Mar 03, 2016

Firebird Global Master Fund II Ltd v Republic of Nauru [2015] HCA 43

A division in the High Court of Australia has appeared over the interplay between Australian statutes and customary public international law in the enforcement of a Japanese judgment against assets of Nauru which are located in Australia.

The majority held that the Foreign State Immunities Act operated to grant immunity to Nauru against registration of the Japanese Judgment. It held that an application for registration of a foreign judgment under the Foreign Judgments Act is a "proceeding" within the meaning of s 9.  It follows that Nauru, as a foreign State, enjoys general immunity from the jurisdiction of the Supreme Court of New South Wales unless one of the exceptions referred to in the Immunities Act applies, while the minority held that Australian courts are concerned with whether the foreign state would have immunity according to the rules of public international law.  And, if the foreign state is amenable to the jurisdiction of the foreign court according to the rules of public international law, it is then both logical and appropriate that the foreign state be amenable to the jurisdiction of an Australian court in a proceeding under the Foreign Judgments Act to enforce the foreign judgment, provided the judgment concerns one of the exceptions to immunity contemplated by ss 12-16 of the Immunities Act.

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