Federal Court of Australia

Saudi Arabian Cultural Mission v Alramadi [2024] FCA 1060

ORDERS

THE COURT ORDERS THAT:

1.    The applications for leave and to extend time be allowed.

2.    The appeal be allowed.

3.    Orders 1 and 3 and the declaration of the primary judge made on 6 October 2023 be set aside.

THE COURT DECLARES THAT:

1.    The initiating process filed on 18 October 2021 has not been duly served on the applicants in accordance with the requirements of s 24 of the Foreign States Immunities Act 1985 (Cth) and rr 10.42, 10.43 and 10.51 of the Federal Court Rules 2011 (Cth) as in force at the applicable time and, by operation of s 25 of that Act, therefore any purported service on 14 July 2022 was ineffective.

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

REASONS FOR JUDGMENT

RAPER J:

1    This application for leave and to extend time to appeal concerns whether the applicants were validly served with the respondents’ initiating process under the Foreign States Immunities Act 1985 (Cth). The applicants are diplomatic missions of the Kingdom of Saudi Arabia. Accordingly, absent an agreement between the respondents and applicants, the respondents were required to serve their initiating process on the KSA through the diplomatic channel in accordance with the FSIA: FSIA ss 23, 24(1). Service of initiating process on a foreign State is governed by Pt III of the FSIA. Service through the diplomatic channel requires that the initiating process be delivered to the Commonwealth Attorney-General for transmission by the Department of Foreign Affairs and Trade to “the department or organ of the foreign State that is equivalent to that Department.”: FSIA s 24(1). Once the initiating process has been delivered through the diplomatic channel, DFAT will issue a certificate under s 40 of the FSIA (s 40 certificate), certifying for the purposes of the Act, inter alia, that service was effected on a specified day: FSIA s 40(1)(d).

2    Service was purportedly effected by DFAT on the Royal Embassy of Saudi Arabia in Canberra (the Embassy) on 14 July 2022.

3    The proceedings below were commenced by the respondents, originally comprising 17 individuals (by the time of hearing, three individuals) who claimed to be former employees of the applicants, who have made various claims that they were not paid their employee statutory entitlements in breach of the Fair Work Act 2009 (Cth).

4    The Court below, ordered and declared on 6 October 2023, that the applicants had been duly served through the diplomatic channel in accordance with s 24 of the FSIA: Alramadi v Saudia Arabian Cultural Mission [2023] FedCFamC2G 895 (PJ).

5    By the applicants’ draft amended notice of appeal, the applicants ask that this Court set aside the orders made by the primary judge dismissing the applicants’ application below and declare: (a) that the initiating process filed on 18 October 2021 has not been duly served on the applicants in accordance with the requirements of s 24 of the FSIA and rr 10.42, 10.43 and 10.51 of the Federal Court Rules 2011 (Cth) as in force at the applicable time and are therefore ineffective; and (b) that purported service on 14 July 2022 of the initiating process filed on 18 October 2021 be set aside. The applicants also seek their costs of the proceedings below and on appeal.

6    The grounds of appeal broadly relate to two issues: Firstly, by grounds 1 to 7, whether the primary judge erred in finding the applicants were duly served; secondly, by ground 8, whether the primary judge erred in failing to determine the applicants’ claim of immunity from jurisdiction.

7    For the reasons which follow, I allow the applications to extend time and leave to appeal. Also, for reasons which follow, the appeal must succeed and I order that orders 1 and 3 and the declaration of the primary judge be set aside and make a declaration that the applicants have not been duly served in accordance with s 24 of the FSIA and any purported service has been ineffective, by operation of s 25 of the FSIA.

Background

8    For service to be effective under s 24 of the FSIA, amongst other things, the initiating process must be accompanied by a number of documents. Under s 24(2)(b), the initiating process must be accompanied by:

… a statutory declaration of the plaintiff or applicant in the proceeding stating that the rules of court or other laws (if any) in respect of service outside the jurisdiction of the court concerned have been complied with; …

9    On 10 March 2022, a law clerk in the employ of the then solicitors for the respondents, made a statutory declaration that “there are no rules of court or other laws in respect of service outside the jurisdiction of the [Federal Circuit and Family Court of Australia]” (the Sullivan Declaration).

10    On 14 July 2022, Mr Ben Milton of DFAT, issued a certificate pursuant to s 40 of the FSIA, stating that “service of the Initiating Process in the Proceeding and accompanying documents was effected in accordance with Section 24 of the Act … on 14 July 2022” (the July 2022 Certificate).

11    On 10 February 2023, the applicants filed an Application in a Proceeding which sought a declaration that the Saudi Arabia Cultural Mission and the Embassy are immune from the jurisdiction of the FCFCOA in respect of the proceedings brought against it by the respondents, and that the proceedings brought against the Embassy and Cultural Mission be summarily dismissed.

12    The applicants argued before the primary judge that there had been no effective service of the respondents’ application; specific protections were provided to the applicants by the FSIA; the “employment” exception under s 12 of the FSIA was not satisfied, and there was also a risk that the application would strip the applicants of immunity of a sovereign State, contrary to the Vienna Convention on Diplomatic Relations, opened for signature 18 April 1961, 500 UNTS 95 (entered into force 24 April 1964), as given force in Australia by s 7(1) of the Diplomatic Privileges and Immunities Act 1967 (Cth).

13    On 10 March 2023, prior to the hearing before the primary judge on 27 March 2023, Ms Emily Shoemark of Snedden Hall & Gallop Lawyers, solicitors for the respondents, sent a letter to Mr Milton in relation to the July 2022 Certificate, stating “we invite you to clarify how the certificate issued by [DFAT] in relation to the matter complies with the [FSIA] and/or the case law, by reference to the matter raised below” (that matter raised being the decision in Douglas v Republic of Nauru [2004] VSC 500; 187 FLR 221, wherein Ashley J considered the requirements of a s 40 certificate to be in accordance with s 24(1) of the FSIA). The letter further stated that “[i]f after considering the above, you form the view that the certificate is not compliant, could you please provide a certificate in accordance with the law.”

14    The hearing before the primary judge occurred before Ms Shoemark received clarification from DFAT.

15    That clarification came on 28 April 2023, one month after the hearing, when Ms Natalie Medelsohn of DFAT wrote to Ms Shoemark in response to her letter of 10 March 2023, enclosing a letter and providing a new s 40 certificate dated 27 April 2023 that was reissued to “[clarify] the issues you raise in your letter” (the April 2023 Certificate). The April 2023 Certificate states:

I, Ben Milton, Assistant Secretary and Corporate Counsel of the Legal Division of the Department of Foreign Affairs and Trade, having been duly authorised by the Minister for Foreign Affairs, DO HEREBY CERTIFY, pursuant to section 40 of the Foreign States Immunities Act 1985 (“the Act”), that in the matter of Nidal Alramadi & Ors against The Royal Embassy of Saudi Arabia in Australia (Cultural Office) & Anor in the Fair Work Division of the Federal Circuit and Family Court of Australia (the Proceeding), service of the following documents were delivered by hand and accepted by the Deputy Head of Mission, Mr Ahmed Al Dagreer, on behalf of The Royal Embassy of Saudi Arabia in Canberra in accordance with section 24 of the Act:

a)     the initiating process in the Proceeding of a Statement of Claim dated 15 October 2021;

b)     a request in accordance with Form l in the Schedule of the Act;

c)     a statutory declaration of the applicant in the Proceeding dated 10 March 2022 stating that the rules of court or other laws (if any) in respect of service outside the jurisdiction of the court concerned have been complied with (there are no rules of court or other laws in respect of service outside the jurisdiction of the Federal Circuit and Family Court of Australia);

d)     a translation of the initiating process into Arabic, an official language of the foreign State; and

e)     certificates in Arabic, signed by the translator on 12 March 2022, setting out particulars of their qualifications as a translator and stating that the translation is an accurate translation of the initiating process.

The Royal Embassy of Saudi Arabia in Canberra is the representative in Australia of the organ of the Kingdom of Saudi Arabia that is equivalent to the Australian Department of Foreign Affairs and Trade. Service was effected by Rabia Sharif, Legal Officer of the Department of Foreign Affairs and Trade, in Canberra on 14 July 2022.

GIVEN under my hand and the seal of the Department of Foreign Affairs and Trade this twenty seventh day of April 2023.

16    After receipt of the April 2023 Certificate, the respondents also sought to re-open their case and file more evidence, by application on 19 May 2023. The applicants then filed a Response to this Application to re-open on 16 June 2023. The primary judge granted the respondents’ application to re-open the evidence. It is unnecessary to say anything further on this point, not being the subject of appeal.

17    Ultimately, the primary judge struck out the applicants’ claims for relief contained in the applicants’ Application in a Proceeding for the proceeding to be summarily dismissed, on a mistaken belief that their application had been “never formally pursued”: at PJ[58]. By this, his Honour understood that the other bases upon which the applicants had agitated that they were immune from jurisdiction had not been pressed. Rather, his Honour understood that the applicants only sought to press “issues of ‘service’ and their claim as to the deficiencies of the Statement of Claim”: at PJ[59]. This part of his Honour’s orders is formally challenged by the applicants’ appeal ground 8.

18    The primary judge ultimately declared that the applicants had been duly served with the documents set out in the April 2023 Certificate: at PJ[83](c).

Extension of time and leave to appeal

19    Given the primary judgment is an interlocutory judgment, leave is required for the applicants to appeal from that decision: Federal Court of Australia Act 1976 (Cth) s 24(1A). In addition, an application to extend time is necessary in this case: Any application for leave to appeal the primary judgment must be filed within 14 days after the order was made: Federal Court Rules r 35.13. The primary judge gave judgment on 6 October 2023, which meant that the applicants in these proceedings had until on or before 4.30pm on 20 October 2023 to electronically file an application for leave to appeal. However, the applicants filed their application for leave one minute late (by reason of technical difficulty) and by administrative inadvertence, had also failed to file the draft notice of appeal which required re-filing, which was done on 23 October 2023.

20    By operation of r 2.25(3)(a) of the Federal Court Rules, for documents sent by electronic communication to a Registry, if they are accepted by a Registry under subrule (1), they are taken to have been filed if the whole of the document is received by 4.30pm on a business day for the Registry, and in any other case, on the next business day: r 2.25(3)(b). As a result, the application for leave was filed late and requires this Court to grant an extension of time for leave to appeal.

21    Accordingly, two questions arise: Firstly, whether an extension of time should be granted, and secondly, whether leave to appeal from the primary judge should be given. For the following reasons, both are answered in the affirmative.

22    As to granting leave to extend time, I am satisfied that adequate explanation for delay has been given. I do not consider that it was necessary that the applicants justify why they had not filed the documents earlier than when they attempted to do so, and they were not required to give detailed evidence of when they had obtained instructions. It is clear that the applicants’ legal representatives worked down to the wire prior to filing and by technical difficulty failed to do so in time. I do not consider that the respondents have suffered any prejudice arising from the one-minute delay. I do not accept that the respondents’ articulated prejudice could include the purported new issues raised on appeal. It does not arise from the delay. By contrast, I accept that the applicants will suffer real prejudice if the extension is not granted, namely, that they will be deprived of their ability to assert immunity (which has not yet been determined) and to argue whether the requirements regarding the validity of service were met.

23    As to the granting of leave to appeal, consideration must be given to whether the decision giving rise to the orders is attended with sufficient doubt to warrant it being reconsidered and whether substantial injustice would result if leave were refused; and, the consequences of granting or refusing the extension, including any prejudice to the respondents: Deputy Commission of Taxation v Miraki [2022] FCAFC 96 per Perram, Moshinsky and Hespe JJ at [3]:

It is convenient to deal at the outset with the application for an extension of time to file the application for leave to appeal. In support of the application for an extension of time, the Commissioner relies on an affidavit of Alvin Sharma, a solicitor employed by HWL Ebsworth Lawyers, the solicitors acting for the Commissioner, dated 25 November 2021. Mr Sharma states, in summary, that there was a failure to appreciate that 4.30 pm was the cut off time for filing documents electronically, as a result of which the leave to appeal documents were filed 15 minutes out of time. In our view, the Commissioner has provided an adequate explanation for the delay, and it is appropriate in the circumstances to grant the extension of time.

24    For the reasons articulated below, the impugned decision was attended with sufficient doubt to warrant reconsideration and, by reason of the same, concomitant injustice would befall the applicants if leave were not granted. The appeal raises important questions regarding the requirements for service under s 24 of the FSIA, and the effect of a certificate under s 40 of the FSIA, upon which there is limited authority. These are important matters of principle that concern the dignity, immunities and privileges of foreign States under Australian law.

25    Against the granting of leave, the respondents contended that the appeal had no reasonable prospects as a matter of law (which, for the reasons set out below, is not accepted). In addition, the respondents submitted that the determination of whether the decision is attended with doubt, must be assessed by the case as run below and not as it is now articulated. I do not accept this submission. The respondents also submitted that, by reason of the applicants running a different case now, leave should not be granted. For the reasons set out below, I do not accept that such a preclusion arises in this case: It is not a case where an entirely new case is being run, rather, the existing argument is buttressed by more expansive reference to the legislative framework, international treaties and caselaw.

26    In addition, the respondents submitted, to the extent the arguments were pleaded below and on appeal, this indicated the applicants are engaging with the substance of the case and accordingly, acceding to the jurisdiction. I do not accept this argument: To make argument as to absence of jurisdiction is not sufficient to accede to it. I am not satisfied that steps were taken, beyond those necessary or useful to objecting to jurisdiction, to found a claim that there has been submission to jurisdiction: City of Swan v McGraw-Hill Companies Inc [2014] FCA 442; 223 FCR 295 at [114] per Rares J, quoting Brealey v Board of Management of Royal Perth Hospital [1999] WASCA 158; 21 WAR 79 at [38] per Ipp J. Further, the respondents sought to dissuade the Court from granting leave, in part, from a misunderstanding of the applicable rules, which they correctly no longer press.

27    For the reasons set out below, where the respondents repeated their arguments regarding the applicants running a different case, as a basis for rejecting the appeal, I am of the view, that whilst there has been a much more crystalline and expansive argument put on appeal as to why service was not duly effected, I do not accept that in the circumstances, the applicants ought to be deprived of leave. This is not to say that I do not recognise the very difficult position the respondents were in below (namely, having to rely on the actions of DFAT regarding effecting service), and not having any knowledge of the facts regarding service to form their own independent view and having to deal with the more expansive argument on appeal. However, this is an issue that is persuasive on the costs question (dealt with below) but not one, on this occasion, for which the discretion ought to be exercised to not grant leave to appeal.

Issues requiring resolution on appeal

28    There are two primary issues requiring resolution: Firstly, whether the primary judge erred in finding that the applicants were duly served (grounds 1 to 7) and secondly, whether the primary judge erred in failing to determine the applicants’ (other bases) of its claim of immunity of jurisdiction by dismissing their application rather than timetabling those matters to be determined after it had determined the two claims against it (ground 8).

29    As to the first, the applicants contended that the primary judge erred in making the declaration that the applicants had been duly served: at PJ[83(c)]. This aspect of the appeal was framed by reference to four broad errors, attributing to each a number of grounds of appeal. Those were said to be:

(1)    The rules of court regarding service are not “facultative” and did need to be complied with (corresponding to grounds 1, 2 and 4);

(2)    Service was not validly effected in accordance with s 24 of the FSIA, given that service cannot be effected on a diplomatic mission unless authorised by the foreign State (corresponding to grounds 1, 3 and 6);

(3)    the April 2023 Certificate is not conclusive evidence of valid service (corresponding to grounds 1 and 5); and

(4)    it was not the applicants who made an inquiry with DFAT on 10 March 2023 (corresponding to ground 7).

30    Each of these issues will be addressed in turn below.

31    However, before addressing each of the bases which attend the first issue, it is worthwhile addressing the overarching, oppositional challenge by the respondents to the appeal grounds, namely, that the applicants ought be precluded from raising these grounds as they were not raised below. This submission was relied upon both as a basis for refusing leave and to extend time but also as precluding them being raised substantially on appeal.

Whether the applicants’ are raising new issues on appeal

32    The respondents submitted they would suffer substantial injustice given the appeal, in the main, seeks to traverse matters not pressed by the applicants’ written or oral submissions and that the applicants should be held to the case they ran below, relying on Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68 at 71 and Chilcotin Pty Ltd Limited Cenelage Pty Ltd [1999] NSWCA 11 at [15], [18] per Giles JA (with whom Mason P and Priestley JA agreed). There is no absolute rule that a party is precluded from raising a new point on appeal – it may be expedient and in the interests of justice that important issues of law raised in the appeal be heard and determined: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; Water Board v Moustakas (1950) 180 CLR 491 at 497 per Mason CJ, Wilson, Brennan and Dawson JJ; NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134; 147 FCR 51 at [73]–[77]; Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 at [66].

33    Whilst account may be taken of what was said in Metwally, that a party is bound by the conduct of their case except in the most exceptional circumstances, account must be taken of the factual source for this reasoning. In Metwally, the applicant sought to question the constitutional validity of the Racial Discrimination Act 1975 (Cth) where there had been no challenge below to the Act’s validity. As will be apparent from the below, no such stark circumstances arise here.

34    It may be accepted that an appellant may not be permitted to make a “new case on appeal even if the point is unaffected by possible further evidence or the way the opposing party would have conducted the case at trial”: Chilcotin at [15]. However, the reasoning in Chilcotin is expressed in an open way. The authorities make clear that where the point is one of construction or of law, the appeal court may find it expedient and in the interests of justice to entertain the point: Water Board at 497 per Mason CJ, Wilson, Brennan and Dawson JJ.

35    In the present case, it may be said to be expedient and in the interests of justice to entertain the points raised by the applicants.

36    The respondents’ Counsel, in a helpful, tabulated form, addressed each of the grounds of appeal, by reference to whether the substance of those grounds was raised below in oral or written submission. However, as will be apparent from the below, the submission appeared to be predicated on an assumption that, where something arose on appeal from something raised by the primary judge in his deliberations and was not raised by either party, the applicants were foreclosed from challenging them on appeal. Such a submission cannot be maintained.

37    Further, certain aspects of the submissions were premised on an assumption that there needed to be express reliance on rules, sub-rules or the sub-sections of particular provisions below and the applicants were precluded from bedding their construction arguments on a broader contextual plane. Whether such a preclusion exists depends on the circumstances.

38    A review of the applicants’ application, written and oral submissions below, reveal the following regarding the argument concerning the absence of valid service. The applicants, in their Application in a Proceeding dated 10 February 2023 below (Application below), outlined the basis for why they said the service of the initiating process was ineffective:

2.2     Service of the initiating process was not effective

(a)     RESA submits that the service of the Proceedings was not effective and that there is therefore no validly served proceedings before the Court which can disturb the default position of the Immunity applying.

(b)     RESA objects to the service of the Proceedings on the basis that it was not served in accordance with the requirements of section 24 of FSI Act and the service was therefore, as per section 25 of the FSI Act, ineffective.

(c)     Specifically, RESA submits that:

(i)     the Proceedings was not served, as is required by subsection 24(1) and subsection 24(3) of the FSI Act, on the equivalent of the Australian Department of Foreign Affairs as defined in the FSI Act (currently the Department of Foreign Affairs and Trade), being the Ministry of Foreign Affairs in the Kingdom of Saudi Arabia, but rather was served on the Royal Embassy of Saudi Arabia in Australia. This also constitutes a breach of Article 22 of the Vienna Convention of Diplomatic Relations (VCDR) which provides for the inviolability of the premises of diplomatic missions, which has the force of law in Australia.

(ii)     The Proceedings did not (as required as an ‘initiating process’, as defined in subsection 3(1) of the FSI Act) include a clear statement of claim in respect of each of the parties to it. Rather, the Proceedings only contained a bulk of allegations, with no specificity as to which alleged contravention related to which party, how the alleged contravention came about or when. The Proceedings therefore did not function as an effective and valid ‘initiating process’ for the purposes of the FSI Act, including its section 24 and section 25.

(iii)     The leave of the Court was not obtained, as is required by Section 24 (5) of the FSI Act, noting that Schedule 1 of the Court’s rules provides that Division 10.05 [sic. At hearing, the applicants submitted, and the respondents did not contest, that this was a reference to Div 10.5 and reference to Div 10.05 was a typographical error.] of the Federal Court Rules 2011 applies to require the leave of the Court for service through diplomatic channel.

(iv)     The Proceedings represents a collective claim (being a claim involving more than one applicant) which (as detailed in paragraph 2.3 of this Application below) RESA submits are not provided for in the FSI Act (including in respect of the service of such claims).

39    This reveals the following. The applicants squarely raised an objection to service on the basis, inter alia, that leave of the Court to serve out of the jurisdiction was required and was not obtained. The applicants referred to such leave being so required, by reason of s 24(5), given the applicability of Div 10.5 of the Federal Court Rules. The same was reasserted in their written submissions, but without specific reference to the applicable rules. In addition, the applicants argued that, contrary to what was required under ss 24(1) and (3), the proceedings were not served on the KSA Department that is the equivalent of DFAT, as defined, being, by their contention, the Ministry of Foreign Affairs in the Kingdom of Saudi Arabia, but rather was served on the Royal Embassy of Saudi Arabia in Australia, which was said to also further constitute a breach of art 22 of the VCDR. Furthermore, later, in the applicants’ Application below, the applicants relied on the preservation of its immunity as it arises by operation of s 6 of the FSIA, and in turn relevant sections of the DPIA giving force to arts of the VCDR.

40    The respondents made numerous submissions asserting that new issues were being raised on appeal, by reference to the applicants’ grounds of appeal and what was argued below. By short summary, the respondents submitted with respect to the ground 1, that it was argued by reference to arguments which now form the basis for grounds 2 to 8, and, as those grounds were in the main argued differently below, ground 1 could not be argued in this way now.

41    As to ground 2, it was asserted that the argument that the rules of court regarding service were facultative, was not argued below. However, as correctly conceded before me, given this was a conclusion of the primary judge’s own volition, this is not something that the applicants may be deprived from challenging on appeal – it is not a new argument as raised by them.

42    As to ground 3 (that the primary judge erred in finding that service was effected in accordance with s 24 of the FSIA through the diplomatic channel), the respondents concede this was argued below (obviously it was), but they assert the underpinning argument below was more limited. It was also said that the argument below was that the initiating process was not served as required by ss 24(1) and (3) on the equivalent of DFAT as defined by the FSIA but was rather served on the Embassy in breach of art 22 of the VCDR, which provides for the inviolability of premises of diplomatic missions.

43    A new case is not being run on appeal but rather the same one in a more expansive way. This case is not akin to Metwally. As is evident from the above, what was in issue below was whether service was effected in accordance with s 24 of the FSIA, for which arguments were raised about why service was not so duly effected. Those submissions encompassed a consideration of s 24 of the FSIA, as well as its operation within the wider suite of legislation and treaties that deal with foreign States.

44    As to ground 4, the respondents say the applicants argued below that leave of the Court was not obtained as required by s 24(5) of the FSIA, noting that sch 1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) provides that Div 10.5 of the Federal Court Rules applies to require the leave of the Court for service through the diplomatic channel. The respondents say that the applicants did not squarely raise rr 10.42, 10.43 and 10.51 of the Federal Court Rules below, not being mentioned in in its Application below and with no oral submissions of substance. It is true that the applicants only referred in passing to the relevant part of the Federal Court Rules and did not specifically address the rules identified; and, in particular, did not refer to rr 10.42 and 10.43 which prescribe the need for leave of the Court to first be obtained. However, it is clear that the substance of their submission, as to the need for leave, was clearly made.

45    As to ground 5, the respondents say that the applicants made no oral or written submissions as to s 40(1)(d) and (5) of the FSIA. However, this was an issue raised the respondents and by the primary judge himself, not the applicants. It manifested from the course of the proceedings. After the hearing on 27 March 2023 (but before judgment on 6 October 2023), DFAT issued the April 2023 Certificate. As a consequence, an application was made by the respondents to reopen and rely on this evidence. In this context, the applicants relied upon DFAT’s purported “compliance” with ss 24 and 40, such that the certificates were “determinative” of whether the proceedings have been properly served. In addition, however, the respondents were aware that the applicants took issue with service, in part based on the operation of s 40. Thereafter, the applicants opposed the respondents’ application to rely on these certificates and raise why they say s 40(1)(d) cannot be relied upon. This application was thereafter dealt with on the papers. I do not accept that, by reason of the argument concerning the operation of s 40 only arising in the context of the respondents’ application, it is then to be categorised as something that the applicants are foreclosed from challenging on appeal.

46    In relation to ground 6, the respondents submit there were no oral or written submissions regarding the alleged failure of the primary judge to consider certain Acts and aspects of international treaties now relied upon, namely: s 5(1) of the Consular Privileges and Immunities Act 1972 (Cth); arts 31, 32, 33 and 35 of the Vienna Convention on Consular Relations, opened for signature 24 April 1963, 596 UNTS 261 (entered into force 19 March 1967); s 7 of the DPIA; and, arts 24 and 27 of the VCDR. It was said that there were broad written submissions below regarding the operation of the VCCR and how its operation revealed that service could not be effected in the manner it was. Otherwise, according to the respondents, s 6 of the FSIA was only mentioned in written submissions in relation to ground 2.1, which was not pressed on the day, although it was briefly mentioned in oral submissions. It is clear from the applicants’ Application below and its submissions below, that it relied upon the effect of s 6 (not only in relation to ground 2.1 but ground 2.6) and its effect, by reference to the operation of other legislation.

47    Finally, in relation to ground 8, this was truly a matter that arose from the way that the primary judge understood (incorrectly) how the case was being run and I do not accept that it constitutes a “new case” on appeal.

48    I address below the applicants’ and respondents’ submissions as to each of the proposed grounds. Having addressed the respondents’ submissions on each ground as to the applicants raising new issues on appeal, I do not propose to traverse those arguments again below.

Rules of court regarding service out of jurisdiction are “facultative”

Ground 4

49    The applicants characterised grounds 1, 2 and 4 of their draft amended notice of appeal, as giving focus to the primary judge’s error in holding that the rules of court concerning service out of the jurisdiction are “facultative”. By being “facultative”, this meant they did not need to be complied with by the respondents before proceeding with service of their initiating process through the diplomatic channel in accordance with s 24 of the FSIA. The same is apparent from [79(a)] of the primary judge’s reasons:

… the arguments and contentions raised by the respondents [the applicants in these proceeding] regarding “service” have not been established and [sic] no substance. This is because,

(a) any Rules of Court regarding service are facultative,

…

50    The applicants submitted that the rules of court were mandatory, and that under the applicable rules of court, the respondents were actually required to obtain leave for service out of the jurisdiction. As a consequence, given the respondents did not obtain leave to serve the applicants, service was not validly effected.

51    For the following reasons, I accept that the primary judge erred in finding that there was no need for the respondents to first obtain leave of the Court before serving the initiating process through the diplomatic channel on the applicants.

52    There are two ways in which service of initiating process may be effected on a foreign State, by agreement (pursuant to FSIA s 23) or through the diplomatic channel (pursuant to FSIA s 24).

53    Section 24 provides:

24  Service through the diplomatic channel

(1)     Initiating process that is to be served on a foreign State may be delivered to the Attorney-General for transmission by the Department of Foreign Affairs to the department or organ of the foreign State that is equivalent to that Department.

(2)     The initiating process shall be accompanied by:

(a)     a request in accordance with Form 1 in the Schedule;

(b)     a statutory declaration of the plaintiff or applicant in the proceeding stating that the rules of court or other laws (if any) in respect of service outside the jurisdiction of the court concerned have been complied with; and

(c)     if English is not an official language of the foreign State:

(i)     a translation of the initiating process into an official language of the foreign State; and

(ii)     a certificate in that language, signed by the translator, setting out particulars of his or her qualifications as a translator and stating that the translation is an accurate translation of the initiating process.

(3)     Where the process and documents are delivered to the equivalent department or organ of the foreign State in the foreign State, service shall be taken to have been effected when they are so delivered.

(4)     Where the process and documents are delivered to some other person on behalf of and with the authority of the foreign State, service shall be taken to have been effected when they are so delivered.

(5)     Subsections (1) to (4) (inclusive) do not exclude the operation of any rule of court or other law under which the leave of a court is required in relation to service of the initiating process outside the jurisdiction.

(6)     Service of initiating process under this section shall be taken to have been effected outside the jurisdiction and in the foreign State concerned, wherever the service is actually effected.

(7)     The time for entering an appearance begins to run at the expiration of 2 months after the date on which service of the initiating process was effected.

(8)     This section does not apply to service of initiating process in a proceeding commenced as an action in rem.

54    As is apparent from the foregoing, service may be effected by delivery to the Attorney-General for transmission by DFAT to the department or organ of the foreign State that is equivalent to DFAT. Importantly, s 24(2) prescribes what must be accompanied by the initiating process. It includes a statutory declaration of the plaintiff or applicant that states that the rules of court or other laws (if any) in respect of service outside the jurisdiction of the court concerned have been complied with.

55    Service through the diplomatic channel (whether actually delivered in the foreign State (s 24(3)) or delivered to some other person on behalf of, and with the authority of, the foreign State (s 24(4)), is taken to be service out of the jurisdiction under s 24(6) of the FSIA, which provides that “Service of initiating process under this section shall be taken to have been effected outside the jurisdiction and in the foreign State concerned, wherever the service is actually effected.”

56    The applicants submitted that the effect of s 24(5) of the FSIA is that for service out of jurisdiction, any applicable rules of court requiring leave for service out of the jurisdiction must be complied with. This construction is correct. It is apparent from both the text and context. It is apparent from the operation of s 24(2)(b) that the rules of court requiring leave for service out of jurisdiction must be complied with before service is effected: The provision requires, in effect, that the Attorney-General has been notified by the applicant when a request is made for service to be effected through the diplomatic channel that the request be accompanied by a “statutory declaration of the plaintiff or applicant … stating that the rules of court … in respect of service outside the jurisdiction of the court concerned have been complied with” (emphasis added).

57    The apparent mischief s 24 is seeking to confront is to ensure that foreign States are not served with initiating processes which a Court would not give leave to serve, because, amongst other things, the party does not have a prima facie case for any of the relief claimed in the proceeding.

58    This construction, to the extent necessary, is aided by the Explanatory Memorandum to the Foreign States Immunities Bill, which, in referring to “clause 24 – service through the diplomatic channel”, contemplated that:

The clause operates as follows:

•    A plaintiff who wishes to serve the foreign State, having first obtained any necessary leave of the court to serve outside the jurisdiction, delivers the process to the Attorney–General (through his Department) …

59    As a consequence, the primary judge erred in failing to consider whether there were any applicable rules which required the respondents to obtain leave to serve out of jurisdiction.

60    To this end, the applicants say (and the respondents conceded at hearing) that the then applicable rules of court did require leave be obtained. Although the FCFCOA Rules do not themselves deal with the issue of service out of jurisdiction, Div 10.4 of the Federal Court Rules, concerning “Service outside Australia”, applies in proceedings before the FCFCOA, with necessary changes: FCFCOA Rules r 1.06(3) and sch 1, item 6. Under the then Federal Court Rules, r 10.43 provided:

10.43 Application for leave to serve originating application outside Australia

(1)     Service of an originating application on a person in a foreign country is effective for the purpose of a proceeding only if:

(a)     the Court has given leave under subrule (2) before the application is served; or

(b)     the Court confirms the service under subrule (6); or

(c)     the person served waives any objection to the service by filing a notice of address for service without also making an application under rule 13.01.

Note:     A respondent may apply to set aside an originating application or service of that application—see rule 13.01.

(2)     A party may apply to the Court for leave to serve an originating application on a person in a foreign country in accordance with a convention, the Hague Convention or the law of the foreign country.

(3)     The application under subrule (2) must be accompanied by an affidavit stating:

(a)     the name of the foreign country where the person to be served is or is likely to be; and

(b)     the proposed method of service; and

(c)     that the proposed method of service is permitted by:

(i)     if a convention applies—the convention; or

(ii)     if the Hague Convention applies—the Hague Convention; or

(iii)    in any other case—the law of the foreign country.

(4)     For subrule (2), the party must satisfy the Court that:

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

(b)     the proceeding is of a kind mentioned in rule 10.42; and

(c)     the party has a prima facie case for all or any of the relief claimed in the proceeding.

Note 1:     The law of a foreign country may permit service through the diplomatic channel or service by a private agent—see Division 10.5.

Note 2:     Rules 10.63 to 10.68 deal with service of local judicial documents in a country, other than Australia, that is a party to the Hague Convention.

Note 3:     The Court may give permission under subrule (4) on conditions—see rule 1.33.

(5)     A party may apply to the Court for leave to give notice, in a foreign country, of a proceeding in the Court, if giving the notice takes the place of serving the originating application.

(6)     If an originating application was served on a person in a foreign country without    the leave of the Court, a party may apply to the Court for an order confirming the service.

(7)     For subrule (6), the party must satisfy the Court that:

(a)     paragraphs (4)(a) to (c) apply to the proceeding; and

(b)     the service was permitted by:

(i)     if a convention applies—the convention; or

(ii)     if the Hague Convention applies—the Hague Convention; or

(iii)     in any other case—the law of the foreign country; and

(c)     there is a sufficient explanation for the failure to apply for leave.

61    Accordingly, at the time of purported service on the Embassy, r 10.43(1)(a) of the Federal Court Rules provided that “service of an originating application on a person in a foreign country is effective … only if the Court has given leave under subrule (2) before the application is served” (emphasis added.). Sub-rules 10.43(2)–(4) then set out the requirements for an application for leave to serve, including that the party applying must satisfy the Court that it has a prima facie case. An example of where this has been done, was in CC/DEVAS (Mauritius) Ltd v Republic of India [2021] FCA 975, in which Stewart J gave leave to the applicant to serve an amended originating application through the diplomatic channel pursuant to s 24(5) of the FSIA and r 10.43 of the Federal Court Rules: at [15]–[25].

62    Against this, the respondents initially contended that, even if it is accepted that the rules of court are not “facultative”, as found by the primary judge, it is not a positive requirement that leave must be sought under r 10.43 in every case; rather, the respondents did not require leave under the current (rather than the then applicable rules) r 10.43, because r 10.42(c) and (j) allowed service of this claim (concerning contractual breach and breach of the FW Act) without leave. This argument was abandoned at hearing.

63    As a consequence, the Sullivan Declaration was incorrect when it declared that there were no rules relating to leave to service out of jurisdiction (as per the requirement of s 24(2)(b)). Therefore, the respondents did not comply with the requirements under s 24, as the rules of court for service outside the jurisdiction were not complied with, and the statutory declaration erroneously stated that there were no applicable rules which were to be complied with.

64    The respondents also contended that, even when accepting that service in accordance with s 24 of FSIA required the respondents to obtain leave of the Court under r 10.43(1), the effect of the primary judge’s declaration that the respondents had been duly served prevails to cure any defect in failing to obtain leave. That is, in accordance with r 1.07(2) of the FCFCOA Rules, the primary judge’s declaration prevails over the inconsistency with the failure to obtain leave under the Federal Court Rules. It was submitted by the respondents that the declaration made by the primary judge “overtook that failure comply”. The respondents also submitted that it was open to the primary judge, pursuant to r 1.07(1), to dispense with the rules, and that the Court can perfect non-compliance with the rules retrospectively. However, as to this latter argument, critically at hearing, the respondents conceded that the primary judge did not, in his Honour’s reasons, dispense with compliance in the exercise of his discretion under r 1.07(1). Rather, his Honour formed the view the rules of court were “facultative”.

65    Accordingly, the only argument before me in this respect is, whether the effect of his Honour’s declaration that the respondents have been duly served, is that r 1.07(2) is enlivened to “cure” as it were, the failure to obtain leave. Rule 1.07(2) is given in the following terms:

Rule 1.07 Court may dispense with the rules

……..

(2)      If, in a proceeding, the Court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the Court prevails in that proceeding.

66    I do not understand how r 1.07(2) is applicable here. The Court did not give a direction or make an order, it made a declaration. Furthermore, as submitted by the applicants, whether the primary judge’s declaration “cured” the failure to obtain leave by virtue of r 1.07(2), it remains the case that s 24(2)(b) of the FSIA was not complied with by the respondents, and that deficiency cannot be cured by dispensation with the rules. That is, as part of the initiating process to be delivered to the Attorney-General under s 24(1), it is a condition by s 24(2)(b), that the initiating process be accompanied by a statutory declaration of the applicant “stating that the rules of court or other laws (if any) in respect of service outside the jurisdiction of the court concerned have been complied with”. To this end, as it was not in dispute that the Sullivan Declaration failed to identify and comply with the relevant rules – that deficiency in failing to satisfy s 24(2)(b) cannot be retrospectively cured by a dispensing of the rules of court. Accordingly, even if the respondents are right that r 1.07(2) operates to cure the respondents’ failure to obtain leave (which I do not accept), that dispensation from the applicable rule is unable cure the deficiency in the respondent’s compliance with s 24(2)(b). Accordingly, the respondents’ argument that r 1.07(2) cures the respondents’ failure to obtain leave must fail.

Ground 2

67    The applicants also challenged the primary judge’s reliance on the reasons of Nettle and Gordon JJ in Firebird Global Master Fund II Ltd v Republic of Nauru [2015] HCA 43; 258 CLR 31 for the proposition that the rules of court are “facultative”. At PJ[78], his Honour quotes with approval those reasons:

78    Finally, I note that relevant parts from the joint reasons of Nettle and Gordon JJ regarding service under the FSI Act, notably at [212]–[213], were set out earlier in these reasons. I need not repeat them here. I will note, however, that, at [216], their Honours refer to Rules of Court as “facultative”. Accepting that the Court was there dealing with the registration of a foreign judgment, in contrast to the facts and circumstances here, their Honours said (internal citations omitted; emphasis added):

[216] Of course, that does not mean that an Australian court cannot require service of the summons before proceeding to registration where that is considered to be expedient. The UCPR allow for that possibility and, in any event, a court may so require if in doubt about the amenability of a judgment debtor to the court's jurisdiction. There may also be practical difficulties associated with some foreign states responding to a notice of the registration of a foreign judgment within the minimum 14-day requirement for such an application under the UCPR. Thus, where a foreign state is a judgment debtor, a court would usually set a longer period for an application to be made to set aside the registration under s.6(4) of the Foreign Judgments Act and, similarly, there may be good reason to extend that period following an application under s.6(5) by a foreign state. The point remains, however, that the rules in this respect are facultative. They enable appropriate orders for service to be made according to the facts and circumstances of each case, rather than imposing an inevitable and ineluctable service requirement regardless of the facts and circumstances of the case.

        (Emphasis in original.)

68    Notably, as immediately apparent from this extract of Nettle and Gordon JJ’s reasoning, it concerns the intersection between the New South Wales civil procedure rules (the Uniform Civil Procedure Rules 2005 (NSW)) and requirement for service in the context of the registration of a foreign judgment. Accordingly, the circumstances here are entirely different on both counts: the applicable rules and the context in which the service question arose. Further, the minority holding is specific to those circumstances. Nettle and Gordon JJ very clearly emphasise the same by qualifying the emphasised part by stating “that the rules in this respect are facultative” (my emphasis). Their Honours were considering the registration of a foreign judgment which is contemplated by the Foreign Judgments Act 1991 (Cth) to proceed ex parte and held, in those circumstances, that there is no need for service.

69    As a consequence, the primary judge erred in finding that the rules of court are facultative, relying on Firebird for that conclusion; and, accordingly erred in his construction of s 24(2)(b) that an applicant proposing to make service through the diplomatic channel did not need to comply with the rules of court for service out of jurisdiction.

Service was not validly effected in accordance with s 24 of the FSIA (grounds 1, 3, 6)

70    Grounds 1, 3 and 6 challenge the primary judge’s finding that service was effected in accordance with s 24 of the FSIA. As is evident from the above, it was without dispute that service was purportedly effected by a representative of DFAT hand delivering the initiating process (and other documents required by s 24(2) of the FSIA) to the deputy head of the Embassy, as described in the April 2023 Certificate issued by DFAT. The primary judge held that “service was effected, in accordance with s.24 of the FSIA”: J[79(b)]. The applicants submit that service was not “in accordance with s 24”, because service through the diplomatic channel does not include service on a diplomatic mission in Australia, unless it is authorised by the foreign State (meaning the head of the mission has given consent). The applicants contend that service undertaken in the way it was offends the inviolability of the diplomatic mission.

71    The parties, in their submissions, grouped grounds 1, 3 and 6 together, given they all concern the ultimate finding by the primary judge that service was effected in accordance with s 24 and there was overlap between them. Ground 1 is framed in a broad way contending that the primary judge erred in law in finding that service was effected in accordance with s 24. Ground 3 calls attention to the text of s 24 of the FSIA, and asserts the primary judge improperly construed the Embassy as being the “department or organ” of the KSA that is “equivalent” to DFAT under s 24, and, relatedly, by ground 6, says that the improper construction of s 24, is evident from the broader legislative context: the primary judge failed to consider the effect of s 6 of the FSIA and consequently, to consider relevant sections of the DPIA, including s 7(1) which imports into domestic law the VCDR (which, by art 22, recognises the inviolability of the mission).

72    For the reasons which follow, the primary judge erred in his construction of s 24 to find that service was effected in accordance with s 24(1).

To construe s 24 as allowing service on the premises of the embassy (without the head of mission’s consent) would offend the inviolability of the mission as required under art 22

73    The interpretation of s 24 (and when service may be validly effected through the diplomatic channel) is informed by its legislative context: Section 6 of the FSIA states that the Act does not “affect an immunity or privilege that is conferred by or under” the DPIA. The applicants contend that the primary judge failed to take into account s 7(1) of the DPIA, which enshrines into Australian law, amongst other articles, art 22 of the VCDR; namely, that the “premises of the mission shall be inviolable”.

74    Article 22 of the VCDR is in the following terms:

Article 22

1.    The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.

2.    The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.

3.    The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.

75    As is apparent from art 22(1), the premises of the mission are inviolable, save for when consent is given by the head of the mission. The applicants submitted, and I accept, that the proper interpretation of art 22 of the VCDR, ought to be guided by the rules of treaty interpretation in the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980). As outlined in arts 31 and 32 of the VCLT:

Article 31

General rule of interpretation

1.     A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2.     The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a)    any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;

(b)    any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3.     There shall be taken into account, together with the context:

(a)     any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b)     any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c)     any relevant rules of international law applicable in the relations between the parties.

4.     A special meaning shall be given to a term if it is established that the parties so intended.

Article 32

Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a)     leaves the meaning ambiguous or obscure; or

(b)     leads to a result which is manifestly absurd or unreasonable.

76    As the High Court has recently opined, the text of an international agreement or treaty is not interpreted according to domestic rules of interpretation (which vary from country to country) but by the rules of interpretation set by the VCLT, being declaratory of customary international law: Kingdom of Spain v Infrastructure Services Luxembourg sàrl [2023] HCA 11; 275 CLR 292 at [38].

77    By application of art 31(1) of the VCLT, art 22 of the VCDR should be “interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. The intent of art 22 is clear: An agent of the receiving State may not attend the physical premises of a diplomatic mission and effect service there (without consent from the head of the mission). This is what happened here. There was no evidence of consent. The person who took delivery of these documents was not the head of the mission; it is stated in the April 2023 Certificate as being the deputy head of mission.

78    By operation of art 32 of the VCLT, the travaux préparatoires of a treaty may inform how the treaty is to be construed. With respect to art 22 of the VCDR, the International Law Commission, Report of the International Law Commission covering the work of its tenth session, 28 April-4 July 1958, 10th sess, UN Doc A/CN.4/117 (4 July 1958) contains at ch 3, “Diplomatic Intercourse and Immunities”, the text of the then draft articles together with a commentary, including for art 20 (now art 22). That commentary on the VCDR is instructive as to the purpose of art 22, and how the article prohibits the act of service by the receiving State on the diplomatic mission. Contained at page 95 of the Report of the International Law Commission is the following:

(4) The inviolability of the mission premises is not the consequence of the inviolability of the head of the mission, but is an attribute of the sending State by reason of the fact that the premises are used as the headquarters of the mission.

(5) A special application of this principle is the rule that no writ may be served within the premises of the mission, and that no summons to appear before a court may be served in the premises by a process server. Even if process servers do not enter the premises but carry out their duty at the door, such an act would constitute an infringement of the respect due to the mission. The service of such documents should be effected in some other way. In some countries, the persons concerned may apply to the Ministry for Foreign Affairs of the receiving State. There is nothing to prevent service through the post if it can be effected in that way.

79    In addition, art 22 ought be interpreted in a manner consistent with how it is interpreted in other countries. This Court was referred by the applicants to two authoritative international law texts from the United Kingdom which support the contention that service on a diplomatic mission offends art 22. The first being the The Law of State Immunity, wherein at ch 6, “English Law: The UK State Immunity Act 1978”, the authors, Hazel Fox and Philippa Webb, state at page 235:

The presence of the foreign state’s diplomatic mission within the forum territory cannot qualify as legal presence within the jurisdiction for purposes of service of process or submission to proceedings. Service of process is an exercise of sovereignty, and to perform such an act in relation to diplomatic premises is an infringement of the inviolability of the premises of the diplomatic mission, contrary to article 22 of the Vienna Convention on Diplomatic Relations.

(footnotes omitted.)

80    The authors of that text rely on Hellenic Lines Ltd v Luke C Moore (1965) 345 F 2d 978 as authority for the proposition that service on the premises of a diplomatic mission infringes the inviolability afforded by art 22 of the VCDR. The Court considered whether the Ambassador to the Republic of Tunisia could be served a summons as an agent of his sending country (at 980), for which the Court answered “no” on the basis of the Ambassador’s diplomatic immunity. At its highest, Circuit Judge Washington appears to refer, with approval, to an advice filed by the United States Department of State in that matter, that “The establishment by one country of a diplomatic mission in the territory of another does not implicitly or explicitly empower that mission to act as agent of the sending state for the purpose of accepting service of process”: at 982. The rationale for this proposition was described by Chief Judge Bazelon in this way at 980:

These purposes [of the doctrine of diplomatic immunity] are to “contribute to the development of friendly relations among nations” and “to ensure the efficient performance of the functions of diplomatic missions” Vienna Convention on Diplomatic Relations Signed at Vienna, April 18, 1961, preamble, 55 Am.J.Int’.L. 1064 (1961). We requested the views of the Department of State concerning the effect of service in this type of case on international relations and on the performance of diplomatic duties. The Department replied that service would prejudice the United States foreign relations and would probably impair the performance of diplomatic functions. We conclude that the purposes of diplomatic immunity forbid service in this case.

81    The applicants also relied on a second text, being a commentary entitled “Inviolability of the Mission Premises” within Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations. At 123–4, the author, Elieen Denza, notes:

It is clear that personal service of legal process is prohibited by the terms of article 22, whether it occurs within the premises of the mission or at the door. Where it’s appropriate for proceedings to be done by personal service of a writ, this should be transmitted through the diplomatic channel……

Service on a diplomatic mission or consular post is therefore invalid, however accomplished, and additionally constitutes a breach of Article 22 of the Vienna Convention on Diplomatic Relations or of Article 31 of the Vienna Convention on Consular Relations, which respectively provide for the inviolability of the premises of diplomatic missions and consular posts.

(Footnotes omitted.)

82    In support of this statement, the author cites the decision of the High Court of Ireland in Adams v DPP [2000] IEHC 45; [2001] 2 ILRM 401, wherein Kelly J made orders that service of the proceedings on the British Ambassador in Dublin, apparently attempted by delivery to the British Embassy in Dublin, should be set aside. His Honour referred to art 22 of the VCDR as being instructive for the proposition that the premises of the United Kingdom mission to Ireland “shall be inviolable”, preventing agents of Ireland from entering those premises except with the consent of the head of mission. His Honour further referred to arts 29 and 31 of the VCDR conferring immunity on diplomatic agents. Accordingly, his Honour held that it was “inappropriate for this Court to grant leave to effect service of these judicial review proceedings upon the United Kingdom Ambassador to this State”: at [17].

83    Additionally, the author relies on a Circular Note issued by the Canadian Department of Foreign Affairs, Trade and Development: Circular Note No. JLA-1446 of March 28, 2014, “Service of Originating Documents in Judicial and Administrative Proceedings Against the Government of Canada in other States”, which states at subheading 3 that:

Service on a diplomatic mission or consular post is therefore invalid, however accomplished, and additionally constitutes a breach of Article 22 of the Vienna Convention on Diplomatic Relations or of Article 31 of the Vienna Convention on Consular Relations, which respectively provide for the inviolability of the premises of diplomatic missions and consular posts.

(Emphasis in original.)

84    In a similar vein, art 31 of the VCCR also provides that consular premises are inviolable where they are used exclusively for the purpose of the work of the consular post and is extracted in full:

Article 31

Inviolability of the consular premises

1.    Consular premises shall be inviolable to the extent provided in this article.

2.    The authorities of the receiving State shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State. The consent of the head of the consular post may, however, be assumed in case of fire or other disaster requiring prompt protective action.

3.    Subject to the provisions of paragraph 2 of this article, the receiving State is under a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity.

4.    The consular premises, their furnishings, the property of the consular post and its means of transport shall be immune from any form of requisition for purposes of national defence or public utility. If expropriation is necessary for such purposes, all possible steps shall be taken to avoid impeding the performance of consular functions, and prompt, adequate and effective compensation shall be paid to the sending State.

85    Upon accepting the applicants’ construction of the operation of art 22 of the VCDR, it follows that serving proceedings on a diplomatic mission (without the consent of the head of mission) breaches the inviolability of the mission. Given that s 6 of the FSIA says that nothing in that Act affects the immunities and privileges conferred under those other legislation, including the DPIA, which gives effect in Australian law to article 22 of the VCDR, service could not be undertaken consistently with s 6 of the FSIA where there was intrusion upon the inviolability of the mission. This informs how s 24 is to be interpreted; namely, that s 24(1) cannot be construed in a way where service through the diplomatic channel can occur by service on the embassy to the foreign State (without the consent of the mission).

The case of Douglas does not assist

86    Against this construction, both the primary judge (and the respondents) called to their aid obiter reasoning in the decision of a single judge of the Victorian Supreme Court in Douglas. This does not assist them. Douglas concerned whether there was effective service upon the Consulate-General of the Republic of Nauru. Further, the foreign State’s opposition to jurisdiction centred on other arguments, principally the degree to which the s 40 certificate could be relied upon to prove effective service under s 24(1). No mention at all is made of whether service offended the inviolability of the Consulate-General or a diplomatic mission.

87    Curiously, the primary judge noted, at PJ[34], that “the Court and the Applicants continue to remain ‘in the dark’ as to what the Respondents now, or continue, to think about the principles set out by Ashley J in Douglas v Nauru”. However, the applicants had made specific reference to Douglas in their Annexure to their Response to an Application in a Proceeding dated 16 June 2023. In that Annexure, the applicants submitted that the analysis in Douglas was deficient because of the failure to consider the operation of s 6 of the FSIA, the VCDR or wider international law (especially art 31 of the VCLT). Further, the applicants placed reliance on the Commonwealth’s resistance to there being effective service when proceedings were served upon its Consul-General in San Fransico in Holden v Commonwealth of Australia, 369 F Supp 1258 (ND Cal, 1974) for the same reason that they now contend; namely, that it was a settled proposition that a Consul-General is not an agent of the country he represents for the purpose of receiving service of process.

88    As far as this Court has otherwise been able to discern, there is only one other Australian authority which has touched tangentially upon this issue. The decision of Zhang v Zemin [2008] NSWSC 1296 appears to assume that service upon the embassy of the foreign State in Australia may be effective for the purpose of s 24(1). In Zhang, Latham J at [3] states that:

The plaintiff requested transmission of the statement of claim to the Commonwealth Attorney General’s Department for service overseas in May 2007. On 24 July 2007, service was effected upon an attaché of the Embassy of the People’s Republic of China in Canberra, pursuant to the provisions of the Foreign States Immunities Act 1985 (Cth) (FSI Act). Specifically, s 24 of the Act provides for service of an initiating process through diplomatic channels.

89    In Zhang, the plaintiff had requested transmission of the statement of claim to the Commonwealth Attorney-General’s Department for service overseas in May 2007. The defendants included a member of the Political Bureau of the Communist Part of China, and an office holder of two committees of the Chinese Government. On 24 July 2007, service was affected upon an attaché of the embassy in Canberra. No issue was taken with service being affected in this way. In that case, the Commonwealth Attorney-General intervened for the purpose of asserting immunity on behalf of the defendants from the jurisdiction under the FSIA. The issue in that case concerned the admission of the s 40 certificate not the question of service. Perhaps unsurprising, the Commonwealth did not take issue with service, given DFAT appeared to have affected in the manner described in Douglas, decided three years earlier.

The applicants were not required to put on evidence that was no authorisation of service on the mission

90    The respondents otherwise submitted that: Firstly, the arguments contained within these grounds were not raised below (for the reasons given above, I do not accept this); secondly, in answer to the applicants’ submission that there was “no evidence of authorisation of service on the Mission”, the respondents submitted that the law requires that the applicants “prove the negative”, and put on such evidence of no authorisation (relying on Apollo Shower Screen Pty Ltd & Anor v Building and Construction Industry Long Service Payment Corporation (1985) 1 NSWLR 591, cited with approval in CQR17 v MNR for Immigration [2019] FCAFC 61; 269 FCR 367 at [32]–[33] per Jagot J; [91] per Derrington J). It was said by the respondents that there was no evidence from the applicants that service on the Embassy was unauthorised. Thirdly, the respondents say reliance can be placed on the April 2023 certificate, which is “admissible as to the facts and matters stated in it and is conclusive as to those facts and matters”: FSIA s 40(5); and, fourthly, the respondents say even when assuming the inviolability of the Embassy, that immunity was waived by the applicants when service was accepted, as described in the Certificate. It was open to their officers to refuse service and they did not do that.

91    There is an interrelation between the second to fourth matters raised by the respondents and for the following reasons, I do not accept that they produce a result that service was duly effected.

92    The respondents submitted that it was for the applicants to put on evidence (and prove the negative), that there had been no authorisation given to serve the Embassy, relying on the reasoning in Apollo and CQR17. The determination of where the evidentiary and legal burden rests may be difficult. Authorities recognise that there are specific rules for specific classes of cases, dependent on broad reasons of experience and fairness. Fundamentally, the legal burden of proving all the essential facts (whether affirmative or negative in form) to prove a claim, rests with the applicant in a civil proceeding: Currie v Dempsey (1967) 69 SR (NSW) 116 at 125 per Walsh JA. The decisions in Apollo and CQR17 are of limited assistance. This is not a case of the respondents trying to prove the negative, where evidence of the negative, is peculiarly in the knowledge of the applicants, rather it is the applicants seeking to prove it on the evidence already given.

93    Here, the applicants rely on what is contained in the April 2023 Certificate. Here, the evidence was that a DFAT representative attended the Embassy and handed the initiating process to the deputy head of the mission. I do not accept that the applicants were required to put on evidence, positively stating that there had been no consent by the head of the mission. The party who asserts there has been waiver bears the burden: Hellenic Lines at 980 n 3.

There was no waiver

94    I do not accept that that there is any evidence that the Embassy’s immunity has been waived. It is clear that any waiver can only occur by the head of the mission giving consent to agents of the receiving State entering. There is no such evidence: The act of taking the documents is not the same as granting consent within the meaning of art 22(1) of the FSIA. I do not accept the respondents’ argument that it was for the head of the mission to give evidence. This tramples on the immunity. The applicants do not bear an onus “to prove” the invalidity of service by adducing evidence that service on the Embassy was not authorised. Such an onus would be contrary to the inviolability of the Embassy and the privileges and immunities afforded to diplomatic agents under Australian and international law as well as the text of the FSIA. (AS [19]). It would be open for the respondents to seek, as they did, further clarification from DFAT as to ambiguity or lacunae in the April 2023 Certificate. Mere receipt of documents (by anyone) does not constitute acceptance of service, and further only the foreign State (represented by the head of the mission) could waive the Embassy’s inviolability.

The Embassy is not the department or organ of the foreign State equivalent to DFAT

95    With some overlap to the bases relied upon by both parties with respect to ground 6, the applicants also rely on the requirement, stipulated by s 24(1), that transmission by DFAT be to “the department or organ of the foreign State that is equivalent to that Department”. The applicants submit that the Embassy is evidently not the “department or organ” of the KSA that is “equivalent” to DFAT within the meaning of s 24(1) of the FSIA, which is the KSA’s Ministry of Foreign Affairs. For the following reasons, I agree that the applicants’ construction is the preferred one.

96    Part III of the FSIA allows for service of initiating process on a foreign State by two methods: Firstly, effected in accordance with an agreement to which the foreign State is a party (s 23); or, secondly, effected through the diplomatic channel (s 24). Section 24(1) indicates how “service through the diplomatic channel” may be effected – by an inter-governmental route – where the process is delivered to the Attorney-General for transmission by DFAT to the department or organ of the foreign State that is equivalent to DFAT.

97    Sub-sections 24(3) and (4) concern when service shall be taken to have been effected in two circumstances: where the process and documents are delivered “to the equivalent department or organ of the foreign State in the foreign State” (s 24(3)); and, where the process and documents are delivered “to some other person on behalf of and with the authority of the foreign State” (s 24(4)). What these provisions reveal, consistent with the applicants’ construction, is whilst there is some flexibility in effecting service through the diplomatic channel, the only way to effect service through the foreign State’s diplomatic mission in Australia is where it is delivered to a person with the authority of the foreign State to receive service on its behalf. This is in line with what was recommended by the Law Reform Commission in its Report on foreign state immunity: Law Reform Commission, Foreign State Immunity (Report No 24, 1984) (LRC Report) at [148], where service “upon the foreign mission in Australia” must necessarily have meant where the service has been authorised.

98    The flexibility provided by ss 24(3) and (4) allows for effecting service on the equivalent foreign affairs department or organ of the foreign State, in exile where armed conflict has broken out in the relevant country and the department or organ is no longer in its home country. It also allows for service on the representative of the third State in Australia, looking after the interests of that State. Additionally, it allows for service upon the defendant State’s mission in Australia, under s 24(4) so long as it is upon a person with the authority of the foreign State. This means the foreign ministry of the foreign State must have informed DFAT that it is willing to accept service at its diplomatic mission in Australia.

99    The primary judge determined, contrary to this interpretation, that the April 2023 Certificate was “conclusive regarding the matters contained in it (which includes “service”)”: PJ[79(c)]. The final paragraph of the April 2023 Certificate stated:

The Royal Embassy of Saudi Arabia in Canberra is the representative in Australia of the organ of the Kingdom of Saudi Arabia that is equivalent to the Australian Department of Foreign Affairs and Trade.

(Emphasis added.)

100    The primary judge also determined that it was for, and remains for, the applicants to provide evidence regarding the relevant “authority” (or, purported lack of it) of the person from the Embassy who received the documents: PJ[79(d)].

101    There is an immediate problem evident from the above emphasised extract of the certificate. I accept the applicants’ submission that there is a distinction between a “representative” of an organ and an organ. Although the Embassy may be the representative of the organ of the KSA that is equivalent to DFAT, it is not that organ. Section 24(1) only contemplates delivery on the department or organ which is the equivalent of DFAT. If DFAT’s intention by including in the April 2023 Certificate the reference to “representative in Australia of the organ” meant, by operation of s 24(4), it was to the effect that whoever received the documents had “the authority of the foreign State”, there are no underlying pertinent facts within the Certificate which justify this conclusion. Furthermore, it does not overcome the problem of entering the diplomatic mission without apparent consent of the mission’s head.

102    The United Kingdom House of Lords decision in Kuwait Airways Corp v Iraqi Airways Co [1995] 1 WLR 1147 is instructive in this regard. In Kuwait, the relevant provision was s 12(1) of the State Immunity Act 1978 (UK), namely:

Any writ or other document required to be served for instituting proceedings against a State shall be served by being transmitted through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of the State and service shall be deemed to have been effected when the writ or document is received at the Ministry.

103    At the time of the attempted service, the British Embassy in Baghdad was closed but Iraq maintained a functioning embassy in London. A letter was sent to that embassy from the Foreign and Commonwealth Office enclosing the writ and asking if the documents could be forwarded to the Ministry of Foreign Affairs in Baghdad. The primary judge determined, which was accepted on appeal by Lord Goff of Chiveley, that the requirement of service at, not merely “on” the Foreign Ministry of the defendant state is no more and no less than the plain words of section 12(1) demands “transmission to the Ministry and takes effect when the document is received at the Ministry. In no sense is a diplomatic mission in a foreign State the same as the Ministry of Foreign Affairs of the sending State.”: at 1155–6.

104    Lord Goff of Chiveley also extracted, with approval, an aspect of the primary judge’s reasons citing a passage from C S Lewis, State and Diplomatic Immunity (1990, 3rd ed):

It would have been possible to provide for service within the jurisdiction on the embassy, on the analogy of a foreign company carrying on business within the jurisdiction. … However, it was no doubt considered more diplomatic that the foreign sovereign should not, by reason merely of his mission’s presence here for the purpose of diplomatic intercourse between the two countries, be deemed to have a legal presence within jurisdiction.

105    The respondents sought to rely on an obiter, general observation, by made Ashley J in Douglas at [13] that:

…transmission of process to the department or organ of the foreign country that is equivalent to DFAT may be possible by transmission to a foreign country’s diplomatic mission in Australia….

106    However, reliance on this is misplaced – the general observation may be correct in particular circumstances if it is done with the head of mission’s consent. Douglas did not find that service may be effected upon a mission without the consent of the head of the mission. In Douglas, the Republic of Nauru made various submissions as to why the s 40 certificate ought not be accepted as conclusive. Those submissions included that service at the Consulate-General was not service on the relevant department or organ. Nauru had a department of foreign affairs (when the attempts at service were made). The Nauru department of foreign affairs did not have a representative person or office in Australia at the time and the Acting Consul-General (who had been handed the documents) was not authorised to accept service of the documents in the proceeding on behalf of Nauru: at [23]. Justice Ashley then considered the terms of the certificate and stated that it was “implicit” from the certificate that “for some reason the Minister or his delegate concluded that service on the Acting Consul-General, at the Consulate-General, was transmission of the relevant documents to the department or organ of Nauru that was equivalent to DFAT”: at [28]. There was reference in the certificate to a past practice of receipt with “which no objections were raised”: at [28]. His Honour held that given the certificate did not disclose the “pertinent factual matters” which would link service on the Acting Consul-General with the ultimate conclusion that service was effected in accordance with s 24, the certificate could not stand for that conclusion: at [29].

107    The respondents again seized upon this aspect of his Honour’s reasoning and stated that it was open for the applicants to put on evidence, as the Republic of Nauru had done, which would call into challenge the certificate. However, as reasoned above, whilst it was open for the applicants to do this, they are not required to do so. As the applicants submitted, if it were incumbent on a respondent foreign State to the initial application to put on evidence to explain why the service of the initiating process has been ineffective for some reason, it would require members of the diplomatic mission to give evidence in a proceeding. The result of requiring members of the diplomatic mission to come before the Court and give evidence would itself be in breach of another article of the VCDR, namely, art 31(2) (which also has force under Australian law by operation of s 7 of the DPIA). Article 31(1)–(2) is given in the following terms:

Article 31

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.

(Emphasis added.)

108    As stated above, the interpretation reached by Ashley J in Douglas is inconsistent with s 7 of the DPIA, insofar as s 24(1) is construed as permitting service on diplomatic missions in circumstances where the inviolability is maintained. It is an uncontroversial principle of statutory interpretation that a statute should be interpreted, as far as possible, as consistent with international law: Kingdom of Spain at [16].

109    Against this, the respondents submitted that if the applicants’ contention is accepted, this interpretation would make the task of DFAT difficult (in serving documents) and in turn make it difficult for plaintiffs to bring proceedings against foreign States. Further, the respondents referred to the fact that plaintiffs have no information as to what agreements may or may not be made. They have to rely on what DFAT says about whether the person served is permitted by s 24(1). I do not accept this.

110    It is clear from the text of s 24, its evident purpose and the wider legislative and international law context, that the modes of service are limited to being by agreement or through the diplomatic channel. It is for DFAT to choose the appropriate method of delivery: it may be undertaken in the foreign State (as contemplated by s 24(3)) or in the receiving State under one of those circumstances outlined above (as contemplated by s 24(4)). However, delivery of the initiating process to the diplomatic mission of the foreign State, without the consent of the head of mission, will mean that service is not in compliance with the FSIA and in breach of Australia’s international obligations.

111    To the extent it is argued by the respondents, as set out below, that DFAT is best placed to decide who is the equivalent body or which agreement is relevant or that somehow DFAT would be placed in an invidious decision of having to explain its reasoning by reference to sensitive international relations material, this submission overlooks that it is open to a prospective applicant to identify any relevant agreements as to service; there are no secret treaties. Article 102(1) of the Charter of the United Nations provides that “Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.” Accordingly, it is not the case that there would be no knowledge, or no possibility of knowing about any agreements for the process of documents, or service of documents, from one country to another. Further, as the applicants submitted, if there is a concern that the s 40 certificate is somehow defective, the proper course is to simply request clarification from DFAT, as was done here.

112    Accordingly, the preferred interpretation of s 24 must be that service can only be effected on a diplomatic mission if the authority is given by the foreign state. Without that authority, which would also require the consent of the head of the mission, service cannot be made on that mission, or it would result in a breach of the inviolability of diplomatic missions conferred by art 22 of the VCDR.

Certificate not conclusive evidence of service

113    By grounds 1 and 5 of the applicants’ amended draft notice of appeal, the applicants contend that the primary judge erred in finding the applicants had been validly served on the basis of the April 2023 Certificate, which his Honour considered to be “conclusive regarding the matters contained in it (which includes ‘service’)”: at PJ[79](c).

114    The applicants submit that the primary judge erred in applying an improper construction of ss 40(1)(d) and 40(5) of the FSIA to the facts, in finding that the April 2023 Certificate was conclusive evidence that the initiating process had been served on the applicants in accordance with s 24 of the FSIA.

115    For the following reasons, I accept the applicants’ submission that a s 40 certificate is only conclusive of matters of fact and cannot conclusively certify service.

116    This interpretation is clear on the language of s 40(1) and (5), which are given in the following terms:

40     Certificate as to foreign State etc.

(1)     The Minister for Foreign Affairs may certify in writing that, for the purposes of this Act:

(a)     a specified country is, or was on a specified day, a foreign State;

(b)     a specified territory is or is not, or was or was not on a specified day, part of a foreign State;

(c)     a specified person is, or was at a specified time, the head of, or the government or part of the government of, a foreign State or a former foreign State; or

(d)     service of a specified document as mentioned in section 24 or 28 was effected on a specified day.

    …

(5)     A certificate under this section is admissible as evidence of the facts and matters stated in it and is conclusive as to those facts and matters.

117    By operation of s 40(1) and 40(5), there a limited number of matters which may be certified in a certificate and then be admissible. The certificate can only certify that service was effected by delivery of particular documents on a particular day (and, of the other matters in s 40(1)). It cannot certify that it was effectively or validly made or served, or effected. If the intention had been for the certificate to state conclusively that service was made validly or effectively, those words could have been used with the statute.

118    Recourse was made by the applicants to a number of authorities; each arose in different legislative contexts. I accept the respondents’ submission as to their limited utility. However, in all of the cited cases considered below (save for Douglas), a clear distinction was drawn when construing executive certificates between conclusions of fact (concerning international relations about which a government may certify certain things) and conclusions on matters of law.

119    By way of example, in Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, Gummow J made the following observation regarding executive certificates at 368:

The statements so received have dealt with such questions as the extent of foreign territory, the existence of a state of war, beligerency or neutrality, the existence of foreign States and the identity of persons constituting the governments of recognised States. The statements provided by the executive certify that the Australian Government "recognises" a particular state of affairs: see the terms of the certificate in Corporate Affairs Commission v Bradley (supra) at 390. The terms of such certificates are subject to interpretation by the courts but, once so construed, the certificates are “conclusive”. The expression “conclusive” is used not only in the sense that evidence is not admissible to contradict the certificates.

120    A similar conclusion was reached in Attorney-General for the Commonwealth v Tse Chu-Fai [1998] HCA 25; 193 CLR 128. Tse Chu-Fai concerned the determination of whether Hong Kong or the Hong Kong Special Administrative Region was an extradition country under s 5 of the Extradition Act 1988 (Cth). The Minister for Foreign Affairs had provided an executive certificate certifying that the Australian government recognises Hong Kong as a territory for which the People’s Republic of China was responsible for administrating its international relations. The Court, at [55] and [57], made the following observations about the effect of what was contained in such a certificate:

55     … extradition from Australia requires statutory authorisation. It is the     province and duty of courts exercising jurisdiction with respect to matters     arising under such a statute to construe and apply it. The Executive, a     representative of which is a party to a controversy arising under the 1988 Act,     cannot, by a certificate furnished by another representative, “compel the court to an interpretation of statutory words which it believes to be false”.

(Citations omitted.)

57    The certificate should be understood as a statement that, at its date, 9     September 1997, Australia dealt with the PRC on the footing that it was     responsible for the international relations of the HKSAR.

121    I accept, as the applicants submitted, that this reasoning may be applied by analogy to this case and stands for the proposition that the certificate can only be conclusive as to facts. That is, it does not provide a legal conclusion as to the existence of service.

122    Such a conclusion is consistent with the reasoning of the United Kingdom House of Lords in Carl Zeiss Stiftung v Rayner & Keeler Ltd [1967] 1 AC 853, which concerned an executive certificate made by the Secretary of State for Foreign Affairs which certified that (at 950):

Pending the unification of Germany, the three Governments consider the Government of the Federal Republic as the only German Government freely and legitimately constituted and, therefore, entitled to speak for Germany as the representative of the German people in international affairs.

123    Lord Upjohn considered in respect of this certificate that (at 950):

It was said that this statement authorised the West German Government to speak in the name of the whole German people and this gave a superior sanctity to the decision of the West German Supreme Court over the decision of the East German Supreme Court. The argument seems to me to be fallacious. It has never been the practice of Her Majesty's Secretaries of State to express any views upon the law. While they constantly express views on recognition in answer to questions submitted to them by the courts, the legal consequences that flow from recognition is a matter which is always left to these courts.

124    Against the applicants’ contention, is the reasoning of Ashley J in Douglas at [19]–[20]:

It would be nonsensical to read s 40(1)(d) and (5) to mean that the facts or matters of which a pertinent certificate could conclusively speak are limited to the date of service of documents. No such argument was raised before me. Such an argument would leave open the critical question whether the initiating process was served in accordance with s 24; and the sense of the provision is opposed to that question being left open.

It follows from what I have thus far said that s 40(1)(d) should be read as authorising the Minister or his delegate to certify that “good” service of identified documents was effected on a specified day. So to conclude is wholly compatible with the important position assumed by DFAT […]

125    I accept that the certificate may include a number of pertinent matters relevant to the determination of whether there has been effective service, is not limited to the “date of service of documents”. It may include, without being exhaustive, all facts as to the circumstances in which service took place, the identity of the relevant individuals involved, their positions relative to their respective States and any consent or agreement regarding the mode of delivery.

126    However, his Honour went on to find that s 40(1)(d) of the FSIA should be read as authorising the Minister or his delegate to certify that “good” service of identified documents was effected on a specified day (at [20]), relying on [151] of the LRC Report and the particular expertise of DFAT, such that the certificate “may address both primary facts and conclusions”: at [21]. The text of s 40 does not lend support for this proposition. Furthermore, a review of the LRC Report, including at [68] and [151], reveals that the Commission was concerned with ensuring that the Act provided a mechanism by which courts could rely on matters peculiarly within the knowledge of the executive government on international affairs, as referred to by Gummow J in Re Ditfort. I accept, as Ashley J in Douglas noted at [30], ultimately the operative effect of a statutory certificate is determined by reference to the applicable statute. However, where we part company, is that there is nothing in the text of s 40, nor in the LRC Report which lends support for the view that the certificate (even if buttressed by pertinent facts) would be conclusive of matters of law.

127    The respondents thereafter submitted that it was irrelevant whether a s 40 certificate can provide conclusive evidence of matters of law, because the issue is whether it is evidence of service in accordance with the FSIA. The respondents repeated the same submissions earlier made that the applicants were required to put on evidence as to service being unauthorised. For the reasons already given above, I reject these submissions.

128    The respondents also submitted again that the applicants’ construction of s 40 places plaintiffs in a very difficult position, pointing to what was said to be a “reluctance” by the Australian government to provide clear answers on conclusions reached in an s 40 certificate because of the sensitivity of international relations. As is evident from the consideration of Zhang above, contrary to the respondents’ submission, it does appear that DFAT will describe the history of recognition of governmental officials and organs of a State. Further, it is not the case that treaties or agreements between States as to service are, in the ordinary course, secret. It is open to the respondents, as they did in their correspondence with DFAT, to clarify the operation of the first certificate, to make contact with DFAT if they are uncertain as to the matters contained therein.

129    Furthermore, it is apparent from the reasoning in Douglas that the Court must still be satisfied that the requirements of s 24, were satisfied, such that the certificate’s conclusion could be accepted. Ashley J did not accept that a bald conclusion, without the underpinning evidence, was sufficient. One of the critical facts that the April 2023 Certificate’s conclusion is based on is that the rules of court requiring leave of the Court had been complied with. That critical fact is not correct. Additionally, the April 2023 Certificate does not address the critical fact of whether KSA had given the necessary authorisation to enable service to be effected on the Embassy.

Ground 7

130    Both parties accept that ground 7 ought to be made out. It is apparent from the incontrovertible evidence below that the primary judge had made factual errors regarding who had authored the letter to DFAT dated 10 March 2023. The primary judge mistakenly concluded, in multiple parts of the judgment, that it had been authored by the applicants rather than the respondents. Ultimately, however that finding is not dispositive of any issue in the proceeding.

The primary judge failed to determine the applicants claims of immunity from jurisdiction

Ground 8

131    By the applicants’ ground 8, the applicants contend that the primary judge erred in failing to determine the applicants’ claim of immunity from jurisdiction. The primary judge found that the “applicants never ran, in accordance with the Order sought in its application, that there be a general declaration of immunity in their favour … the relief sought by the [applicants] in its application was never pursued: at PJ[58]. On the basis of that view, the primary judge struck out the relief sought by the applicants: PJ[58].

132    It is apparent from a review of the Application below, the parties’ submissions both in writing and as contained in the transcript, that the applicants had, by their application, claimed “general immunity from jurisdiction” and that the respondents’ proceedings be “summarily dismissed for want of jurisdiction” by reason of (a) their entitlement to “default position” of immunity (which they described at [2.1] of their application; (b) service of the initiating process was not effective ([2.2]); (c) the FSIA does not allow for collective claims ([2.3]); (d) the respondents (by reason of purportedly being independent contractors) were not persons for whom an exception from general immunity could apply ([2.4]); (e) the employment-related exceptions under s 12(6) of the FSIA do not apply ([2.5]); and (f) in respect of claims as against a foreign State in relation to its diplomatic mission, s 6 of the FSIA applied preserving its immunity conferred by the VCDR ([2.6]).

133    However, it was apparent that after the parties had filed their submissions, a view was taken by the applicants, given the limited time allotted to hear their application, that they would only move on two aspects of their claim. The then Counsel for the applicants stated in opening submissions that it was his client’s view that they could “limit” to just a “few matters” (and if they were successful on convincing his Honour of the same) then there would be no need to consider the other aspects of their claim. Those matters were with respect to the “question of service” and the deficiency of the originating application.

134    This was later reinforced by Counsel for the applicants, where he stated, in response to what he understood to be a costs submission by the respondents, that:

…..I thought my friend was making an application for costs before the case even got close to finality. But be that as it may, I’ve today focused on the points which are capable of being disposed of on an interlocutory basis on the service question and on the question of the nature of the statement of claim being not a proper application. They’re the points I focused on. We reserve all out rights in relation to the issues in relation to section 12(4) and section 11 as to what applies and what defences, because the defences between the two provisions are slightly different, although they do say things about that.

135    Accordingly, it was submitted by the applicants, which I accept, that the primary judge erred in finding that the applicants did not seek a declaration of immunity, in striking out the relief sought by the applicants and in failing to decide the applicants’ claim of immunity. This was the case where: (a) the applicants made extensive written submissions as to why they are entitled to immunity; (b) at no point during the hearing did the applicants abandon their claim to immunity; (c) it is clear from the judgment that the applicants’ Counsel made oral submissions on immunity, referring to s 12 of the FSIA (PJ[60]); and (d) the primary judge mistook the applicants as seeking to have the proceedings summarily dismissed on the basis that the statement of claim was inadequate: PJ[58]–[63]. That is not what the applicants sought. Rather, as identified above, Counsel for the applicants only addressed the adequacy of the statement of claim in the context of explaining why leave to serve out may not have been granted, had the respondents sought it: PJ[53].

136    I do not accept the respondents’ submission that this was not a proper ground of appeal. I also do not accept the respondents’ submission that such a course was open to the primary judge to strike out the Application below insofar as it was not pressed at hearing. It was clear that those other aspects of the application had not been abandoned but deferred in the event that the applicants were not successful with respect to the two bases they pressed on this occasion. Further, to the extent that was an additional allegation of submission to jurisdiction, it is rejected. There was no evidence of the same.

Proposed Orders Sought

137    By its amended draft notice of appeal, the applicants sought the following orders:

1.    Orders 1, 3 and 5 of the orders made by Judge W J Neville on 6 October 2023 be set aside

2.    In its place, this Court order:

a.    that the initiating process filed on 18 October 2021 has not been duly served on the Appellants in accordance with the requirements of section 24 of the FSIA and Rules 10.42, 10.43 and 10.51 of the Federal Court Rules as in force at the applicable time and was therefore ineffective.

b.    that purported service on 14 July 2022 of the initiating process filed on 18 October 2021 be set aside.

c.    the Respondents pay the Appellant’s costs of the proceedings below.

d.    the Respondents pay the Appellants’ costs of the appeal.

138    I accept that this Court is able, by operation of s 38 of the FSIA, to set aside the primary judge’s first and third order and declaration, as contemplated by proposed order 1. As to proposed orders 2.a and 2.b, I am not able to order the same, but will declare, by operation of s 25 of the FSIA, that the initiating process filed on 18 October 2021 has not been duly served on the applicants in accordance with the requirements of s 24 of the FSIA and rr 10.42, 10.43 and 10.51 of the Federal Court Rules as were in force at the applicable time and therefore any purported service on 14 July 2022 was ineffective.

Costs

139    The applicants sought orders that the respondents pay the applicants’ costs of the proceedings below and on the appeal. However, the applicants tendered no evidence nor made any specific submission as to how there were entitled to their costs given the operation of s 570 of the FW Act with respect to this matter. The Court’s otherwise wide discretion to award costs is limited by operation of s 570 of the FW Act: Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; 229 FCR 221 at 252 [140] per Tracey, Gilmour, Jagot and Beach JJ.

140    Section 570 of the FW Act provides:

570  Costs only if proceedings instituted vexatiously etc.

(1)     A party to proceedings (including an appeal) in a court (including a court of a     State or Territory) in relation to a matter arising under this Act may be ordered     by the court to pay costs incurred by another party to the proceedings only in     accordance with subsection (2) or section 569 or 569A.

    Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory     might be ordered to pay costs under section 569A.

(2)     The party may be ordered to pay the costs only if:

(a)     the court is satisfied that the party instituted the proceedings     vexatiously or without reasonable cause; or

(b)     the court is satisfied that the party’s unreasonable act or omission     caused the other party to incur the costs; or

(c)     the court is satisfied of both of the following:

(i)     the party unreasonably refused to participate in a matter before     the FWC;

(ii)     the matter arose from the same facts as the proceedings.

141    The applicants did not identify how costs could arise in this case and could provide no explanation when asked. The respondents were entirely beholden to the actions of DFAT to effect service lawfully. The respondents agitated with DFAT the applicants’ criticisms of past service. Further, account must be taken of the more expansive submissions made by the applicants on appeal which the respondents did not face at first instance (and, from which they could urge DFAT to effect service differently). I cannot see how costs could be awarded in their favour, either below or on appeal. I will make no order as to costs.

Conclusion

142    For these reasons, I will set aside orders 1 and 3 and the declaration of the primary judge and make a declaration that initiating process filed on 18 October 2021 has not been duly served on the applicants in accordance with the requirements of s 24 of the FSIA and rr 10.42, 10.43 and 10.51 of the Federal Court Rules as were in force at the applicable time and, by operation of s 25 of that Act, any purported service on 14 July 2022 was therefore ineffective. I will make no orders as to costs.

Associate:

Dated:    12 September 2024