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

1. [1]

   WARD P: I agree with Mitchelmore JA.

2. [2]

   PAYNE JA: I agree with Mitchelmore JA.

3. [3]

   MITCHELMORE JA: In March 2024, the respondents initiated proceedings in the Supreme Court, seeking recognition and enforcement at common law of a judgment of the United States District Court for the Southern District of New York (District Court SDNY) against the applicant, the Argentine Republic (the Republic). By its judgment, handed down on 15 September 2023, the District Court SDNY ruled in favour of the respondents on a breach of contract claim against the Republic, and ordered the Republic to pay damages in the sum of US$16,099,788,293 plus post-judgment interest (SDNY judgment).

4. [4]

   In January 2025, the respondents purported to serve the Republic with the initiating process, pursuant to s 24 of the Foreign States Immunities Act 1985 (Cth) (the FSI Act). In May 2025, the Republic filed a notice of motion seeking a declaration that the initiating process was not duly served on it. The primary judge, Bell CJ, sitting as a single judge in the Equity Division, dismissed the Republic’s application: Petersen Energía Inversora, S.A.U. v Argentine Republic [2025] NSWSC 1071.

5. [5]

   The Republic has applied for leave to appeal from the primary judge’s decision, pursuant to s 101(2)(e) of the Supreme Court Act 1970 (NSW). The draft notice of appeal raises the following issues:

   1. (1)

      Is the method of service in s 24 of the FSI Act, properly construed, rendered inoperative in circumstances where Australia has acceded to a treaty which precludes service by that method (ground 1)?

   2. (2)

      Australia and the Republic are parties to the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Convention). By acceding to the Convention, has Australia promised the Republic that, where a judicial document is to be transmitted abroad for service in the Republic, Australia will only permit such service to be effected in accordance with the Convention (ground 2(a))?

   3. (3)

      Was service of the initiating process and accompanying documents on the Republic effected pursuant to Article 9 of the Convention, properly construed (ground 2(b) and (c))?

   4. (4)

      What is the legal effect of a certificate issued under s 40 of the FSI Act (ground 3)?

6. [6]

   At the hearing, senior counsel for the Republic submitted that the first issue was one of statutory construction that did not depend upon Australia’s ratification of the Convention, such that it could, but need not, depend on the answers to the second and third issues. Nonetheless, the first issue was premised on an assumption that Australia has been, is, or may become a party to, one or more treaties which preclude service by the mechanisms described in s 24 of the FSI Act. Whether the Convention was a treaty of that character was the subject of the second and third issues. The Republic accepted that it would need to succeed on both the second and third issues in order to succeed on the appeal.

7. [7]

   In relation to the fourth issue, the primary judge concluded that a certificate issued under s 40 of the FSI Act conclusively certified the legal efficacy of service pursuant to s 24 of that Act: at [99]. Accordingly, the Republic addressed this issue contingently, so that a conclusion on the first three issues in its favour would not result in a pyrrhic victory.

Developments after the hearing

1. [8]

   On 6 March 2026, this Court heard the Republic’s application for leave to appeal concurrently with the substantive appeal. The Court reserved its decision.

2. [9]

   On 27 March 2026, the United States Court of Appeals for the Second Circuit (the Second Circuit) handed down its opinion on the Republic’s appeal from the SDNY judgment (March 2026 judgment). Relevantly, the Second Circuit, by majority, reversed the District Court SDNY’s entry of judgment against the Republic on the breach of contract claim, concluding that it was not cognizable under the Republic’s civil codes and public law governing expropriation.

3. [10]

   Following a directions hearing before me on 21 April 2026, the respondents filed a notice of motion dated 24 April 2026, seeking leave to adduce, as additional evidence on the application for leave to appeal and any appeal, an affidavit of Andrew Edward Goldsmith sworn 23 April 2026, together with Exhibit AEG-1. Mr Goldsmith is a partner at the law firm of Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C, which is representing the respondents in matters before United States courts.

4. [11]

   In support of the application, the respondents relied on an affidavit sworn on 24 April 2026 by the respondents’ solicitor on the record, Crispian Paul Lynch. By way of grounds for receipt of the additional evidence, Mr Lynch referred to two aspects of Mr Goldsmith’s evidence as potentially bearing on the Court’s control over its own process, including as to the timing of delivery of any judgment on the Republic’s application for leave to appeal, and as to costs. The first was delivery of the March 2026 judgment. The second was certain processes in United States courts of which the respondents intend to avail themselves and which may result in the reinstatement of the SDNY judgment.

5. [12]

   In submissions on the respondents’ application dated 1 May 2026, the Republic submitted that the only evidence that the Court should receive was the March 2026 judgment and the formal order, the latter of which was annexed to an affidavit sworn on 1 May 2026 by the Republic’s solicitor on the record, Gitanjali Bajaj. The Republic submitted that those two documents clarified the position as to evidence that was adduced below and that formed part of the material presently before the Court. Nonetheless, it did not object to the Court receiving the balance of the contents of Mr Lynch’s affidavit, and the exhibited affidavit of Mr Goldsmith, for the limited purpose of considering case management and allocation of judicial resources. As the respondents submitted in their reply submissions dated 8 May 2026, those were the very matters that the respondents relied on in seeking leave to adduce the evidence. Given the purpose for which the additional evidence was sought to be adduced, I would grant the respondents’ application for leave to adduce it.

6. [13]

   The respondents have not applied to discontinue the underlying proceedings, service of the initiating process in which is the subject of the Republic’s application for leave to appeal. They do not presently intend to do so. As noted above, Mr Goldsmith refers to a number of procedural avenues that are available to the respondents. The first is filing a petition in the Second Circuit for rehearing, or rehearing en banc, the time for which was extended to 8 May 2026. The second is petitioning the United States Supreme Court to review the Second Circuit’s decision, whether by the March 2026 judgment or any reheard opinion and judgment. Mr Goldsmith indicated that the respondents intended to file a petition for rehearing or rehearing en banc by the 8 May deadline, and his instructions were that the respondents “currently intend to petition the United States Supreme Court, in the event that their petition for Second Circuit rehearing or rehearing en banc is unsuccessful”.

7. [14]

   Based on his experience, Mr Goldsmith’s best estimates of the next steps in the matters before United States courts (assuming no delay and no further extensions being granted to either side) were as follows:

8. [15]

   In the circumstances, the Republic has, understandably, not sought to withdraw its application for leave to appeal from the decision of the primary judge in relation to service. It did not oppose the Court proceeding to deliver judgment, although it submitted that in the unusual circumstances of the case, in which the respondents were taking time to explore avenues to obtain a foreign judgment, the Court “may have no need to prioritise delivery of judgment on service questions”.

9. [16]

   Both parties submitted that the issues raised on the application for leave to appeal were of significance beyond the parties. The matter has been heard, and it is appropriate to proceed to determine it in circumstances where: (i) the respondents have not yet exhausted the court processes in the United States, and (ii) questions of costs would remain even if those processes were to ultimately be exhausted adversely to the respondents.

Background to the Republic’s application

1. [17]

   The parties did not address the background to the primary judge’s decision in significant detail in their written or oral submissions. For the purposes of the issues on the appeal, it suffices to provide the following outline by reference to paragraphs in the reasons of the primary judge.

2. [18]

   On 7 March 2024, the respondents commenced the Supreme Court proceedings against the Republic to enforce the SDNY judgment, filing a commercial list summons and commercial list statement: at [41]. On 14 March 2024, the respondents’ legal representatives transmitted a formal request to the Commonwealth Attorney-General’s Department (AGD), pursuant to s 24 of the FSI Act, to procure the Department of Foreign Affairs and Trade (DFAT) to deliver the initiating process and certain other documents to the equivalent government department or organ of the Republic: at [42].

3. [19]

   By letter sent by email to the respondents’ legal representatives on 21 January 2025, AGD advised that on 6 January 2025, DFAT had hand-delivered the initiating process and other documents to the Argentine Ministry of Foreign Affairs, International Trade and Worship (Argentine MFA): at [48]. Enclosed with the letter was a certificate pursuant to s 40 of the FSI Act (s 40 certificate), issued by a delegate of the Minister for Foreign Affairs, which provided:

4. [20]

   On 26 February 2025, the Australian Government Solicitor sent a letter to the respondents’ legal representatives, advising that the Argentine MFA had returned the initiating process and accompanying documents on the basis that the documents had failed to cite the Convention or include the relevant form annexed to the Convention: at [49]. The respondents did not dispute those deficiencies but contended that the Republic’s rejection of service lacked any legal significance in ascertaining whether service had been validly effected through diplomatic channels for the purposes of s 24 of the FSI Act: at [50].

5. [21]

   On 31 July 2024, the respondents filed an application with the Registrar of the Supreme Court of New South Wales to effect service on the Republic in accordance with the Convention, providing the documents required by r 11A.4 of the Uniform Civil Procedure Rules 2005 (NSW): at [51]. The Republic led evidence in the court below that the Argentine Central Authority designated for the purposes of the Convention never received the documents from the Registrar of the Supreme Court and thus declined to issue any certificate under the Convention: at [5].

The key provisions of the FSI Act and the Convention

1. [22]

   The FSI Act was enacted in 1985. Part III of the FSI Act is titled “Service and judgments”. Section 23 provides:

2. [23]

   The term “initiating process” is defined in s 3 of the FSI Act to mean “an instrument (including a statement of claim, application, summons, writ, order or third party notice)” by which a proceeding is commenced or by reference to which a person becomes a party to a proceeding. An “agreement” is also defined in s 3 to mean “an agreement in writing”, including, in (a), “a treaty or other international agreement in writing”. It was common ground that the Convention is an “agreement” for the purposes of s 23: at [16].

3. [24]

   Section 24 of the FSI Act provides:

4. [25]

   Section 27(1) of the FSI Act precludes the entry of judgment or the making of orders for the registration of foreign judgments, or the recognition or enforcement of foreign awards, against a foreign State in default of appearance, unless:

5. [26]

   The Republic’s claim to immunity is not part of the proceedings in this Court, all other aspects of the respondents’ proceedings in the court below having been stayed pending resolution of the threshold issue of service.

6. [27]

   Section 40, which is in Part V of the FSI Act, is headed “Certificate as to foreign State etc.” and provides, in subsection (1):

7. [28]

   The Minister may delegate the power in s 40(1) by instrument in writing, and any exercise of the power by a delegate is deemed to have been exercised by the Minister: s 40(2) and s 40(3). Section 40(5) provides:

8. [29]

   Australia did not accede to the Convention until 15 March 2010, well after the enactment of the FSI Act in 1985: at [14]. The Preamble to the Convention states that its objects are “to create appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time”, and to simplify and expedite that procedure. Article 1 states that the Convention “shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad”.

9. [30]

   Article 2 of the Convention states that each contracting State is to designate a Central Authority to receive requests for service from other contracting States and to proceed in conformity with the provisions of Articles 3 to 6. By Article 3, the authority or judicial officer of the State in which the documents originate is to forward to the Central Authority of the destination State a request “conforming to the model annexed to the present Convention, without any requirement of legalisation or other equivalent formality”. The document to be served or a copy thereof is to be annexed to the request (Article 3). The Central Authority of the destination State is then to serve the document or arrange for its service by an appropriate agency (Article 5) and to complete a certificate in the form annexed to the Convention, confirming that the document has been served and including the method, place and date of service, and the person to whom it was delivered (Article 6).

10. [31]

    Article 8 relevantly provides that each contracting State “shall be free to effect service of judicial documents upon persons abroad … directly through its diplomatic or consular agents”, subject to a State declaring that it is opposed to such service within its territory. Article 9 of the Convention provides:

11. [32]

    The parties accepted that service on a foreign State is an “exceptional circumstance” for the purposes of the second sentence in Article 9, which both the parties and the primary judge referred to as Article 9(2): at [37].

12. [33]

    Article 10 states that unless the destination State objects, the Convention does not interfere with: (a) the freedom to send judicial documents by postal channels “directly to persons abroad”; (b) the freedom of judicial officers, officials or other competent persons of the forum State to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the destination State; and (c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the destination State. Difficulties which may arise in connection with the transmission of judicial documents for service “shall be settled through diplomatic channels” (Article 14).

The decision of the primary judge

1. [34]

   The primary judge described the argument for the Republic as framed “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”: at [74]. The Republic submitted that against that background, “service” in s 24(3) and s 24(4) of the FSI Act was properly construed as “service not contrary to [or not inconsistent with] international law”: at [74]. In circumstances where Australia and the Republic had acceded to the Convention, and the Convention provided the exclusive means for service of civil proceedings between two State parties, service of documents otherwise than in accordance with the Convention was not “service” within the meaning of those provisions: at [74]. It followed, the Republic submitted, that the service of the initiating process in and on the Republic purportedly pursuant to s 24 was not available or effective.

2. [35]

   In rejecting these submissions, the primary judge described the interpretative principle on which the Republic relied as becoming “somewhat tenuous” when the basis for it was closely considered: at [84]. His Honour identified three particular difficulties with its application:

   1. (1)

      There was no ambiguity in ss 23 and 24 of the FSI Act, either in their terms or their relationship, that called for the application of the interpretative principle. The two provisions “plainly presented as alternatives”, with no hierarchy as to their operation: at [84].

   2. (2)

      The “service” referred to in s 24(3) and s 24(4) was service for the purposes of the FSI Act. Those subsections identified the circumstances in which “service shall be taken to have been effected” for the purposes of s 24(5) and s 24(6). The Republic’s construction 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 [Convention]” in a manner that was inconsistent with the approach that Mason J adopted in Yager v The Queen (1977) 139 CLR 28 at 43-44; [1977] HCA 10 (“Yager”): at [85].

   3. (3)

      The FSI Act long predated Australia’s accession to the Convention. Although s 23 expressly contemplated that future agreements may be entered into, “it would be perverse … 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 [FSI Act] inoperative in respect of serving States which are signatories to the [Convention]”: at [86]. His Honour considered that this would be the consequence of the Republic’s argument that, pursuant to the proper construction of Article 9(2), compliance with s 24 of the FSI Act could not result in service consistent with the Convention: at [86].

3. [36]

   The primary judge accepted the essential thrust of observations made by Lord Lloyd-Jones in General Dynamics United Kingdom Ltd v State of Libya [2022] AC 318 (“General Dynamics”) at [43], to the effect that the exercise of jurisdiction by the courts of one State over another State is an act of sovereignty which calls for effecting service in a manner that accords with the requirements of international law and comity. However, his Honour also pointed to General Dynamics at [62], where Lord Lloyd-Jones described the method of service through diplomatic channels, reflected in s 12(1) of the State Immunity Act 1978 (UK) c 33, as a means of commencing proceedings which met those requirements: at [88]. The primary judge stated at [90]:

4. [37]

   The Republic submitted that Article 1 of the Convention indicates that the Convention supplies the exclusive mechanism for the service of documents abroad, relying on the decision of the United States Supreme Court in Volkswagen Aktiengesellschaft v Schlunk 486 US 694 (1988) (“Schlunk”): at [97]. The respondents, on the other hand, contended that the Convention was facultative, not mandatory, relying on a number of Australian, English and Canadian decisions which permitted use of other methods to effect service: at [96].

5. [38]

   In rejecting the Republic’s argument as to exclusivity, the primary judge distinguished Schlunk on the basis that the United States Supreme Court was not there concerned with service of process on a foreign State, nor was it concerned with the present circumstance in which the relevant internal law was enacted many years before accession to the Convention. Noting the United States Supreme Court’s earlier observation, in Schunk at 701, that the negotiating history of the Convention indicated that the question of whether there is service abroad “must be determined by reference to the law of the forum state”, his Honour emphasised that he was construing the FSI Act “and, for the reasons already advanced at some length, that Act provides alternative means of serving initiating process on a foreign state”: at [97].

6. [39]

   Further, his Honour concluded that the Convention did not use the language of exclusivity either generally or in relation to service on a foreign State, and indeed its focus was not on service of a foreign State. His Honour accepted the respondents’ submission that neither the Convention’s express terms, nor their necessary implication, prohibited contracting States from providing for other forms of service in their internal law, and the Convention did not purport to regulate the exercise of jurisdiction by national courts where service has been effected other than in accordance with the Convention: at [98]. It was open to the respondents to effect service on the Republic through diplomatic channels in accordance with s 24 of the FSI Act, the efficacy of which was confirmed by the s 40 certificate: at [99].

7. [40]

   The primary judge went on to conclude that even if the Convention was the exclusive means of service on a foreign State and the Republic’s argument as to the proper construction of s 24 was correct, Article 9 of the Convention preserved the ability to serve through diplomatic channels in exceptional circumstances: at [100]. In so concluding, his Honour accepted the respondents’ submission that the phrase “for the same purpose” in Article 9(2) referred to “the purpose of service” that was identified in the first sentence of the article: at [103]. His Honour stated that it followed that using diplomatic channels for the purpose of service on foreign States was permitted by the Convention, and nothing further was required: at [105].

8. [41]

   The primary judge rejected the Republic’s submission that “the same purpose” meant the purpose of using the channel to forward documents to the relevant recipient for the purposes of service. His Honour described that construction as strained and unattractive, involving the contrived notion of a “use purpose” when the use of diplomatic channels was the means of achieving the identified purpose of serving documents: at [105]. On the Republic’s construction, a State defendant to 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: at [106].

9. [42]

   To the extent that both parties sought to rely on “State practice” in support of their respective constructions, the primary judge concluded that no sufficiently clear and consistent practice emerged, still less one that would trump the clear language and structure of ss 23 and 24 of the FSI Act: at [106].

10. [43]

    The Republic submitted that, consistently with the observations of Raper J in Saudi Arabian Cultural Mission v Alramadi (2024) 305 FCR 581; [2024] FCA 1060 (“Alramadi”) at [117], a certificate issued by DFAT pursuant to s 40 of the FSI Act is limited to certifying the delivery of particular documents on a particular day, and is not capable of certifying that those documents were effectively or validly served: at [32]. The primary judge acknowledged the decision in Alramadi but preferred the earlier reasoning of Ashley J in Douglas v Republic of Nauru [2004] VSC 500; 187 FLR 221 at [19]-[21]. Ashley J there stated that “it would be nonsensical to read s. 40(1)(d) … to mean that the facts or matters of which a pertinent certificate could conclusively speak are limited to the date of service of documents … [s]uch an argument would leave open the critical question whether the initiating process was served in accordance with s. 24”. The primary judge concluded that a certificate issued pursuant to s 40 of the FSI Act could certify both the fact of the delivery of documents, and that such delivery effects service: at [31]-[32], [99].

Issue one: construction of s 24 of the FSI Act (ground 1)

1. [44]

   The Republic contended that the primary judge erred in concluding that s 24(3) and s 24(4) of the FSI Act operate to characterise as effective acts of purported service on and in a foreign State that are inconsistent with international law obligations owed by Australia, whether those obligations are assumed before or after the FSI Act commenced. The Republic accepted the correctness of the primary judge’s conclusion that the “service” referred to in s 24(3) and s 24(4) is “service for the purposes of the FSI Act”. However, it submitted that the primary judge did not engage with the further and necessary step of determining what “service for the purposes of the FSI Act” means.

2. [45]

   The Republic submitted that where there is a treaty that expressly permits, or does not otherwise preclude, the method of service provided for in s 24, ss 23 and 24 can operate without difficulty. The scenario that the Republic was principally concerned with was when there is a treaty that precludes the method of service for which s 24 makes provision, either expressly or by implication. It submitted that there is “textual silence” as to whether s 24 applies in that circumstance. In light of the general purpose of the Act, and the particular statutory context, the Republic submitted that the word “service” in s 24(3) and s 24(4) of the FSI Act did not operate to deem as effective acts of service on a foreign State that would, if characterised as valid service, be inconsistent with international law obligations owed by Australia.

3. [46]

   In construing “service” in these subsections, the Republic emphasised the interpretative principle that the High Court summarised in Kingdom of Spain v Infrastructure Services Luxembourg sàrl (2023) 275 CLR 292; [2023] HCA 11 (“Kingdom of Spain”) at [16] (footnotes omitted):

4. [47]

   The Republic submitted that this formulation was broader than the authorities on which the primary judge relied. Having regard to the authorities that the High Court cited, including those relied upon by the primary judge, I do not accept the submission at that level of generality. I do accept that the authorities involve some nuance and require careful attention, as the primary judge gave them.

5. [48]

   The description of the principle in the first sentence of [16] in Kingdom of Spain as one of “long standing” appeared in the reasons of McHugh J in Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 (“Al-Kateb”) at [63], to which I will return. The authorities cited in Kingdom of Spain in support of the content of the principle went back to Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309; [1908] HCA 95 (“Jumbunna”), in which O’Connor J stated at 363 that “every Statute is to be so interpreted and applied as far as its language admits as not to be inconsistent with the comity of nations or with the established rules of international law”. This principle, for which O’Connor J referenced P B Maxwell’s On the interpretation of statutes (3rd ed, 1896, Sweet & Maxwell) at 200, was repeated in substantially similar terms in Polites v The Commonwealth (1945) 70 CLR 60; [1945] HCA 3 (“Polites”), by Latham CJ at 68 (referencing P B Maxwell, On the interpretation of statutes (8th ed, 1937, Sweet & Maxwell) at 130), Dixon J at 77, McTiernan J at 79 and Williams J at 80-81.

6. [49]

   In Polites, however, Latham CJ also observed that “all the authorities in English law also recognise that courts are bound by the statute law of their country, even if that law should violate a rule of international law”: at 69. Subject to the availability of a head of legislative power, the Commonwealth Parliament could legislate in breach of international law, taking the risk of what his Honour described as “international complications”: at 69. Acknowledging that “every effort should be made to construe Commonwealth statutes so as to avoid breaches of international law and of international comity”, his Honour stated that “legislation otherwise within the power of the Commonwealth Parliament does not become invalid because it conflicts with a rule of international law”: at 69; see also at 79 (McTiernan J) and 81-82 (Williams J).

7. [50]

   In the passage of McHugh J’s reasons in Al-Kateb that the Court cited in Kingdom of Spain at [16], his Honour was addressing an argument that the principle of statutory construction that was considered in Jumbunna and Polites applied when construing the Constitution. His Honour stated at [63]:

8. [51]

   Justice McHugh went on to observe that despite his misgivings about the principle, it was too well established to be repealed by judicial decision, referring to its reaffirmation in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20 (“Teoh”), and in the reasons of Gummow and Hayne JJ in Kartinyeri v The Commonwealth (1998) 195 CLR 337; [1998] HCA 22: Al-Kateb at [65]. In Teoh at 287, which the Court also cited in Kingdom of Spain at [16], Mason CJ and Deane J stated (footnotes omitted):

9. [52]

   The primary judge noted that the Republic had referenced the second paragraph of the above extract from Teoh in its submissions to his Honour without also referring to the first paragraph: at [81]-[82]. The two paragraphs need to be read together, and in the context of the issue that their Honours were considering, namely, the status of an international treaty that Australia had ratified but not incorporated into domestic law by statute. In the first paragraph, their Honours identified one circumstance in which the ratification of a treaty had significance for Australian law, namely, where a statute or subordinate legislation was “ambiguous”. In that instance, the courts “should” favour a construction which accords with Australia’s obligations under a treaty or international convention, at least when legislation “is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument”.

10. [53]

    In the second paragraph, their Honours referred to the general principle of construction in Jumbunna and Polites. Noting that it was formulated by reference to “established rules of international law”, their Honours considered that it lent support to restating the first paragraph as a principle of construction by reference to “Australia’s international obligations”, which would include obligations imposed by an international instrument. The principle would apply where the language of the legislation was susceptible to a construction that was consistent with the terms of the international instrument. Although their Honours did not repeat the qualification at the end of the first paragraph about the significance of international instruments when construing legislation enacted after, or in contemplation of, entry into or ratification of an international instrument, it remained implicit in their Honours’ formulation of the principle in the second paragraph.

11. [54]

    There was some force in the Republic’s criticism of the emphasis that the primary judge gave to “established rules of international law” at [78], given what Mason CJ and Deane J said in Teoh about the role of international obligations sourced in conventions and treaties in construing legislation. To the extent that it was necessary to identify a relevant rule of international law at the time s 24 was enacted, the Republic relied on the principle of pacta sunt servanda, which requires that agreements which are legally binding be performed. Ultimately, however, his Honour did not decide the case on the basis that the principle of construction was not available because there was no established rule of international law in play at the time s 24 was enacted. Instead, what was critical to his Honour’s decision was the terms of, and relationship between, ss 23 and 24, as well as the timing of their enactment well before Australia’s accession to the Convention.

12. [55]

    As to the latter, the Republic submitted that Mason CJ and Deane J in Teoh made it clear, by including the words “at least”, that the potential application of the principle was not confined to circumstances in which legislation was enacted after, or in contemplation of, a relevant international instrument. However, as the respondents submitted and the primary judge accepted, their Honours were indicating that the principle would be of particular relevance in those circumstances. The FSI Act was not enacted in such circumstances; as the primary judge observed at [82], Australia was more than 25 years away from acceding to the Convention when the FSI Act was enacted, with no suggestion that acceding was in contemplation.

13. [56]

    In Yager, Mason J referred with approval to a passage in the reasons of Diplock LJ in Salomon v Commissioners of Customs and Excise [1967] 2 QB 116 (“Salomon”) that was to similar effect to the passage in Teoh at 287. In Salomon, Diplock LJ stated that where legislation was enacted in consequence or anticipation of a treaty coming into effect to which the United Kingdom was a party (at 143-144):

14. [57]

    The issue in Yager was whether plant material that the applicant admitted she imported was a “prohibited import” within the meaning of s 233B(1)(b) or s 233B(1)(c) of the Customs Act 1901 (Cth). One of her arguments was that despite the definition of “Cannabis plant” in s 4 of the Customs Act as “a plant of the genus Cannabis sativa”, the term was directed to the species cannabis sativa, rather than the genus. In support of this argument, the applicant relied on the International Code of Botanical Nomenclature, which stated that it was not proper to describe a genus by two words unless joined by a hyphen: at 35. Mason J cited the passage from Salomon as authority for the general proposition that there was no basis on which the provisions of an international convention “can control or influence the meaning of words or expressions used in a statute, unless it appears that the statute was intended to give effect to the convention”, in which event it was legitimate to resort to the convention to resolve an ambiguity in the statute: at 43-44. There was, in his Honour’s view, still less basis to resort to an international convention for the purpose of qualifying or modifying an express definition in a statute: at 44.

15. [58]

    As Yager predated the decision in Teoh, there is something to be said for reading Mason J’s observations in Yager subject to what his Honour said in Teoh against invoking a narrow conception of ambiguity. Even in Teoh, however, the qualification of the principle as applying “as far as the language of the legislation permits” made clear that there will be cases in which the text of the relevant statute is not susceptible to such a construction. A similar qualification appears in the statement of the principle in [16] of Kingdom of Spain, “so far as possible”. Yager was one such case, with the relevant statutory provision being a clearly defined term that was not susceptible to being construed consistently with the international agreement relied upon. The present case involves another such provision, proceeding for present purposes on the underlying assumption that there is a preclusive rule of international law with which s 24 of the FSI Act is inconsistent.

16. [59]

    It is well-settled that the construction of a statutory provision “begins and ends with the statutory text understood in context and in light of the statutory purpose – being what the provision is designed to achieve in fact – in so far as that purpose is discernible from the statutory text and context” (footnotes omitted): Palmanova Pty Ltd v The Commonwealth [2025] HCA 35; 99 ALJR 1362 (“Palmanova”) at [4]. Context is used “in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means … one may discern the statute was intended to remedy”: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2. Understanding context, including so much as might be revealed by extrinsic material, “has utility if, and in so far as, it assists in fixing the meaning of the statutory text”: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39]; [2012] HCA 55, quoted in Palmanova at [6].

17. [60]

    As the primary judge observed at [13], by reference to his Honour’s earlier judgment in Greylag Goose Leasing 1410 Designated Activity Company v PT Garuda Indonesia Ltd (2023) 111 NSWLR 550; [2023] NSWCA 134 at [19], the FSI Act was the direct product of the 1984 report of the Australian Law Reform Commission (ALRC), titled Foreign State Immunity (Report No. 24) (ALRC Report). In Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31; [2015] HCA 43 (“Firebird”), Nettle and Gordon JJ described the ALRC Report as significant “because, although it cannot displace the clear meaning of the [FSI Act], it assists in ascertaining the legislative context and purpose and the particular mischief that the legislation is seeking to remedy”: at [173].

18. [61]

    Among other things, the ALRC reviewed overseas models for service on and by foreign States. At that time, the range of possible methods included (ALRC Report at [147]):

19. [62]

    As to the first of those possible methods, the ALRC stated that any proposal for reform must make provision for service through the forum State’s foreign ministry, as “the only method of service which can be said with some certainty to be workable without the prior agreement of the foreign state”: at [148]. That method, for which all overseas legislation to which the ALRC referred had provided, was guaranteed to bring the suite of documents to the attention of senior officials of the foreign State, “fulfilling the criterion that service must give the state adequate notice”, while also being the “least likely to cause offence to recipients”: at [148]. Rather than prescribe a particular method of transmission, the ALRC considered that the legislation needed to be sufficiently flexible “to allow service by the Department upon the foreign mission in Australia, upon a mission of a third state looking after the interests of the defendant in Australia, or by the Australian mission in the foreign state on its Foreign Ministry, as appropriate in the particular case”: at [148].

20. [63]

    In relation to the second possible method, the ALRC referred to s 12(6) of the UK State Immunity Act, which allowed for service on a foreign State “in any manner to which the State has agreed”, and to the existence of similar provisions in recent legislation of the United States, Canada, Pakistan, Singapore and South Africa. The ALRC stated (at [149]):

21. [64]

    In recommending against the third and fourth possible methods, the ALRC observed that the principal objection was that any methods to which a foreign State has not agreed may cause offence, and allowing such methods to form the basis for default judgment may be unacceptable. For a defendant State that was prepared to be accommodating on the procedural aspects, no further methods were necessary, whereas “[f]or a state prepared to stand on its rights there are no further methods which Australia could insist on applying against all states”: at [150]. Accordingly, the ALRC recommended “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”: at [150].

22. [65]

    Under the heading “Related Documentary and Other Requirements for Service”, the ALRC stated (at [151]):

23. [66]

    The ancillary requirements that the ALRC identified included: (i) all service to be service outside of the jurisdiction; (ii) allowing a period of two months before the normal time limits specified in the rules of court begin to run; (iii) requiring translations be provided where English is not an official language of the defendant State; and (at [151]):

24. [67]

    Sections 23 and 24 of the FSI Act respectively provide for the two methods of service that the ALRC recommended, in terms which are identical to those of the draft bill that was annexed to the ALRC Report. As Gageler J stated in Firebird at [138], in a passage that the primary judge extracted at [84], underlying the FSI Act is the assumption 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”. No other methods of service are permitted. Indeed, in relation to service in Australia, s 25 provides that “[p]urported service of an initiating process upon a foreign State in Australia otherwise than as allowed or provided for by section 23 or 24 is ineffective”.

25. [68]

    Although Firebird was not directly concerned with the construction of ss 23 and 24, Gageler J’s description (at [138]-[139]) of the structure of these provisions as providing alternative, not consecutive methods, was consistent with the respondents’ construction of the provisions as reflecting a deliberate choice to have no hierarchy as between them. The provisions may be contrasted in this respect with s 1608 of the Foreign Sovereign Immunities Act of 1976 at 28 USC, which the ALRC described in its Report as arranging the methods “in a hierarchy so that the more cumbersome methods are only available where the simpler ones have failed”: at [147].

26. [69]

    Where there is an agreement to which the foreign State to be served is a party, by which it has agreed to be served in accordance with a particular method, s 23 provides that service of initiating process “may be effected” by means of the agreed method. No further detail as to method is provided, consistently with the ALRC’s observation in [151] of the ALRC Report that whatever method the foreign State has agreed “will be followed” (see [65] above).

27. [70]

    By contrast, where the diplomatic channel is to be used, and initiating process is to be delivered to the Attorney-General “for transmission” by DFAT to the equivalent department or organ of the foreign State, s 24 makes further provision as to the method. Thus, s 24 prescribes:

    1. (1)

       the necessary accompanying documents (s 24(2));

    2. (2)

       when “service shall be taken to have been effected”, namely, when the initiating process and accompanying documents are delivered, either to the equivalent department or organ (s 24(3)), or to some other person on behalf of or with the authority of the foreign State (s 24(4));

    3. (3)

       where “[s]ervice of initiating process under this section shall be taken to have been effected”, namely, “outside the jurisdiction and in the foreign State concerned, wherever the service is actually effected” (s 24(6)); and

    4. (4)

       when time for entering an appearance begins to run, namely, “at the expiration of 2 months after the date on which service of the initiating process was effected” (s 24(7)).

28. [71]

    Section 24(3) and s 24(4) prescribe the point in time that the method of service for which s 24 makes provision takes effect, by reference to a particular act, namely, delivery of the initiating process and accompanying documents to one of the two classes of recipient. It is service being “taken to have been effected” upon delivery that triggers the period within which a foreign State must enter an appearance, being “the expiration of 2 months after the date on which service of the initiating process was effected” (s 24(7), emphasis added). The significance of time running for a foreign State to enter an appearance lies in s 27(1), which I have summarised at [25] above.

29. [72]

    The Republic submitted that it did not follow from the terms of ss 23 and 24 that both methods of service had to be available in respect of all States. Although it eschewed reliance on the argument it advanced below in support of a hierarchy as between ss 23 and 24, the Republic submitted that “[t]he fact that s 23 has an ambulatory operation that changes as agreements are entered into with different destination States has consequences for the interrelationship between, and therefore respective scopes of operation of, ss 23 and 24”. Ambiguity was said to arise not on the terms of s 24 per se, but in its operation, when the method of service for which it provides is precluded by a treaty to which a foreign State has agreed. In that scenario, the Republic submitted, “the treaty (through s 23) has a specific operation addressing the particular method under s 24”.

30. [73]

    The point of the exercise, the Republic submitted, was to avoid disconformity between preclusive rules of international law and the FSI Act, which was clearly drafted with a view to complying with international law. That end could be achieved by construing “service” in s 24(3) and s 24(4) as limited to service that is not precluded by a preclusive rule of international law. The Republic submitted that contrary to the primary judge’s reasons at [85], this did not require reading words into s 24, but rather reflected the proper understanding of the stable operation of the section, being that it simply will not operate to characterise acts as effective service if to do so would be inconsistent with any treaty obligation owed by Australia. By contrast, the Republic submitted, the construction adopted by the primary judge would result in “the general words of s 24 outflanking the treaty obligations the subject of s 23, by reference to which Pt III [of the FSI Act] therefore operates” (emphasis added). In the Republic’s submission, it was also productive of a perverse result in so far as it involved inconsistency with the destination State’s internal law.

31. [74]

    It does not follow from the existence of an agreement, by which a foreign State agrees to a method of service, that Pt III of the FSI Act “therefore operates” by reference to that agreement “through s 23”. True it is that the ALRC stated in its Report at [151] that where a foreign State agrees upon a method, that method “will be followed”. Read in context, however, with the heading that precedes it and the sentence that follows it, the focus of that observation was the level of specificity at which the method of service needed to be stated in s 23 (and s 24). In circumstances where a foreign State has agreed to a method, it was sufficient for the purposes of s 23 to provide that service may be effected by that method.

32. [75]

    By contrast, s 24 sets out a method of service, the clear intention of which was that, by that method, service could be effected on a foreign State in a manner consistent with international law. The method was recommended by the ALRC precisely because it was an internationally recognised and generally accepted means of serving a foreign State that would not cause offence. As described in the Explanatory Memorandum to the Foreign States Immunities Bill 1985 (Cth), it was the “basic method of service on a foreign State”: at 16. Contrary to the premise for much of the Republic’s argument, s 24 was not formulated with a view to achieving general consistency with international law as it might develop over time, including by reference to agreements that might engage s 23.

33. [76]

    The Republic submitted that the construction for which it contended did not involve reading words into s 24(3) and s 24(4). If the Republic did not seek to read words in, it placed an undue emphasis on the word “service” in those subsections which it was not intended to and does not bear. As I have outlined above, considering s 24 as a whole, subss (3) and (4) do no more than give effect to the method of service in subss (1) and (2), and thereby trigger the time within which the foreign State needs to enter an appearance so as to avoid default judgment in s 27(1).

34. [77]

    The context in which ss 23 and 24 were enacted confirms the correctness of the above construction and tells against the Republic’s submission that the ambulatory operation of s 23 was intended to impact on the operation of s 24. As the primary judge observed at [86], even accepting that s 23 is “always speaking” in so far as it contemplated future entry into agreements, it would be perverse for the “always speaking” principle of statutory interpretation effectively to render an important provision such as s 24 inoperative in certain circumstances.

35. [78]

    The Republic’s reliance on amendments made to the FSI Act in 2022 as representing a recently expressed legislative intention that the Act should operate consistently with developing international law, also did not directly assist it. The amendments made pursuant to the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Act 2022 (Cth), which amended the definition of “initiating process” in s 3(1), inserted s 26A, and amended certain language in ss 27 and 28, certainly reflected an intention to clarify the application of the FSI Act in terms of the procedural immunities afforded to foreign States, particularly in ex parte proceedings, in light of the decision in Firebird. However, as the respondents submitted, the amendments did not alter the scope and operation of ss 23 and 24 of the FSI Act. The only relevant amendment was to s 27 and provided only that default judgment could be sought following service “in accordance with” the FSI Act.

36. [79]

    The primary judge was correct at [84] to describe the significance and applicability of the principle of statutory construction on which the Republic placed so much reliance as somewhat tenuous in the present case. The Republic sought to generate ambiguity in what it described as the unattractiveness of an outcome whereby a statute which is intended to be capable of ambulatory operation in having regard to developments in treaty practice (made explicit by s 23), and is otherwise silent on any intention to operate inconsistently with international law, is held to operate to permit service contrary to Australia’s treaty commitments. Contrary to the Republic’s submission, however, s 24 is not properly construed as making no provision for the circumstances that arise in the present case. Rather, as the respondents submitted, the section was intended to provide a method of service that is effective when its terms are complied with. To the extent that this results in an inconsistency with Australia’s international obligations, courts are bound by the statute law of their country, even if that law should violate a rule of international law: Polites at 69, per Latham CJ. I reject ground 1.

Issues two and three: construction of the Convention (ground 2)

1. [80]

   It follows from my conclusion on ground 1 that even if the Convention were to preclude service in accordance with s 24 of the FSI Act, on its proper construction, the method of service for which the section provides remains effective for the purpose of proceedings in this Court. Accordingly, consideration of the Republic’s proposed ground 2, the focus of which is whether the Convention precludes that method of service, is not determinative of the appeal.

2. [81]

   As I noted above, there were two issues raised by ground 2, both of which the Republic would need to succeed upon in order to make out the ground. The focus of the first limb was the Convention generally, and whether it is exclusive in its provision of methods by which service may be effected in and on a contracting State (ground 2(a)). The focus of the second limb was Article 9(2) of the Convention, and whether its terms permit service by delivery of documents when such delivery is insufficient to effect service under the local law of a destination State (ground 2(b)). It is logical to start with the specific mode of service contemplated in Article 9(2): if service in the manner that occurred in the present case is permissible under that article, whether or not the Convention is properly characterised as exclusive is immaterial.

3. [82]

   It is convenient to reproduce Article 9:

4. [83]

   The primary judge first considered the terms of Article 9. Doing so was consistent with Article 31(1) of the Vienna Convention on the Law of Treaties 1969 (VCLT), pursuant to which a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in context and in light of its object and purpose: at [103]. His Honour considered that, as a matter of ordinary grammar, the expression “for the same purpose” in Article 9(2) referred back to the purpose identified in the first sentence of Article 9, namely, “for the purpose of service”. It followed, his Honour concluded, that “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 [FSI Act] collapses”: at [103].

5. [84]

   The primary judge’s construction as a matter of ordinary grammar is compelling. The first sentence of Article 9, referred to by the parties as Article 9(1), first uses the word “purpose” in combination with “service”. Its second use of the word, in the context of “for this purpose”, also refers back to the “purpose of service”. Read in context with Article 9(1), when Article 9(2) refers to “the same purpose” it is plainly referring back to that purpose to which Article 9(1) refers, namely, the “purpose of service”.

6. [85]

   The Republic submitted that his Honour should have construed the words “for the same purpose” in Article 9(2) as referring to the purpose of “forward[ing] documents, for the purpose of service”, such that, once delivered, the documents fall to be served in accordance with the law of the destination State. As a matter of context, the Republic relied on the distinction between the language of direct service in Article 8 and the language of indirect service in Article 9.

7. [86]

   By reference to Articles 31(3) and 32 of the VCLT, the Republic submitted that the construction for which it contended was supported by the Practical Handbook on the Operation of the Service Convention (Handbook). Article 31(3) of the VCLT provides that any subsequent agreement between the parties regarding the interpretation of a treaty, or any subsequent practice establishing the agreement of the parties as to its interpretation, is to be taken into account. Article 32 provides that recourse may be had to supplementary means of interpretation in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning where that application results in ambiguity or absurdity. The Republic submitted that the Handbook contemplated that use of the diplomatic channel involved transmission for onward service. The fifth edition of the Handbook, for example, stated at [373] that “… the document would be transmitted by the Ministry of Foreign Affairs in the State of origin … to the State of destination for forwarding to the appropriate authorities … for the purpose of service on the addressee”.

8. [87]

   It is certainly the case that Article 8 uses more direct language than Article 9. The language of Article 8 is consistent with the purpose of the article, providing for each contracting State “to effect service of judicial documents upon persons abroad, without application of any compulsion, directly through its diplomatic or consular agents” (emphasis added). In other words, the contracting State can use its own diplomatic agents in a foreign State to effect service on persons abroad, provided there is no compulsion and unless the foreign State objects (which the Republic has). By contrast, service pursuant to Article 9 is indirect in the sense that it makes provision for service through consular and diplomatic channels.

9. [88]

   As to consular channels, Article 9(1) permits a contracting State to use those channels “to forward documents, for the purpose of service, to those authorities of another contracting State which are designated by the latter for this purpose”. Article 21 provides that each contracting State is to inform the Ministry of Foreign Affairs of the Netherlands of, inter alia, “the designation of the authority competent to receive documents transmitted by consular channels, pursuant to Article 9” (emphasis added). No equivalent provision is made in Article 21 for contracting States to stipulate a competent authority to which Article 9(2) permits transmission by way of the diplomatic channel. The lack of such a provision supports the construction that the primary judge adopted and is consistent with the contemplated use of the diplomatic channel in exceptional circumstances only.

10. [89]

    As the respondents submitted, there are two circumstances which have been considered to be “exceptional” and in respect of which Article 9(2) allows for service via the diplomatic channel: (i) where the defendant is a State (as here); and (ii) where circumstances such as a war or pandemic have interrupted the ordinary modes of communication between private parties. In the latter circumstance, onward service would be required to ensure, in keeping with the purpose of the Convention, that the person who is the party to the proceedings has knowledge of the proceedings. Where, however, the party to be served is the State itself, there is force in the primary judge’s observation that it becomes absurd to require an additional step of service as a matter of conventional law: at [106].

11. [90]

    The Republic was critical of the primary judge’s finding of absurdity. Its criticism rested on the basis that in civil law systems, like the Republic’s, service is effected through judicial authorities (including in cases involving service of the State itself). The Republic submitted that in labelling this requirement as absurd, his Honour was reflecting a common law perspective. Be that as it may, what is critical for present purposes is that Article 9(2) both contemplates and permits use of the diplomatic channel for the purpose of service in exceptional circumstances, which include service on a State.

12. [91]

    The Republic submitted that the Convention demonstrated an intention to have respect for the internal law of a destination State, referring to a number of articles which, variously: (i) operate by reference to the internal laws of contracting States (Articles 5(1), 9(1), 15(1)(a) and 19); (ii) make available further channels of transmission where agreed by contracting States (Articles 11, 24 and 25); (iii) permit a destination State to “refuse to comply” with a request for service on the basis that compliance would infringe its sovereignty or security (Article 13); and (iv) limit the availability of certain channels of transmission to occasions where the destination State does not object (Articles 8 and 10). Considered in that context, the Republic submitted that its construction of “purpose” in Article 9(2) was not absurd but was instead consistent with a central object of the Convention. However, as the respondents submitted, Article 9 makes no explicit reference to the national laws of the destination State. Similarly, and again consistently with its limited operation in exceptional circumstances, Article 9 is not drafted as being subject to objection or refusal to comply, as is the case with Articles 8, 10 and 13, indicating that there is no further step by way of “compliance” for the purposes of the Convention (that is capable of being refused).

13. [92]

    It follows that the primary judge was correct to conclude that service effected in the manner provided by s 24 of the FSI Act is not inconsistent with the Convention. Accordingly, the Republic has not been successful on ground 2(b) and, it follows, on ground 2(c). As the Republic would need to succeed on both of the issues raised by ground 2 in order to make out the ground, ground 2(a) is unnecessary to determine. Having considered the obligation of this Court (see Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [8]), it is undesirable to attempt to resolve the issue about the exclusivity of the Convention. I reject ground 2.

Issue four: legal effect of a certificate issued pursuant to s 40 of the FSI Act (ground 3)

1. [93]

   Senior counsel for the Republic identified that the discrete purpose of ground 3 was to avoid a situation where, if the Republic were to succeed on grounds 1 and 2, the primary judge’s finding at [99] of his Honour’s reasons that the s 40 certificate was sufficient to render service effective, would become determinative. As the Republic has not succeeded on either of those grounds, it is also unnecessary to determine this ground, and I may state my conclusion on it briefly.

2. [94]

   The primary judge’s conclusion that a certificate issued under s 40 of the FSI Act is conclusive of the legal issue of whether service was validly effected pursuant to s 24 of that Act was consistent with the terms of s 40(1)(d), when read with s 40(5). Section 40(1)(d) expressly permits the Minister for Foreign Affairs to certify that “service of a specified document as mentioned in section 24 … was effected on a specified day” (emphasis added). That permission is consistent with the purpose of s 40 as described in the ALRC Report (see [66] above). In any event, if Raper J’s more limited construction of s 40(1)(d) of the FSI Act in Alramadi were adopted, it is difficult to see that it would make any practical difference, having regard to the deeming provisions in s 24(3) and s 24(4), pursuant to which service is taken to be effected upon delivery.

Conclusion

1. [95]

   The application for leave to appeal involved matters of construction of statute and the Convention that were of significance and were more than reasonably arguable. I would grant leave to appeal. However, the appeal should be dismissed.

2. [96]

   Given the circumstances, it is appropriate to allow the parties an opportunity to make submissions in relation to costs with the benefit of these reasons, with a view to the Court determining that issue on the papers.

3. [97]

   Accordingly, I propose the following orders:

   1. (1)

      The respondents have leave to adduce additional evidence on the application for leave to appeal, comprising the affidavit of Crispian Paul Lynch sworn 24 April 2026 and Exhibit “CPL-5”.

   2. (2)

      Leave to appeal is granted.

   3. (3)

      The appellant is to file its notice of appeal within 7 days.

   4. (4)

      The appeal is dismissed.

   5. (5)

      The appellant is to file and serve submissions as to costs, of no more than four pages, by 4pm on 29 May 2026.

   6. (6)

      The respondents are to file and serve submissions as to costs, of no more than four pages, by 4pm on 5 June 2026.

   7. (7)

      The appellant is to file and serve any submissions in reply as to costs, of no more than two pages, by 4pm on 12 June 2026.

   8. (8)

      The issue of costs will be determined on the papers.