FEDERAL COURT OF AUSTRALIA
Thor Shipping A/S v The Ship “Al Duhail” [2008] FCA 1842
PERSONAL PROPERTY – whether title to a vessel was passed under the conditions of a relevant agreement to the satisfaction of s 17 of the Admiralty Act 1988 (Cth) – whether registration is proof of “ownership” as that term is defined by the common law – whether an entitlement to own is sufficient to prove ownership for the purposes of s 17 of the Admiralty Act 1988 (Cth)
IMMUNITY – whether a head of state and his possessions are inviolable ratione personae while that head of state is still in office – geographical restrictions on such an immunity – Article 31 of the Vienna Convention on Diplomatic Relations as adopted by the Diplomatic Privileges and Immunities Act 1967 (Cth)
Admiralty Act 1988 (Cth) ss 3, 17
Shipping Registration Act 1981 (Cth) s 45
Foreign States Immunities Act 1985 (Cth) ss 3(3), 36
Diplomatic Privileges and Immunities Act 1967 (Cth)
Foreign States Immunities Bill 1985 (Cth)
State Immunity Act 1978 (UK)
Diplomatic Privileges Act 1964 (UK)
Ship Registration Act 1992 (NZ)
Resolution No 18 of 1980G In respect of Ship Registration and Safety Conditions (Qatar) Arts 7, 8, 13, 14
Law No 19 of 1980G Regarding the Rules of Registration and Safety Pertaining to Small Ships (Qatar)
Vienna Convention on Diplomatic Relations Opened for signature on 18 April 1961. (500 UNTS 95) arts 31, 39 (entered into force 24 April 1964)
Kent v SS Maria Luisa (No 2) (2003) 130 FCR 12 discussed
Tisand v MV Cape Moreton (2005) 143 FCR 43 discussed
R v Bow Street Metropolitan Stipendiary Magistrate; ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147 followed
Australian Law Reform Commission, Report No 24: Foreign State Immunity (Australian Government Publishing Authority, Canberra, 1984)
Australia, House of Representatives, Debates (1985) Vol HR 143 p 141
Gore Booth ed, Satow’s Guide to Diplomatic Practice (5thed, Longman, 1939)
THOR SHIPPING A/S v THE SHIP "AL DUHAIL"
QUD 254 of 2008
DOWSETT J
5 DECEMBER 2008
BRISBANE
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IN THE FEDERAL COURT OF AUSTRALIA |
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QUEENSLAND DISTRICT REGISTRY |
QUD 254 of 2008 |
IN ADMIRALTY
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BETWEEN: |
THOR SHIPPING A/S Plaintiff
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AND: |
THE SHIP "AL DUHAIL" Defendant
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JUDGE: |
DOWSETT J |
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DATE: |
5 DECEMBER 2008 |
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PLACE: |
BRISBANE |
REASONS FOR JUDGMENT
INTRODUCTION
1 At all material times, the plaintiff owned the vessel “Southern Pearl NZ” (“Southern Pearl”). That vessel was, on 13 May 2008, chartered by Amiri Yachts of Doha, Qatar (“Amiri Yachts”). The cargo was said to be “1 x sports fisher boat abt 33 metres long - weight 105 mts. Otherwise as described earlier.” The cargo was, in fact, a fishing vessel which was being built, or had been built, in New Zealand pursuant to an agreement (the “agreement”) between Amiri Yachts and Sovereign Yachts (NZ) Ltd, (“Sovereign”), the builder. It was eventually launched and named “Al Duhail” (the “Ship”). The Ship was to be loaded onto the Southern Pearl at Auckland and discharged at Mahé in the Seychelles. It was expected to be ready to load on about 1 June 2008. On 7 June 2008 the Master of the Southern Pearl tendered notice of readiness to load. Lay time expired on 9 June 2008, the Ship not having been loaded. On 11 June 2008 the plaintiff’s agent purported to accept the charterer’s repudiation of the charterparty. The Ship was sailed from New Zealand to Brisbane.
2 On 20 August 2008 the plaintiff commenced proceedings in this Court against the Ship, seeking damages for breach of the charterparty, together with interest and costs. The Ship was arrested on that date and remains under arrest. The writ initially alleged that either Amiri Yachts or Amiri Protocol was the charterer and had failed to load or pay freight in accordance with the terms of the charterparty. The writ was subsequently amended to allege that Amiri Yachts was the charterer as agent for His Highness Sheikh Hamad Bin Khalifia Al Thani, or on its own behalf or, alternatively, that Amiri Protocol was the charterer on behalf of the Sheikh, or on its own behalf. The Sheikh is, in fact, the Amir of Qatar and is head of state of the State of Qatar. I will refer to His Highness as the “Amir”. Amiri Yachts and/or Amiri Protocol had originally been shown as relevant persons. At the time of the amendment, the Amir was added as another relevant person. He has appeared in the proceedings. Such appearance is under protest. The Amir now applies for release of the Ship. The first ground of the application is that the Court’s admiralty jurisdiction has not been engaged. The second is that in this country, the Amir has immunity from suit and execution.
PROCEEDINGS IN REM PURSUANT TO S 17 OF THE ADMIRALTY ACT
3 The plaintiff seeks to proceed in rem against the Ship pursuant to s 17 of the Admiralty Act 1988 (Cth) (the “Admiralty Act”). Such proceedings may only be commenced if a relevant person:
(a) was, when the cause of action arose, the owner or charterer of, or in possession or control of, the ship or property; and
(b) is, when the proceeding is commenced, the owner of the ship or property … .
4 Pursuant to s 3 of the Admiralty Act, the term “relevant person”
… in relation to a maritime claim, means a person who would be liable on the claim in a proceeding commenced as an action in personam … .
5 The Amir submits that he has been the owner of the Ship since 21 July 2008. The plaintiff asserts that its cause of action arose on 11 June 2008 when it purported to accept repudiation of the charterparty. I am inclined to think that the cause of action arose on the date of the alleged repudiation, namely 9 June 2008. It probably does not matter whether the cause of action arose on 9 or 11 June 2008. The writ was issued on 20 August 2008 and amended on 29 August 2008. The Amir’s case is that he was the owner of the vessel at the time at which proceedings were commenced, but not on the date on which the cause of action allegedly arose. Further, it is submitted that if Amiri Yachts (or possibly Amiri Protocol) owned the vessel on that date, then it did not do so on the date of commencement of proceedings. In other words, none of the three named relevant persons satisfies the requirements of s 17. It has not been suggested that the requirements of s 17 would be satisfied if one relevant person satisfied para 17(a) whilst another satisfied para 17(b).
Construction of the Ship
6 On 26 November 2007 “Amiri Yachts … or nominee” (described in the agreement as the “Owner”) entered into the agreement with Sovereign for the design, building, outfit, launch and sale of a vessel as described in Schedule A thereto. Clause 16 provided:
Title in the Vessel and all material, machinery and equipment whether in Sovereign’s yard or elsewhere appropriated or intended for the Vessel apart from items supplied by the Owner (“the related equipment”) during construction shall remain the property of Sovereign until acceptance has occurred and the Owner has paid to Sovereign all moneys due to Sovereign to and including acceptance. Upon payment of that sum title in the Vessel and the related equipment shall pass to the Owner and Sovereign shall not have any interest therein.
7 Clause 22 provided:
This Agreement is to be constructed to take effect as a contract made in accordance with the laws of England and the parties hereby submit to the exclusive jurisdiction of the High Court of England.
8 No point has been taken arising out of that clause. The actual price of the Ship and the amounts of the instalments were prescribed by Schedule “A” to the agreement which provided:
Price:
The contract price of the Vessel, including all machinery, gear and equipment described in the specifications book attached as Schedule “B” hereto is … New Zealand Dollars … plus GST (if any), subject to adjustment in the manner set forth in this Agreement, and is payable at the following times, time being of the essence:
(1) $… upon execution of this Agreement;
(2) $... upon launching of the Vessel;
(3) $... upon completion of sea trials and signing of the acceptance agreement.
9 The amounts have been obliterated in the exhibit. However they were disclosed during submissions. It is not necessary that they appear in these reasons. The only possibly relevant aspect is that the amount of the third instalment was less than ten per cent of the total price which was many millions of New Zealand dollars.
10 The reference to an acceptance agreement seems to have been to Schedule “D” which contained an “Acceptance and Delivery Receipt”. That “receipt” was apparently executed by the parties at the time of execution of the agreement. However the agreed date of possession was left blank. In the receipt the owner acknowledges that the Ship has been constructed in accordance with the specification and that it is otherwise satisfactory, subject to any particular exceptions. The owner further agrees to accept possession of the vessel subject to correction of any defects.
11 Clause 5(a) of the agreement provided that the Ship was to be completed and launched at Hobsonville, Auckland on 1 February 2008. Pursuant to cl 5(b), following the launch, Sovereign and Amiri Yachts were to carry out sea trials to ensure that the Ship complied with the agreement and relevant specifications. Pursuant to cl 5(c), once Amiri Yachts was satisfied as to such compliance it was to accept the Ship. The parties were then to execute the acceptance and delivery receipt.
The charter
12 On 6 May 2008 Mr Donaldson, an employee of Amiri Yachts, sent an email to a Mr Mikkelsen (on behalf of the plaintiff) as follows:
As mentioned my name is Mark Donaldson and I am employed by Amiri Yachts, Amiri Protocol, Government of Qatar. We had made previous enquiries through Famous Pacific Shipping in New Zealand which has been terminated.
As mentioned on the telephone I would like to deal with you directly and arrange for a quote for shipping the 33 m sport fisher on May 25th to the Seychelles as per our previous plan.
The date of May 25th is firm so could you please provide a quote for your service to the Seychelles.
Once the quote is received we will have to have it approved by the Government of Qatar and will ask for the normal booking note which again will be signed off by the Government of Qatar. Once all is in order money will be deposited into your company account from Doha, Qatar.
Lastly Mr Mikkelsen I wish to it is not our intention [sic] to create ill-feeling towards your company and Famous Pacific shipping in New Zealand so seeking a suitable resolution for all parties on the 25th of May so that good business may continue.
(Original emphasis.)
It seems that as a result of this email, the charterparty was executed on 13 May 2008.
Delivery
13 At about the same time arrangements were being put in place for delivery of the Ship. In an affidavit by Didier Jean-Pierre Royet filed on 4 September 2008 Mr Royet claimed to be its full-time master, employed by the Amir. On 17 May 2008 he was “instructed to travel to Auckland New Zealand in order to oversee the final stages of the construction of the ‘Al Duhail’ which I was informed was due to be completed by the ship builders, Sovereign Yachts … prior to 1 June 2008.” I infer that Mr Royet’s subsequent actions were undertaken on behalf of his employer, the Amir.
14 Mr Royet arrived in New Zealand on 19 May 2008 and thereafter had regular contact with Sovereign. The Ship was launched at Hobsonville on 25 May 2008 and taken under tow to Auckland where “further repairs and works … were carried out”. On about 27 May 2008 Mr Royet was advised that the Ship would be ready for handover to his command on or about 1 June 2008. This did not occur. Between 1 June 2008 and 9 June 2008 sea trials took place in Mr Royet’s presence, but construction was not complete. Nonetheless, on 11 June 2008, a certificate of registration of the Ship was issued by the Qatar Registry. It was registered in the Amir’s name.
15 Mr Royet at least implied that remedial work continued throughout June and early July. On 15 July 2008 he again attended sea trials. Work was completed on 21 July and the Ship handed over to him on 22 July. On 4 August he sailed it to the port of Opua in New Zealand, then to Noumea in New Caledonia, and then to Brisbane, arriving on 14 August 2008. It was arrested on 20 August 2008. Mr Royet understood that the vessel was to be used for the Amir’s personal use. He said that it had not been used for any commercial purpose.
16 I infer from Mr Royet’s presence in New Zealand as an employee of the Amir that, at least from mid-May 2008, the intention of those associated with the acquisition of the vessel was that it become the property of the Amir rather than of Amiri Yachts or Amiri Protocol. At or about that time Mr Donaldson arranged the charterparty, describing himself as an employee of “Amiri Yachts, Amiri Protocol, Government of Qatar”. I infer that Mr Donaldson, in arranging the charterparty, was also acting on behalf of the Amir, although he may have been acting as the instrument of Amiri Yachts which was, itself, acting on behalf of the Amir.
The new agreement
17 On 21 July 2008 Sovereign and Amiri Yachts terminated the agreement, Sovereign entering into a new agreement (the “new agreement”) with the Amir. No explanation has been given for this course of action. It may have had something to do with the incidence of the New Zealand Goods and Services Tax. It may also be that for associated reasons, it became desirable that the vessel leave New Zealand under its own power rather than as cargo. However these are mere speculations. I draw no inferences adverse to the Amir from the change in the contractual arrangements and associated matters.
18 The new agreement was in substantially the same form as the agreement. Clause 5, concerning launching, sea trials and acceptance, was in a slightly different form. By the date of the new agreement, the Ship had been completed and launched. According to Mr Royet, sea trials had also been completed. Nonetheless cl 5 still provided for launching, sea trials and acceptance. Clause 16, concerning the passing of property, remained in the same form. However a new acceptance and delivery receipt was attached to the new agreement. It was in similar form to the receipt in the agreement, save that provision was made for export of the Ship under its own power to a destination outside of New Zealand. A number of other amendments were made. In particular there was a hand-written rider to the receipt, as executed, which stated that, “The parties agree that notwithstanding the terms of the Agreement and this Acceptance and Delivery Certificate, ownership and title to the Vessel passes to the Owner at 24:00 hours on 21 July 2008.” Clearly, the Amir has owned the vessel since that date. The question is who owned it prior thereto. Whatever may have been the effect of the certificate as between the parties, or for any other purpose arising under New Zealand law, it cannot have affected the actual ownership position as at 9 or 11 June 2008.
Solicitors’ correspondence
19 On 27 August 2008, Messrs Blake Dawson wrote to the solicitors for the plaintiff claiming to be instructed “on behalf of interests in the vessel ‘Al Duhail’, the defendant”. The letter alleged that Amiri Yachts was the charterer and that it had not delivered the Ship for loading on Southern Pearl because “in breach of charter ‘Southern Pearl NZ’ was found to be unsafe for the loading and cargo of [the Ship]”. It referred to the arrest of the Ship as arising out of the failure by Amiri Yachts and/or Amiri Protocol to load or pay freight in accordance with the charterparty and observed that they were relevant persons for the purposes of the Admiralty Act. It then asserted that the arrest should be set aside for the following reasons:
(a) Firstly, the plaintiff cannot satisfy the jurisdictional requirements of the Admiralty Act because it cannot prove Amiri Yachts and/or Amiri Protocol are the beneficial owner. The attached Certificate of Qatar Registry provides the owner of “Al Duhail” is H.H. Sheikh Hamad Bin Khalifia Al Thani (HH). Presumably your client was aware of this when they undertook their searches, prior to the arrest.
(b) Secondly, even if the Court documents should be amended to make HH the “relevant person” his property is “inviolable” under Australian law and cannot be (or should not have been) arrested.
20 The letter then referred to s 17 of the Admiralty Act and asserted that in the event of a challenge to jurisdiction a plaintiff must demonstrate that a relevant person owned the relevant vessel when the proceedings were commenced. It also referred to the Amir’s claim to head of state immunity and associated claims, including a threat of action for unjustified arrest. Ownership of the Ship, as at the date on which the cause of action arose, was not mentioned.
21 On 29 August 2008 Messrs Blake Dawson again wrote to the solicitors for the plaintiff, indicating that it would have to establish that the “relevant person” was the owner at the time the writ was issued. The letter then asserted that “neither Amiri Yachts nor Amiri Protocol are the owners of or have any proprietary interest in ‘Al Duhail’ ”. It referred to the certificate of registration dated 11 June 2008 and observed that “We are instructed [the Amir] was still the owner at the time the writ was issued. You ought to have undertaken a search of the Qatar Registry to establish that fact prior to issuing the writ.” There was then a reference to s 18 of the Admiralty Act which is not directly relevant for present purposes. However it was asserted that:
(a) We are instructed Amiri Yachts and Amiri Protocol were at no time demise charterers of “Al Duhail”.
(b) Amiri Yachts chartered your client’s vessel “Southern Pearl NZ”.
(c) Amiri Protocol is a sub-department of the Government of Qatar. We do not know why you believe Amiri Protocol has any connection to “Al Duhail”.
22 The letter then asserted that the Ship was the Amir’s private sporting vessel and that it had not been engaged in commercial activities. The factual assertions set out above are of some interest. Firstly, the letter referred to Amiri Yachts and Amiri Protocol but did not suggest that either entity had ever owned the vessel. Nonetheless it admitted that Amiri Yachts had chartered the “Southern Pearl”. As to the connection between Amiri Protocol and the Ship, one would have thought that Mr Donaldson’s identification of himself, in connection with the charter, as being employed by “Amiri Yachts, Amiri Protocol, Government of Qatar” would be a reasonable basis for assuming a connection between Amiri Protocol and the Ship. Again, ownership of the Ship, as at the date on which the cause of action arose, was not mentioned.
23 The solicitors for the plaintiff wrote to Messrs Blake Dawson asking them to indicate the basis for the allegation in the present application that the Amir was not the owner or charterer of, or in possession or control of, the vessel, when the cause of action arose. They responded on 2 September 2008 as follows:
We refer to your letter of today’s date.
We are obtaining instructions overnight from our instructors at Clyde & Co whether an affidavit will be filed in support of the application and will let you know as soon as we have those instructions.
You have asked on what basis the applicant His Highness Sheikh Hamad Bin Khalifia Al Thani asserts he was not the owner or charterer of, or in control of, the vessel when the alleged cause of action arose.
With respect, the onus is on your client to establish these jurisdictional facts. Will your client be relying on any affidavit material to establish the named relevant persons met the criteria in ss 17 and 18 of the Admiralty Act 1988? If so, when will we receive that material?
Other evidence
24 In an affidavit filed on 8 September 2008 on behalf of the defendants, the deponent, Scott Gibson MacNeill, sought to undermine the authority of the Qatar certificate of registration suggesting, by reference to a conversation with the Registrar of Ships in the Australian Shipping Registration Office, that some foreign registries are not registries of title. Mr MacNeill is a solicitor employed by Blake Dawson. It is curious that Mr MacNeill should have sought to undermine the probative value of the certificate, given that his firm had initially advanced it as a basis for resisting the claim against Amiri Yachts and Amiri Protocol.
25 Alan Frederick Lester is a New Zealand solicitor and principal of the firm of Chapman Tripp, Solicitors of Wellington. Mr Lester was instructed by the Amir’s London solicitors to act on his behalf and was given a power of attorney for the purpose of effecting the transfer to the Amir of Amiri Yachts’ rights and obligations under its agreement with Sovereign. Mr Lester deposed to various steps which he took pursuant to the power of attorney and in para 8 swore that:
To the best of my knowledge and belief, no agreement or other arrangement had been entered into to transfer title or ownership of “Al Duhail” from Sovereign Yachts to any other person prior to 21 July 2008.
26 This statement was apparently intended to exclude the possibility that title to the Ship had vested in Amiri Yachts, Amiri Protocol or the Amir prior to 21 July 2008. However it is not clear to me that Mr Lester had knowledge of such matters.
27 Paul Alan Turner, a partner at Clyde and Co, the Amir’s London solicitors, has sworn three affidavits filed on 8 September, 18 September and 1 October 2008. In para 3 of his affidavit filed on 8 September 2008, Mr Turner swore that neither Amiri Yachts nor Amiri Protocol was the owner or demise charterer of the Ship as at 20 August 2008, the date of commencement of proceedings. That matter is no longer in dispute. However it is difficult to see how Mr Turner could have relevant knowledge of it. The basis for the statement seems to have been that he was instructed to commence work on “the delivery arrangements to His Highness the Amir of Qatar” on 27 May 2008. At that time he was informed by Mr Donaldson “then working for Amiri Yachts” that the Ship was being constructed under a contract between Sovereign and Amiri Yachts. Mr Turner then swore that Mr Lester had told him that Sovereign had not completed the vessel, conducted sea trials and delivered the Ship “until 21 July 2008”. Mr Turner understood that the agreement between Amiri Yachts and Sovereign had been terminated and the new agreement entered into with the Amir. As to the Qatar certificate of registration of the Ship he said (at paras 8 and 9):
8. It is common practice for the buyer of a new or second-hand vessel to apply to pre-register the vessel under the buyer’s chosen flag in order to obtain the registration details that are required to facilitate the radio licence application for an MMSI number (the unique nine digit number that identifies a particular vessel) and call sign, both of which are needed to programme the vessel’s safety and communications equipment and so ensure that the vessel is ready to be operated with effect from delivery.
9. It is also common practice for the vessel’s new certificate of registry to be issued and delivered to the vessel so that at delivery it has on board the full set of flag documents that would be required when the vessel engages in voyages outside the territorial waters of its flag state.
28 All of this may be correct, but it says nothing about ownership of the Ship as at the date upon which the cause of action arose. In his affidavit filed on 18 September 2008 Mr Turner referred to a builder’s certificate and a certificate of origin which were filed in support of the application for registration in Qatar. He then referred to the statements concerning registration practice in his earlier affidavit and continued (at paras 3 and 4):
3. … In order to obtain a Certificate of Registry for the Vessel, and so to facilitate the application for an issuance of a Radio Licence for the Vessel, well before Sovereign Yachts (NZ) Ltd (“Sovereign”) tendered delivery of the Vessel they were requested to provide a Builder’s Certificate and a Certificate of Origin. On 15 May 2008 Sovereign issued the Builder’s Certificate and the undated Certificate of Origin attached in annexure “PT 4”. At the time when Sovereign issued the Builder’s Certificate it was anticipated that the Vessel would be tendered for delivery on or about 1 June 2008, as is set out in the Affidavit of Didier Royet dated 3 September 2008. The reference in the undated Certificate of Origin to “INV/Contract JAN 28 2008” is a reference to the contract for the construction of the Vessel dated 26 November 2007 as this contract became effective on 28 January 2008 following Sovereign’s receipt of the first payment in respect of the Vessel.
4. In my experience a Builder’s Certificate is always necessary for ship registration purposes, as in this case it was required by the Qatar Registry. In the application included in annexure “PT 4”, please see the reference, under the heading Required Documents, to “Ship Building Certificate (If Under Construction)”. These matters were dealt with and regulated by the Acceptance and Delivery Receipt, a copy of which is at the last two pages of the annexure “PT 2” to my first Affidavit. I should add that the Certificate of Registry was also used, in the usual way, in support of advance preparations for the Vessel’s insurance arrangements in order to ensure that the necessary insurance cover would be in place with effect from transfer of possession and control in the Vessel at the time of delivery and acceptance recorded in the Acceptance and Delivery Receipt.
29 The admissibility of some passages in para 4 was successfully challenged. Those passages were excised. The paragraph makes only limited sense in its present form. When the deponent referred to “these matters” being “dealt with and regulated by the Acceptance and Delivery Receipt” he was, I think, referring to the transfer of title to the Ship. In any event, the events which occurred on 21 July 2008 are not relevant to the situation which obtained as at the date upon which the cause of action arose. The Amir was either then the owner of the Ship, or otherwise entitled to possession or control of it, or he was not. In a third affidavit filed on 1 October 2008 Mr Turner swore that Mr Donaldson had worked for Amiri Yachts until 14 June 2008 and now works for another company.
30 One of the documents exhibited to Mr Turner’s affidavit filed on 18 September 2008 is the application for registration in Qatar. It disclosed that the keel of the Ship was laid on 10 March 2006, that is prior to the contract with Amiri Yachts. Under the heading “Owner’s Particulars” appeared the following: “HH Sheikh, Hamad Bin Khalifia Al Thani Amiri Palace, Doha – Qatar”. In the attached builder’s certificate Amiri Yachts was shown as the person or company for whom the vessel was built by Sovereign. The document was dated 15 May 2008. On the application for registration, under the heading “Required Documents”, it is stated that a shipbuilding certificate is required “if under construction”. Thus the issue of a certificate should not be taken as necessarily implying completion.
31 The plaintiff submitted that such a certificate was contemplated by cl 5(f) of the agreement and cl 5(g) of the new agreement. It is possible to construe both subclauses as providing for delivery of such certificate on launching and on acceptance, each subclause apparently assuming that those events would occur simultaneously. However, as I have demonstrated, earlier subclauses suggested that launching was to be followed by sea trials and then, acceptance. On its face the certificate suggests that it was issued in a form required for New Zealand registration purposes. The nature of those requirements is not disclosed by the evidence.
32 In any event, Mr Royet swore that the vessel was launched on 25 May 2008, although some work remained to be done thereafter. Sea trials followed. There was further work, continuing into early July, and then further sea trials. He was not cross-examined. In those circumstances, I infer that the Ship had not been completed as at the date of registration. To the extent that Mr Turner gave evidence as to the practice of obtaining registration at an early stage, I accept and act upon that evidence. However I do not act upon his evidence to the extent that it may be interpreted as reflecting actual knowledge of the circumstances surrounding registration in this case. He has not claimed direct knowledge of such matters.
Compliance with s 17
33 For present purposes the relevant question is whether, for the purposes of s 17 of the Admiralty Act, the Amir was owner of the Ship as at 9 or 11 June 2008 or alternatively, whether he was then in possession or control of it. There is no suggestion that he was a charterer. I infer that whatever Amiri Yachts did on and after 17 May 2008 in connection with the Ship was done for the purpose of acquiring it on behalf of the Amir. That was the date on which Mr Royet was instructed to travel to New Zealand for the purpose of taking possession of the Ship on his Highness’s behalf. I infer that Mr Donaldson’s conduct in arranging the charterparty with the plaintiff was also done on behalf of the Amir. However that does not lead to the conclusion that his Highness necessarily owned, possessed or controlled the Ship as at 9 June 2008, even assuming that Amiri Yachts then held the benefit of the agreement on his behalf. Pursuant to the agreement, property was to pass upon acceptance, provided that all moneys had been paid. There is no evidence of any such acceptance prior to 21 July 2008. Mr Royet’s evidence suggests that the Ship was not completed until on or about that date. In his affidavit Mr Lloyd was somewhat opaque concerning delivery of the Ship to the Amir on 21 July 2008. In para 5 he swore:
On 21 July 2008 Sovereign Yachts was satisfied that all monies due under the Amir of Qatar contract had been paid. On that basis the Acceptance and Delivery Receipt was signed.
34 Sovereign’s satisfaction as to payment was not a condition precedent to the passing of title pursuant to either agreement. The question is whether the Ship had been accepted and all moneys paid on or before 9 or 11 June 2008. Mr Lloyd’s affidavit simply did not address that question. However, in para 7, he swore that possession of the vessel was not given to any person by Sovereign prior to 21 July 2008. Given the fact that neither Mr Royet nor Mr Lloyd was cross-examined, and the absence of any apparent improbability in their evidence, I am compelled to accept, on the balance of probabilities, that the conditions prescribed in the agreement for the passing of title did not occur prior to 21 July 2008. As to whether or not the Amir was, prior to that date in possession or control of the vessel, it seems to me that, for the same reasons, I must conclude that he was not.
35 The plaintiff sought to establish that property had, nonetheless, passed to the Amir prior to 9 or 11 June 2008. There were at least three different bases for that submission, namely:
· that registration in Qatar was prima facie, and sufficient, proof of ownership;
· that the Amir had acquired some form of equitable interest which satisfied the requirements of s 17(a) of the Admiralty Act; and
· that I should infer that Sovereign and Amiri Yachts or the Amir had varied the agreement so that property passed at some time prior to 9 or 11 June 2008.
36 In order to deal with these submissions I must consider the meaning of the term “the owner” in s 17 of the Admiralty Act. The meaning of the term “owner” was considered, for the purposes of s 19, by the Full Court in Kent v SS Maria Luisa (No 2) (2003) 130 FCR 12 and, for the purposes of s 17, in Tisand v MV Cape Moreton (2005) 143 FCR 43. Concerning that question, the majority (Tamberlin and Hely JJ) said in the Maria Luisa at [61]-[66]:
61 The word “owner” cannot be given any general description. But ordinarily the incidents of ownership of a chattel include the right to make physical use of the chattel, the right to the income from it, the power of management, and the right of alienation: … . In the “Iron Shortland” … Sheppard J quoted from the decision of the Singapore Court of Appeal … that the term “owner” means any person who is vested with such ownership as to have the right to sell, dispose of or alienate the ship, and that a beneficial owner of the ship comes within that term … .
62 The notion of “ownership” carries a connotation of dominance, ultimate control and of ultimate title against the whole world … .
…
65 A helpful description of “ownership” is formulated by Jordan CJ in Gatwood v Alley … where his Honour said in relation to a question as to ownership of a car:
“A good title to property, in the sense of such ownership as the law allows, consists in having the legal right to exercise with respect to it all such rights, as against all such persons, as by law are capable of being exercised with respect to property of the class in question. A person who has possession of property but not ownership has, as a general rule, the same legal rights as the owner, save to the extent to which those rights are qualified as against the owner … .”
66 Ownership, whether legal or equitable, therefore involves something greater than beneficial interest. Equitable ownership of property is commensurate with the right to relief in a Court of Equity … . If a person has contractual rights in relation to a ship which, if performed will result in the person becoming the owner of the ship, then the person will be regarded as the equitable owner of the ship provided that specific performance of the contract would be decreed … .
37 At [74], their Honours continued:
74 The circumstance that AFE may be said in general terms to enjoy “a bundle of rights” which may enable it by a series of discrete actions to obtain ultimate possession of the ship, control its activities, and entitle it to alienate the ship, does not equate to present ownership at a particular point in time. Rather, it indicates the potential to become the owner. The bundling of a series of discrete entitlements which if exercised could lead to ownership does not satisfy the requirement of s 19.
38 The decision in the Cape Moreton was more complex, concerning questions of private international law. The Court comprised Ryan and Allsop JJ, the third member, Cooper J, having fallen ill and died following oral argument and prior to decision. A number of propositions emerge from the reasons. At [92] their Honours observed:
In our view, the meaning of the phrase “the owner” in ss 17, 18 and 19 of the Act does not necessarily encompass the party entered on any international register of ships. The question is one as to whether the relevant person answers the description of “the owner” in the proprietary sense, in all the circumstances. …
39 Their Honours then referred to the decision in the Maria Luisa and, at [97], continued:
The Full Court decided The Maria Luisa in the context of the earlier decision of Sheppard J in The Iron Shortland that the word “owner” was not restricted to registered owner, but extended to include the “true” or “real” or “beneficial” owner. It was not necessary for the Full Court to decide the question before us, that is whether the phrase “the owner” necessarily included the registered owner.
40 After referring to various authorities their Honours observed at [119]-[120]:
119 As is clear … notions of “property” and “ownership” are not amenable to crisp, comprehensive definition in the abstract. The context, here is the possession and enjoyment of, dominion over and power or right to dispose of, a chattel of a kind that is usually engaged in commercial enterprise. In that context, the word “ownership” or “owner” connotes the right or power to have and dispose of dominion, possession and enjoyment of the ship, subject of course to intervening interests … .
120 This kind of dominion, exemplified or epitomised by the lawful power or right to dispose of the ship, may arise from the legal effect of dealing between the parties with a ship, under general law or statute.
41 The Court considered the legal consequences of registration, discussing the purposes thereof which include the protection of the title of the registered owner and the protection and preservation of priorities between security interests in the ship. The Court then turned to the question of choice of law. At [140] the Court concluded that the proper law, for the purpose of determining questions of jurisdiction, was the law of the forum (Australia), including its rules of private international law. Their Honours considered that in connection with questions concerning transfer of title to a chattel, those rules would normally lead to application of the lex situs of the chattel. However the Court identified difficulties in determining the situs of a merchant ship. At [146]-[147], their Honours said:
146 There seem to us to be powerful reasons for giving effect to the law of the country of register as the lex situs in relation to questions of title, property and assignment (subject, of course, to local statute and public policy). The chance location of a working merchant ship in a port within its range of sailing or on the high seas appears to introduce an element of arbitrariness to the legal analysis. This is especially so if, as is likely, the national register and registration laws of the port in question are directed to ships of that country. If a law of a country other than the country of registration is chosen to deal with the assignment of property in a ship, it is likely that there will be no statute dealing with registration that is made relevant.
147 The relevant choices appear to be the law of the forum, the law of the country of registry as the lex situs (and not merely when the ship is on the high seas), the law of the place of the ship within another country’s territorial waters, (and on one reading of [certain decisions]) the law of the domicile of the registered owner or operator.
42 In any event, in the absence of any evidence as to foreign law, their Honours concluded that the question of choice of law was “academic”. The Court acted upon the presumption that the relevant foreign law was the same as the law of the forum, Australia. Without necessarily conceding the correctness of the approach their Honours accepted that the lex situs (ie the law of the registration state) should be presumed to contain a statute in a form, mutatis mutandis, the same as the Shipping Registration Act 1981 (Cth). Section 45 of that Act provided:
The owner of the ship or of a share in a ship has power, subject to this Act and to any rights and powers appearing in the Register to be vested in any other person, absolutely to dispose of the ship or share and to give effectual receipts in respect of the disposal.
43 At [161] the Honours continued:
A power of that kind may well, in many circumstances, suffice to support the conclusion that the holder of such power was “the owner”. It is a power which is the equivalent of the epitome of ownership. A party who has power absolutely to dispose of a chattel has the equivalent of the ultimate incident of ownership. The power derives from statute; it is not a “right” arising from a consensual transaction; but it is a power having equivalent effect.
44 At [163] their Honours observed:
It is necessary, however, to assess the importance of this power … by reference to the surrounding factual circumstances.
45 Relevantly, the registered owner had, in fact, sold the ship and received the sale price. The Court continued at [165]-[168]:
165 Under Australian law, and we would venture to suggest, the law of any other country, subject to any statute affecting the position, [the buyer] took full property in the ship.
166 On the assumption that the [Shipping Registration Act] applies, [the owner] had a power, given by statute, absolutely to dispose of the ship. In the circumstances that obtained, however, [the owner] could not, on any view, exercise that power lawfully or honestly without the consent of [the buyer]. It had transferred the ship, relinquished its rights in her and been paid in full for her. No circumstance could be shown for the honest or lawful exercise of the statutory power, without the consent of [the buyer].
167 In these circumstances, the holding of the statutory power of absolute disposition was empty of real and practical meaning or significance. So to conclude is not to change the content of the power, but to direct attention to the relevant question to be answered. Was a party who had entered and completed this transaction and who held a statutory power (the primary purpose of which was the protection of the next registered owner, conformably with honest dealing, who had taken the property according to the transaction just completed) in circumstances where there could be no occasion for the honest and lawful use of a power, “the owner” of the ship?
168 In our view, the answer to that question is “no”. [The owner] had no rights of dominion, enjoyment or control over the ship arising from its dealing with [the buyer] or from its relationship with the ship. It had, by the law of the flag (on the hypothesis of the relevance of the [Shipping Registration Act] by the presumption) a power to dispose of the ship, but that power was incapable of lawful or honest exercise, without the consent of [the buyer]. So understood, the power does not amount to a right of ownership.
46 The plaintiff submits that I should accept registration of the Ship in Qatar as proof of ownership. Exhibited to the affidavit of Mr Hockaday, filed on 17 September 2008, are Resolution No 18 of 1980G and Law No 19 of 1980G, both apparently promulgated by the Amir. The first concerns registration of ships and safety conditions in Qatar. The second concerns registration and safety pertaining to small ships in that country. I understand it to be accepted that these documents contain the relevant aspects of the Law of Qatar concerning the registration of ships. Resolution No 18 provides that a ship, the total tonnage of which is 200 ton or more, may not sail under the flag of Qatar unless it is registered according to that Resolution. Vessels under 200 ton may be registered under Resolution No 18, but such registration is not mandatory. Law No 19 provides for an alternative system of registration for vessels under 200 ton. It is not immediately clear whether the Ship was registered under Resolution No 18 or Law No 19. However the application for registration indicates that its “GRT” (presumably gross registered tonnage) is 200 ton, whilst its net registered tonnage is 60 ton. It is not clear whether it is the gross or net tonnage which applies for the purposes of Regulation No 18. Nor is it clear whether the various references to tonnage in the evidence, in Resolution No 18 and in Law No 19 are to metric tonnes or imperial tons. Law No 19 establishes a register called “The Small Ships Register”. There is no indication on the certificate of registration, or on the application for registration, that the Ship was, or was to be, on any such register. It seems more probable than not that it was registered under Resolution No 18. Article 7 of that resolution provides for registration of ownership details. Article 8 requires that the ship owner, supplier or captain notify the registration office of any amendment made to the registered details. Article 13 provides:
Every legal act or incident or a judgment resulting in transferring, or amending or forfeiting an in-kind right on a registered ship shall not be in force between the concerned people or for the third party unless its registration is made in the ships register. The concerned parties have right to apply for registration. If any one of them refrains, the matter may be presented to the court for ordering it.
47 Article 14 provides:
The registration order shall be as per the date of entry in the journal. If many applications are presented related to one ship in one day, the priority among them shall be as per the time of depositing the registration application, and if many applications are presented together in one hour, all of them shall be deemed in one order.
48 If ownership is to be determined by reference to the law of Qatar, it would seem that Sovereign could not enforce any right to the Ship against the Amir in the absence of registration of such right. There would still be a question as to whether surrounding circumstances (which significantly affected the outcome in the Cape Moreton) should lead me to conclude that the Amir was not the owner for the purposes of s 17(a) of the Admiralty Act, notwithstanding the operation of Qatari law. However it seems curious that Sovereign should have been deprived of title to the Ship by the unilateral act of the Amir in applying for registration in Qatar, although it may be, as the plaintiff suggests, that Sovereign was a party to the registration. Nonetheless, I am inclined to think that the decision in the Cape Moreton may not necessarily lead to the conclusion that the law of Qatar should be applied in determining ownership for present purposes. This case differs from the Cape Moreton in that the very fact of registration is said to have effected a change of ownership. It seems likely that, according to Australian private international law, the relevant law concerning transfer of title would have been that of New Zealand where the Ship, then unregistered, was located. It may follow that for present purposes, title could only pass in accordance with the law of New Zealand (or, perhaps, the law of England, the law applicable to the contract). Either law would presumably have given effect to the provisions in the agreement relating to the passing of property. If so, registration in Qatar would not have affected ownership of the Ship. The Ship Registration Act 1992 (NZ) may also have been relevant to the question.
49 The plaintiff also submits that the Amir’s entitlements under the agreement, coupled with the substantial part-payments, were sufficient to create an equitable interest equivalent to ownership for the purposes of s 17. However such equitable and/or contractual rights were obviously subject to the limitation imposed by cl 16 of the agreement. It cannot be said that at the relevant time, the Amir had either the right to possession of the Ship or the right to dispose of it, other than subject to the rights of Sovereign. It was not simply a question of paying the outstanding balance of the purchase price. Mr Royet’s evidence demonstrates that prior to 21 July 2008, the Ship had not been completed to the satisfaction of the Amir or his agent. Until such time as the Amir elected to accept the vessel in substantial satisfaction of Sovereign’s obligations under the agreement, he could not have insisted upon physical delivery. This is relevant to the point made by Tamberlin and Hely JJ in the Maria Luisa at [74]. Prior to 21 July 2008 the Amir had not exercised his right to accept the vessel pursuant to the contract. He was in a position which might well have led to ownership but did not satisfy the requirements of, in this case, s 17.
50 Finally, the plaintiff submits that the agreement was amended so that property passed at some earlier time and prior to 9 or 11 June 2008. The evidence of this amendment is said to be Sovereign’s provision of the builder’s certificate, the apparent delay in completion and Amiri Yachts’ entitlement under the agreement to take possession of the Ship in the event of default by Sovereign (cl 13) and to insure (cl 15). Against this is Mr Lloyd’s assertion that prior to 21 July 2008 Sovereign remained in possession and full control of the Ship. It is true that in para 7 of his affidavit, he did not refer to title. He had done so in cl 6, but the relevant passage was objected to and excluded, largely because it went to the proper construction of the agreement. The evidence of both Mr Lloyd and Mr Royet suggests that the parties were, until 21 July 2008, conducting themselves upon the basis that the Ship was still under Sovereign’s legal and physical control. In those circumstances, I decline to infer that there had been any variation to the provisions of the agreement concerning the passing of property.
51 Although counsel addressed the question of compliance with s 17 in some detail and demonstrated considerable industry in so doing, I am concerned that the question of the passing of title has not been fully ventilated, particularly in so far as concerns the choice of law question. To the extent that the plaintiff relied upon the Cape Moreton as establishing the relevance of Qatar law, it did not address the fact that in that case the vessel was, at all material times, registered in Liberia. In the present case the question is whether the act of registration in Qatar, itself, effected a change in ownership of the Ship in New Zealand. In those circumstances I am reluctant to decide that question. I am inclined to the view that the law of New Zealand (as the lex situs immediately before registration) should be applied to determine whether or not property passed to the Amir as the result of registration. I suspect that the probable answer is that according to New Zealand law, it did not, but that question has not been argued. In any event, as I have formed a view that the Amir is relevantly entitled to head of state immunity, it is not necessary that I finally dispose of that question.
HEAD OF STATE IMMUNITY
52 The extent to which a foreign head of state enjoys immunity from judicial process in this country is determined by reference to the Foreign States Immunities Act 1985 (Cth) (the “States Immunities Act”) and the Diplomatic Privileges and Immunities Act 1967 (Cth) (the “Diplomatic Immunities Act”). The Explanatory Memorandum which accompanied the Foreign States Immunities Bill 1985 (Cth) into the House of Representatives indicated that the proposed legislation was based upon a report by the Law Reform Commission, “ALRC 24, Foreign State Immunity (1984)” (“ALRC 24”). Paragraph 163 of that report stated that the proposed treatment of head of state immunity was based upon the approach taken in the State Immunity Act 1978 (UK) (the “UK Immunity Act”). As much also appears from the Second Reading Speech of the then Attorney-General which is reported in the Parliamentary Debates (House of Representatives) for 21 August 1985 at pp 141-143. Concerning head of state immunity, the Attorney-General said (at 143):
An additional matter covered is the immunity of a head of state acting in a private capacity. The position at common law is unclear. The legislation provides that a foreign head of state acting in a private capacity has the same immunities as a head of a diplomatic mission similarly acting. These immunities extend to the spouse of the head of state. This is the approach of the United Kingdom legislation and has the advantage of bringing a rarely litigated issue under a well-developed body of law which has been specifically developed to satisfy the needs of both the sending state and the receiving state.
53 In ALRC 24, the Law Reform Commission addressed the question of foreign state immunity in considerable detail. However the immunity of heads of state was addressed quite shortly. Paragraph 70 dealt with that question in connection with acts performed in a public capacity, asserting that a head of state was, according to existing law and practice, entitled to the same immunity as that extended to foreign states. As to acts performed in a private capacity, it was suggested (at para 163) that the current position concerning that matter was unclear. That statement was presumably the source of the Attorney-General’s comment to similar effect which is mentioned above. ALRC 24 continued:
Of all the overseas models on foreign state immunity only the State Immunity Act 1978 (UK) deals with the point. It does so by applying the provisions of the Diplomatic Privileges Act 1964 (UK) with respect to a head of mission, his family and servants, to a sovereign or other head of state, members of his family forming part of his household, and his private servant. The 1964 Act, like the similar Australian legislation, largely incorporates into municipal law the terms of the Vienna Convention on Diplomatic Relations 1961.
54 In support of the proposition that the position was unclear, ALRC 24 referred to Satow’s Guide to Diplomatic Practice (Gore Booth ed) (5th ed, Longman, 1939) at pp 9 and 10. However that reference does not really support the proposition. Firstly, the publication pre-dated the UK Immunity Act. Secondly, at paras 2.2 and 2.3 it stated:
2.2 The personal status of a head of a foreign state therefore continues to be regulated by long-established rules of customary international law which can be stated in simple terms. He is entitled to immunity – probably without exception – from criminal and civil jurisdiction. His residence, person and moveable property are inviolable. He is entitled to exemption from customs duty and from search of goods he brings with him. …
2.3 In the nature of things there are few opportunities for clarifying whether any exceptions now exist to the immunity of a foreign sovereign. Cases which come to court nearly always concern not the personal status or the personal property of the head of state but the status or property of the state as a legal entity. A head of state, whether a hereditary ruler or an elected president, does not enter the territory of another state in his official capacity without the clearest assurances being expressed or implied that full immunity and full ceremonial honours will be accorded. Although heads of state visit other states not only on formal visits but also on private visits, any disregard by them of their obligations or of the laws and regulations of the state they are visiting is almost unheard of. However, certain exceptions to full immunities may be said to be inherently justifiable, even if it cannot be said that they are fully supported by extensive practice. For instance if the foreign sovereign himself institutes civil proceedings, he makes himself liable to a related counter-claim – as is the case with a diplomatic agent. If the foreign sovereign owns real property in a personal capacity, his immunity cannot prevent the hearing of an action to establish the title or the right to possession of that property, since otherwise no forum would exist competent to hear such an action. If the foreign sovereign engages in a trading venture or in speculative investment, it may be justifiable to subject him to civil suit or to deny him tax exemption on his profits. But state practice in regard to the taxation of the personal investments of foreign heads of state is in fact very varied.
55 The reference suggests that at common law, in connection with acts in a private capacity, a head of state enjoys general immunity from criminal and civil jurisdiction. However it also suggests that some exceptions to the rule should be developed.
56 Since ALRC 24 the House of Lords has considered the UK Immunity Act in connection with the well-publicized extradition proceedings against the former President of Chile, Augusto Pinochet Ugarte, reported as R v Bow Street Metropolitan Stipendiary Magistrate; ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147. The case was not directly concerned with the immunity of a serving head of state, but with that of a former head of state. However the broader question was also addressed. At 201-202 Lord Browne-Wilkinson said:
It is a basic principle of international law that one sovereign state (the forum state) does not adjudicate on the conduct of a foreign state. The foreign state is entitled to procedural immunity from the processes of the forum state. This immunity extends to both criminal and civil liability. State immunity probably grew from the historical immunity of the person of the monarch. In any event, such personal immunity of a head of state persists to the present day: the head of state is entitled to the same immunity as the state itself. The diplomatic representative of the foreign state in a forum state is also afforded the same immunity in recognition of the dignity of the state which he represents. This immunity enjoyed by a head of state in power and an ambassador in post is a complete immunity attaching to the person of the head of state or ambassador and rendering him immune from all actions or prosecutions whether or not they relate to matters done for the benefit of the state. Such immunity is said to be granted ratione personae.
What then when the ambassador leaves his post or the head of state is deposed? The position of the ambassador is covered by the Vienna Convention on Diplomatic Relations (1961). After providing for immunity from arrest (article 29) and from criminal and civil jurisdiction (article 31), article 39(1) provides that the ambassador’s privileges shall be enjoyed from the moment he takes up post; and paragraph (2) provides:
“When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.”
The continuing partial immunity of the ambassador after leaving post is of a different kind from that enjoyed ratione personae while he was in post. Since he is no longer the representative of the foreign state he merits no particular privileges or immunities as a person. However in order to preserve the integrity of the activities of the foreign state during the period when he was ambassador, it is necessary to provide that immunity is afforded to his official acts during his tenure in post. If this were not done the sovereign immunity of the state could be evaded by calling in question acts done during the previous ambassador’s time. Accordingly under article 39(2) the ambassador, like any other official of the state, enjoys immunity in relation to his official acts done while he was an official. This limited immunity, ratione materiae, is to be contrasted with the former immunity ratione personae which gave complete immunity to all activities whether public or private.
In my judgment at common law a former head of state enjoys similar immunities, ratione materiae, once he ceases to be head of state. He too loses immunity ratione personae on ceasing to be head of state … . Thus, at common law, the position of the former ambassador and the former head of state appears to be much the same: both enjoy immunity for acts done in performance of their respective functions whilst in office.
(Original emphasis.)
57 His Lordship then went on to deal with what he described as a “strange feature” of the United Kingdom legislation which is also found in the Australian legislation. I will return to that matter at a later stage. Lord Goff of Chieveley dealt with head of state immunity at 209-210. His Lordship dealt firstly with the “strange feature” to which Lord Browne-Wilkinson had referred and continued at 210:
… (T)here seems to be no reason why the immunity of a head of a state under the Act should not be construed as far as possible to accord with his immunity at customary international law, which provides the background against which this statute is set … . The effect is that a head of state will, under the statute as at international law, enjoy state immunity ratione personae so long as he is in office, and after he ceases to hold office will enjoy the concomitant immunity ratione materiae “in respect of acts performed (by him) in the exercise of his functions (as head of state),” the critical question being “whether the conduct was engaged in under colour of or in ostensible exercise of the head of state’s public authority … .” In this context, the contrast is drawn between governmental acts, which are functions of the head of state, and private acts, which are not.
There can be no doubt that the immunity of a head of state, whether ratione personae or ratione materiae, applies to both civil and criminal proceedings. This is because the immunity applies to any form of legal process.
58 See also the observations of Lord Hope of Craighead at 240-241, Lord Hutton at 249-251, Lord Saville of Newdigate (concerning criminal jurisdiction only) at 265, Lord Millett at 268-269 and Lord Phillips of Worth Matravers at 280. It seems that both at common law and pursuant to the UK Immunity Act, heads of state enjoy general immunity in connection with acts performed in a public or private capacity.
59 The States Immunities Act appears to be quite different in form from the UK Immunity Act. However the differences largely reflect different drafting practices, different printing layouts and differences in the legal regimes in which the respective Acts operate, particularly in the area of revenue law. I am satisfied that in practical effect, the two acts are virtually identical.
60 The States Immunities Act is primarily concerned with the immunity of foreign states. However, pursuant to s 3(3):
Unless the contrary intention appears, a reference in this Act to a foreign State includes a reference to:
(a) …
(b) the head of a foreign State, or of a political subdivision of a foreign State, in his or her public capacity; and
(c) …
but does not include a reference to a separate entity of a foreign State.
61 It follows that a head of a foreign state, in his or her public capacity, generally enjoys the same immunity as does a foreign state. However I understand it to be common ground that for present purposes, any relevant immunity is that which the Amir enjoys in his private capacity. Section 36 regulates that matter. It provides as follows:
(1) Subject to the succeeding provisions of this section, the [Diplomatic Immunities Act]extends, with such modifications as are necessary, in relation to the person who is for the time being,
(a) the head of a foreign State … .
as that Act applies in relation to a person at a time when he or she is the head of a diplomatic mission.
(2) …
(3) This section does not affect the application of any other provision of this Act in relation to a head of a foreign State in his or her public capacity.
(4) Part III extends in relation to the head of a foreign State in his or her private capacity as it applies in relation to the foreign State and for the purpose of the application of Part III as it so extends, a reference in that Part to a foreign State shall be read as a reference to the head of the foreign State in his or her private capacity.
62 Part III deals with the service of process and default judgment. It is not relevant for present purposes. Thus, pursuant to s 36, the immunity of a head of state, in connection with acts done in his or her private capacity, will be regulated by the Diplomatic Immunities Act. In defining such immunity by reference to the immunities applicable to the head of a diplomatic mission the Australian legislation follows the United Kingdom example. The UK Immunity Act confers the same immunity on a head of state in his or her private capacity as is enjoyed by the head of a diplomatic mission pursuant to the Diplomatic Privileges Act 1964 (UK) (the “UK Diplomatic Privileges Act”). Both the Diplomatic Immunities Act and the UK Diplomatic Privileges Act effectively adopt relevant provisions of the Vienna Convention on Diplomatic Relations (the “Vienna Convention”), particularly articles 1, 22-24 inclusive and 27-40 inclusive, giving them legal effect.
63 The relevant provisions for present purposes are articles 31 and 39. Article 31 confers immunity upon a “diplomatic agent”. That expression is defined in article 1 to mean “the head of the mission or a member of the diplomatic staff of the mission”. Article 31 provides:
(1) A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
(a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.
(2) A diplomatic agent is not obliged to give evidence as a witness.
(3) No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under sub-paragraphs (a), (b) and (c) of paragraph 1 of the Article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.
(4) The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.
64 Of the exceptions identified in article 31(1) only article 31(1)(c) might apply for present purposes. However no evidence suggests that the Amir has been involved in any professional or commercial activity within this jurisdiction. Indeed, there is no suggestion that he has ever entered Australia. It would seem to follow that as a head of state, he enjoys the same immunity, without exception, as is conferred upon diplomatic agents by article 31, that is, immunity from criminal, civil and administrative jurisdiction, including immunity from execution. However the plaintiff points to article 39 which provides:
(1) Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.
(2) When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.
65 The plaintiff submits that this article limits the immunity of a head of state in the same way as it limits the immunity of a head of mission, with such modifications as may be necessary pursuant to s 36 of the States Immunities Act. That proposition is correct. However it is then submitted that such immunity commences at the time at which a head of state enters Australia and continues until departure. Implicit in this submission is the assertion that a head of state, in his or her private capacity, has no immunity from Australian process when outside of Australia. This would mean that his or her actions outside of Australia would be subject to litigation in Australia, assuming appropriate jurisdictional connection. Additionally, it suggests that he or she might be sued, whilst outside Australia, but not whilst within Australia. There would be little point in such a system.
66 There are, in any event, textual difficulties in applying article 39(1) to a foreign head of state. Such a person does not enter Australia “on proceeding to take up his post”. Only rarely would a person be appointed as head of state whilst in Australia. It is also difficult to give any meaning to article 39(2). The functions of a head of state will not usually come to an end whilst he or she is in Australia. A foreign head of state may perform functions in that capacity whilst in Australia, but such functions would presumably be in his or her public, rather than private, capacity. They would therefore be regulated by the provisions of the States Immunities Act relating to foreign state immunity. Further, article 39 does not deprive a head of mission, who remains in post, of his or her immunity during any temporary absence from the receiving state. It would be strange if a head of state were to lose such immunity upon departure.
67 The error in the plaintiff’s submission is the characterization of article 39 as a geographical limitation upon diplomatic immunity. In fact, it is designed to give immunity whilst the relevant diplomatic agent is in post, whether or not he or she is in the receiving state. It commences upon arrival in that state for the purpose of taking up the post, and terminates upon completion of his or her functions and departure. The geographical references in s 39 reflect the nature of the diplomatic agent’s duties which generally require that he or she be in the relevant country in order to perform them. However he or she enjoys immunity whilst in post, regardless of location. It is that degree of immunity which must be extended to heads of state pursuant to s 36 of the States Immunities Act.
68 The “strange feature” referred to by Lord Browne-Wilkinson and Lord Goff in Pinochet was the apparent general application of article 39 to a head of state in his or her private capacity. No doubt their Lordships’ difficulties were caused by considerations such as those to which I have already referred. They pointed out that the original intention underlying the UK Immunity Act was that a foreign head of state, in his or her private capacity, enjoys immunity under that Act whilst he or she was in the United Kingdom. What, then, was to be the position of a head of state whilst he or she was not in the United Kingdom? I infer that the rules recognized at common law were to apply. I base this inference upon the reference in Lord Browne-Wilkinson’s speech at 203 to the concern expressed in Parliament that the bill in its original form left “an unsatisfactory doubt about the position of heads of state who are not in the United Kingdom”. The problem was resolved by extending the operation of article 39, presumably because it was always the intention that such heads of state have immunity.
69 I conclude that the Amir enjoys immunity from civil suit in this country, subject to the qualifications and exceptions which appear from the States Immunities Act, the Diplomatic Immunities Act and the Vienna Convention, none of which exceptions presently applies. The Amir is also immune from execution.
ORDERS
70 I will hear submissions as to appropriate orders and costs.
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I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. |
Associate:
Dated: 5 December 2008
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Counsel for the Plaintiff: |
Mr A Duffy |
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Solicitor for the Plaintiff: |
Thynne & Macartney |
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Counsel for the Defendant: |
Mr A Crowe SC and Mr G Coveney |
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Solicitor for the Defendant: |
Blake Dawson |
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Date of Hearing: |
18 September 2008 |
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Date of Judgment: |
5 December 2008 |
