Firebird Global Master Fund II Ltd v Republic of Nauru

The High Court of Australia considered an appeal by Firebird Global Master Fund II Ltd against the Republic of Nauru concerning the registration and enforcement of a foreign judgment. Firebird had obtained a judgment against Nauru in the Tokyo District Court and subsequently sought to register this judgment in the Supreme Court of New South Wales under the *Foreign Judgments Act 1991* (Cth). Nauru contended that it was entitled to sovereign immunity from both the jurisdiction of the Australian courts to register the judgment and from execution of that judgment.

The central legal issues before the High Court were whether Nauru was entitled to sovereign immunity from jurisdiction under the *Foreign States Immunities Act 1985* (Cth) in proceedings for the registration of a foreign judgment, and whether an exception for "commercial transactions" applied. Additionally, the Court had to determine if Nauru was entitled to immunity from execution under the *Foreign States Immunities Act* in relation to garnishee orders made against its bank accounts, considering whether the funds were "in use" or "set aside" and if the property constituted "commercial property" for the purposes of an exception. The Court also considered whether the *Foreign States Immunities Act* impliedly repealed provisions of the *Foreign Judgments Act* where inconsistencies arose, and whether the *Foreign States Immunities Act* mandated service of a summons prior to the registration of a foreign judgment under the *Foreign Judgments Act*.

The High Court reasoned that the *Foreign Judgments Act* established a comprehensive regime for the registration and enforcement of foreign judgments, which operates by utilising the ordinary processes of Australian courts. Section 6 of the *Foreign Judgments Act* mandates the registration of a foreign judgment upon satisfaction of prescribed criteria, and s 7 provides grounds for setting aside such registration, including lack of jurisdiction in the original court, which is linked to immunity under public international law only if the judgment debtor did not submit to that jurisdiction. The Court found that the *Foreign States Immunities Act* did not expressly address proceedings for the registration of foreign judgments, and its provisions did not override the procedural requirements of the *Foreign Judgments Act*. The Court concluded that Nauru's entitlement to immunity from jurisdiction did not preclude the registration of the foreign judgment, and that the exceptions for commercial transactions and commercial property were not applicable in this context.

The High Court varied the orders of the Court of Appeal, setting aside the order that the registration of the foreign judgment be dismissed, but otherwise dismissed the appeal.