Robinson v Kuwait Liaison Office
[1997] IRCA 170
•23 May 1997
DECISION NO:170/97
CATCHWORDS
INDUSTRIAL LAW - FORIGN STATE IMMUNITY - Service of initiating process - whether foreign State had entered an appearance without objecting to defective service - effect of notice of appearance filed in Australain Industrial Relations Commission - whether appearance filed in Commission is filed in Court - conditional appearance - submission to jurisdiction - whether foreign State immunity arises in relation to unlawful termination applications made under Commonwealth industrial law
Industrial Relations Act 1988
Foreign States Immunities Act 1985 s 12 25
Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529
Trade Practices Commission v The Gillette Company (No. 1) (1993) 45 FCR 366
Westpac Banking Corporation v P&O Containers Ltd (1991) 105 ALR 90
Cell Tech Communications Pyt Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365
Lindgran v Lindgran [1956] VLR 215
Laurie v Carroll (1958) 98 CLR 310
National Commercial Bank v Wimborne (1979) 11 NSWLR 156
Williams v The Society of Lloyds [1994] 1 VR 274
Bannerton Holdings Pty Ltd v Soenderjylland A/S (unreported, 9 February 1996, Federal Court of Australia, Nicholson J)
Sungravure Pty Ltd v Middle East Airlines Airlibian SAL 91975) 134 CLR 1
Australian Securities Commission v Lord (1991) 33 FCR 144
Reid v Republic of Nauru [1993] 1 VR 251
No. AI 1119 of 1996
JAMES BERNARD ROBINSON v KUWAIT LIAISON OFFICE
MOORE J
CANBERRA
23 MAY 1997
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) No. AI 1119 of 1996
)
ACT DISTRICT REGISTRY )
BETWEEN: James Bernard ROBINSON
Applicant
AND: KUWAIT LIAISON OFFICE
Respondent
JUDGE: Moore J
PLACE: Canberra
DATE: 23 May 1997
ORDER OF THE COURT
THE COURT ORDERS THAT:
The matter is adjourned to a date to be fixed to enable the parties to bring in short minutes to give effect to these reasons for judgment.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) No. AI 1119 of 1996
)
ACT DISTRICT REGISTRY )
BETWEEN: James Bernard ROBINSON
Applicant
AND: KUWAIT LIAISON OFFICE
Respondent
JUDGE: Moore J
PLACE: Canberra
DATE: 23 May 1997
REASONS FOR JUDGMENT
On 11 September 1996 an application was lodged on behalf of Mr James Robinson under s 170EA of what was then called the Industrial Relations Act 1988 (“the Act”) concerning the termination of his employment on 29 September 1996. This judgment concerns the operation of the Foreign States Immunities Act 1985 (Cth) (“the Immunities Act”) on Mr Robinson’s application.
The scheme then embodied in the Act for hearing and determining such an application was that the application was lodged with the Australian Industrial Relations Commission (“the Commission”) and, in specified circumstances, would come to be treated as an application lodged in the Industrial Relations Court of Australia (“the Court”) if the application was referred to the Court.
Mr Robinson identified, in his application, the nature of his work as that of gardener and that has not been put in issue. The application was in accordance with Form R28 which was a form prescribed by the rules of the Commission. He identified the employer as the Kuwait Liaison Office. Following the filing of the application by Mr Robinson, a letter was sent by the Australian Industrial Registry which is the registry of the Commission, to the Kuwait Liaison Office. It was dated 11 September 1996 and was received by the Kuwait Liaison Office on or about 14 September 1996. The letter was accompanied by a copy of the application of Mr Robinson and a pro forma notice of employer’s appearance. The letter contained the following:
“What you must do To defend this claim you must deliver, post or fax a notice of employer’s appearance (form enclosed) to this Commission within 7 days. You must do this even if you claim not to be the true employer.
Your Rights Returning the notice of appearance or attending a conciliation conference does not affect your right to claim that neither the Court nor the Commission has jurisdiction in this matter or any defence that you may have.”
A completed notice of employer’s appearance was forwarded to the Australian Industrial Registry signed by solicitors acting for the Kuwait Liaison Office. The notice was dated 18 September 1996 though there is nothing on the copy in the Court’s file which indicates when it was received. It was headed “Application in respect of termination of employment - notice of employer’s appearance” and was completed so to provided the name and address of the employer and the employer’s representative. It identified the type of employer as “Foreign Government Representative”.
On 15 October 1996 the solicitors acting for the Kuwait Liaison Office wrote to the Australian Industrial Registry. The letter was received on 16 October 1996. It read:
“KUWAIT LIAISON OFFICE ats ROBINSON - U90405/96
We act for the Kuwait Liaison Office in the above matter. We are instructed that our client, being a foreign state, claims immunity from the jurisdiction of the Commission and the Court in this matter.
We note a Conciliation Conference is being scheduled for 9:30am on Wednesday 30 October 1996. We are instructed to appear as a courtesy to the Commission to assert our client’s immunity only and not to participate in the Conference.”
On 30 October 1996 Senior Deputy President McBean unsuccessfully conciliated the matter and then certified that he had been unable to settle it. The file was then remitted to the Registrar of the Court. It was received on 31 October 1996. The Deputy Industrial Registrar of the Australian Industrial Registry forwarded to the Court a copy of the certificate, a copy of the application and a copy of the notice of employer’s appearance. It is unnecessary to detail events thereafter in the Court and it is sufficient to note that the Kuwait Liaison Office raised two issues which I identify shortly.
The Immunities Act confers upon foreign States an immunity from the jurisdiction of Australian courts with certain qualifications. Section 9 of that Act provides:
“Except as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding.”
A Foreign State is defined in s 3 in the following terms:
“‘foreign State’ means a country the territory of which is outside of Australia, being a country that is:
(a) an independent sovereign state; or
(b)a separate territory (whether or not it is self-governing) that is not part of an independent sovereign state;”
Section 3(3) goes on to expand upon this definition in the following way:
“Unless the contrary intention appears, a reference in this Act to a foreign State includes a reference to:
(a) a province, state, self-governing territory or other political subdivision (by whatever name known) of a foreign state;
(b) the head of a foreign state, or of a political subdivision of a foreign State, in his or her public capacity; and(c)the executive government or part of the executive government of a foreign State or of a political subdivision of a foreign State, including a department or organ of the executive government of a foreign State or subdivision;
but does not include a reference to a separate entity of a foreign State.”
Section 12 of the Immunities Act contains a qualification on the scope of the immunity. It concerns the position of a foreign State as an employer. Section 12 provides:
(1) A foreign State, as employer, is not immune in a proceeding in so far as the proceeding concerns the employment of a person under a contract of employment that was made in Australia or was to be performed wholly or partly in Australia.
(2) A reference in subsection (1) to a proceeding includes a reference to a proceeding concerning:
(a)a right or obligation conferred or imposed by a law of Australia on a person as employer or employee; or
(b)a payment the entitlement to which arises under a contract of employment.
(3) Where, at the time when the contract of employment was made, the person employed was:
(a)a national of the foreign State but not a permanent resident of Australia; or
(b)an habitual resident of the foreign State:
subsection (1) does not apply.
(4)Subsection (1) does not apply where:
(a)an inconsistent provision is included in the contract of employment; and
(b)a law of Australia does not avoid the operation of, or prohibit or render unlawful the inclusion of, the provision.
(5)Subsection (1) does not apply in relation to the employment of:
(a)a member of the diplomatic staff of a mission as defined by the Vienna Convention on Diplomatic relations, being the Convention the English text of which is set out in the Schedule to the Diplomatic Privileges and Immunities Act 1967; or
(b)a consular officer as defined by the Vienna Convention on Consular Relations being the Convention the English text of which is set out in the Schedule to the Consular Privileges and Immunities Act 1972.
(6)Subsection (1) does not apply in relation to the employment of:
(a)a member of the administrative and technical staff of a mission as defined by the Convention referred to in paragraph (5)(a); or
(b)a consular employee as defined by the Convention referred to in paragraph (5)(b);
unless the member or employee was, at the time when the contract of employment was made, a permanent resident of Australia.
(7) In the section, “permanent resident of Australia” means:
(a)an Australian citizen; or
(b)a person resident in Australia whose continued presence in Australia is not subject to a limitation as to time imposed by or under a law of Australia.”
Not only does the Immunities Act generally render a foreign State immune from the jurisdiction of Australian courts but it also requires that service of originating or initiating process on a foreign state by effected in prescribed ways. It is to be effected in accordance with an agreement to which the foreign state is a party: see s23, or by delivery to the Australian Attorney-General for transmission by the Department of Foreign Affairs in the manner contemplated in s 24.
Section 25 provides that service other than as provided by ss 23 or 24 is ineffective. The operation of s 25 is qualified by s 26 which provides:
“Where a foreign State enters an appearance in a proceeding without making an objection in relation to the service of the initiating process, the provisions of this Act in relation to that service shall be taken to have been complied with.” (emphasis added)
Two issues arise in these proceedings. The first issue is whether, given a conceded failure to serve the Kuwait Liaison Office in the manner provided in either s 23 of s 24, the Kuwait Liaison Office entered an appearance so as to attract the operation of s 26. The second issue is whether the application has given rise to proceedings of the type comprehended by s 12. It is not in issue that the Kuwait Liaison Office is a foreign State for the purposes of the Immunities Act.
In order to resolve the first issue it is necessary to consider in greater detail the legislative scheme for the hearing and determination of an application under s 170EA. That section was first enacted by the Industrial Relations Reform Act 1993 (Cth) which introduced into the Act Division 3 of Part VIA. Division 3 conferred on employees whose employment had been unlawfully terminated rights which could be enforced by application to the Court under s 170EA. Rules were made by the Judges of the Court dealing with such applications. Generally the Rules of the Court repeated many of the rules of the Federal Court of Australia dealing with the manner in which applications were to be made to the Court, how service of the originating process should be effected and how parties served with such process might enter an appearance. The rules of the Court took, in these respects, a form having its immediate genesis in the Supreme Court Rules 1970 (NSW).
However O75 of the rules of the Court dealt specifically with applications under s 170EA and, after some initial modification, provided for a special form of application: see O75r3 and Form 132 and, of some significance for present purposes, a special form of appearance to be filed by an employer who was a respondent to an application under s 170EA: see O75r4 and Form 133. Both forms were in an unusual format designed to simplify their completion. The form of appearance drew no distinction between a conditional and an unconditional appearance and the rules in O75, in effect, made no provision for the filing of a conditional appearance. This was to be contrasted with the rules of the Court of general application which drew, and still draw, that distinction and which provided for the filing of a conditional appearance. In my opinion, O75 was intended to render inapplicable to an application made under s 170EA other rules dealing with the same subject matter and was intended to codify procedures concerning such an application. When Division 3 was first enacted, s 170EC required, in substance, the Court to remit the matter to the Commission for conciliation. If the matter was not settled in conciliation, the application would, subject to qualifications which are not presently relevant, then be heard and determined by the Court.
On 15 January 1996 amendments to Division 3 came into effect: see the Industrial Relations and Other Legislation Amendment Act 1995 (Cth). Section 170EA in its amended form required an application alleging unlawful termination to be lodged with the Commission which was obliged to try and settle the matter by conciliation. If it was not settled, the parties could submit themselves to consent arbitration: see s 170EC. If there was not consent to that process, the application was referred to the Court. The reference was dealt with by s 170ED which relevantly provided:
(1)If any of the parties to a conciliation who are invited, under subsection 170EB(2), to elect to have the matter to which the conciliation relates dealt with by consent arbitration do not make that election, the Commission must refer the application relating to the matter to the Registrar of the Court accompanied by a certificate:
(a) that specifies the matter; and
(b)that states that the Commission has been unable to settle the matter by conciliation within a reasonable period and that the parties have not so elected.
(2)When the Commission refers the application and certificate to the Registrar, the application is taken to have been duly lodged with the Court as an application of a remedy in respect of the termination.
(3)The Court must not consider the merits of an application unless it has been referred by the Commission in accordance with subsection (1).” (emphasis added)
Thus the legislative scheme provided for lodgment of the application with the Commission and, in certain circumstances, the referral of the application to the Court.
To give effect to this scheme the President of the Commission, in exercise of powers conferred by s 48, made rules prescribing the procedure to be followed in prosecuting an application under s 170EA. Those rules provided, relevantly:
“41(1) An application to the Commission under subsection 170EA(1) of the Act must be;
(a)in accordance with Form R28; and
(b) lodged in the Industrial Registry.
(2)An application may be lodged personally, by post or facsimile transmission.
(3)The application may be accepted for lodgment if, in the opinion of a Registrar, it complies substantially with subrule (1).
...
42(1) An application lodged under subrule 41(1) is answered by the employer filing a notice of appearance in accordance with Form R29.
(2)A notice of appearance must be filed within 7 days of service of the application on the employer by the Registry.
(3)A notice of appearance may be filed personally, by post or facsimile transmission.
(4)The notice may be accepted for filing if, in the opinion of a Registrar, it complies substantially with subrule (1).
The forms referred to in these rules, Forms R28 and R29, appear to have been modelled on Forms 132 and 133 of the earlier rules of the Court. Of significance, the form constituting the employer’s appearance, Form 29 (see rule 42(1)), made no provision for filing a conditional appearance. Moreover, rule 42(2) required the filing of an appearance within 7 days of the service of the application which was effected by the Registry and not the applicant. Thus the combined effect of the prescribed form and rule 42(2) was that an employer was required to file an appearance, which drew no distinction between an unconditional and conditional appearance, after being sent a copy of the application by the Australian Industrial Registry.
When an application was referred by the Commission to the Court, it was, by operation of s 170ED(2), taken to have been duly lodged with the Court. The Rules of the Court were amended, effective 12 April 1996, to reflect this new legislative scheme involving lodgment with the Commission. O75 then read:
“1In this Order, ‘application’ means an application for relief in respect of a person’s employment that:
(a)is lodged with the Commission under section 170EA of the Act; and
(b)is referred to the registrar of the Court under section 170ED of the Act.
2The Court must consider and determine an application:
(a)without undue formality; and
(b)with regard to the need to avoid unnecessary cost to the parties to the application.
3(1) As soon as practicable after an application is referred, the Registrar must:
(a)set a date and time for a directions hearing in relation to the application; and
(b)notify the parties of the date and time.
(2)Subject to rule 4, at the directions hearing, the Court must fix the earliest practicable date for the hearing of the application.
4(1) Whether or not the parties are present at the directions hearing, a Judge, Judicial Registrar or Registrar may make an order referring the application to a person mentioned in subrule (2) for informal mediation in an attempt to settle the dispute between the parties, or an issue in the dispute, by amicable agreement.
(2)An application may be referred to:
(a)a Judge; or
(b)a Judicial Registrar; or
(c) a Registrar; or
(d)a person appointed by the Court or a Registrar as the mediator.
(3)If the application is not settled by agreement, the Registrar may:
(a)set a date and time for a further directions hearing in relation to the application, and notify the parties of that date and time; or
(b)fix a date and time of the hearing of the application, and notify the parties of the date and time.
(4)At the further directions hearing (if any), the court must fix the earliest practicable date for the haring of the application.”
Again, in my opinion, O75 was intended to render inapplicable to an application under s 170EA other rules dealing with the same subject matter and was intended to codify procedures concerning such an application. Thus the rules of the Court continued to make special provision for applications made under s 170EA, though made no provision for the service of an application which, by force of the Act, was to be treated as duly lodged in the Court. Nor did they make any provision for the filing of an appearance by the respondent employer. Order 75 was drafted on the assumption that the application would have been served when the matter was still with the Commission and any appearance would have then been filed. Provisions of general application in the rules of the Court concerning service : O7 and O8, and the filing of an appearance: O9 were not intended to apply to an application under s 170EA
It is against this legislative background that the operation of s 26 of the Immunities Act is to be considered. It is to be remembered that the special provisions in that Act concerning service are taken to have been complied with if a foreign state “enters an appearance”.
The question that arises in these proceedings is whether the Kuwait Liaison Office has entered an appearance of the type that enlivens the provisions of s 26. A person may appear in a court by announcing an appearance or, if the rules of the Court so provide, by filing a notice of appearance. The appearance may be unconditional in which case it generally amounts to a submission to the jurisdiction of the Court and a waiver of any irregularity such as one concerning the manner of service: see Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529 at 539, per Gibbs J. A conditional appearance constitutes an appearance for the purposes of the litigation, subject to a right to apply to set aside the originating process: see Trade Practices Commission v The Gillette Company (No. 1) (1993) 45 FCR 366 at 369-370, and Westpac Banking Corporation v P&O Containers Ltd (1991) 105 ALR 90 at 93-94; for reasons relating to service or other reasons: see Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365 at 370.
If the court does not have rules regulating the manner of appearing, then issues will arise about the consequences of a party appearing before articulating an objection to jurisdiction. In Lindgran v Lindgran [1956] VLR 215, Smith J concluded that a party had not waived an objection to jurisdiction arising from defective service of the originating process by consenting to an adjournment and, on a later occasion, by appearing through counsel who announced an appearance before raising an objection to jurisdiction. His Honour said at 220 that to waive objection to jurisdiction:
“[T]here must at least be words or conduct of such a nature that an inference can properly be drawn therefrom that the party alleged to have waived the objection does not intend to rely upon it: compare Ray v the Justices of Melbourne (1891) 17 VLR 186; Brokenshire v Bacon (1895) 1 VLR 273; In re the Melbourne Democratic Club (1901) 27 VLR 88; Craine v Colonial Mutual Fire Insurance Company Ltd (1920) 28 CLR 305, at p. 326; see also Hampden v Wallis (1884) 26 Ch D 746; Rein v Stein (1892) 66 LT 469, per Cave J at 471-2.”
The prosecution of an application to set aside orders on grounds that the Court did not have jurisdiction to make them because there had been ineffective service of the originating process, while raising grounds touching the merits, does not constitute a waiver of the right to object to jurisdiction: see Laurie v Carroll (1958) 98 CLR 310 at 335-336; see also National Commercial Bank v Wimborne (1979) 11 NSWLR 156 at 176-183. A recent example of the application of these principles is found in Williams v The Society of Lloyds [1994] 1 VR 274 in which McDonald J concluded that a request for particulars of a claim did not constitute a waiver of the right to object to jurisdiction.
Another recent example is found in Bannerton Holdings Pty Ltd v Sydbank Soenderjylland A/S (unreported, 9 February 1996, Federal Court of Australia, Nicholson J). The respondent sought orders setting aside an application and service of originating process on it in Denmark and related orders under O9r7. The respondent also sought a stay of the proceedings on the basis that the Federal Court was an inappropriate forum for the litigation of the claim. To the extent that the respondent was challenging the jurisdiction of the Federal Court, the applicant argued that the respondent had accepted the Court’s jurisdiction by seeking an order staying the proceedings. Nicholson J discussed the relevant principles in the following passages:
“The case for the applicant also relies upon Rein v Stein (1892) 66 KT 469 at 471 where it was said by Cave J (with Williams J agreeing) that in order to establish a waiver of a right to object to jurisdiction it must be shown that the party alleged to have waived the objection has taken some step which is only necessary or only useful if the objection has been actually waived or if the objection has never been entertained at all. This statement was followed in Williams v The Society of Lloyds [1994] 1 VR 274 at 293 and National Commercial Bank v Wimborne (1979) 11 NSWLR 156.
The dicta in Rein was applied in Williams & Glyn’s Bank PLC v Astro Dinamico Compania Naviera SA [1984] 1 WLR 438 at 444. It is Williams (supra) upon which the case for the respondent relies. It was there held that a summons in an English action to enforce guarantees given by two Greek companies in which they had joined a stay application together with an application to set aside the proceedings for lack of jurisdiction did not have the consequence that they had waived their objection to jurisdiction and was in no way inconsistent with maintaining that objection ...
...Williams & Glyn’s Bank (supra) is the relevant authority. It is a decision of the House of Lords and so is to be preferred as higher authority in any event if the ratio decidendi of Henry (supra) is properly to be understood as dealing with the same essential point. The reasoning in Williams & Glyn’s Bank (see particularly the speech of Lord Fraser of Tullybelton at 443-4) accords with what was said by Caves J in Rein v Stein (supra) and by Denning LJ in Re Dulles’ Settlement (supra). It also accords with the common sense notion that an appearance made under protest as to jurisdiction is inconsistent with the concept of voluntary submission or waiver of the right to object: cf Finnish Marine Insurance Co Ltd v Protective National Insurance Co [1990] 1 QB 1078. The law is so understood in Dicey and Morris on The Conflict of Laws 12th ed (1993) vol 1 at 311-2. Nothing said by the High Court in Laurie v Carroll (1958) 98 CLR 310 supports a contrary conclusion.
Consequently, the applicant’s argument that the respondent has voluntarily submitted to the jurisdiction cannot succeed. That resolution of law is consistent with the basis upon which the respondent appeared, namely by way of continuing objection to jurisdiction even when contending for the stay application.”
In my opinion, the reference in s 26 to a foreign State “enter(ing) an appearance in a proceeding” is a reference to circumstances where the foreign State conducts itself in a way that indicates it does not challenge the jurisdiction of the Court based on ineffective service. So much is apparent from the words that following, namely “without making an objection in relation to the service of the initiating process”. Submission to jurisdiction more generally is dealt with by s 10 of the Immunities Act. Such an indication may be manifest by the unqualified announcement of an appearance on the foreign State’s behalf at a hearing or the filing of an unconditional notice of appearance. It would not be manifest by the filing of a conditional appearance at least of the type contemplated by rules such as O9r6 of the Federal Court of Australia Rules of the rules of this Court. The filing of such a conditional appearance would preserve the right of the foreign State to seek a declaration under O9r7(1)(a) that, having regard to s 25 of the Immunities Act, the originating process had not been duly served.
In the present case, the filing of the “employer’s appearance” on behalf of the Kuwait Liaison Office with the Australian Industrial Registry did not, in my opinion, constitute the entering of an appearance for the purposes of s 26. First, the written direction to file it made clear that it would not deny the filing party the right to make submissions about jurisdiction which, in my opinion, would include want of jurisdiction arising from defective service of process to which ss 23, 24 and 25 of the Immunities Act applies. It was in that context that the appearance was filed. Second, the solicitors acting for the Kuwait Liaison office made plain, albeit several weeks later, that their client was not submitting to the Commission’s or the Court’s jurisdiction. Taken together, it is evidence, in my opinion, that the Kuwait Liaison Office was not manifesting an intention of the type upon which s 26 intended to operate, that is submitting to jurisdiction notwithstanding any defect in the service of originating process. Apart from the evidence concerning the intention of the Kuwait Liaison Office, the rules of the Commission do not unambiguously indicate that the appearance required to be filed by rule 42 is intended to be an unqualified submission to jurisdiction including waiving any objection to service. The rule and related form are silent as to how such an objection might be made.
I have assumed, to this point, that the lodgement of the application in the Australian Industrial Registry by Mr Robinson under s 170EA gave rise to a proceeding in the Court, at least when s 170ED(2) had taken effect, such that the filing of the “employer’s appearance” might constitute the entry of an appearance in that proceeding. This is an issue of some complexity which I need not address given the view I have formed about the characterisation of the “employer’s appearance” that was filed.
I turn now to consider the question of whether the application of Mr Robinson under s 170EA is a proceeding in which the immunity generally conferred by s 9 of the Immunities Act does not arise because s 12. The operation of s 12 depends on the foreign State being an employer and it is not in issue that the Kuwait Liaison Office was Mr Robinson’s employer. In issue is whether the proceedings arising from the application under s 170EA involve “a proceeding concern(ing) the employment of a person under a contract of employment”. The use of the word “concerning” indicates that the proceedings must be about or relate the employment: see Sungravure Pty Ltd v Middle East Airlines Airlibian SAL (1975) 134 CLR 1; Australian Securities Commission v Lord (1991) 33 FCR 144. The reference to the “contract of employment” in s 12(1) is not intended to limit the operation of s 12 to contractual claims. Rather it is intended to remove any ambiguity or uncertainty about what “employment” means. It does not mean, for example, employment in the sense of engagement under a contract for services. That s 12(1) is not limited to contractual claims is made clear by s 12(2)(a) which indicates that a proceeding to which s 12(1) applies includes a proceeding concerning a right or obligation conferred or imposed on a person by an Australian law. It is, however, necessary that the right or obligation be imposed by virtue of the person being an employer and employee. Section 3 of the Immunities Act defines “law of Australia” and it plainly includes a Commonwealth statute. Part 3 of Division VIA of the Act imposes certain obligations on employers who are proposing to terminate the employment of an employee. Those obligations effectively limit the circumstances and the manner in which employment can lawfully be terminated. Part 3 also confers on an employee the right found in s 170EA to institute proceedings to seek a remedy. There is no reason to doubt, in my opinion, that proceedings arising from an application under s 170EA are proceedings of the type referred to in s 12(1).
It was not suggested that any of the qualifications on the operation of s 12 contained within the section had any relevance to the proceedings brought by Mr Robinson. It may be accepted that s 29 of the Immunities Act will preclude the Court, if this point is ever reached, from ordering the Kuwait Liaison Office to reinstate Mr Robinson. To this extent the rights of Mr Robinson conferred by s 170EE of the Act are modified by the Immunities Act and the only order, if any, the Court would have power to make is an order for compensation under s 170EE(3). An interesting discussion of the rights at common law of an employee to bring proceedings against a foreign State, prior to the Immunities Act relevantly coming into force, is found in Reid v Republic of Nauru [1993] 1 VR 251, though it focused on the character of the enterprise in which the employee was employed.
Counsel for the Kuwait Liaison Office submitted that the Immunities Act should, in some way, be read down because Kuwait was not a signatory to the international instruments which, by virtue of their adoption by Australia, founded the power of the Commonwealth Parliament to enact Division 3 of Part VIA. How this argument arises I am not entirely sure, but the international obligations assumed by a state are obligations it gives effect to in relation to those over whom it can exercise sovereign power, ordinarily its citizens and residents. Consistent with legal principle concerning immunity of a sovereign State: see Reid (supra), the Commonwealth Parliament can limit the operation of the Immunities Act in relation to certain types of employment by a foreign State, and thus render effective a law of general application giving effect to Australia’s international obligations. It appears to me to be beside the point that a foreign State bound by those laws refrained from assuming the same international obligations and has thus not committed itself to giving effect to them in the domestic law of the State.
I have concluded that the service of the application under s 170EA was ineffective having regard to s 26 of the Immunities Act but that in proceedings regularly commenced the Kuwait Liaison Office would not be immune from the jurisdiction of the Court in relation to the application brought under s 170EA of the Act by Mr Robinson. I adjourn the matter to a date to be fixed to enable the parties to being in short minutes to give effect to these reasons for judgment.
I certify that the preceding proceeding twenty (20) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.
Associate:
Alexandra George
Dated: 23 May 1997
APPEARANCES
Solicitor for the Applicant: Mr J Wilson of Barker Gosling
Counsel for the Respondent: Ms A Tonkin
Solicitor for the Respondent: Nimmo Tigwell Clarke
Dates of Hearing: 28 February & 24 April 1997
Date of Judgment: 23 May 1997
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