Saudi Arabian Cultural Mission v Alramadi [2024] FCA 1060

Saudi Arabian Cultural Mission v Alramadi [2024] FCA 1060

Service through the diplomatic channel under s 24 of FSIA was not validly effected because the rules of court requiring leave to serve out of jurisdiction were not complied with (leave not obtained), the embassy is not the department or organ equivalent to DFAT for s 24 purposes without foreign state's authorisation or head of mission's consent, and service on the embassy breached inviolability conferred by art 22 of the VCDR, as enacted domestically. Certificate under s 40 FSIA is not conclusive as to legal validity of service. Accordingly, any purported service on 14 July 2022 was ineffective under s 25 of FSIA. The claim of immunity from jurisdiction remains to be determined.

Parties
First Applicant: Saudi Arabian Cultural Mission; Second Applicant: The Royal Embassy of Saudia Arabia in Australia (Cultural Office); First Respondent: Nidal Alramadi; Second Respondent: Alaa Elkilany; Third Respondent: Amer Hamze
Jurisdiction
Australia
Judgment Date
12 September 2024
Procedural Posture
Appeal / Post Interlocutory, Appeal Allowed
Outcome
Applications for leave and to extend time allowed; appeal allowed; orders and declaration of primary judge set aside; declaration made as to ineffectiveness of service; no order as to costs.
Legal Topics
Foreign State Immunity, Service of Process, Diplomatic Immunity, Jurisdiction, Costs Under Fair Work Act
Public International Law Private International Law Employment and Industrial Relations Foreign State Immunity Service of Process Diplomatic Immunity Jurisdiction Costs Under Fair Work Act

Case Brief

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Parties

Saudi Arabian Cultural Mission

First Applicant

The Royal Embassy of Saudia Arabia in Australia (Cultural Office)

Second Applicant

Nidal Alramadi

First Respondent

Alaa Elkilany

Second Respondent

Amer Hamze

Third Respondent

Procedural Posture

Appeal / Post Interlocutory, Appeal Allowed

Legal Issues

  1. 1 Whether the applicants were validly served under the Foreign States Immunities Act 1985 (Cth)
  2. 2 Whether rules of court regarding service out of jurisdiction are mandatory or 'facultative'
  3. 3 Whether an embassy can be the department or organ equivalent to DFAT for s 24(1) purposes

Ratio Decidendi

Service through the diplomatic channel under s 24 of FSIA was not validly effected because the rules of court requiring leave to serve out of jurisdiction were not complied with (leave not obtained), the embassy is not the department or organ equivalent to DFAT for s 24 purposes without foreign state's authorisation or head of mission's consent, and service on the embassy breached inviolability conferred by art 22 of the VCDR, as enacted domestically. Certificate under s 40 FSIA is not conclusive as to legal validity of service. Accordingly, any purported service on 14 July 2022 was ineffective under s 25 of FSIA. The claim of immunity from jurisdiction remains to be determined.

Court Disposition

Applications for leave and to extend time allowed; appeal allowed; orders and declaration of primary judge set aside; declaration made as to ineffectiveness of service; no order as to costs.

Orders

  • Applications for leave and to extend time be allowed.
  • Appeal be allowed.