Kingdom of Saudi Arabia & Anor v Australian International Islamic College Board Inc

[2014] HCASL 37

KINGDOM OF SAUDI ARABIA & ANOR

v

AUSTRALIAN INTERNATIONAL ISLAMIC COLLEGE BOARD INC

[2014] HCASL 37
B33/2013

1. The respondent provides educational services to children of the Muslim faith.  The respondent sued the applicants in the Supreme Court of Queensland for damages for breach of two alleged undertakings to meet the respondent's costs of educating certain children.  The applicants sought a declaration that the Court lacked jurisdiction pursuant to the Foreign States Immunities Act 1985 (Cth) ("the Act").

2. On 10 September 2012, the primary judge (Martin J) issued the declaration sought by the applicants and dismissed the proceedings. His Honour held that each applicant was immune from the Court's jurisdiction by virtue of being a "foreign state" within the meaning of the Act. His Honour also held that it was unnecessary to determine whether the applicants' immunity was excluded on the basis that either or both of the agreements concerned a "commercial transaction" because that exclusion did not apply to proceedings, such as the present, which concerned "a payment in respect of a grant, a scholarship ... or a payment of a like kind".

3. On 28 May 2013 the Court of Appeal of the Supreme Court of Queensland (Holmes JA, White JA and Atkinson J agreeing) allowed the respondent's appeal.  Holmes JA held that the primary judge erred in holding that the present proceedings concerned "a payment in respect of a grant, a scholarship ... or a payment of a like kind".  Her Honour held that, in truth, the proceedings concerned a payment in respect of the provision of a service, namely education.  Her Honour held further that the subject matter of the proceedings concerned "commercial transactions", with the result that the applicants were not immune from the Court's jurisdiction. 

4. The applicants apply to this Court for special leave to appeal against the decision of the Court of Appeal.  The applicants' grounds of appeal do not raise a question of law of general public importance sufficient to require consideration by this Court.  In any event, an appeal to this Court would enjoy insufficient prospects of success.  Special leave should be refused.

5. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

S.M. Kiefel
6 March 2014 P.A. Keane