Federal Court of Australia

Stantec New Zealand v Fiji Roads Authority [2025] FCA 1149

ORDERS

THE COURT ORDERS THAT:

1.    The final hearing of the originating application filed 15 October 2024 be listed at 2.15 pm (AWST) on 17 October 2025.

2.    Pursuant to r 17.03(a) and r 10.44 of the Federal Court Rules 2011 (Cth) the applicant serve, and have leave to serve outside Australia, the following documents on the respondent:

(a)    the interlocutory application filed 1 May 2025;

(b)    any affidavit(s) and written submissions filed in support of that interlocutory application; and

(c)    these orders and the reasons for these orders.

3.    Service of the documents referred to in paragraph 2 be effected, as soon as reasonably practicable, by either:

(a)    leaving a copy of the documents with the Chairman of the respondent; or

(b)    sending a copy of the relevant documents by ordinary prepaid post to the registered or principal office of respondent.

4.    Otherwise, paragraphs 1, 2, 3, 5, and 6 of the interlocutory application be adjourned until 2.15 pm (AWST) on 17 October 2025 and be listed for hearing immediately before the final hearing of the originating application.

5.    Costs be reserved.

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

REASONS FOR JUDGMENT

FEUTRILL J:

1    These proceedings concern an originating application filed under r 28.44 of the Federal Court Rules 2011 (Cth) for enforcement of a foreign award under s 8(2) of the International Arbitration Act 1974 (Cth). The applicant (Stantec) asserts that it obtained a final award against the respondent (Fiji Roads Authority) on 17 January 2022 pursuant to an arbitration agreement and a dispute arising under a consultancy agreement made between Stantec and the Authority. The final award includes orders that the Authority pay Stantec FJD10,434,300.63 and NZD3,749,832.83 in respect of invoices submitted under the consultancy agreement between 7 April 2016 and 29 September 2016 and NZD318,600.32, FJD10,237.00 and USD146,000 with respect to the costs of the arbitration.

2    Although an award creditor may proceed against an award debtor without notice, Stantec has elected to serve the originating process and supporting documents on the Authority out of the jurisdiction. Stantec contends that it does not require leave to serve and has properly served the originating process on the Authority, in the Republic of Fiji, in accordance with the law of that country. Stantec contends service was properly effected by leaving a copy of the originating process, affidavit in support and Form 26A with the chairman of the Authority. Stantec contends that the Authority is a body corporate established under the Fiji Roads Authority Act 2012 (Fiji) and service by that mode is consistent with the laws of Fiji. The Authority has not filed a notice of address for service.

3    Stantec has now filed an interlocutory application by which it now wishes to obtain leave to proceed against the Authority in the absence of a notice of address for service under r 10.43D of the Rules. By paragraph 4 of that application it also seeks an order pursuant to r 17.03(a) to the effect that the application be served on the Authority as a person that has not filed an address for service. I made that order at a case management hearing this morning. These are my reasons for making that order.

4    The Court has power to order that an interlocutory application be served on a party that has not filed an address for service under r 17.03(a) of the Rules. The Court also has power to grant leave to serve any document, other than an originating application, outside Australia with such directions as the Court considers appropriate under r 10.44 of the Rules. The exercise of these powers is manifestly discretionary and to be exercised judicially having regard to the interests of the administration of justice.

5    For the purposes of the interlocutory order sought this morning, I consider and have taken into account the following factors.

(1)    The extent to which it is necessary to given notice of the interlocutory application to a party that has not filed an address for service.

(2)    The extent to which it is necessary to serve an interlocutory application on a party outside Australia.

(3)    The extent to which the mode or method of service is in accordance with the law of the country in which service is to be effected.

(4)    The extent to which the party has notice or has been served with the originating process in the proceeding.

(5)    The extent to which the Court has jurisdiction over the party in the proceeding.

6    Stantec has filed the following materials in the proceeding.

(1)    Affidavit of Josephine Caren Lewis sworn 1 October 2024.

(2)    Affidavits of service of Apenisa Tawake affirmed 11 November 2024 and 2 April 2025.

(3)    Affidavits of Jehan-Philippe Wood affirmed 1 May 2025 and 20 June 2025.

(4)    An outline of written submissions in support of the interlocutory application filed on 20 June 2025.

(5)    Affidavit of Amanda Marie Mitchell affirmed 24 June 2025.

7    Reference was made to the affidavits and submissions directly or indirectly during the course of the case management hearing. I have taken the affidavits as read and have had regard to them in considering the orders sought this morning.

8    For the purposes of the interlocutory orders sought this morning, I accept the following facts have been prima facie established on an ex parte basis on the affidavit evidence before the Court.

(1)    The Authority is a body corporate established under the Fiji Roads Authority Act.

(2)    On 29 October 2024 an agent of Stantec left a copy of the originating process, affidavit of Ms Lewis and Form 26A with Atunaisa Nayago, Chairman of the Authority, at the principal place of business of the Authority in Suva, Fiji.

(3)    That form of service is consistent with the form of personal service of a writ of summons issued by the High Court of Fiji on a body corporate under Order 10 rule 1(1) and Order 65 rules 2 and 3(1) of the High Court Rules 1988 (Fiji).

(4)    The originating application and documents filed with it have been brought to the attention of an officer of the Authority authorised to deal directly and responsively with the documents filed in the proceeding.

(5)    Order 10 rule 1 of the High Court Rules (Fiji) provides, relevantly:

1.    (1)    A writ must be served personally on each defendant by the plaintiff or     his agent.

(2)    A writ for service on a defendant within the jurisdiction may, instead of being served personally on him, be served-

(a)    by sending a copy of the writ by ordinary post to the defendant at his usual or last known address, or

(b)    if there is a letter box for that address, by inserting through the letter box a copy of the writ enclosed in a sealed envelope addressed to the defendant.

(3)    Where a writ is served in accordance with paragraph (2) —

(a)    the date of service shall, unless the contrary is shown, be deemed to be the seventh day (ignoring Order 3, rule 2(5)) after the date on which the copy was sent to or, as the case may be, inserted through the letter box for the address in question;

(b)    any affidavit proving due service of the writ must contain a statement to the effect that-

(i)    in the opinion of the deponent (or, if the deponent is the plaintiff’s solicitor or an employee of that solicitor, in the opinion of the plaintiff) the copy of the writ, if sent to, or, as the case may be inserted through the letter box for, the address in question, will have come to the knowledge of the defendant within 7 days thereafter; and

(ii)    in the case of service by post, the copy of the writ has not been returned to the plaintiff through the post undelivered to the addressee.

(4)    Where a defendant’s solicitor indorses on the writ a statement that he accepts service of the writ on behalf of that defendant, the writ shall be deemed to have been duly served on that defendant and to have been so served on the date on which the indorsement was made.

…

(6)    Order 65 rules 1 – 3 of the High Court Rules (Fiji) provide:

When personal service required (0.65, r.1)

1.    (1)    Any document which by virtue of these Rules is required to be served on any person need not be served personally unless the document is one which by an express provision of these Rules or by order of the Court is required to be so served.

(2)    Paragraph (1) shall not affect the power of the Court under any provision of these Rules to dispense with the requirement for personal service.

Personal service: how effected (0.65, r.2)

2.    Personal service of a document is effected by leaving a copy of the document with the person to be served.

Service on body corporate (0.65, r.3)

3.    (1)    Personal service of a document on a body corporate may, in cases for which provision is not otherwise made by any enactment, be effected by serving it in accordance with rule 2 on the mayor, chairman or president of the body, or the town clerk, secretary, treasurer of other similar officer thereof.

(2)    Where a writ is served on a body corporate in accordance with Order 10, rule 1(2), that rule shall have effect as if for the reference to the usual or last known address of the defendant there were substituted a reference to the registered or principal office of the body corporate and as if for the reference to the knowledge of the defendant there were substituted a reference to the knowledge of a person mentioned in paragraph (1).

9    By reason of these matters I am satisfied that service of the interlocutory application and documents in support of it will come to the attention of an officer of the Authority authorised to deal directly and responsively with the documents filed in the proceeding if service is effected by either of the methods described in Order 10 rule 1(1) or rule 1(2)(a) of the High Court Rules (Fiji). There is nothing in the materials to suggest that service of an interlocutory application issued by an Australian court on the Authority in Fiji by the method or in the mode contemplated is prohibited or contrary to the law of Fiji.

10    An application for leave to proceed under r 10.43D may be made without notice. Stantec wishes to prosecute that application with notice to the Authority notwithstanding that the Authority has not filed a notice of address for service in circumstance in which, prima facie, the proper officer of the Authority is aware of the proceeding. Although service on the Authority is not necessary, I accept that it is appropriate to accede to Stantec’s choice to give the Authority notice and that the authority be afforded the opportunity to appear and make submissions on the interlocutory application should it wish to do so.

11    Subject to certain exceptions, a foreign state and a separate entity of a foreign state are immune from the jurisdiction of the Courts of Australia in a proceeding under the provisions of the Foreign States Immunities Act 1985 (Cth). It would not be appropriate to grant Stantec leave to serve an interlocutory application on a party that has not filed an address for service if that party is immune from the jurisdiction of the Court as a foreign state or separate entity of a foreign state.

12    Part II of the Foreign States Immunities Act deals with the immunity of foreign States from jurisdiction of Australian courts. Section 9 provides that, except as provided by or under that Act, a ‘foreign State’ is immune from the jurisdiction of the courts of Australia in a proceeding. Sections 10-21 then set out a number of exceptions to immunity. Section 22 provides that, subject to certain exceptions which are not relevant, Pt II, including the general immunity in s 9 and the immunity and the exceptions in ss 10-21, ‘apply in relation to a separate entity of a foreign State as they apply in relation to the foreign State’. The expression ‘foreign State’ is defined in such a manner as to include the executive arm of government of a foreign State but to exclude a separate entity of a foreign State. The expression ‘separate entity of a foreign State’ is defined to include a body corporate that is an agent or instrumentality of a foreign State and that is not a department or organ of the executive government of a foreign State.

13    For the purposes of the interlocutory orders made this morning, having regard to the provisions of the Fiji Roads Authority Act, it is reasonably arguable that the Authority is not a department or organ of the executive arm of government of Fiji, but it is a body corporate that is an agent or instrumentality of that State. That is, on the evidence before the Court, it is reasonably arguable that the Authority is a ‘separate entity of a foreign State’ for the purposes of the Foreign States Immunities Act.

14    Notwithstanding the potential, if not probable, application of s 9 of the Foreign States Immunities Act, relevantly, s 17(2), s 11(1) and s 11(3) create an exception for proceedings for the enforcement of arbitral awards arising from disputes involving commercial transactions. For the purposes of the orders sought this morning, having regard to the arbitration agreement, contracts, and awards annexed to the affidavit of Ms Lewis, I am satisfied that it is reasonably arguable that a proceeding to enforce the final award against the Authority falls within the applicable exception to immunity. Therefore, I am satisfied that it is reasonably arguable that the Authority is not immune from the jurisdiction of the Court if it be a foreign State or be a separate entity of a foreign State for the purposes of the Foreign States Immunities Act.

15    For the foregoing reasons, it is appropriate to serve the interlocutory application and supporting materials on the Authority by one of the modes authorised for service of writs of summons issued by the High Court of Fiji.

Associate:

Dated:    17 September 2025