Petersen Energía Inversora, S.A.U. v Argentine Republic

[2025] NSWSC 1071

Supreme Court

New South Wales

Medium Neutral Citation:

Petersen Energía Inversora, S.A.U. v Argentine Republic [2025] NSWSC 1071

Hearing dates:

03 July 2025

Date of orders:

19 September 2025

Decision date:

19 September 2025

Jurisdiction:

Equity - Commercial List

Before:

Bell CJ

Decision:

1. The Defendant’s application for an order pursuant to r 12.11(c) of the Uniform Civil Procedure Rules 2005 (NSW) declaring that the Initiating Process has not been duly served on it be dismissed with costs.

2.        Direct the parties to confer in relation to an appropriate timetable on the remaining issues raised by the notice of motion dated 7 May 2025.

3.        List the matter for further directions before the Commercial List judge on 10 October 2025.

Catchwords:

PRIVATE INTERNATIONAL LAW – Jurisdiction – Service outside of the jurisdiction – Where defendant a foreign State – Foreign States Immunities Act 1985 (Cth) (FSIA) ss 23 and 24 – Hague Service Convention – Availability of diplomatic channel for service pursuant to s 24 of the FSIA where plaintiffs and defendant are signatories of the Hague Service Convention – Whether Hague Service Convention the exclusive means of serving a foreign state with initiating process – Whether service of process pursuant to s 24 of the FSIA consistent with Hague Service Convention or in violation of Australia’s international law obligations and international comity – Valid service of initiating process

Legislation Cited:

Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Act 2022 (Cth)

Foreign States Immunities Act 1985 (Cth) ss 3, 23, 24, 25, 26A, 27, 28, 40

Foreign Sovereign Immunities Act of 1976 (US)

State Immunity Act 1978 (UK) s 12(1)

Uniform Civil Procedure Rules 2005 (NSW) pt 11A

Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters arts 1, 2, 3, 5, 6, 8, 9, 10, 14, 15

Cases Cited:

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9

Australian Competition and Consumer Commission v Yellow Page Marketing BV [2010] FCA 1218

Awad v The Queen (2022) 275 CLR 421; [2022] HCA 36

Capral Ltd v DNV AS [2024] NSWSC 96

Caswell v Sony/ATV Music Publishing (Australia) Pty Ltd [2012] NSWSC 986

CC/DEVAS (Mauritius) v Republic of India [2021] FCA 975

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; [1992] HCA 64

Deputy Commissioner of Taxation v Ranguta Limited [2022] FCA 1572

Douglas v Republic of Nauru [2004] VSC 500; (2004) 187 FLR 221

Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31; [2015] HCA 43

General Dynamics United Kingdom Ltd v State of Libya [2022] AC 318; [2021] UKSC 22

Greylag Goose Leasing 1410 Designated Activity Company v PT Garuda Indonesia Ltd (2023) 111 NSWLR 550;
[2023] NSWCA 134

Harris v Attorney-General of The Commonwealth (1994) 52 FCR 386; (1994) 125 ALR 36

Jabiru Satellite Ltd v Societe Generale [2021] VSC 544

Maughan v Wilmot (No 2) [2017] EWCA Civ 1668; [2018] 1 WLR 2356

Mid-East Sales Ltd v United Engineering and Trading Co (PVT) Ltd [2014] EWHC 1457 (Comm)

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20

Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50

MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17

Petersen Energía Inversora, S.A.U. v The Republic of Argentina, 2025 ONSC 3593

Polites v The Commonwealth (1945) 70 CLR 60; [1945] HCA 3

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Rio Tinto Shared Services Pty Ltd v English Datasystems LLC (2021) 65 VR 25; [2021] VSC 660

Saudi Arabian Cultural Mission v Alramadi (2024) 305 FCR 581; [2024] FCA 1060

Trimbole v Commonwealth (1984) 155 CLR 186; [1984] HCA 83

Unión Fenosa Gas S.A. v. Arab Republic of Egypt [2020] 1 WLR 4732; [2020] EWHC 1723 (Comm)

Volkswagen Aktiengesellschaft v Schlunk, 486 US 694 (1988)

Yager v The Queen (1977) 139 CLR 28; [1977] HCA 10

Zhang v Zemin (2010) 79 NSWLR 513; [2010] NSWCA 255

Texts Cited:

Australian Law Reform Commission, Foreign State Immunity (Report No 24, 1984)

Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021 (Cth)

Hamilton, J et al, New South Wales Civil Procedure Handbook 2005 (Lawbook Co, 15th ed, 2025)

Herzfeld, P and T Prince Interpretation (3rd ed, LawBook Co, 2024)

Practical Handbook on the Operation of the Hague Service Convention (4th ed, 2016)

Category:

Procedural rulings

Parties:

Petersen Energía Inversora, S.A.U. (First Plaintiff)
Petersen Energía, S.A.U. (Second Plaintiff)
Eton Park Capital Management, L.P. (Third Plaintiff)
Eton Park Master Fund, Ltd. (Fourth Plaintiff)
Eton Park Fund, L.P. (Fifth Plaintiff)
Argentine Republic (Defendant)

Representation:

Counsel:

C Brown SC, R Harvey (Plaintiffs)
F Roughley SC, B Yin (Defendant)
Solicitors:

Gilbert + Tobin (Plaintiffs)
DLA Piper (Defendant)

File Number(s):

2024/89582

Publication restriction:

N/A

JUDGMENT

1. BELL CJ: These proceedings concern the question of whether the Republic of Argentina (the Republic) has been validly served in proceedings in which the Plaintiffs seek orders for the recognition and enforcement at common law of a final judgment of the Hon. Judge Preska of the United States District Court for the Southern District of New York on 15 September 2023 (Foreign Final Judgment).

2. By the Foreign Final Judgment, her Honour ordered that the Republic:

1. pay to the First and Second Plaintiffs damages and pre-judgment interest of USD $14,385,449,737.00;

2. pay to the Third to Fifth Plaintiffs damages and pre-judgment interest of USD $1,714,338,556.00; and

3. pay post-judgment interest to all Plaintiffs in accordance with US law on all above-mentioned amounts, calculated from the date of the entry of the Foreign Final Judgment at the rate of 5.42% per annum computed daily to the date of payment and compounded annually.

3. The Republic seeks, by Notice of Motion dated 7 May 2025, an order pursuant to r 12.11(c) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) declaring that the Commercial List Summons and Commercial List Statement (together the Initiating Process) have not been duly served on it. Other relief sought in the Notice of Motion was not the subject of argument before me, it being common ground that the interlocutory hearing be confined to questions of validity of service.

4. As explained more fully below, the Plaintiffs first sought to serve the Republic in accordance with s 24 of the Foreign States Immunities Act 1985 (Cth) (FSIA). This process commenced with a request in March 2024 to the Attorney-General for transmission by the Australian Department of Foreign Affairs and Trade (DFAT) to its equivalent department in the Republic of the Initiating Process and other specified documents as listed in s 24(2) of the FSIA. The delivery ultimately occurred on 6 January 2025 with the delivery of the relevant documents by an officer of the DFAT to the offices of the Argentine Ministry of Foreign Affairs, International Trade and Worship (Ministerio de Relaciones Exteriores, Comercio Internacional y Culto) (Argentine MFA) in Buenos Aires.

5. In the interim, and because of delays in confirmation of service of process through diplomatic channels, the Plaintiffs also purported to serve the Initiating Process on the Republic under the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention). Such service would have been consistent with s 23 of the FSIA but the Republic led evidence that the Argentine Central Authority designated pursuant to Article 2 of the Convention never received documents from the Registrar of the Supreme Court of New South Wales and so declined to issue any certificate under the Hague Convention.

6. In relation to the purported service under s 24 of the FSIA, the Plaintiffs relied upon a certificate made by a delegate of the Minister of Foreign Affairs pursuant to s 40 of the FSIA (the Section 40 Certificate). That certificate provided:

“I, Ben Milton Assistant Secretary of the General Counsel Branch of the Department of Foreign Affairs and Trade, having been duly delegated by the Minister for Foreign Affairs, DO HEREBY CERTIFY, pursuant to section 40 of the Foreign States Immunities Act 1985 (‘the Act’) that in the matter of Petersen Energia lnversora, S.A.U. v Argentine Republic (No. 2024/00089582) before the Supreme Court of New South Wales (‘the Proceeding’), the following documents were delivered by hand to the Ministry of Foreign Affairs, Trade and Worship in Buenos Aires at Esmeralda 1212, Ciudad Autónoma de Buenos Aires, Argentina in accordance with section 24 of the Act:

a)    the initiating process in the Proceeding, dated 7 March 2024;

b)    a translation of the initiating process in the Proceeding into Spanish (including a certification, in Spanish, signed by the translator);

c) a request for service of originating process on the Argentine Republic in the Proceeding, in accordance with section 24(2)(a) of the Act, dated 9 April 2024;

d) a statutory declaration for the purposes of section 24(2)(b) of the Act made by the plaintiffs legal representative on 9 April 2024.

The Ministry of Foreign Affairs, Trade and Worship of the Argentine Republic in Buenos Aires is the organ of the government of the Argentine Republic that is equivalent to the Australian Department of Foreign Affairs and Trade. The initiating process and accompanying documents listed above were delivered by Lorenzo Araujo Velosa, Head of Mission Driver and Administrative Assistant at the Australian Embassy in Buenos Aires on 6 January 2025 at 12pm.

GIVEN under my hand and the seal of the Department of Foreign Affairs and Trade this 21st day of January 2025.

Ben Milton

Delegate of the Minister for Foreign Affairs”

7. The Republic, although being fully cognisant of the claims contained in the Initiating Process, contended that both attempts at service by the Plaintiffs were ineffective for different reasons.

8. Its first argument related to the construction of s 24 of the FSIA and was broadly to the effect that the purported service pursuant to that section was in breach of or inconsistent with Australia’s international law obligations under the Hague Service Convention and considerations of international comity. The Republic contended that, notwithstanding the terms of s 24 permitting service through the diplomatic channel, such service was not available or effective because, following Australia’s accession to the Hague Service Convention, that Convention provided the exclusive route for service on a foreign state which was also party to that Convention such that s 24 ceased to be available or could not be validly complied with.

9. The Plaintiffs countered this contention in three ways: first, pointing to the alternative modes of service provided for in ss 23 and 24 of the FSIA, and contesting the Republic’s argument that the Convention provided the exclusive route for service on a foreign state; second, invoking Article 9(2) of the Hague Service Convention which, they submitted, preserved the possibility of service through the diplomatic channel and thus pursuant to s 24 of the FSIA; and third, asserting an entitlement to default judgment pursuant to r 11A.11 of the UCPR.

10. The Republic also contended that s 24 had not been complied with because the translation of the Initiating Process which was required to be delivered under that section, although accurate, was a translation of an unfiled and unstamped copy of the Initiating Process such that the purported service pursuant to s 24 was ineffective for that additional reason.

11. To the extent that the Plaintiffs endeavoured to serve the Initiating Process in accordance with the Hague Service Convention and s 23 of the FSIA, as noted above, the Republic’s broad contention was that documents apparently sent by the Registry of this Court were never received by the Argentine Central Authority so that they could then be served in accordance with the Argentine Republic’s domestic laws. Unchallenged evidence to this effect was provided in the Affidavit of Aldana Rohr dated 12 June 2025.

12. Before considering these competing contentions in greater detail, it is first necessary to set out key provisions of the FSIA and the Hague Service Convention, making some passing observations in relation to the parties’ submissions in relation thereto. These reasons then set out the steps taken by the Plaintiffs to serve the Initiating Process on the Republic before returning to consider the competing arguments in greater detail.

The FSIA

13. As I observed in Greylag Goose Leasing 1410 Designated Activity Company v PT Garuda Indonesia Ltd (2023) 111 NSWLR 550; [2023] NSWCA 134 at [19] (Greylag Goose), the FSIA was the direct product of the Australian Law Reform Commission’s (ALRC) report on foreign state immunitywhich, inter alia, reviewed overseas models for service on and by foreign states: see ALRC, Foreign State Immunity (Report No 24, 1984) at [147]-[151] (ALRC Report).  In Greylag Goose, I went on to note that:

“[20]   The bridge or lineage between the ALRC Report and the FSIA is made plain by recourse to both the Second Reading Speech for the Foreign State Immunities Bill 1985 (Cth) and the explanatory memorandum to the FSIA, the latter of which, at p 2, states clearly that:

‘The proposed legislation is based upon a report and recommendations of the Law Reform Commission (ALRC 24, Foreign State Immunity (1984)) which involved a thorough review of developments in other countries and at the international level, including the work of the International Law Commission.’

[21]    To similar effect, the then Attorney-General Bowen (Commonwealth, Parliamentary Debates (Hansard), House of Representatives, 21 August 1985, 141) noted that:

‘The legislation will implement the recommendations of the Law Reform Commission in report No. 24 on foreign state immunity; which was tabled in the Parliament on 10 October 1984. The report was prepared after thorough examination of similar legislation in other countries and extensive consultation with relevant organisations and individuals.’

[22]   As Nettle and Gordon JJ observed in Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31; [2015] HCA 43 at [173], ‘the ALRC report is significant because, although it cannot displace the clear meaning of the Immunities Act, it assists in ascertaining the legislative context and purpose and the particular mischief that the legislation is seeking to remedy’.”

14. At the time the FSIA was enacted in 1985, Australia had not acceded to the Hague Service Convention and did not do so until 15 March 2010.

15. Sections 23 and 24 fall within Part III of the FSIA, entitled “Service and judgments”. Section 23 provides:

“23   Service of initiating process by agreement

Service of initiating process on a foreign State or on a separate entity of a foreign State may be effected in accordance with an agreement (wherever made and whether made before or after the commencement of this Act) to which the State or entity is a party.”

“Agreement” under the FSIA is defined in s 3 as an agreement in writing including a treaty or other international agreement. The ALRC Report observed at [149] that “there can be no objection to holding a foreign state to its agreement”.

16. It was not in contention that the Hague Service Convention was an agreement within the meaning of s 23 of the FSIA. Accordingly, the effect of s 23 is that service may be effected on a foreign state which has also acceded to the Hague Service Convention in accordance with the terms of the Convention.

17. Section 24 of the FSIA, however, provides a different means of service than that provided for under the Hague Service Convention. It is as follows:

“24   Service through the diplomatic channel

(1)    Initiating process that is to be served on a foreign State may be delivered to the Attorney‑General for transmission by the Department of Foreign Affairs to the department or organ of the foreign State that is equivalent to that Department.

(2)    The initiating process shall be accompanied by:

(a)    a request in accordance with Form 1 in the Schedule;

(b)    a statutory declaration of the plaintiff or applicant in the proceeding stating that the rules of court or other laws (if any) in respect of service outside the jurisdiction of the court concerned have been complied with; and

(c)    if English is not an official language of the foreign State:

(i)    a translation of the initiating process into an official language of the foreign State; and

(ii)    a certificate in that language, signed by the translator, setting out particulars of his or her qualifications as a translator and stating that the translation is an accurate translation of the initiating process.

(3)    Where the process and documents are delivered to the equivalent department or organ of the foreign State in the foreign State, service shall be taken to have been effected when they are so delivered.

(4)    Where the process and documents are delivered to some other person on behalf of and with the authority of the foreign State, service shall be taken to have been effected when they are so delivered.

(5)    Subsections (1) to (4) (inclusive) do not exclude the operation of any rule of court or other law under which the leave of a court is required in relation to service of the initiating process outside the jurisdiction.

(6)    Service of initiating process under this section shall be taken to have been effected outside the jurisdiction and in the foreign State concerned, wherever the service is actually effected.

(7)    The time for entering an appearance begins to run at the expiration of 2 months after the date on which service of the initiating process was effected.

(8)    This section does not apply to service of initiating process in a proceeding commenced as an action in rem.”

18. Form 1 in the Schedule referred to in s 24(2)(a) is in the following terms:

“Request For Service Of Originating Process On A Foreign State

TO: The Attorney-General of the Commonwealth

A proceeding has been commenced in (name of court, tribunal, etc.) against (here insert name of foreign State).

The proceeding concerns (short particulars of the claim against the foreign State).

In accordance with section 24 of the Foreign States Immunities Act 1985, enclosed are:

(a)   the initiating process in the proceeding;

(b)   a statutory declaration;

(c)   * a translation of the initiating process into (name of language), an official language of the foreign State; and

(d)   * a certificate signed by the translator,

and it is requested that this Form, the initiating process, the statutory declaration, * the translation and the certificate be transmitted by the Department of Foreign Affairs to the department or organ of the foreign State that is equivalent to that Department.

It is further requested that, when service of the initiating process and other documents has been effected on the foreign State in accordance with that Act, the Minister for Foreign Affairs certify accordingly under section 40 of that Act, and forward the certificate to (name and address of person to whom certificate of service should be forwarded).

DATED this   day of      19

(signature of the plaintiff or applicant)

--------------------------------------------------

* delete if not applicable”

19. In relation to what became s 24 of the FSIA, the ALRC Report observed at [148] that:

“Service through the diplomatic channel. All the overseas legislation provides for service through the forum state’s foreign ministry. Because it is the only method of service which can be said with some certainty to be workable without the prior agreement of the foreign state, any proposal for reform must make provision for it. It is guaranteed to bring the suit to the attention of senior officials of the foreign state, fulfilling the criterion that service must give the state adequate notice. Equally importantly the diplomatic channel is least likely to cause offence to recipients. When offended by the use of other methods of service, states frequently point out that the diplomatic channel should have been used. It is routinely used by a number of civil law states.” (footnotes omitted)

20. Both ss 23 and 24 are permissive, on their face providing alternative means of serving a foreign state: “may be effected”; “may be delivered …”. Some reliance was placed in argument by the Republic on [151] of the ALRC Report to suggest that s 24 was subordinate to s 23, such that where an agreement between states had been reached as to service, that was the only means by which service could be effected. That paragraph stated:

“Where the foreign state has agreed upon a method of service that method will be followed. But if recourse is had to the diplomatic channel it is recommended that a number of ancillary requirements be specified.” (emphasis added)

The conjunctive “but” tends strongly against the Republic’s contention, and there is nothing in the text of the statute that supports such a contention. The simple point being made in [151] of the ALRC Report was not to mandate service only by the method agreed but to recommend the specification of “ancillary requirements” beyond mere service by delivery to the equivalent department or organ of the foreign state. This was reflected in the terms of s 24(2) of the FSIA. Further, the ALRC Report characterised the requirement for the provision of a translation of the court documents to be served through the diplomatic channel as a “courtesy”: at [151].

21. On 18 February 2022, amendments were made to the FSIA through the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Act 2022 (Cth) (the Amending Act), which, inter alia, amended the definition of “initiating process” under s 3(1), inserted s 26A, and clarified language in ss 27 and 28.

22. Section 3(1) of the FSIA now defines “initiating process” as:

“initiating process means an instrument (including a statement of claim, application, summons, writ, order or third party notice):

(a)    by which a proceeding is commenced; or

(b)    by reference to which a person becomes a party to a proceeding.

Note: Examples of an initiating process are:

(a)    a summons for the registration of a foreign judgment; and

(b)    an application for the recognition or enforcement of a foreign award.”

23. Section 26A of the FSIA provides that:

“26A   Judgments and orders in ex parte proceedings

Judgments

(1)    A judgment (other than an interlocutory judgment) must not be entered against a foreign State in ex parte proceedings.

(2)    A judgment (other than an interlocutory judgment) must not be entered against a separate entity of a foreign State in ex parte proceedings unless the court is satisfied that, in the proceedings, the separate entity is not immune.

Orders

(3)    An order for the registration of a foreign judgment, or for the recognition or enforcement of a foreign award, must not be made against a foreign State in ex parte proceedings.

(4)    An order for the registration of a foreign judgment, or for the recognition or enforcement of a foreign award, must not be made against a separate entity of a foreign State in ex parte proceedings unless the court is satisfied that, in the proceedings, the separate entity is not immune.”

24. Furthermore, s 27(1) of the FSIA which had, until 17 February 2022, provided that:

“27   Judgment in default of appearance

(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”

was amended by the Amending Act as follows:

“79    Subsection 27(1)

Omit ‘shall not be entered against a foreign State’, substitute ‘must not be entered against a foreign State, or an order for the registration of a foreign judgment, or for the recognition or enforcement of a foreign award, in default of appearance must not be made against a foreign State,’.”

25. Each party sought to derive some support for their competing positions by reason of these amendments. The Republic, referring to and quoting from the Explanatory Memorandum to the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021 (Cth), submitted that the expressed rationale behind the amendments was to:

“‘ensure that foreign States are afforded appropriate procedural protections’ and ensure that ‘Australian courts can enter a judgment, register a foreign judgment, and recognise or enforce a foreign award against a foreign State consistently with Australia’s obligations under international law to afford that foreign State immunity in certain circumstances’.”

The Republic submitted that those express statements of purpose “reiterate the Parliamentary intention that the FSI Act, including relevantly s 27(1)(a) and the service requirements to which it refers, not operate contrary to Australia’s international law obligations and the procedural protections to which foreign States are entitled as a matter of international law (including by reason of a treaty with Australia).”

26. The Plaintiffs contended that the amendments had no connection with the Hague Service Convention and that, as evidenced by the Explanatory Memorandum, their purpose was to respond to the High Court’s decision in Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31; [2015] HCA 43 (Firebird). The Explanatory Memorandum stated:

“The effect of the majority judgment [in Firebird] is that, when considering whether to enter judgment in an ex parte proceeding against a foreign State, including to register a foreign judgment, a court need not be satisfied either that the foreign State has been served with the initiating process in accordance with the Act, nor that the foreign State is not immune in the proceeding. Accordingly, the Bill clarifies the application of the FSI Act to ex parte proceedings to ensure that foreign States are afforded appropriate procedural immunities, and to reduce the risk that an Australian court could register a foreign judgment against a foreign State in circumstances where Australia is obliged to afford that foreign State immunity under customary international law.”

27. The Explanatory Memorandum to the Amending Act made no reference to the Hague Service Convention. The 2022 amendments were plainly a response to Firebird and do not bear directly on the questions of construction raised in this particular case. Even if they did, their significance evaporates if service under s 24 of the FSIA was consistent with Article 9(2) of the Hague Service Convention, as the Plaintiffs contended (see further at [100]-[108] below).

28. The Plaintiffs also argued that it was significant that, despite ratifying the Hague Service Convention in 2010, s 24 of the FSIA has never been amended.

29. The current terms of s 27 of the FSIA, also within Part III, should also be noted:

“27   Judgments or orders in default of appearance

(1)    A judgment in default of appearance must not be entered against a foreign State, or an order for the registration of a foreign judgment, or for the recognition or enforcement of a foreign award, in default of appearance must not be made 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 must not be entered against a separate entity of a foreign State, or an order for the registration of a foreign judgment, or for the recognition or enforcement of a foreign award, in default of appearance must not be made against a separate entity of a foreign State, unless the court is satisfied that, in the proceeding, the separate entity is not immune.”

30. Finally, the terms of s 40 of the FSIA should be noted, recalling that a Section 40 Certificate was issued following the purported service of the Initiating Process through diplomatic channels: see [6] above. That section provides:

“40   Certificate as to foreign State etc.

(1) The Minister for Foreign Affairs may certify in writing that, for the purposes of this Act:

(a)    a specified country is, or was on a specified day, a foreign State;

(b)    a specified territory is or is not, or was or was not on a specified day, part of a foreign State;

(c)    a specified person is, or was at a specified time, the head of, or the government or part of the government of, a foreign State or a former foreign State; or

(d) service of a specified document as mentioned in section 24 or 28 was effected on a specified day.

(2) The Minister for Foreign Affairs may, either generally or as otherwise provided by the instrument of delegation, delegate by instrument in writing to a person his or her powers under subsection (1) in relation to the service of documents.

(3)    A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Minister.

(4)    A delegation under subsection (2) does not prevent the exercise of the power by the Minister.

(5)    A certificate under this section is admissible as evidence of the facts and matters stated in it and is conclusive as to those facts and matters.”

31. It may be noted that s 40(1)(d) of the FSIA treats the delivery of “a specified document as mentioned in s 24” as “service” of that document, and it is that delivery which effects the service of the document. In Zhang v Zemin (2010) 79 NSWLR 513; [2010] NSWCA 255, Spigelman CJ described “[t]he provision of a conclusory certificate by the Minister for Foreign Affairs under s 40” as “a central feature of the legislative regime”: at [86]. In Douglas v Republic of Nauru [2004] VSC 500; (2004) 187 FLR 221 at [19]-[21] (Douglas), Ashley J held that:

“[19] It would be nonsensical to read s. 40(1)(d) and (5) to mean that the facts or matters of which a pertinent certificate could conclusively speak are limited to the date of service of documents. No such argument was raised before me. Such an argument would leave open the critical question whether the initiating process was served in accordance with s. 24; and the sense of the provision is opposed to that question being left open.

[20] It follows from what I have thus far said that s. 40(1)(d)should be read as authorising the Minister or his delegate to certify that ‘good’ service of identified documents was effected on a specified day. So to conclude is wholly compatible with the important position assumed by DFAT, and with the role of a certificate as described at para 151 of the LRC Report. But the question is then whether the Minister or his delegate is to be confined to certifying the facts upon which he or she relied in concluding that service effected in a particular way was good service; or whether the Minister or his delegate should be entitled to certify facts together with conclusions reached in reliance upon such facts, or to certify simply the conclusions reached.

[21] Bearing in mind the particular expertise of DFAT which must be brought to bear in identifying matters such as the equivalent department or organ of the foreign State, and in concluding whether documents are able to be transmitted to that department or organ in Australia, I consider that s. 40(1)(d)and (5) in combination contemplate that the certificate may address both primary facts and conclusions. The latter, if not themselves ‘facts’, are at least ‘matters’.”

32. There is a tension between this decision and the more recent decision of Raper J in Saudi Arabian Cultural Mission v Alramadi (2024) 305 FCR 581; [2024] FCA 1060 at [117] (Alramadi) in which her Honour held that a s 40 certificate can only certify that service was effected by delivery of particular documents on a particular day (and, of the other matters in s 40(1)) but cannot certify that it was effectively or validly made or served, or effected. Her Honour indicated at [126] that where she parted company with Ashley J was that there was “nothing in the text of s 40, nor in the LRC Report which lends support for the view that the certificate (even if buttressed by pertinent facts) would be conclusive of matters of law”. If her Honour’s reservation extended to the effecting of service of an initiating process on a foreign state, the combination of s 40(1)(d) and s 40(5) provides a clear and contrary textual indication to her Honour’s conclusion. To the extent that there is a difference between them, I prefer the reasoning of Ashley J in Douglas.

Hague Service Convention

33. Australia ratified the Hague Service Convention on 15 March 2010, and the Convention entered into force for Australia on 1 November 2010. The Republic ratified the Convention on 2 February 2001 and it entered into force on 1 December 2001.

34. Article 1 of the Hague Service Convention was a central plank in the Republic’s argument. It relevantly provides:

“The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.”

35. The Republic contended that this article had the effect of making service under the Hague Service Convention exclusive, and that, as it was an international instrument, any breach of it would be a breach of Australia’s international law obligations. This in turn fed into an argument, explained and explored more fully below, that s 24 of the FSIA should not be interpreted in a way which involved a violation of Australia’s international law obligations. This reduced to an argument that, following Australia’s accession to the Hague Service Convention in 2010, s 24 of the FSIA ceased to provide a valid method for service on a foreign state which was also a signatory to the Convention.

36. The Plaintiffs resisted the premise of this argument but contended, in any event, that the Convention contemplated service through diplomatic channels in the second sentence of Article 9 such that service effected in that way under s 24 of the FSIA did not involve any breach of Australia’s international law obligations or international comity. Article 9 relevantly provides:

“Each Contracting State shall be free, in addition, to use consular channels to forward documents, for the purpose of service, to those authorities of another Contracting State which are designated by the latter for this purpose.

Each Contracting State may, if exceptional circumstances so require, use diplomatic channels for the same purpose.”

37. It was ultimately common ground that “exceptional circumstances” comprehended the service of process on a foreign state. This was consistent with what is stated in the Practical Handbook on the Operation of the Hague Service Convention (4^th ed, 2016) (Practical Handbook) to which both parties referred in the course of their oral and written submissions. The relevant passage of the Practical Handbook was as follows:

“The applicability of the Service Convention to service upon foreign State or State official

25.    Importantly, where service is to be effected upon a foreign State or State official, the [Hague Service] Convention would apply because there would typically be a need to transmit a document abroad. Accordingly, the channels of transmission provided for in the [Hague] Service Convention must be used (the Convention is exclusive [34]; see paras 50 et seq). In these types of cases, documents may be transmitted, for instance, via the Central Authority or via diplomatic channels under Article 9(2) of the Convention (see paras 239 et seq). It should be noted that service on a State through diplomatic channels constitutes one of the ‘exceptional circumstances’ under which this means of transmission remains in conformity with the Convention (Art. 9(2)).” (emphasis added)

38. On its face, the Republic’s acceptance that “exceptional circumstances” in Article 9 included service on a foreign state was destructive of its argument that service in accordance with s 24 was inconsistent with the Convention and, thereby, involved a violation of Australia’s international law obligations and international comity. The Republic countered this argument by contending that the expression “for the same purpose” in the second sentence of Article 9 did not refer simply to the “purpose of service” but to forwarding documents, that is, transmitting documents, for the purpose of service.

39. Article 2 of the Hague Service Convention provides that “[e]ach Contracting State shall designate a Central Authority which will undertake to receive requests for service coming from other Contracting States and to proceed in conformity with the provisions of Articles 3 to 6.” The Republic argued that Article 3 established the “main channel” for service under the Hague Service Convention. It provides:

“The authority or judicial officer competent under the law of the State in which the documents originate shall forward to the Central Authority of the State addressed a request conforming to the model annexed to the present Convention, without any requirement of legalisation or other equivalent formality. The document to be served or a copy thereof shall be annexed to the request. The request and the document shall both be furnished in duplicate.”

40. The terms of Articles 8, 10, 14 and 15 of the Hague Service Convention should also be noted for completeness, as reference was made to them by the parties in the course of argument. They respectively provide:

“Article 8

Each Contracting State shall be free to effect service of judicial documents upon persons abroad, without application of any compulsion, directly through its diplomatic or consular agents.

Any State may declare that it is opposed to such service within its territory, unless the document is to be served upon a national of the State in which the documents originate.

Article 10

Provided the State of destination does not object, the present Convention shall not interfere with -

a)    the freedom to send judicial documents, by postal channels, directly to persons abroad,

b)    the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,

c)    the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.

Article 14

Difficulties which may arise in connection with the transmission of judicial documents for service shall be settled through diplomatic channels.

Article 15

Where a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and the defendant has not appeared, judgment shall not be given until it is established that –

a)    the document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or

b)    the document was actually delivered to the defendant or to his residence by another method provided for by this Convention, and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.

Each Contracting State shall be free to declare that the judge, notwithstanding the provisions of the first paragraph of this Article, may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled –

a)    the document was transmitted by one of the methods provided for in this Convention,

b)    a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document,

c)    no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.

Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures.”

Commencement of proceedings and attempted service

41. On 7 March 2024, the Plaintiffs commenced their proceedings in the Commercial List of this Court.

42. On 14 March 2024, Gilbert + Tobin (G+T), on behalf of the Plaintiffs, transmitted a formal request (the Request for Service) to the Attorney-General of the Commonwealth (AGD). The request was made, purportedly pursuant to s 24 of FSIA, to procure DFAT to deliver the Initiating Process, along with certain other documents, to the equivalent government department or organ of the Republic. The Request for Service enclosed the following documents (the FSIA Documents):

1. the Initiating Process;

2. a statutory declaration;

3. a “notice to defendant served outside of Australia”;

4. a translation of the Initiating Process, statutory declaration and notice to defendant into Spanish, a de facto official language of the Republic; and

5. a certificate signed by a qualified translator.

43. On 9 April 2024, the AGD sent a letter to G+T, requesting an updated version of the FSIA Documents. G+T sent the updated version of the FSIA Documents to the AGD by post that same day.

44. By email on 12 April 2024, the AGD advised G+T that the updated version of the FSIA Documents had been forwarded to DFAT for the purpose of delivering the documents to the Republic. In that email, the AGD confirmed that, when service had been effected, a certificate (as contemplated by s 40 of the FSIA) would be provided to confirm that service had been effected.

45. Correspondence between G+T and the AGD continued between April and late October 2024 in which, with a degree of polite frustration, G+T followed up the status of the service of the s 24 documents on the Republic.

46. By email on 6 November 2024, the AGD advised G+T that:

“The Attorney-General’s Department (AGD) and the Department of Foreign Affairs and Trade (DFAT) note the concerns of Gilbert + Tobin lawyers. We wish to reiterate that we have been doing everything in our control to expedite service of the documents, noting your request that DFAT should seek to effect service on Argentina through the diplomatic channel.

DFAT is only able to effect service through the diplomatic channel where it is open for it to do so. As you are aware, DFAT has made requests to both the Embassy of the Argentine Republic in Australia and the Ministry of Foreign Affairs, International Trade and Worship (MFA) in Buenos Aires in order to effect service in this matter. The Embassy and the Ministry have, to date, declined DFAT’s requests. It is for this reason that, to date, DFAT has been unable to effect service in this matter through the diplomatic channel.

As previously communicated, pursuing service outside of the main channel under the Hague Convention presents a risk that Argentina will not accept the documents as valid for the purposes of subsequently effecting service. Under Article 8, Argentina may declare that it is opposed to service. Under Article 9, delivery on the designated authority does not constitute service for the purpose of the Hague Convention. Further, Argentina has not formally designated an authority under Article 9 of the Hague Convention.”

47. The Summons, List Statement and other documents as listed in s 24(2) of the FSIA were delivered on 6 January 2025 by an officer of the DFAT to the offices of the Argentine MFA in Buenos Aires. So much is established by the Section 40 Certificate which, by s 40(5), is admissible as evidence of the facts and matters stated in it and is conclusive as to those facts and matters.

48. By email on 21 January 2025, the AGD advised G+T that DFAT had hand delivered the Initiating Process and FSIA Documents to the Argentine MFA on 6 January 2025, purportedly in the manner contemplated by s 24 of the FSIA. By the same email of 21 January 2025, the AGD attached the Section 40 Certificate.

49. On 26 February 2025, G+T received a letter from the Australian Government Solicitor stating that:

“3.    … on 4 February 2025, the Argentine Ministry returned the initiating process and accompanying documents, stating that the documents failed to cite the Hague Convention or include the relevant form annexed to that Convention.

4.    I draw this development to your attention only for the purposes of transparency.

5.    Whilst it is a matter for Mr Lynch and his clients, you may wish to consider whether it would be appropriate to bring this development to the Court’s attention in the Supreme Court proceedings. Again, this would only be for transparency reasons, rather than to assist that Court on the question of service, in any material way.”

50. The Plaintiffs accepted that the FSIA Documents did not cite the Hague Service Convention or include the form annexed to that Convention but contended that the absence of the form and the Republic’s rejection of service lacked legal significance in ascertaining whether service had been validly effected through diplomatic channels under s 24 of the FSIA.

51. Between the Plaintiffs’ formal request to the Attorney-General in March 2024 and the receipt of the Section 40 Certificate in January 2025, and by reason of the fact that the Plaintiffs had not yet received a certificate confirming that service had been effected under the FSIA, on 31 July 2024, the Plaintiffs filed an application with the Registrar of the Supreme Court of New South Wales, together with documents required by Part 11A of the UCPR, to effect service on the Republic in accordance with the Hague Service Convention.

52. Rule 11A.4 of the UCPR provides:

“11A.4   Application for request for service abroad

(1)    A person may apply to the Registrar, in the Registrar’s capacity as a forwarding authority, for a request for service in a Convention country of a local judicial document.

(2)    The application must be accompanied by 3 copies of each of the following documents—

(a)    a draft request for service abroad, which must be in the approved form,

(b)    the document to be served,

(c)    a summary of the document to be served, which must be in the approved form,

(d)    if, under Article 5 of the Hague Convention, the Central Authority or any additional authority of the country to which the request is addressed requires the document to be served to be written in, or translated into, the official language or one of the official languages of that country, a translation into that language of both the document to be served and the summary of the document to be served.

(3)    The application must contain a written undertaking to the Court, signed by the legal practitioner on the record for the applicant in the proceedings to which the local judicial document relates or, if there is no legal practitioner on the record for the applicant in those proceedings, by the applicant—

(a)    to be personally liable for all costs that are incurred—

(i)    by the employment of a person to serve the documents to be served, being a person who is qualified to do so under the law of the Convention country in which the documents are to be served, or

(ii)    by the use of any particular method of service that has been requested by the applicant for the service of the documents to be served, and

(b)    to pay the amount of those costs to the Registrar within 28 days after receipt from the Registrar of a notice specifying the amount of those costs under rule 11A.6(3), and

(c)    to give such security for those costs as the Registrar may require.

(4)    The draft request for service abroad—

(a)    must be completed (except for signature) by the applicant, and

(b)    must state whether (if the time fixed for entering an appearance in the proceedings to which the local judicial document relates expires before service is effected) the applicant wants service to be attempted after the expiry of that time, and

(c)    must be addressed to the Central Authority, or to an additional authority, for the Convention country in which the person is to be served, and

(d)    may state that the applicant requires a certificate of service that is completed by an additional authority to be countersigned by the Central Authority.

(5)    Any translation required under subrule (2)(d) must bear a certificate (in both English and the language used in the translation) signed by the translator stating—

(a)    that the translation is an accurate translation of the documents to be served, and

(b)    the translator’s full name and address and his or her qualifications for making the translation.”

53. The documents filed to initiate that application (collectively, the Hague Documents) were:

1. the Request for Service Abroad of Judicial Documents (Request for Service Abroad);

2. the Summary of the Documents to be Served (Summary);

3. the Summons;

4. the List Statement;

5. all the documents above translated professionally into Spanish;

6. a certificate from the translator, certifying the Spanish translations; and

7. a “solicitor Undertaking letter”, undertaking to pay the costs of effecting service.

54. The address specified in the application, to which the Hague Documents were to be transmitted, was Esmeralda 1212, C1007ABR, Ciudad Autónoma de Buenos Aires, Argentina.

55. On 27 August 2024, G+T received a letter from the Principal Registrar of the Supreme Court of New South Wales (the Principal Registrar) advising that the Hague Documents had been forwarded to “the Authority in the Argentina”. Mr Lynch of G+T deposed that he:

“understood that to mean that the Hague Documents had been forwarded by the Principal Registrar, in its capacity as forwarding authority, to the [Argentine MFA], in its capacity as the Central Authority for the Republic (Central Authority), as the Request for Service abroad stated the identity and address of the receiving authority as that of the Central Authority.”

56. Ms Aldana Rohr, the Director of the International Legal Assistance Department (DAJIN) at the Argentine MFA, provided evidence by affidavit filed 13 June 2025 that the Argentine MFA is the designated “Central Authority” of the Argentine Republic.

57. Further, Ms Rohr confirmed that DAJIN exclusively performs the duties of the Argentine MFA as the designated Central Authority. Ms Rohr confirmed that DAJIN has authority to receive requests for service from a forwarding authority of another State, and is obliged to proceed in accordance with the provisions of the Hague Service Convention.

58. On 30 October 2024, G+T emailed various addresses including “[email protected]” and “[email protected]”, inquiring as to whether the Hague Documents had been served by the Argentine MFA (as Central Authority) on the Republic:

“We represent Petersen Energía Inversora, S.A.U., Petersen Energía, S.A.U., Eton Park Capital Management, L.P., Eton Park Master Fund, Ltd, and Eton Park Fund, L.P., in a lawsuit against the Argentine Republic filed in the Supreme Court of New South Wales (Australia) (the NSWSC).

On 30 July 2024, we filed with the Registry of the NSWSC (the Registry) copies of:

1.    a Commercial List Summons to appear in that Court in relation to proceeding number 2024/89582, filed on 7 March 2024;

2.    a Commercial List Statement filed on 7 March 2024;

3.    a Request for Service Abroad dated 30 July 2024; and

4.    a Summary of the Documents to be Served dated 30 July 2024,

and certified Spanish translations of each of the documents listed above.

These documents were to be delivered to the Ministry of Foreign Affairs, International Trade and Worship (the Ministry) to be served on the Argentine Republic (sovereign State) as defendant to the aforesaid proceeding, in accordance with the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Convention).

It appears that these documents were received by the Ministry, in its capacity as Central Authority for the Argentine Republic, on or around 27 August 2024. We have not yet received a certificate as contemplated by Article 6 of the Hague Convention, nor have we received any other form of confirmation that the relevant documents have been properly served on the Argentine Republic. We would be grateful if you would please:

1.    confirm whether the documents listed above have been served on the Argentine Republic; and

2.    either (a) send to us and / or the Registry the certificate confirming service, as contemplated by Article 6 of the Hague Convention, if service has been effected, or (b) explain why service has not yet been effected.”

59. On 3 December 2024, G+T sent a further email to various addresses including those referred to immediately above, stating that:

“We refer to our enquiry below in relation to proceeding no. 2024/89582 in the Supreme Court of New South Wales (Australia) (the NSWSC), in which the Argentine Republic is the named respondent.

We have not yet received certification that the relevant originating documents listed in our email below (the Documents) have been served on the Argentine Republic.

Please confirm this week whether the Documents have been formally served on the Argentine Republic and:

1.    if not, please confirm why the Documents have not been served and when you anticipate that they will be served; or

2.    if so, please provide a certificate confirming service to either (a) the Registry of the NSWSC or (b) us directly.”

60. On 10 December 2024, G+T received an email from “[email protected]”, attaching a letter dated 9 December 2024 with reference number NO-2024-134822913-APN-DGAJ#MRE. The letter was signed by Mr Victor Antonio Malavolta, in his capacity as “Central Authority”, advising that the:

“Central Authority has no record of the receipt of the documentation mentioned in both e-mails, the purpose of which was to notify the Argentine Republic.

Without prejudice to this, it is necessary to state that the receipt by this Ministry is in its capacity as Central Authority or as the competent body for receipt through diplomatic channels, and not as the addressee of the notification. which implies that the documentation eventually received will be analysed by this Central Authority - in the light of the requirements of the Hague Convention - and, if it complies with them, the request for cooperation will be submitted to the competent Argentine judicial authority which will notify the Argentine Republic as the respondent.” (emphasis in original)

61. By email dated 11 December 2024, G+T responded to the letter forwarded by “[email protected]”, confirming that “the position of the Supreme Court of NSW is that it has provided the [Hague] Documents to you” and enclosed copies of the Hague Documents and the letter from the Principal Registrar dated 27 August 2024 confirming that the Hague Documents had been transmitted to the Central Authority.

62. On 12 December 2024, G+T sent a letter to the Registry of the Supreme Court of New South Wales (the Registry) that requested:

1. a copy of the Request for Service Abroad that was stamped or signed by the Principal Registrar and transmitted to the Central Authority;

2. a copy of any tracking number, proof of delivery or proof of receipt relating to the transmission of the Hague Documents to the Argentine MFA; and

3. confirmation of the address to which the Hague Documents were transmitted and the date on which the Hague Documents were transmitted.

63. By email dated 13 December 2024, G+T received from an email address associated with the Argentine MFA a letter which purported to “return” the documents enclosed with G+T’s email of 11 December 2024. This communication asserted non-compliance with the form required by Article 3 of the Hague Service Convention and identified the address for service of the Republic by the Central Authority.

64. By email dated 6 January 2025, G+T requested that the Argentine MFA acknowledge receipt of the Hague Documents from the Supreme Court of New South Wales and provide certification, in the form contemplated by Article 6 of the Hague Service Convention (‘certificate of service’), that the Hague Documents had been served on the Republic.

65. On or about 12 February 2025, G+T requested an appointment with the Duty Registrar of the Supreme Court of New South Wales to discuss the matters raised in G+T’s letter to the Registry dated 12 December 2024.

66. On 14 February 2025, G+T received an email from the Counter Manager of the Supreme Court of New South Wales stating that the:

“[S]upreme Court has posted the documents on 27/08/2024 per the below screenshot. We have no record if they have been received or accepted.”

Attached to the Counter Manager’s email was the following screenshot:

67. On or about 25 February 2025, a lawyer employed by G+T attended the Registry to inspect the physical court file for these proceedings and obtained copies of:

1. a letter from the Principal Registrar addressed to the “Argentine Central Authority” and dated 27 August 2024, with the address for delivery being Esmeralda 1212, C1007ABR, Ciudad Autónoma de Buenos Aires, Argentina; and

2. a copy of the Request for Service Abroad, signed and stamped on behalf of the Supreme Court of New South Wales and dated 27 August 2024.

68. On 30 April 2025, a lawyer employed by G+T accessed the internet site maintained by the Hague Conference on Private International Law, which recorded that the Republic was at that time a contracting party of the Hague Service Convention, and that, by clicking the link “Click here for the Central Authority designated by Argentina and other practical information”, the following address was produced.

“International Legal Assistance Department

Office of the Legal Advisor

Ministry of Foreign Affairs and Worship

Esmeralda 1212, 4th floor, Of. 402

BUENOS AIRES

Argentina”

69. That address was confirmed by Ms Rohr to be DAJIN’s address. The above address was the same address used by the Principal Registrar as recorded in the JusticeLink screenshot attached in the Counter Manager’s email dated 14 February 2025: see [66] above.

70. The Plaintiffs confirmed by Mr Lynch’s affidavit of 23 May 2025, which was read without objection, that G+T had not received a “certificate of service” of the kind contemplated by r 11A.6 of the UCPR, as issued or transmitted by the Argentine MFA (as Central Authority) to the Registry.

71. On 30 April 2025, G+T sent a letter by courier to the Argentine MFA, the Republic’s Minister of Foreign Affairs for the Republic, and the President of the Republic, advising of the Plaintiffs’ intention to apply in these proceedings for default judgment on 2 May 2025 should the Republic not enter an appearance. In that letter, G+T enclosed copies of the following documents:

1. the letter from the Principal Registrar to G+T dated 27 August 2024;

2. the letter from the Principal Registrar to the “Argentine Central Authority” dated 27 August 2024;

3. the signed and stamped Request for Service Abroad;

4. G+T’s email to the Central Authority on 11 December 2024, including copies of the Hague Documents as filed with the Supreme Court of New South Wales on 31 July 2024; and

5. the Section 40 Certificate.

72. In relation to G+T’s letter dated 30 April 2025, the Republic provided evidence, by affidavit of Gitanjali Bajaj dated 7 May 2025, that:

1. the mailboxes associated with the email addresses referred to on the first page of G+T’s letter were searched, but no copy of the letter was found in those mailboxes; and

2. the Republic first became aware of the letter after a courier delivered two copies of the letter to the Argentine MFA front desk on 5 May 2025 at Esmeralda 1212, City of Buenos Aires, Argentine Republic.

73. Furthermore, the Republic led evidence that none of the documents purported to be enclosed in G+T’s 30 April 2025 letter (see [71] above) were part of the bundle of materials delivered by courier to the Argentine MFA.

Consideration

74. Dr Roughley SC who, with Mr Yin, appeared for the Republic, sought to frame her submissions by reference to the presumption of statutory construction that, so far as the language permits, a domestic statute is to be interpreted and applied as not to be inconsistent with international law and the comity of nations. This was the foundation for her submission that “service”, when used in s 24(3) and (4) of the FSIA, must be construed as meaning “service not contrary to international law” or “service not inconsistent with international law” and that service other than via or consistent with the Hague Service Convention was not such service. This included, on the Republic’s argument, service in accordance with s 24 of the FSIA which was contended to be inconsistent with the procedure prescribed under the Hague Service Convention which was argued to be the exclusive route for service, including on a foreign state.

74. Particular reliance was placed upon various passages in Polites v The Commonwealth (1945) 70 CLR 60; [1945] HCA 3 (Polites) although, as will be seen, there are nuanced differences between the various passages relied upon.

75. In Polites, Latham CJ observed at 69 that:

“It must be held that legislation otherwise within the power of the Commonwealth Parliament does not become invalid because it conflicts with a rule of international law, though every effort should be made to construe Commonwealth statutes so as to avoid breaches of international law and of international comity. The question, therefore, is not a question of the power of the Commonwealth Parliament to legislate in breach of international law, but is a question whether in fact it has done so.” (emphasis added)

77. Dixon J stated that “[i]t is a rule of construction that, unless a contrary intention appear, general words occurring in a statute are to be read subject to the established rules of international law”: Polites at 77. McTiernan J referred at 79 to:

“a presumption that the legislature does not intend to violate by a statute any established rule of international law. But the presumption does not govern the construction of a statute if its language shows that it was not the intention of the legislature that the statute should be in harmony with international law”

78. It may be seen that both Dixon J and McTiernan J tied the presumption to a breach of established rules of international law. No “established rule of international law” was said to have been breached by the purported service under s 24 of the FSIA in the present case. It was only Latham CJ in Polites who extended the approach to “breaches of international law and of international comity”.

79. Reliance was also placed upon the observation in Polites by Williams J at 81 that “there is a rule of construction that, in the interpretation of statutes, the courts will presume, so far as the language admits, that Parliament did not intend that they should operate in derogation of such a rule, and will limit the scope of general words so as to give them effect to the presumption” but it is plain from the context of his Honour’s decision that the “rule” of public international law to which his Honour was referring concerned the question germane to the facts of the legislation under consideration, namely that foreigners could not be obliged to perform military service but, may be compelled, under the same conditions as nationals, to perform police, fire protection or militia duty for the protection of the place of their domicile against natural catastrophes or dangers not resulting from war."

80. The Republic also relied on a number of other authorities, the most relevant of which were Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38; [1992] HCA 64 and Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287; [1995] HCA 20 (Teoh).

81. In the first of those decisions, Brennan, Deane and Dawson JJ stated at 38 that:

“We accept the proposition that the courts should, in a case of ambiguity, favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty”

but went on immediately to note that the provisions of the statutory provisions with which the case was concerned were “wholly unambiguous”. The Republic also referred to the observation by Mason CJ and Deane J in Teoh at 287 that:

“…there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail”

but did not refer to their Honours earlier observation on the same page, namely that:

“Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument.” (emphasis added)

82. The qualification made by their Honours in this passage from Teoh has special relevance in the present case as, at the time of the enactment of the FSIA in 1985, Australia was still more than 25 years away from acceding to the Hague Service Convention, and there was no suggestion made in submissions that, as at 1985, entry into, or ratification of, the Convention was in contemplation.

83. The Plaintiffs accepted that it is “trite law” that federal statutes should be interpreted in conformity with Australia’s international law obligations, subject to the statute evincing a contrary intention. They referred in this regard to Mason J’s observation in Yager v The Queen (1977) 139 CLR 28 at 43-44; [1977] HCA 10 (Yager) that:

“There is no basis on which the provisions of an international convention can control or influence the meaning of words or expressions used in a statute, unless it appears that the statute was intended to give effect to the convention, in which event it is legitimate to resort to the convention to resolve an ambiguity in the statute. Still less is there any foundation for resorting to the provisions of such a convention for the purpose of qualifying or modifying an express definition contained in a statute.”

84. The significance and applicability of the presumption so heavily relied upon by the Republic and which was at the heart of its argument, being identified explicitly in oral submissions as providing the “framework” for the analysis that followed, was somewhat tenuous when the authorities relied upon are considered closely. For example, there is no ambiguity in ss 23 and 24 of the FSIA, either as to their terms or their relationship. They are plainly presented as alternatives in the FSIA and there is no hierarchy as to their operation: cf. Foreign Sovereign Immunities Act of 1976 at 28 USC §1608. As the Plaintiffs pointed out in submissions, the ALRC had this example before it but instead drafted ss 23 and 24 of the FSIA in their present form. The ALRC’s recommendation at [150] was that “there be only two methods allowed in the proposed legislation for service upon the foreign state itself, the diplomatic channel and any method to which the state has agreed.” Gageler J in Firebird treated ss 23 and 24 of the FSIA as providing alternative methods of service without suggesting the existence of any hierarchy between the two provisions: see at [138]-[140], [145], [148]. At [138], his Honour referred to the assumption underlying the structure of the FSIA, namely “that a foreign State will become a party to a proceeding only through service of initiating process on the foreign State in accordance with either of the methods of service for which provision is made in s 23 (which permits service by agreement) and s 24 (which permits service through the diplomatic channel)” (emphasis added).

85. Nor should words be read into s 24(3) and (4) of the FSIA, which was the effect of the Republic’s contention: see [74] above. The “service” being referred to in those subsections is service for the purposes of the FSIA. Those subsections identify the circumstances where “service shall be taken to have been effected”: s 24(3), (6). The Republic’s contention involved an unnecessary qualification or modification of the clear language of s 24(3) and (4) ultimately driven by reliance on the terms of Article 1 of the Hague Service Convention. Such an approach to statutory construction is inconsistent with Yager.

86. The Republic’s argument also had the temporal difficulty that the FSIA long predated Australia’s accession to the Hague Service Convention. The Republic endeavoured to overcome this obstacle by referring to the amendments made to the FSIA in 2022 (see [21]-[29] above) and submitting that the FSIA was “always speaking” (as to which, see P Herzfeld and T Prince, Interpretation (3rd ed, 2024, LawBook Co) at [2.30] and [2.80]). It may be accepted that s 23 of the FSIA is “always speaking” as that section expressly contemplates that future agreements may be entered into. It would be perverse, however, if the “always speaking” principle of statutory interpretation had the effect of rendering an entire and important provision of a statute such as s 24 of the FSIA inoperative in respect of serving States which are signatories of the Hague Service Convention. This, it seems to me, would be the consequence of the Republic’s argument in the present case as, on that argument and subject to the proper interpretation of Article 9(2), compliance with s 24 of the FSIA could not result in service consistent with the Hague Service Convention which envisages, in Article 5, that the Central Authority of the foreign state will itself serve the relevant document on the defendant.

87. The Republic also relied upon the observations of Lord Lloyd-Jones in General Dynamics United Kingdom Ltd v State of Libya [2022] AC 318; [2021] UKSC 22 (General Dynamics), that:

“[43]   The exercise of jurisdiction by the courts of one state over another state is an act of sovereignty. The institution of such proceedings necessarily requires that the defendant state should be given notice of the proceedings. The service of process on a state in itself involves an exercise of sovereignty and gives rise to particular sensibilities. Section 12 is intended to create a procedure whereby service may be effected on a state, in the interests of both parties and in a manner which accords with the requirements of international law and comity…

…

[58]    Nevertheless, considerations of international law and comity are in play here and they support the wider reading of section 12(1) SIA. The SIA is primarily concerned with relations between sovereign states and, as a result, its provisions fall to be considered against the background of established principles of international law…

[59]    The sovereign equality of states is a fundamental principle of the international legal order. This is reflected in the rules of international law governing state immunity from the jurisdiction of the courts of other states. Although the immunity of states is not absolute this is nevertheless an area of considerable sensitivity…

[60]    The present case is concerned, more specifically, with how the process by which one state is subjected to the jurisdiction of the courts of another state is initiated. Clearly, there is a need to ensure that the jurisdiction is properly invoked and that the process does not give rise to any breach of international law. Serving legal proceedings on a state is a relatively unusual matter and there are advantages in establishing clear procedures by which it might be effected. There is a danger here that, otherwise, an attempt may be made to serve process on a representative of the defendant state or on diplomatic premises in a manner which gives rise to a breach of international law. In particular, there is a danger that an attempt to serve on diplomatic premises would infringe their inviolability under article 22 of the Vienna Convention on Diplomatic Relations 1961…”

88. The essential thrust of these observations may be accepted but they do not, with respect, advance the analysis in the present case which essentially involves the construction of the FSIA and its interplay with the Hague Service Convention. Significantly, however, in a part of his judgment not referred to by the Republic, Lord Lloyd-Jones, after making extensive reference to the ALRC Report, went on to describe the method of service through the diplomatic channel (as reflected in s 12(1) of the State Immunity Act 1978 (UK)) as “a means of commencing proceedings which meets the requirements of international law and comity”: at [62]. Furthermore, “service through diplomatic channels has been traditionally regarded as according appropriate deference to the principle of sovereignty”: J Hamilton et al, New South Wales Civil Procedure Handbook 2005 (Lawbook Co, 15th ed, 2025) at 521.

89. It is difficult, moreover, to construe service through diplomatic channels pursuant to s 24 of the FSIA as involving an impairment of comity, even where the state parties have also agreed to separate methods of service, in circumstances where additional explanations and translations are required to be provided to the putative foreign state defendant over and above provision of the relevant initiating process, as required by s 24(2). As earlier noted, the requirement to provide translations was described in the ALRC Report as a “courtesy”. The ALRC also noted at [151] that “[c]onsiderations of reciprocity make it desirable that translations be included where English is not an official language of the defendant state.” Further, s 27(2) of the FSIA provides an extended time period for the entry of an appearance by a foreign state. As the ALRC had observed at [151], “[i]t seems to be recognised that governments may need more time to respond to service of process than other defendants.”

90. Further, it is difficult to understand how service through the diplomatic channel could be inconsistent with comity (and Lord Lloyd-Jones in General Dynamics certainly did not so regard it). Rather, it might be thought to be the epitome of comity, with service of process and other court documents being effected by a department of state upon its equivalent in the foreign state, superintended in the first instance by the Attorney-General of the first state.

91. The Republic developed a complex argument that the requirement in s 24(2)(b) of the FSIA that the Initiating Process be accompanied by a statutory declaration of the Plaintiffs stating that the rules of court or other laws (if any) in respect of service outside the jurisdiction of the court concerned have been complied with picked up a reference to the Hague Service Convention and conditioned “the availability of service to be effected through the diplomatic channel for the purposes of the FSI Act on compliance with the conditions and limitations on the use of that channel as provided for by s 23 (read with the Hague Service Convention).” This contention involved construing s 23 as having incorporated the Hague Service Convention into domestic law with the consequence that s 23 “in such circumstances imposes obligations, limitations and requirements, as a matter of domestic law, in respect of service outside the jurisdiction, as provided for in the Hague Service Convention.” I disagree. Section 23 does not do that work or impose any relevant obligations or limitations. The section is facultative and provides one of two alternatives for service of process on a foreign state.

92. The reference to “the rules of court or any other laws (if any) in respect of service outside the state” is to rules, such as those which exist in some state and federal jurisdictions, requiring the prior leave of the Court before any party (including a foreign sovereign state) may be served. An example is supplied by CC/DEVAS (Mauritius) v Republic of India [2021] FCA 975 in which Stewart J granted leave under r 10.43 of the Federal Court Rules 2011 (Cth) to serve the Republic of India outside the jurisdiction in accordance with s 24 of the FSIA. It may be noted that there was no suggestion in that case that service was required, by reason of s 23 of the FSIA, to be effected under the Hague Service Convention to which India had acceded in 2007.

93. The Republic also submitted that:

“Section 23, where it operates to refer to the Hague Service Convention in respect of a particular foreign State, can be understood as the special provision prescribing the mode in which service may be effected and the conditions and restrictions which must be observed for service in that foreign State through the diplomatic channel. In accordance with the Anthony Hordern principle, the general procedure in s 24 cannot be followed to effect that which is the subject of special provision by operation of s 23 (namely service through and not by the diplomatic channel).”

94. Nothing in the text of the FSIA supports this submission. Sections 23 and 24 are alternative modes of achieving service. The Anthony Hordern principle (see Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7; [1932] HCA 9) is one of statutory construction which involves the grant of a power the exercise of which is apparently authorised by separate statutory provisions, with the more broadly expressed power not being permitted to be used to outflank conditions imposed on the exercise of the power by a more specific provision. Sections 23 and 24 of the FSIA are, in my view, alternative facultative provisions to which the Anthony Hordern principle does not apply. They do not represent a case where the ambit of the restricted power is wholly within the ambit of the general power, or where “the statute in question confers only one power to take the relevant action”: see Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 at [59]. It is also very difficult to describe, as the Republic did, s 24 as providing a “general procedure”. It is both detailed and prescriptive.

95. The Plaintiffs did not advance any argument that the Hague Service Convention was only concerned with service on private parties abroad and had no application where proceedings were brought directly against a foreign state: cf Unión Fenosa Gas S.A. v. Arab Republic of Egypt [2020] 1 WLR 4732; [2020] EWHC 1723 (Comm) at [79], [94].

96. They did, however, contest the Republic’s claim that the Convention was the exclusive route for service on a foreign state, submitting that “Australian courts have not accepted that the Hague Service Convention provides for an exclusive mechanism for transmitting judicial documents abroad for service, but have permitted service to be made through other methods in cases involving the transmission of initiating process abroad in civil or commercial matters”, citing Australian Competition and Consumer Commission v Yellow Page Marketing BV [2010] FCA 1218; Rio Tinto Shared Services Pty Ltd v English Datasystems LLC (2021) 65 VR 25; [2021] VSC 660; Jabiru Satellite Ltd v Societe Generale [2021] VSC 544 at [44]-[46]; Deputy Commissioner of Taxation v Ranguta Limited [2022] FCA 1572 at [21]-[22], [26], [34]; Capral Ltd v DNV AS [2024] NSWSC 96 at [93]-[99]. In Caswell v Sony/ATV Music Publishing (Australia) Pty Ltd [2012] NSWSC 986 at [30], Hallen AsJ held that it was “clear that the Service Convention is facultative, not mandatory”. His Honour referred in this regard to Articles 8 and 10 of the Convention: see [40] above. Similarly, the Convention has not been treated as being “exclusive” in England: see, in particular, Maughan v Wilmot (No 2) [2017] EWCA Civ 1668; [2018] 1 WLR 2356 at [132] per Moylan LJ with whom Sales and Black LJJ agreed; Mid-East Sales Ltd v United Engineering and Trading Co (PVT) Ltd [2014] EWHC 1457 (Comm) where service was made through diplomatic channels: see at [31]. A similar observation may be made in respect of Canada: see Petersen Energía Inversora, S.A.U. v The Republic of Argentina, 2025 ONSC 3593 at [31]-[34], [37].

97. The Republic relied upon Volkswagen Aktiengesellschaft v Schlunk, 486 US 694 (1988) in support of its contention that the Hague Service Convention supplied an exclusive mechanism for service of documents abroad. That was not a case in which the Court was concerned with service of process on a foreign state. Moreover, the Supreme Court made it plain in that decision at 705 that its interpretation of the Convention “makes recourse to the Convention's means of service dependent on the forum's internal law”. The Court went on immediately to note that “we do not think that this country, or any other country, will draft its internal laws deliberately so as to circumvent the Convention in cases in which it would be appropriate to transmit judicial documents for service abroad”. That observation may be correct but did not address a situation such as the present case where the relevant internal law, the FSIA, was enacted many years prior to Australia’s accession to the Hague Service Convention. The Court had earlier referred to the fact that “the negotiating history of the Convention also indicates that whether there is service abroad must be determined by reference to the law of the forum state”: at 701. Ultimately, of course, I am concerned with construing the FSIA and, for the reasons already advanced at some length, that Act provides alternative means of serving initiating process on a foreign state.

94. The Convention does not use the language of exclusivity either generally or in relation to service on a foreign state. Its focus is not on the service of a foreign state at all, and many jurisdictions both before and after accession to the Hague Service Convention have made special legislative provision for service of process on a foreign state, as the ALRC Report made plain. I accept the Plaintiffs’ submission that:

“Neither the express terms of the Convention nor their necessary implication prohibit Contracting States from making provision in their internal law for other forms of service. Nor does the Convention in any way purport to regulate the exercise of jurisdiction by national courts where service has been effected other than in accordance with the Convention.”

99. For the foregoing reasons, it was open to the Plaintiffs to effect service on the Republic through diplomatic channels in accordance with s 24 of the FSIA. The efficacy of that service is confirmed by the terms of the Section 40 Certificate.

100. Even if, contrary to my view, the Convention is the exclusive means of service of and on a foreign state and the Republic’s argument as to the proper interpretation of s 24 of the FSIA were to be accepted, that is not determinative because the Convention preserves the ability to serve through the diplomatic channel in exceptional circumstances.

101. In this respect, the Plaintiffs contended that service effected under s 24(1) of the FSIA through the diplomatic channel was not inconsistent with the Hague Service Convention and Australia’s obligations arising from its accession to it because Article 9(2) of the Convention preserved this avenue of service. This is the argument that was foreshadowed at [9] and [38] above, noting that the Republic accepted that service on a foreign state fell within the expression “exceptional circumstances” in the second sentence of Article 9.

102. It is convenient to reproduce Article 9 again for the purposes of considering this argument in more detail:

“Each Contracting State shall be free, in addition, to use consular channels to forward documents, for the purpose of service, to those authorities of another Contracting State which are designated by the latter for this purpose.

Each Contracting State may, if exceptional circumstances so require, use diplomatic channels for the same purpose.”

103. On its face and as a matter of ordinary grammar, the expression “for the same purpose” in the second sentence of Article 9 refers back to the purpose identified in the first sentence of Article 9, namely “for the purpose of service”. On this interpretation, the use of diplomatic channels for the purpose of service on a foreign state is permitted by the Convention and the Republic’s principal argument in relation to s 24 of the FSIA collapses, leaving it solely with its argument that the service via diplomatic channels under s 24 of the FSIA was defective for want of provision of a translation of the Initiating Process (an argument dealt with at [110]-[120] below.)

104. The Republic challenged this interpretation of Article 9 however in the following written submission:

“Art 9(1) … permits the use of consular channels to forward documents to the authority designated by the destination State, for the purpose of enabling that designated authority to effect service on the respondent. That authority thereafter effects service or arranges to effect service pursuant to Art 5, either in accordance with local law or by a method requested by the applicant unless that method is incompatible with local law.

Art 9(2) permits, “if exceptional circumstances so require”, the use of diplomatic channels “for the same purpose”. The reference in Art 9(2) to “the same purpose” is a reference to the use purpose of the consular channel in Art 9(1). That use purpose, is the purpose of using the channel (diplomatic or consular) to forward documents to the relevant recipient (at the other end of the relevant channel), for the purpose of service.”

105. This argument was strained and unattractive. It involved the contrived notion of a “use purpose” but the use of consular (or diplomatic) channels is not the purpose but the means of achieving the identified purpose, namely service of documents. Where the defendant in proceedings is a foreign state, service by or through diplomatic channels may be effected through delivery of the relevant judicial document to the foreign state’s Ministry of Foreign Affairs. Nothing more is required. An example of such service through the diplomatic channel is supplied by s 12(1) of the State Immunity Act 1978 (UK) as well as by s 24 of the FSIA. No further act is required for service to have been effected (such as the service by a foreign ministry on another organ of the State) unlike the very different situation where the defendant is a foreign national otherwise unconnected with the foreign state who would in turn be served by a designated central authority of the foreign state after documents had been transmitted to it for service on such a defendant.

106. The Republic’s interpretation would lead to what the Plaintiffs described in their reply submissions as the “absurd result” that a State defendant to the proceedings which has been served through the diplomatic channel by delivery of documents to its foreign ministry is then required by the Convention to take steps for further acts of service upon itself. In this context, to the extent that both parties sought to point to “state practice” to assist their respective contentions, no sufficiently clear and consistent practice emerges, still less one which would trump the clear language and structure of ss 23 and 24 of the FSIA.

107. Nor is it to the point that, as the Republic submitted, the functions of a diplomatic mission may include the performance of consular functions. Article 9 draws a contrast between the use of consular channels in a particular way which is spelt out in the first sentence of the article, on the one hand, and the use of diplomatic channels for the purpose of service, on the other hand. Were this differentiation not deliberate, the article could have simply been drafted by including the words “or diplomatic” after “consular” in the first sentence, and omitting the second sentence entirely.

108. The Republic also suggested that the Plaintiffs’ interpretation of the second sentence of Article 9 in some way “permitted service to be effected by compulsion using the diplomatic channel” and drew a contrast with Article 8 which provides:

“Each Contracting State shall be free to effect service of judicial documents upon persons abroad, without application of any compulsion, directly through its diplomatic or consular agents.

Any State may declare that it is opposed to such service within its territory, unless the document is to be served upon a national of the State in which the documents originate.”

It was not apparent to me how service on a foreign state through diplomatic channels (which is precisely what s 24 of the FSIA provides for) entails an “act of compulsion” and how such service was “liable to cause offence” and be “undiplomatic”, as the Republic submitted. The same observations made at [88]-[90] above are apposite in this context.

109. It follows that, even if ss 23 and 24 of the FSIA should be construed as contended for by the Republic, no breach of Australia’s international obligations under the Hague Service Convention occurred by reason of the Plaintiffs’ service of the Initiating Process pursuant to s 24 of the FSIA. Such service through diplomatic channels was permitted by the second sentence of Article 9 of the Hague Service Convention.

110. This leaves for consideration the Republic’s argument which was to the effect that, assuming that service pursuant to s 24 of the FSIA was not inconsistent with international law or Australia’s international obligations or international comity, service nevertheless was not valid because there was a defect in relation to the translation of the Initiating Process supplied with the documents transmitted to the Argentine MFA.

111. The Republic’s argument in this respect was excessively technical. It arose from the fact that the document which the translator identified in his s 24(2)(c)(ii) certificate as that which he had translated was not the filed and stamped copy of the Initiating Process bearing a case number or a unique identifier but, rather, an unsigned and unstamped version of the Initiating Process. It was not suggested that there was any difference between the unsigned version of the Initiating Process and the actual Initiating Process other than the absence of a signature, stamp and file number. Further, the actual untranslated but stamped and signed version of the Initiating Process was included with the documents that were transmitted by the DFAT.

112. The Plaintiffs’ response to this argument was essentially twofold. First, that the Section 40 Certificate was conclusive as to the fact that a translation of the Initiating Process had been provided, and that the Republic’s contention was a collateral attack on the certificate. Reliance was placed on s 40(5) of the FSIA which provides that “[a] certificate under this section is admissible as evidence of the facts and matters stated in it and is conclusive as to those facts and matters.” The Republic countered by referring to the recent decision of Raper J in Alramadi at [117] where her Honour held that:

“The certificate can only certify that service was effected by delivery of particular documents on a particular day (and, of the other matters in s 40(1)). It cannot certify that it was effectively or validly made or served, or effected.”

113. I have already expressed my preference for the views of Ashley J in Douglas to those of her Honour in Alramadi: see at [31]-[32] above. But even if I am wrong in that regard, reliance on this passage from Alramadi is no answer to the relevant factual matter that was certified, namely that a translation of the Initiating Process was delivered.

114. Even if the Section 40 Certificate was not effective to foreclose the Republic’s argument in this regard (which is not the view that I take), the Plaintiffs also contended that the test for satisfying the requirements of s 24(2)(b) of the FSIA should be one of “substantial compliance”, and not “strict compliance”, and that they satisfied such a test. Reliance was placed upon the Full Federal Court’s decision in Harris v Attorney-General of The Commonwealth (1994) 52 FCR 386; (1994) 125 ALR 36 (Harris) in support of the test being one of “substantial compliance”.

115. In Harris, the issue concerned the adequacy of supporting documents provided with a request for extradition pursuant to a bilateral extradition treaty between Australia and Argentina (the Extradition Treaty). Article 5(5) of the Extradition Treaty required the requesting country, Argentina, to provide specified documents with the extradition request: Harris at 392F-G. Certain documents, including English translations of the Argentine laws creating the offence, were absent: Harris at 405E-G. The Court held that “strict compliance” with the provision of documents pursuant to Article 5(5) of the Extradition Treaty was not required: Harris at 401C-D. Rather, the Court held at 401 that the test was one of “substantial compliance”:

“The appellant submitted that strict and full compliance with the requirements of Art 5 of the Treaty was required. We have difficulty accepting the submission. In our opinion, in this area, substance should be preferred to form. The consequence is that substantial compliance with Art 5 is a necessary and sufficient ingredient for the validity of a request (see Trimbole v Commonwealth (1984) 155 CLR 186 at 191-192; R v Ganz [1882] 9 QBD 93; Ex parte Bradshaw (1921) 38 WN (NSW) 82; Ex parte Bennett; Re Cunningham(1967) 10 FLR 262;Zoeller v Federal Republic of Germany (1988) 19 FCR 64 per Sheppard J at 79; Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 519; Federal Republic of Germany v Haddad (1990) 21 FCR 496 at 499; I A Shearer, Extradition in International Law (1971), p 209).…”

116. In Trimbole v Commonwealth (1984) 155 CLR 186 at 191-192; [1984] HCA 83, where the technical submission was put that a statutory provision required a requisition but the document relied upon in compliance with the statute was a request rather than a requisition, the High Court dismissed the argument with appropriate despatch, observing that “[i]t is doubtful whether this point would have been regarded as a good one in the more literalistic days of the eighteenth century, but it certainly is of no validity at the present time when the courts prefer substance to mere form. The document was clearly a requisition.”

117. In my view, the translation was clearly a translation of the Initiating Process even though the translator had indicated that he had worked from an unsigned and unfiled copy of that Initiating Process. What was translated were the terms of the Initiating Process. The translation, moreover, fulfilled the purpose of s 24(2)(c)(i) of the FSIA, to facilitate an understanding of the nature of the case though a translation into the official language of the state served with that process. As the Plaintiffs submitted:

“This obligation to provide a translation of the Initiating Process is therefore one of result, not process. That is, what is important is that the translation enables the person in the foreign State to read and understand what is contained in the Initiating Process. There is no complaint that this result was not achieved. Again, that it has been provided is a matter of fact that can be certified under s 40 FSIA. The Court does not enquire into the adequacy, faithfulness or completeness of the translation if a s 40 certificate is issued as to do so would be to inquire into matters of fact which the certificate does away with.”

118. As a matter of substance, there was no failure to comply with the requirement to provide a translation of the Initiating Process. Substantial compliance was adequate and very substantial compliance there was. Non-compliance with a statutory provision does not, in any event, necessarily render invalid an act done in purported compliance with the statute: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [93]; Awad v The Queen (2022) 275 CLR 421; [2022] HCA 36 at [18]; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [89]. In circumstances where the provision of a translation of the Initiating Process was by way of a “courtesy” (see [20], [89] above) and it is not submitted that there was any material departure from the language of the Initiating Process or that the purpose of the statutory requirement was thwarted, one would not attribute an intention to the legislature that trivial non-compliance would result in invalidity.

119. The trivial nature of the non-compliance (if indeed there was non-compliance) in the present case may be contrasted with the non-compliance in Alramadi where the applicant had failed to obtain the leave of the Federal Circuit and Family Court of Australia (Division 2) (required under its rules) for service of any originating application out of the jurisdiction.

120. The validity of the service of the Initiating Process was not compromised, in my view, by the matters raised by the Republic in relation to the translation of that process.

121. There remains for consideration the Plaintiffs’ ultimate fallback argument which asserts an entitlement to default judgment pursuant to r 11A.11 of the UCPR because the Republic had not entered an appearance and the Argentine Central Authority had failed to return a certificate of service in circumstances where “every reasonable effort had been made” to obtain a certificate of service from the Argentine Central Authority or to effect service of the Initiating Process on it: UCPR r 11A.11(2).

122. As the Republic pointed out in argument, implicit in the Plaintiffs’ reliance on
     r 11A.11 was that service had not been validly effected on it in accordance with the procedure established by pt 11A of the UCPR.

123. It was in this context that the Republic made reference to s 27(1) of the FSIA and particularly the requirement that, before default judgment could be entered against it, service of the Initiating Process had to have been effected in accordance with the Act and the time for appearance must have expired. As such it was contended that the Plaintiffs could not obtain default judgment against the Republic through UCPR r 11A.11. In the context of the circumstances of the present case, I agree. It is therefore unnecessary to resolve the question as to whether the Plaintiffs’ attempts to serve the Republic in accordance with the procedure prescribed by the UCPR as set out at [51]-[73] above amounted to “every reasonable effort” within the meaning of UCPR r 11A.11(2).

Conclusion and orders

124. The Republic’s application for an order pursuant to UCPR r 12.11(c) declaring that the Initiating Process has not been duly served on it should be dismissed with costs.

125. The Republic submitted that, should the Court find (as it has) that service has been validly effected, then the parties should be directed to confer in relation to an appropriate timetable on the remaining issues raised by the notice of motion. Those issues include questions as to the Republic’s immunity to the jurisdiction of the Court in relation to the proceeding.

126. Accordingly, I make the following orders:

1. The Defendant’s application for an order pursuant to r 12.11(c) of the UCPR declaring that the Initiating Process has not been duly served on it be dismissed with costs.

2. Direct the parties to confer in relation to an appropriate timetable on the remaining issues raised by the notice of motion dated 7 May 2025.

3. List the matter for further directions before the Commercial List Judge on 10 October 2025.

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Decision last updated: 19 September 2025