial property.

(3)   For the purposes of this section:
(a)   commercial property is property, other than diplomatic property or military property, that is in use by the foreign State concerned substantially for commercial purposes; and
(b)   property that is apparently vacant or apparently not in use shall be taken to be being used for commercial purposes unless the court is satisfied that it has been set aside otherwise than for commercial purposes.”

Finally, s 38 of the Immunities Act deals with the power to set aside a process. It provides as follows:

“Where, on the application of a foreign State or a separate entity of a foreign State, a court is satisfied that a judgment, order or process of the court made or issued in a proceeding with respect to the foreign State or entity is inconsistent with an immunity conferred by or under this Act, the court shall set aside the judgment, order or process so far as it is so inconsistent.”

The Foreign Judgments Act

The Foreign Judgments Act provides for the enforcement of judgments rendered by superior and specified inferior courts in countries to which the act has been extended by regulation. Such an extension is only made if substantially reciprocal arrangements have been made for the enforcement of judgments of Australian courts in the overseas countries concerned (see generally, Davies, Bell and Brereton, Nygh’s Conflict of Laws in Australia, (9th ed 2014, LexisNexis Butterworths) (Nygh’s Conflict of Laws in Australia) at [41.4]-[41.8]). There is no issue that the Tokyo District Court was a court whose judgments could be enforced pursuant to this section.
The Foreign Judgments Act replaced a series of similar state acts including, so far as New South Wales was concerned, the Foreign Judgments Act 1973 (NSW) (the earlier NSW Act).
Section 6 of the Foreign Judgments Act deals with applications for, and the effect of, registration of foreign judgments. That section, so far as relevant, provides as follows:

“(1)   A judgment creditor under a judgment to which this Part applies may apply to the appropriate court at any time within 6 years after:
(a)   the date of the judgment; or
(b)   where there have been proceedings by way of appeal against the judgment, the date of the last judgment in those proceedings;

to have the judgment registered in the court.
…
(3)   Subject to this Act and to proof of the matters prescribed by the applicable Rules of Court, if an application is made under this section, the Supreme Court of a State or Territory or the Federal Court of Australia is to order the judgment to be registered.
(4) The court’s order must state the period within which an application may be made under section 7 to have the registration of the judgment set aside.
(5)   The court may, by order, extend the period within which such an application may be made.
(6)   A judgment is not to be registered if at the date of the application:
(a)   It has been wholly satisfied; or
(b)   It could not be enforced in the country of the original court.

(7) Subject to sections 7 and 14:
(a)   a registered judgment has, for the purposes of enforcement, the same force and effect; and
(b)   proceedings may be taken on a registered judgment; and
(c)   the amount for which a judgment is registered carries interest; and
(d)   the registering court has the same control over the enforcement of a registered judgment;

as if the judgment had been originally given in the court in which it is registered and entered on the date of registration.
…
(10)   Action is not to be taken to enforce a registered judgment:
(a)   during the period fixed under subsection (4) (including any extensions of that period under subsection (5)) as the period during which a party may apply to have the registration of the judgment set aside; or
(b)   where such an application has been made, until after the application has been finally determined.”

It should be noted that the earlier NSW Act contained provisions substantially in the same form as s 6(3) and s 6(7).
Section 7 of the Foreign Judgments Act deals with setting aside a registered judgment. That section provides as follows:

“7 Setting aside a registered judgment
(1)   A party against whom a registered judgment is enforceable, or would be enforceable but for an order under section 8, may seek to have the registration of the judgment set aside by duly applying to the court in which the judgment was registered, or (where applicable) a court in which the judgment was registered under Part 6 of the Service and Execution of Process Act 1992, to have the registration of the judgment set aside.
(2)   Where a judgment debtor duly applies to have the registration of the judgment set aside, the court:
(a)   must set the registration of that judgment aside if it is satisfied:
(i)   that the judgment is not, or has ceased to be, a judgment to which this Part applies; or
(ii)   that the judgment was registered for an amount greater than the amount payable under it at the date of registration; or
(iii)   that the judgment was registered in contravention of this Act; or
(iv)   that the courts of the country of the original court had no jurisdiction in the circumstances of the case; or
(v)   that the judgment debtor, being the defendant in the proceedings in the original court, did not (whether or not process had been duly served on the judgment debtor in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable the judgment debtor to defend the proceedings and did not appear; or
(vi)   that the judgment was obtained by fraud; or
(vii)   that the judgment has been reversed on appeal or otherwise set aside in the courts of the country of the original court; or
(viii)   that the rights under the judgment are not vested in the person by whom the application for registration was made; or
(ix)   that the judgment has been discharged; or
(x)   that the judgment has been wholly satisfied; or
(xi)   that the enforcement of the judgment, not being a judgment under which an amount of money is payable in respect of New Zealand tax, would be contrary to public policy; or

(b)   may set the registration of the judgment aside if it is satisfied that the matter in dispute in the proceedings in the original court had before the date of the judgment in the original court been the subject of a final and conclusive judgment by a court having jurisdiction in the matter.
(3)   For the purposes of subparagraph (2)(a)(iv) and subject to subsection (4), the courts of the country of the original court are taken to have had jurisdiction:
(a)   in the case of a judgment given in an action in personam:
(i)   if the judgment debtor voluntarily submitted to the jurisdiction of the original court; or
(ii)   if the judgment debtor was plaintiff in, or counter‑claimed in, the proceedings in the original court; or
(iii)   if the judgment debtor was a defendant in the original court and had agreed, in respect of the subject matter of the proceedings, before the proceedings commenced, to submit to the jurisdiction of that court or of the courts of the country of that court; or
(iv)   if the judgment debtor was a defendant in the original court and, at the time when the proceedings were instituted, resided in, or (being a body corporate) had its principal place of business in, the country of that court; or
(v)   if the judgment debtor was a defendant in the original court and the proceedings in that court were in respect of a transaction effected through or at an office or place of business that the judgment debtor had in the country of that court; or
(vi)   if there is an amount of money payable in respect of New Zealand tax under the judgment; or

(b)   in the case of a judgment given in an action of which the subject matter was immovable property or in an action in rem of which the subject matter was movable property—if the property in question was, at the time of the proceedings in the original, court situated in the country of that court; or
(c)   in the case of a judgment given in an action other than an action of the kind referred to in paragraph (a) or (b)—if the jurisdiction of the original court is recognised by the law in force in the State or Territory in which the judgment is registered.
(4)   In spite of subsection (3), the courts of the country of the original court are not taken to have had jurisdiction:
(a)   if the subject matter of the proceedings was immovable property situated outside the country of the original court; or
(b)   except in the cases referred to in subparagraphs (3)(a)(i), (ii) and (iii) and paragraph (3)(c), if the bringing of the proceedings in the country of the original court was contrary to an agreement under which the dispute in question was to be settled otherwise than by proceedings in the courts of the country of that court; or
(c)   if the judgment debtor, being a defendant in the original proceedings, was a person who under the rules of public international law was entitled to immunity from the jurisdiction of the courts of the country of the original court and did not submit to the jurisdiction of that court.
(5)   For the purposes of subparagraph (3)(a)(i), a person does not voluntarily submit to the jurisdiction of a court by:
(a)   entering an appearance in proceedings in the court; or
(b)   participating in proceedings in the court only to such extent as is necessary;
for the purpose only of one or more of the following:
(c)   protecting, or obtaining the release of:
(i)   property seized, or threatened with seizure, in the proceedings; or
(ii)   property subject to an order restraining its disposition or disposal;

(d)   contesting the jurisdiction of the court;
(e)   inviting the court in its discretion not to exercise its jurisdiction in the proceedings.
(6)   Where the registration of a judgment is set aside on an application to a court in which the judgment was registered under Part IV of the Service and Execution of Process Act 1901, the applicant must:
(a)   forthwith notify the Registrar of the court in which the judgment was registered under this Act of the order setting the judgment aside; and
(b)   within 7 days lodge a certified copy of the order in that court.”

Somewhat similar provisions were contained in s 8 of the earlier NSW Act and in equivalent legislation in other States. In particular, it should be noted that s 7(4)(c) of the Foreign Judgments Act reproduced provisions in the earlier State acts of which s 8(3)(c) of the earlier NSW Act is an example.

Section 17 of the Foreign Judgments Act confers a rule making power on the Court. Rule 53 of the Rules deals with matters arising under the Foreign Judgments Act. Rule 53.2 provides:

“(1) Proceedings for registration of a judgment under Part 2 of the Foreign Judgments Act 1991 of the Commonwealth are to be commenced in the Supreme Court.
(2)   In any such proceedings, the judgment creditor is to be the plaintiff and the judgment debtor is to be the defendant.
(3)   Unless the Supreme Court otherwise orders, the judgment creditor may proceed without service of the summons on the judgment debtor.
(4)   If the judgment creditor adds to the summons a request that the application be granted under this rule, the Supreme Court may make the order in the absence of the public and without any attendance by or on behalf of the judgment creditor.”

The aim of the Foreign Judgments Act has been described as being to establish a nationwide Commonwealth State co-operative scheme in which each jurisdiction would be regarded as identical to each other and hence with results akin to what might have been achieved by a wholly Commonwealth scheme (see Nygh’sConflict of Laws in Australia at [41.1]).

The issues which arise in the proceedings

The appeal gives rise to the following questions:

Did the Foreign Judgments Act empower the Court to register the Japanese judgment without service of the Originating Process on Nauru in accordance with the provisions of the Immunities Act?

Was Nauru entitled to bring an application under s 38 of the Immunities Act to set aside the Registered judgment notwithstanding that the time prescribed under s 6(4) of the Foreign Judgments Act for making an application had expired?

Did the application for registration of a foreign judgment constitute a “proceeding” within the meaning of s 9 of the Immunities Act?

If the answer to question 3 is in the affirmative, did Nauru submit to the jurisdiction of the Court as provided for by s 10(6) of the Immunities Act or did the proceedings concern a commercial transaction so the exception to immunity in s 11(1) of the Immunities Act applies?

If Firebird was entitled to register the Japanese judgment, was the judgment liable to be enforced by garnishee of the Westpac accounts?

Did the Court in the circumstances of the present case have discretion to set aside the Garnishee order?

It is convenient to deal with questions one and two together.

Question (1): Did the Foreign Judgments Act empower the Court to register the Japanese judgment without service of the Originating Process on Nauru in accordance with the provisions of the Immunities Act

Question (2): Was Nauru entitled to bring an application under s 38 of the Immunities Act to set aside the Registered judgment notwithstanding that the time prescribed under s 6(4) of the Foreign Judgments Act for making an application had expired?

The Foreign Judgments Act does not in its terms require an application for registration of a judgment to be served on the judgment debtor. Rule 53.2 of the Rules, which I have set out above, provides that unless the Supreme Court otherwise orders, the judgment creditor may proceed without service. No such order was made in the present case, as neither the Deputy Registrar nor Schmidt J were referred to the Immunities Act by the applicant.
In submitting that the service of the Originating Process was not required, Firebird made two submissions. First, the order registering the Japanese judgment was not a “judgment in default of appearance” and so the service requirements in Part III of the Immunities Act were not enlivened. Second, even if they were, the failure to comply with such requirements did not result in the invalidity of the order to register the Japanese judgment. Firebird submitted the proceedings were essentially ex parte proceedings and did not require service. It submitted that to the extent that those service provisions in the Immunities Act would otherwise apply, they had been impliedly repealed by the Foreign Judgments Act.
Considered on its own, in my opinion, Part III of the Immunities Act at least implicitly requires that a judgment against a foreign State shall not be entered against it unless the proceedings have been served on the State in accordance with that part. The relevant legislation must be considered by reference to the words used having regard to the purpose and context of the provision in question: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47] and Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23]-[24], [68]-[70] and [88].
The relevant context of the present case is that the Immunities Act operates as a restriction on the immunity of sovereign States. It assumes that a State will have the opportunity to assert immunity in respect of proceedings which are brought against it. Even in the case of a judgment in default of appearance, the Court is required by s 27 of the Immunities Act to be satisfied that the foreign State is not immune.
In dealing with the issue of default judgments the following remarks were made in the Foreign State Immunity Report at [156]:

“Default Judgments. Under the ordinary rules where the defendant fails to appear the plaintiff, on proof of service etc, may obtain a final judgment (if the claim is for a liquidated amount), an interlocutory judgment for the assessment of damages (if the claim is for un-liquidated damages), or may move for judgment (if seeking equitable relief). The overseas legislation on restrictive immunity is consistent in modifying this position in two ways. First it is made clear that mere failure to appear is not sufficient to allow the plaintiff to proceed in default. The court must also satisfy itself that the foreign state is not entitled to immunity. This is clearly appropriate and similar provision should be made in the proposed legislation. The second modification is that a copy of the default judgment must be served on the foreign state either by any manner provided in the legislation for service on a foreign state or exclusively by the diplomatic channel. The objective is to ensure that the foreign state is aware of the action against it and that a default judgment has resulted. Service exclusively by the diplomatic channel is recommended as it is more likely to meet these objectives...”
(References omitted).

In my opinion, it is implicit in the terms of the Immunities Act that a judgment cannot be entered against a foreign State unless the process which gives rise to the judgment has been served as required by Part III of the Immunities Act and the relevant time has elapsed since service.
I agree with the submission of Firebird that the order authorising the registration of the Japanese judgment is not a default judgment to which s 27 of the Immunities Act applies. That section plainly relates to a judgment in default of appearance after service has been effected in accordance with Part III (note s 27(1)(a)). A judgment in default of appearance is a judgment in reliance on a failure to appear, not a judgment entered into in circumstances where no appearance was sought or required: see Dsane v Hagan [1962] Ch 193 at 199.
However, there remains the question of whether the effect of the Foreign Judgments Act renders service of the application to register the Japanese judgment unnecessary, contrary to the effect of the Immunities Act as explained above at [44]. Firebird submitted that registration is dealt with exclusively in the Foreign Judgments Act and, as a consequence, the Immunities Act was impliedly repealed to the extent that service of the Originating Process was required under the latter act. It further submitted that the only basis on which an application to set aside the Registered judgment could be made was under s 7 of the Foreign Judgments Act and the time fixed for making such an application had expired. In these circumstances it submitted that there was no basis for making an application under s 38 of the Immunities Act. Firebird also argued that the Foreign Judgments Act impliedly repealed s 38 of the Immunities Act in so far as it related to applications to set aside the judgments registered under the Foreign Judgments Act.
It would be surprising, in my opinion, if the Foreign Judgments Act, which as I indicated was largely based on pre-existing state acts, has the effect of impliedly repealing the Immunities Act.
The principles to determine whether a later statute effects an implied repeal of an earlier statute are well established. As was pointed out in Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 (Ferdinands) at [18], inconsistency is at the heart of the principle of implied repeal. The law presumes that one statute does not contradict the other. The question of whether the two statutes can be accommodated requires consideration of, and close attention to, the particular provisions in question: Ferdinands at [54]-[55] and Commissioner of Police v Eaton [2013] HCA 2; (2013) 87 ALJR 267 at [48].
In the present case the two statutes can be accommodated. The Foreign Judgments Act does not prohibit service prior to the registration of a judgment, although it envisages the possibility of registration without service. Rule 53.2 of the Rules reflects this approach by dispensing with service unless the court otherwise orders. To the extent that the Foreign Judgments Act can be used to register judgments obtained against a foreign State, an order requiring service is not inconsistent with any of the provisions of the Immunities Act.
In this context, as was noted by the Court of Appeal of Western Australia in Pt Bayan Resources Tbk v BcBc Singapore Pte Ltd [2014] WASCA 178 per Buss JA at [253], McLure P and Murphy JA agreeing, the Foreign Judgments Act does not exclusively provide the measures which the Supreme Courts of the States and Territories and the Federal Court may take or implement when exercising jurisdiction under the Foreign Judgments Act to enforce foreign judgments, including matters of practice and procedure.
Firebird also contended that an order for registration of a judgment is not a judgment for the purposes of section 27 of the Immunities Act. It pointed to Re Macks; Ex Parte Saint [2000] HCA 62; (2000) 204 CLR 158. In that case the High Court upheld the validity of a state act which provided that ineffectual Federal Court judgments were to be treated as judgments of the Supreme Court. The majority of the Court emphasised at [25] and [351] that the legislation did not vary the operation of the orders of the Federal Court, rather, the legislature took those orders as the factual point of reference for the creation of the rights and liabilities prescribed by the statute.
There seem to me to be two difficulties with Firebird’s argument. The first is that although the existence of the foreign judgment forms the basis of the application for registration, the rights and obligations which arise upon registration result from the exercise of judicial power involved in determining whether first, the matters provided for by the Foreign Judgments Act and the rules (in the case of this Court rule 53) have been satisfied and second, the registration of the judgment is not precluded by reason of either s 6(1) or s 6(6) of the Foreign Judgments Act. As with the enforcement of an arbitral award, the registration of the judgment occurs in accordance with judicial process and involves a determination of questions of legal right, at least as to the existence of the foreign judgment. The registration operates of its own force to create a new charter of rights: TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; (2013) 87 ALJR 410 (TCL Air Conditioner) at [32].
The second difficulty is this. What falls for consideration is the question of whether a judgment which takes effect as a judgment of this Court pursuant to the Foreign Judgments Act is a judgment for the purpose of the Immunities Act. Having regard to the purpose of the Immunities Act, there seems to be no reason to read the word “judgment” in a restrictive manner to exclude a judgment obtained by virtue of registration under the Foreign Judgments Act.
It was also suggested that s 7(4)(c) of the Foreign Judgments Act indicated a legislative intention that foreign State immunity was to be dealt with in that act and the sole basis for the immunity was if the claim fell within s 7(4)(c). I do not agree. That subsection says nothing about immunity in this country; it only deals with immunity in the country where the original judgment was obtained. The Immunities Act deals with the former topic and for the reasons that I have given none of its provisions have been impliedly repealed.
Finally, it was contended that s 38 of the Immunities Act had no application, and an application to set aside the judgment could only be made under s 7 of the Foreign Judgments Act within the time prescribed by s 6(4) of the latter act.
I do not agree. There is no inconsistency between ss 6(4) and 7 of the Foreign Judgments Act and s 38 of the Immunities Act. Section 7 of the Foreign Judgments Act sets out the particular grounds on which registration of a judgment may be set aside. With the exception of the ground that the foreign court had no jurisdiction because of immunity in the country of that court (s 7(2)(a)(iv) in conjunction with s 7(4)(c)), s 7 does not deal with foreign State immunity at all. That is dealt with in the Immunities Act. Section 6(4) expressly applies only to applications to set aside registered judgments under s 7. Section 6(4) does not impose any time constraints on the making of an order pursuant to an application to set aside a judgment under the Immunities Act.
For these reasons the first question should be answered in the negative and the second question in the affirmative. The Japanese judgment should not have been registered and Nauru was entitled to apply under s 38 of the Immunities Act to have it set aside. For these reasons alone, leave to appeal should be granted and the appeal dismissed.

Question (3): Did the application for registration of a foreign judgment constitute a “proceeding” within the meaning of s 9 of the Immunities Act?

Section 9 of the Immunities Act provides for immunity from the jurisdiction of the courts of Australia in a proceeding. In PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2012] HCA 33; (2012) 247 CLR 240 (PT Garuda), the plurality stated at [17] that in s 9 the term “jurisdiction” is used to identify the amenability of a defendant to the process of the Australian Court. It stated that the notion expressed by the term “immunity” is that Australian courts are not, by their processes, to make a foreign State against its will a party to legal proceedings.
There seems to be little doubt that the application to register a judgment is a proceeding. It involves an application to the court seeking an order for registration based on evidence required to be adduced in support of the application. Such an application, in my opinion, constitutes a proceeding.
This conclusion is consistent with cases such as Re Ley; Ex Parte Best (1949) 14 ABC 191, which held that an application to register a judgment obtained in England under the Administration of Justice Act 1924 (NSW) constituted a civil proceeding, and Ex Parte Caucasian Trading Corporation Limited; In re A Bankruptcy Petition (1896) 1 QB 368 which held an application to enforce an arbitral award was a civil proceeding in the High Court. Each of these cases was cited without disapproval in McIvor v Watson [1960] HCA 43; (1960) 103 CLR 658 at 664. In Kuwait Airways Corporation v Republic of Iraq and Bombardier Aerospace [2010] 2 SCR 571 (Kuwait Airways v Iraq), LeBel J stated at [20] that with respect to the Canadian equivalent, albeit differently worded provision, an application to register a foreign judgment was a proceeding as it involved “a judicial demand that gives rise to an adversarial relationship to which the general rules of civil procedure apply…”.
The more difficult question is whether the application has the effect of making the foreign State, against its will, a party to legal proceedings. Firebird submitted that it did not do so, relying particularly on the fact that service was not required and there was no demand directed to the foreign State to appear. It pointed to what was said in Hunt v BP Exploration Co (Libya) Limited [1980] HCA 7; (1980) 144 CLR 565 at 573 that an application for the registration of a judgment under s 5 of the Reciprocal Enforcement of Judgments Act 1959 (Qld) (the Queensland predecessor to the Foreign Judgments Act) did not involve an action in personam requiring service of the court’s process.
The Court was not in that case dealing with sovereign State immunity. I have already dealt with the question of service. Further, for the purpose of s 9, the immunity is a freedom of liability from the imposition of duties by the process of the Australian Courts: PT Garuda [17]. The registration of a judgment in this case has the effect of exposing Nauru to execution against its property in the event that judgment is not met. In this sense, it impleads the foreign State even though the Foreign Judgments Act does not require or command an appearance. For these reasons, unless one of the exceptions to s 9 applies, Nauru was immune from registration of the Japanese judgment.

Question (4): If the answer to question 3 is in the affirmative, did Nauru submit to the jurisdiction of the Court as provided for by s 10(6) of the Immunities Act or did the proceedings concern a commercial transaction so the exception to immunity in s 11(1) of the Immunities Act applies?

The submission to jurisdiction was said to occur by reason of the fact that the original motion filed by Nauru only sought to set aside the Garnishee order and not the registration of the Japanese judgment.
I have set out the relevant provisions of s 10 of the Immunities Act above. By filing a notice of motion seeking to set aside the Garnishee order, Nauru was taking a step as a party to the proceedings within the meaning of s 10(6) of the Immunities Act. The critical question is whether the step was taken for the purpose of, or in the course of, asserting immunity, such that s 10(7) applied.
The original notice of motion was filed along with a supporting affidavit sworn on 18 September 2014 by the Honourable David Adeang MP (Mr Adeang). That affidavit made it clear that what was relied upon was the fact that the property in the bank accounts was immune from execution. It also stated that Nauru was investigating whether there were grounds to set aside the Registered judgment.
The provisions concerning submission to jurisdiction contained in ss 10(6) and (7) of the Immunities Act are somewhat more liberal than the position at general law. The reason was explained in the Foreign State Immunity Report in the following terms at [82]:

“By Appearing or Intervening in Proceedings. It is recommended that the proposed legislation follow both international law and the common law and treat as binding the submission to the jurisdiction to be implied when a foreign state appears before a local court and addresses the merits of the dispute. At the same time it needs to be made clear that appearance or intervention made for the purpose of asserting immunity does not constitute a waiver. Sound decisions on state immunity are more likely to result where argument has been heard from the foreign state. Assurances need to be given to states that by engaging in such argument they will not thereby worsen their position on immunity from jurisdiction. It is recommended that the proposed legislation contain a clear statement to this effect. Ordinary defendants are allowed a measure of tolerance in running alternative arguments or arguments that to some degree enter into the merits while at the same time objecting to jurisdiction. A foreign state would benefit from this general tolerance as long as it remains clear that the claim of immunity is being maintained. In this respect it is sufficient to provide that steps taken ‘for the purpose or in the course of’ claiming immunity do not constitute submission. Similarly, in the interests of making the position clear to foreign states the legislation should provide that intervention by the foreign state in order to secure the release of its property is not a submission to the jurisdiction…”

(References omitted).

In the present case the original notice of motion sought immunity. Although the immunity sought was immunity from execution, that seems to me to fall within s 10(7)(b) of the Immunities Act. In these circumstances, there has not been a submission to the jurisdiction of the Court.
However, there remains the question of whether the proceedings concerned a commercial transaction such that the exception to the immunity in s 11(1) of the Immunities Act applied. None of the parties disputed the fact that the proceedings, the subject of the Japanese judgment, concerned a commercial transaction. However, the subsection requires focus on the proceeding commenced by the Originating Process, namely the application to register the Japanese judgment.

Do the proceedings commenced by the Originating Process “concern” a commercial transaction?

The proceedings commenced by the Originating Process could be said as a matter of practical reality to concern a commercial transaction, namely the question of liability under the bonds: see NML Capital Ltd v Republic of Argentina [2011] UKSC 31; [2011] 2 AC 495 (NML Capital) at [111] per Lord Collins JSC, Lord Walker JSC agreeing. I shall refer to this as the broader construction of “concerns”.
However, the proceedings commenced by the Originating Process themselves do not concern liability under the bonds. They concern the registration of the Japanese judgment. The issues involved in such proceedings, namely whether an application for registration under s 6 of the Foreign Judgments Act is to be made or an application to set the judgment aside under s 7, do not concern the underlying transaction the subject of the proceedings out of which the judgment arose. For the purpose of the application for registration the rights of the parties are not governed by the terms of issues of the bonds, but rather the terms of the judgment sought to be registered: cf TCL Air Conditioner. On this analysis the proceedings commenced by the Originating Process do not concern a commercial transaction and consequentially s 11(1) of the Immunities Act would not have any application. I shall refer to this as the narrower construction of “concerns”.
In considering whether the broader or narrower construction should be adopted there is little assistance to be gained from any extrinsic material. The Foreign State Immunity Report did not deal with this issue. The question thus depends entirely on the text of the provision considered in the context of the Immunities Act as a whole.
The words “proceeding concerns” would tend to suggest that what is to be looked at is the issues raised by the proceedings themselves. That is supported by the use of the words “in so far”. That recognises that proceedings may in part concern a commercial transaction in respect of which no claim for immunity can be made and in part concern matters for which such a claim may be made. These words lend support to the narrower construction.
There also are some contextual matters which support this narrower approach. Section 17(2) of the Immunities Act is in the following terms:

“Where:
(a) apart from the operation of subparagraph 11(2)(a)(ii), subsection 12(4) or subsection 16(2), a foreign State would not be immune in a proceeding concerning a transaction or event; and
(b) the foreign State is a party to an agreement to submit to arbitration a dispute about the transaction or event;
then, subject to any inconsistent provision in the agreement, the foreign State is not immune in a proceeding concerning the recognition as binding for any purpose, or for the enforcement, of an award made pursuant to the arbitration, wherever the award was made.”

If the broader interpretation of “concerns” was correct, s 17(2) of the Immunities Act would not be necessary, at least where the underlying transaction, the subject of the arbitral award, was a commercial transaction.
Further support can be gained for the narrower construction by consideration of s 21 of the Immunities Act. This section provides as follows:

“Where, by virtue of the operation of the preceding provisions of this Part, a foreign State is not immune in a proceeding in so far as the proceeding concerns a matter, it is not immune in any other proceeding (including an appeal) that arises out of and relates to the first‑mentioned proceeding in so far as that other proceeding concerns that matter.”

That section makes it clear that when a proceeding arises out of an earlier proceeding where there was no claim for immunity, then there would be no immunity in respect of the second proceedings. That tends to show that the focus is on the proceedings themselves rather than the transactions which underpin them or any original proceeding.
The contextual support for the narrower construction is limited. Furthermore it may be said to be anomalous that there would be no immunity attaching to proceedings in respect of a commercial transaction whilst immunity would arise in respect of registration of a judgment obtained in such proceedings.
However, it must be borne in mind that the legislation removed a well established immunity. If it was intended that the immunity would depend on whether or not the underlying transaction in the proceedings in the foreign court was a commercial transaction it would have been relatively easy to provide for it. The legislation, however, chose to focus on the proceeding itself.
For these reasons what I have described as a narrower construction of “concerns” should be adopted.
In reaching this conclusion I have not relied on any overseas authorities. These authorities only provide limited assistance having regard to the differences in the wording of the legislation and statutory regimes.
NML Capital concerned an application to register in the United Kingdom, a judgment of a New York court obtained on default by Argentina in repayment of certain commercial bonds. The relevant legislation, s 3(1) of the UK State Immunity Act, was in different terms to s 11(1) of the Immunities Act, providing that a State is not immune “as respects proceedings relating to a commercial transaction entered into by the State”. However, in addition, the UK Parliament had passed the Civil Jurisdiction and Judgment Act 1982 (UK). Section 31(1) of the Civil Jurisdiction and Judgment Act provided as follows:

“A judgment given by a court of an overseas country against a state other than the United Kingdom or the state to which that court belongs shall be recognised and enforced in the United Kingdom if, and only if ‑
(a) it would be so recognised and enforced if it had not been given against a state; and
(b) that court would have had jurisdiction in the matter if it had applied rules corresponding to those applicable to such matters in the United Kingdom in accordance with sections 2 to 11 of the State Immunity Act 1978.”

All members of the Supreme Court held that a New York judgment could be enforced by reason of s 31(1) of the Civil Jurisdiction and Judgment Act. However, the majority held that the application for registration of the judgment was not a proceeding relating to a commercial transaction for the purpose of the UK State Immunity Act. In reaching his conclusion Lord Mance JSC emphasised at [85] that a claim on a cause of action commonly gives rise to different issues from those which arise from a claim based on a judgment given in respect of a cause of action. He stated at [91] that at the time of the UK State Immunity Act, English common law was in development and not finally settled on the point that States were not immune in respect of commercial transactions. He stated at [97] that he saw no basis for giving the phrase “relating to” what he described as an “updated meaning”. He stated that it was implausible to suggest that Parliament intended that its meaning or application could, over time, expand to remove immunity in respect of judgments. He stated that that would amount to altering the scope of the UK State Immunity Act.
Lord Collins, with whom Lord Walker agreed, reached the same conclusion. He said at [114] that it was not likely to be in doubt that at the time of the UK State Immunity Act it would not have been envisaged that s 3 would have applied to the enforcement at common law of a foreign judgment against a foreign State based on a commercial transaction. He said at [116] that but for s 31 of the Civil Jurisdiction and Judgment Act, it might have been desirable as a matter of policy to give s 3 a wider meaning. However, he stated there was no principled basis to come to that conclusion.
Lord Phillips PSC and Lord Clarke JSC dissented. The former stated at [39] that he could see no justification for giving s 3(1)(a) of the UK State Immunity Act a narrower interpretation. He stated his conclusion was consistent with the decision reached by the Supreme Court of Canada in Kuwait Airways v Iraq.
Lord Clarke JSC stated at [141] that to look at the circumstances as they existed at the time the UK State Immunity Act was enacted was to approach the construction of s 3(1) of that Act too narrowly. He stated at [142] that the enactment was intended to develop in meaning with developing circumstances and should be given what was described in Bennion on Statutory Interpretation (5th ed 2008, LexisNexis) an “updated meaning”. He concluded that, approached in that way, the section would apply where a foreign judgment related to an underlying commercial transaction.
In circumstances where the legislation in its terms did not consider the question of registration of foreign judgments, where at the time it was passed the extent of the restriction on the immunity was uncertain and the words in question are narrower than the words “relating to” in the UK State Immunity Act, it does not seem to me appropriate to adopt an “updated” construction. It is of significance in this regard that no amendment to the Immunities Act was made consequent upon the enactment of the Foreign Judgments Act.
In Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; (2007) 231 CLR 531 the plurality at [39] described terminology that there was a rebuttable presumption favouring an ambulatory approach to statutory construction as apt to mislead. They stated that what is involved is an exercise in statutory interpretation which seeks to discern the intention of the legislature in enacting the specific provision in question, having regard to its context, scope and purpose. It seems to me that it cannot be discerned from the sections in question that the word “concerns” in s 11(1) of the Immunities Act was to have an ambulatory meaning depending on principles of international law which existed from time to time. This is particularly for the reasons which I have set out in paragraph [86] above.
In Kuwait Airways v Iraq, the legislation in question, s 5 of the Canadian State Immunity Act 1985, RSC 1985, c S-18, provided that a foreign State was not immune from “the jurisdiction of a court in any proceedings that relate to any commercial activity of the foreign state”. LeBel J, who delivered the judgment of the Court, held that the immunity would not prevent registration of a foreign judgment based on an underlying commercial transaction. However, the words of the section are wider than the legislation in question in the present case and the issue, the subject of these proceedings, was not the subject of detailed consideration.
In these circumstances the narrower construction of “concerns” should be adopted. It may be that this construction is contrary to what is now regarded as the appropriate position in international law: see Fox on State Immunity at 220 and Jurisdictional Immunities of the State (Germany v Italy, Greece intervening) [2012] ICJ Reps 99 at [130]. However that, in my opinion, is a matter for the legislature to deal with if it thinks fit.
For these reasons the proceedings to register the Japanese judgment did not concern a commercial transaction and the exception to immunity in s 11(1) of the Immunities Act did not apply.

Question (5): If Firebird was entitled to register the Japanese judgment, was the judgment liable to be enforced by garnishee of the Westpac accounts?

The fifth question would only arise if Firebird were successful on the matters already dealt with above.
The primary judge concluded that the exception in s 32 of the Immunities Act only applied to property which was diplomatic or military property. The parties agreed that this was incorrect. The issue is to be determined by consideration of whether the property in question is used substantially for commercial purposes. However, property apparently not in use is to be assumed to be being used for commercial purposes unless it can be shown that it has been set aside other than for such purposes.
The evidence on this issue was essentially confined to a certificate under s 41 of the Immunities Act given by the Consul General for Nauru (the Certificate), the affidavit of Mr Adeang to which I have referred earlier and oral evidence given by Mr Adeang. The evidence may be summarised as follows:

BusinessOne Account

The Certificate stated the funds in this account were used “as the primary operating account” for Nauru. The funds were used to pay for the salaries of 1,200 public servants employed by Nauru’s government in addition to services, equipment and supplies provided by the departments of Nauru’s government.
Mr Adeang gave evidence confirming the above. He clarified in cross-examination that the “services” referred to in the Certificate did not include services for which the people of Nauru had to pay. He gave the example of the police force, although he recognised that if you went to the police to obtain a licence you would be charged a fee, and in that sense you were paying for a service.
Bank account statements before the Court with respect to this account showed that from 25 August 2014 to 23 September 2014, various withdrawals and deposits had been made from and into the account.

USD RON Treasury Account

The Certificate stated the funds in this account were used “to purchase fuel to supply to the population” of Nauru and businesses located on Nauru. The main customers for the fuel are the Nauru Utility Corporation, a government owed corporation (which operates the sole power plant on the island), Nauru Airlines (the government national airline and also a government owned corporation) and Transfield Services (the contractor who operates the Regional Processing Centres).
Mr Adeang gave evidence that the size of the country meant, due to economies of scale that no one else would provide fuel, and therefore the government provides fuel. He stated the government did not make a profit out of the provision of fuel.
Bank account statements before the Court with respect to this account showed that from 25 August 2014 to 23 September 2014, a withdrawal and deposit had been made from and into the account.

Yaren Aircraft Leasing Co Accounts

There were two different bank accounts titled Yaren Aircraft Leasing Co. The Certificate stated the funds in these accounts were used to “provide government loans to Nauru Airlines for the procurement and maintenance of its aircraft.” The loans were said to be provided on a “non-interest/ non-profit” basis and to have been repaid.
Mr Adeang gave evidence that, again due to economies of scale, the government provides a national airline to operate air services to Nauru, as private airlines (such as Qantas and Virgin) were not interested in providing services to the country. He stated the airline did not make money although he ideally would like that to happen.
In cross examination Mr Adeang was referred to 2011/2012 Nauru budget papers that referred to “Norfolk Air” and “Heavy Lift” contracts. Mr Adeang said he believed they were commercial contracts entered into by the airline, but he did not know if the airline still had those contracts. He believed the Heavy Lift contracts were no longer held by the airline. Mr Adeang was also taken to a reference to “ad hoc charter for business”. He agreed that the airline was still operating on a charter basis and that that was a very competitive market.
Mr Adeang stated in cross examination that the government owned four aircraft through government corporations, “PALco” (which Mr Adeang thought had been decommissioned) and “YALco”.
Bank account statements before the court with respect to these accounts showed that from 25 August 2014 to 23 September 2014 no withdrawals or deposits had been made from or into the account.

2-1-22 Pacific NCD Program

The Certificate stated the funds in this account were used “for the purpose of funding health programs to prevent and control non-communicable diseases in the population”.
Mr Adeang gave evidence confirming the above.
Bank account statements before the Court with respect to this account showed that from 25 August 2014 to 23 September 2014 no withdrawals or deposits had been made from or into the account, other than the charging of an associated bank fee and the accrual of interest.

AusAid Account

The Certificate stated the funds in this account were used “for the purpose of providing Government Services” to Nauru, including but not limited to operating schools and education programs, health programs and medical clinics, and infrastructure programs related to the provision of water and electricity to the population.
Mr Adeang gave evidence confirming the above. He also said the money was used to fund the position of three or four Deputy Secretaries of Finance. However, he agreed in cross-examination that the “vast majority of the payments” out of this account were payments for goods and services. In cross examination Mr Adeang also agreed that some of the services were performed by contractors and that the provision of some of the services involved the purchase by the government of plant, equipment and goods, and such purchases were made from commercial suppliers.
Mr Adeang was referred to certain withdrawals from this account. He said, in relation to one withdrawal relating to the supply of drugs, that the government charged people for certain medications but not all. In relation to a withdrawal made out to the University of New England, Mr Adeang said the payment was “perhaps to provide training for teachers”. Mr Adeang agreed that that was something where the government of Nauru had entered into “some sort of contract with the university”.
Bank account statements before the Court with respect to this account showed that from 25 August 2014 to 23 September 2014 various withdrawals and deposits had been made.

CIE-Nauru GEF Small GRA Account

The Certificate stated the funds in this account were used “for the purpose of providing government loans to small business to assist in setting up businesses.”
Mr Adeang gave evidence that the funds were used “to assist us address small projects to the community at the grass roots level” and included providing micro-loans for small businesses. Mr Adeang said the government did not make a profit out of the small loans, the policy being “to diversify the community and provide subsistence to struggling Nauruan families”. He said it was “not a commercial venture”. In cross-examination he agreed the payments were loans not gifts and had to be repaid. He said that there were written guidelines and a list of whom the loans were made to was kept in the Department of Commerce, Industry and Environment, but that that was not his department and so he did not have the list.
Bank account statements before the Court with respect to this account showed that from 25 August 2014 to 23 September 2014 no withdrawals or deposits had been made from or into the account, other than the charging of an associated bank fee.

CIE Account

The Certificate stated the funds in this account were used “for the purpose of providing Government Services to the population” including but not limited to funding agricultural programs and scientific research undertaken by Nauru into the eradication of the fruit fly and climate change and other scientific research associated with environmental issues.

“The terminology of rebuttable presumption is apt to mislead. What it bespeaks is an exercise in statutory interpretation which seeks to discern what is called the intention of the legislature in enacting the specific provision, having regard to its context, scope and purpose.”

A similar point was made by Campbell J in Hore v Albury Radio Taxis Co-op Society Ltd [2002] NSWSC 1130; 56 NSWLR 210 at [43].
In the context of the Foreign States Immunities Act, it is necessary to ask first whether, as with the UK legislation, it is appropriate to adopt the narrower construction of s 11(1), at the time of its enactment. Accepting that to be so (in line with the unanimous decision of the UK Supreme Court) the second question must be, what has changed which requires an ambulatory construction, with a different outcome? The parties did not seek to identify any legislation in Australia equivalent to s 31 of the Civil Jurisdiction and Judgments Act (UK). Although the argument was not clearly articulated in these terms, it must depend upon some broader changes to the doctrine of State immunity in public international law, beyond the “restrictive” interpretation already reflected in s 11(1). Even if some more recent development of public international law were accepted, that would not provide a sound basis for this Court to give a construction to the Foreign States Immunities Act at variance with one which would have prevailed at the time of its enactment. These conclusions flow for a number of reasons.
First, with respect to the original meaning of s 11(1), the international law background and the domestic arrangements for service on foreign States out of the jurisdiction were at a similar stage of development in Australia in mid-1984 (the date of the Law Reform Commission Report, from which the Foreign States Immunities Act emerged) as in the UK in 1978 (disregarding the 1982 Civil Jurisdiction and Judgments Act).
Secondly, the use of the word “concerns” in the Australian Act suggests a more limited and direct connection between the proceedings and their subject matter than did the UK expression, “relating to”. The difference in the introductory words (see [280] above) supports that conclusion.
On that basis the decision of the Supreme Court of Canada in Kuwait Airways Corporation v Republic of Iraq (referred to at [277] above) permitting the registration in Canada of a UK judgment against Iraq is distinguishable. The Canadian equivalent of s 11(1) used the term “relate to”, which is closer to the UK provision than to the Australian term “concerns”. Further, the judgment concurred in by all members of the Supreme Court made no reference to the precise issue considered in NML Capital and now raised in this Court. It was found to be “unhelpful” in NML Capital, at [113] (Lord Collins).
By the time the Law Reform Commission reported in 1984, s 31(1) of the Civil Jurisdiction and Judgments Act 1982 (UK) had commenced. That provision post-dated the UK State Immunity Act 1978, which was carefully considered by the Law Reform Commission in 1984. However, the Commission did not refer to s 31(1) of the Civil Jurisdiction and Judgments Act. There was then no equivalent provision of which this Court is aware in Australian state and territory provisions relating to the recognition of foreign judgments nor, it might be thought, was that a matter properly to be dealt with in state legislation or rules of court. Significantly, no provision equivalent to s 31 was included in the Foreign Judgments Act in 1991. However, the later enactment of s 31(1) did not affect the reasoning in NML Capital as to the original meaning of s 3(1) of the State Immunity Act 1978.
Accordingly, the construction of s 11(1), when enacted, should conform to that adopted in NML Capital.
Whether the original meaning has changed depends on subsequent developments. In relation to international law, Fox and Webb, The Law of State Immunity (3rd ed, 2013, OUP) at 220 refers to the decision of the International Court of Justice, Jurisdictional Immunities of the State (Germany v Italy, Greece intervening) [2012] ICJ Reports 99. In considering proceedings brought against Germany in Greece, seeking to enforce a judgment of an Italian court, the Court said at [130]:

“It follows from the foregoing that the court seised of an application for exequatur of a foreign judgment rendered against a third State has to ask itself whether the respondent State enjoys immunity from jurisdiction— having regard to the nature of the case in which that judgment was given — before the courts of the State in which exequatur proceedings have been instituted. In other words, it has to ask itself whether, in the event that it had itself been seised of the merits of a dispute identical to that which was the subject of the foreign judgment, it would have been obliged under international law to accord immunity to the respondent State.”

This decision may indicate that the national law in Australia is out of step with public international law, but that does not provide a sufficient basis for this Court to reconstruct the Foreign States Immunities Act to bring it into conformity with a more restrictive view of the immunity available under public international law. (That case actually turned on the erroneous claim to jurisdiction on the part of the Italian court of trial.) Nor is the present case one where compliance with international obligations requires enforcement of obligations placed on the legislature or the executive by existing domestic law: cf Plaintiff M61/2010E v Commonwealth of Australia (Offshore Processing Case) [2010] HCA 41; 243 CLR 319 at [103].
The Law Reform Commission did not expressly deal with the issue of enforcement of judgments in other jurisdictions, although the problem was noted. In effect, the Commission treated enforcement as separate from jurisdictional immunity and dealt with questions of execution without addressing registration of foreign judgments. That appears from the following passage at par 119:

“The Importance of Remedies. Providing for the exercise of local jurisdiction over foreign states in appropriate cases would be of limited value if there was no way of enforcing any judgment so obtained. It is true that the European Convention excludes direct measures of enforcement against foreign states, but it does include an agreement by contracting States to give effect to judgments against them, and it also makes provisions for recognition of such judgments in the courts of the defendant state. Such machinery is appropriate to an international convention but cannot be established unilaterally in the legislation of any one state. In the absence of satisfactory arrangements for securing compliance with judgments, the assertion of judicial jurisdiction over a foreign state entails an assertion of the right to enforce any resulting judgment, if it is not complied with, by appropriate means. On the other hand enforcement measures involving the seizure of state property are capable of raising special problems, and the proper scope of such measures is not necessarily determined by the provisions dealing with the initial subjection to jurisdiction. It has already been noted that immunity from execution is generally treated separately from the question of immunity from jurisdiction. The common law position on execution, unclear as it is, has been described. The civil law jurisprudence favouring restrictive immunity has also been noted.”

The second sentence of the Report set out above, referring to the European Convention, noted that enforcement could be by way of agreement and by “recognition of such judgments in the courts of the defendant state.” (Emphasis added.) There was no suggestion that the Commission’s proposals covered registration of a foreign judgment at all, nor that “recognition” had been considered in States other than the State claiming immunity.
By way of emphasis of the last point, enforcement of arbitral awards was directly identified, as it was in the UK legislation considered in NML Capital. The Law Reform Commission Report stated at par 105:

“Judicial supervision of arbitrations is based primarily on the acknowledged jurisdiction of the forum of the arbitration. The question of the recognition and enforcement of arbitral awards is a distinct one: the award for example may be foreign, with recognition and enforcement sought under established machinery for the recognition and enforcement of foreign arbitral awards.”

The recommendations resulted in the Foreign States Immunities Act containing express provision with respect to arbitrations, including recognition and enforcement:

17   Arbitrations
(1)   Where a foreign State is a party to an agreement to submit a dispute to arbitration, then, subject to any inconsistent provision in the agreement, the foreign State is not immune in a proceeding for the exercise of the supervisory jurisdiction of a court in respect of the arbitration, including a proceeding:
(a)   by way of a case stated for the opinion of a court;
(b)   to determine a question as to the validity or operation of the agreement or as to the arbitration procedure; or
(c)   to set aside the award.
(2)   Where:
(a)   apart from the operation of subparagraph 11(2)(a)(ii), subsection 12(4) or subsection 16(2), a foreign State would not be immune in a proceeding concerning a transaction or event; and
(b)   the foreign State is a party to an agreement to submit to arbitration a dispute about the transaction or event;
then, subject to any inconsistent provision in the agreement, the foreign State is not immune in a proceeding concerning the recognition as binding for any purpose, or for the enforcement, of an award made pursuant to the arbitration, wherever the award was made.

The limitation of these provisions to arbitrations is expressly based on the underlying agreement to submit a dispute to arbitration. Not only is the conceptual basis of registering an award based on an arbitration different from registration of a judgment, but the express provisions in s 17 with respect to arbitral awards contrast with the simple language of s 11(1).
These considerations in combination weigh heavily against construing s 11(1) as an exception to immunity with respect to proceedings brought for the purpose of registering a foreign judgment. The primary countervailing consideration is that, from the perspective of the plaintiff in the proceedings, there is a debt owing by the foreign State, the recovery of which is the purpose underlying (a) the initial proceedings, (b) the registration, if necessary, of the judgment in another country and (c) steps taken to enforce that judgment against property of the State. To distinguish between these steps would be, in the eyes of the plaintiff, to defy practical reality on the basis of legal technicality. While understandable, that view was expressly confronted in NML Capital and did not prevail. It cannot carry decisive weight in the present circumstances. As explained above, the principle of sovereign State immunity is a basic principle of public international law and not a legal technicality. In some respects and in some jurisdictions, exceptions to the immunity are based upon a local connection to the forum State. No such connection is required by s 11, but it does not follow that s 11 necessarily covers all elements of litigation in all countries. For example, immunity from execution is a separate topic dealt with in Pt IV of the Act. Success in the initial stage of obtaining a judgment in one country will not create a consequential entitlement to execute against property in another country. By the same logic, it will not necessarily lead to an entitlement to register the judgment in a third country.
A second proposition relied upon by the applicant was that the combination of a judgment obtained in Japan, together with the denial of the right to sue again on the same cause of action in Australia, means the applicant cannot recover against property of Nauru in Australia. That may well be the result in the present circumstances, but it flows from a combination of the doctrine of State immunity, the limited exceptions available under Australian law and the choice of the applicant to bring the original proceedings to recover the debt in Japan. It provides no significant ground for thinking that Australian law is otherwise than as explained above.
There are sound reasons not to adopt an “updated construction”, where the effect is to restrict the operation of sovereign State immunity. That is in part because the relationship between Australian and independent sovereign States is very much a matter for the Federal government to assess and determine, rather than for a state court exercising federal jurisdiction. There have been significant developments in State practice and in the relevant international instruments since 1985, including the UN Convention on Jurisdictional Immunities of States and Their Property (2004), to which no attention was paid in the course of these proceedings. Once the reliance by the minority in NML Capital on an “updating construction” is eschewed, the reasoning of the majority in that case is persuasive.
For these reasons, the correct conclusion is that the proceedings brought by the applicant for registration of the foreign judgment in this Court should have been dismissed.

Immunity from enforcement

On the basis that it was entitled to maintain the registration of the Tokyo District Court judgment in this Court, the applicant sought to garnishee some 30 bank accounts, each apparently in the name of the Republic of Nauru Consulate. It was common ground that the moneys recorded in these accounts (or more precisely in legal terms, the choses in action against Westpac which they represented) were the property of the Government of Nauru. If the applicant is not entitled to maintain its registration of the Tokyo District Court judgment, the garnishee order must be set aside. On the other hand, if it were to maintain the registration of the foreign judgment, it would need to deal with the immunity from execution contained in s 30 of the Foreign States Immunities Act, which is set out at [236] above. Section 32 provides an exception in relation to “commercial property” upon which the applicant relied: see [237] above.
There was evidence before the trial judge as to the purpose for which each of the accounts was maintained. Nauru resisted the proposition that any of the accounts involved property which was “not in use” for the purposes of s 32(3)(b), so as to place upon Nauru the burden of establishing that the property was “set aside otherwise than for commercial purposes.” With respect to property which was “in use”, the applicant was required to establish that it was in use “substantially for commercial purposes”.
In terms of public law principle, the abandonment of the absolute model of State immunity was in large part driven by the view that if the State entered the commercial marketplace, in order to conduct business with private operators, it should submit to the rules of the market, including as to the enforceability of contracts. As explained by Lord Wilberforce, in a judgment quoted by the Law Reform Commission, Playa Larga (Owners of Cargo Lately Laden on Board) v I Congreso del Partido (Owners) [1983] AC 244 at 262:

“The relevant exception, or limitation which has been engrafted upon the principle of immunity of states under the so called ‘restrictive theory’, arises from the willingness of states to enter into commercial, or other private law, transactions with individuals. … When therefore a claim is brought against a state … and state immunity is claimed, it is necessary to consider what is the relevant act which forms the basis of the claim: is this, under the old terminology, an act ‘jure gestionis’ or is an act ‘jure imperii’ is it … a ‘private act’ or is it a ‘sovereign or public act’, a private act meaning in this context an act of a private law character such as a private citizen might have entered into?”

On one view, a State enters a private marketplace when it seeks to employ people in some arm of the public service. Nevertheless, employment contracts are dealt with separately in the Foreign States Immunities Act and, if they were to come under the rubric of a commercial transaction, there would be little left of State immunity. On the other hand, the applicant asserted that if the State contracted with a business to provide services that would fall within the concept of a commercial transaction even, counsel was driven to concede, if the contract were for the maintenance of Government House (or Parliament House, police barracks etc).
These are not abstract questions in the present case: the bank accounts the subject of the garnishee order were colloquially described as containing the “consolidated revenue” of Nauru. Some funds, including those in which the Commonwealth claimed a possible resulting trust, were supplied for purposes of health and education, including for services provided (the Court was told) by a university in this State.
In a chapter headed “The Concept of Commerciality” (Ch 12) Fox and Webb state at 395:

“A commercial or private law exception is recognized in principle by all countries which adhere to the restrictive doctrine of State immunity, but its application is so diverse and the criterion by which it is determined so differently formulated as to prevent the articulation of the exception in terms acceptable to all. The purpose underlying the restrictive doctrine is plain: a State engaging in business in competition with private persons or corporations should be answerable in the courts of the country where the business is conducted. The commercial or private law exception is driven by ‘[i]ncreasing concern for private rights and public morality, coupled with the increasing entry of governments into what had previously been regarded as private pursuits’. [Victory Transport Inc v Comisaria General 336 F2d 354 (2nd Cir 1964)]. That concern is widespread, but establishing a legal formulation for the exception has proved more difficult; national systems classify public and private acts differently and the existence of such a classification in international law is questionable.”

The footnote to the last proposition referred to an article by the Commissioner in charge of the Law Reform Commission reference, Professor James Crawford, “International Legal and Foreign Sovereigns: Distinguishing Immune Transactions” (1983) 54 BYIL 75 at 91. (The extract from Victory Transport in the US Federal Reporter, at 357 reads: “[g]rowing concern for individual rights and public morality, coupled with the increasing entry of governments into what had previously been regarded as private pursuits”.)
These theoretical difficulties provide a reason for this Court not to embark upon the process of analysis in the circumstances of the present case. Those circumstances include the following matters. First, the trial judge appears to have treated the definition of commercial property as property other than diplomatic property or military property: at [91]. That finding (which was differently expressed in other passages in the reasons) was used as a basis for not attempting a classification of the various bank accounts. As a result, the necessary findings of fact were not made. Secondly, the evidence before the Court was sparse on these issues. That was partly because of the speed with which the matter was brought on for hearing. Thirdly, this Court is labouring under similar time constraints. It would have unfortunate practical consequences if this Court were delayed in finalising its judgment by the need to consider such factual issues. Fourthly, the factual issues would be determined for the first time in this Court, with no ready means of appeal. This would be unsatisfactory for either party if unsuccessful. On the other hand, time prevents remittal of the factual issues to a trial judge. The matter being disposed of on other grounds, I do not express a concluded view upon this issue.

However, the characterization of the accounts as not commercial property may be relevant for any continuation of the current stay. For that purpose I accept the reasons and conclusions of the Chief Justice.

Conclusions

For these reasons, it is clear that the applicant’s appeal should be dismissed. The last matter discussed means that Nauru’s notice of contention will not have been the subject of findings by the Court. The Commonwealth’s summons seeking leave to appeal related to the failure of the trial judge to permit the Commonwealth to seek discharge of the garnishee order relating to an account in which moneys provided by the Commonwealth of Australia were held and in failing to conclude that such moneys were immune from execution pursuant to s 30 of the Foreign States Immunities Act. The Commonwealth also sought to raise issues as to a property interest which it might have in the debt represented by the account. As with the notice of contention, these issues have not been reached. The appropriate course with respect to the Commonwealth’s summons is to refuse leave to appeal, without an order for costs.
Finally, Westpac was represented during the proceedings but played no part in the hearing, either by way of written or oral submissions, except to ensure that a particular submission which might have affected its interests was not being pressed. It did not seek costs.
I concur in the orders indicated by the Chief Justice.

**********

Amendments

17 March 2016 - par [266] change [231] to [230] change "that would provide" to "would provide"

par 274 change "International Arbitration Act" to "[International Arbitration Act"

par [277] change "Foreign State Immunities Act" to "Foreign States Immunities Act"

03 March 2016 - typographical errors corrected

23 October 2014 - Internal references corrected

Amended paragraphs: 267, 271, 295

Details

AGLC: Firebird Global Master Fund Ii Ltd v Republic of Nauru [2014] NSWCA 360
Case: [2014] NSWCA 360
Decision Date: 23 October 2014

CaseChat Overview and Summary

The case involved Firebird Global Master Fund II Ltd (the applicant) seeking to appeal a decision of the Common Law Division of the Supreme Court of New South Wales. The dispute concerned the registration of a foreign judgment against the Republic of Nauru. The applicant sought to register a judgment obtained in the United States against Nauru, and Nauru sought to have that registration set aside on the grounds of sovereign immunity. The appeal was heard by Bathurst CJ, Beazley P, and Basten JA of the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether an application to register a foreign judgment constituted a "proceeding" to which the sovereign immunity provisions of the *Foreign States Immunities Act 1985* (Cth) applied, and if so, whether any exceptions to that immunity were engaged. Specifically, the court considered whether Nauru had waived its immunity by submitting to the jurisdiction, whether the application to register the judgment concerned a commercial transaction, and whether the *Foreign Judgments Act 1991* (Cth) impliedly repealed or was inconsistent with the *Foreign States Immunities Act 1985* (Cth) in relation to the service of process for registering foreign judgments. The court also considered the nature of sovereign immunity and whether it should be construed in light of international developments.

The Court of Appeal reasoned that an application to register a foreign judgment was a "proceeding" within the meaning of section 9 of the *Foreign States Immunities Act 1985* (Cth), and therefore Nauru was entitled to claim sovereign immunity. The court found that Nauru had not waived its immunity under section 10 of the Act, as its actions were aimed at asserting its immunity rather than submitting to the jurisdiction. Furthermore, the court determined that the proceeding did not "concern" a commercial transaction for the purposes of section 11 of the Act, as the registration of a judgment was a procedural step distinct from the underlying commercial transaction. The court also concluded that there was no implied repeal or inconsistency between the *Foreign States Immunities Act 1985* (Cth) and the *Foreign Judgments Act 1991* (Cth), and that the former Act applied to the registration process.

The Court of Appeal granted the applicant leave to appeal but dismissed the appeal, upholding the decision of the Common Law Division to dismiss the summons filed by Firebird Global Master Fund II Ltd. The applicant was ordered to pay the costs of the Republic of Nauru. Orders were also made regarding a stay of previous orders, vacating certain orders and staying others until a specified date.

Orders

Orders of the court

(1) With respect to the summons filed by Firebird Global Master Fund II Ltd in matter 2014/290988:

(i) Grant the applicant leave to appeal.

(ii) Dismiss the appeal and order that the summons filed in the Common Law Division on 9 May 2012 be dismissed.

(iii) Order that the applicant pay the costs of the Republic of Nauru in this Court.

(2) In relation to the summons filed by the Commonwealth of Australia in matter 2014/293924:

(i) Refuse the applicant leave to appeal.

(ii) No order as to the costs of the summons.

Order a stay in the following terms:

(1) Vacate all previous orders with respect to the coming into effect of order (1) made on 3 October 2014 in the Common Law Division (namely, registration of foreign judgment and consequential garnishee order set aside with costs).

(2) Stay the order made and entered on 3 October 2014 setting aside (a) the registration of the foreign judgment and (b) the garnishee order made and issued on 10 September 2014 in favour of the applicant against Westpac Banking Corporation - until 5pm (Sydney time) on Monday, 27 October 2014.

(3) Order that the garnishee order made not be complied with during the period of any stay with respect to the order setting aside the garnishee order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Actions

Citations

Firebird Global Master Fund Ii Ltd v Republic of Nauru [2014] NSWCA 360

Most Recent Citation

Siemens WLL v BIC Contracting LLC (garnishee order) [2023] FCA 1664

Cases Citing This Decision

Applicant or 7/2025 v Medical Board of Australia (Occupational Discipline) [2025] ACAT 18
Citation 1 (Para 8)

…would otherwise overlap, one should be read as subject to the other … [12] See, for example, Firebird Global Master Fund II Ltd v Republic of Nauru [2014] NSWCA 360 at [259]-[260]…
Siemens WLL v BIC Contracting LLC (garnishee order) [2023] FCA 1664
Citation 2 (Para 3)

…Firebird Global Master Fund II Ltd v Republic of Nauru [2014] NSWCA 360; 89 NSWLR 477 is also of some assistance in fortifying that view. Following a garnishee order being set aside, the applicant filed a summons seeking leave to appeal to the Court of Appeal. In the reasons on the appeal, Basten JA noted at [216]…
Greylag Goose Leasing 1410 Designated Activity Company v PT Garuda Indonesia Ltd [2023] NSWCA 134
Citation 3 (Para 31)

…ounted to “submission” for the purpose of s 10; and Firebird Global Master Fund II Ltd v Republic of Nauru (2014) 89 NSWLR 477; [2014] NSWCA 360 which went on appeal to the High Court.…
Firebird Global Master Fund II Ltd v Republic of Nauru [2015] HCA 43
Citation 4 (Para 31)

…ents Act. [14] Firebird Global Master Fund II Ltd v Republic of Nauru (2014) 289 FLR 373. [15] Firebird Global Master Fund II Ltd v Republic of Nauru (2014) 316 ALR 497.…
High Court Bulletin [2015] HCAB 9
Citation 5

…Appealed from NSWSC (CA): (2014) 316 ALR 497; (2014) 289 FLR 398; [2014] NSWCA 360. Return to Top Employment Law Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd & Ors P38/2015 : [2015] HCATrans 285. Date heard: 4 November 2015. Coram: French CJ, Kiefel, Bell, Gageler and Nettle JJ. Catchwords: Employment l…
High Court Bulletin [2015] HCAB 8
Citation 6

…Appealed from NSWSC (CA): (2014) 316 ALR 497; (2014) 289 FLR…
High Court Bulletin [2015] HCAB 7
Citation 7

…Appealed from NSWSC (CA): (2014) 316 ALR 497; (2014) 289 FLR 398; [2014] NSWCA 360.…
High Court Bulletin [2015] HCAB 6
Citation 8

…Appealed from NSWSC (CA): (2014) 316 ALR 497; (2014) 289 FLR 398; [2014] NSWCA 360.…
High Court Bulletin [2015] HCAB 5
Citation 9

…Appealed from NSWSC (CA): (2014) 316 ALR 497; (2014) 289 FLR 398; [2014] NSWCA 360 .…
High Court Bulletin [2015] HCAB 4
Citation 10

…Appealed from NSWSC (CA): (2014) 316 ALR 497; (2014) 289 FLR 398; [2014] NSWCA 360 .…
High Court Bulletin [2015] HCAB 1
Citation 11

…Appealed from NSWSC (CA): [2014] NSWCA 360 .…

Cases Cited

Statutory Material Cited

Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2015] HCA 52
Citation 1 (Para 41)

…issioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47] and Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23]-[24], [68]-[70] and [88].…
Firebird Global Master Fund Ii Ltd v Republic of Nauru [2014] NSWSC 1358
Citation 2

…C v Democratic Republic of the Congo [2010] 2 HKLRD 66 Firebird Global Master Fund II Ltd v Republic of Nauru [2014] NSWSC 1358 Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; (2007) 231 CLR 531 Hore v Albury Radio Taxis Co-operative Society Ltd [2002] NSWSC 1130; (2002) 56 NSWLR 210 Hunt v BP Exploration Co…
PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2014] WASCA 178
Citation 3 (Para 50)

…In this context, as was noted by the Court of Appeal of Western Australia in Pt Bayan Resources Tbk v BcBc Singapore Pte Ltd [2014] WASCA 178 per Buss JA at [253], McLure P and Murphy JA agreeing, the Foreign Judgments Act does not exclusively provide the measures which the Supreme Courts of the States and Territor…
Li v Zhou [2014] NSWCA 176
Citation 4

…well Ont 36 Kuwait Airways Corporation v Republic of Iraq and Bombardier Aerospace [2010] 2 SCR 571 Li v Zhou [2014] NSWCA 176; (2014) 310 ALR 66 Liberian Eastern Timber Corp v Government of Republic of Liberia (1987) 659 F Supp 606 McIvor v Watson [1960] HCA 43; (1960) 103 CLR 658 NML Capital Ltd v Republic of Arg…
TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5
Citation 5 (Para 52)

…tion operates of its own force to create a new charter of rights: TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; (2013) 87 ALJR 410 ( TCL Air Conditioner ) at [32].…
Commissioner of Police v Eaton [2013] HCA 2
Citation 6 (Para 48)

…requires consideration of, and close attention to, the particular provisions in question: Ferdinands at [54]-[55] and Commissioner of Police v Eaton [2013] HCA 2; (2013) 87 ALJR 267 at [48].…
Certain Lloyd's Underwriters v Cross [2012] HCA 56
Citation 7 (Para 41)

…Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47] and Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23]-[24], [68]-[70] and [88].…
PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2012] HCA 33
Citation 8 (Para 58)

…mmunity from the jurisdiction of the courts of Australia in a proceeding. In PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2012] HCA 33; (2012) 247 CLR 240 ( PT Garuda ), the plurality stated at [17] that in s 9 the term “jurisdiction” is used to identify the amenability of a defendan…
Australian Securities and Investments Commission v Hellicar [2012] HCA 17
Citation 9

…9 CLR 27 Alcom Ltd v Republic of Colombia [1984] AC 580 Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 Blatch v Archer (17…
Plaintiff M61/2010E v Commonwealth [2010] HCA 41
Citation 10

…d [1977] AC 373 Plaintiff M61/2010E v The Commonwealth of Australia (Offshore Processing Case) [2010] HCA 41; (2010) 243 CLR 319 Playa Larga (Owners of Cargo Lately Laden on Board) v I Congreso del Partido [1983] 1 AC 244 Pt Bayan Resources Tbk v BcBc Singapore Pte Ltd [2014] WASCA 178 PT Garuda Indonesia Ltd v Austr…
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Citation 11 (Para 41)

…g regard to the purpose and context of the provision in question: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47] and Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23]-[24], [68]-[70] and [88].…
Forsyth v Deputy Commissioner of Taxation [2007] HCA 8
Citation 12 (Para 87)

…In Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; (2007) 231 CLR 531 the plurality at [39] described terminology that there was a rebuttable presumption favouring an ambulatory approach to statutory construction as apt to mislead. They stated that what is involved is an exercise in statutory interpreta…
Ferdinands v Commissioner for Public Employment [2006] HCA 5
Citation 13 (Para 48)

…r statute effects an implied repeal of an earlier statute are well established. As was pointed out in Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 ( Ferdinands ) at [18], inconsistency is at the heart of the principle of implied repeal. The law presumes that one statute does…
Hore v Albury Radio Taxis Co-Op Society Ltd [2002] NSWSC 1130
Citation 14

…xation [2007] HCA 8; (2007) 231 CLR 531 Hore v Albury Radio Taxis Co-operative Society Ltd [2002] NSWSC 1130; (2002) 56 NSWLR 210 Hunt v BP Exploration Co (Libya) Limited [1980] HCA 7; (1980) 144 CLR 565 Jurisdictional Immunities of the State (Germany v Italy, Greece intervening) [2012] ICJ Reports 99 Kais v Abu Dhabi…
Solomons v District Court of New South Wales [2002] HCA 47
Citation 15

…04 CLR 158 Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119 Svenska Petroleum Exploration AB v Government of the Republic of Lithuania (No 2) [2007] QB 886 TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of A…
Re Macks; Ex parte Saint [2000] HCA 62
Citation 16 (Para 51)

…order for registration of a judgment is not a judgment for the purposes of section 27 of the Immunities Act . It pointed to Re Macks; Ex Parte Saint [2000] HCA 62; (2000) 204 CLR 158. In that case the High Court upheld the validity of a state act which provided that ineffectual Federal Court judgments were to b…
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2
Citation 17

…’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; (1997) 187 CLR 384 Commissioner of Police v Eaton [2013] HCA 2; (2013) 87 ALJR 267 Compania Naviera Vascongado v Steamship “Cristina” [1938] AC 485 Dorais v Saudi Arabian General Inves…
Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24
Citation 18

…13] HCA 5; (2013) 87 ALJR 410 Technical Products Pty Limited v State Government Insurance Office (Queensland) [1989] HCA 24; (1989) 167 CLR 45 Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529 Victory Transport Inc v Comisaria General 336 F2d 354 (2nd Cir 1964) Texts Cited: Australian Law Refo…
Hunt v BP Exploration Co (Libya) Ltd [1980] HCA 7
Citation 19 (Para 61)

…not required and there was no demand directed to the foreign State to appear. It pointed to what was said in Hunt v BP Exploration Co (Libya) Limited [1980] HCA 7; (1980) 144 CLR 565 at 573 that an application for the registration of a judgment under s 5 of the Reciprocal Enforcement of Judgments Act 1959 (Qld)…
McIvor v Watson [1960] HCA 43
Citation 20 (Para 60)

…plication to enforce an arbitral award was a civil proceeding in the High Court. Each of these cases was cited without disapproval in McIvor v Watson [1960] HCA 43; (1960) 103 CLR 658 at 664. In Kuwait Airways Corporation v Republic of Iraq and Bombardier Aerospace [2010] 2 SCR 571 ( Kuwait Airways v Iraq ), LeB…
Saraswati v The Queen [1990] HCATrans 232
Citation 21

…9) 14 ABC 191 Re Macks; Ex Parte Saint [2000] HCA 62; (2000) 204 CLR 158 Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119 Svenska Petroleum Exploration AB v Government of the Republic of Lithuania (No 2) [2007] QB 886 TCL Air Condit…
NML Capital Ltd v Argentina [2011] UKSC 31
Citation 22 (Para 69)

…practical reality to concern a commercial transaction, namely the question of liability under the bonds: see NML Capital Ltd v Republic of Argentina [2011] UKSC 31; [2011] 2 AC 495 ( NML Capital ) at [111] per Lord Collins JSC, Lord Walker JSC agreeing. I shall refer to this as the broader construction of “conce…

AI Chat coming soon

Medium Neutral Citation:	Firebird Global Master Fund II Ltd v Republic of Nauru [2014] NSWCA 360
Hearing dates:	13 and 14 October 2014
Decision date:	23 October 2014
Before:	Bathurst CJ at [1]; Beazley P at [210], Basten JA at [211]
Decision:	(1) With respect to the summons filed by Firebird Global Master Fund II Ltd in matter 2014/290988: (i) Grant the applicant leave to appeal. (ii) Dismiss the appeal and order that the summons filed in the Common Law Division on 9 May 2012 be dismissed. (iii) Order that the applicant pay the costs of the Republic of Nauru in this Court. (2) In relation to the summons filed by the Commonwealth of Australia in matter 2014/293924: (i) Refuse the applicant leave to appeal. (ii) No order as to the costs of the summons. Order a stay in the following terms: (1) Vacate all previous orders with respect to the coming into effect of order (1) made on 3 October 2014 in the Common Law Division (namely, registration of foreign judgment and consequential garnishee order set aside with costs). (2) Stay the order made and entered on 3 October 2014 setting aside (a) the registration of the foreign judgment and (b) the garnishee order made and issued on 10 September 2014 in favour of the applicant against Westpac Banking Corporation - until 5pm (Sydney time) on Monday, 27 October 2014. (3) Order that the garnishee order made not be complied with during the period of any stay with respect to the order setting aside the garnishee order.
Catchwords:	STATUTORY INTERPRETATION – principles - implied repeal of earlier statute - whether inconsistency between provisions concerning service - Foreign States Immunities Act 1985 (Cth) and Foreign Judgments Act 1991 (Cth) - whether provision was a code - scope of each Act - consideration of pre-existing equivalent state legislation WORDS AND PHRASES – “judgment” - Foreign States Immunities Act 1985 (Cth), s 27 - whether order to register judgment is a judgment JURISDICTION – sovereign immunity - application of immunity - whether application to register foreign judgment is a proceeding - Foreign States Immunities Act 1985 (Cth), s 9 WORDS AND PHRASES – “proceeding” - Foreign States Immunities Act 1985 (Cth), s 9 - whether application to register a foreign judgment is a proceeding JURISDICTION – sovereign immunity - waiver - submission to jurisdiction - exception - whether step in proceeding was for the purpose of asserting immunity - Foreign States Immunities Act 1985 (Cth), s 10 JURISDICTION – sovereign immunity - exceptions – whether proceeding “concerns” a commercial transaction - whether application to register a foreign judgment under Foreign Judgments Act 1991 (Cth) is a proceeding concerning a commercial transaction - Foreign States Immunities Act 1985 (Cth), ss 11(1), (3) STATUTORY INTERPRETATION – principles - consideration of text - consequences of particular interpretation - whether legislature intended provision to have an ambulatory meaning - whether principle of developing meaning of term in enactment with developing circumstances should be applied - role of legislature EVIDENCE – proof - sufficiency - Blatch v Archer (1774) 1 Cowper 63; (1774) 98 ER 969 - urgency of proceedings - lack of findings of fact by trial judge - certificate under Foreign States Immunities Act 1985 (Cth), s 41 - evidence of senior member of government JURISIDICTION – sovereign immunity from execution - exceptions - funds in bank accounts - whether commercial property - whether funds in use - whether in use for substantially commercial purposes PUBLIC INTERNATIONAL LAW – sovereign immunity - nature of sovereign immunity - whether the Foreign States Immunities Act 1985 (Cth) should be construed in light of international developments in the doctrine of sovereign immunity
Legislation Cited:	Acts Interpretation Act 1901 (Cth), ss 2C and 15AB Administration of Justice Act 1924 (NSW) Civil Jurisdiction and Judgments Act 1982 (UK), s 31 Civil Procedure Act 2005 (NSW), ss 8 and 9 Constitution, ss 51(xxix) and 109 Diplomatic Privileges and Immunities Act 1967 (Cth) Foreign Judgments Act 1973 (NSW), s 8 Foreign Judgments Act 1991 (Cth), ss 5-7, 12, 14, 17 and Pt 2 Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK) Foreign Sovereign Immunities Act 1976 (US) Foreign States Immunities Act 1985 (Cth), ss 9-27, 28, 30, 32, 38, 39, 41 Pts II, III and IV Judiciary Act 1903 (Cth), ss 79 and 80 Reciprocal Enforcement of Judgments Act 1959 (Qld), s 5 State Immunity Act 1978 (UK), s 3(1) State Immunity Act 1985 (Can), s 5 Supreme Court Act 1970 (NSW), ss 23 and 101(2) Supreme Court Civil Rules 2006 (SA), r 311(2) Trade Practices Act 1974 (Cth), Pt IV UN Convention on Jurisdictional Immunities of States and Their Property (2004) Uniform Civil Procedure Rules 2005 (NSW), rr 6.1A, 11.5, 18.2, 36.15, 36.16, 52.3, 53.6 and Pt 53
Cases Cited:	Abdi v Release on Licence Board (1987) 10 NSWLR 294 AIG Capital Partners Inc v Republic of Kazakhstan (National Bank of Kazakhstan intervening) [2006] 1 WLR 1420 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 Alcom Ltd v Republic of Colombia [1984] AC 580 Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 Blatch v Archer (1774) 1 Cowper 63; (1774) 98 ER 969 Bombardier Inc v AS Estonian Air and the Republic of Estonia (2013) 115 OR (3d) 183 Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; (1997) 187 CLR 384 Commissioner of Police v Eaton [2013] HCA 2; (2013) 87 ALJR 267 Compania Naviera Vascongado v Steamship “Cristina” [1938] AC 485 Dorais v Saudi Arabian General Investment Authority (2013) CarswellQue 9504 Dsane v Hagan [1962] Ch 193 Ex Parte Caucasian Trading Corporation Limited; In re A Bankruptcy Petition (1896) 1 QB 368 Export-Import Bank of the Republic of China v Grenada [2014] F 3d WL 4773451 C.A.2 Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 FG Hemisphere Associates LLC v Democratic Republic of the Congo [2010] 2 HKLRD 66 Firebird Global Master Fund II Ltd v Republic of Nauru [2014] NSWSC 1358 Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; (2007) 231 CLR 531 Hore v Albury Radio Taxis Co-operative Society Ltd [2002] NSWSC 1130; (2002) 56 NSWLR 210 Hunt v BP Exploration Co (Libya) Limited [1980] HCA 7; (1980) 144 CLR 565 Jurisdictional Immunities of the State (Germany v Italy, Greece intervening) [2012] ICJ Reports 99 Kais v Abu Dhabi Education Council (2011) Carswell Ont 36 Kuwait Airways Corporation v Republic of Iraq and Bombardier Aerospace [2010] 2 SCR 571 Li v Zhou [2014] NSWCA 176; (2014) 310 ALR 66 Liberian Eastern Timber Corp v Government of Republic of Liberia (1987) 659 F Supp 606 McIvor v Watson [1960] HCA 43; (1960) 103 CLR 658 NML Capital Ltd v Republic of Argentina [2011] UKSC 31; [2011] 2 AC 495 Philippine Admiral v Wallem Shipping (Hong Kong) Ltd [1977] AC 373 Plaintiff M61/2010E v The Commonwealth of Australia (Offshore Processing Case) [2010] HCA 41; (2010) 243 CLR 319 Playa Larga (Owners of Cargo Lately Laden on Board) v I Congreso del Partido [1983] 1 AC 244 Pt Bayan Resources Tbk v BcBc Singapore Pte Ltd [2014] WASCA 178 PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2012] HCA 33; (2012) 247 CLR 240 Re Ley; Ex Parte Best (1949) 14 ABC 191 Re Macks; Ex Parte Saint [2000] HCA 62; (2000) 204 CLR 158 Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119 Svenska Petroleum Exploration AB v Government of the Republic of Lithuania (No 2) [2007] QB 886 TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; (2013) 87 ALJR 410 Technical Products Pty Limited v State Government Insurance Office (Queensland) [1989] HCA 24; (1989) 167 CLR 45 Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529 Victory Transport Inc v Comisaria General 336 F2d 354 (2nd Cir 1964)
Texts Cited:	Australian Law Reform Commission, Foreign State Immunity, Report No 24 (1984) Bennion on Statutory Interpretation (5th ed 2008, LexisNexis) Davies, Bell and Brereton, Nygh’s Conflict of Laws in Australia, (9th ed 2014, LexisNexis Butterworths) Hazel Fox and Philippa Webb, The Law of State Immunity (3rd ed 2013, Oxford University Press) James Crawford, “International Legal and Foreign Sovereigns: Distinguishing Immune Transactions” (1983) 54 BYIL 75
Category:	Principal judgment
Parties:	In matter 2014/290988 Firebird Global Master Fund II Ltd (Applicant) Republic of Nauru (First respondent) Westpac Banking Corporation (ACN 007 457 141) (Second respondent) In matter 2014/293924 Commonwealth of Australia (Applicant) Firebird Global Master Fund II Ltd (First respondent) Republic of Nauru (Second Respondent) Westpac Banking Corporation (ACN 007 457 141) (Third respondent)
Representation:	In matter 2014/293924 Counsel: T G R Parker SC / J A C Potts (Applicant) R A Dick SC / D Barnett / N Oreb (First respondent) R Harris (solicitor) (Second respondent) Solicitors: Clayton Utz (Applicant) Ashurst (First respondent) Allens (Second respondent) In matter 2014/293924 Counsel: N M Bender (Applicant) T G R Parker SC / J A C Potts (First respondent) R A Dick SC / D Barnett / N Oreb (Second respondent) R Harris (solicitor) (Third respondent) Solicitors: King & Wood Mallesons (Applicant) Clayton Utz (First respondent) Ashurst (Second respondent) Allens (Third respondent)
File Number(s):	2014/290988; 2014/293924
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Citation: [2014] NSWSC 1358 Date of Decision: 03 October 2014 Before: Young AJA File Number(s): 2012/147600