Petersen Energía Inversora, S.A.U. v Argentine Republic

1. [1]

   BELL CJ: These proceedings concern the question of whether the Republic of Argentina (the Republic) has been validly served in proceedings in which the Plaintiffs seek orders for the recognition and enforcement at common law of a final judgment of the Hon. Judge Preska of the United States District Court for the Southern District of New York on 15 September 2023 (Foreign Final Judgment).

2. [2]

   By the Foreign Final Judgment, her Honour ordered that the Republic:

   1. (1)

      pay to the First and Second Plaintiffs damages and pre-judgment interest of USD $14,385,449,737.00;

   2. (2)

      pay to the Third to Fifth Plaintiffs damages and pre-judgment interest of USD $1,714,338,556.00; and

   3. (3)

      pay post-judgment interest to all Plaintiffs in accordance with US law on all above-mentioned amounts, calculated from the date of the entry of the Foreign Final Judgment at the rate of 5.42% per annum computed daily to the date of payment and compounded annually.

3. [3]

   The Republic seeks, by Notice of Motion dated 7 May 2025, an order pursuant to r 12.11(c) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) declaring that the Commercial List Summons and Commercial List Statement (together the Initiating Process) have not been duly served on it. Other relief sought in the Notice of Motion was not the subject of argument before me, it being common ground that the interlocutory hearing be confined to questions of validity of service.

4. [4]

   As explained more fully below, the Plaintiffs first sought to serve the Republic in accordance with s 24 of the Foreign States Immunities Act 1985 (Cth) (FSIA). This process commenced with a request in March 2024 to the Attorney-General for transmission by the Australian Department of Foreign Affairs and Trade (DFAT) to its equivalent department in the Republic of the Initiating Process and other specified documents as listed in s 24(2) of the FSIA. The delivery ultimately occurred on 6 January 2025 with the delivery of the relevant documents by an officer of the DFAT to the offices of the Argentine Ministry of Foreign Affairs, International Trade and Worship (Ministerio de Relaciones Exteriores, Comercio Internacional y Culto) (Argentine MFA) in Buenos Aires.

5. [5]

   In the interim, and because of delays in confirmation of service of process through diplomatic channels, the Plaintiffs also purported to serve the Initiating Process on the Republic under the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention). Such service would have been consistent with s 23 of the FSIA but the Republic led evidence that the Argentine Central Authority designated pursuant to Article 2 of the Convention never received documents from the Registrar of the Supreme Court of New South Wales and so declined to issue any certificate under the Hague Convention.

6. [6]

   In relation to the purported service under s 24 of the FSIA, the Plaintiffs relied upon a certificate made by a delegate of the Minister of Foreign Affairs pursuant to s 40 of the FSIA (the Section 40 Certificate). That certificate provided:

7. [7]

   The Republic, although being fully cognisant of the claims contained in the Initiating Process, contended that both attempts at service by the Plaintiffs were ineffective for different reasons.

8. [8]

   Its first argument related to the construction of s 24 of the FSIA and was broadly to the effect that the purported service pursuant to that section was in breach of or inconsistent with Australia’s international law obligations under the Hague Service Convention and considerations of international comity. The Republic contended that, notwithstanding the terms of s 24 permitting service through the diplomatic channel, such service was not available or effective because, following Australia’s accession to the Hague Service Convention, that Convention provided the exclusive route for service on a foreign state which was also party to that Convention such that s 24 ceased to be available or could not be validly complied with.

9. [9]

   The Plaintiffs countered this contention in three ways: first, pointing to the alternative modes of service provided for in ss 23 and 24 of the FSIA, and contesting the Republic’s argument that the Convention provided the exclusive route for service on a foreign state; second, invoking Article 9(2) of the Hague Service Convention which, they submitted, preserved the possibility of service through the diplomatic channel and thus pursuant to s 24 of the FSIA; and third, asserting an entitlement to default judgment pursuant to r 11A.11 of the UCPR.

10. [10]

    The Republic also contended that s 24 had not been complied with because the translation of the Initiating Process which was required to be delivered under that section, although accurate, was a translation of an unfiled and unstamped copy of the Initiating Process such that the purported service pursuant to s 24 was ineffective for that additional reason.

11. [11]

    To the extent that the Plaintiffs endeavoured to serve the Initiating Process in accordance with the Hague Service Convention and s 23 of the FSIA, as noted above, the Republic’s broad contention was that documents apparently sent by the Registry of this Court were never received by the Argentine Central Authority so that they could then be served in accordance with the Argentine Republic’s domestic laws. Unchallenged evidence to this effect was provided in the Affidavit of Aldana Rohr dated 12 June 2025.

12. [12]

    Before considering these competing contentions in greater detail, it is first necessary to set out key provisions of the FSIA and the Hague Service Convention, making some passing observations in relation to the parties’ submissions in relation thereto. These reasons then set out the steps taken by the Plaintiffs to serve the Initiating Process on the Republic before returning to consider the competing arguments in greater detail.

The FSIA

1. [13]

   As I observed in Greylag Goose Leasing 1410 Designated Activity Company v PT Garuda Indonesia Ltd (2023) 111 NSWLR 550; [2023] NSWCA 134 at [19] (Greylag Goose), the FSIA was the direct product of the Australian Law Reform Commission’s (ALRC) report on foreign state immunity which, inter alia, reviewed overseas models for service on and by foreign states: see ALRC, Foreign State Immunity (Report No 24, 1984) at [147]-[151] (ALRC Report). In Greylag Goose, I went on to note that:

2. [14]

   At the time the FSIA was enacted in 1985, Australia had not acceded to the Hague Service Convention and did not do so until 15 March 2010.

3. [15]

   Sections 23 and 24 fall within Part III of the FSIA, entitled “Service and judgments”. Section 23 provides:

4. [16]

   It was not in contention that the Hague Service Convention was an agreement within the meaning of s 23 of the FSIA. Accordingly, the effect of s 23 is that service may be effected on a foreign state which has also acceded to the Hague Service Convention in accordance with the terms of the Convention.

5. [17]

   Section 24 of the FSIA, however, provides a different means of service than that provided for under the Hague Service Convention. It is as follows:

6. [18]

   Form 1 in the Schedule referred to in s 24(2)(a) is in the following terms:

7. [19]

   In relation to what became s 24 of the FSIA, the ALRC Report observed at [148] that:

8. [20]

   Both ss 23 and 24 are permissive, on their face providing alternative means of serving a foreign state: “may be effected”; “may be delivered …”. Some reliance was placed in argument by the Republic on [151] of the ALRC Report to suggest that s 24 was subordinate to s 23, such that where an agreement between states had been reached as to service, that was the only means by which service could be effected. That paragraph stated:

9. [21]

   On 18 February 2022, amendments were made to the FSIA through the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Act 2022 (Cth) (the Amending Act), which, inter alia, amended the definition of “initiating process” under s 3(1), inserted s 26A, and clarified language in ss 27 and 28.

10. [22]

    Section 3(1) of the FSIA now defines “initiating process” as:

11. [23]

    Section 26A of the FSIA provides that:

12. [24]

    Furthermore, s 27(1) of the FSIA which had, until 17 February 2022, provided that:

13. [25]

    Each party sought to derive some support for their competing positions by reason of these amendments. The Republic, referring to and quoting from the Explanatory Memorandum to the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021 (Cth), submitted that the expressed rationale behind the amendments was to:

14. [26]

    The Plaintiffs contended that the amendments had no connection with the Hague Service Convention and that, as evidenced by the Explanatory Memorandum, their purpose was to respond to the High Court’s decision in Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31; [2015] HCA 43 (Firebird). The Explanatory Memorandum stated:

15. [27]

    The Explanatory Memorandum to the Amending Act made no reference to the Hague Service Convention. The 2022 amendments were plainly a response to Firebird and do not bear directly on the questions of construction raised in this particular case. Even if they did, their significance evaporates if service under s 24 of the FSIA was consistent with Article 9(2) of the Hague Service Convention, as the Plaintiffs contended (see further at [100]-[108] below).

16. [28]

    The Plaintiffs also argued that it was significant that, despite ratifying the Hague Service Convention in 2010, s 24 of the FSIA has never been amended.

17. [29]

    The current terms of s 27 of the FSIA, also within Part III, should also be noted:

18. [30]

    Finally, the terms of s 40 of the FSIA should be noted, recalling that a Section 40 Certificate was issued following the purported service of the Initiating Process through diplomatic channels: see [6] above. That section provides:

19. [31]

    It may be noted that s 40(1)(d) of the FSIA treats the delivery of “a specified document as mentioned in s 24” as “service” of that document, and it is that delivery which effects the service of the document. In Zhang v Zemin (2010) 79 NSWLR 513; [2010] NSWCA 255, Spigelman CJ described “[t]he provision of a conclusory certificate by the Minister for Foreign Affairs under s 40” as “a central feature of the legislative regime”: at [86]. In Douglas v Republic of Nauru [2004] VSC 500; (2004) 187 FLR 221 at [19]-[21] (Douglas), Ashley J held that:

20. [32]

    There is a tension between this decision and the more recent decision of Raper J in Saudi Arabian Cultural Mission v Alramadi (2024) 305 FCR 581; [2024] FCA 1060 at [117] (Alramadi) in which her Honour held that a s 40 certificate can only certify that service was effected by delivery of particular documents on a particular day (and, of the other matters in s 40(1)) but cannot certify that it was effectively or validly made or served, or effected. Her Honour indicated at [126] that where she parted company with Ashley J was that there was “nothing in the text of s 40, nor in the LRC Report which lends support for the view that the certificate (even if buttressed by pertinent facts) would be conclusive of matters of law”. If her Honour’s reservation extended to the effecting of service of an initiating process on a foreign state, the combination of s 40(1)(d) and s 40(5) provides a clear and contrary textual indication to her Honour’s conclusion. To the extent that there is a difference between them, I prefer the reasoning of Ashley J in Douglas.

Hague Service Convention

1. [33]

   Australia ratified the Hague Service Convention on 15 March 2010, and the Convention entered into force for Australia on 1 November 2010. The Republic ratified the Convention on 2 February 2001 and it entered into force on 1 December 2001.

2. [34]

   Article 1 of the Hague Service Convention was a central plank in the Republic’s argument. It relevantly provides:

3. [35]

   The Republic contended that this article had the effect of making service under the Hague Service Convention exclusive, and that, as it was an international instrument, any breach of it would be a breach of Australia’s international law obligations. This in turn fed into an argument, explained and explored more fully below, that s 24 of the FSIA should not be interpreted in a way which involved a violation of Australia’s international law obligations. This reduced to an argument that, following Australia’s accession to the Hague Service Convention in 2010, s 24 of the FSIA ceased to provide a valid method for service on a foreign state which was also a signatory to the Convention.

4. [36]

   The Plaintiffs resisted the premise of this argument but contended, in any event, that the Convention contemplated service through diplomatic channels in the second sentence of Article 9 such that service effected in that way under s 24 of the FSIA did not involve any breach of Australia’s international law obligations or international comity. Article 9 relevantly provides:

5. [37]

   It was ultimately common ground that “exceptional circumstances” comprehended the service of process on a foreign state. This was consistent with what is stated in the Practical Handbook on the Operation of the Hague Service Convention (4th ed, 2016) (Practical Handbook) to which both parties referred in the course of their oral and written submissions. The relevant passage of the Practical Handbook was as follows:

6. [38]

   On its face, the Republic’s acceptance that “exceptional circumstances” in Article 9 included service on a foreign state was destructive of its argument that service in accordance with s 24 was inconsistent with the Convention and, thereby, involved a violation of Australia’s international law obligations and international comity. The Republic countered this argument by contending that the expression “for the same purpose” in the second sentence of Article 9 did not refer simply to the “purpose of service” but to forwarding documents, that is, transmitting documents, for the purpose of service.

7. [39]

   Article 2 of the Hague Service Convention provides that “[e]ach Contracting State shall designate a Central Authority which will undertake to receive requests for service coming from other Contracting States and to proceed in conformity with the provisions of Articles 3 to 6.” The Republic argued that Article 3 established the “main channel” for service under the Hague Service Convention. It provides:

8. [40]

   The terms of Articles 8, 10, 14 and 15 of the Hague Service Convention should also be noted for completeness, as reference was made to them by the parties in the course of argument. They respectively provide:

Commencement of proceedings and attempted service

1. [41]

   On 7 March 2024, the Plaintiffs commenced their proceedings in the Commercial List of this Court.

2. [42]

   On 14 March 2024, Gilbert + Tobin (G+T), on behalf of the Plaintiffs, transmitted a formal request (the Request for Service) to the Attorney-General of the Commonwealth (AGD). The request was made, purportedly pursuant to s 24 of FSIA, to procure DFAT to deliver the Initiating Process, along with certain other documents, to the equivalent government department or organ of the Republic. The Request for Service enclosed the following documents (the FSIA Documents):

   1. (1)

      the Initiating Process;

   2. (2)

      a statutory declaration;

   3. (3)

      a “notice to defendant served outside of Australia”;

   4. (4)

      a translation of the Initiating Process, statutory declaration and notice to defendant into Spanish, a de facto official language of the Republic; and

   5. (5)

      a certificate signed by a qualified translator.

3. [43]

   On 9 April 2024, the AGD sent a letter to G+T, requesting an updated version of the FSIA Documents. G+T sent the updated version of the FSIA Documents to the AGD by post that same day.

4. [44]

   By email on 12 April 2024, the AGD advised G+T that the updated version of the FSIA Documents had been forwarded to DFAT for the purpose of delivering the documents to the Republic. In that email, the AGD confirmed that, when service had been effected, a certificate (as contemplated by s 40 of the FSIA) would be provided to confirm that service had been effected.

5. [45]

   Correspondence between G+T and the AGD continued between April and late October 2024 in which, with a degree of polite frustration, G+T followed up the status of the service of the s 24 documents on the Republic.

6. [46]

   By email on 6 November 2024, the AGD advised G+T that:

7. [47]

   The Summons, List Statement and other documents as listed in s 24(2) of the FSIA were delivered on 6 January 2025 by an officer of the DFAT to the offices of the Argentine MFA in Buenos Aires. So much is established by the Section 40 Certificate which, by s 40(5), is admissible as evidence of the facts and matters stated in it and is conclusive as to those facts and matters.

8. [48]

   By email on 21 January 2025, the AGD advised G+T that DFAT had hand delivered the Initiating Process and FSIA Documents to the Argentine MFA on 6 January 2025, purportedly in the manner contemplated by s 24 of the FSIA. By the same email of 21 January 2025, the AGD attached the Section 40 Certificate.

9. [49]

   On 26 February 2025, G+T received a letter from the Australian Government Solicitor stating that:

10. [50]

    The Plaintiffs accepted that the FSIA Documents did not cite the Hague Service Convention or include the form annexed to that Convention but contended that the absence of the form and the Republic’s rejection of service lacked legal significance in ascertaining whether service had been validly effected through diplomatic channels under s 24 of the FSIA.

11. [51]

    Between the Plaintiffs’ formal request to the Attorney-General in March 2024 and the receipt of the Section 40 Certificate in January 2025, and by reason of the fact that the Plaintiffs had not yet received a certificate confirming that service had been effected under the FSIA, on 31 July 2024, the Plaintiffs filed an application with the Registrar of the Supreme Court of New South Wales, together with documents required by Part 11A of the UCPR, to effect service on the Republic in accordance with the Hague Service Convention.

12. [52]

    Rule 11A.4 of the UCPR provides:

13. [53]

    The documents filed to initiate that application (collectively, the Hague Documents) were:

    1. (1)

       the Request for Service Abroad of Judicial Documents (Request for Service Abroad);

    2. (2)

       the Summary of the Documents to be Served (Summary);

    3. (3)

       the Summons;

    4. (4)

       the List Statement;

    5. (5)

       all the documents above translated professionally into Spanish;

    6. (6)

       a certificate from the translator, certifying the Spanish translations; and

    7. (7)

       a “solicitor Undertaking letter”, undertaking to pay the costs of effecting service.

14. [54]

    The address specified in the application, to which the Hague Documents were to be transmitted, was Esmeralda 1212, C1007ABR, Ciudad Autónoma de Buenos Aires, Argentina.

15. [55]

    On 27 August 2024, G+T received a letter from the Principal Registrar of the Supreme Court of New South Wales (the Principal Registrar) advising that the Hague Documents had been forwarded to “the Authority in the Argentina”. Mr Lynch of G+T deposed that he:

16. [56]

    Ms Aldana Rohr, the Director of the International Legal Assistance Department (DAJIN) at the Argentine MFA, provided evidence by affidavit filed 13 June 2025 that the Argentine MFA is the designated “Central Authority” of the Argentine Republic.

17. [57]

    Further, Ms Rohr confirmed that DAJIN exclusively performs the duties of the Argentine MFA as the designated Central Authority. Ms Rohr confirmed that DAJIN has authority to receive requests for service from a forwarding authority of another State, and is obliged to proceed in accordance with the provisions of the Hague Service Convention.

18. [58]

    On 30 October 2024, G+T emailed various addresses including “dajin@mrecic.gov.ar” and “cooperacion-civil@mrecic.gov.ar”, inquiring as to whether the Hague Documents had been served by the Argentine MFA (as Central Authority) on the Republic:

19. [59]

    On 3 December 2024, G+T sent a further email to various addresses including those referred to immediately above, stating that:

20. [60]

    On 10 December 2024, G+T received an email from “cooperacion-civil@mrecic.gov.ar”, attaching a letter dated 9 December 2024 with reference number NO-2024-134822913-APN-DGAJ#MRE. The letter was signed by Mr Victor Antonio Malavolta, in his capacity as “Central Authority”, advising that the:

21. [61]

    By email dated 11 December 2024, G+T responded to the letter forwarded by “cooperacion-civil@mrecic.gov.ar”, confirming that “the position of the Supreme Court of NSW is that it has provided the [Hague] Documents to you” and enclosed copies of the Hague Documents and the letter from the Principal Registrar dated 27 August 2024 confirming that the Hague Documents had been transmitted to the Central Authority.

22. [62]

    On 12 December 2024, G+T sent a letter to the Registry of the Supreme Court of New South Wales (the Registry) that requested:

    1. (1)

       a copy of the Request for Service Abroad that was stamped or signed by the Principal Registrar and transmitted to the Central Authority;

    2. (2)

       a copy of any tracking number, proof of delivery or proof of receipt relating to the transmission of the Hague Documents to the Argentine MFA; and

    3. (3)

       confirmation of the address to which the Hague Documents were transmitted and the date on which the Hague Documents were transmitted.

23. [63]

    By email dated 13 December 2024, G+T received from an email address associated with the Argentine MFA a letter which purported to “return” the documents enclosed with G+T’s email of 11 December 2024. This communication asserted non-compliance with the form required by Article 3 of the Hague Service Convention and identified the address for service of the Republic by the Central Authority.

24. [64]

    By email dated 6 January 2025, G+T requested that the Argentine MFA acknowledge receipt of the Hague Documents from the Supreme Court of New South Wales and provide certification, in the form contemplated by Article 6 of the Hague Service Convention (‘certificate of service’), that the Hague Documents had been served on the Republic.

25. [65]

    On or about 12 February 2025, G+T requested an appointment with the Duty Registrar of the Supreme Court of New South Wales to discuss the matters raised in G+T’s letter to the Registry dated 12 December 2024.

26. [66]

    On 14 February 2025, G+T received an email from the Counter Manager of the Supreme Court of New South Wales stating that the:

27. [67]

    On or about 25 February 2025, a lawyer employed by G+T attended the Registry to inspect the physical court file for these proceedings and obtained copies of:

    1. (1)

       a letter from the Principal Registrar addressed to the “Argentine Central Authority” and dated 27 August 2024, with the address for delivery being Esmeralda 1212, C1007ABR, Ciudad Autónoma de Buenos Aires, Argentina; and

    2. (2)

       a copy of the Request for Service Abroad, signed and stamped on behalf of the Supreme Court of New South Wales and dated 27 August 2024.

28. [68]

    On 30 April 2025, a lawyer employed by G+T accessed the internet site maintained by the Hague Conference on Private International Law, which recorded that the Republic was at that time a contracting party of the Hague Service Convention, and that, by clicking the link “Click here for the Central Authority designated by Argentina and other practical information”, the following address was produced.

29. [69]

    That address was confirmed by Ms Rohr to be DAJIN’s address. The above address was the same address used by the Principal Registrar as recorded in the JusticeLink screenshot attached in the Counter Manager’s email dated 14 February 2025: see [66] above.

30. [70]

    The Plaintiffs confirmed by Mr Lynch’s affidavit of 23 May 2025, which was read without objection, that G+T had not received a “certificate of service” of the kind contemplated by r 11A.6 of the UCPR, as issued or transmitted by the Argentine MFA (as Central Authority) to the Registry.

31. [71]

    On 30 April 2025, G+T sent a letter by courier to the Argentine MFA, the Republic’s Minister of Foreign Affairs for the Republic, and the President of the Republic, advising of the Plaintiffs’ intention to apply in these proceedings for default judgment on 2 May 2025 should the Republic not enter an appearance. In that letter, G+T enclosed copies of the following documents:

    1. (1)

       the letter from the Principal Registrar to G+T dated 27 August 2024;

    2. (2)

       the letter from the Principal Registrar to the “Argentine Central Authority” dated 27 August 2024;

    3. (3)

       the signed and stamped Request for Service Abroad;

    4. (4)

       G+T’s email to the Central Authority on 11 December 2024, including copies of the Hague Documents as filed with the Supreme Court of New South Wales on 31 July 2024; and

    5. (5)

       the Section 40 Certificate.

32. [72]

    In relation to G+T’s letter dated 30 April 2025, the Republic provided evidence, by affidavit of Gitanjali Bajaj dated 7 May 2025, that:

    1. (1)

       the mailboxes associated with the email addresses referred to on the first page of G+T’s letter were searched, but no copy of the letter was found in those mailboxes; and

    2. (2)

       the Republic first became aware of the letter after a courier delivered two copies of the letter to the Argentine MFA front desk on 5 May 2025 at Esmeralda 1212, City of Buenos Aires, Argentine Republic.

33. [73]

    Furthermore, the Republic led evidence that none of the documents purported to be enclosed in G+T’s 30 April 2025 letter (see [71] above) were part of the bundle of materials delivered by courier to the Argentine MFA.

34. [74]

    Dr Roughley SC who, with Mr Yin, appeared for the Republic, sought to frame her submissions by reference to the presumption of statutory construction that, so far as the language permits, a domestic statute is to be interpreted and applied as not to be inconsistent with international law and the comity of nations. This was the foundation for her submission that “service”, when used in s 24(3) and (4) of the FSIA, must be construed as meaning “service not contrary to international law” or “service not inconsistent with international law” and that service other than via or consistent with the Hague Service Convention was not such service. This included, on the Republic’s argument, service in accordance with s 24 of the FSIA which was contended to be inconsistent with the procedure prescribed under the Hague Service Convention which was argued to be the exclusive route for service, including on a foreign state.

35. [75]

    Particular reliance was placed upon various passages in Polites v The Commonwealth (1945) 70 CLR 60; [1945] HCA 3 (Polites) although, as will be seen, there are nuanced differences between the various passages relied upon.

36. [76]

    In Polites, Latham CJ observed at 69 that:

37. [77]

    Dixon J stated that “[i]t is a rule of construction that, unless a contrary intention appear, general words occurring in a statute are to be read subject to the established rules of international law”: Polites at 77. McTiernan J referred at 79 to:

38. [78]

    It may be seen that both Dixon J and McTiernan J tied the presumption to a breach of established rules of international law. No “established rule of international law” was said to have been breached by the purported service under s 24 of the FSIA in the present case. It was only Latham CJ in Polites who extended the approach to “breaches of international law and of international comity”.

39. [79]

    Reliance was also placed upon the observation in Polites by Williams J at 81 that “there is a rule of construction that, in the interpretation of statutes, the courts will presume, so far as the language admits, that Parliament did not intend that they should operate in derogation of such a rule, and will limit the scope of general words so as to give them effect to the presumption” but it is plain from the context of his Honour’s decision that the “rule” of public international law to which his Honour was referring concerned the question germane to the facts of the legislation under consideration, namely that foreigners could not be obliged to perform military service but, may be compelled, under the same conditions as nationals, to perform police, fire protection or militia duty for the protection of the place of their domicile against natural catastrophes or dangers not resulting from war."

40. [80]

    The Republic also relied on a number of other authorities, the most relevant of which were Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38; [1992] HCA 64 and Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287; [1995] HCA 20 (Teoh).

41. [81]

    In the first of those decisions, Brennan, Deane and Dawson JJ stated at 38 that:

42. [82]

    The qualification made by their Honours in this passage from Teoh has special relevance in the present case as, at the time of the enactment of the FSIA in 1985, Australia was still more than 25 years away from acceding to the Hague Service Convention, and there was no suggestion made in submissions that, as at 1985, entry into, or ratification of, the Convention was in contemplation.

43. [83]

    The Plaintiffs accepted that it is “trite law” that federal statutes should be interpreted in conformity with Australia’s international law obligations, subject to the statute evincing a contrary intention. They referred in this regard to Mason J’s observation in Yager v The Queen (1977) 139 CLR 28 at 43-44; [1977] HCA 10 (Yager) that:

44. [84]

    The significance and applicability of the presumption so heavily relied upon by the Republic and which was at the heart of its argument, being identified explicitly in oral submissions as providing the “framework” for the analysis that followed, was somewhat tenuous when the authorities relied upon are considered closely. For example, there is no ambiguity in ss 23 and 24 of the FSIA, either as to their terms or their relationship. They are plainly presented as alternatives in the FSIA and there is no hierarchy as to their operation: cf. Foreign Sovereign Immunities Act of 1976 at 28 USC §1608. As the Plaintiffs pointed out in submissions, the ALRC had this example before it but instead drafted ss 23 and 24 of the FSIA in their present form. The ALRC’s recommendation at [150] was that “there be only two methods allowed in the proposed legislation for service upon the foreign state itself, the diplomatic channel and any method to which the state has agreed.” Gageler J in Firebird treated ss 23 and 24 of the FSIA as providing alternative methods of service without suggesting the existence of any hierarchy between the two provisions: see at [138]-[140], [145], [148]. At [138], his Honour referred to the assumption underlying the structure of the FSIA, namely “that a foreign State will become a party to a proceeding only through service of initiating process on the foreign State in accordance with either of the methods of service for which provision is made in s 23 (which permits service by agreement) and s 24 (which permits service through the diplomatic channel)” (emphasis added).

45. [85]

    Nor should words be read into s 24(3) and (4) of the FSIA, which was the effect of the Republic’s contention: see [74] above. The “service” being referred to in those subsections is service for the purposes of the FSIA. Those subsections identify the circumstances where “service shall be taken to have been effected”: s 24(3), (6). The Republic’s contention involved an unnecessary qualification or modification of the clear language of s 24(3) and (4) ultimately driven by reliance on the terms of Article 1 of the Hague Service Convention. Such an approach to statutory construction is inconsistent with Yager.

46. [86]

    The Republic’s argument also had the temporal difficulty that the FSIA long predated Australia’s accession to the Hague Service Convention. The Republic endeavoured to overcome this obstacle by referring to the amendments made to the FSIA in 2022 (see [21]-[29] above) and submitting that the FSIA was “always speaking” (as to which, see P Herzfeld and T Prince, Interpretation (3rd ed, 2024, LawBook Co) at [2.30] and [2.80]). It may be accepted that s 23 of the FSIA is “always speaking” as that section expressly contemplates that future agreements may be entered into. It would be perverse, however, if the “always speaking” principle of statutory interpretation had the effect of rendering an entire and important provision of a statute such as s 24 of the FSIA inoperative in respect of serving States which are signatories of the Hague Service Convention. This, it seems to me, would be the consequence of the Republic’s argument in the present case as, on that argument and subject to the proper interpretation of Article 9(2), compliance with s 24 of the FSIA could not result in service consistent with the Hague Service Convention which envisages, in Article 5, that the Central Authority of the foreign state will itself serve the relevant document on the defendant.

47. [87]

    The Republic also relied upon the observations of Lord Lloyd-Jones in General Dynamics United Kingdom Ltd v State of Libya [2022] AC 318; [2021] UKSC 22 (General Dynamics), that:

48. [88]

    The essential thrust of these observations may be accepted but they do not, with respect, advance the analysis in the present case which essentially involves the construction of the FSIA and its interplay with the Hague Service Convention. Significantly, however, in a part of his judgment not referred to by the Republic, Lord Lloyd-Jones, after making extensive reference to the ALRC Report, went on to describe the method of service through the diplomatic channel (as reflected in s 12(1) of the State Immunity Act 1978 (UK)) as “a means of commencing proceedings which meets the requirements of international law and comity”: at [62]. Furthermore, “service through diplomatic channels has been traditionally regarded as according appropriate deference to the principle of sovereignty”: J Hamilton et al, New South Wales Civil Procedure Handbook 2005 (Lawbook Co, 15th ed, 2025) at 521.

49. [89]

    It is difficult, moreover, to construe service through diplomatic channels pursuant to s 24 of the FSIA as involving an impairment of comity, even where the state parties have also agreed to separate methods of service, in circumstances where additional explanations and translations are required to be provided to the putative foreign state defendant over and above provision of the relevant initiating process, as required by s 24(2). As earlier noted, the requirement to provide translations was described in the ALRC Report as a “courtesy”. The ALRC also noted at [151] that “[c]onsiderations of reciprocity make it desirable that translations be included where English is not an official language of the defendant state.” Further, s 27(2) of the FSIA provides an extended time period for the entry of an appearance by a foreign state. As the ALRC had observed at [151], “[i]t seems to be recognised that governments may need more time to respond to service of process than other defendants.”

50. [90]

    Further, it is difficult to understand how service through the diplomatic channel could be inconsistent with comity (and Lord Lloyd-Jones in General Dynamics certainly did not so regard it). Rather, it might be thought to be the epitome of comity, with service of process and other court documents being effected by a department of state upon its equivalent in the foreign state, superintended in the first instance by the Attorney-General of the first state.

51. [91]

    The Republic developed a complex argument that the requirement in s 24(2)(b) of the FSIA that the Initiating Process be accompanied by a statutory declaration of the Plaintiffs stating that the rules of court or other laws (if any) in respect of service outside the jurisdiction of the court concerned have been complied with picked up a reference to the Hague Service Convention and conditioned “the availability of service to be effected through the diplomatic channel for the purposes of the FSI Act on compliance with the conditions and limitations on the use of that channel as provided for by s 23 (read with the Hague Service Convention).” This contention involved construing s 23 as having incorporated the Hague Service Convention into domestic law with the consequence that s 23 “in such circumstances imposes obligations, limitations and requirements, as a matter of domestic law, in respect of service outside the jurisdiction, as provided for in the Hague Service Convention.” I disagree. Section 23 does not do that work or impose any relevant obligations or limitations. The section is facultative and provides one of two alternatives for service of process on a foreign state.

52. [92]

    The reference to “the rules of court or any other laws (if any) in respect of service outside the state” is to rules, such as those which exist in some state and federal jurisdictions, requiring the prior leave of the Court before any party (including a foreign sovereign state) may be served. An example is supplied by CC/DEVAS (Mauritius) v Republic of India [2021] FCA 975 in which Stewart J granted leave under r 10.43 of the Federal Court Rules 2011 (Cth) to serve the Republic of India outside the jurisdiction in accordance with s 24 of the FSIA. It may be noted that there was no suggestion in that case that service was required, by reason of s 23 of the FSIA, to be effected under the Hague Service Convention to which India had acceded in 2007.

53. [93]

    The Republic also submitted that:

54. [94]

    Nothing in the text of the FSIA supports this submission. Sections 23 and 24 are alternative modes of achieving service. The Anthony Hordern principle (see Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7; [1932] HCA 9) is one of statutory construction which involves the grant of a power the exercise of which is apparently authorised by separate statutory provisions, with the more broadly expressed power not being permitted to be used to outflank conditions imposed on the exercise of the power by a more specific provision. Sections 23 and 24 of the FSIA are, in my view, alternative facultative provisions to which the Anthony Hordern principle does not apply. They do not represent a case where the ambit of the restricted power is wholly within the ambit of the general power, or where “the statute in question confers only one power to take the relevant action”: see Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 at [59]. It is also very difficult to describe, as the Republic did, s 24 as providing a “general procedure”. It is both detailed and prescriptive.

55. [95]

    The Plaintiffs did not advance any argument that the Hague Service Convention was only concerned with service on private parties abroad and had no application where proceedings were brought directly against a foreign state: cf Unión Fenosa Gas S.A. v. Arab Republic of Egypt [2020] 1 WLR 4732; [2020] EWHC 1723 (Comm) at [79], [94].

56. [96]

    They did, however, contest the Republic’s claim that the Convention was the exclusive route for service on a foreign state, submitting that “Australian courts have not accepted that the Hague Service Convention provides for an exclusive mechanism for transmitting judicial documents abroad for service, but have permitted service to be made through other methods in cases involving the transmission of initiating process abroad in civil or commercial matters”, citing Australian Competition and Consumer Commission v Yellow Page Marketing BV [2010] FCA 1218; Rio Tinto Shared Services Pty Ltd v English Datasystems LLC (2021) 65 VR 25; [2021] VSC 660; Jabiru Satellite Ltd v Societe Generale [2021] VSC 544 at [44]-[46]; Deputy Commissioner of Taxation v Ranguta Limited [2022] FCA 1572 at [21]-[22], [26], [34]; Capral Ltd v DNV AS [2024] NSWSC 96 at [93]-[99]. In Caswell v Sony/ATV Music Publishing (Australia) Pty Ltd [2012] NSWSC 986 at [30], Hallen AsJ held that it was “clear that the Service Convention is facultative, not mandatory”. His Honour referred in this regard to Articles 8 and 10 of the Convention: see [40] above. Similarly, the Convention has not been treated as being “exclusive” in England: see, in particular, Maughan v Wilmot (No 2) [2017] EWCA Civ 1668; [2018] 1 WLR 2356 at [132] per Moylan LJ with whom Sales and Black LJJ agreed; Mid-East Sales Ltd v United Engineering and Trading Co (PVT) Ltd [2014] EWHC 1457 (Comm) where service was made through diplomatic channels: see at [31]. A similar observation may be made in respect of Canada: see Petersen Energía Inversora, S.A.U. v The Republic of Argentina, 2025 ONSC 3593 at [31]-[34], [37].

57. [97]

    The Republic relied upon Volkswagen Aktiengesellschaft v Schlunk, 486 US 694 (1988) in support of its contention that the Hague Service Convention supplied an exclusive mechanism for service of documents abroad. That was not a case in which the Court was concerned with service of process on a foreign state. Moreover, the Supreme Court made it plain in that decision at 705 that its interpretation of the Convention “makes recourse to the Convention's means of service dependent on the forum's internal law”. The Court went on immediately to note that “we do not think that this country, or any other country, will draft its internal laws deliberately so as to circumvent the Convention in cases in which it would be appropriate to transmit judicial documents for service abroad”. That observation may be correct but did not address a situation such as the present case where the relevant internal law, the FSIA, was enacted many years prior to Australia’s accession to the Hague Service Convention. The Court had earlier referred to the fact that “the negotiating history of the Convention also indicates that whether there is service abroad must be determined by reference to the law of the forum state”: at 701. Ultimately, of course, I am concerned with construing the FSIA and, for the reasons already advanced at some length, that Act provides alternative means of serving initiating process on a foreign state.

58. [98]

    The Convention does not use the language of exclusivity either generally or in relation to service on a foreign state. Its focus is not on the service of a foreign state at all, and many jurisdictions both before and after accession to the Hague Service Convention have made special legislative provision for service of process on a foreign state, as the ALRC Report made plain. I accept the Plaintiffs’ submission that:

59. [99]

    For the foregoing reasons, it was open to the Plaintiffs to effect service on the Republic through diplomatic channels in accordance with s 24 of the FSIA. The efficacy of that service is confirmed by the terms of the Section 40 Certificate.

60. [100]

    Even if, contrary to my view, the Convention is the exclusive means of service of and on a foreign state and the Republic’s argument as to the proper interpretation of s 24 of the FSIA were to be accepted, that is not determinative because the Convention preserves the ability to serve through the diplomatic channel in exceptional circumstances.

61. [101]

    In this respect, the Plaintiffs contended that service effected under s 24(1) of the FSIA through the diplomatic channel was not inconsistent with the Hague Service Convention and Australia’s obligations arising from its accession to it because Article 9(2) of the Convention preserved this avenue of service. This is the argument that was foreshadowed at [9] and [38] above, noting that the Republic accepted that service on a foreign state fell within the expression “exceptional circumstances” in the second sentence of Article 9.

62. [102]

    It is convenient to reproduce Article 9 again for the purposes of considering this argument in more detail:

63. [103]

    On its face and as a matter of ordinary grammar, the expression “for the same purpose” in the second sentence of Article 9 refers back to the purpose identified in the first sentence of Article 9, namely “for the purpose of service”. On this interpretation, the use of diplomatic channels for the purpose of service on a foreign state is permitted by the Convention and the Republic’s principal argument in relation to s 24 of the FSIA collapses, leaving it solely with its argument that the service via diplomatic channels under s 24 of the FSIA was defective for want of provision of a translation of the Initiating Process (an argument dealt with at [110]-[120] below.)

64. [104]

    The Republic challenged this interpretation of Article 9 however in the following written submission:

65. [105]

    This argument was strained and unattractive. It involved the contrived notion of a “use purpose” but the use of consular (or diplomatic) channels is not the purpose but the means of achieving the identified purpose, namely service of documents. Where the defendant in proceedings is a foreign state, service by or through diplomatic channels may be effected through delivery of the relevant judicial document to the foreign state’s Ministry of Foreign Affairs. Nothing more is required. An example of such service through the diplomatic channel is supplied by s 12(1) of the State Immunity Act 1978 (UK) as well as by s 24 of the FSIA. No further act is required for service to have been effected (such as the service by a foreign ministry on another organ of the State) unlike the very different situation where the defendant is a foreign national otherwise unconnected with the foreign state who would in turn be served by a designated central authority of the foreign state after documents had been transmitted to it for service on such a defendant.

66. [106]

    The Republic’s interpretation would lead to what the Plaintiffs described in their reply submissions as the “absurd result” that a State defendant to the proceedings which has been served through the diplomatic channel by delivery of documents to its foreign ministry is then required by the Convention to take steps for further acts of service upon itself. In this context, to the extent that both parties sought to point to “state practice” to assist their respective contentions, no sufficiently clear and consistent practice emerges, still less one which would trump the clear language and structure of ss 23 and 24 of the FSIA.

67. [107]

    Nor is it to the point that, as the Republic submitted, the functions of a diplomatic mission may include the performance of consular functions. Article 9 draws a contrast between the use of consular channels in a particular way which is spelt out in the first sentence of the article, on the one hand, and the use of diplomatic channels for the purpose of service, on the other hand. Were this differentiation not deliberate, the article could have simply been drafted by including the words “or diplomatic” after “consular” in the first sentence, and omitting the second sentence entirely.

68. [108]

    The Republic also suggested that the Plaintiffs’ interpretation of the second sentence of Article 9 in some way “permitted service to be effected by compulsion using the diplomatic channel” and drew a contrast with Article 8 which provides:

69. [109]

    It follows that, even if ss 23 and 24 of the FSIA should be construed as contended for by the Republic, no breach of Australia’s international obligations under the Hague Service Convention occurred by reason of the Plaintiffs’ service of the Initiating Process pursuant to s 24 of the FSIA. Such service through diplomatic channels was permitted by the second sentence of Article 9 of the Hague Service Convention.

70. [110]

    This leaves for consideration the Republic’s argument which was to the effect that, assuming that service pursuant to s 24 of the FSIA was not inconsistent with international law or Australia’s international obligations or international comity, service nevertheless was not valid because there was a defect in relation to the translation of the Initiating Process supplied with the documents transmitted to the Argentine MFA.

71. [111]

    The Republic’s argument in this respect was excessively technical. It arose from the fact that the document which the translator identified in his s 24(2)(c)(ii) certificate as that which he had translated was not the filed and stamped copy of the Initiating Process bearing a case number or a unique identifier but, rather, an unsigned and unstamped version of the Initiating Process. It was not suggested that there was any difference between the unsigned version of the Initiating Process and the actual Initiating Process other than the absence of a signature, stamp and file number. Further, the actual untranslated but stamped and signed version of the Initiating Process was included with the documents that were transmitted by the DFAT.

72. [112]

    The Plaintiffs’ response to this argument was essentially twofold. First, that the Section 40 Certificate was conclusive as to the fact that a translation of the Initiating Process had been provided, and that the Republic’s contention was a collateral attack on the certificate. Reliance was placed on s 40(5) of the FSIA which provides that “[a] certificate under this section is admissible as evidence of the facts and matters stated in it and is conclusive as to those facts and matters.” The Republic countered by referring to the recent decision of Raper J in Alramadi at [117] where her Honour held that:

73. [113]

    I have already expressed my preference for the views of Ashley J in Douglas to those of her Honour in Alramadi: see at [31]-[32] above. But even if I am wrong in that regard, reliance on this passage from Alramadi is no answer to the relevant factual matter that was certified, namely that a translation of the Initiating Process was delivered.

74. [114]

    Even if the Section 40 Certificate was not effective to foreclose the Republic’s argument in this regard (which is not the view that I take), the Plaintiffs also contended that the test for satisfying the requirements of s 24(2)(b) of the FSIA should be one of “substantial compliance”, and not “strict compliance”, and that they satisfied such a test. Reliance was placed upon the Full Federal Court’s decision in Harris v Attorney-General of The Commonwealth (1994) 52 FCR 386; (1994) 125 ALR 36 (Harris) in support of the test being one of “substantial compliance”.

75. [115]

    In Harris, the issue concerned the adequacy of supporting documents provided with a request for extradition pursuant to a bilateral extradition treaty between Australia and Argentina (the Extradition Treaty). Article 5(5) of the Extradition Treaty required the requesting country, Argentina, to provide specified documents with the extradition request: Harris at 392F-G. Certain documents, including English translations of the Argentine laws creating the offence, were absent: Harris at 405E-G. The Court held that “strict compliance” with the provision of documents pursuant to Article 5(5) of the Extradition Treaty was not required: Harris at 401C-D. Rather, the Court held at 401 that the test was one of “substantial compliance”:

76. [116]

    In Trimbole v Commonwealth (1984) 155 CLR 186 at 191-192; [1984] HCA 83, where the technical submission was put that a statutory provision required a requisition but the document relied upon in compliance with the statute was a request rather than a requisition, the High Court dismissed the argument with appropriate despatch, observing that “[i]t is doubtful whether this point would have been regarded as a good one in the more literalistic days of the eighteenth century, but it certainly is of no validity at the present time when the courts prefer substance to mere form. The document was clearly a requisition.”

77. [117]

    In my view, the translation was clearly a translation of the Initiating Process even though the translator had indicated that he had worked from an unsigned and unfiled copy of that Initiating Process. What was translated were the terms of the Initiating Process. The translation, moreover, fulfilled the purpose of s 24(2)(c)(i) of the FSIA, to facilitate an understanding of the nature of the case though a translation into the official language of the state served with that process. As the Plaintiffs submitted:

78. [118]

    As a matter of substance, there was no failure to comply with the requirement to provide a translation of the Initiating Process. Substantial compliance was adequate and very substantial compliance there was. Non-compliance with a statutory provision does not, in any event, necessarily render invalid an act done in purported compliance with the statute: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [93]; Awad v The Queen (2022) 275 CLR 421; [2022] HCA 36 at [18]; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [89]. In circumstances where the provision of a translation of the Initiating Process was by way of a “courtesy” (see [20], [89] above) and it is not submitted that there was any material departure from the language of the Initiating Process or that the purpose of the statutory requirement was thwarted, one would not attribute an intention to the legislature that trivial non-compliance would result in invalidity.

79. [119]

    The trivial nature of the non-compliance (if indeed there was non-compliance) in the present case may be contrasted with the non-compliance in Alramadi where the applicant had failed to obtain the leave of the Federal Circuit and Family Court of Australia (Division 2) (required under its rules) for service of any originating application out of the jurisdiction.

80. [120]

    The validity of the service of the Initiating Process was not compromised, in my view, by the matters raised by the Republic in relation to the translation of that process.

81. [121]

    There remains for consideration the Plaintiffs’ ultimate fallback argument which asserts an entitlement to default judgment pursuant to r 11A.11 of the UCPR because the Republic had not entered an appearance and the Argentine Central Authority had failed to return a certificate of service in circumstances where “every reasonable effort had been made” to obtain a certificate of service from the Argentine Central Authority or to effect service of the Initiating Process on it: UCPR r 11A.11(2).

82. [122]

    As the Republic pointed out in argument, implicit in the Plaintiffs’ reliance on r 11A.11 was that service had not been validly effected on it in accordance with the procedure established by pt 11A of the UCPR.

83. [123]

    It was in this context that the Republic made reference to s 27(1) of the FSIA and particularly the requirement that, before default judgment could be entered against it, service of the Initiating Process had to have been effected in accordance with the Act and the time for appearance must have expired. As such it was contended that the Plaintiffs could not obtain default judgment against the Republic through UCPR r 11A.11. In the context of the circumstances of the present case, I agree. It is therefore unnecessary to resolve the question as to whether the Plaintiffs’ attempts to serve the Republic in accordance with the procedure prescribed by the UCPR as set out at [51]-[73] above amounted to “every reasonable effort” within the meaning of UCPR r 11A.11(2).

Conclusion and orders

1. [124]

   The Republic’s application for an order pursuant to UCPR r 12.11(c) declaring that the Initiating Process has not been duly served on it should be dismissed with costs.

2. [125]

   The Republic submitted that, should the Court find (as it has) that service has been validly effected, then the parties should be directed to confer in relation to an appropriate timetable on the remaining issues raised by the notice of motion. Those issues include questions as to the Republic’s immunity to the jurisdiction of the Court in relation to the proceeding.

3. [126]

   Accordingly, I make the following orders:

   1. (1)

      The Defendant’s application for an order pursuant to r 12.11(c) of the UCPR declaring that the Initiating Process has not been duly served on it be dismissed with costs.

   2. (2)

      Direct the parties to confer in relation to an appropriate timetable on the remaining issues raised by the notice of motion dated 7 May 2025.

   3. (3)

      List the matter for further directions before the Commercial List Judge on 10 October 2025.