Firebird Global Master Fund Ii Ltd v Republic of Nauru

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register the judgment concerned a commercial transaction, and whether the *Foreign Judgments Act 1991* (Cth) impliedly repealed or was inconsistent with the *Foreign States Immunities Act 1985* (Cth) in relation to the service of process for registering foreign judgments.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.