Federal Court of Australia

DHI22 v Qatar Airways Group QCSC (No 2) [2025] FCAFC 92

ORDERS

THE COURT ORDERS THAT:

[Orders 1-6 accompany the separate reasons in DHI22 v Qatar Airways Group QCSC (No 1) [2025] FCAFC 91]

7.    Leave to appeal from orders 1 to 3 of the orders made by the primary judge on 10 April 2024 accompanying the reasons for judgment cited as DHI22 v Qatar Airways QCSC (No 3) [2024] FCA 348 be granted (the No 3 orders).

8.    The draft notice of appeal lodged for filing on 24 April 2024 (appeal ground 6) stand as the notice of appeal in the appeal from the No 3 orders.

9.    The appeal from the No 3 orders be dismissed.

10.    The appellants pay the second respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER CJ:

1    I agree with the reasons of Stellios J.

Associate:

Dated:    24 July 2025

STEWART J:

2    I agree with the reasons of Stellios J.

Associate:

Dated:    24 July 2025

STELLIOS J:

3    This application for leave to appeal, and appeal if leave is granted, arises from the determination by the primary judge of an interlocutory application by the second respondent, Qatar Civil Aviation Authority (QCAA), in reliance on s 38 of the Foreign State Immunities Act 1985 (Cth) (FSI Act), seeking to set aside:

(1)    An order made by the primary judge on 6 October 2022 granting the appellants leave to serve the originating documents in these proceedings on QCAA; and

(2)    Those originating documents, insofar as they make claims against QCAA.

4    On 10 April 2024 the orders sought were made and reasons for judgment were delivered: DHI22 v Qatar Airways QCSC (No 3) [2024] FCA 351 (PJ).

5    There were also interlocutory applications by the appellants, the first respondent and the third respondent. Those interlocutory applications were heard and determined separately by the primary judge by orders also made on 10 April 2024 and reasons for judgment cited as DHI22 v Qatar Airways QCSC (No 2) [2024] FCA 351 (Summary Judgment Decision). The appeal from those orders has been determined in separate reasons: DHI22 v Qatar Airways Group QCSC (No 1) [2025] FCAFC 91.

6    The circumstances leading to this appeal are described in the judgment of Stewart J in those separate reasons at [2]-[8]. In brief, the first instance proceeding arises out of a series of events at Hamad International Airport (HIA) in Doha, Qatar in October 2020. The appellants are five women who boarded a Qatar Airways flight bound for Sydney. They were then made to disembark. They allege that they were subjected to a total restraint of their liberty and four of them were inspected or invasively examined without their consent, some to a greater extent than others, before being directed to return to the aircraft. It was common ground that whatever happened to the five appellants was part of an exercise by Qatari officials to identify the mother of a newborn baby that had been found abandoned in a rubbish bin in an airport bathroom.

7    The appellants commenced a single proceeding against three respondents:

(1)    Qatar Airways Group QCSC, the airline;

(2)    QCAA; and

(3)    Qatar Company for Airports Operation and Management WLL, known as MATAR (a subsidiary of Qatar Airways and the operator of the airport through an agreement with QCAA).

8    The causes of action against QCAA were:

(1)    Claims by all the appellants for negligence at common law, the intentional tort of assault and the tort of false imprisonment; and

(2)    Claims by the first, third and fourth appellants for the intentional tort of battery.

Immunity decision and grounds of appeal

9    As indicated, the primary judge made orders under s 38 of the FSI Act. That section provides:

Where, on the application of a foreign State or a separate entity of a foreign State, a court is satisfied that a judgment, order or process of the court made or issued in a proceeding with respect to the foreign State or entity is inconsistent with an immunity conferred by or under this Act, the court shall set aside the judgment, order or process so far as it is so inconsistent.

(Emphasis added).

10    A “separate entity” in relation to a foreign State is defined in s 3(1) of the FSI Act to mean:

a natural person (other than an Australian citizen), or a body corporate or corporation sole (other than a body corporate or corporation sole that has been established by or under a law of Australia), who or that:

(a)     is an agency or instrumentality of the foreign State; and

(b)     is not a department or organ of the executive government of the foreign State.

11    The primary judge found that, “at least as a general proposition, the QCAA is a separate entity of a foreign State” (PJ [86]). Consequently, the power to make orders under s 38 of the FSI Act was enlivened.

12    Furthermore, by operation of s 22 of that Act, the provisions of Pt II of the Act (including ss 9 and 11 other than s 11(2)(a)(i)) “apply in relation to” QCAA as a separate entity “as they apply in relation to” the foreign State.

13    Section 9 of the FSI Act provides:

Except as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding.

14    However, as a separate entity, QCAA is also susceptible to the application of the commercial transaction exception to that immunity in s 11 of the FSI Act. Subsection 11(1) provides:

A foreign State is not immune in a proceeding in so far as the proceeding concerns a commercial transaction.

15    In substance, QCAA contended and the primary judge accepted that the analysis of whether the commercial transaction exception in s 11 of the FSI Act applied could be broken down into two stages (PJ [116], [117] and [129]). First, whether the substance of the case pleaded “concerns” a commercial transaction. Secondly, whether the commercial transaction is relevantly one which is properly characterised as falling within the terms of s 11(3) of the FSI Act. There is no challenge in this appeal to the primary judge’s two-stage approach to the application of s 11.

16    The primary judge concluded that the commercial transaction exception in s 11 of the FSI Act did not preclude QCAA from foreign State immunity (PJ [10], [11]). That was because, first, the proceeding did not “concern” a commercial transaction for the purposes of s 11(1) (PJ [117] and [128]) and, secondly, the conduct in question was not a “commercial transaction … or like commercial activity” (PJ [129] and [140]).

17    In the course of reaching those conclusions, the primary judge found:

[128]    In the present case, the conduct giving rise to the claims for contravention and relief was the alleged involvement by the QCAA in the police operation conducted by the [Qatar Ministry of Interior (MOI)] that culminated in the invasive examinations of the first to fourth applicants, and its failure to take steps to prevent (a) the applicants from being directed to disembark the aircraft and onto the tarmac, and (b) the invasive examinations from taking place. That is the “substance of the case pleaded” against the QCAA.

…

[137]    In the present context, the aspect of the impugned activity that is most relevant to the proceedings is the QCAA’s alleged participation in, or failure to prevent, the police investigation conducted by the MOI culminating in the invasive examinations in the ambulance on the tarmac.

…

[139]    In the present case, the MOI police operation was conducted in purported performance of the State of Qatar’s civic duties to maintain law and order. More specifically, it was conducted for the purpose of identifying and potentially prosecuting a woman who had allegedly committed a criminal offence by abandoning a newborn baby in a toilet cubicle in the terminal of the Doha Airport.

[140]    In my view, the QCAA’s alleged participation in, or failure to prevent, the police investigation conducted by the MOI culminating in the invasive examinations in the ambulance on the tarmac cannot plausibly be characterised as conduct falling within the commercial transaction exception within s 11(3) of the FSI Act. The conduct did not have the character of a “commercial, trading, business, professional or industrial or like transaction”.

[141]    Nor, contrary to the applicants’ submissions, is it sufficient to demonstrate that the conduct in issue in the proceeding formed part of some broader commercial activity.

…

[146]    The QCAA’s alleged participation in, or failure to prevent, the MOI police investigation were distinct acts of a separate entity of a foreign State. That conduct could not be brought within the commercial transaction exception on the basis that the applicants were fare paying passengers on a commercial airline and the relevant conduct took place on the premises of an international commercial airport.

18    The appellants’ draft notice of appeal identifies the following ground of appeal (noting that grounds 1 to 5 concern the other respondents and are dealt with in the separate reasons):

6.     The primary judge erred in concluding that the commercial transaction exception in s 11 of the [FSI Act] does not apply to preclude the [QCAA] from foreign state immunity (at [11]):

a.    The primary judge erred in not finding that the QCAA has relevantly entered or engaged in a “commercial transaction” within the meaning of s 11(3) of the FSI Act (see [129] and [140]).

b.    The primary judge erred in concluding that the proceeding does not “concern” a commercial transaction within the meaning of s 11(3) of the FSI Act (see [117] and [128]).

c.    The primary judge erred in concluding that the QCAA’s alleged participation in or failure to prevent the examinations in the ambulance on the airport tarmac is not conduct falling within the commercial transaction exception in s 11 of the FSI Act (at [140], [141] and [146]).

19    For the reasons that follow, I do not consider that the primary judge erred in the ways alleged in grounds 6(a), (b) and (c), or in concluding that the commercial transaction exception in s 11 did not apply to preclude the immunity in s 9 of the FSI Act. For those reasons, the appeal must fail.

Leave to appeal

20    There was no disagreement between the parties about the applicable principles for the grant of leave to appeal. They are set out in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; 104 FCR 564 at [43] per French J, Beaumont and Finkelstein JJ agreeing; and Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398-399 per Sheppard, Burchett and Heerey JJ. In applying those principles, I accept that there is obvious prejudice to the appellants if leave is not granted as the primary judge’s orders bring their proceeding against QCAA to an end. Additionally, the appeal raises important questions about the operation of the commercial transaction exception in s 11 of the FSI Act that warrant consideration by a Full Court.

21    Therefore, while I consider that the primary judge was correct in finding that the appellants had not discharged their onus of proof to establish that the proceeding concerned a commercial transaction for the purposes of s 11 of the FSI Act, I consider it appropriate to grant leave to appeal but dismiss the appeal.

22    Accordingly, I will take the draft notice of appeal (ground 6) lodged for filing on 24 April 2024 to be the notice of appeal in this appeal, and refer to the five women as the appellants.

Consideration

23    The primary judge’s finding that QCAA is a separate entity was not challenged on appeal. Consequently, QCAA has, prima facie, the benefit of the general immunity conferred by s 9 of the FSI Act from the jurisdiction of the courts of Australia. That immunity confers “a freedom from liability to the imposition of duties by the process of Australian courts”: PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2012] HCA 33; 247 CLR 240 at [17] per French CJ, Gummow, Hayne and Crennan JJ; see also Firebird Global Master Fund II Ltd v Republic of Nauru [2015] HCA 43; 258 CLR 31 at [35] per French CJ and Kiefel J.

24    Ground 6 of the appeal is confined to whether the proceeding concerns a commercial transaction within s 11 of the FSI Act. As the parties seeking to rely on the exception in s 11, the burden is on the appellants to establish that the section applies: Australian International Islamic College Board Inc v Kingdom of Saudi Arabia [2013] QCA 129; [2014] 2 Qd R 1 at [22] per Holmes JA, White JA and Atkinson J agreeing; Wells Fargo Bank Northwest National Association v Victoria Aircraft Leasing Ltd [2004] VSC 262; 185 FLR 48 at [61] per Dodds-Streeton J.

25    While the appellants have alleged three errors in grounds 6(a), (b) and (c), it is important to recognise that the correct approach to s 11 is to determine whether “a proceeding … concerns a commercial transaction.” Questions about whether a transaction or activity falls within the meaning of a “commercial transaction” arise in the course of a singular characterisation enquiry. Accordingly, grounds 6(a) and (b) can be considered together. Ground 6(c) raises a further discrete issue that will be considered separately.

Grounds 6(a) and (b) – whether “the proceeding concerns a commercial transaction”

The correct approach to s 11(1)

26    The exception in s 11(1) applies “in so far as the proceeding concerns a commercial transaction.” A “commercial transaction” is defined in s 11(3) to mean:

a commercial, trading, business, professional or industrial or like transaction into which the foreign State has entered or a like activity in which the State has engaged and, without limiting the generality of the foregoing, includes:

(a)      a contract for the supply of goods or services;

(b)      an agreement for a loan or some other transaction for or in respect of the provision of finance; and

(c)      a guarantee or indemnity in respect of a financial obligation; but does not include a contract of employment or a bill of exchange.

27    The word “concerns” is not defined, however, it is clear that the connection between the proceeding and the covered transaction or activity must be “sufficiently close”: PT Garuda at [67] per Heydon J.

28    There are three aspects of that characterisation exercise that should be emphasised at the outset.

29    First, it has been accepted that “[t]he phrase ‘in so far as’ indicates that, as to part, the proceeding may not concern a commercial transaction”: PT Garuda at [11] per French CJ, Gummow, Hayne and Crennan JJ. In other words, the exception in s 11(1) “is capable of application to a proceeding which is only partly concerned with a commercial transaction”: Firebird at [177] per Nettle and Gordon JJ.

30    Secondly, a characterisation that a proceeding “concerns” a “commercial transaction or like activity” is not displaced merely because the proceeding can also be characterised as concerning other matters. The point was made by Nettle and Gordon JJ in Firebird at [187] in the following way:

The connecting term “concerns” connotes a relationship between the proceeding and a commercial transaction. There is nothing in that term that suggests that a proceeding which concerns a commercial transaction must be one that bears only that single character.

31    Accordingly, it has been accepted that s 11(1) is not limited in its application to circumstances “where a commercial transaction is itself the subject of the proceedings before an Australian court”: Firebird at [78], [80] and [81] per French CJ and Kiefel J. For example, in Firebird, the proceeding sought to enforce a judgment of the Tokyo District Court in circumstances where the judgment was based on a guarantee of bonds. The High Court held that the enforcement proceeding “concerned” that underlying commercial transaction.

32    Similarly, in PT Garuda the High Court held that a proceeding commenced by the Australian Competition and Consumer Commission against the appellant airline, seeking remedies for contraventions of Pt IV of the Trade Practices Act 1974 (Cth), was a proceeding that “concerned” the commercial dealings engaged in by the airline that were said to give rise to the contraventions. That conclusion was reached despite the fact that the proceeding did “not seek to vindicate any ‘private law right’ in respect of any freight contract”: at [41] per French CJ, Gummow, Hayne and Crennan JJ.

33    However, and importantly for the disposition of grounds 6(a) and (b), despite this broad approach to s 11(1), the proceeding must first be characterised as one that “concerns” a commercial transaction as defined in s 11(3).

34    Thirdly, it is the “substance of the case pleaded” (PT Garuda at [24] per French CJ, Gummow, Hayne and Crennan JJ) that informs the exercise of determining whether there is a sufficiently close connection between the proceeding and the “commercial transaction … or like activity”.

The appellants’ submissions

35    The appellants submitted that the substance of the pleaded case in negligence and for intentional torts is that QCAA:

(1)    Participated in directing the appellants off the aircraft, into the departure lounge, and down to the tarmac, and in directing the first four appellants into the ambulance and to undergo non-consensual intimate examinations, for three of the appellants invasively;

(3)    Authorised MATAR to direct the appellants in this way;

(4)    Failed to take adequate steps to prevent the appellants being directed in this way, by the airline operator or others, and to prevent the examinations;

(5)    Failed adequately to supervise MATAR in its response to the discovery of the newborn baby, and during the “incident”; and

(6)    Is liable for the assault, battery and false imprisonment of the appellants, on the basis that the perpetrators were acting under QCAA’s direction or control, or with its authority.

36    In their written submissions, the substance of the pleaded case was summarised in the following way:

The substance was that the QCAA participated in directing the applicants, authorised MATAR to direct them, failed to prevent the applicants being directed by MATAR or others, failed adequately to supervise MATAR, and is otherwise liable for the conduct of persons acting under its direction or control or with its authority.

37    The appellants contended that the primary judge erred by failing to identify what the asserted “commercial transaction” was and whether the proceeding “concerned” that transaction. It was submitted that s 11(1) of the FSI Act was enlivened because the claims that QCAA participated in the events the subject of the proceeding, or authorised MATAR in relation to those events, or failed to take steps to prevent the injuries to the appellants, or is directly liable for the conduct of the “nurse” in the ambulance who performed examinations or persons in dark uniforms, are all directly related to and “concern” the “commercial … or a like activity” in which the QCAA was engaged. Specifically:

(1)    The claim that QCAA participated in directing the appellants is a claim that concerns QCAA’s activity in being the mandated entity with the function of operating and managing HIA, a commercial airport, notwithstanding that it had delegated that function, at least in part, to MATAR.

(2)    The claim that QCAA authorised MATAR to direct the appellants, or failed to prevent MATAR directing the appellants, also concern QCAA’s activity in being the mandated entity with the function of operating and managing HIA, and its delegation, at least in part, of the operation and management of HIA to MATAR.

(3)    The balance of the claims, that QCAA failed to take steps to prevent persons other than MATAR directing the appellants and failed to prevent the examinations themselves, also concern QCAA’s activity in being the mandated entity with the function of operating and managing HIA as a commercial airport.

(4)    The claim that QCAA failed adequately to supervise MATAR in its response to the discovery of the newborn baby and during the incident is related to and “concerns” the “commercial or … like activity” in which QCAA has engaged, namely directly supervising MATAR’s operation and management of HIA as a commercial airport.

(5)    The claim that QCAA failed adequately to supervise MATAR is also related to and concerns a “commercial transaction … or like activity” in the form of the QCAA/MATAR agreement.

38    Thus, in written submissions, the appellants contended that the pleaded case concerns two “commercial transactions … or like activities”:

(1)    Operating and managing HIA as a commercial airport (with revenue flowing from MATAR to QCAA); and

(2)    The commercial delegation for reward, pursuant to a written contract between QCAA and MATAR, of the commercial operation and management of HIA.

39    In reply and during the course of oral submissions, the appellants argued that the substance of the pleaded case also concerned a third commercial transaction, that is, the transaction between the appellants and Qatar Airlines. The submission in this respect was that the appellants’ susceptibility to what occurred was solely referable to the commercial context of their transit as passengers for reward through HIA.

40    In summary, there were three postulated “commercial transactions … or like activities” about which the substance of the case was said to be concerned: first, the operation and management of HIA as a commercial airport; secondly, the agreement between QCAA and MATAR for the delegation of the operation and management of HIA as a commercial airport under QCAA’s supervision; and, thirdly, the commercial transactions between the appellants and Qatar Airways.

Disposition of grounds 6(a) and (b)

41    I am not persuaded that the primary judge has erred in his findings or conclusions.

42    Commencing with the substance of the pleaded case, the appellants submitted that the primary judge erred in his characterisation of the proceeding that appears at PJ [128]. That characterisation is captured by the expression, “alleged involvement [later, participation] … in …, and its failure to … prevent” the MOI operation culminating in the examinations, which later appears at [137], [140] and [146]. Instead, the appellants submitted, the substance of the pleaded case is that set out at [36] in the reasons above. The gist of the complaint appears to be that the primary judge erroneously characterised the substance of the complaint by reference to the MOI police operations and placed “determinative weight on the connection between” the alleged conduct of QCAA and that police operation.

43    However, as QCAA submitted in oral argument, it is clear that the words “alleged participation in, or failure to prevent” were intended by his Honour to embrace the alleged action and inaction of which the appellants complain, and which were addressed at PJ [17]-[22]. That is “the source of rights in issue in the proceeding”: Firebird at [135] per Gageler J. The reference to the MOI operation culminating in the examinations had been the contextual finding about the circumstances in which the alleged action or inaction occurred: see at PJ [79]. There is no error in the way that the primary judge combined these findings to identify, as a shorthand, the substance of the case pleaded.

44    Accordingly, there was no error in the way that the primary judgment described the substance of the case pleaded at PJ [128].

45    The primary judge then sought to characterise the particular acts about which the substance of the pleaded case concerns. The primary judge described this step as characterising “the particular acts that the claimant for foreign State immunity is alleged to have done” (at PJ [136]). The use of this language might suggest that the primary judge was again considering the substance of the pleaded case. However, it is clear from the analysis from PJ [137] onwards that the primary judge was addressing the question of what the substance of the pleaded case concerns.

46    In undertaking that analysis, the primary judge was correct to identify the conduct that was “most relevant to the proceedings” (at PJ [137]). Without doing so, it is not possible to answer the characterisation question of what the substance of the proceeding “concerns”. To undertake that characterisation exercise by reference to an undifferentiated range of QCAA’s activities, or the wider operational context of HIA, is likely to obscure the analysis required under s 11(1) and give rise to error.

47    Furthermore, the primary judge was correct to identify at PJ [137], [140] and [146] the relevant conduct as being constituted by QCAA’s alleged participation in, or failure to prevent, the MOI police operation culminating in the examinations. That is what the proceeding concerns. The fact that the substance of the pleaded case and the activity being characterised are described in the same terms is a consequence of the shorthand references used by the primary judge when undertaking the characterisation exercise under s 11(1). It does not demonstrate, as the appellants contended, that the primary judge “erroneously elided the issues”.

48    Additionally, contrary to the appellants’ submissions, the proceeding does not “concern” any commercial transactions or activities undertaken at HIA, whether by QCAA or others, or the agreement entered between QCAA and MATAR for the operation and management of HIA as a commercial airport. Nor does the proceeding concern the commercial transactions entered between the appellants and Qatar Airways. I agree with the oral submission of counsel for QCAA that presence at the airport by virtue of the commercial operations of the airline merely creates a “but for” nexus which is insufficient to satisfy the requisite connection for the purpose of s 11(1). Contrary to the appellants’ submissions, the primary judge did not err in concluding that it is not sufficient that the conduct formed part of some broader commercial activity (at PJ [141], [146]). See also CCDM Holdings LLC v Republic of India (No 3) [2023] FCA 1266 at [119] per Jackman J. Any connection between the substance of the pleaded case and those other transactions or activities is remote, insubstantial or adventitious. In other words, the connection is not sufficiently close.

49    Accordingly, the primary judge was correct at PJ [146] to characterise QCAA’s alleged participation in, or failure to prevent, the MOI police investigation as acts which were “distinct” from the surrounding commercial activities.

50    Having identified those distinct activities, I also agree with the primary judge’s conclusion (at PJ [140]) that QCAA’s alleged participation in, or failure to prevent, the MOI police operation culminating in the examinations “cannot plausibly be characterised as conduct falling within the commercial transaction exception within s 11(3) of the FSI Act.” As the primary judge found, it was conduct “in purported performance of the State of Qatar’s civic duties to maintain law and order” (at PJ [139]). The primary judge had earlier found that the MOI operation “had the character of an ‘inherently governmental or sovereign act’” (at PJ [79]) and that QCAA carries out functions of the State of Qatar to achieve objectives “through regulation of safety and security and the supervision and oversight of air navigation services and airports” (at PJ [87]). Given those uncontested factual findings, the primary judge did not fall into error by concluding that QCAA’s alleged participation in, or failure to prevent, the MOI police operation could not be characterised as a “commercial transaction … or like activity”.

51    Accordingly, the primary judge did not err, as the appellants submitted, by failing to conclude that the QCAA was engaged in a “commercial transaction … or like activity” in operating and managing HIA or contracting out that operation and management to MATAR under QCAA’s supervision. The proceeding does not concern those activities.

52    In any event, on the evidence before the primary judge, it cannot be said that QCAA’s operation and management of the airport, or the agreement between QCAA and MATAR, could be characterised as a commercial transaction within the meaning of those words as defined in s 11(3) of the FSI Act. The primary judge found that QCAA carries out functions of the State of Qatar. Its functions and purposes are public in character and its finances are public funds (PJ [87]-[91]). While the agreement between QCAA and MATAR was not before the primary judge, there was uncontested evidence before his Honour from Mr Amr Hossam El-Din, a Legal Consultant and Head of the Arbitration Department at Al Sulaiti Law Firm in Doha, Qatar that the contracts in which QCAA “participate[s] as a public law entity are administrative contracts”. Mr Mohamed Al Hajri, the Acting President of QCAA, gave evidence by affidavit in relation to QCAA’s structure, governance, public funding arrangements and functions. Mr Al Hajri was not cross-examined about the activities undertaken by QCAA, whether it receives any payments from MATAR, or the content of the agreement between QCAA and MATAR. While the primary judge did not consider, for the purposes of s 11(1), the character of QCAA’s activities of operating and managing the airport, or the QCAA/MATAR agreement, it could not be said that there was a basis in the evidence before the primary judge to draw a reasonable inference that they were commercial transactions for the purposes of s 11(1).

53    Given my conclusions on the alleged errors, it is not necessary to consider the appellants’ submission that the primary judge erred by drawing from the “commercial property” exception in s 32(3). However, I make the following observations. There is a clear difference between the operation of the commercial transaction exception in s 11 and the commercial property exception in s 32. As Nettle and Gordon JJ said in Firebird at [217]‍-‍[218] (footnotes omitted):

Part IV of the Immunities Act provides separately for immunity of the property of a foreign state from execution of a judgment, order or arbitral award. As appears from the ALRC report, that is so because, although the restrictive doctrine of immunity from jurisdiction reflects a plurality of principles embodied in the general exception to immunity concerning commercial transactions and the specific exceptions to immunity provided for in ss 12-17, the sole criterion of what property of a foreign state remains immune from execution is the distinction between property used for governmental, public or “sovereign” purposes and property used for private or commercial purposes.

As is also highlighted in the [Australian Law Reform Commission (ALRC)] report, the criteria of commerciality for the purposes of the exception to immunity from jurisdiction differ from those of commerciality for the purposes of the exception to immunity from execution. In the case of the exception to immunity from jurisdiction, the sense of what is “commercial” is to be discerned from the nature of the specific transaction, with the consequence that “purpose” or “motive” are largely beside the point. By contrast, in the case of the exception to immunity from execution, “purpose” is the principal consideration and “commercial purpose” is defined in s 3(5) as including “a trading, a business, a professional and an industrial purpose” [emphasis added in judgment of Nettle and Gordon JJ].

54    I do not understand their Honours to be saying that purpose is irrelevant to the characterisation of a transaction or activity for the purposes of s 11. The point of the analysis was to differentiate the purposive test under s 32 from the more general approach to characterisation under s 11. As French CJ and Kiefel J explained, s 32(3) “direct[s] attention to the reason why, objectively, the property is used or set aside”: Firebird at [115]. For the purposes of s 11, the character of a transaction or activity is discerned from its “nature”, with the reasons for doing so being “largely beside the point”: at [218].

55    However, in some cases, the purpose for engaging in a transaction or activity might be instructive as to the “nature” of the transaction, particularly where the purpose is examined to confirm the non-commercial character of an activity. In short, in my view, it was not incorrect for the primary judge to take account of the purpose of the MOI police operation in characterising QCAA’s participation in that activity as non-commercial for the purposes of s 11.

56    In conclusion, grounds 6(a) and (b) must fail.

Ground 6(c) – error in concluding that QCAA participation in or failure to prevent MOI police investigation does not fall within the commercial transaction exception

57    There is a discrete submission under ground 6(c) that has not already been considered and rejected. That submission is that the primary judge “erred by bringing across findings from the [Summary Judgment Decision] that were ‘purportedly definitive’” (quoting from Trkulja v Google LLC [2018] HCA 25; 263 CLR 149 at [37]). It was said that these “included findings that the invasive examinations were conducted by the nurse (i) at the direction of the MOI and (ii) pursuant to a criminal investigation conducted by the MOI ([Summary Judgment Decision] at [253(b) and (c)])”.

58    I accept QCAA’s submissions that the evidence before the primary judge provided a sufficient foundation for his Honour’s finding that the investigation on the night in question was an MOI operation. That included:

(1)    Evidence in the affidavit of Mr Ioannis Metsovitis, Senior Vice-President of Operations at MATAR, affirmed on 19 July 2023, that policing at HIA is a responsibility of and is performed by the MOI, and that MOI police officers are responsible for the detection and incident response to crimes at HIA;

(2)    Evidence in the affidavit of Mr Thomas Riddell, solicitor for the first and third respondents, affirmed on 8 November 2023, that the MOI is structured into various directorates and departments (including the “Airport Security Department”) for airport security and criminal investigation; and

(3)    The expert report of Mr El-Din which states that the police force has the responsibility for law enforcement. When operating at HIA, the police force operates under the authority of the MOI.

59    In conclusion, ground 6(c) fails.

60    That conclusion is consistent with the findings in the appeal from the Summary Judgment Decision because the claims against all the respondents essentially concern the positive role played by the respondents and those for whom they are vicariously liable in the MOI police operation and their failures to take steps to prevent, or lessen the harm caused by, aspects of that operation.

Conclusions

61    The primary judge did not err in reaching the conclusion that s 11(1) was inapplicable to QCAA. For the reasons stated earlier in this judgment, I consider it appropriate that leave to appeal be granted, but the appeal must be dismissed with costs.

Associate:

Dated:    24 July 2025

SCHEDULE OF PARTIES