Firebird Global Master Fund Ii Ltd v Republic of Nauru

[2015] HCATrans 214

[2015] HCATrans 214

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S29 of 2015

B e t w e e n -

FIREBIRD GLOBAL MASTER FUND II LTD

Appellant

and

REPUBLIC OF NAURU

First Respondent

WESTPAC BANKING CORPORATION

Second Respondent

FRENCH CJ
KIEFEL J
GAGELER J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 2 SEPTEMBER 2015, AT 2.13 PM

Copyright in the High Court of Australia

MR T.G.R. PARKER, SC:   I appear with my learned friend, MR J.A.C. POTTS, for the appellant.  (instructed by Clayton Utz Lawyers)

MR R.A. DICK, SC:   I appear with my learned friends, MR D.J. BARNETT and MS N.D. OREB, for the first respondent, your Honours.  (instructed by Ashurst Australia)

FRENCH CJ:   You seek leave to file a notice of contention out of time?

MR DICK:   Yes, your Honour.

FRENCH CJ:   Your leave is granted. 

MR J.T. GLEESON, SC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with MR N.J. OWENS for the Attorney‑General for the Commonwealth, who is seeking leave to intervene in the matter.  (instructed by Australian Government Solicitor)

FRENCH CJ:   You have that leave.

MR GLEESON:   May it please the Court.

FRENCH CJ:   Yes, Mr Parker.

MR PARKER:   The outline that we have prepared has been just provided to the Court officers and should now be coming to your Honours.  There are three aspects to this matter.  The first is the question of what I will call immunity from suit.  It is the issue which arises under Part II of what we have been calling the Immunities Act in relation to the registration of the Japanese judgment.  The second aspect is the question of service which arises under Part III of the Immunities Act.  The third aspect is the question of immunity from execution which arises under Part IV, and we have organised the propositions for which we contend under those three headings.

I would like to start by going into the factual matters as they concern the first two aspects of the argument and there is no dispute about those facts, but it is necessary to go to a couple of those to point out what the judgment is about and how it came to be registered.  The proceedings arise out of two bond issues, in 1988 and 1989.  They are known as series B and series C.  The documentation for the bonds will be found in the appeal book starting at page 161.  That is the B series.

FRENCH CJ:   These are issued by a finance company and guaranteed by the Republic?

MR PARKER:   It is called a finance corporation.

FRENCH CJ:   Yes.

KIEFEL J:   It is a statutory corporation, is it not, under the Republic of Nauru Finance Corporation Act (1972)?

MR PARKER:   Yes, your Honour.

KIEFEL J:   The corporator of which is the Republic and the liabilities are guaranteed.

MR PARKER:   That is right, with respect.  That corporation no longer exists, hence the ‑ ‑ ‑

KIEFEL J:   The other factor is that the Nauru Republic is the sole member of the corporation.

MR PARKER:   The corporation no longer exists and hence the action on the guarantee.  As I have indicated the documentation starts at page 161 of the appeal book but the conditions of guarantee which are immediately at issue start on page 184 and clause 1 is the guarantee clause.  The Court will see that the Republic itself guarantees the corporation’s obligations and then there are the usual provisions which follow on from clause 1 that one sees in a guarantee of this type.  Can I draw attention, on page 186, to clause 9 which is the submission?  The Court will see that there is a submission there – in the case of:

Any legal action relating to the Guarantee . . . may be brought against the Republic in the Tokyo District Court or any other court of Japan . . . To the extent permitted by applicable law the Republic hereby irrevocably waives any immunity to which it might otherwise be entitled from jurisdiction –

et cetera.  Now, the bonds pass through a number of hands but eventually proceedings were brought in Japan - these are the proceedings that resulted in the judgment that we are concerned with and they resulted in a judgment in favour of my client for part or for some of the bonds – the face value of some of the bonds that it held. 

The judgment is a bit complicated because there are different classes of bonds and there were different issues that arose in relation to each.  The translation of the judgment will be found starting at page 106.  There are a number of issues in the proceedings.  As I have indicated, the bonds have passed through several hands and there have been earlier proceedings in relation to at least some of them.  So, there were issues of res judicata and also limitation. 

But the Republic also took a point about immunity and the Court will see if the Court goes to page 111 of the book where that is – it sits about line 40.  There is a proposition 2 - the court is here outlining the defences:

the Defendant –

that is the Republic –

has denied the formation of any agreement under which it consents to international jurisdiction whether the Japanese courts have jurisdiction –

That is in relation to what it described as the type 2 bonds.  Then, there is a similar issue referred to in relation to both type 2 and type 3 bonds at the top of page 112 between lines 10 and 20. 

KIEFEL J:   What is the relevance of this?

MR PARKER:   Well, what it shows is that there was an issue in the foreign court about whether there was jurisdiction and that was resolved as the Court will ultimately see against the Republic.  So the issue has been determined.  It is significant for our argument that there was this submission.  I will come back to seek to show the Court in due course why the submission plays a part in our argument.

KIEFEL J: Are you also relying upon the proceedings in the Tokyo District Court in relation to the underlying transaction for the purpose of section 11(1)?

MR PARKER:   Part of our argument is that the proceedings to register concerned the underlying transaction.

KIEFEL J:   Yes, that is what I mean.

MR PARKER:   So the answer to your Honour’s question in that case is yes.

KIEFEL J:   The transaction the subject of the Tokyo District Court proceedings.

MR PARKER:   Indeed.  Just so that the Court knows where it is, the actual arguments on sovereign immunity in the Tokyo court are dealt with starting at page 119 at about line 35, and go through to page 122 at about line 40.  The upshot of the case, as I have indicated, was that judgment was given on some of the bonds, a total of 1.3 billion yen worth.  The action for the rest of the bonds failed.

KIEFEL J:   Was that the only issue as concerned the bonds?  Were the issues about immunity and jurisdiction?

MR PARKER:   No.  As I have indicated, there were res judicata issues ‑ ‑ ‑

KIEFEL J:   Yes, yes.

MR PARKER:   ‑ ‑ ‑ and there were also limitation issues.

KIEFEL J:   Right.  What I meant to say was that there were no other enforceability issues relating to the bonds themselves?

MR PARKER:   No, because – the answer is no.

KIEFEL J:   There was no other issue affecting liability?

MR PARKER:   No, precisely.

FRENCH CJ:   How do you define the commercial transaction?

MR PARKER:   We say that the commercial transaction is the bond issue.

KIEFEL J:   Or the issue of liability under the bonds, as determined by the District Court.

FRENCH CJ:   Guarantee.

KIEFEL J:   Sorry, and the guarantee thereof.

MR PARKER:   We say the transaction is the bond issue taken as a whole.

FRENCH CJ:   You sued on the guarantee?

MR PARKER:   We did sue on the guarantee.  One of the points made in PT Garuda, as your Honour will appreciate, is that the test under section 11 relates to transactions, and that is a wider concept not necessarily co‑extensive with contract. That is why I am deliberately characterising the transaction as being the bond issue, recognising that that includes within it liability under the guarantee if there had been an issue against the finance corporation. If that had been a party, it would have included its liability as well. Our characterisation is that the transaction is the issue of the bonds.

FRENCH CJ:   The issue of the bonds backed by a guarantee?

MR PARKER:   Yes.  So that resulted in the judgment and the verdict itself is set out at page 106 of the book which found a judgment for my client for 1.3 billion yen plus interest and the amount that that now translates to, including all of the other interest since, is something around $30 million.  After that happened proceedings were brought in the Supreme Court for registration of the Japanese judgment.

I wish to take the Court to what was done in that regard, but before I do can I just remind the Court of the relevant provisions of the Foreign Judgments Act?  The starting point is section 5.  Subsection (1) deals with the application of the part - that is the section which requires the Governor‑General’s satisfaction that there will be reciprocal treatment as between superior courts, which is what we are concerned with and then, if that is established - and there has been no question in this case that it is established in relation to the Tokyo court which gave the judgment - subsection (4) is the relevant provision which then applies the part to an enforceable money judgment that is final and conclusive and was given in a superior court, and there has been no dispute that the judgment in question meets those criteria.

Section 6(1) is the provision under which the application was made to register the judgment. As the Court knows the key provision is probably section 6(3) where:

Subject to this Act and to proof of the matters prescribed . . . if an application is made under this section, the Supreme Court of a State or Territory or the Federal Court of Australia is to order the judgment to be registered.

There is no discretion.  Subsection (4) then requires:

The court’s order must state the period within which an application may be made under section 7 to have the registration of the judgment set aside.

An order in those terms was ultimately made.  When one registers a judgment, one registers a judgment for an amount.  So, one registers the judgment for the amount outstanding.  So, what is actually registered is not necessarily just a judgment but, in fact, a figure.  That appears, among other places, from subsection (12) which provides that if there has been a partial payment in the meantime then the judgment is registered for a lesser amount.

Subsection (15) provides for the amount for which the judgment to be registered to be augmented by reasonable costs of and incidental to registration.  I mention that because there is no provision for an ordinary order for costs.  That is not the way in which this works.  If you get your application you do not get a costs order.  Your judgment is registered for an augmented amount calculated in accordance with the mechanism laid down by subsection (15).  Then section (7) is the section dealing with setting aside and subsection (1) is the provision which empowers a party to seek to have the judgment – sorry:

against whom a registered judgment is enforceable –

to seek to set it aside and in subsection (2) there are requirements to set it aside in certain circumstances, the court has to set it aside.  One of those, subsection (2)(a)(iv) is:

that the courts of the country of the original court had no jurisdiction in the circumstances of the case –

Then that is picked up by subsection (3) which provides for various circumstances in which the courts are taken to have jurisdiction and they deal with familiar matters such as submission and the like.  Then, in subsection (4), there is a provision that applies in spite of subsection (3) and it says the courts are taken not to have had jurisdiction in certain circumstances.  Significantly, subparagraph (c):

if the judgment debtor, being a defendant in the original proceedings, was a person who under the rules of public international law was entitled to immunity from the jurisdiction of the courts of the country of the original court and did not submit –

Now, what that subparagraph demonstrates, of course, is that the Act contemplates in terms that an application may be made and a judgment may be registered against someone who is a foreign state.

How easy that would be to do in practical terms of how frequently one would have the opportunity to do that in practical terms, especially before the adoption of what has come to be called the restrictive theory of sovereign immunity, is a different question.  But that provision, which is found in the State provisions which antedated the 1991 Commonwealth Act and is found in the English 1933 Act which as the foundation shows quite clearly that it was contemplated as something that could happen and that if a foreign state submitted to the jurisdiction of a foreign court, then the judgment against that foreign state could be registered.

Could I now ask the Court to have a look at the rules which govern the application so as to see what it was that needed to be demonstrated?  The rules are in Part 53 of the Uniform Civil Procedure Rules.  Part 53.2 deals with the commencement of proceedings and allocates the proceedings in sub‑rule (1) to the Supreme Court.  Sub‑rule (2):

In any such proceedings, the judgment creditor is to be the plaintiff and the judgment debtor is to be the defendant.

KIEFEL J:   I am sorry, which rule, Mr Parker?

MR PARKER:   Part 53 of the rules – 53.2.

KIEFEL J:   Thank you.

MR PARKER:   I am referring to sub‑rule (2), your Honour, which refers to the judgment creditor being the plaintiff and the judgment debtor being the defendant.  Then sub‑rule (3):

Unless the Supreme Court otherwise orders, the judgment creditor may proceed without service of the summons on the judgment debtor.

Sub‑rule (4) provides for it to be dealt with on the papers if the judgment creditor asks for that to be done.  Then 53.3 deals with the evidence to be put on and there is a list of things that need to be proved – the judgment itself and translation, and so forth.  Can I draw attention in particular to sub‑rule (1)(h)(ii) - it is necessary to also, apart from all of those mechanical details, put on evidence showing:

that, if the judgment were registered in the Supreme Court, the registration would not be liable to be set aside –

The Court will find the application at page 3.  There is the summons at page 3 of the appeal book and the Court will see in paragraph 6 and paragraph 7 that the plaintiff sought to proceed “without service of the summons” and that it be dealt with on the papers and that, in fact, is what happened.

FRENCH CJ:   Are those harmonised uniform rules?

MR PARKER:   I am sorry, your Honour?

FRENCH CJ:   These rules, so far as they relate to the Foreign JudgmentsAct, are they effective in other jurisdictions?

MR PARKER:   They are, but in different terms, and that is a point we want to make at another point in our argument.  These are the rules made where – I think the phrase is “the appropriate court” is New South Wales.  If each court has to make its own rules then they have done so but in some cases in somewhat different terms.

Now, the application – I have taken the Court to the summons – the affidavit in support of the application will be found starting at page 78, or relevantly starting at page 78; the affidavit itself starts at page 74.  After setting out the various things that are required under the rules, can I draw attention to page 78, paragraph 18, where the deponent deals with the question of whether it could be set aside under section 7.  At paragraph (d) on that page, which appears at about line 40, there is reference to the submission, and there is reference to the provisions which make that relevant, because of course we needed to show that there was jurisdiction.  We needed to show jurisdiction in any event, just because you would have to show that for any defendant.

The deponent having referred to that obligation then sets out the passages from the judgment which referred to the submission, and then on page 79, you will see quoted the provisions of the submission to which I have already taken the Court.  That is why the bond documentation was actually in evidence.  The material I have shown the Court about the bond documentation is actually an annexure to this affidavit.  On page 80, the deponent also makes the assertion that the defendant is not a person who is entitled to immunity and did not submit.

Now, on the strength of that, an order was made on the papers registering the judgment.  Provisions were made for service.  It took some time to serve these documents, but eventually the notice of registration was served – when I say these documents, I mean the notice of registration.  That is the way the system works; you get the judgment, then you serve the notice of registration.  Once you continue to serve the notice of registration, you cannot enforce, so that was done.

The service was actually effected by delivering the documents to a government office in Nauru, a matter which I will come back to when I come to talk about the service issues in the case.  There was no immediate action, but then a garnishee notice was issued, and once the garnishee notice was issued, an application was made to set that aside.

FRENCH CJ:   That was after the time for setting aside had elapsed?

MR PARKER:   Yes.  There was no attempt to set aside under the Act.  The setting aside was put on the basis of section 38 of the Immunities Act, and it was said that section 38 was available despite the fact that, as judgment debtor, Nauru did not fall within the period of time that was allowed and had not sought an extension of time, just moved straightaway.

KIEFEL J:   Well, it was only given 14 days, was it not, from registration, and it was not served within that time.  It was way out of that time.  Is that right?

MR PARKER:   I think the orders were later varied to address that problem.  I accept that they were not ultimately served until some considerable time.  I think the order had to specify.  An order has to specify how much time you have got after service, and the order cannot specify a time less than 14 days.  But there is not any suggestion in this case that the service was invalid or that there was a failure to comply with the requirements of the Foreign Judgments Act.  What was said was that the provisions of the Immunities Act simply overrode the provisions of the Foreign Judgments Act in that regard.

GAGELER J:   You address that on the merits, but do you take a procedural point about it as well?  Do you say that somehow section 7 is a code?

MR PARKER: Well, we do say that section 7 is a code and that relates to one of our arguments which is that there is a conflict between these two statutes, not in relation to service. It goes more deeply than that, and we say that there is a conflict between sections 6 and 7 of the Judgments Act on the one hand and the provisions of the Immunities Act on the other and that if that conflict is irreconcilable – we suggest it can be reconciled but, if it is irreconcilable, the Foreign Judgments Act comes later and so will prevail.  That is our proposition 1.2, your Honour, and so the code issue is relevant to that, but I do not want to say any more about service because, as I have said, we put it on a level that is far more than just a question of whether they complied with the service rules.

KIEFEL J:   But you are going to deal with whether or not, if there is a default in service under the Immunity Act, if that occurs, whether or not it is liable to be set aside?

MR PARKER:   I am not – service under the Immunities Act, yes, I am going to deal with that.  Your Honour says default of service.  Of course, there is no express provision of the Immunities Act which applied.

KIEFEL J:   No, it is by implication.

MR PARKER:   It is the implied one and, yes, I will deal with that.  That is my proposition 2.1.  Now, if we could just take stock at this point, the Supreme Court obviously has held that although there is no suggestion that the Foreign Judgments Act provisions were not complied with, that nonetheless the application for registration was barred as a matter of sovereign immunity, that is, the summons proceedings were not even maintainable.

The result of that is that Nauru can prevent the registration in Australia and hence curial enforcement – I emphasise that word “curial” for reasons that I will come back to – curial enforcement in Australia of the foreign judgment against it and, indeed, so can any State on the argument upheld by the Court of Appeal, even if the judgment overseas arises out of a commercial transaction and despite the fact that, as we have seen, the Foreign Judgments Act expressly contemplates registration of a judgment against a foreign state in some circumstances. The outcome from the point of view of a judgment creditor is even worse than that because, under section 10 of the Foreign Judgments Act, you cannot use any other method of enforcing a judgment either.

KIEFEL J: Is your method of reconciliation to give a wide application to section 11(1) of the Immunities Act?

MR PARKER: That is part of it, but we have another which is to give a narrower meaning to section 9.

KIEFEL J:   That might be more problematic.

MR PARKER: I accept that it has not found favour but then not a lot has. I think, actually, in answer to your Honour Justice Kiefel’s question, if I succeed under section 11, I do not need to worry about the conflict argument. Logically, the section 9 argument comes first, then the conflict argument, then section 11.

KIEFEL J:   What do you say results from the conflict?  The Acts are dealing with two different subject matters.  One is made in light of something which obviously impacts upon it.  Is not the first step to attempt to reconcile it?

MR PARKER:   Indeed.

KIEFEL J:   You are not really saying that there is an implied repeal, are you – of partial repeal?

MR PARKER: Our first point is we say section 9 should be read in a way which avoids any conflict. But if section 9 is not read that way, then our position is that there is a conflict between those two provisions, and the conflict is intractable in the sense that one just cannot reconcile – and I do not want to anticipate the argument, because I will come back and deal with it in more detail – but essentially we say on the one hand the Foreign Judgments Act says you must register the judgment and, on the other hand, the earlier Immunities Act says, on the argument against us, ex hypothesi, you should not.

KIEFEL J:   You cannot just read it subject to the Immunities Act.

MR PARKER:   That is the problem.  We say you cannot read it that way, and one of the reasons you cannot read it that way is because the Foreign Judgments Act, as I have indicated, does not deal with a distinct subject matter because it contemplates that it might include a judgment against a foreign state.  This is not a case where one can just say this is totally separate subject matter.  The two can sit next to each other because it is clear that the Foreign Judgments Act was intended to apply in some circumstances to foreign judgments.  I will come back to that.  We accept that it is a last resort, as it were.

KIEFEL J: If section 9 had the effect that you are stating – I will not take you away from your argument – would you not be left with common law considerations of immunity?

MR PARKER: If the common law survives, no one has put to us – we put our section 9 argument all the way up, and no one has yet put to us that if we were right about it that there is some common law immunity which would still apply. There would have to be a question, we would suggest, as to whether – given the comprehensive nature of the Immunities Act and its evident purpose as disclosed by the Law Reform Commission report of clarifying aspects of the common law which were seen as unsettled or uncertain, one would have to ask whether one can really see there as being any common law left to jump into action if the Act is out the door.

KIEFEL J:   Except that you are postulating that the Immunities Act does not have an area of operation and a particular ‑ ‑ ‑

MR PARKER:   Well, we are, and we are just saying that means that that provision of the Immunities Act does not apply.  It does not prevent the other relevant provisions applying.

KIEFEL J:   Anyway, I am taking you out of the course of your argument.

MR PARKER:   The other observation we want to make about the conclusion which the Supreme Court has reached is that, as the Court will see in due course when I say something about arbitration, on the reasoning which commended itself to the court below, while curial proceedings to enforce the foreign court judgment are impossible, if this had been a foreign arbitration, there would be no problem.  So, one is in the paradoxical situation that we would take more notice of, in terms of curial enforcement, a foreign arbitration than we would of a foreign court having jurisdiction.  That is something the Court will see when I deal with the arbitration issues.

We would suggest that those considerations do raise the question, can the reasoning be correct?  We say it is not correct and in relation to this question of immunity from the registration proceedings – I will use the phrase that was used – we say there are three roots to that and I have indicated already that they are under our heading – they are grouped under our heading, number 1.  They are propositions, 1.1, 1.2 and 1.3. 

So can I now embark on the first of those propositions? This is an argument which concentrates on the meaning of the phrase “jurisdiction in a proceeding” in section 9 of the Immunities Act. I will ask the Court to have the Immunities Act available. In terms of structure, Part II, as I have already indicated, deals with what used to be called – sometimes called and I will call – immunity from suit.

Part III deals with service and judgments and then Part IV deals with enforcement.  That division represents something fundamental in the law of sovereign immunity.  It was a feature of the common law and has been expressly carried forward into the Act, namely that there are actually two independent principles at work.  There is a principle of immunity from suit which protects the foreign state from proceedings – from jurisdiction of the court in certain cases – and over and above that, quite independently, there is a principle of immunity from execution which protects the foreign state’s property from enforcement process, both in proceedings against the foreign state and otherwise.

KIEFEL J:   Does the same international law doctrine inform each of jurisdiction and enforcement?

MR PARKER:   We would say – I hope this answers the question.  The move to – they use both to be absolute.

KIEFEL J:   I am really talking about the restrictive doctrine.

MR PARKER:   There is a restrictive doctrine for both.  Cases involving the restrictive doctrine ‑ ‑ ‑

KIEFEL J:   I only ask you because it may be relevant to the question of construction of jurisdiction and on the one hand an execution, on the other the Court of Appeal seems to have divided the two.

MR PARKER:   Your Honour will see from where we are going that we say it is an important element of construing Part II and provisions of it, that one bears in mind that there is also this Part IV and a separate immunity to be dealt with there.  One of the points we want to make is that there has to be some division between the operation of Part II and Part IV.  They are dealing with separate things and one cannot adopt a construction of Part II that, as it were, would swallow Part IV.  I will come back to develop that in more detail in a more concrete way.

But to answer your Honour’s question, the Law Reform Commission report makes it quite clear there were these two independent doctrines and it was intended that they would be carried forward and that is reflected in the difference between Part II and Part IV. Then the key provision in Part II for the purpose of this argument is section 9 and what it does – the structure is to create a general immunity and that is the phrase:

immune from the jurisdiction of the courts of Australia in a proceeding.

Then there is a series of exceptions which are then created to it. Section 10 deals with submission and then sections 11 through to 16 deal with certain types of proceedings involving certain issues or certain subject matters, 17 deals with arbitrations and 18, 19 and 20 deal with again proceedings with different types of subject matter.

FRENCH CJ:   Do carve‑outs with respect to arbitrations also apply in relation to enforcement.

MR PARKER:   I think so because it refers to “the enforcement, of an award made”.  Your Honour will see that in section 17(2) in the last few words in the third and second‑last line.

FRENCH CJ:   “Is not immune in a proceeding”, so Part IV has nothing to say about that?

MR PARKER:   I would not necessarily accept that, your Honour.

GAGELER J: Does section 10(5) indicate that it could well have been a term of the guarantee that Nauru submit to the jurisdiction of Australian courts for the purpose of registration of judgments?

MR PARKER: If there had been a specific provision of that in the documentation then, even if section 9 applied, 10(5) would be an answer to it. Now, we accept that section 9 on first reading appears to be couched in very general terms. However, we suggest that, first, we are dealing here not just with the word “proceedings”, but we are dealing with a compound concept of the exercise of jurisdiction against a foreign state in proceedings. The second thing we suggest is that there must be some limitation on what that means if it would otherwise bring the provision into conflict with other provisions of the Act. That is, section 9 has to be read in its context.

Now, the first observation I want to make, of course, is that the word “jurisdiction” there is used.  We suggest that it has a classical meaning.  It may not exhaust its meaning, but at the very least, classically, “jurisdiction” in the relevant sense means this.  It means that the defendant, here the foreign state, is summoned to court by a compulsory process of the court to answer a claim, or in default of answering a claim to run the risk that judgment will be decided against it. 

The court then hears the claim, and it makes a determination of the defendant’s rights, liabilities, et cetera, in relation to the claim.  It makes that determination in a way that is final, binding on the defendant, and in a way that the defendant cannot escape.  That is a process which conceptually is quite different from the enforcement of rights and obligations once determined.

FRENCH CJ:   Well, do you accept that “jurisdiction” in this sense can be expressed in terms of authority to adjudicate?

MR PARKER:   Yes, but we put the classical meaning.  The core meaning, if you like, is as I have just stated it, that is, authority to determine claims, claims against the defendant in personam, claims in relation to property which the defendant either owns or claims an interest in.  But it is the determination of claims according to causes of action which exist under the law, either at law or in equity or as a result of statute.

KIEFEL J:   The term “jurisdiction” was referred to in PT Garuda, of course.

MR PARKER:   Yes, your Honour, and we say that the way it is referred to at paragraph 17 of PT Garuda is entirely consistent with the core meaning that I have just outlined.

KIEFEL J: That is 247 CLR 240 at 247, paragraph 17, where it is said jurisdictions used in section 9 and elsewhere as referable to:

the amenability of a defendant to the process of Australian courts.

MR PARKER:   Indeed, and it goes on to talk about the imposition of duties.  We would say that in that context, the imposition of duties means the recognition that the defendant, in this case, the foreign state, has duties and obligations under Australian law to or in respect of the plaintiff or the property that is the subject of the proceedings.  Again, it is the same basic idea, we say ‑ ‑ ‑

FRENCH CJ:   I suppose it can be said if the court does not have authority to adjudicate a claim against you, you are not amenable to it – on the flipside.

MR PARKER:   Perhaps.  There is not any doubt that the Act covers jurisdiction in that sense.  We would pose the question in this proceeding as being whether it goes beyond that and covers the special, we would say, sui generis procedure which is set up by the Foreign Judgments Act.  That is the question.

KIEFEL J: How do you pose the question again? It is in the form of a limitation on the operation of section 9?

MR PARKER: Yes, we say section 9 means the core function and it does not extend beyond the core function. At least it does not extend beyond the core meaning as I have identified it. At least it does not extend to the procedure for registering a judgment under section 6 of the Foreign Judgments Act.

KIEFEL J:   So it is only concerned with inter partes proceedings concerning substantive subject matter?

MR PARKER:   Not necessarily inter partes because I have indicated we would accept that claims in relation to property are classically part of the core function as well, so that is why I defined it in terms of either in personam claim or a claim in relation to property either owned by the defendant or, in this case, the foreign state, or in which it claims an interest. 

Could I go back a step?  In Congreso del Partido I think Lord Wilberforce said it is a bit of a misnomer to speak about Admiralty proceedings where you arrest a ship as being in rem proceedings because ultimately it involves reaching a determination about whether somebody has got to pay, and he said this in rem idea is perhaps not a very helpful basis or a dichotomy.  But our argument does not depend upon confining it to in personam claims.  What it does depend upon is confining it to claims which are claims of right and obligation existing under causes of action available under Australian law.

FRENCH CJ:   You accept, do you – I am looking at the first line of paragraph 23 of your submissions – that the registration of a judgment involves the exercise of judicial power?

MR PARKER:   We do accept that.

FRENCH CJ:   Does that not involve the exercise of jurisdiction?

MR PARKER:   Well, it may.

FRENCH CJ:   In terms of the core meaning, a determination as to whether the judgment is to be registered.

MR PARKER: Well, your Honour, we accept that there is an exercise of judicial power going on here. We have never sought to say that it is in some way invalid or goes beyond the Chapter III powers that the courts have. But we say that section 9 on its true construction is not talking about all and every conceivable aspect of judicial power. It is talking about a particular type of jurisdiction or exercise of judicial power and that we say – and I am now going to put it negatively rather than positively – we say it does not extend to the section 6 procedure.

KIEFEL J:   So you are not denying that registration of a foreign judgment is a proceeding involving a matter and all that that encompasses?

MR PARKER:   No.

KIEFEL J:   Your argument is that the Immunity Act taken as a whole does not contemplate a proceeding such as a registration of a foreign judgment?

MR PARKER: Our argument is that section 9 where it talks of the exercise of jurisdiction against a foreign state does not include that particular procedure that I have identified, that is, the section 6 procedure.

GAGELER J:   Is there anything else it does not include?

MR PARKER:   I have not sought to chart the outer limits, your Honour.

NETTLE J: Mr Parker, as you said before, when this Act was enacted there was in existence various State regimes for the enforcement of foreign judgments based on the 1933 UK Act which substantially were identical to the present Commonwealth Act in most respects. Does that mean to say then that, according to this view of section 9, it was not intended to apply to those foreign judgment enforcement proceedings under State legislation?

MR PARKER:   I think – I am cavilling with the word “intended” in that, your Honour.

NETTLE J:   But its effect was ‑ ‑ ‑

MR PARKER:   It is saying that, your Honour. 

NETTLE J:   Notwithstanding as you have said, that the Law Reform Commission set out comprehensively, as it were, to codify the common law relating to foreign state immunity.

MR PARKER:   Yes, but if you look at their report you will see that they do not say anything at all about this question of registration of judgments.

NETTLE J:   Not in terms, no.

MR PARKER:   As we would see it, that is one of the few areas but, under this Act, one really does not get any benefit from the Law Reform Commission at all.  They have not considered it.  Whether that is because they overlooked it or they thought it was so obvious that it went without saying that it was covered or that they thought it was so obvious that it went without saying that it was not covered we do not know and we do not get anything out of the Commission’s report that helps us.

NETTLE J:   If you read the word “jurisdiction” according to its natural and ordinary sense, it is more than adequate to cover all of those existing foreign enforcement proceedings.

MR PARKER:   We would seek to – I am going to seek to explain why it is different from the sorts of – what I have called the core proceeding or the core jurisdiction.  So can I turn to the differences?

NETTLE J:   Certainly.  But just before you do, is that to say that one does not read the word “jurisdiction” according to its natural and ordinary meaning?

MR PARKER:   I think it is a question of what its natural and ordinary meaning is.  We would argue that the natural and ordinary meaning of “jurisdiction” – even apart from the other provisions of the Act – is as I have stated it as the core meaning, that is, the determination of substantive claims against the foreign state or in relation to property.  That is what we say the natural and ordinary meaning is.  The natural and ordinary meaning certainly includes that.  We say that is what it is.

GAGELER J:   Then you need to go further and say that within that description the determination of a claim to registration of a foreign judgment is not the determination of a substantive claim. 

MR PARKER:   Yes.

GORDON J:   Just so that I am clear, the argument is that it is jurisdiction in the way you have described without focus on the last three words of the section in a proceeding.  I had misunderstood your submissions.  I thought your focus was in a proceeding rather than solely on the jurisdiction question.

MR PARKER:   We would say that it is a concept.

GORDON J:   What is a concept?

MR PARKER:   I am sorry.  That we are talking about a compound collection of words.  We are talking about the exercise of jurisdiction in a proceeding. 

GORDON J:   What do the last three words add to your argument?

MR PARKER:   I do not think they either add or detract from it.

GORDON J:   I see.

MR PARKER:   We accept that in some circumstances – and I have used the term myself – one would describe these as proceedings but that does not answer the question whether to entertain those proceedings involves the exercise of jurisdiction against the foreign state if the foreign state is the judgment debtor.  The reason why we say registration is different and is non‑substantive, to pick up the point that Justice Gageler raised with me, is that, in effect, the foreign state’s rights and obligations have already been put in suit before the foreign court and determined by the foreign judgment. 

Now, it might be said that is a matter of foreign law. The proceedings are about the recognition as a part of the law of Australia which is a different thing. But it is important before assenting to that to have a look at section 12 of the Foreign Judgments Act.  So, could I ask the Court to go to that?  It is subsection (1), and the Court will see that it applies to:

a judgment to which Part 2 applies –

That is one that satisfies the relevant criteria.  It says that the judgment –

must, whether or not it is, or can be, registered –

I emphasise that –

be recognised in any Australian court as conclusive between the parties to it in all proceedings founded on the same cause of action and may be relied on by way of defence –

Now, what section 12 does is that section 12 actually brings the foreign judgment into Australian law and that is quite independent of registration or even registrability. The effect of section 12 is that, as a matter for all Australian courts, the debt which we got the judgment for in Tokyo proceedings is owing as matter of Australian law. If there were self‑help remedies that were available, we could use them and rely on section 12. We would not need registration. It would not even matter whether we could register. Section 12 has – and this is a phrase used by the Canadian Supreme Court – the work of naturalising the foreign judgment, that is, bringing it into Australian law is done by section 12. It is not done by the registration.

I referred to “self‑help”. For instance, we have a right of set‑off now in this country for the value of the Japanese judgment against any obligation that we may owe to Nauru. We do not need to register for that. When one goes back to section 6 and looks at it in the context of section 12, one sees that what is done by section 6 is much more limited. I refer in particular to subsection (7), which provides that:

Subject to sections 7 and 14:

(a)      a registered judgment has –

and can I emphasise these words –

for the purposes of enforcement, the same force and effect –

It is only for the purpose of enforcement because section 12 has already given it an effect, and then the other subparagraphs follow as if the judgment had been given. When one looks at that in the context of section 12, one sees, we submit, that really all the registration is is a peg to hang curial enforcement process on, and I emphasise the word “curial” because extra‑curial enforcement process is already something that we can use as a result of section 12.

GAGELER J: There may be an element of circularity about that because section 12 refers to:

a judgment to which Part 2 applies ‑ ‑ ‑

MR PARKER:   That is a reference to section 5, your Honour.

GAGELER J:   I see.

MR PARKER: That is a reference to what satisfies the criteria of section 5. It is a reference back specifically to section 5(4). I think the fact that section 12 says whether or not it is even registrable makes that clear. One can have the Act applying but still either not have a registration and perhaps even never have a registration.

FRENCH CJ: So is it right to say that section 12 gives, in the case of a money judgment, the effect, the legal effect of a debt, whereas section 6 gives a legal effect of a judgment debt?

MR PARKER:   That would be one way of putting it, but we would ‑ ‑ ‑

FRENCH CJ: Looking at section 6(7).

MR PARKER: Yes. But, of course, judgment debts are only a particular type of debt. As we would put it, the debt is created by section 12 and section 7 allows one then to use curial enforcement proceedings as if that debt was recorded as a judgment in the judgment of an Australian court as distinct from other ways in which the debt might exist under Australian law. In our submission, that consideration makes all the difference in determining just exactly what it is that the section 6 procedure does. There has been authority in this Court which is relevant to that purpose and may I take the Court to that?

KIEFEL J: Just before you go to authorities, is there anything else within the Immunities Act itself which you say supports your construction of section 9?

MR PARKER:   There are two other things and I was going to come to them in a moment.

KIEFEL J:   Well, I will not take you out of your sequence.

MR PARKER:   Thank you, your Honour.  Before I come to that, can I just refer to the decision of this Court in Hunt v BP Exploration 144 CLR 565? Your Honour, this is a case which came from Queensland and involved the Queensland Registration of Judgments Act, that is the Queensland State predecessor of the 1991 federal Act. What had happened was that judgments had been registered – or proceedings had been commenced to register a judgment – but those proceedings were not served on the judgment debtor. It seems the debt – in fact, rules had not been made by the Court to provide for service.

The point that was taken appears from page 572 of the report.  It is a paragraph in the middle of the page and there was a submission put for the appellant, the judgment debtor, that the statute, that is, the Queensland statute should be:

construed as limited in its application to persons within the territorial jurisdiction –

of Queensland, unless the statute made provision for service of process on a defendant.  The argument was, according to the judgment debtor:

the Act confers a jurisdiction on the Supreme Court to order that a foreign judgment be registered in the Supreme Court and this amounts to an exercise of jurisdiction in personam against the foreign judgment debtor.

So what was being said was, in effect, this is just like any other judgment in personam.  What you are doing is commencing proceedings which will result in a binding determination which will result in a judgment in personam.  The Court acknowledged that at common law that would be so and they acknowledge in the next paragraph that at common law – remembering that of course one of the ways in which one could enforce a judgment before this was to bring an action on the foreign judgment in debt - if one brought such an action, then the argument would be correct. 

One would need either for the judgment debtor, who is American, to be present in the jurisdiction or one would need leave to serve out on some recognised basis, which did not then exist.  The Court goes on to say in the final paragraph on that page that:

the common law does not provide a reliable guide.  It is the purpose of the Act, as it was with its statutory predecessors in the United Kingdom, to replace the common law system with a simpler and more effective system of enforcement of foreign judgments, the essence of which is that the foreign judgment, provided that it satisfies the necessary qualifications, is registered and enforced . . . The Act dispenses altogether with the old procedure whereby the judgment creditor sues on the foreign judgment –

and so forth, and then the last sentence of that paragraph on page 573:

The application for registration does not involve an action in personam requiring service of the Supreme Court’s process in or outside the jurisdiction.

Now, it has been said against us, well, that case did not concern a foreign state, and so it did not. But what it is a critical case on, in our submission, is a critical case on the nature of the procedure under the then Queensland Act, and the same reasoning would apply to the federal Act that we are considering. The point the Court is making is that this is not an in personam exercise of jurisdiction at all. That is a view that we say is reinforced by section 12, which the Court does not refer to in that judgment.

Now, to come back to the Immunities Act, Justice Kiefel asked were there other aspects of that Act that we relied upon. I have already said to Justice Nettle that our position is that the natural and ordinary meaning of “jurisdiction” in section 9 is as I have indicated. We would say that the structure of the Act is consistent with that because, if one looks at the exceptions that are created in 11, 12, 13, 14, 15, 16, 18, 19 and 20, they all relate to subject matter. They are all the sort of exceptions which would readily be understandable and applicable in circumstances where one was dealing with what I will call a recognised cause of action. Of course, I am using cause of action in a broader sense than merely a common law cause of action. I am using it to include all forms of equitable right as well as legal right and statutory right.

KIEFEL J: Did you include section 11(1) amongst the sections that you just referred to as containing a proceeding relating to subject matter?

MR PARKER:   Well, on its face, yes.  If one read the Act in that way, one could say – and that of course is the way that it has been read ‑ ‑ ‑

KIEFEL J:   I understood you have got alternative arguments.

MR PARKER: Yes, there are alternative arguments but when one first – what is undeniable is that section 11 lends itself readily to application in that sort of situation and much less readily to a sort of procedure which does not involve working out what the elements of a cause of action are or what its subject matter is, but instead involves some other type of inquiry.

We would say that the very fact that the exceptions are put in that way suggests that the legislature had in mind what I have referred to as the core meaning of “jurisdiction”.  We would submit also that the reference to “judgment by default” in Part III – that is sections 27 and 28 – are the same.

There was an issue below, and it is still live because of a notice of contention, about whether sections 27 and 28 could be applied to this case.  They are the provisions which shield the judgment by default.  But the Court of Appeal said this is not a judgment by default, this procedure; you are not required to appear, so how can it be a judgment in default?  We support that reasoning, and I will deal with that when the time comes.

But again, if one thinks about it for a moment, the authors of the legislation contemplated, it seems, that the claim would be made, they would be able to determine the subject matter and then the exceptions in Part II either would or would not apply, and then there would be a judgment either because the foreign state submitted, or there would be a judgment in default, that is, the foreign state had been ordered to appear to answer the claim and had failed to do so. 

We would say that, again, those provisions are entirely consistent with what I have referred to as the core meaning of “jurisdiction”.  There is nothing in any of those provisions which suggests that some extended idea of things that go beyond the determination of what I have been calling causes of action were in mind.

GAGELER J:   What about section 17(2)(b) and its reference to a proceeding for enforcement of an award?

MR PARKER:   I have left section 17 out because it does require some separate consideration.  Section 17 is something that was relied upon by the Court of Appeal below, and by one of the Law Lords in the NML Case – or the equivalent of section 17 was relied on by one of the Law Lords in the NML Case.  I want to deal separately with section 17, if I may, when I reach that point in the argument of dealing with the Court of Appeal judgment.

NETTLE J: Can I just ask you before you pass on, when section 9 was enacted, would it, according to its proper construction, in your submission, have applied to a common law action to enforce a foreign judgment, which was still then available under State regimes?

MR PARKER:   I think the answer would be yes, because it is an action of debt.

NETTLE J:   Then nothing more is involved than what is involved with registration.

MR PARKER:   Even so, it is still – in form it is an action of debt.  That is how you bring the action.  You bring the action on the foreign judgment and you say “I have got a debt.  They owe me the money.”  It is a conventional debt action.  Certainly, if that sort of action were brought, our argument would accept that that would be ‑ ‑ ‑

NETTLE J:   Jurisdiction.

MR PARKER:   ‑ ‑ ‑ within jurisdiction.  For that reason, if I may say so, the distinction between those two positions is very important in understanding the decision in NML. I will come to that when I deal with the section 11 part of the argument.

KIEFEL J:   The effect of your argument is to deny state immunity with respect to foreign judgments.  If you are right and the Immunity Act is restricted to in personam property claims where there is a substantive proceeding, is it possible that that Act then is intended to address the operation of the absolute immunity with the restrictive doctrine operating in connection with it, but to leave, with respect to the registration of foreign judgments, the absolute immunity in operation?

MR PARKER: Can I just qualify registration of judgments? We would say the curial enforcement of a registrable judgment, given that section 12 has got its effect quite independently of all of this and section 12 has its effect and no one suggested section 12’s effect is overcome by section 9 ‑ ‑ ‑

KIEFEL J:   Because the purpose of the Foreign States Immunities Act and the Law Reform Commission was to really deal with the restrictive doctrine, was it not?

MR PARKER:   It was to make it clear that Australia had adopted the restrictive doctrine and because there was some uncertainty about how far that went to try to spell that out to the extent that it was possible.  I am afraid that the Commission left, as we will see, rather a lot of work for the courts to do.

KIEFEL J:   It might have well have left the absolute immunity to apply, as I have said, because the Foreign States Immunities Act, on the view for which you are pressing, really deals with the notion of commercial transactions and commercial property which are relevant only to the restrictive doctrine.

MR PARKER:   I think what your Honour is putting to me presupposes that at the time the Act was passed the absolute doctrine was still in full force at common law.  When one goes to the report one sees that that was not the case.  What was happening was, it was clear ‑ ‑ ‑

KIEFEL J:   In a state of flux.

MR PARKER:   One says a state of flux.  What was clear was that major common law countries, the United States and Britain, at different times, but even by this stage, Britain, had moved to a version of the restrictive theory, both in terms of suit – immunity from suit and enforcement.  What was less clear was what the boundaries of that were and that was what the Law Reform Commission was trying to do.

KIEFEL J:   But that only operates as a qualification on the absolute immunity.  The common law position with respect to absolute immunity was fairly clear, was it not?

MR PARKER:   When it prevailed but the point is that by this time you were not able to say the common law adopts absolute immunity.  It was not adopting absolute immunity.

KIEFEL J:   No.  But insofar as there was some doubt about the operation of the restrictive doctrine, that was settled by the Immunities Act 1985.

MR PARKER:   When your Honour says there was some doubt about its scope, I think ‑ ‑ ‑

KIEFEL J:   Well, that is what was in doubt, not the absolute immunity, surely.

MR PARKER:   No, but the absolute immunity was gone, even at common law, by the time this Act was passed.

KIEFEL J:   Because of the acceptance of the restrictive doctrine?

MR PARKER:   Yes.  The landmark cases are traced in the report ‑ ‑ ‑

KIEFEL J:   Yes.

MR PARKER:   There is, if I may say so, a very good history of the whole thing.

KIEFEL J:   But that means we are supposed to infer that there was a deliberate – there was a conscious decision or an oversight about foreign judgments.

MR PARKER:   I said, I think in answer to Justice Nettle earlier, we just do not have any assistance on that.  So we do not know whether they just overlooked it.  We do not know whether they thought it obviously would be covered.  We just do not know whether - it obviously would not.  The issue just has to be dealt with by reference to what we have which is the statutory text and the background including, of course, this Court’s own earlier decision in the Hunt Case.

Now, I should just mention that of course the fact that under the New South Wales rules that a judgment debtor is called the defendant cannot be determinative and that is because, as I said earlier, the rules are different from State to State.  The content – the characterisation of these proceedings must depend upon the terms of the Foreign Judgments Act, not the mechanical provisions of the rules, and one can underline that by comparing the situation from the rules which now obtain in South Australia - and I will not take the Court to this, I think it is in the materials - but under the relevant South Australian procedural rule, which is rule 346, in order to register you commence a proceeding and no defendant is named. Now, either this federal procedure is covered by section 9 or it is not, and that cannot depend on the vagaries of which State we are in.

GAGELER J:   Are we still dealing with 1.1 of your outline of submissions?

MR PARKER:   We are, your Honour.

GAGELER J:   That is not a criticism.  I was just wondering if you had moved on to the 1.2 at this stage.

MR PARKER:   No, we are.  Now, at this point I would like to deal with - or introduce three of the overseas authorities at ultimate appellate court level or something comparable for what they say on this issue.

FRENCH CJ:   For what proposition?

MR PARKER:   They have been relied upon against us, certainly in submissions here and to some extent by the Court of Appeal, to suggest that there may be something wrong with the argument that I have been putting, that they in some way stand against that, and on their face one can see why that argument is made.

FRENCH CJ:   This is the constructional argument in 1.1?

MR PARKER:   Yes.

GORDON J:   The form of the relief that is sought on registration, the nature of the action?

MR PARKER:   Yes.  Now, obviously that depends on the local situation, so what one gets out of foreign judgments on this subject is perhaps not very much.

FRENCH CJ:   The question is whether you have a carve‑out from the ordinary meaning of the word “jurisdiction” which reduces the rest to what you call the core meaning.

MR PARKER:   Well, that is one way of expressing it.

FRENCH CJ:   Well, is it wrong, on your submission?

MR PARKER: It is not wrong but it is also, I would submit, not wrong to say the question is whether there is an extended meaning – it has an extended meaning. It is just a question of how one expresses it. I am going to need to come back to each of these authorities in more detail anyway when I talk about section 11, but I think it may assist to just deal with it now to say it has been relied on against us to some extent or other.

I refer first to the Kuwait Airways Case in the Supreme Court of Canada.  This involved an attempt to register a judgment obtained in London in the courts of Quebec and there was a Canadian piece of legislation, the State Immunities Act, which was said by Iraq to prevent that from happening. If the Court would go to page 582 of the report, the Court will see that there is a quote about a third of the way down, section 3(1). That was the equivalent in that case of our section 9. Then there was a commercial exception referred to in paragraph [17] of that judgment just a little bit further down that same column.

So there was a similar structure to the Canadian legislation. One of the points taken was the point that I am now taking in relation to section 9; that is, that section 3(1) did not apply at all, and that was rejected. The rejection of that can be found on page 583. It is about two‑thirds to three‑quarters of the way down. It is a reference to the relevant Québécois statute:

Article 3155 C.C.Q. states that, except where certain exceptions apply, any foreign judgment is recognized by the Quebec court that declares it to be enforceable in the Quebec legal system –

and then after a citation of authority –

The court renders a decision that, in a sense, naturalizes the foreign decision and permits it to be enforced in Quebec.

Now, on the basis of that reasoning, the Supreme Court concluded that section 3(1) did apply.  Of course, we say the difference is that this procedure under the Québécois statute is much closer to the old procedure of bringing an action on the judgment because, in the language of the Supreme Court of Canada, the court delivers a judgment that the judgment itself declares the foreign judgment to be enforceable in the Quebec legal system.  The civilian word, I believe – and I am going to mispronounce this – is “exequatur”.

NETTLE J:   But it is still only a formality, is it not?  The court is bound to, once it has been satisfied of the requirements, deliver that judgment.

MR PARKER: It is only a formality, but it would seem that it made all the difference because it enabled the Supreme Court of Canada to say what that means is, it is the judgment in Canada which is, as it were, naturalising the judgment. Of course, we say the naturalisation of the judgment under our statute is done by section 12, and that makes all the difference.

I will not go to NML in detail now, except to observe this about the facts of NML.  Again, there was an attempt to register foreign judgment, this time a New York judgment, in London.  Again, the provisions of the British Act were prayed in aid.  Again, they had a similar structure – less similar to the Canadian structure.  But the important point about that case is that that was an action on the judgment.  It was a common law action.

NETTLE J:   Yes.

MR PARKER:   The fact that the court had to deal with that under the commercial exception, rather than being able to say it does not apply at all, does not take us very far.  The third case I wanted to refer to is the Jurisdictional Immunities Case between Germany, Greece and Italy.  This concerned proceedings, relevantly proceedings which had been brought first in Greece by Greek citizens against the German Government for atrocities during World War II.  The German Government said that they were immune.  That was rejected by the Greek judgments.  Then the plaintiffs had the Greek judgments registered in Italy – “registered” is the wrong word – brought proceedings in the nature of exequatur in Italy to have the Greek judgment recognised in Italian law, and then sought to enforce.

Again, this was a case that was determined under principles of international law, or some sort of referral under a treaty.  The operative principles were not any particular statute, but principles of international law as such.  The issue is dealt with starting at page 149 of the report, and at page 151, this appears – this is the first complete paragraph on the page:

The relevant question, from the Court’s point of view . . . is whether the Italian courts did themselves respect Germany’s immunity from jurisdiction in allowing the application for exequatur, and not whether the Greek court having rendered the judgment of which exequatur is sought had respected Germany’s jurisdictional immunity.

So they were clearly recognising that there was a separate question to be answered; that is, did the exequatur proceedings themselves involve or attract the principles of sovereign immunity?  The answer was yes.  In paragraph 128 they refer to the exequatur procedure and they make the point in the first sentence that:

Where a court is seised –

of such an application –

it is itself being called upon to exercise its jurisdiction in respect of the third State . . . The fact nonetheless remains that, in granting or refusing exequatur, the court exercises a jurisdictional power which results in the foreign judgment being given effects corresponding to those of a judgment rendered –

in the home State.  Now, again, to the extent that is relied upon against us, we say it is a different type of procedure, procedural proceeding from the one that we are concerned with and, therefore, the conclusion reached by the court in that case is not at all against our position.

GAGELER J:   What is the United Nations Convention referred to at page 151?

MR PARKER:   Yes, there is a definition there ‑ ‑ ‑

GAGELER J:   Yes.  Which Convention is that?

MR PARKER:   I am sorry, your Honour, I did not catch that question.  I accept that there is a reference to that Convention and the definition that was used but the substance of the court’s decision seems to have been that the nature of the exequatur proceedings involved, to use the Canadian expression, “naturalisation”, that is the foreign judgment is brought into the Italian court and the Italian court considers whether to, and if persuaded to, orders let it be executed, that is, enrols its own decree or order or whatever it does to say this judgment is now - and it is on the enrolment of that decree that the judgment becomes part of Italian law and binding for the purpose of Italian law.

NETTLE J:   That you say is within the core meaning of jurisdiction?

MR PARKER:   Well, we would accept, as I have already accepted, that that is more analogous to the bringing an action on the debt.

NETTLE J:   Because the judge looks at it rather than, say, a registrar or a master?

MR PARKER:   Well, not just that.  The judge looks at it rather than it being prescribed in legislation ‑ ‑ ‑

NETTLE J:   But that is all that happens in the exequatur, according to that decision, is it not?

MR PARKER:   Probably, but what it results in is a judgment where the court formally declares that these rights are part of Italian law and it is the judgment which is the source of that and I do not know whether it is discretionary.  When we come to the Administration of Justice Act in England in 1920, it is actually discretionary.  Now, one does not know what the procedure was in this particular case and it does not matter for this purpose.  The important point is that the critical factor was seen as being that it was the court’s own decision which brought the foreign judgment into the local law. 

Now, may I just deal briefly with how the Court of Appeal dealt with this and I am just going to deal with the majority decision - that is of the Chief Justice and Justice Beazley, the President.  It is found starting at page 383 of the appeal book, paragraph 58, and the Chief Justice refers to the Garuda decision, and I have already referred to that, and deals with the question first whether the application is a proceeding. 

As I have indicated, we say one should not really split these two issues up but he identifies the more difficult question of being at paragraph 61 and that is the question that we are particularly concerned with and the reasoning is really encapsulated in paragraph 62 on page 384.  He refers first to the Hunt Case and he says:

The Court was not in that case dealing with sovereign State immunity. I have already dealt with the question of service. Further, for the purpose of s 9, the immunity is a freedom of liability from the imposition of duties by the process of the Australian Courts -

and that is a reference to what Garuda said.  But we would respectfully submit there is nothing inconsistent between that formulation “imposition of duties” and what I have described as the core meaning of “jurisdiction”, that is, it is the imposition of duties by the recognition and declaration in a final and binding way that the defendant and the State, in this case, impose the duties as the obligations.  That is what “imposition” means in that context.  He says:

The registration of a judgment in this case has the effect of exposing Nauru to execution against its property –

Well, to the extent that that is exposed, there are two ideas. One is that there is some sort of imposition of duties. I have already dealt with that by what I have said about section 12. In fact, the procedure we are concerned with – registration – we would say is much more limited than that. Second, the test that the Chief Justice appears to adopt is to ask whether it has the effect of exposing Nauru to execution against its property. Our submission is that that test is too wide because, if one thinks about it for a moment, that could cover all sorts of procedures and enforcement‑type procedures.

For instance, one would think that the issue of a garnishee notice against a foreign state, or rather an application to issue a garnishee notice against a foreign state, would meet that test.  We suggest, however, that the proper place for that is in Part IV, not Part II, and that one cannot just adopt a test of asking, in effect, is this something which ultimately could affect the foreign state in its pocket or in relation to property that it holds, because then we will break down the barrier between Part II and Part IV.

Another solution to that problem will be found in due course and I have already indicated there is an alternative argument.  Section 21 may solve that problem if one reads “concerns” widely.  It may not completely solve that problem but it may go some way to solving it.  But on the face of it, the test suggested there by the Chief Justice I think implicitly, we would say, is too broad.

It cannot be the case, for instance, that one could get a judgment against a foreign state because one could take advantage of Part II immunity and then apply for the issue of a garnishee notice and be faced with an argument that said, well, the application to issue the garnishee notice is itself a separate proceeding, so you have now got to go back and ask yourself whether that falls in one of the exceptions, especially if one then faces an argument that “concerns” has to be read narrowly so that the application for the garnishee notice is then seen as not relating to the underlying subject matter of the proceedings.  That is the sort of problem that could arise if one does not keep Part II and Part IV separate.

So, we submit that the arguments which I have been outlining under proposition 1.1 are not met by that judgment and that the proper view is that section 9 just does not catch this particular procedure – may catch others, may not, but it does not catch this procedure. That brings me to proposition 1.2 where I assume against myself that that argument is rejected, so that we have a situation where Part II is saying that the procedure is a proceeding and is an immunity and we are then faced, as I have already adumbrated, with this problem.

On that view, section 38 says that a process cannot be pursued and if an order is made it has to be set aside – that is, section 38 of the Immunities Act – and on the other, another Commonwealth Act says that the judgment has to be registered.  Now, we accept, of course, as I said before, it is resolving the issue on the basis of that sort of conflict and by saying, well, the later Act overrides the former is, as it were, a last resort. 

The court will try to give a construction which avoids that and, of course, one construction that would avoid it would be to read section 9 the way we say it should be read. But if that is not being adopted, then we suggest the conflict between the provisions is intractable because the two statutes are simply saying that two opposite things have to be done.

NETTLE J: If you are right about the correct construction of section 11, what intractability would remain?

MR PARKER:   Well, I think in practical terms there would be an intractability and the answer would not matter.

NETTLE J: Though would there still be problems if you are correct about section 11 but wrong about section 9?

MR PARKER:   I think as a matter of pure logic the answer is yes.  In practical terms, as I have said, I do not think it matters.

NETTLE J: It is just that if you are wrong about the application of the Act, but right about section 11, there would be no basis to set aside the judgment entered – or registered under the Foreign Judgments Act, would there?

MR PARKER:   That is right.  In that sense, I suppose, section 38 would never come into play, and so the conflict would not arise.  I think that is the answer, your Honour.

NETTLE J:   It would all work harmoniously enough on that basis.

MR PARKER:   Thank you for that.  Your Honour, if I may say so, has identified the answer, yes.  We would not have to consider this argument in that situation, because it would never arise.  There would not be a right to set it aside under section 38.

Can I just take the Court to where the Court of Appeal dealt with this?  It starts at paragraph 46 of the joint judgment.  The context is important for this.  As the Court knows, the Court of Appeal found this implication that the proceedings “had to be served” and that is the first thing they dealt with in their judgment. 

In paragraph 46 and following, they are considering this question of conflict in that context.  They are asking here a more limited question than what we would say is the question posed by the current argument.  They are asking is the service obligation which they found by implication to exist inconsistent with the Foreign Judgments Act, and the answer is, they said, it is not.  There is nothing in the Foreign Judgments Act which prevents you from serving, so you can read the two harmoniously.  Of course, that must be right as far as it goes, but the same reasoning does not get one out of the problem when one asks about the registration order.

Can I emphasise this?  The actual order made by the court was first that – this is at page 335 of the appeal book, this is the order made at first instance.  It is about line 30:

Registration of foreign judgment [was] set aside –

When the case went to the Court of Appeal, on the Court of Appeal’s reasoning, that did not go far enough.  If the Court would go to page 466 at about line 31, the Court will see that not only was the appeal dismissed, but into the bargain, the summons was ordered to be dismissed.  The Court of Appeal has found that the proceedings were not even maintainable.  It was not a case of the proceedings being brought and then the order being set aside later.  On this view, the proceedings just could not be brought at all.  That, we suggest, tends to underline the straight conflict between the two regimes.

Paragraphs 46 to 50, which I have referred the Court to, really just do not address that wider question at all. They are all about service and they are all about the fact that one can reconcile the service obligations but they do not deal with the registration – the obligation to register under section 6 and to keep registered unless the list of things that are set out – one or other of the list of things set out in section 7 are established.

I have said it was a code earlier in answer to a question by Justice Gageler and we submit it obviously is because it cannot be contemplated that having said in section 6 that it must be registered and having said in section 7 that it must be unregistered if certain criteria are satisfied that one can then go out and have some quite different criteria and unregister it for that reason – quite inconsistent with the structure as a whole. So, that is our second argument, proposition 1.2.

Now can I come to proposition 1.3 which concerns the question of concerning the commercial transaction?  We want to put our argument under this heading in two ways.  One is broader and would apply in a broader class of cases.  One is narrower and has a specific element having regard to the issues in this particular case, the broader one first. 

We just say in the ordinary use of language proceeding to register the judgment concerns – the judgment arising out of the commercial transaction concerns the commercial transaction.  As a matter of reality and substance, the judgment is not much use unless you can enforce it and the two proceedings, both the proceeding in Japan and the proceeding here, concern the underlying transaction.  I interpolate Nauru I think has never admitted that the underlying transaction is a commercial one but nor has anyone presented any argument as to why it would not be and there is a specific definition which includes financing and guarantees and the like.

KIEFEL J:   Do you seek to rely upon the way in which Lord Phillips approached the matter in NML?

MR PARKER:   Indeed.  What I have just outlined is intended to correspond with the way his Lordship put it.

KIEFEL J:   As I understood it, the basis of his Lordship’s approach was that to deny reference to the underlying transaction was to deny the very basis for the application of the restrictive doctrine.

MR PARKER:   Yes, he said the issue in the case was immunity and there was not any issue in the case about registration and the issue in the case was about immunity and therefore it did not make sense to deal with it except in terms of asking, well – or did not make sense to look to anything other than the fact that the underlying transaction was commercial.

KIEFEL J:   If regard is had to the underlying transaction here for that purpose, is there any dispute between the parties or has this ever been seriously litigated whether or not the transaction was a commercial transaction?

MR PARKER:   As I have said ‑ ‑ ‑

KIEFEL J:   There is no finding of fact.

MR PARKER:   No, because the courts below, having reached the conclusion they reached, were not called upon to deal with it.  If one looks at the definition of “commercial transaction”, as I have said, one sees that it expressly includes financing transactions.

NETTLE J:   Expressly includes a guarantee too.

MR PARKER:   Yes.

NETTLE J:   Which is even closer to the mark.

MR PARKER:   Indeed, your Honour.

KIEFEL J:   Yes, but the doctrine of international law is addressed to sovereign states that go into the marketplace, is it not?  Is there a question – and this obviously has not been addressed – about whether or not a sovereign state which is funding itself is engaging in a commercial transaction?

MR PARKER:   Can I duck that, and I suggest that maybe your Honour should be asking Mr Dick about that?  We would say it is too clear for words.

KIEFEL J:   I do not expect it can necessarily be agitated here in a meaningful way because of the way in which the matter has come up to the Court, but I think what might arise, if there is a real question – if there is no doubt at international law that the restrictive doctrine has regard to sovereign states financing themselves, which appears to be what was occurring here, then it may be end of story, there is no issue.  But if there is an issue, the question is does it need to be addressed in some way?

MR PARKER:   I think my attempt to duck remains.  All I will say, though, in answer to ‑ ‑ ‑

KIEFEL J: I think I have to leave you with the question. If an argument is raised by the other side following upon your construction of section 11(1) exception, the matter might have to be addressed about whether it goes back to have agitation about the issue.

MR PARKER:   I see the force of that.  Can I just deal incidentally with something your Honour put to me?  Your Honour was speaking of the rules of international law.  Of course, we start with the statute.  We look at international law only ‑ ‑ ‑

KIEFEL J:   Yes, quite so; the statute which is trying to take on board a doctrine.

MR PARKER:   I accept that, but it is only in the areas of uncertainty of the statute that we perhaps will need to look at international law.

KIEFEL J:   But I think the doctrine has at least some received meaning.  It is not controversial, but this probably is not the case to go into it in great detail.

MR PARKER:   NML was a similar borrowing case.  Your Honour spoke of going up the market; that is exactly what happened here.  This is money borrowed from commercial Japanese lenders.

KIEFEL J:   But how else do sovereign states fund themselves?

MR PARKER:   Apart from taxation?

KIEFEL J:   Yes, but we know that that is never enough.

MR PARKER:   If I could answer your Honour’s question then ‑ ‑ ‑

KIEFEL J:   And get a job.

MR PARKER:   ‑ ‑ ‑ and I would invent the magic pudding; I think I might be able to be somewhere else.

KIEFEL J:   Quite so.  There might not be an issue – I am not suggesting there is – but I just do not want it to be taken as read that an inclusive definition necessarily deals with a potential issue.  It may not be an issue; I am not sure.  I will leave it with you.

MR PARKER:   I think standing here I must accept that there is no finding on it below and in theory if there was a serious issue about it that might need to be looked at further.  We, for our part, question whether there can be a serious issue, but that is not really for me to say certainly at this point.

NETTLE J:   May it depend on section 32?  That is to say that, if there is to be some sort of exemption for foreign states by reference to the considerations Justice Kiefel has been mentioning, it comes at the point of execution rather than entry of judgment?

MR PARKER:   It may be.

NETTLE J:   You have got that battle to fight yet.

MR PARKER:   Well, we do, and we need to confront that in due course, and we will, but I do not think I can take it any further than what I have said at this point.  It is just a question of the issues there.  I can say I think that in NML it seems to have been either accepted or decided.  I would certainly assume that that was ‑ which was also just a borrowing case, issue of bonds by Argentina.

KIEFEL J:   Yes, that is right.

MR PARKER:   That it was commercial.

KIEFEL J:   I think there is more than one case where that has been held.

MR PARKER:   Yes.  Now, if I can put it that way, that is the broader argument.  One might characterise an argument as a matter of practicality and commercial reality, that the proceeding concerns the underlying bond issue.  But we do have a more specific argument and for that purpose I want to refer to the evidence again that the Court has already seen about the registration, because in this case my client actually tendered the bond documentation and, as I have sought to show, my client had to do that because my client needed to demonstrate that there was jurisdiction in the international sense and specifically that there had been submission.

Now, there might have been a number of ways in which submission could have happened.  It might have happened ad hoc in the proceedings, in which case we would have proved that, but in this case the submission was in the bond documentation and that is why the bond documentation, as I have already observed, was in evidence.

Ordinarily one would think one would just tender the judgment, but here we had to tender the bond documentation.  So that if, contrary to the argument which we put, one needs to look at what have been described as the issues in the proceedings and then try to apply that test to this procedure, then we would say that these proceedings concerned the transaction because it was an element of our successful application for registration to prove the transaction; prove the consent in the transaction, more specifically.

GORDON J:   That approach is the approach adopted in Kuwait.  One takes the findings in the judgment.  One asks oneself by reference to those findings what was the nature of the acts the subject of the judgment.

MR PARKER:   Perhaps, but ‑ ‑ ‑

GORDON J:   The reason they did that is because it gave appropriate reflection of the judgment itself which was seeking to be registered in another country.

MR PARKER:   Indeed.

GORDON J:   You were not redoing the issues that had already been the subject of determination in the foreign court.

MR PARKER:   Well, indeed, and I suppose on that view maybe we would not have needed to and we could just refer to the passages in the judgment.  But for whatever reason, we did have to demonstrate – how we demonstrated it is a different question.  Whether we could do it by just relying on the judgment or we had to do it independently, the fact is that because of the requirements of the rules and the way in which submission actually occurred in this case, we needed to prove the submission in the documentation.  So we would say these proceedings concerned the transaction for that reason as well and it is a commercial transaction.

FRENCH CJ:   Just to clarify, so far as the question of whether it is a commercial transaction is concerned, on your submission, the relevant primary facts are there, namely, the documentation that it was a borrowing, supported by the guarantee et cetera and that the argument is then one of a construction (b) characterisation.

MR PARKER:   Yes, and construction and characterisation based in the two different ways in which I put it, the broader way and the narrower way.  The argument against us, in essence, is you have got to look at what the issues were in the proceedings, or as were the elements of the cause of action, the argument is, the only issues in the proceeding are, can the judgment be registered.  That is the argument against us.

Now, we say that is too narrow a view for reasons I have given, but even if one looks to the issues in the proceedings, the facts in this case suggest that we needed to prove it, as I have indicated.  It would not apply in every case because if the submission had been in some other way, we might not have needed to prove it.

One of the reasons why we say that “concerns” ought to have a wider meaning is because otherwise the exceptions become somewhat self‑defeating and can I just outline that in a little more detail?  We know there is a list of exceptions and each of the exceptions speak about concerns.  Now, the argument against us says the registration proceedings concern the judgment.  I mean that is correct, but they say it does not concern the underlying transaction.

Now, our first rhetorical answer to that is, well, why not?  There is no reason why it cannot concern both, practical matter, it does concern both.  But leaving that aside for one minute, that sort of reasoning leads to the result that in a procedure like this, none of the exceptions are going to be of any use.  Now, when the Parliament put exceptions in, what the Parliament was seeking to do was to encapsulate the restrictions on sovereign immunity.  Presumably, the Parliament intended that those exceptions could be workable in cases where it would be appropriate. 

Now, if one is going to give a narrower meaning to section 9, well, then one can give a narrower meaning to “concerns”. But if one is going to give a broad meaning to section 9 and say it picks up all sorts of procedures, some of which have got a procedure like this which can be described as, I do not know, adjectival or procedural, well there must be a correspondingly wider application or meaning to the word “concerns” because otherwise we get to the self‑defeating position that these proceedings do not concern anything.

FRENCH CJ:   Would you approach it as a relational term?  I mean, I suppose it could have been expressed as “relates to” and typically the width of such terms is – it is a purposive judgment, I suppose.

MR PARKER:   We would say it is just like “in relation to”, “relates to”, “in respect of”.  It has been suggested at various points that there might be some difference between “concerns” and other phrases of that sort.  Our submission is that it is really hard to see how it is either any wider or any narrower.  The reality is they are all phrases which express a relationship between things which are capable of a wide or indirect relationship but which must be read according to the context and may bear a narrower meaning than that.  There is nothing violent in the language about saying that these proceedings concern the underlying transaction, even though that might be seen to some extent as being indirect.

The key to the argument against us, which we say is the thing that really has been stated many times but has not been justified, is it is all very well to say that these proceedings concern the judgment.  Of course they do, but why does it follow that they do not concern the underlying transaction?  That is the key point.  That is what our opponents have to establish.

GAGELER J:   Well, why do you say the wide view should be taken?  That is for you to establish.

MR PARKER:   And I have outlined ‑ ‑ ‑

GAGELER J:   Is there anything more to say?

MR PARKER:   No, not beyond what I have already put on that, I think.  But I do now need, I think, to now refer to the other authorities that I already mentioned to the Court because, again, as the Court has seen, analogous issues arose in the Kuwait Case, the NML Case, the Jurisdictional Immunities Case, so could we start with the Kuwait Case.

It is probably easiest just to go to page 590.  There is reference there to the factual findings in the court below…..court in England.  About a third of the way down the page in paragraph [34] the court was considering the question whether the commercial exception applied.  I think this one was “relates to a commercial matter”.  I may have that wrong.  This was offered by way of justification – this is about eight lines down:

Iraq had participated throughout this commercial litigation in the hope of protecting its interests in IAC –

which was its corporation.  Then in paragraph [35] – I am now reading from about three‑quarters of the way down the page –

The original appropriation of the aircraft was a sovereign act, but the subsequent retention and use of the aircraft by IAC were commercial acts . . . The English litigation, in which the respondent intervened to defend IAC, concerned the retention of the aircraft.  There was no connection between that commercial litigation and the initial sovereign act of seizing the aircraft.

It has been said in NML that although the conclusion was reached that the commercial exception applied, the case is not overly endowed with reasoning and we accept that.  It seems to have been almost assumed that those factual statements were enough to create the relationship, that is, one characterises the underlying proceeding.  That is, in this case the English proceeding as have a commercial motivation or mainspring and then that is enough to stamp the registration proceeding as commercial.

I now turn to the NML Case where the issue was reasoned out at length.  Justice Kiefel has already referred to the decision of Lord Phillips.  Before coming to that part of his reasoning, can I just refer to paragraph 17 and 18 of the judgment?  At the end of paragraph 17 – this is page 508 of the report – his Lordship quotes subsection (3)(c) of the English Act.  That is the equivalent of our provision which I have taken the Court to which contemplates the registration of a judgment against a foreign state.  In 18 he says – he makes that very point in the first sentence but then goes on to point out the practical difficulties that might have attended it and observing at the end of paragraph 18 that “There does not seem to be any recorded instance” of it being relied upon, but it was there.  Then the reasoning which I think I answered Justice Kiefel about starts in paragraph 26 just after point H on page 510 of the report:

The only issue is whether Argentina is immune from the claim.  Whether a state is immune from such a claim should, under the restrictive doctrine of state immunity, depend upon the nature of the underlying transaction that has given rise to the claim, not upon the nature of the process by which the claimant is seeking to enforce the claim.

We suggest that that is a commonsense and, with respect, persuasive observation –

When considering whether a state is entitled to immunity in respect of a claim to enforce a foreign judgment the question “does the claim constitute proceedings relating to a commercial transaction?” can only be given a meaning that is sensible if “relating to” is given a broad, rather than a narrow, meaning.  The proceedings relate both to the foreign judgment and to the transaction underlying that judgment, but in the context of restrictive state immunity it only makes sense to focus on the latter.

We respectfully adopt that as reasoning that would be equally applicable in our context.  It is developed further in paragraphs 27 and 28 and then in paragraph 29 his Lordship said in the second sentence:

That question –

that is, whether Argentina has got immunity –

ought to be answered in the light of the restrictive doctrine of state immunity under international law.  There is no principle in international law under which state A is immune from proceedings brought in state B in order to enforce a judgment given against it by the courts of state C, where state A did not enjoy immunity in respect of the proceedings that gave rise to that judgment.

We respectfully submit that if there is a way of reading “concerns” which would allow the Court to give effect to that aspect of international law, the Court should do so.  There is nothing to be gained from adopting a cramped construction which would then put the position in conflict with principles of international law as stated there. 

GAGELER J:   As there stated, it is the absence of a principle of international law, not the existence of a principle of international ‑ ‑ ‑

MR PARKER:   Well, I accept that – I am sorry, your Honour, I should not have interrupted you.

GAGELER J:   No, no.

MR PARKER:   Yes, but if one reads “concerns” narrowly, the outcome will be that there will be a restriction and that is not something which is sanctioned by international law because – international law seeks to adopt as its criterion a question of whether there be immunity in the underlying transaction.  That perhaps is clearer in the Jurisdictional Immunities Case to which I will come, but we see it here too, we suggest.  I accept what your Honour says about it, it has been put in a negative way but at the same time ‑ ‑ ‑

GAGELER J:   No, no, is this all you are going to tell us about international law?

MR PARKER:   No, because I am going to refer to Jurisdictional Immunities Case in a moment which says something about this.

GORDON J:   In the Kuwait Case, which I referred to before, although that was dealing with the phrase “commercial activity”, the court drew

distinction between acts which are peculiar to a sovereign as distinct from private acts.  You do not seem to adopt that sort of approach.

MR PARKER:   No, we do, your Honour.  That is the essence of ‑ ‑ ‑

GORDON J:   Is it?

MR PARKER:    ‑ ‑ ‑ the test of restrictive immunity.

GORDON J:   That would seem to provide its own way of looking at commercial activity in the way in which that court deals with it.

MR PARKER:   I had not considered that but I see that that could be so.  It might support – perhaps good support – a broader and commercially commonsensical reading rather than a narrower one.

GORDON J:   But it even suggests, for example, one does not even look to see what the purpose of the sovereign was in relation to the transaction.

MR PARKER:   And, that is clear enough.  We will come back to that when we ‑ ‑ ‑

GORDON J:   It is irrelevant if it is seeking to protect a State interest or sustain anything to do with the State interests.

MR PARKER:   Absolutely, and we will come back to that again when we come to the question of immunity from execution – we will be saying that there are echoes of that in the approach to be taken there.  But what Lord Phillips seems to be making, perhaps, is a slightly different point of just saying international law – we ought to be dealing with this as a matter of substance.  Perhaps one does not need international law to say that. 

The preferable outcome is surely an outcome where it depends upon the substance of the underlying transaction rather than the form of the particular proceedings that one is taking.  In fact, that same distinction is referred to in Lord Phillips’ speech at paragraph 29, your Honour, and in a number of the other authorities too.

FRENCH CJ:   That could be a convenient moment, Mr Parker.

MR PARKER:   It is, your Honours.

FRENCH CJ:   The Court will adjourn until 9.40 tomorrow morning for pronouncement of orders and 10.15 am for the continuance of this matter.

AT 4.13 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 3 SEPTEMBER 2015