Firebird Global Master Fund II Ltd v Republic of Nauru [2015] HCA 43

Firebird Global Master Fund II Ltd v Republic of Nauru [2015] HCA 43

Proceedings for the registration of a foreign judgment based on a commercial transaction fall within the exception to immunity in s 11(1) of the Foreign States Immunities Act 1985 (Cth); however, Nauru's bank accounts in Australia were not used or set aside for commercial purposes, so execution immunity applied. The procedures for registration under the Foreign Judgments Act and service under the Immunities Act can operate harmoniously.

Parties
Appellant: Firebird Global Master Fund II Ltd; First Respondent: Republic of Nauru; Second Respondent: Westpac Banking Corporation; Intervener: Attorney-General of the Commonwealth
Jurisdiction
Australia
Judgment Date
02 December 2015
Procedural Posture
Appeal / High Court Judgment on Appeal From the NSW Court of Appeal
Outcome
Appeal dismissed except as to variation of orders relating to registration; parties to file written submissions as to costs.
Legal Topics
Foreign State Immunity, Registration of Foreign Judgments, Immunity From Execution, Statutory Exceptions, Service of Process, Interpretation of Foreign States Immunities Act, Interpretation of Foreign Judgments Act
Public International Law Procedure Statutory Interpretation Foreign State Immunity Registration of Foreign Judgments Immunity From Execution Statutory Exceptions Service of Process +2 more

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Parties

Firebird Global Master Fund II Ltd

Appellant

Republic of Nauru

First Respondent

Westpac Banking Corporation

Second Respondent

Attorney-General of the Commonwealth

Intervener

Procedural Posture

Appeal / High Court Judgment on Appeal From the NSW Court of Appeal

Legal Issues

  1. 1 Whether the Republic of Nauru is immune under the Foreign States Immunities Act 1985 (Cth) from registration and execution in Australia of a foreign judgment under the Foreign Judgments Act 1991 (Cth)
  2. 2 Whether the exception for commercial transactions in s 11(1) of the Foreign States Immunities Act applies to registration of a foreign judgment
  3. 3 Whether the requirement for service of initiating process in Pt III of the Immunities Act applies to registration proceedings

Ratio Decidendi

Proceedings for the registration of a foreign judgment based on a commercial transaction fall within the exception to immunity in s 11(1) of the Foreign States Immunities Act 1985 (Cth); however, Nauru's bank accounts in Australia were not used or set aside for commercial purposes, so execution immunity applied. The procedures for registration under the Foreign Judgments Act and service under the Immunities Act can operate harmoniously.

Court Disposition

Appeal dismissed except as to variation of orders relating to registration; parties to file written submissions as to costs.

Orders

  • Vary paragraph (1)(ii) of the order of the Court of Appeal of the Supreme Court of New South Wales made on 23 October 2014 by deleting the order that the summons filed on 9 May 2012 be dismissed and, in lieu thereof, order that order 1 of the orders of Young AJA made on 3 October 2014 be set aside insofar as it...
  • Appeal otherwise dismissed.