Sultan v Consulate General of the Republic of Iraq, Sydney (No 3)
[2022] FedCFamC2G 597
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sultan v Consulate General of the Republic of Iraq, Sydney (No 3) [2022] FedCFamC2G 597
File number(s): SYG 1753 of 2019
SYG 1754 of 2019
SYG 1756 of 2019Judgment of: JUDGE MANOUSARIDIS Date of judgment: 29 July 2022 Catchwords: INDUSTRIAL LAW – Practice and procedure – application for garnishee order to enforce orders for compensation made against a consulate under s 545 of the Fair Work Act 2009 (Cth) – whether given the provisions of the Vienna Convention on Consular Relations it is open to the Court to issue a garnishee order – garnishee order issued. Legislation: Consular Privileges and Immunities Act 1972 (Cth) s 5(1)
Fair Work Act 2009 (Cth) ss 340(1), 545
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 212, 213(2), 213(3), 217
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.06, 25.11, Sch 1
Federal Court Rules 2011 (Cth) r 39.06
Civil Procedure Act 2005 (NSW) ss 17, 101, 106, 117
Uniform Civil Procedure Rules 2005 (NSW) r 39.35
Vienna Convention on Consular Relations Arts 1, 2, 3, 5, 12, 31, 33, 43
Cases cited: Al-Attar v Consulate General of the Republic of Iraq, Sydney (No 2) [2021] FCCA 1612
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11
Ex Parte The Newport Marsh Trustees [1848] EngR 891; (1848) 16 Sim 346; 60 E.R. 907
Jefferys, Gentleman, one, &c, against Gurr, Treasurer of the Guardians of Chatham Poor [1831] EngR 862; (1831) 2 B & Ad 833; 109 E.R. 1352
Sultan v Consulate General of the Republic of Iraq, Sydney (No 2) [2021] FCCA 1610
The Conservators of the River Tone, in the County of Somerset, against Ash and Others [1829] EngR 211; (1829) 10 B & C 349; 109 E.R. 479
Yalda v Consulate General of the Republic of Iraq, Sydney (No 2) [2021] FCCA 1611
Division: Fair Work Number of paragraphs: 45 Date of hearing: 8 and 15 July 2022 Place: Sydney In SYG 1753 of 2019: The Applicant: Appeared in person on 8 July 2022 but not on 15 July 2022, by telephone Solicitor for the Respondent: Mr T Gooch of Macpherson Kelley appeared on 8 July 2022 but not on 15 July 2022, by telephone In SYG 1754 of 2019: The Applicant: Appeared in person on 15 July 2022 but not on 8 July 2022, by telephone Solicitor for the Respondent: Mr T Gooch of Macpherson Kelley appeared on 8 July 2022 but not on 15 July 2022, by telephone In SYG 1756 of 2019: The Applicant: Appeared in person on 15 July 2022 but not on 8 July 2022, by telephone Solicitor for the Respondent: Mr T Gooch of Macpherson Kelley appeared on 8 July 2022 but not on 15 July 2022, by telephone ORDERS
SYG 1753 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JALAL SULTAN
ApplicantAND: CONSULATE GENERAL OF THE REPUBLIC OF IRAQ, SYDNEY
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
29 JULY 2022
THE COURT ORDERS THAT:
1.The Court issue a garnishee order for debts in the form of the garnishee order for debts set out in the schedule to this order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
SCHEDULE
GARNISHEE ORDER FOR DEBTS
COURT DETAILS Court Federal Circuit and Family Court of Australia (Division 2) Registry Sydney Case number SYG 1753 of 2019 TITLE OF PROCEEDINGS Applicant Jalal Sultan Respondent Consulate General of the Republic of Iraq, Sydney GARNISHEE ORDER Name of garnishee Commonwealth Bank of Australia Address of garnishee 48 Martin Place, Sydney NSW 2000 Judgment debtor Consulate General of the Republic of Iraq, Sydney Address of judgment debtor Level 4/75 Elizabeth Street, Sydney NSW 2000 1.It is ordered that all debts that are due or accruing from the garnishee to the judgment debtor at the time of service of this order are attached to the extent of USD34,251.86 to answer a judgment in these proceedings.
2.You are ordered to pay any amount so attached to Jalal Sultan, the judgment creditor, within 14 days after the date on which the order is served on the garnishee or, if the debt attached is a debt that falls due after that date, within 14 days after the date on which the debt becomes due.
NOTICE TO GARNISHEE Please read the attached information sheet.
If you do not to comply with this garnishee order, the court may give judgment in favour of the judgment creditor against you for the amount of the debt or for the unpaid amount of the judgment debt, whichever is the lesser.
Details of debt attached under garnishee order Commonwealth Bank of Australia, Martin Place Branch, 48 Martin Place, Sydney NSW 2000: USD account of the Consulate General of the Republic of Iraq, Sydney. You can get further information about this garnishee order from:
·A legal practitioner.
·LawAccess NSW on 1300 888 529 or at court registry for limited procedural information.
ISSUING DETAILS Garnishee order made on 29 July 2022 Issued at Sydney Signature Capacity Judge of the Federal Circuit and Family Court of Australia (Division 2) JUDGMENT CREDITOR’S DETAILS Name Jalal Sultan Address for service Unit 5 30 Darcy Road Wentworthville New South Wales 2145 Telephone 0419 995 427 Fax [email protected] IMPORTANT INFORMATION FOR THE GARNISHEE
Please read this notice and the garnishee order for debts very carefully.
Attached to this notice is a garnishee order for debts issued out of the Federal Circuit and Family Court of Australia (Division 2).
The order requires you (the garnishee) to pay money you are holding on behalf of or owe to the judgment debtor to the judgment creditor in satisfaction of the judgment debt.
The garnishee order takes effect from when it is served on you.
Time within which payment to be made
Payment must be made to the judgment creditor within 14 days after the date of service of this order or, if the order attaches a debt that falls due after that date, within 14 days after the date on which the debt falls due.
Making payments
Payment must be made to the judgment creditor at the address specified in the garnishee order.
You are entitled to retain a maximum of $13.00 to cover your expenses in complying with the garnishee order. Any amount that you retain for expenses does not operate to reduce the judgment debt.
Any amount paid under one or more garnishee orders must not, in total, reduce the amount of the aggregate debt that is due and accruing from the garnishee to the judgment debtor to less than the standard workers compensation weekly benefit (section 118A Civil Procedure Act 2005). This amount is adjustable – refer to the WorkCover NSW website to determine the applicable rate.
A payment to the judgment creditor must be accompanied by a statement showing:
The amount attached under the garnishee order.
How much of that amount has been retained by you for your expenses.
How much of the amount has been paid to the judgment creditor.
What if there is no debt due or accruing?
If you believe that there is no debt payable by you to the judgment debtor at the time of service of this order you may serve a statement to that effect on the judgment creditor. The statement must be in the approved form and set out the reasons you believe that there is no debt payable. Approved forms are available from the UCPR website at or at any NSW court registry.
Debts yet to accrue
If the garnishee order attaches a debt that is due for payment to the judgment debtor more than 28 days after service of this order on you, you must, within that period of 28 days, serve notice of that fact on the judgment creditor. The notice must specify the date on which the debt is, or is likely to be, due for payment to the judgment debtor and, if the amount of the debt is less than the unpaid amount of the judgment debt specified in the garnishee order, the amount of the debt.
Lien or claim of third person
If you claim that some person, other than the judgment debtor, is or may be entitled to any money paid under the garnishee order, any debt attached by the garnishee order or any charge, lien or other interest in any such money or debt, you may apply to the court to determine your claim.
When garnishee not obligated to pay amount to judgment creditor
A garnishee order does not operate to attach to a debt if the debt is an amount of less than $20 standing to the credit of the judgment debtor in a financial institution.
ORDERS
SYG 1754 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MARIAM YALDA
Applicant
AND: CONSULATE GENERAL OF THE REPUBLIC OF IRAQ, SYDNEY
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
29 JULY 2022
THE COURT ORDERS THAT:
1.The applicant have liberty to file an application for the issue of a garnishee order for debts, such application to be made by completing and filing:
(a)a document in or substantially in the form of Form 69 (version 7) approved under s 17 of the Civil Procedure Act 2005 (NSW) (CP Act); and
(b)a document in or substantially in the form of Form 70 (version 7) approved under s 17 of the CP Act.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
ORDERS
SYG 1756 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALI AL-ATTAR
Applicant
AND: CONSULATE GENERAL OF THE REPUBLIC OF IRAQ, SYDNEY
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
29 JULY 2022
THE COURT ORDERS THAT:
1.The applicant have liberty to file an application for the issue of a garnishee order for debts, such application to be made by completing and filing:
(a)a document in or substantially in the form of Form 69 (version 7) approved under s 17 of the Civil Procedure Act 2005 (NSW) (CP Act); and
(b)a document in or substantially in the form of Form 70 (version 7) approved under s 17 of the CP Act.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
These reasons for judgment address an unusual question: is it open to the Court to make a garnishee order in aid of execution of orders for compensation (compensation orders) I made under s 545(2)(b) of the Fair Work Act 2009 (Cth) (FW Act) against the respondent, the Consulate General of the Republic of Iraq, Sydney (Consulate)? If that question is answered in the affirmative, a second question arises: should I make a garnishee order?
The determination of these questions turns on the provisions of the Vienna Convention on Consular Relations (Consular Convention) which, under s 5(1) of the Consular Privileges and Immunities Act 1972 (Cth), and subject to the provisions of that Act, has the force of law in Australia. More particularly, it turns on whether the Consular Convention constitutes the Consulate a distinct legal person and, if so, whether any immunity conferred by the Consular Convention prevents this Court from making a garnishee order, assuming the Court would otherwise have power to make such order.
HOW QUESTIONS ARISE
Three former employees of the Consulate, Ms Yalda, Mr Al-Attar, and Mr Sultan, commenced separate proceedings against the Consulate for relief under the FW Act.
On 19 March 2021 I made declarations that the Consulate had contravened s 340(1) of the FW Act in relation to Ms Yalda and Mr Al-Attar, and on 16 July 2021 I made compensation orders that the Consulate pay to Ms Yalda and to Mr Al-Attar USD18,377 and USD40,500 respectively.[1] On 16 July 2021 I made a declaration that the Consulate contravened s 340(1) of the FW Act in relation to Mr Sultan, and I made a compensation order that the Consulate pay to Mr Sultan USD32,400.[2]
[1] Yalda v Consulate General of the Republic of Iraq, Sydney (No 2) [2021] FCCA 1611; Al-Attar v Consulate General of the Republic of Iraq, Sydney (No 2) [2021] FCCA 1612
[2] Sultan v Consulate General of the Republic of Iraq, Sydney (No 2) [2021] FCCA 1610
On 17 June 2022 Mr Sultan attempted to lodge with the Registry a number of documents. The first is an application in a proceeding seeking the following orders (errors in original):
1.Paying USD32,400 in accordance with paragraph 2; Pursuant to s 545(2)(b) of the FW Act the respondent pay the applicant compensation in the amount of USD32,400 being the loss the applicant suffered by reason of the respondent’s contravention of s 340(1) of the FW Act.
2.To pay interest USdl678.58 according to paragraph 62; I am therefore satisfied that the fair measure of the economic loss Mr Sultan suffered because of the Consulate's contravention of s 340(1) of the FW Act is an amount that reflects 12 months’ worth of salary, inclusive of interest. Given Mr Sultan was paid a monthly salary of USD2,700, I propose to order that the Consulate pay to Mr Sultan USD32,400, which represents his annual salary.
3.Calculated as
4.6.10% X 32,400 = 1976.4/365 = 5.4148 X 310 = USD1678.58
5.The total: 1,678.58+32,400= US$ 34,078.58
The second document is an affidavit by Mr Sultan which in large part repeats the orders sought in the application in a proceeding.
The third document is a “Form 70 (version 7)” approved under the Civil Procedure Act 2005 (NSW) (CP Act) titled “Garnishee Order for Debts”. It identifies the Commonwealth Bank of Australia as the garnishee, and, in the section headed “Garnishee Order”, contains the following:
1.It is ordered that all debts that are due or accruing from the garnishee to the judgment debtor at the time of service of this order are attached to the extent of US$ 34,078.58 to answer a judgment in these proceedings.
2.You are ordered to pay any amount so attached to the judgment creditor within 14 days after the date on which the order is served on the garnishee or, if the debt attached is a debt that falls due after that date, within 14 days after the date on which the debt becomes due.
The fourth document is a form “NCF6 Request for Enforcement”, being an interim form identified in a document titled “National Court Framework (NCF) Forms” published on the webpage of the Federal Court of Australia.[3] The document, as completed by Mr Sultan, identifies the orders Mr Sultan seeks to be enforced, and repeats the orders he seeks in the application in a proceeding.
[3] < National Court Framework (NCF) Forms (fedcourt.gov.au)> accessed 18.07.2022
On 17 June 2022 the Registry sent the following email to Mr Sultan:
Thank you for your email below.
I note that you have included the Federal Court of Australia Form NCF6 (Request for Enforcement) along with your documents. This document is only required if you are lodging a Request for Enforcement with the Federal Court of Australia.
To accompany the Application in a Proceeding, Affidavit, and UCPR Form 70 – Garnishee Order for Debts, you will also need to complete UCPR Form 69 – Notice of Motion Garnishee Order, which can be accessed from Uniform Civil Procedure Rules (UCPR) forms (nsw.gov.au).
So that we can progress your application, please complete the form and return it by email to [email protected].
On 22 June 2022 Mr Sultan sent to the Registry an email attaching a document titled “Notice of Motion Garnishee Order”. The document is a “Form 69 (version 7)” approved under s 17 of the CP Act. It identified the Consulate as the “Defendant” and “judgment debtor”, and the Commonwealth Bank of Australia as the “proposed garnishee”. Under the heading “Orders Sought” there appear the words “A garnishee order against The Consulate General of the Republic of Iraq, Commonwealth Bank of Australia for judgement [sic]” (emphasis in original), after which there appear the orders sought in the application in a proceeding. The form contains the following affidavit deposed by Mr Sultan (errors in original):
1.I am the judgment creditor.
2.The Consulate General of the republic of Iraq is a person liable to pay the judgment.
3.The amount payable under the judgment (including any prior enforcement costs but excluding interest after judgment under section 101 of the Civil Procedure Act 2005) as at the date of this affidavit is US$ 32,400.
4.Interest payable under section 101 of the Civil Procedure Act 2005 is US$1,678.58.
5.The amounts claimed for costs for the issue of the order are:
Service fees $
Solicitors fees AUD $ 6000
TOTAL US$ 34,078.58 +AUD $6000
6.The proposed garnishee is identified in the notice of motion at DETAILS ABOUT PROPOSED GARNISHEE.
The proposed garnishee order is in relation to the following debt: Commonwealth Bank of Australia, 48 Martin Place Sydney NSW 2000. US$ Account of The Consulate General of the Republic of Iraq.
Any debts are or are reasonably likely to be owed by the garnishee to the judgment debtor because The Consulate General of the Republic of Iraq holding all financial transactions with Commonwealth Bank of Australia Martin Place Branch
The application in a proceeding and Mr Sultan’s affidavit were accepted for filing. These documents, but not the other documents Mr Sultan forwarded to the Registry, came to my attention; and, at my direction, the application in a proceeding was listed for hearing before me on 8 July 2022. At the hearing Mr Sultan appeared by telephone, and Mr Gooch appeared for the Consulate also by telephone. Mr Gooch said he did not have instructions in relation to Mr Sultan’s application. Mr Sultan, for his part, said he had lodged some documents seeking a garnishee order. I was not aware of these documents, but after my associate searched the electronic file, it was apparent that Mr Sultan had lodged such documents. I made the following orders:
1.By 13 July 2022 the respondent file and serve submissions on why orders in aid of the enforcement of the orders made on 16 July 2021, including an order that the respondent file an affidavit of assets and liabilities, or an order that the proper officer of the respondent appear to be examined as to the respondent’s assets and liabilities, should not be made.
2. The matter be listed for the hearing of the question identified in order 1 at 9:45 am on 15 July 2022.
At my direction, on 8 July 2022 the Court sent the following email to the parties in each of the proceedings Ms Yalda, Mr Al-Attar, and Mr Sultan commenced against the Consulate:
Dear Parties,
I attach a sealed copy of the orders his Honour made in SYG1753/2019 this morning.
His Honour has decided to list each of matters SYG1754/2019 and SYG1756/2019 at 9:45 am on 15 July 2022 to hear submissions on the question identified in order 1 of the attached orders.
The parties may appear in person in Court 8.1, Level 8, 80 William St, Sydney, or by telephone.
To join the interlocutory hearing by telephone please call (02) 9161 1229 and enter the following conference ID: 235 469 294#.
On 11 July 2022 Mr Gooch sent to the Court (copied to Ms Yalda, Mr Al-Attar, and Mr Sultan) the following email:
Dear Registrar,
We refer to the Orders made by His Honour Justice Manousaridis in these proceedings last Friday, 8 July 2022.
We are instructed by our client Consul General that due to Eid al-Adhar, the second of the two main religious holiday celebrations for Islam, the Iraqi Government is having a one week Eid break, will be closed throughout this period and will only resume its normal business operations in Iraq on Sunday, 17 July 2022.
In these circumstances it will be appreciated that it will be difficult if not impossible for the Australian Consulate to communicate with Iraq and for us to obtain instructions in relation to the Orders made by His Honour until after Sunday, 17 July 2022.
Accordingly, we respectfully request that His Honour might consider amending his previous Orders by:
1.Rescheduling the hearing referred to in Order 2 to 29 July 2022; and
2.Requiring the Respondent file and serve Submissions pursuant to Order 1 on or before 27 July 2022
We have copied each of the applicants on this email
This email was brought to my attention and, at my direction, the Court sent to the parties the following email:
Dear Parties,
The below email has been brought to the attention of Judge Manousaridis.
His Honour will grant the adjournment requested by the respondent if all parties agree.
Can the applicants please inform the Registry whether they agree to the adjournment requested by the respondent.
None of Ms Yalda, Mr Al-Attar, and Mr Sultan agreed to the adjournment.
The matters came for hearing before me at 9:45 am on 15 July 2022. Mr Sultan did not appear; and no one appeared for the Consulate. Ms Yalda and Mr Al-Attar, however, did appear by telephone. Ms Yalda and Mr Al-Attar confirmed that the Consulate had not paid them the compensation I had ordered on 16 July 2021 the Consulate pay to them; and they asked the Court to do what is in its power to ensure the Consulate pays that compensation. In each of the three proceedings I made an order reserving judgment on the question of what orders, if any, should be made in aid of execution of the compensation orders I made on 16 July 2021. On 28 July 2022 the parties were informed that the matter would be listed for judgment at 9:30 am on 29 July 2022.
DOES THE CONSULAR CONVENTION CONSTITUTE THE CONSULATE A DISTINCT LEGAL PERSON?
Whether the Consular Convention constitutes the Consulate a distinct legal person depends on a number of provisions of the Consular Convention, and principles of the common law relating to artificial legal persons.
Consular Convention
As noted in the preamble to the Consular Convention, “consular relations have been established between peoples since ancient times”; and, by the time the Consular Convention was adopted in 1963, consular relations were governed by a small number of customary rules of international law, with additional norms being developed by bilateral and regional treaties.[4] These rules and norms covered a number of subjects: the status of consular officials; the privileges and immunities of such officials (which, in turn, largely concerned the extent to which consular officials are subject to the jurisdiction and processes of local courts); and the inviolability of consular archives and consular premises. The first and second of these subjects dealt with individuals who perform consular functions; and the third subject dealt with things that have a relation to the performance of consular functions – documents used or created in the course of carrying out consular functions, and the premises that are used to carry out such functions.
[4] Tee, L. T., and Quigley, J. B., Consular Law and Practice 3rd edition, 2008, page 16
This broad structure is reflected in the Consular Convention.
(a)First, the Consular Convention provides for the establishment of consular relations between states. Art 2 of the Consular Convention requires that this may only be done by mutual consent.
(b)Second, the Consular Convention identifies the activities that comprise “consular relations”. These are the activities identified in Art 5 of the Consular Convention as “consular functions”. Consular relations are those that are established on a receiving state agreeing to a sending state to exercise on the receiving state’s territory consular functions; and consular relations are maintained during the time for which the sending state exercises consular functions.
(c)Third, Art 3 of the Consular Convention identifies by whom consular functions may be exercised: “Consular functions are exercised by consular posts”. “Consular post” is defined in Art 1(1)(a) of the Consular Convention to mean “any consulate-general, consulate, vice consulate or consular agency”.
(d)Fourth, the Consular Convention identifies the individuals who may perform consular functions. Art 1(2) of the Consular Convention describes these individuals as “consular officers”, and it identifies two categories: “career consular officers”, and “honorary consular officers”. A “consular officer” is defined in Art 1(1)(d) of the Consular Convention to mean “any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions”. The expression “head of consular post” is defined in Art 1(1)(c) of the Consular Convention to mean “the person charged with the duty of acting in that capacity”. Under Art 12(1) of the Consular Convention the head of a consular post is admitted to his or her function after the receiving state issues an authorisation termed an “exequatur”.
(e)Fifth, the Consular Convention identifies individuals who, under Art 1(1)(g), are “members of the consular post”. There are three classes of persons: “consular officers” (as defined in Art 1(1)(d)), “consular employees”, and “members of the service staff”. A “consular employee” is defined in Art 1(1)(e) of the Consular Convention to mean “any person employed in the administrative or technical service of a consular post”; and a “member of the service staff” is defined in Art 1(1)(f) to mean “any person employed in the domestic service of a consular post”.
Having identified that which comprises “consular relations”, namely, a sending state’s consular post exercising consular functions in the receiving state’s territory, and the individuals through which the consular post is to exercise consular functions, the Consular Convention confers immunities. These include immunities in relation to things, and immunities in relation to consular officers and other members of the consular post.
As to things, there are two relevant immunities. The first is the inviolability of “consular premises”, an expression which is defined in Art 1(1)(j) of the Consular Convention to mean “the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used exclusively for the purposes of the consular post”. The immunity is conferred by Art 31 of the Consular Convention, which relevantly provides:
1.Consular premises shall be inviolable to the extent provided in this Article.
2.The authorities of the receiving State shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State. The consent of the head of the consular post may, however, be assumed in case of fire or other disaster requiring prompt protective action.
The second immunity in relation to things relates to “consular archives and documents”. Art 33 of the Consular Convention provides that the “consular archives and documents shall be inviolable at all times and wherever they may be”. “Consular archives” is defined in Art 1(1)(k) to include:
all the papers, documents, correspondence, books, films, tapes and registers of the consular post, together with the ciphers and codes, the card‑indexes and any article of furniture intended for their protection or safekeeping.
The Consular Convention confers a number of immunities on members of the consular post. One is the “immunity from jurisdiction” conferred by Art 43 of the Consular Convention, which provides:
1.Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.
2.The provisions of paragraph 1 of this article shall not, however, apply in respect of a civil action either:
(a)arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or
(b)by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft.
It is apparent from the text and structure of the Consular Convention that it distinguishes between functions and things, on the one hand, and persons, on the other.
(a)The functions the Consular Convention identifies are “consular functions”; and the things it identifies include “consular archives and documents” and “consular premises”.
(b)The Consular Convention identifies two classes of persons.
(i)The first is the consular post. It is the consular post that exercises the consular functions; and it is by reference to the purposes of the “consular post” that premises are defined as consular premises; and consular archives are defined by reference to the consular post – the archives must be “of” the consular post.
(ii)The second class of persons are natural persons. These include consular officials through whom the consulate post exercises consular functions; consular employees, whom the consulate post employs to assist consular officials to perform their consular functions, and other persons who are employed either in the domestic service of the consular post, or solely in the private service of a member of the consular post.
(c)Finally, the Consular Convention confers immunities both on things – consular premises, and consular archives; and on individuals – consular officers.
Common law principles in relation to artificial legal persons
The ubiquity of the registered corporation has largely pushed out of consciousness the fact that the common law, for centuries, has recognised that in particular circumstances legal rights and duties may attach to artificial persons that have been, and may still be called “bodies politic”, “bodies corporate”, or “corporations”.[5] That the common law recognised artificial persons, and the reasons for doing so, were noticed by Blackstone:[6]
But, as all personal rights die with the person; and, as the necessary forms of investing a series of individuals, one after another, with the same identical rights, would be inconvenient, if not impracticable; it has been found necessary, when it is for the advancement of the public to have any particular rights kept on foot and continued, to constitute artificial persons, who maintain a perpetual succession, and enjoy a kind of legal immortality.
These artificial persons are called bodies politic, bodies corporate . . . or corporations: of which there is a great variety subsisting, for the advancement of religion, or learning, and of commerce; in order to preserve entire and for ever those rights and immunities, which, if they were granted only to those individuals of which the body corporate is composed, would upon their death be utterly lost and extinct.
[5] See Grant, J., A Practical Treatise on the Law of Corporations, London: Butterworths 1850
[6] Blackstone, W., Commentaries on the Laws of England, Book 1 Oxford 1765, page 455
The common law divided corporations into corporations sole and corporations aggregate; and it recognised that corporations aggregate may be created in different ways. One way was by implication.[7] Whether a corporation has been created by implication has often been considered in the context of statutes that prescribe or permit particular tasks to be taken by a body of persons.[8] A striking example was considered by the High Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail.[9]
[7] “A body is said to be a corporation by implication, when, being constituted by any legal means, it is found that the purposes intended cannot be carried into effect without attributing the corporate character to such body”: Grant, J., A Practical Treatise on the Law of Corporations, London: Butterworths 1850, at page 6, fn. (b)
[8] See, for example, The Conservators of the River Tone, in the County of Somerset, against Ash and Others [1829] EngR 211; (1829) 10 B & C 349; 109 E.R. 479; Jefferys, Gentleman, one, &c, against Gurr, Treasurer of the Guardians of Chatham Poor [1831] EngR 862; (1831) 2 B & Ad 833; 109 E.R. 1352; Ex Parte The Newport Marsh Trustees [1848] EngR 891; (1848) 16 Sim 346; 60 E.R. 907
[9] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11
In Queensland Rail a statute established a body (Authority); conferred on it the capacity to acquire legal rights and to be made subject to liabilities, to sue and be sued, and to own property; but the statute provided that the Authority is not a corporation. The question was whether the Authority is a “trading corporation formed within the limits of the Commonwealth”, within the meaning of s 51(xx) of the Constitution. The Authority accepted it was a distinct entity; but it submitted it was not a corporation. The Authority’s case was premised on their being “a class of artificial right and duty bearing entities (other than bodies politic) called either “corporations” or “bodies corporate” and a class of those entities which are not, and cannot be, described by either expression”.[10] The plurality and Gageler J rejected that submission.
[10] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11, at [25]
The plurality held that whether a body is a corporation depends on whether the body “is created as a separate right and duty bearing entity”; and it concluded the Authority was such a body:[11]
[T]he Authority is created as a separate right and duty bearing entity. It may own, possess and deal with real or personal property. It is an entity which is to endure regardless of changes in those natural persons who control its activities and, in that sense, has “perpetual succession”. Its constituting Act provides for mechanisms by which its assumption of rights and duties may be formally recorded and signified. The Authority has “the full character of a corporation”.
[11] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11, at [38]
Gageler J referred to,[12] and quoted most of, the following passage from Maitland’s article “The Corporation Sole”:[13]
Persons are either natural or artificial. The only natural persons are men. The only artificial persons are corporations. Corporations are either aggregate or sole.
This, I take it, would be an orthodox beginning for a chapter on the English law of persons, and such it would have been at any time since the days of Sir Edward Coke.
[12] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11, at [52]
[13] F W Maitland “Corporation Sole” (1900) 16 LQ Rev. 335, at page 335
His Honour was of the view that this statement reflects the current position, namely, all artificial persons are corporations:[14]
The term “corporations” is, and was in 1900, readily capable of encompassing all artificial legal persons; that is to say, all entities, not being merely natural persons, invested by law with capacity for legal relations. . . . The constitutional context, both structural and historical, points in favour of the application of the broad orthodox historical meaning.
[14] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11, at [65]
Consular Convention does constitute Consulate a corporation
The Consular Convention does not contain express provisions to the effect that a consular post may sue or be sued, or may enter into contracts, or may hold or own property. But the text of the Consular Convention necessarily implies a consular post has such capacity. It is the consular post that is permitted to exercise consular functions; and it can only do so through its engaging natural persons, and on the basis of its securing consular premises on which the consular post may exercise its consular functions. This necessarily implies the capacity by a consular post to enter into legal relations with the individuals by which the consular post is to exercise consular functions, and with persons who supply the premises on which those consular functions are to be exercised, and with persons who supply all the goods and services that are required to exercise the consular functions. Thus, a consular post, once established according to the Consular Convention, is invested by the Consular Convention with the capacity for legal relations; and, for that reason, is a corporation.
There can be no question that at the time I made the compensation orders the Consulate was a “consular post” within the meaning of Art 1(1)(a) of the Consular Convention, and that it exercised consular functions. That means that the Consular Convention invested the Consulate with the capacity for legal relations; and, for that reason, it is a corporation. It is open to infer, and I find, the Consulate continues to exercise consular functions, and, therefore, continues to be a corporation.
OPEN TO MAKE GARNISHEE ORDER?
The Consular Convention does not confer on a consular post immunity from the jurisdiction or processes of local courts; it only grants immunity in the form of rendering inviolable things that have a relation to the consular post, namely, consular premises and consular archives. That means that the Consulate, being a consular post, was and continues to be the subject of the jurisdiction and at least some of the processes of this Court. That includes the Consulate’s being subject to orders that may be made in aid of execution of the compensation orders, provided such orders do not intrude on the Consulate’s right to maintain inviolate the premises it uses for the purposes of its exercising consular functions, or the right it has to maintain inviolate the archives that it has created or holds for such purposes.
The question is whether enforcement by the making of a garnishee order will intrude on the Consulate’s right to maintain inviolate its premises and archives.
The enforcement of judgments of the FCFC Court by means of garnishee order
I begin with s 213(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Act), which deals with the means by which judgments and orders of the Federal Circuit and Family Court of Australia (Division 2) (FCFC Court) may be enforced:
A person in whose favour a judgment of the Federal Circuit and Family Court of Australia (Division 2) is given is entitled to the same remedies for enforcement of the judgment in a State or Territory, by execution or otherwise, as are allowed in like cases by the laws of that State or Territory to persons in whose favour a judgment of the Supreme Court of that State or Territory is given.
Subsection 213(3) of the FCFC Act provides that s 213(2) “has effect subject to the Rules of Court”. That is a reference to the rules of court made pursuant to s 217 of the FCFC Act, and these are to be found in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules). The relevant rule is r 25.11, which provides:
(1)A party may apply to the Court to issue a writ, order or any other means of enforcement of a judgment or order that can be issued or taken in the Supreme Court of the State or Territory in which the judgment or order was made, as if it were a judgment or order of that Supreme Court.
(2)An order made under subrule (1) authorises the Sheriff, when executing the orders of the Court, to act in the same manner as a similar officer of the Supreme Court of the State or Territory in which the order is being executed is entitled to act.
(3)A party who wants to enforce an order in more than one State or Territory may adopt the procedures and forms of process of the Supreme Court of the State or Territory in which the judgment or order was made.
A judgment of the FCFC Court may be enforced by means of a garnishee order, because, under s 106 of the CP Act, a judgment entered by the Supreme Court of New South Wales can be enforced by means of, among other things, a “garnishee order”. A form of garnishee order has been approved under s 17 of the CP Act, and is Form 70, being the form Mr Sultan submitted.
The nature of a garnishee order is apparent from its face. It is an order directed to a debtor of the judgment debtor; and it requires the debtor to pay to the judgment creditor the amount the debtor owes to the judgment debtor or, if the amount the debtor owes the judgment debtor exceeds the amount of the judgment debt, an amount not exceeding the amount of the judgment debt. The legal effect of a garnishee order, however, is specified in s 117 of the CP Act, which provides:
(1)Subject to the uniform rules, a garnishee order operates to attach, to the extent of the amount outstanding under the judgment, all debts that are due or accruing from the garnishee to the judgment debtor at the time of service of the order.
(2)For the purposes of this Division, any amount standing to the credit of the judgment debtor in a financial institution is taken to be a debt owed to the judgment debtor by that institution.
The making of a garnishee order directed to a bank with which a consular post holds an account to enforce a judgment debt owed by the consular post does not infringe any right the consular post may have in relation to the inviolability of the premises it uses for the purpose of exercising consular functions, or in relation to the inviolability of any documents it has created for such purpose. That which the garnishee order requires must be performed by the bank, not by the Consulate; and not by any member of the consulate post.
I am therefore satisfied that it is open to this Court to make a garnishee order against a bank with which the Consulate holds an account.
Mr Sultan’s application for garnishee order
Mr Sultan applies that I make an order in terms of the draft garnishee order he lodged with the Registry, that draft being in the form of Form 70. Mr Sultan supports his application with the document titled “Notice of Motion Garnishee Order”. Mr Sultan completed and submitted this form presumably pursuant to r 39.35 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), which relevantly provides
(1)Unless the court orders otherwise, an applicant for a garnishee order must file an affidavit in support of the application, being an affidavit sworn not more than 14 days before the date of filing.
(2)The affidavit in support –
(a)must identify the garnishee, and any debts that are, or are reasonably likely to be, owed by the garnishee to the judgment debtor, and
(a1)must state the grounds relied on in support of identifying a debt for the purposes of paragraph (a), and
(b)must state the amount payable under the judgment, together with any costs and interest payable in relation to the judgment, as at the date of swearing of the affidavit . . .
The reference in r 39.35 of the UCPR to “interest payable” is a reference to interest which s 101 of the CP Act provides becomes payable on a judgment debt. Section 212 of the FCFC Act is the equivalent provision, and it relevantly provides:
(2) A judgment debt under a judgment of the Federal Circuit and Family Court of Australia (Division 2) carries interest from the date as of which the judgment is entered.
(3) Interest is payable:
(a) at such rate as is fixed by the Rules of Court; or
(b) if the Federal Circuit and Family Court of Australia (Division 2), in a particular case, thinks that justice so requires—at such lower rate as the Court determines.
The GFL rules have prescribed an interest rate, being the rate prescribed pursuant to r 39.06 of the Federal Court Rules 2011 (Cth).[15] That rule provides:
The prescribed rate at which interest is payable under [s 212(3) of the FCFC Act] is:
(a) for the period from 1 January to 30 June in any year--the rate that is 6% above the cash rate last published by the Reserve Bank of Australia before the period commenced; and
(b) for the period 1 July to 31 December in any year--the rate that is 6% above the cash rate last published by the Reserve Bank of Australia before the period commenced.
[15] Rule 39.06 of the Federal Court Rules 2011 (Cth) is incorporated into the GFL Rules by the combined operation of r 1.06 and Schedule 1, item 23
In his affidavit in support of his application for a garnishee order Mr Sultan claims $6,000 for legal costs. That amount, however, ought not be included because Mr Sultan has not engaged lawyers to represent him in the proceeding he commenced. Mr Sultan, however, is entitled to interest under s 212 of the FCFC Act on the USD32,400, being the amount of compensation the Consulate was ordered to pay to Mr Sultan; he is entitled to interest from 16 July 2021, being the day on which the compensation order was entered, up to and including 22 June 2022, being the day on which Mr Sultan made his affidavit in support of his application for a garnishee order. Mr Sultan applied an interest rate of 6.1%, which is 6% above the cash rate published by the Reserve Bank of Australia on each of 1 July 2021 and 1 January 2022, and that interest totals USD1,851.86.[16] I therefore will make an order authorising the issue of a garnishee order addressed to the Commonwealth Bank of Australia attaching USD34,251.86 in substantially the form of the draft garnishee order Mr Sultan lodged with the Registry.
[16] (32,400 x 6.1%)/365 x 342 = 1,851.86
The position of Ms Yalda and Mr Al-Attar
As I noted earlier in these reasons Ms Yalda and Mr Al-Attar seek to have the Consulate comply with the compensation orders. It is open to each of Ms Yalda and Mr Al-Attar to apply for garnishee orders in the same way that Mr Sultan has applied for a garnishee order. Accordingly, in each of the proceedings Ms Yalda and Mr Al-Attar have brought, I propose to do no more than to order that Ms Yalda and Mr Al-Attar have liberty to apply for a garnishee order, such application to be made by their filing a form substantially in the form Mr Sultan filed in support of his application for a garnishee order, together with a draft garnishee order substantially in the form Mr Sultan lodged with the Registry.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 29 July 2022
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