FEDERAL COURT OF AUSTRALIA

 

Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116

PRACTICE AND PROCEDURE – service of originating process – service outside the jurisdiction – application for leave to serve outside the jurisdiction – whether considerations concerning Australia’s international relations relevant to grant of leave to serve out – Federal Court Rules 1979 (Cth) O 8 r 2


PRACTICE AND PROCEDURE – injunction – application for leave to serve outside the jurisdiction where final injunctive relief sought – statutory public interest injunction – relevance of potential unenforceability of injunctive relief – futility


Environmental Protection and Biodiversity Conservation Act 1999 (Cth) ss 3(1), 5(4), 225, 236, 475, 478


Federal Court Rules 1979 (Cth) O 8 r 2

 

ACCC v 4WD Systems Pty Ltd (2003) 200 ALR 491 cited

 

ACCC v Chen (2003) 132 FCR 309 discussed

 

Agar v Hyde (2000) 201 CLR 552 applied

 

Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2005] FCA 664 reversed

 

Hospital for Sick Children (Board of Governors) v Walt Disney Productions Inc [1968] Ch 52 cited

 

Hughes v Western Australian Cricket Association (Inc) and Ors (1986) ATPR 40-748 cited

 

ICI Australia Operations Pty Ltd v TPC (1992) 38 FCR 248 considered

 

Japan Whaling Association v American Cetacean Society (1986) 478 US 221 considered

 

Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 cited

 

R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [2000] 1 AC 61 cited

 

HUMANE SOCIETY INTERNATIONAL INC v KYODO SENPAKU KAISHA LTD

 

NSD 995 of 2005

 

BLACK CJ, MOORE and FINKELSTEIN JJ

14 JULY 2006

SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

 

NEW SOUTH WALES DISTRICT REGISTRY

NSD 995 of 2005

 

On appeal from the Federal Court of Australia constituted by a single judge

 

BETWEEN:

HUMANE SOCIETY INTERNATIONAL INC

Appellant

 

AND:

KYODO SENPAKU KAISHA LTD

Respondent

 

JUDGES:

BLACK CJ, MOORE and FINKELSTEIN JJ

DATE OF ORDER:

14 JULY 2006

WHERE MADE:

SYDNEY

 

THE COURT ORDERS THAT:

 

1.      The appeal be allowed.


2.      The order dismissing the application for leave to serve the originating process in Japan be set aside and in lieu thereof it be ordered that the appellant have leave to serve the originating application herein together with a copy of the amended statement of claim on Kyodo Senpaku Kaisha Ltd at 4-5 Toyomi-cho Chuo-ku, Tokyo, Japan.


Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.



IN THE FEDERAL COURT OF AUSTRALIA

 

NEW SOUTH WALES DISTRICT REGISTRY

NSD 995 of 2005

 

On appeal from the Federal Court of Australia constituted by a single judge

 

BETWEEN:

HUMANE SOCIETY INTERNATIONAL INC

Appellant

 

AND:

KYODO SENPAKU KAISHA LTD

Respondent

 

 

JUDGES:

BLACK CJ, MOORE and FINKELSTEIN JJ

DATE:

14 JULY 2006

PLACE:

SYDNEY


REASONS FOR JUDGMENT

BLACK CJ AND FINKELSTEIN J

introduction

1                     The Commonwealth claims sovereignty over the Australian Antarctic Territory, but the claim is formally recognised by only four States, each of which also has a claim over part of the Antarctic.  Australia’s claim is not recognised by other States, including Japan. 

2                     The issue before the Court has come about in the following way.  The appellant is a public interest organisation with one of its objects as the protection and conservation of the environment.  It has commenced this action against the respondent, a Japanese company, alleging that its fleet of whalers has been unlawfully (that is, in breach of a law of the Commonwealth) killing, injuring, taking and dealing with Antarctic minke whales in that part of the Australian Whale Sanctuary that is adjacent to the Australian Antarctic Territory.  The appellant seeks a declaration to that effect and an injunction to restrain future contraventions.  It applied to the Court for leave to serve outside the jurisdiction. 

3                     The Federal Court can only exercise in personam jurisdiction over the Japanese company if the appellant is given leave under O 8 r 2 of the Federal Court Rules to serve the application on the respondent in Japan.  In the ex parte application for leave before the primary judge the appellant satisfied each of the required conditions for obtaining leave namely: (1) the Federal Court had subject-matter jurisdiction over the dispute; (2) the dispute fell within one of the classes of claims specified in O 8 r 1; and (3) the appellant had a prima facie case for the relief it seeks.  At that point, leave to serve should have been given in the absence of some countervailing consideration:  Agar v Hyde (2000) 201 CLR 552 at 575.  The judge refused to grant leave for two reasons: see Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2005] FCA 664.  Each of the reasons was put forward by counsel for the Attorney-General for the Commonwealth, following an invitation from the judge that he would be assisted by submissions from the Executive since, in his Honour’s view, the matter was of importance to Australia’s foreign relations: see Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2004] FCA 1510.

4                     Two factors were decisive for the judge. First, that prosecution of the action ‘may upset the diplomatic status quo under the Antarctic Treaty and be contrary to Australia’s long term national interests, including its interests connected with its claim to territorial sovereignty to the Antarctic’.  Second, that the action was futile because of ‘the difficulty, if not impossibility, of enforcement of any court order’: [2005] FCA 664 at [27] and [28].  The judge also said that:  ‘Futility will be compounded by placing the Court at the centre of an international dispute (indeed helping to promote such a dispute) between Australia and a friendly foreign power which course or eventuality the Australian Government believes not to be in Australia’s long term national interests’: at [35]. 

5                     The appellant has appealed the order refusing leave.  It says that the judge’s discretion miscarried.  We are persuaded that the appellant is correct and would reverse the judge’s order for the reasons that now follow. 

the environment protection and biodiversity CONSERVATION act

6                     The reasons must begin with an examination of the relevant legislation.  The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘the EPBC Act’) was enacted by the Parliament principally to provide for the protection of the environment, to promote ecologically sustainable development, to promote the conservation of biodiversity, to promote a cooperative approach to the protection and management of the environment, and to recognise the role of indigenous people in the conservation and ecologically sustainable use of Australia’s biodiversity: s 3.  To achieve its object of protecting the environment and promoting the conservation of Australian biodiversity, the EPBC Act established the Australian Whale Sanctuary (‘the Sanctuary’): s 225.  The Sanctuary comprises an area that includes the waters of the exclusive economic zone: s 225(2)(a).  Relevantly, that area encompasses the waters within 200 nautical miles seaward of the baseline of the Australian Antarctic Territory.  This is the area in which the respondent’s allegedly illegal activities are said to have been taking place.  To the extent that the EPBC Act has effect in relation to the outer limits of the exclusive economic zone it applies in relation to ‘(a) all persons (including persons who are not Australian citizens); (b) all aircraft (including aircraft that are not Australian aircraft); and (c) all vessels (including vessels that are not Australian vessels)’: s 5(4). 

7                     The Parliament may be taken to know about the remoteness and general conditions pertaining to the Sanctuary which its legislation has established.  It may also be taken to have appreciated that the circumstances under which its laws may be enforced in relation to the Sanctuary are quite exceptional.  It nevertheless made no provision for the exclusion of the general enforcement provisions of the EPBC Act to matters occurring within the Sanctuary, even where those matters relate to conduct by foreign persons aboard foreign vessels. 

8                     The EPBC Act creates offences for acts done within the Sanctuary.  The offences include the reckless killing or injuring of a cetacean (the Order Cetacea includes whales) (s 229), a strict liability offence of killing or injuring a cetacean (s 229A), intentionally taking, trading, keeping, moving or interfering with a cetacean (s 229B), a strict liability offence of taking, trading, keeping, moving or interfering with a cetacean (s 229C), treating an illegally killed or taken cetacean (s 229D) and possession of cetaceans killed or taken in contravention of the Act (s 230).  Each offence other than the strict liability offences is punishable on conviction by imprisonment of not more than two years or by a fine not exceeding 1,000 penalty units, or both.  A strict liability offence is punishable on conviction by fine not exceeding 500 penalty units.  The Crimes Act 1914 (Cth) presently provides that one penalty unit is equal to $110: s 4AA(1).  Section 231(a) provides that the provisions in the EPBC Act creating the offences relating to cetaceans will not apply if a permit has been granted by the responsible Minister under s 238 authorising the holder of the permit to take an action without breaching those provisions.

9                     A prosecution for an offence against the EPBC Act must be instituted by the Commonwealth Director of Public Prosecutions.  It can only be instituted against a person amenable to the jurisdiction of the relevant Australian criminal court.  The decision to prosecute is made by the Director, independently of the views of the Executive.  If a person has engaged or proposes to engage in conduct that would be an offence under the EPBC Act, s 475 provides that the responsible Minister, ‘an interested person’ (other than an unincorporated organisation) or a person acting on behalf of an unincorporated organisation that is ‘an interested person’ may apply to the Federal Court for an injunction restraining the person from engaging in that conduct.  In the case of an organisation, ‘interested person’ is defined in s 475(7).  It is not necessary to repeat the definition save to note that the appellant falls within it.  The Minister’s decision to bring or not to bring a civil proceeding for an injunction may be informed by policy considerations.  So might a decision by an interested person to bring proceedings. 

reasons for decision

10                  We take it to be settled law that provided the jurisdiction of the Federal Court is engaged by an action in respect of subject-matter with which the Court can deal, and the action is instituted by an applicant who has standing, and the action is not oppressive, vexatious or otherwise an abuse of process and, finally, the Court can assume jurisdiction over the defendant (by service or submission), the Court cannot refuse to adjudicate the dispute.  The reason is explained by Brennan J in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 239:

‘Generally speaking, it is of the nature of a legal right that the person in whom it is vested is entitled to invoke the State’s power to enforce it.  For that purpose the courts are at the service of litigants, and the rule of law rests on the courts’ duty to exercise their jurisdiction when litigants invoke it’.

It follows that, in our opinion, the judge was in error in refusing leave even if the pursuit of the claim was contrary to Australia’s foreign relations.

11                  In our view, it would in any event be both curious and anomalous if matters that could not be raised in answer to the appellant’s claim by a defendant served within the jurisdiction could nevertheless be taken into account when deciding whether to allow service out of the jurisdiction. 

12                  We are also persuaded that the primary judge was in error in attaching weight to what we would characterise as a political consideration.  It may be accepted that whilst legal disputes may occur in a political context, the exclusively political dimension of the dispute is non-justiciable.  It is appropriately non-justiciable because the court lacks competence to resolve disputes and issues of an exclusively political type, the resolution of which will involve the application of non-judicial norms: compare Japan Whaling Association v American Cetacean Society (1986) 478 US 221 at 230.

13                  Even if, in special circumstances, there is occasion for political considerations to be taken into account in deciding whether an action should be permitted to go forward, there is no room, in our view, for those considerations where, as here, the Parliament has provided that the action is justiciable in an Australian court:  R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [2000] 1 AC 61 at 107.

14                  On the question of futility, that is the lack of means of making an injunction effective, we also disagree with the approach of the primary judge in several respects.  First, while it may be accepted that an injunction is by its nature a discretionary remedy which may be refused if it cannot be enforced, the question whether an injunction should be granted is to be dealt with either in an application (if there be one) to set aside service (Agar v Hyde at 574-575) or, more appropriately, when the application itself is heard and not when the court is deciding whether there should be leave to serve out of the jurisdiction (see, by analogy, Helicopter Utilities Pty Ltd v Australian National Airlines Commission (1963) 80 WN NSW 48 at 51). 

15                  Second, it seems to us that the judge in effect imposed upon the appellant the obligation of showing that an injunction would be a useful remedy.  In fact the reverse is true.  It is the defendant who has the onus of showing that it has no assets within the jurisdiction which could be sequestrated in punishment for contempt:  Hospital for Sick Children (Board of Governors) v Walt Disney Productions Inc [1968] Ch 52 at 71. 

16                  Third, we consider that when asked to grant an injunction, the court should not necessarily contemplate that it would be disobeyed:  In re Liddell’s Settlement Trusts [1936] Ch 365 at 373-374; Castanho v Brown & Root (UK) Ltd [1981] AC 557 at 574; Republic of Haiti v Duvalier [1990] 1 QB 202 at 216; South Bucks District Council v Porter [2003] 2 AC 558 at 580.  There are many cases where parties out of the jurisdiction have been subjected to an injunction regarding their conduct abroad.  The cases to which we have referred show that if a person is properly served in accordance with the court’s exorbitant jurisdiction, that person (so far as the jurisdiction of the court is concerned) is in the same position as a person who is within its territorial jurisdiction.  Nevertheless, in an appropriate case the judge may refuse to grant an injunction because the defendant is outside the jurisdiction and is likely to ignore the order.  It will all depend upon the circumstances and, at the present stage of these proceedings, they are not yet known.

17                  The traditional view of the international community that non-monetary orders made by a foreign court should not be enforced locally is itself under review.  The issue is to be considered by the Supreme Court of Canada before which judgment is presently reserved in the appeal from Pro Swing Inc v Elta Golf Inc (2004) 71 OR (3d) 566.

18                  There is another way of considering the question of futility.  The injunctive relief that the appellant seeks is relief by way of statutory injunction under s 475 of the EPBC Act.  That section authorises the grant of what has been called a public interest injunction: see ICI Australia Operations Pty Ltd v TPC (1992) 38 FCR 248 at 256.  Section 475 and the related provisions in Div 14 of Pt 17 of the EPBC Act have their counterpart in s 80 of the Trade Practices Act 1974 (Cth) (‘the TP Act’) upon which they appear to have been largely modelled. 

19                  Parliament has determined that it is in the public interest that the enforcement provisions of the EPBC Act should be unusually comprehensive in scope.  Section 475 of the EPBC Actand its related provisions form part of a much larger enforcement scheme contained in the 21 divisions of Pt 17.  The provisions include the conferral of powers of seizure and forfeiture, powers to board and detain vessels and authority to continue a pursuit on the high seas.

20                  It is an important and distinctive feature of Div 14 of Pt 17 of the EPBC Act that, like s 80(4) of the TP Act, the Federal Court is expressly empowered to grant an injunction restraining a person from engaging in conduct whether or not it appears to the Court that the person intends to engage again in conduct of that kind and, even, whether or not there is a significant risk of injury or damage to the environment if the person engages or continues to engage in conduct of that kind: see s 479(1)(a) and (c). 

21                  The public interest character of the injunction that may be granted under s 475 of the EPBC Act is also emphasised by other elements in Div 14 of Pt 17.  Thus, as we have noted, standing is conferred upon ‘an interested person’ to apply to the Court for an injunction.  Likewise, the traditional requirement that an applicant for an interim injunction give an undertaking as to damages as a condition of the grant is negated.  Indeed, s 478 provides, expressly, that the Federal Court is not to require such an undertaking.  These modifications to the traditional requirements for the grant of injunctions have the evident object of assisting in the enforcement, in the public interest, of the EPBC Act.  This does not of course mean that the traditional requirements are irrelevant:  see ICI Australia Operations Pty Ltd v TPC at 256-257.

22                  Although ‘deterrence’ is more commonly used in the vocabulary of the law than ‘education’, the two ideas are closely connected and must surely overlap in areas where a statute aims to regulate conduct.  Thus, there being a ‘matter’ (see [28] below), the grant of a statutory public interest injunction to mark the disapproval of the Court of conduct which the Parliament has proscribed, or to discourage others from acting in a similar way, can be seen as also having an educative element.  For that reason alone the grant of such an injunction may be seen, here, as potentially advancing the regulatory objects of the EPBC Act.  Indeed, some of those objects are expressed directly in the language of ‘promotion’, including the object provided for by s 3(1)(c), namely to promote the conservation of biodiversity, which is an object that the legislation links to the establishment of an Australian Whale Sanctuary ‘to ensure the conservation of whales and other cetaceans’: s 3(2)(e)(ii).

23                  Consistently with this view it has been said in relation to s 80(4) of the TP Act that whilst the Court should not grant an injunction unless it is likely to serve some purpose, it may be that in a particular case an injunction will be of benefit to the public by marking out the Court’s view of the seriousness of a respondent’s conduct:  see Hughes v Western Australian Cricket Association (Inc) & Ors (1986) ATPR 40-748 at 48,135 and Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296 at 300.

24                  Similarly, it has been said, again in the context of s 80 of the TP Act, that the purpose of an appropriately drafted injunction may be merely to reinforce to the marketplace that the restrained behaviour is unacceptable:  ACCC v 4WD Systems Pty Ltd (2003) 200 ALR 491 at [217].  That is to say, a public interest injunction may have a purpose that is entirely educative.  In ACCC v 4WD Systems, the enjoined behaviour had ceased and there was little likelihood of repetition and yet it was considered appropriate to grant an injunction.

25                  More generally, we agree with the view expressed by Sackville J in ACCC v Chen (2003) 132 FCR 309 that the fact that an injunction granted under s 80 of the TP Act may prove difficult or even impossible to enforce is not necessarily a bar to the grant of relief, although it is a material consideration to be weighed against other circumstances relevant to the exercise of the Court’s discretion:  see at [45], citing I C F Spry, The Principles of Equitable Remedies (6th ed, 2001) at 42.

26                  Accordingly, and certainly at the stage of leave to serve out of the jurisdiction, there are added reasons why the Court, at least in a case such as this, should not refuse leave on the ground of futility.  To the contrary, it might well be open to the Court, in the proper exercise of its discretion at the trial, to grant the relief sought by way of statutory public interest injunction even though there might be no prospect of the conduct being repeated by the respondent or even because there is no prospect of the injunction being enforced.

27                  The same considerations may operate, perhaps more strongly, in relation to the declaratory relief that is also sought by the appellant.

28                  Finally, even if there is a problem with the enforcement of an injunction (if any be granted) that does not lead to the conclusion that there is no justiciable controversy or ‘matter’ before the court.  It is of course true that a ‘matter’ includes both a controversy about a right, duty or liability and the existence of a remedy to enforce that right, duty or liability.  If there were no remedy the controversy would not be capable of being quelled by the court.  But the requirement that there must be an available remedy is to say nothing about the effectiveness of that remedy in a particular case. 

29                  For these reasons we would allow the appeal and set aside the order dismissing the application for leave to serve the originating process in Japan.  In lieu thereof we would grant the appellant leave to serve the originating application together with a copy of the amended statement of claim on the respondent at its address at 4-5 Toyomi-cho Chuo-ku, Tokyo, Japan.  It has not been suggested that notice of the proceeding should be served in place of the originating process. 

 

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black and Justice Finkelstein.

 

 

Associate:

 

Dated:              14 July 2006

 



IN THE FEDERAL COURT OF AUSTRALIA

 

NEW SOUTH WALES DISTRICT REGISTRY

NSD 995 OF 2005

 

On appeal from the Federal Court of Australia constituted by a single judge

 

BETWEEN:

HUMANE SOCIETY INTERNATIONAL INC

Appellant

 

AND:

KYODO SENPAKU KAISHA LTD

Respondent

 

 

JUDGES:

BLACK CJ, MOORE and FINKELSTEIN JJ

DATE:

14 JULY 2006

PLACE:

SYDNEY


REASONS FOR JUDGMENT

MOORE J

30                  I have had the benefit of reading the reasons of Black CJ and Finkelstein J in a draft form.  It is unnecessary to repeat much of the background.  The power the primary judge was being asked to exercise is conferred by O 8 r 2 of the Federal Court Rules which provides:

(2)               The Court may, by order, give leave to serve originating process outside the Commonwealth in accordance with Division 2 or 3 of this Order or, subject to sub rule (2B) on such terms and conditions as it considers appropriate, if the Court is satisfied that:

(a)               the Court has jurisdiction in the proceedings; and

(b)               rule 1 applies to the proceeding; and

(c)                the parties seeking leave has a prima face the case for the relief sought by the party in the proceeding.

On one view of the rule, particularly having regard to its structure and the subject matter it addresses, the Court would be obliged to grant leave if the preconditions in paragraphs (a), (b) and (c) are satisfied.  On that view of the rule, and notwithstanding the use of the word 'may', the discretion would be a limited one of the type considered in Commissioner of State Revenue v Royal Insurance Australia Limited (1993) 182 CLR 51.  However, it appears the matter proceeded before the primary judge on the basis that his Honour had a residual discretion to decide whether to grant leave notwithstanding the satisfaction of the preconditions.  In addition, there are many authorities which say there is, or assume the existence of, a residual discretion: see Bray v F Hoffman-La Roche Ltd and Others (2003) 130 FCR 317 at 356; Best (Australia) Ltd v Aquagas Marketing Pty Ltd (1988) 83 ALR 217 at 222; Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd and Others (1995) 58 FCR 365 at 371; Century Insurance Ltd (In provisional liquidation) and Ors v New Zealand Guardian Trust Ltd and Ors (1996) (unreported, Fed C of A, Lee J, No. WAG 81 of 1995, 16 May 1996); Southern Cross Airlines Holdings Ltd v Arthur Anderson & Co (A firm) and Ors (unreported, Fed C of A, Cooper J, QG 170 of 1996, 27 March 1998; Bell Group Ltd (in liq) and Others v Westpac Banking Corporation and Others (1996) 20 ACSR 760; TPC v The Gillette Company and Others (No 2)(1993) 45 FCR 366; Quinlan v Safe International Försäkrings AB [2005] FCA 1362 at [26]-[27];  Equiticorp Industries Group Ltd v Hawkins [1991] 3 NZLR 700; Hartwell Trent (Australia) Pty Ltd v Tefal Societe Anonyme [1968] VR 3 and Kuwait Asia Bank EC v National Mutual Life Nominees Ltd [1991] 1 AC 187 at 212.

31                  In my opinion, the existence of a recognised residual discretion to grant leave to serve outside the jurisdiction tells against the proposition that if an applicant has standing, seeks to prosecute an action which is not oppressive, vexatious or otherwise an abuse of process, and the Court can assume jurisdiction (by service or submission), then the Court is obliged to adjudicate the dispute and a judge must grant leave to serve outside the jurisdiction.  I will return to this question later.

32                  It is convenient, at this point, to consider the way in which the primary judge exercised the discretion when refusing leave to serve outside the jurisdiction.  On 27 May 2005, his Honour dismissed the application for leave to serve the originating process on the respondent in Japan: Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2005] FCA 664.  His Honour’s decision was based upon discretionary considerations advanced on behalf of the Attorney-General for the Commonwealth appearing as amicus curiae.  These considerations can be divided into two categories. The first relates to the international political context of the dispute, and the possible adverse ramifications that permitting service in Japan may have on Australia's relations with Japan as well as on other signatories to the Antarctic Treaty.

33                  As to Australia's relations with Japan, his Honour’s focus was Japan’s likely response to any attempt at service, which might have the effect of developing into an international disagreement with Australia.  His Honour accepted that Japan would view service as the attempt to enforce rights which it did not recognise, and in addition, would view it as an illegitimate interference with its own rights, under international law, in relation to area it regards as the high seas.

34                  His Honour also appeared to accept the argument advanced by the Attorney General that service could be ‘reasonably expected to prompt a significant adverse reaction from other Antarctic Treaty Parties’ (besides Japan, which is also a party to the Treaty).  This view appeared to be based on the notion that enforcing domestic legislation of one of the parties to the Antarctic Treaty would undermine the diplomatic status quo of that Treaty, which, in addition, was contrary to Australia’s long term national interests and might endanger Australia’s claims to sovereignty in Antarctica.

35                  The primary judge also appeared to be influenced by the view that the issues disputed in the proceedings would better be dealt with by diplomatic solutions or other means which did not have the effect of placing a domestic court ‘at the centre of an international dispute’: at [29], [31] and [34]. 

36                  The second type of discretionary consideration relied upon by the primary judge was more orthodox and related to the many difficulties said to attend the enforcement of any order.  Service was unlikely to be effectual in bringing the respondent to Court, and similarly, the ultimate orders sought were unlikely to be effective in enforcing the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ('the EPBC Act').

37                  In addition, there was a further consideration apparently relied on by his Honour which drew these two strands together.  His Honour had regard to the position in which the Executive Government would necessarily be placed in terms of having to assist in the enforcement of any Court orders, in a situation where that Government viewed the orders as contrary to national interests on the basis of (non-justiciable) matters uniquely within the domain of the Executive Government.

38                  I agree with Black CJ and Finkelstein J, for the reasons their Honours have given at [11] and [12], that the primary judge erred in the exercise of his discretion by taking into account the first category of considerations.  The political repercussions of service of the process and, additionally, potentially the litigation of this application in an Australian court, are irrelevant in deciding whether to grant leave.  To allow such considerations to influence the resolution of the application for leave denies this Court its proper role in our system of government.  Courts must be prepared to hear and determine matters whatever their political sensitivity either domestically or internationally.  To approach the matter otherwise, is to compromise the role of the courts as the forum in which rights can be vindicated whatever the subject-matter of the proceedings.

39                  In taking those considerations into account, the primary judge erred in a way that authorises appellate intervention: see House v King (1936) 55 CLR 499 at 505, having allowed ‘extraneous or irrelevant matters to guide or affect him’.  This leads to a consideration of how the discretion should be exercised.  I referred earlier (at [30]) to Kuwait Asia Bank EC v National Mutual Life Nominees Ltd.  That was a judgment of the Privy Council concerning an unsuccessful application by a foreign company to set aside process invoking the jurisdiction of the New Zealand High Court.  The procedural rules of that Court enabled service of proceedings outside the jurisdiction without the leave of the Court, on the basis that the rules made provision for the person served to make an application that the proceedings be dismissed because the Court had no jurisdiction to hear and determine them.  The Privy Council concluded that, in addition to the express power to dismiss conferred by the rules, the Court retained a discretionary power to set aside the service on the same principles that governed the grant of leave to serve originating process extra-territorially in relation to a rule such as O 8 r 2 of the Federal Court Rules.  The then equivalent rule of the English Supreme Court Rules, O 11, was, in relevant respects, in substantially the same terms as O 8 r 2 of the rules of this Court.

40                  In the course of discussing the way the discretion under O 11 should be exercised, their Lordships said at 212:

‘The English R.S.C., Ord. 11, which has served as the model in most Commonwealth countries for service of process out of the jurisdiction, does not spell out the entirety of the court’s discretion to refuse leave, even where the case falls within rule 1, but that the discretion exists is not in doubt: see Johnson v. Taylor Brothers & Co. Ltd [1920] A.C. 144, 153, per Lord Birkenhead L.C. and Viscount Haldane, and Lord Dunedin who said, at p. 154:

 

"I think it is legitimate to begin by considering the genesis of the rule.  I understand that jurisdiction according to English law is based on the act of personal service and that if this is effected the English law does not feel bound by the Roman maxim ‘Actor sequitur forum rei’.  It is far otherwise in other systems where service is in no sense a foundation of jurisdiction, but merely a sine qua non before effective action is allowed.  Now service being the foundation of jurisdiction, it follows that that service naturally and normally would be service within the jurisdiction.  But there is an exception to this normal rule, and that is service out of the jurisdiction.  This however is not allowed as a right but is granted in the discretion of the judge as a privilege, and the rule in question here prescribes the limits within which that discretion should be exercised."

 

For further statements of principle one may refer to The Brabo, Vitkovice Horni v. Korner, Siskina (Owners of cargo lately laden on board) v. Distos Compania Naviera SA [1979] A.C. 210, The Hagen [1908] P 189 and The Spiliada [1987] A.C. 460 and, for a recent example, see Kloeckner & Co AG v. Gatoil Overseas Inc [1990] 1 Lloyd's Rep. 177.’

41                  It has been said by the High Court that a court should not grant leave to serve outside the jurisdiction unless ‘[the court] is positively persuaded that it should do so’: Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 565.  That statement appears to continue to identify the applicable principle in relation to provisions requiring a court’s leave to serve an originating process outside the jurisdiction on the ex parte application of a plaintiff or applicant.  Differently cast provisions concerning the exercise of a court’s exorbitant jurisdiction may require another approach: see Agar v Hyde (2000) 201 CLR 552 particularly at [51], where it is said that a plaintiff has a prima facie right to obtain leave to proceed once service outside the jurisdiction has been effected and no unconditional appearance has been filed by the defendant.  In earlier times it has been said that the discretionary power to exercise jurisdiction against a foreigner by service outside the jurisdiction should be ‘exercised with caution and with a bias against invading the sovereignty of a foreign State’ (per Lord Simonds in Vitkovice Horni A Hunti Tezirstvo v Korner [1951] AC 869 at 877).

42                  In an era of international commerce and global human engagement, it may not be necessary for courts to be overly cautious about exercising jurisdiction in relation to foreigners.  Nonetheless there remains, on the authorities, a need for courts to approach with some circumspection the grant of leave to serve outside the jurisdiction: see, for example, the observations of Nicholson J in Quinlan v Safe International Försäkrings AB at [27].

43                  But for one consideration, I would grant leave.  The applicant has demonstrated that it has an arguable case involving, from one perspective, issues of significance and public importance.  The factor which results in me not being positively satisfied that leave should be granted is the almost certain futility of the litigation the applicant wishes to pursue.  There are some older authorities to the effect that leave should not be granted if the relief sought is injunctive relief and there is no method for making the injunction effectual: see Marshall v Marshall (1888) 38 Ch D 330 and Kinahan v Kinahan (1890) 45 Ch D 78.  This is qualified by the principle that leave might be given if there was a reasonable ground for believing that the injunction will be efficacious at some time in the future: see Tozier v Hawkins (1885) 15 QBD 650 and Re Burland's Trade Mark (1889) 41 Ch D 157.

44                  More recent Australian authority would support that approach.  The jurisdiction of courts created under Chapter III of the Australian Constitution is centrally concerned with the determination of ‘matters’.  It has been said that a legally enforceable remedy is as essential to the existence of a ‘matter’ as the right, duty or liability which gives rise to the remedy: see Abebe v Commonwealth (1999) 197 CLR 510 at [31] (per Gleeson CJ and McHugh J) and Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, especially Gaudron J at [49].  More generally, this Court has been enjoined not to embark upon the determination of hypothetical questions which can include the making of a declaration in default of a defence: see Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 especially at [47].

45                  In the present matter, the relief sought is a declaration that the conduct of the respondent contravenes the EPBC Act and an injunction restraining the respondent from engaging in the contravening conduct.  It is almost certain that the respondent will not submit to the jurisdiction of an Australian court having regard to the broad political context in which it engages in whaling and, in particular, having regard to the fact that it is doing so seemingly lawfully under Japanese law with the authority of the Japanese Government.  On the evidence as it presently stands, the respondent has only the most tenuous connection with Australia, involving periodically entering remote Australian waters in the Antarctic to undertake the activities the subject of the relief sought by the appellant.  Those circumstances are quite unusual if not unique.  It is also almost certain that any proceedings in this Court will proceed ex parte.  While the applicant may ultimately obtain relief of the type sought (though plainly discretionary considerations may militate against the grant of such relief), it is not apparent to me that it will be effective relief.  That is because it is highly probable the orders will never be served or otherwise rendered efficacious.  Senior counsel for the appellant accepted that any judgment could not be registered and enforced in Japan.  In the unlikely event that this Court made an order under O 8 r 3 facilitating service in Japan of any order of this Court (whether by way of declaration or injunction), it would almost certainly be ignored.

46                  Indeed, the position of the appellant appeared to involve an acceptance that no enforceable injunction will be granted but that, at least in part, any declaration would operate to influence the Japanese Government, which is not a party to the proceedings.  In the applicant's written submissions in reply, it repeated and elaborated on a submission earlier made:

‘...... the fact that an order is likely to prove difficult or even impossible to enforce is not necessarily a bar to the grant of relief, although it is a material consideration to be weighed against other circumstances relevant to the exercise of the Court's discretion to grant relief.  The declaration sought in these proceedings does not rely upon enforcement in any foreign jurisdiction.  It will remove any doubt for the respondent that it breaches Australian law by whaling within the Australian Wildlife Sanctuary.  It should also not lightly be assumed that the Government of Japan will ignore the declaration by granting further permits to the respondent in such a manner as to allow contravention of Australian domestic laws.  Consequently, the relief sought cannot be said to be ineffective or futile and this is not a basis for refusing to grant leave to serve the proceedings.’

47                  It is not legitimate, in my opinion, for a court to sanction the commencement of proceedings by granting leave to serve outside the jurisdiction if a purpose of the application, if not the dominant purpose, is to pressure a person or body which is not a party to the proceedings.  In any event, the making of a declaration without service of the order would not bind the respondent to any determination made by this Court of its obligations and liabilities under Australian law.  It may be accepted that in litigation not intended to enforce private rights but which has a public dimension (such as enforcing a norm of conduct established by statute for the protection of the public interest), an unduly narrow view has not been adopted about the circumstances in which a bare declaration might be made: for example, Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd.   However, such cases have, as far as I am aware, involved litigation between parties within the jurisdiction of the Australian court seized of the matter.

48                  While I do not suggest that this Court is not seized of a ‘matter’ (though it is a question which has not been agitated to this point in the proceedings), authorities such as those referred to at [44] above give content to the judicial power of the Commonwealth having regard to questions of public policy.  Courts exist in our system of government to adjudicate real disputes and exert ‘actual power’, an expression used by members of the High Court in Laurie v Carroll (1958) 98 CLR 310.  In my opinion, similar considerations can inform the exercise of a discretion to grant leave to serve outside the jurisdiction.  Leave should not be given in circumstances where the proceedings only involve the adjudication of a legal controversy in form but not in substance.  As I have already said, any remedy that might be granted will be incapable of enforcement.  That feature of these proceedings denies them substance.  I would refuse leave to serve the application on the respondent.

49                  It might be thought that leave should be given on the footing that the respondent could move the court to set aside the service.  But what in fact would almost certainly happen if leave to serve was granted is that the respondent would ignore any process and would not engage with this Court in exercise of its jurisdiction.  It would do this for the reasons given at [45] above.

50                  As I would refuse leave to serve the application, the appropriate order is that the appeal be dismissed.  No question of costs arises.


I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.



Associate:


Dated:              14 July 2006


 

Counsel for the Appellant:

S Gageler SC and C McGrath

 

 

Solicitor for the Appellant:

Environmental Defender’s Office

 

 

Date of Hearing:

18 November 2005

 

 

Date of Judgment:

14 July 2006