Federal Court of Australia

Stantec New Zealand v Fiji Roads Authority (No 2) [2025] FCA 1498

ORDERS

THE COURT ORDERS THAT:

Interlocutory application for leave to proceed

1.    Pursuant to r 10.43D of the Federal Court Rules 2011 (Cth), the applicant have leave to proceed against the respondent.

2.    The respondent pay the applicant’s costs of the interlocutory application filed 2 May 2025 to be fixed on a lump-sum basis.

Originating application for enforcement of foreign award

3.    Pursuant to s 8(3) of the International Arbitration Act 1974 (Cth), the applicant be entitled to enforce against the respondent the award dated 17 January 2022 made by Ms Bronwyn Lincoln in the matter of ICC Arbitration 24947/HTG as if the award were a judgment of the Court.

4.    Judgment be entered in favour of the applicant against the respondent in the following amounts in terms of the award:

(a)    FJD10,444,537.63;

(b)    NZD4,068,433.15; and

(c)    USD146,000.00.

5.    Pursuant to s 52 of the Federal Court of Australia Act 1976 (Cth), interest be payable on the judgment debt described in paragraph 4 of these orders at the rate(s) prescribed in r 39.06 of the Rules from the date judgment be entered until payment of the judgment debt.

6.    The respondent pay the applicant’s costs of the proceeding including any reserved costs to be fixed on a lump-sum basis.

Other matters

7.    The parties file a minute of proposed orders for fixing the amounts of costs in accordance with paragraphs 2 and 6 of these orders, submissions and any materials in support by 4.30pm (AWST) on 19 December 2025.

8.    The determination of the appropriate amount of the lump sum costs be referred to the Registrar.

9.    Pursuant to r 10.44 of the Rules the applicant serve, and have leave to serve outside Australia, a copy of these orders and the documents filed in accordance with paragraph 7 of these orders on the respondent in the manner described in paragraph 3 of the orders of 17 September 2025.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    The applicant, Stantec New Zealand NZBN 9429 040 356 297, obtained an arbitral award against the respondent, Fiji Roads Authority. The award was made in Suva, in the Republic of Fiji. Stantec wants to enforce the award as a judgment of this Court under s 8(3) of the International Arbitration Act 1974 (Cth). Part II of the Arbitration Act and Div 28.5 of the Federal Court Rules 2011 (Cth) make provision for award creditors to apply using a summary procedure for the recognition and enforcement of foreign awards that is intended to be uncomplicated and fast. It is also not necessary to give notice of an award enforcement application to the award debtor. However, this proceeding is not a typical enforcement application that may be made without notice to the award debtor. The Authority may be immune from the jurisdiction of the Court as an agent or instrumentality of a foreign State, the Authority has initiated proceedings in Fiji, the seat of the arbitration, to have the award set aside on various grounds and, therefore, there may be grounds upon which the Court may refuse to enforce the award. Nonetheless, while apparently aware of the proceeding, the Authority objects to the jurisdiction of the Court and has chosen not to participate in the proceeding. Ultimately, after Stantec had taken a number of interlocutory steps, there was an oral hearing on 17 October 2025 that proceeded in the absence of the Authority.

2    The following issues arise for determination on Stantec’s applications for interlocutory and final relief.

(1)    Is the Authority immune from the jurisdiction of the Court under s 9 of the Foreign States Immunities Act 1985 (Cth)?

(2)    Was the Authority personally served outside Australia with the originating application?

(3)    Should the Court grant Stantec leave to proceed against the Authority under r 10.43D of the Rules?

(4)    Should the originating application be adjourned under s 8(8) of the Arbitration Act because the Authority has made an application in the High Court of Fiji to set aside the final award?

(5)    Has Stantec satisfied the evidentiary requirements of s 9 of the Arbitration Act and, if so, should the final award be enforced as if it were a judgment of the Court?

Materials upon which Stantec relies

3    Stantec filed an originating application in Form 52. The originating application was filed with an affidavit of Josephine Caren Lewis sworn 1 October 2024. The documents mentioned in s 9 of the Arbitration Act were annexed to that affidavit. Additionally, Stantec filed a notice to person served outside Australia in accordance with Form 26A.

4    Stantec also filed the following documents in the proceeding.

(a)    Affidavits of service of Apenisa Tawake affirmed 11 November 2024, 2 April 2025 and 14 October 2025.

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

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

(d)    Further affidavits of Ms Lewis sworn 8 and 31 October 2025.

(e)    An interlocutory application for leave to proceed under r 10.43D of the Rules filed on 1 May 2025.

(f)    Outlines of written submissions in support of the interlocutory application filed on 20 June 2025 and in support of the originating application filed on 9 October 2025.

5    All affidavits were read at the hearing on 17 October 2025 except the affidavit of Mr Tawake of 11 November 2024 and the affidavit of Ms Lewis of 31 October 2025. The affidavit of Ms Lewis of 31 October 2025 was filed pursuant to leave granted at the hearing to confirm certain oral submissions that had been made about the grounds upon which the Authority has applied to set aside the award and to disclose any further relevant information relating to proceedings the Authority has commenced in the High Court of Fiji. Stantec also tendered an email chain comprising communications between a person claiming to be the Authority’s legal representative, the Court and Stantec’s legal representatives relating to the oral hearing held on 17 October 2025.

Background

6    On 27 January 2012 Stantec and the Government of Fiji entered into an agreement styled ‘Agreement for Engagement of Consultant – Provision of Road Management Services’. Under the terms of the consultancy agreement Stantec agreed to provide services to the Government described in Appendix A: cl 2.1. The Government agreed to pay Stantec for the services in accordance with Appendix B: cl 3.1. In the event of any dispute or difference of any kind between the parties in connection with or arising out of the consultancy agreement the parties agreed to engage in a stepped dispute resolution process that, ultimately, ended with and included an arbitration agreement: cl 10.

7    On 5 January 2012 the Authority was established under the Fiji Roads Authority Act 2012 (Fiji) as a body corporate. On 24 May 2012 the Government, Stantec and the Authority entered into a deed of novation by which the consultancy agreement was novated and, in effect, the Authority was substituted for the Government as a party to that agreement.

8    On 23 September 2016 Stantec terminated the consultancy agreement after disputes arose between Stantec and the Authority relating to payment of invoices and performance of works under the consultancy agreement. After failed attempts to resolve the disputes, on 4 November 2016, Stantec filed an originating summons in the High Court of Fiji seeking an order that the Chief Justice of the Fijian High Court appoint a mediator. On 4 August 2017 the Authority initiated a proceeding in the High Court of Fiji seeking repayment of the amounts paid to Stantec on the basis that the agreement was unlawfully terminated and void. Following some procedural skirmishes described in more detail later by which Stantec sought to stay that proceeding in order to facilitate a mediation, on 6 December 2019, Stantec submitted a request for arbitration to the Secretariat of the International Court of Arbitration of the International Chamber of Commerce pursuant to the arbitration agreement in the consultancy agreement.

9    On 7 May 2020 the International Court of Arbitration of the ICC appointed Ms Bronwyn Lincoln as sole arbitrator of the disputes between the parties. The arbitrator made a partial award on jurisdiction on 4 November 2020 and a final award on liability on 17 January 2022. 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.

10    On 16 September 2022 Stantec issued an originating application in the High Court of New Zealand to enforce the final award in New Zealand pursuant to r 5.49 of the High Court Rules 2016 (New Zealand). The Authority opposed that application. On 1 December 2022 the award was entered as a judgment of the New Zealand High Court and an order was made requiring the Authority to pay Stantec’s costs of that application.

11    On 15 October 2024 Stantec filed the originating application, affidavit of Ms Lewis and Form 26A in this Court.

12    On 29 October 2024 an agent of Stantec left a copy of those documents with Atunaisa Nayago, Chairman of the Authority, at the principal place of business of the Authority in Suva, Fiji. The agent also left a copy of those documents with the Hon Ro Filpe Tuisawau, Minister for Public Works, Transport and Meteorological Services for the Government of Fiji at Government Building, in Suva Fiji. A copy of each of the documents was stamped with an acknowledgement of receipt by each of the Authority and the Ministry of Public Works, Meteorological Services and Transport. On 30 October 2024 an agent of Stantec also sent copies of the documents to email addresses of a person understood to be a solicitor who acts for the Authority and a person understood to be a director of the Authority.

13    The Authority has not filed an address for service in this proceeding.

14    On 17 September 2025 orders were made requiring Stantec to serve and granting Stantec leave to serve outside Australia an interlocutory application for leave to proceed, supporting materials and the orders and reasons of the Court. Service was effected in accordance with those orders.

15    The Court also received email communications involving persons who represented that they were the legal representatives of the Authority described later in these reasons. From these communications it is inferred that the interlocutory application for leave to proceed, the originating application and materials in support and the date and nature of the hearing conducted on 17 October 2025 came to the attention of the proper officer of the Authority.

Is the Authority immune from the jurisdiction of the Court?

Foreign States immunity from jurisdiction

16    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.

17    Relevantly, s 11 of the Foreign States Immunities Act provides:

11    Commercial transactions

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

…

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

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

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

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

18    The effect of ss 11(1) and 11(3) of the Foreign States Immunities Act is that if proceedings are commenced for enforcement of an arbitral award to which a foreign State is a party, and the arbitration concerned a commercial transaction, the foreign State is not immune from the jurisdiction of the Court: Firebird Global Master Fund II Ltd v Republic of Nauru [2015] HCA 43; 258 CLR 31 at [79]-[81] (French CJ and Kiefel J, Gageler J agreeing), [186]-[210] (Nettle and Gordon JJ). Although Firebird concerned a ‘proceeding’ for registration of a foreign judgment against a foreign State under the Foreign Judgments Act 1991 (Cth), the same construction of s 11(1) must apply to a ‘proceeding’ for enforcement of an arbitral award against a foreign State under the Arbitration Act: Firebird at [203]-[205] (Nettle and Gordon JJ).

19    Section 22 provides that, subject to certain exceptions which are not relevant, the provisions of 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’.

20    Section 3 contains the following provisions relating to the meaning of ‘foreign State’ and ‘separate entity of a foreign State’:

3    Interpretation

(1)    In this Act, unless the contrary intention appears:

…

foreign State means a country the territory of which is outside Australia, being a country that is:

(a)    an independent sovereign state; or

(b)    a separate territory (whether or not it is self-governing) that is not part of an independent sovereign state.

…

separate entity, in relation to a foreign State, means a natural person (other than an Australian citizen), or a body corporate or corporation sole (other than a body corporate or corporation sole that has been established by or under a law of Australia), who or that:

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

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

…

(3)    Unless the contrary intention appears, a reference in this Act to a foreign State includes a reference to:

(a)    a province, state, self-governing territory or other political subdivision (by whatever name known) of a foreign State;

(b)    the head of a foreign State, or of a political subdivision of a foreign State, in his or her public capacity; and

(c)    the executive government or part of the executive government of a foreign State or of a political subdivision of a foreign State, including a department or organ of the executive government of a foreign State or subdivision;

but does not include a reference to a separate entity of a foreign State.

…

21    It follows that if the Authority is an agent or instrumentality of the State of Fiji it is a separate entity of a foreign State for the purposes of the Foreign States Immunities Act. In that circumstance, the Authority will be immune from the jurisdiction of the Court unless the final award concerned a dispute about a commercial transaction.

Service on and judgment against foreign States

22    Part III of the Foreign States Immunities Act deals with service on foreign States and proceeding against foreign States ex parte or in default of appearance and obtaining judgment against foreign States. Certain provisions also relate to a separate entity of a foreign State.

23    Service on a foreign State or on a separate entity of a foreign State may be effected in accordance with an agreement to which the State or entity is a party: s 23. Service on a foreign State may be effected through the diplomatic channel in accordance with a procedure described in the Act: s 24. Service of process upon a foreign State in Australia by a method other than as allowed or provided in s 23 or s 24 is ineffective: s 25. The effect of these provisions is that it is permissible to effect service on a separate entity of a foreign State outside Australia using a method in accordance with the Rules described later in these reasons.

24    However, an order for the recognition and enforcement of a foreign award must not be made against a separate entity of a foreign State in ex parte proceedings unless the Court is satisfied that, in the proceedings, the separate entity is not immune: s 26A(4). Further, a judgment in default of appearance must not be entered against a separate entity of a foreign State, or an order for the recognition and enforcement of a foreign award, in default of appearance, must not be made against a separate entity of a foreign State, unless the Court is satisfied that, in the proceeding, the separate entity is not immune: s 27(2). A ‘foreign award’ means, amongst other things, an arbitral award within the meaning of Pt II of the Arbitration Act: s 3(1).

Prima facie the Authority is a separate entity of a foreign State

25    Ms Mitchell’s affidavit annexes a copy of the Fiji Roads Authority Act. In accordance with s 174 of the Evidence Act 1995 (Cth) regard may be had to that material for the purpose of determining the statute law of Fiji.

26    Section 3 of the Fiji Roads Authority Act provides that the objectives of that Act are to give effect to the reorganisation of the Department of National Roads and make provision for the effective management and administration of road systems. Section 4 establishes the Fiji Roads Authority as a body corporate. Section 5 provides that the Authority is to consist of five members appointed by the Minister responsible for public enterprises including the appointment of a chair. Section 15 provides for the Authority to have a common seal. Section 6 provides that the functions of the Authority include responsibility for all matters pertaining to the construction, maintenance and development of roads in Fiji. Section 7 confers all such powers as may be reasonably necessary and convenient for the purpose of carrying out the functions of the Act on the respondent. However, s 17 provides that the Minister may give the Authority directions with respect to the performance of its functions and the Authority must comply with such directions. Section 18 transfers all assets, interests, rights, privileges and obligations of the State in relation to the Department and municipal councils in relation to municipal roads to and vests them in the Authority. Sections 19-23 make provision for transfer of employees, contract and proceedings to give effect to the s 18 transfer of assets and liabilities.

27    There is no express provision in the Fiji Roads Authority Act indicating that the Authority is or is not an agent or instrumentality of the State of Fiji. However, its members are appointed by the Minister and it is subject to Ministerial direction. Further, it is established for and performs public functions. These are features that are usually associated with an instrumentality of a foreign State: PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2011] FCAFC 52; 192 FCR 393 at [35]-[48] (Lander and Greenwood JJ), [100]-[128] (Rares J). On the evidence available, the Authority is, at least, an instrumentality of the State of Fiji and, therefore, falls within the description of a separate entity of a foreign State. Accordingly, the Authority should be considered immune from the jurisdiction of the Court unless the proceeding falls within an exception in the Foreign States Immunities Act.

Prima facie the proceeding concerns a commercial transaction

28    As already mentioned, Stantec and the Government of Fiji made a consultancy agreement that was novated to the Authority. At the time the consultancy agreement and deed of novation were made Stantec’s corporate name was MWH New Zealand Limited. It contracted in that name, but later changed its name to Stantec New Zealand.

29    The scope of the services Stantec agreed to provide to the Authority is set out in Appendix A to the consultancy agreement. Those services included:

(a)    providing advice to the Government of Fiji (Authority) on how to transition from the then existing Department of National Roads to a new Fiji Roads Authority;

(b)    transitioning from the Department to Stantec the management of all roading activities on behalf of the new Fiji Roads Authority;

(c)    preparing contracts to outsource all physical works;

(d)    providing advice, programme management services, design services and supervision services for capital works programmes; and

(e)    developing and (or) improving asset management systems and being accountable for how and (or) where approved budgets were spent.

30    Stantec was also to establish a road management team in Fiji, and to train and develop local engineers for future senior management and technical roles. For Fiji to fully realise the benefits of the reforms four key areas were to be addressed: organisational strengthening, funding, contracting out and asset management.

31    As already mentioned, disputes developed between Stantec and the Authority during performance of the consultancy agreement that resulted in a referral to arbitration and a final award in favour of Stantec.

32    I am satisfied on a prima facie basis that if the disputes the subject of the arbitral award had been litigated in the Court, the Authority would not have been immune in the proceeding because it would have concerned a commercial transaction. The consultancy agreement was a contract for the supply of consultancy services in a commercial or professional transaction. Further, the respondent submitted to arbitration a dispute about that transaction. As a consequence, I am satisfied on a prima facie basis that the Authority is not immune in this proceeding pursuant to s 11(1) of the Foreign States Immunities Act.

Was the originating application personally served on the Authority?

33    Rule 28.44 of the Rules provides that a person who wants to enforce a foreign award under s 8(3) of the Arbitration Act must file an originating application, in accordance with Form 52 and the originating application must be accompanied by the documents mentioned in s 9 of the Arbitration Act. Under that rule an affidavit stating the extent to which the foreign award has not been complied with, at the date the application is made, and the usual or last-known place of residence or business of the person against whom it is sought to enforce the foreign award or, if the person is a company, the last-known registered office of the company must also be filed. An originating application may be made ‘without notice’ to any person. That is, without serving or advising another party or other person of an application made to the Court.

34    Rule 28.42 provides that a party to an arbitral proceeding to which the Arbitration Act applies must comply with Div 28.5 of the Rules and any other Rules that are relevant and consistent with that Division. Therefore, r 28.44 has the effect of modifying Pt 8 of the Rules that otherwise deals with the procedure for starting proceedings including r 8.06 which requires the originating application and each document required to accompany the application by the Rules to be served personally on each respondent named in the originating application, as soon as reasonably practicable and at least five days before the return date fixed in an originating application.

35    Notwithstanding that an originating application for enforcement of a foreign award may be made without serving that application on any respondent to that application, an originating application may be served outside Australia on such a respondent without leave of the Court to do so: r 10.42(q)(ii). If a person is to be served outside Australia with an originating application the person must also be served with a notice in accordance with Form 26A: r 10.43B. A respondent who has been served outside Australia must file a notice of address for service before the later of the return date fixed in the originating application and the 43rd day after the day of service: r 10.43C. If an originating application is served on a person outside Australia and the person does not file a notice of address for service within the time fixed by r 10.43C, the party serving the document may not proceed against the person without leave of the Court. An application for leave to proceed may be made without notice: r 10.43D.

36    Stantec has chosen not to proceed without notice and has taken steps to serve the originating application and other documents on the Authority in Fiji (outside Australia). As no return date was fixed in the originating application, the respondent had 43 days within which to file an address for service. Stantec contends that it served the Authority with the originating application and other documents on 29 October 2024. Therefore, the Authority had until 11 December 2024 to file a notice of address for service.

Service requirements of the Rules

37    As already mentioned, as a separate entity of a foreign State, the Rules apply to service of process on the Authority.

38    Rules 10.45, 10.46 and 10.47 provide:

10.45    Application of other rules

The other provisions of this Part apply to service of a document on a person outside Australia in the same way as the provisions apply to service on a person in Australia, to the extent that the provisions are:

(a)    relevant and consistent with this Division; and

(b)    consistent with:

(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 country in which service is to be effected.

10.46    Method of service

A document to be served outside Australia need not be personally served on a person so long as it is served on the person in accordance with the law of the country in which service is effected.

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

10.47    Proof of service

(1)    This rule does not apply to a document served in accordance with the Hague Convention.

Note:    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.

(2)    An official certificate or declaration (whether made on oath or otherwise) is sufficient proof of the service of a document on a person in a country other than Australia if the certificate or declaration states:

(a)    that the document has been personally served on the person in that other country; or

(b)    that the document has been served on the person in accordance with the law of that other country.

(3)    If filed, a certificate or declaration mentioned in subrule (2):

(a)    is taken to be a record of the service of the document; and

(b)    has effect as if it were an affidavit of service.

39    Division 10.5 makes provision for service outside Australia through the diplomatic channel or by transmission to a foreign government in accordance with a convention. Division 10.6 of the Rules makes provision for service outside Australia under the Hague Convention. There is no evidence before the Court that Fiji is a signatory to the Hague Convention or that there is any bilateral or multi-lateral convention between Fiji and Australia pursuant to which service of Australian process may be effected in Fiji. Service through the ‘diplomatic channel’ may be used if the Hague Convention or another Convention is not able to be used for the country in which the process is to be served. Service through the diplomatic channel requires documents to be lodged with the Registrar in accordance with r 10.51 of the Rules.

40    Service may also be effected outside Australia through private process servers, agents or registered post if the receiving country accepts that method of services of foreign process on legal persons resident in that country. Therefore, r 10.45 permits service by any method that is consistent with the law of the country in which service is to be effected and r 10.46 provides that service need not be personal so long as it is served in accordance with the law of that country. Rule 10.47 provides that service may be proved through an official certificate or declaration, but that does not limit the means of proving that the service was effected consistently with the law of the applicable country.

41    Reading r 28.44 with r 8.06 and r 10.45 of the Rules, subject to r 10.46, if an originating application filed under r 28.44 is to be served on a respondent outside Australia it must be served personally. Division 10.1 describes the manner in which personal service is effected on various kinds of respondents including corporations.

42    Rule 10.02 provides that a document that is to be served personally on a corporation must be served in accordance with s 109X of the Corporations Act 2001 (Cth). Section 109X applies to companies registered under the Corporations Act. However, r 10.02 is wider in its operation because it applies to a ‘corporation’. For the purposes of the Rules a corporation means ‘any artificial person other than an organisation’. An ‘organisation’ has the meaning of that term in s 6 of the Fair Work (Registered Organisations) Act 2009 (Cth): Sch 1 (Dictionary) of the Rules. Therefore, r 10.02 may apply to artificial persons that are not companies registered under the Corporations Act.

43    Section 109X of the Corporations Act provides that a document may be served on a company by leaving it at, or posting it to, the company’s registered office or delivering a copy of the document personally to a director of the company that resides in Australia or an external territory. The other methods described in s 109X relate to service on a company under the control of a liquidator, administrator or restructuring practitioner all of which also contemplate service at a place in Australia. Therefore, all the methods of service described in s 109X relate to service within Australia. A foreign corporation that is not carrying on business in Australia will not have a registered office within the meaning of that expression in the Corporations Act. Accordingly, r 10.02 cannot apply to personal service on a foreign corporation without any presence in Australia.

44    Although the descriptions of personal service in Div 10.1 all refer to methods that ‘must’ be used, personal service may be effected informally. For example, a legal practitioner may have authority to accept service in a manner that is different from those described in Div 10.2. In the context of service of applications to set aside statutory demands under s 459G of the Corporations Act, courts have accepted that the methods described in s 109X are not exclusive and other methods of service that are effective to bring the document to the attention of the company, in the sense of the board of directors as an organ of the company, may satisfy the requirement for service on a company. Notwithstanding a contrary view expressed by Beaumont J in Rochester Communications Group Pty Ltd v Lader Pty Ltd [1997] FCA 189; 143 ALR 648 at 670, the preponderance of authority favours what Palmer J described as ‘the effective informal service rule’ in Woodgate v Garard Pty Ltd [2010] NSWSC 508; 78 ACSR 468 at [42]-[44].

45    In TCL Airconditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd, in the matter of TCL Airconditioner (Zhongshan) Co Ltd (No 2) [2019] FCA 257; 369 ALR 192McKerracher J made the following observations with respect to foreign companies carrying on business in Australia.

[40]    In Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542; 21 ACSR 440; 133 FLR 303 (Howship), in the context of service of an application to set aside a statutory demand pursuant to s 459G of the CA, Young J observed that (at NSWLR 544; ACSR 442; FLR 304):

Section 459G itself does not deal with what is service.

The ordinary meaning of “service” is personal service, and personal service merely means that the document in question must come to the notice of the person for whom it is intended. The means by which that person obtains the document are usually immaterial. This is clear in cases that have been considered good law over the centuries, including Hope v Hope (1854) 4 De GM & G 328; 43 ER 534 at 539–40; R v Heron; Ex parte Mulder (1884) 10 VLR (L) 314 at 315; Pino v Prosser [1967] VR 835 at 838. Some of those cases were complicated by the requirement in the former statutes that a person serving initiating process had to endorse the initiating process, but the principle is clear from them.

If this were not so, one would get the absurd situation referred to by McInerney J in Pino’s case (at 837), that the conclusion would be one which is “remarkable to the point of seeming absurdity, in that the defendant who, on his own affidavit admits that he received the writ … should be held not to have been served.”

(Emphasis added.)

[41]    More recently, in Woodgate (as trustee for bankrupt estate Fenton) v Garard Pty Ltd (2010) 78 ACSR 468; 239 FLR 339; [2010] NSWSC 508, Palmer J in reference to the pragmatic approach taken by Young J in Howship, described it as the ‘effective informal service rule’ describing the rule in these terms (at [44]):

… the prescribed modes are not exclusive of other modes of service: if some other mode of service is employed, whether it is good service depends upon whether the serving party can prove to the Court’s satisfaction that the document actually came to the attention of an officer of the company who was either expressly or implicitly authorised by the company to deal directly and responsively with the document, or documents of that nature (a responsible officer)…

(Emphasis added.)

[42]    Although the effective informal service rule has only been applied to Australian companies, I see no reason in principle why it ought not be extended to the service of a notice provided for under Australian law on a foreign company carrying on business in Australia. The essential factor is whether it can be established that the notice came to the attention of the person to be served. As indicated, I have inferred that it did. This is indeed accepted by TCL.

46    In Rochester Communications Group an application to set aside a statutory demand was left with an employee of the company but it was not at the registered office of the company, but the office of one of the company’s directors. A Full Court (Beaumont, Whitlam and Moore JJ) considered that there had not been service of the application in accordance with s 459G of the then Corporations Law. Separate reasons for decision were delivered by each member of the Court. As already mentioned, Beaumont J was of the view that the requirement for service in accordance with s 109X was exclusive and that was consistent with the position in England. In the course of his Honour’s reasons he expressed the view that to understand how the position in England had developed it was necessary to look at the context in which the issue of ‘proper’ service has arisen. In his Honour’s survey of the authorities he observed that at common law service was effected on a corporation by serving it on a ‘proper officer’ so as to secure that it came to the knowledge of the corporation: Rochester Communications Group at 661. His Honour also made reference to the Order 7 Rule 2 of the previous rules of the Court which described effecting personal service on a corporation by methods that included ‘leaving a copy of the document with some person apparently an officer of or in the service of the corporation and apparently above the age of sixteen years … if there is no registered office, at the principal place of business or principal office of the corporation’ (at 660).

47    Leaving to one side s 459G of the Corporations Act, which is a statutory provision and not a rule of the Court, the proposition that prescribed modes of service in the Rules are not exclusive of other modes of service should be accepted. If some other mode of service is employed the question of whether it is good ‘personal service’ should depend upon whether the serving party can prove to the Court’s satisfaction that the document actually came to the attention of an officer of the corporation who was either expressly or implicitly authorised by the corporation to deal directly and responsively with the document or documents of that nature. That proposition is also consistent with the common law position that ‘personal service’ may be effected on a corporation by leaving the process with an individual who is a ‘proper officer’ of the corporation so as to secure that it came to the knowledge of the directors of the corporation as an organ of that corporation. Therefore, there is no reason in principle, subject to a law of a foreign country that prohibits service of foreign process on a corporation resident in that country, that personal service on a foreign corporation could not be effected by leaving the process with a director or other proper officer of the corporation in the same way that personal service could be effected on an individual in a foreign country by leaving the process with that individual.

48    Mr Woods’ affidavit of 1 May 2025 annexes a copy of a letter from Howards Lawyers who were appointed by Stantec’s legal representatives as their agents in Fiji. Amongst other things, the letter expresses an opinion that a writ of summons issued by the High Court of Fiji is to be served personally and certain methods are prescribed for personal service. Extracts of the High Court Rules 1988 (Fiji) were also annexed. Order 65 describes the mode of personal service in the following terms:

Personal service: how effected (O.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 (O.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).

49    The mode of service on a body corporate in the High Court Rules 1988 (Fiji) is consistent with the common law mode of service on a corporation and s 109X(1)(b) of the Corporations Act, with all necessary modifications for service in Fiji rather than in Australia.

50    It is not clear if the ‘law of the country’ in which service is to be or is effected for the purposes of rr 10.45(b)(iii), 10.46 and 10.47(2)(b) of the Rules is directed to a law of that country that deals specifically with the service of foreign process in that country or the law of that country (or jurisdiction) that deals with service of process issued in a court of that country. Nonetheless, for the purposes of Pt 10 r 4 and Pt 10 r 5 of the Supreme Court Rules 1970 (NSW) (the equivalent of r 10.45 and r 10.46 of the Rules) Barrett J accepted that the apparent method for service of a summons under the law of the State of Nebraska in the United States of America permitted the mode of service adopted in the case before his Honour. That was not a mode of service that specifically provided for service of legal process issued by a court outside the State of Nebraska: McGrath v National Indemnity Co [2004] NSWSC 391; 182 FLR 309 at [23]-[31]. In any event, a mode of personal service on a corporation that is good service at common law and is a mode for service on a corporation of legal process issued by a court in the country in which service is effected, is a mode of service that is ‘consistent with the law of that country’ for the purposes of r 10.45 to the extent that the law of that country does not otherwise prohibit service of foreign process in that country by that mode.

The originating application came to the attention of the Authority’s proper officer

51    Here, the affidavit evidence is to the effect that the originating application, affidavit of Ms Lewis and Form 26A notice were served on the Authority on 29 October 2024 by leaving a copy with the chair of the Authority at the Authority’s ‘head office’ described on its website. Further, the Authority is a statutory corporation established under the Fiji Roads Authority Act with members appointed by the Minister including a chair.

52    Further, on 13 October 2025 the Court received an email from Veena Kumari of R Patel Lawyers. The email provides a physical address in Suva, Fiji and conveys that R Patel Lawyers acts for the Authority as the email included an ‘Objection to Jurisdiction’ directed to the Registrar of the Court and Stantec by which the Authority purports to object to the jurisdiction of the Court on a number of grounds. By an email of 15 October 2025 the Court gave R Patel Lawyers notice of the hearing listed for 17 October 2025, the purpose of that hearing and that if the Authority were not to attend and leave were granted the Court may proceed to hear and determine the originating application in the Authority’s absence. The Court requested confirmation as to whether the Authority intended filing a notice of acting or address for service and appearing in person at the hearing. On 15 October 2025 the Court received an email from Davanesh Sharma of R Patel Lawyers stating, in substance, that the Authority did not intend to participate in the proceeding as it was not in a position to accede to the jurisdiction of the Court as there was pending litigation in the High Court of Fiji. I infer from these communications that the originating application actually came to the attention of an officer of the Authority authorised to deal directly and responsively with the documents filed in the proceeding.

53    It follows that I am satisfied that the Authority was personally served in accordance with the common law, the High Court Rules 1988 (Fiji) and, otherwise, the originating application, affidavit of Ms Lewis and Form 26A actually came to the attention of an officer of the Authority authorised to deal directly and responsively with the documents filed in the proceeding. That is, there was effective service on the Authority on 29 October 2024.

54    In accordance with r 10.43C the respondent had until 11 December 2024 to file a notice of address for service. It has not done so.

55    As mentioned, Stantec, by its agent, also served the originating process, affidavit of Ms Lewis and Form 26A on the Minister for Public Works, Transport and Meteorological Services for the Government of Fiji. The reason for service on the Minister of a foreign State is not explained in the materials Stantec has filed. The originating application in this proceeding is not brought directly against the State of Fiji or any Minister acting on its behalf.

56    For the sake of clarity, nothing in these reasons should be understood as this Court accepting that it has or may exercise jurisdiction over the State of Fiji. Nor should the reasons be understood as an acceptance that the mode of service on the Minister was effective as a means of service of the originating application of this Court on the State of Fiji.

Should Stantec have leave to proceed against the Authority?

57    On 2 May 2025 Stantec filed an interlocutory application for an order for leave to proceed against the respondent under r 10.43D, and under r 17.03(a) of the Rules for an order that the interlocutory application be served on the Authority in the manner set out in Order 10 Rule 1 of the High Court Rules 1988 (Fiji). Rule 17.03(a) provides that a party may apply to the Court for an order that an interlocutory application be served on a party who has not filed a notice of address for service. Rule 10.44 provides that any document other than an originating application may be served outside Australia with leave of the Court, which may be given with any directions that the Court considers appropriate.

58    If the originating process makes a claim falling within r 10.42 (service outside of Australia without leave) and proper service has been proved, then, in the absence of some countervailing consideration, leave to proceed under r 10.43D should be given: Agar v Hyde [2000] HCA 41; 201 CLR 552 at [54] (Gaudron, McHugh, Gummow and Hayne JJ); Khan v Google LLC [2023] FCA 785 at [12]-[19] (Button J). In the context of a proceeding in which a foreign State or an agent or instrumentality of a foreign State is a respondent, a countervailing consideration may be that the respondent is immune from the Court’s jurisdiction.

59    For the reasons already given, I am satisfied on a prima facie basis that the Court has jurisdiction over the Authority in the proceeding as a separate entity of the State of Fiji, that the Authority has been properly served and that leave is not necessary to serve the originating process and accompanying documents outside Australia. In these circumstances, if leave to proceed were granted, an order for recognition and enforcement of the award could be made ex parte or in proceedings in which there has been a default of appearance (relevantly in this Court, in default of filing a notice of address for service) under s 26A(4) and (or) s 27(2) of the Foreign States Immunities Act. For these reasons, I am satisfied that it is appropriate that Stantec have leave to proceed against the Authority.

Should the originating application be adjourned?

Overview of the issue

60    Section 8(1) of the Arbitration Act provides that subject to Pt II of that Act, a foreign award is binding by virtue of that Act for all purposes on the parties to the award. Section 8(3) provides that, subject to Pt II, a foreign award may be enforced in this Court as if the award were a judgment of the Court. The Court may only refuse to enforce the foreign award in certain limited circumstances: ss 8(3A), 8(5) and 8(7). A ‘foreign award’ means an arbitral award made, in pursuance of an arbitration agreement, in a country other than Australia, being an arbitral award in relation to which the New York Convention applies: s 3. However, if the Court is satisfied that an application has been made to a competent authority of the country in which, or under the law of which, the award was made, the Court may, if it considers it proper to do so, adjourn the proceeding in which enforcement of an award is sought, and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security: s 8(8).

61    While the Authority has not participated in the proceeding and has not sought an adjournment, in the email communication from R Patel Lawyers of 13 October 2025 the Authority evidently requested that the Court strike-out and dismiss the originating application on the ground that the Court does not have jurisdiction. It asserted that this proceeding was an abuse of process for reasons that included that there are pending proceedings in the High Court of Fiji (in particular a pending application to set aside the award) that Stantec should first complete before filing applications in other jurisdictions. Further, the affidavit evidence upon which Stantec relied in the proceeding discloses that, in fact, an application to set aside the final award, and the partial award that preceded it, has been made in the High Court of Fiji. Therefore, the precondition to the exercise of the discretion in s 8(8) of the Arbitration Act is satisfied. In the circumstances, notwithstanding the Authority’s non-participation in the proceeding, there are grounds for considering that the Court could act on its own initiative to adjourn the proceeding pending determination of the setting aside application in Fiji.

62    Upon raising the possibility of adjournment with Stantec, while accepting that the precondition to the exercise of the discretion was engaged, it submits that the Court should not exercise its discretion to adjourn the hearing. In substance, Stantec submits that the Authority has already had, in effect, an adjournment of about one year, the time within which there will be final determination of the application to set aside is unknown and any continuing delay to enforcement is contrary to the objects of the Arbitration Act and will prejudice Stantec. Otherwise, Stantec does not submit that, if an adjournment were ordered, it should be on terms that the Authority provide security.

Applicable principles

63    While the discretion conferred on the Court under s 8(8) to adjourn the proceeding ‘if it considers it proper to do so’ is broad, it must be exercised judicially having regard to the objects of the Arbitration Act and the fact that arbitration is an efficient, impartial, enforceable and timely method by which to resolve commercial disputes and awards are intended to provide certainty and finality: s 39. Amongst other things, the objects of the Arbitration Act are to ‘facilitate the recognition and enforcement of arbitral awards made in relation to international trade and commerce’ and to give effect to Australia’s obligations under the Convention on the Recognition and Enforcement of Foreign Awards (1958) (New York Convention): s 2D(c), s 2D(d). Therefore, the discretion to adjourn must be exercised against the background that, in keeping with Australia’s international obligations under the New York Convention, a foreign arbitral award is to be enforced in Australia unless one of the grounds in s 8(5) of the Arbitration Act is made out by the party against which the award is sought to be enforced or unless the public policy of Australia requires that award not be enforced: ESCO Corporation v Bradken Resources Pty Ltd [2011] FCA 905; 282 ALR 282 at [85] (Forster J). The exercise of the discretion in s 8(8) is also informed by the evident purpose and statutory context of that provision.

64    Under s 8(5)(f) of the Arbitration Act the Court may refuse enforcement of a foreign award on the ground that the award has been set aside by a competent authority of the country in which, or under the law of which, the award was made. Accordingly, s 8(8) operates to preserve the status quo and the award debtor’s ability to challenge enforcement of the award on the ground that it has been set aside by a foreign court or authority pending determination of a setting aside application. Therefore, s 8(8) is intended to protect the position of an award debtor in Australia in circumstances in which a bona fide application for the setting aside of the award has been made to a competent authority of the country in which, or under the law of which, the award was made provided that the Court is satisfied, having taken account of all relevant facts and circumstances, that an adjournment of the enforcement proceeding is justified: ESCO at [62].

65    However, the mere existence of a proceeding challenging the award in another jurisdiction does not, of itself, require the Court to adjourn the enforcement proceeding. Bearing in mind that it is not the place of the Court usurp the function of the foreign court or authority and that any assessment of merit is likely to be undertaken on incomplete material, the Court may take into account the relative strength of the arguments for setting aside the award in the exercise of the discretion in deciding the extent to which an adjournment is necessary to mitigate against the risk of injustice to the award debtor: ESCO at [76]-[77].

66    It is also relevant that, after an order for an adjournment has been made, an order may be made to resume the proceeding if the Court is satisfied that: the application for the setting aside is not being pursued in good faith or is not being pursued with reasonable diligence or has been withdrawn or dismissed; or the continued adjournment of the proceedings is, for any reason, not justified: s 8(9), s 8(10). These are matters that may also inform whether ordering an adjournment is justified in the first place.

67    It is also necessary to take into account that the overarching purpose of the civil practice and procedure provisions of this Court is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: s 37M of the Federal Court of Australia Act 1976 (Cth). Prolonged adjournments or an effective stay of proceedings are productive not only of specific prejudice to the award creditor by delaying judgment and enforcement of the award, but of general prejudice to the proper administration of justice in tying up resources of the Court and the public in a proceeding that is not progressing.

68    It follows that certain factors drawn from the objects of the Arbitration Act and purpose and context of s 8(8), while not exhaustive, guide the exercise of the discretion to adjourn the proceeding: ESCO at [77]-[82], [87]-[89]. These factors include the following.

(1)    The extent to which the application to set aside before the competent authority is made in good faith and not as a means of delaying enforcement of the award.

(2)    The extent to which the application to set aside is being pursued with reasonable diligence.

(3)    The extent to which the application to set aside has a realistic prospect of success and, therefore, refusing an adjournment may result in prejudice to the award debtor.

(4)    The extent of the delay occasioned by the adjournment and any resulting prejudice to the award creditor and the public interest in the facilitation of the resolution of proceedings according to law as quickly, inexpensively and efficiently as possible.

(5)    The extent to which the balance of the risk of injustice (prejudice) between the award debtor and award creditor may be mitigated by an order for the award debtor to provide suitable security.

Good faith application to set aside the award

69    As the background facts illustrate, the dispute between Stantec and the Authority that resulted in the final award has been long-running. In August 2017 the Authority initiated legal proceedings against Stantec in the High Court of Fiji (HBC 227 of 2017). In September 2017 Stantec made an interlocutory application for a stay of those proceedings on the basis of a mandatory mediation provision and arbitration agreement in the consultancy agreement. In September 2018 that application was refused. The stay was not granted initially for reasons that included that the dispute had not, at that time, been referred to arbitration. Stantec was ultimately granted special leave to appeal from that order in June 2020. No hearing date for that appeal has been allocated. In the meantime, in December 2019 Stantec referred the dispute to arbitration and, in August 2020, made a second interlocutory application to stay HBC 227 of 2017 on the basis that the dispute had been referred to arbitration. The second application for a stay was heard by the High Court of Fiji on 7 May 2024 and judgment was and remains reserved.

70    After the dispute was referred to arbitration, the Authority challenged the jurisdiction of the arbitrator in the arbitral proceedings. The arbitrator made a partial award confirming jurisdiction in Suva on 4 November 2020. In January 2021 the Authority applied to the High Court in HBC 227 of 2017 to have the partial award and certain procedural orders set aside. On 17 January 2022 the arbitrator made the final award in Suva. In April 2022 the Authority applied for leave to amend its application to set aside the partial award to include an application to set aside the final award. The applications to set aside and to amend the application to include setting aside the final award were also heard by the High Court of Fiji on 7 May 2024 and judgment was and remains reserved.

71    Having regard to the history of the parties’ dispute and the litigation in the High Court of Fiji, I am satisfied that the Authority’s application to set aside the final award was made in good faith. In substance, the Authority disputes and continues to dispute the jurisdiction of the arbitrator and maintains, in effect, that Stantec submitted to the jurisdiction of the High Court in Fiji and the dispute should be determined by that court and not by arbitration.

Merits of the grounds for setting aside the award

72    The Authority’s application to the High Court of Fiji to set aside the partial award is made under ss 52, 54 and 55 of the International Arbitration Act 2017 (Fiji). Section 52 of that Act makes provision for setting aside an award in terms consistent with Art 34 of the UNCITRAL Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law (1985). Section 54 makes provision for recognition and enforcement of awards in terms consistent with Art 36 of the Model Law. These provisions, in turn, are broadly consistent with Art V of the New York Convention. The grounds for setting aside or refusing recognition and enforcement are limited, but include that the party making the application was not given proper notice of the appointment of the arbitrator or the arbitral proceedings, the award deals with a dispute not contemplated or falling within the terms of the submission to arbitration or beyond the scope of that submission, the composition of the tribunal or the arbitral procedure was not in accordance with the agreement of the parties and the award is in conflict with the public policy of Fiji. Section 55 provides that without limiting the generality of the relevant provisions, an award is in conflict with or is contrary to the public policy of Fiji if the making of the award was induced or affected by fraud or corruption or a breach of the rules of natural justice occurred in connection with the making of the award.

73    The grounds upon which the Authority relies for setting aside the final award are the same as for the partial award. In substance, the Authority contends that Stantec submitted to the jurisdiction of the High Court of Fiji and a decision was made by that court, in effect, that required Stantec to defend the Authority’s litigation in that court and precluded or prevented Stantec from referring the dispute to arbitration. The Authority contends that Stantec’s reference of the dispute to arbitration in defiance of the order of the High Court is contrary to public policy. It contends that it had ‘no say’ in the appointment of the arbitrator because it was respecting the court orders and the laws of Fiji and, evidently, the referral was ‘unilateral’. It contends that the appointment of the arbitrator was not in accordance with any agreement between the parties and the arbitral procedure was not done with any agreement from the Authority. The Authority contends, in effect, that the appointment of the arbitrator and obtaining of the award on jurisdiction was ‘obtained through deceit’ (that is, fraud).

74    The Authority appears to have invoked a similar argument regarding the effect of the decision of the High Court of Fiji refusing Stantec’s application for a stay of HBC 227 of 2017 as a ground for opposing Stantec’s application for enforcement of the award in the High Court of New Zealand. There, the Authority submitted that the High Court of Fiji had determined that the arbitration agreement was not valid under the law of Fiji. That argument was rejected and an order was made to enter the award as a judgment of the High Court of New Zealand.

75    Beyond observing that there is no reason to doubt that the application to set aside was made in good faith, the Authority’s legal representatives consider the grounds to arguable, the High Court of Fiji has not summarily dismissed the application, but the High Court of New Zealand rejected similar arguments, on the materials before the Court, the Authority’s grounds for setting aside are no more than assertion. Nonetheless, as the application has not been summarily dismissed and judgment is reserved, it must be accepted that the application raised reasonably arguable grounds for setting aside the awards under the law of Fiji. Thus, the application must be regarded as having a realistic prospect of success.

Considerations of delay

76    It is almost five years since the application to set aside the partial award was made, more than three and half years since the application to amend to set aside the final order was made and 18 months since the applications were heard. The originating application in this proceeding was filed and served on the Authority in October 2024 and, therefore, in substance, it has had a de facto adjournment of the final hearing of that application for about one year.

77    There is nothing in the evidence before the Court to explain the length of time it has taken to prosecute the applications to set aside the partial and final awards in the High Court of Fiji or of the case-load pressures of that court. Nonetheless, it may be inferred from the evidence about the manner in which the litigation has been conducted in Fiji that it is likely to be quite some time before the setting aside application is finally determined.

78    Notwithstanding that judgment is reserved on the setting aside application, it is almost four years since the final award was made. It is antithetical to the conception of the New York Convention as a mechanism for facilitating and encouraging international trade and commerce for awards to remain endlessly unpaid and unenforceable in territories in which the award debtor has or may have assets against which a judgment of that jurisdiction may be executed. The sheer length of the time that has been taken to resolve the validity of the award in the jurisdiction of the seat of the arbitration would be a reason to justify a resumption of this proceeding if an adjournment had been ordered at an earlier point in time. Thus, for the same reason, the length of delay alone is powerful factor against ordering an adjournment at this time.

Balancing prejudice and other relevant matters

79    In the circumstances of this application, the purpose of preserving the status quo to mitigate the risk of prejudice to the Authority will not be served by an adjournment of the proceeding.

80    It is difficult to give any weight to the risk of injustice to the Authority. The Authority has not participated in the proceeding and has not applied for an adjournment pending determination of the setting aside application. While in its communications with the Court it has raised grounds that partially reflect the grounds upon which it relies for setting aside the award as reasons for objecting to the jurisdiction of this Court and requested that the originating application be struck-out and set aside, it has made it plain that it does not accede to the jurisdiction of the Court. There is no indication that if an adjournment were ordered the Authority would or may later participate and raise a positive defence to the application under s 8(5) or s 8(7) of the Arbitration Act. Therefore, there is no relevant status quo to preserve.

81    For the reasons already given, further delay will occasion prejudice to Stantec and the public interest. Otherwise, consistently with the objects of the Arbitration Act and the overarching purpose of the civil practice and procedure provisions set out in s 37M of the Federal Court of Australia Act, Stantec is entitled to the timely and efficient determination of its application for enforcement.

82    It follows that the prejudice occasioned by further delay to Stantec, the public interest and the objects of the Arbitration Act outweigh the remote prospect of injustice to the Authority in the event its application to set aside in Fiji is successful and it then decides to accede to the jurisdiction of the Court and actively oppose enforcement in this proceeding.

Should final orders be made for recognition and enforcement of the foreign award?

Formal requirements and onus of proof

83    As already mentioned, r 28.44 of the Rules provides that a person who wants to enforce a foreign award under s 8(3) of the Arbitration Act must file an originating application, in accordance with Form 52, and the originating application must be accompanied by the documents mentioned in s 9 of the Arbitration Act and an affidavit stating the extent to which the foreign award has not been complied with, at the date the application is made, and the usual or last-known place of residence or business of the person against whom it is sought to enforce the foreign award or, if the person is a company, the last-known registered office of the company.

84    Section 9 of the Arbitration Act provides, relevantly:

9    Evidence of awards and arbitration agreements

(1)    In any proceedings in which a person seeks the enforcement of a foreign award by virtue of this Part, he or she shall produce to the court:

(a)    the duly authenticated original award or a duly certified copy; and

(b)    the original arbitration agreement under which the award purports to have been made or a duly certified copy.

(2)    For the purposes of subsection (1), an award shall be deemed to have been duly authenticated, and a copy of an award or agreement shall be deemed to have been duly certified, if:

(a)    it purports to have been authenticated or certified, as the case may be, by the arbitrator or, where the arbitrator is a tribunal, by an officer of that tribunal, and it has not been shown to the court that it was not in fact so authenticated or certified; or

(b)    it has been otherwise authenticated or certified to the satisfaction of the court.

…

(5)    A document produced to a court in accordance with this section is, upon mere production, receivable by the court as prima facie evidence of the matters to which it relates.

85    The following principles, drawn from IMC Aviation Solutions Pty Ltd v Altain Khuder LLC [2011] VSCA 248; 38 VR 303 at [134]-[149] (Hansen JA and Kyrou AJA), apply to applications for enforcement of foreign awards under s 8(2) or s 8(3) of the Arbitration Act.

(1)    The award creditor has an evidential onus of satisfying the court, on a prima facie basis, that it has jurisdiction to make an order enforcing a foreign arbitral award. That requires the award creditor to establish the following matters on that basis:

(a)    an award has been made by a foreign arbitral tribunal granting relief to the award creditor against the award debtor;

(b)    the award was made pursuant to an arbitration agreement; and

(c)    the award creditor and the award debtor are parties to the arbitration agreement.

(2)    Where an award expressly states that it has been made in favour of the award creditor against the award debtor pursuant to an arbitration agreement and that agreement names the award creditor and the award debtor as parties, upon production of the arbitration agreement and the award in accordance with s 9(1), the award creditor would, by virtue of s 9(5), establish its prima facie entitlement to an order enforcing the award.

(3)    Compliance with s 9(1) will not always provide sufficient prima facie evidence to satisfy the Court that leave should be granted for the enforcement of a foreign arbitral award. For example, where, on the face of the arbitration agreement and the award, the person against whom the award was made was not a party to the arbitration agreement, if the arbitration agreement and the award are the only evidence presented to the court, that evidence would be insufficient to invoke the court’s jurisdiction.

(4)    Where the contents of the arbitration agreement and the award do not provide prima facie evidence of the matters set out in para (1), the Court, rather than proceeding ex parte, should require the award creditor to give notice of the proceeding to the award debtor and the proceeding should continue on an inter partes basis.

(5)    On an inter parties hearing there would be an evidential onus on the award creditor to adduce evidence, in addition to the arbitration agreement and the award, to satisfy the Court of the prima facie requirements in para (1). The onus would then shift to the judgment debtor, if it wishes to resist enforcement, to prove to the satisfaction of the Court one or more of the matters in s 8(5) or s 8(7). If the award debtor fails to do so, then the award creditor would be entitled to an order for enforcement.

86    In IMC Aviation Solutions Warren CJ agreed in the outcome and arrived at a similar construction of the Arbitration Act as that of Hansen JA and Kyrou AJA. Amongst other things, Warren CJ considered that the award creditor has the onus of proving on the balance of probabilities that there was an arbitration agreement, the award debtor and award creditors were parties to that agreement and that a foreign award was made against the award debtor pursuant to that arbitration agreement. Further, ‘prima facie’ where used in s 9(5) means that, in the absence of contrary evidence, it is conclusive proof of the fact: IMC Aviation Solutions at [43]-[53], [62]. Although in some authorities doubts has been expressed about her Honour’s conclusion about prima facie evidence, there is little doubt that s 9(5) operates to assist a judgment creditor to produce the documents mentioned in s 9(1) in establishing the existence of the foreign award referred to in s 8(1) that is necessary to obtain an order for enforcement of that award under s 8(3) of the Arbitration Act: see, e.g., Guoao Holding Group Co Ltd v Xue (No 2) [2022] FCA 1584 at [49]-[54] (Stewart J).

Duly certified award and arbitration agreement

87    The expressions ‘duly authenticated’ and ‘duly certified copy’ are not defined in the Arbitration Act. Ms Lewis deposes that she made an affidavit that was filed in the High Court of New Zealand. A copy of that affidavit is annexed as ‘JCL-001’ to her affidavit of 1 October 2024. In the affidavit filed in the High Court of New Zealand Ms Lewis deposed that she certified that a true copy of the consultancy agreement containing the applicable arbitration agreement was annexed and marked ‘A’ to that affidavit and that a copy of the deed of novation was annexed and marked ‘B’. Ms Lewis also deposed that a ‘duly certified’ copy of the partial award made on 4 November 2020 and final award made on 17 January 2022 was annexed and marked ‘C’ and ‘D’ respectively. Ms Lewis deposes that copies of each of annexures ‘A’, ‘B’, ‘C’ and ‘D’ to the affidavit filed in the High Court of New Zealand were annexed as ‘JCL-002’, ‘JCL-003’, ‘JCL-008’ and ‘JCL-009’ to her affidavit filed in this proceeding.

88    On each page of the partial award and final award is a stamp with the words ‘I certify that I have sighted the original of this document and this is a true and correct copy of it’. The blanks have been completed such that it is expressed to have been signed by Ms Josie Lee Beverwijk a solicitor in Auckland on 11 August 2022. There is not an equivalent stamp or certification on the consultancy agreement or deed of novation.

89    Taken collectively, the facts to which Ms Lewis deposes in her affidavit of 1 October 2024 and the agreements and awards annexed to that affidavit meet the description of a ‘duly certified copy’ of the original final award and ‘duly certified copy’ of the original arbitration agreement under which the final award purports to have been made for the purposes of s 9(1). That is, the final award and arbitration agreement have been certified to the satisfaction of the Court for the purposes of s 9(2)(b) of the Arbitration Act. A similar approach has been taken by the Court in other cases: Siemens WLL v BIC Contracting LLC [2022] FCA 1029 at [24]-[25] (Stewart J); HongKong Henson Industrial Ltd v Victorian Ferries Pty Ltd [2021] FCA 1450 at [13] (Colvin J).

Award debtor and award creditor parties to the arbitration agreement

90    In this case, the arbitration agreement was between MWH New Zealand Limited and the Government of Fiji and the award is against the Authority. The deed of novation demonstrates that, in effect, the arbitration agreement was between MWH New Zealand Limited and the Authority. The final award identifies the relevant parties to the award as Stantec New Zealand and the Authority. The evidence before the Court demonstrates prima facie that MWH New Zealand Limited changed its name to Stantec New Zealand and it is the same body corporate and legal person as the corporation that is a party to the deed of novation. It follows that no issue arises of the kind referred to in IMC Aviation Solutions. Thus, on the affidavits read and relied upon in the proceeding, each of the matters referred to in para 85(1) of these reasons has been established on a prima facie basis.

Award debt unsatisfied

91    Otherwise, Ms Lewis deposes that the final award was unsatisfied as at 1 October 2024 and remains unsatisfied as at 8 October 2025.

Other matters

92    Section 8(5) provides that the Court may, at the request of the party against whom it is invoked, refuse to enforce the award if that party proves to the satisfaction of the Court one or more of the matters described in s 8(5)(a)-(f). Although the hearing was notionally inter parties, the Authority did not participate in the hearing and has not raised or sought to prove any of the s 8(5) matters in the proceeding.

93    Section 8(7) provides that the Court may refuse to enforce the award if it finds that the subject matter of the difference between the parties to the award is not capable of settlement by arbitration under the laws in force in the State or Territory in which the Court is sitting or that to enforce the award would be contrary to public policy. Unlike s 8(5), the discretion to refuse enforcement under s 8(7) is not expressed to be at the request of the other party and does not place a burden of proof on that party. In other words, while usually the other party would request it to do so, the Court may act on its own initiative under s 8(7) and exercise its discretion to refuse enforcement if, based on the material before it, the Court makes one or more of the findings described in s 8(7).

94    On an ex parte application the Court expects that the moving party, consistently with its duty of frankness and candour, to draw to the Court’s attention any material that could result in one of the findings in s 8(7). In this case, as Stantec has not done so, the Court is entitled to proceed on the assumption that Stantec is not aware of any material upon which such findings could be made or of any issue of arbitrability or public policy that could result in the Court refusing to enforce the final award. Further, there is nothing in the material before the Court that self-evidently raises such matters.

Conclusion

95    Stantec has met the formal requirements and onus of proof so as to be entitled to an order for enforcement of the final award as a judgment of the Court. Further, while the issues of jurisdiction of the Court and the grounds raised in the application to set aside the final award in the seat of the arbitration render it inappropriate to proceed on the originating application on an ex parte basis, Stantec has endeavoured to proceed on an inter partes basis. As the Authority has been properly served and has had notice of Stantec’s intention to proceed in its absence, there is no reason not to make the orders sought on the originating application.

Disposition of the originating application

96    There should be orders for leave to proceed and for recognition and enforcement of the foreign award as a judgment of the Court. The Authority should pay Stantec’s costs of the application. I am satisfied that the costs should be fixed on a lump-sum basis in accordance with the principles explained in para 4 of the Costs Practice Note (GPN-COSTS) and the determination of that amount should be referred to the Registrar.

Associate:

Dated:    1 December 2025