Kingdom of Spain v Infrastructure Services Luxembourg S.a.r.l. (Security for Costs) [2024] FCAFC 113

Kingdom of Spain v Infrastructure Services Luxembourg S.a.r.l. (Security for Costs) [2024] FCAFC 113

The application to set aside the examination orders was not made under s 35A(5) but under r 39.05, as indicated by Spain’s own conduct and submissions before the primary judge. The primary judge did not err in ordering security for costs because Spain had not shown an intention to bring the application under s 35A(5) and the circumstances justified the conclusion that Spain would not pay adverse costs orders. Further, requiring Spain to provide security did not infringe consular immunities; the issue of immunity was not yet directly engaged.

Parties
Applicant: Kingdom of Spain; First Respondent: Infrastructure Services Luxembourg S.à.r.l.; Second Respondent: Energia Termosolaor B.V.
Jurisdiction
Australia
Judgment Date
29 August 2024
Procedural Posture
Application for Leave to Appeal (security for Costs) / Judgment on Application for Leave to Appeal
Outcome
Application for leave to appeal dismissed with costs.
Legal Topics
Security for Costs, Enforcement of Foreign Judgments, Consular Privileges and Immunities, Review of Registrar’s Orders, Federal Court Procedure
Practice and Procedure International Law Commercial Law Security for Costs Enforcement of Foreign Judgments Consular Privileges and Immunities Review of Registrar’s Orders Federal Court Procedure

Case Brief

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Parties

Kingdom of Spain

Applicant

Infrastructure Services Luxembourg S.à.r.l.

First Respondent

Energia Termosolaor B.V.

Second Respondent

Procedural Posture

Application for Leave to Appeal (security for Costs) / Judgment on Application for Leave to Appeal

Legal Issues

  1. 1 Whether the application to set aside the Registrar’s examination orders was under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) or r 39.05 of Federal Court Rules 2011 (Cth)
  2. 2 Whether the primary judge erred in ordering security for costs against a foreign state
  3. 3 Whether requiring security for costs infringes consular immunities under the Vienna Convention on Consular Relations

Ratio Decidendi

The application to set aside the examination orders was not made under s 35A(5) but under r 39.05, as indicated by Spain’s own conduct and submissions before the primary judge. The primary judge did not err in ordering security for costs because Spain had not shown an intention to bring the application under s 35A(5) and the circumstances justified the conclusion that Spain would not pay adverse costs orders. Further, requiring Spain to provide security did not infringe consular immunities; the issue of immunity was not yet directly engaged.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal be dismissed.
  • The Applicant pay the Respondents' costs.