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

HIGH COURT OF AUSTRALIA

FRENCH CJ, KIEFEL, GAGELER, NETTLE AND GORDON JJ

FIREBIRD GLOBAL MASTER FUND II LTD APPELLANT

AND

REPUBLIC OF NAURU & ANOR RESPONDENTS

Firebird Global Master Fund II Ltd v Republic of Nauru [2015] HCA 43 2 December 2015 S29/2015

ORDER

1. Vary paragraph (1)(ii) of the order of the Court of Appeal of the Supreme Court of New South Wales made on 23 October 2014 by deleting the order that the summons filed on 9 May 2012 be dismissed and, in lieu thereof, order that order 1 of the orders of Young AJA made on 3 October 2014 be set aside insofar as it orders that the registration of the foreign judgment be set aside.

2. Appeal otherwise dismissed.

3. The parties are to file written submissions as to costs on or before 9 December 2015.

On appeal from the Supreme Court of New South Wales

Representation

T G R Parker SC with J A C Potts for the appellant (instructed by Clayton Utz Lawyers)

R A Dick SC with D J Barnett and N D Oreb for the first respondent (instructed by Ashurst Australia)

Submitting appearance for the second respondent

Intervener

J T Gleeson SC, Solicitor-General of the Commonwealth with N J Owens for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Firebird Global Master Fund II Ltd v Republic of Nauru

Public international law – Foreign State immunity – Immunity from jurisdiction – Proceedings for registration of a foreign judgment – Where appellant obtained judgment in Tokyo District Court against first respondent as guarantor of certain bonds – Where appellant obtained order from Supreme Court of New South Wales that the foreign judgment be registered under Foreign Judgments Act 1991 (Cth) – Whether first respondent entitled to foreign State immunity from jurisdiction under s 9 of Foreign States Immunities Act 1985 (Cth) – Whether exception in s 11(1) of Foreign States Immunities Act for proceedings concerning "commercial transactions" applies.