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[2026] NSWCA 96
respondent. Leave to appeal was granted and the appeal was dismissed. The respondents were granted leave to adduce the identified additional evidence. The parties were directed to file costs submissions on...
The Court of Appeal held that the statutory diplomatic-channel method for serving a foreign State remained effective under Australian law when its requirements were met. It also held that Article 9(2) of the Hague Service Convention permits diplomatic-channel service in exceptional circumstances, including service on a State. Because the Republic's arguments did not succeed, the Court did not need to decide whether the Convention generally provides an exclusive system for service abroad or finally determine the effect of the statutory certificate. The appeal was dismissed after leave was granted.
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2,090 words · generated 08/10/2026
The respondents began proceedings in the Supreme Court of New South Wales seeking recognition and enforcement at common law of a judgment entered by the United States District Court for the Southern District of New York (SDNY). The SDNY judgment, dated 15 September 2023, ordered the Argentine Republic to pay US$16,099,788,293 plus post-judgment interest on a breach of contract claim [3].
9 cited instruments linked from this judgment.
The respondents commenced the NSW proceedings on 7 March 2024 [18]. They sought to serve the Republic using s 24 of the Foreign States Immunities Act 1985 (Cth) (FSI Act), which provides for initiating process to be transmitted through the diplomatic channel. DFAT delivered the process and accompanying documents to the Argentine Ministry of Foreign Affairs on 6 January 2025. A delegate of the Minister for Foreign Affairs later issued a certificate under s 40 of the FSI Act recording delivery [19].
The Argentine Ministry returned the documents. It said they did not cite the Hague Service Convention and did not include the Convention's relevant form [20]. The Republic then sought a declaration that service had not been duly effected. The primary judge dismissed that application, and the Republic sought leave to appeal [4]-[5].
The Court of Appeal considered four questions: whether s 24 ceased to operate where its method conflicted with a treaty; whether the Convention was exclusive; whether Article 9 permitted the method used; and whether a certificate under s 40 conclusively established valid service [5]. Meanwhile, the US Court of Appeals for the Second Circuit reversed the SDNY judgment on the breach of contract claim on 27 March 2026 [9]. The Court nevertheless proceeded because the respondents had not discontinued the NSW proceedings and questions of costs remained [13]-[16].
The Court granted leave to appeal but dismissed the appeal. It also permitted the respondents to adduce additional evidence for the identified case-management purpose, and reserved costs for written submissions [12], [95]-[97].
The central statutory question concerned the relationship between ss 23 and 24 of the FSI Act. Section 23 allows service in accordance with a written agreement to which the foreign State is a party. Section 24 provides a diplomatic-channel method, setting out the required accompanying documents and deeming the point at which service is effected [22]-[24].
The Republic argued that the word “service” in s 24 should be read as service consistent with Australia's international obligations. On that approach, if a treaty precluded the statutory method, s 24 would not make that service effective [44]-[46]. The Court accepted the general principle that legislation should, so far as its language permits, be read consistently with international law. It emphasised, however, that this is a principle of construction, not a rule that overrides clear statutory language. The Court examined authorities including Jumbunna, Polites, Teoh and Yager [48]-[58].
The Court then considered the Act's text, context and purpose. It relied on the ALRC Report that preceded the FSI Act. The report recommended two methods of service on a foreign State: service through the diplomatic channel, and any method to which the State had agreed [61]-[66]. It described diplomatic-channel service as a workable method that could bring documents to the attention of senior officials while minimising offence [62]. The report also recommended that a certificate from the Department of Foreign Affairs be conclusive proof of service, including where a State declined to receive documents or later returned them [66].
The Court concluded that ss 23 and 24 implement those two methods as alternatives, without the hierarchy found in some overseas legislation [67]-[70]. Section 24 sets out a defined method and specifies the consequences of delivery, including when the appearance period begins [70]-[71]. In the Court's view, s 24 was designed to provide an effective method when its terms were met. It was not drafted to adjust automatically to international law developments occurring after its enactment [75]-[79]. The Court therefore rejected ground 1 [79].
The Court also considered Article 9(2) of the Convention. It read “for the same purpose” according to its ordinary grammatical meaning, referring back to Article 9(1)'s “purpose of service” [82]-[84]. The parties accepted that service on a State was an exceptional circumstance for Article 9(2) [32]. The Court concluded that diplomatic-channel service on a State was permitted, and rejected the Republic's argument that delivery merely forwarded documents for a further service step under the destination State's law [88]-[92].
Finally, the Court did not need to decide the Convention's general exclusivity or the effect of the s 40 certificate. It expressed the view that the primary judge's construction of s 40 was consistent with its text and purpose, but treated that as unnecessary to resolve the appeal [92]-[94].
The judgment describes the relevant statutory framework as having been enacted in 1985, before Australia's accession to the Convention in 2010 [29], [55]. Sections 23 and 24 reflect distinct service methods: an agreed method under s 23, and the diplomatic-channel method under s 24 [67]-[70]. The Court treated the latter as an operative statutory method, not as a mechanism whose scope automatically changed whenever Australia later entered a treaty [75]-[79].
As to general interpretive principles, the Court restated that statutory interpretation begins with the text, understood in context and in light of statutory purpose [59]. It also recognised the principle of construing legislation, so far as the language allows, consistently with international law. The discussion of Polites and Teoh makes clear that this principle does not authorise a court to depart from statutory meaning that the language cannot bear [49]-[58].
The decision's treaty analysis is narrower than a general ruling on the Convention. It holds that Article 9(2) permits diplomatic-channel service in exceptional circumstances, including service on a State [84], [88]-[92]. But the Court expressly left open whether the Convention otherwise provides an exclusive mechanism for service abroad [80]-[81], [92]. The decision therefore does not establish a general answer to every conflict between s 24 and the Convention.
The judgment also discusses s 40 certificates but does not finally determine the question. It says that the primary judge's conclusion is consistent with ss 40(1)(d) and 40(5), and with the ALRC's stated purpose for a certificate [94]. That discussion is not a necessary holding because the Court had already rejected the other grounds.
The provided judgment contains no later judicial treatment of this decision. Its stated result is that leave was granted, the appeal dismissed, and costs left for later determination [95]-[97]. Any account of subsequent developments would require sources beyond this judgment.
At [75], the Court said s 24 “was not formulated with a view to achieving general consistency with international law as it might develop over time”. In plain English, the Court did not read the 1985 provision as automatically changing to accommodate treaty obligations assumed later. This was important because the Convention post-dated the FSI Act [29], [55].
At [79], the Court said s 24 was intended to provide “a method of service that is effective when its terms are complied with”. The Court's point was that the statutory method has its own operation under Australian law. If that operation creates an inconsistency with an international obligation, the inconsistency does not itself make the statutory provision inoperative [79].
At [84], the Court held that Article 9(2)'s “same purpose” refers to the “purpose of service” in Article 9(1). Put simply, Article 9(2) permits diplomatic channels to be used for service in exceptional circumstances. It does not, on the Court's reading, merely permit documents to be forwarded to another authority for an additional service step [84], [89]-[92].
At [92], the Court said it was “undesirable to attempt to resolve the issue about the exclusivity of the Convention”. This is a significant limit on the decision. The Court decided the Article 9(2) issue and rejected the appeal, but did not rule generally on whether the Convention is the only available mechanism for service abroad.
At [94], the Court considered the s 40 certificate. It said the primary judge's view that the certificate could be conclusive of valid service was consistent with the provisions read together. However, the Court also said it was unnecessary to decide the issue. The passage is therefore best understood as an expressed view on an issue that did not determine the appeal.
The decision is most directly relevant where proceedings are brought in Australia against a foreign State, and the initiating process is transmitted through the diplomatic channel under s 24 of the FSI Act. The facts here involved delivery of documents to the foreign State's equivalent foreign affairs department, together with a statutory certificate recording the delivery [18]-[20].
It is also relevant where a party argues that a treaty obligation assumed after enactment of a domestic statute makes that statute's service mechanism unavailable. The Court addressed that argument through the relationship between ss 23 and 24 and the timing and purpose of the FSI Act [54]-[59], [67]-[79].
For Convention arguments, the decision concerns Article 9(2), particularly where the party to be served is itself a State. The Court treated service on a State as an exceptional circumstance, a point the parties accepted [32]. It reasoned that this context permits use of diplomatic channels for service [88]-[92].
The judgment should not be extended beyond its stated limits. It does not decide whether the Convention is generally exclusive, and it does not resolve all possible conflicts between domestic service rules and treaties [80]-[81], [92]. Nor does it determine the full effect of a s 40 certificate in every case [93]-[94]. A lawyer assessing another matter would likely want to check the precise statutory method used, the relevant treaty provisions, the destination State's position, and the contents and legal basis of any certificate.
The judgment itself does not discuss any later court's treatment of this decision. It cannot, on its own, establish whether later courts have followed, applied, distinguished or questioned it.
It does discuss earlier authorities. Polites is used for the proposition that courts are bound by domestic statute law even if it conflicts with international law [49], [79]. Teoh informs the Court's account of when treaty obligations may affect statutory construction, particularly where legislation is enacted after or in contemplation of the treaty [51]-[55]. Yager is considered in relation to the limits of using an international instrument to qualify statutory text [56]-[58].
For the FSI Act's structure and purpose, the Court relies on the ALRC Report and refers to Firebird and Greylag Goose [60], [67]-[68]. On s 40, it notes competing approaches in Alramadi and Douglas v Republic of Nauru, and expresses agreement with the primary judge's construction while leaving the issue unnecessary to decide [43], [94].
Those are the judgment's own precedent relationships. A current account of how later courts have treated Argentine Republic v Petersen Energía Inversora would require later decisions that are not included in the supplied material.
The clearest open question is whether the Hague Service Convention supplies an exclusive mechanism for service abroad. The Court expressly declined to decide it because its resolution was unnecessary once the Article 9(2) argument failed [80]-[81], [92].
The Court also did not finally decide the scope of s 40. It stated that the primary judge's view was consistent with the wording and purpose of the provision, but described the issue as unnecessary to determine [93]-[94]. The practical significance of the competing constructions may depend on the facts, particularly the relationship between what the certificate states and the deeming rules in s 24(3) and s 24(4) [70], [94].
A further issue left dependent on circumstances is the application of Article 9(2) beyond service on a State. The judgment identifies interrupted ordinary communications, such as during war or a pandemic, as another circumstance discussed by the respondents [89]. Its holding is directed to the case before it and does not comprehensively define all situations that qualify as exceptional.
Finally, the judgment records that the Second Circuit reversed the SDNY judgment and that further US procedures were contemplated [9], [13]-[15]. It does not decide how those foreign proceedings affect the merits or ultimate continuation of the NSW enforcement proceedings. The Court's decision concerns the threshold issue of service and the appeal from the primary judge's ruling.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Argentine Republic v Petersen Energía Inversora, S.A.U. [2026] NSWCA 96
Hearing dates: 6 March 2026
Date of orders: 22 May 2026
Decision date: 22 May 2026
Before: Ward P at [1]
Payne JA at [2]
Mitchelmore JA at [3]
Decision: (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) Leave to appeal is granted.
(3) The appellant is to file its notice of appeal within 7 days.
(4) The appeal is dismissed.
(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) The respondents are to file and serve submissions as to costs, of no more than four pages, by 4pm on 5 June 2026.
(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) The issue of costs will be determined on the papers.
Catchwords: STATUTORY INTERPRETATION — consistency with international treaty — foreign state immunity — meaning of “service” — whether provision susceptible to construction consistent with international law — whether statutory method for service inoperative if inconsistent with treaty obligation
PRIVATE INTERNATIONAL LAW — jurisdiction — service outside of jurisdiction — Hague Service Convention, Art 9 — meaning of “for the same purpose” — availability of diplomatic channels where receiving party a foreign State
STATUTORY INTERPRETATION — literal meaning — Foreign States Immunities Act 1985 (Cth), s 40 — effect of certificate — whether conclusive of valid service
Legislation Cited: Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Act 2022 (Cth)
Foreign States Immunities Act 1985 (Cth), ss 3, 23, 24, 25, 26A, 27, 28, 40
Foreign Sovereign Immunities Act of 1976 (US), s 1608
State Immunity Act 1978 (UK), s 12
Supreme Court Act 1970 (NSW), s 101(2)(e)
Uniform Civil Procedure Rules 2005 (NSW), r 11A.4
Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Arts 1, 2, 3, 5, 6, 8, 9, 10, 11, 13, 14, 15, 19, 21, 24, 25
Vienna Convention on the Law of Treaties 1969, Arts 31(1), 31(3), 32
Cases Cited: Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37
Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
Douglas v Republic of Nauru [2004] VSC 500; 187 FLR 221
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55
Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31; [2015] HCA 43
General Dynamics United Kingdom Ltd v State of Libya [2022] AC 318
Greylag Goose Leasing 1410 Designated Activity Company v PT Garuda Indonesia Ltd (2023) 111 NSWLR 550; [2023] NSWCA 134
Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309; [1908] HCA 95
Kartinyeri v The Commonwealth (1998) 195 CLR 337; [1998] HCA 22
Kingdom of Spain v Infrastructure Services Luxembourg sàrl (2023) 275 CLR 292; [2023] HCA 11
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20
Palmanova Pty Ltd v The Commonwealth [2025] HCA 35; 99 ALJR 1362
Petersen Energía Inversora, S.A.U. v Argentine Republic [2025] NSWSC 1071
Polites v The Commonwealth (1945) 70 CLR 60; [1945] HCA 3
Salomon v Commissioners of Customs and Excise [1967] 2 QB 116
Saudi Arabian Cultural Mission v Alramadi (2024) 305 FCR 581; [2024] FCA 1060
Volkswagen Aktiengesellschaft v Schlunk 486 US 694 (1988)
Yager v The Queen (1977) 139 CLR 28; [1977] HCA 10
Texts Cited: Australian Law Reform Commission, Foreign State Immunity (Report No. 24), (1984)
Explanatory Memorandum, Foreign States Immunities Bill 1985 (Cth)
P B Maxwell, On the interpretation of statutes (3rd ed, 1896, Sweet & Maxwell)
P B Maxwell, On the interpretation of statutes (8th ed, 1937, Sweet & Maxwell)
Practical Handbook on the Operation of the Service Convention (4th ed, 2016)
Practical Handbook on the Operation of the Service Convention (5th ed, 2025)
Category: Principal judgment
Parties: Argentine Republic (applicant)
Petersen Energía Inversora, S.A.U. (first respondent)
Petersen Energía, S.A.U. (second respondent)
Eton Park Capital Management, L.P. (third respondent)
Eton Park Master Fund, Ltd. (fourth respondent)
Eton Park Fund, L.P. (fifth respondent)
Representation: Counsel:
F Roughley SC / B Yin (applicant)
J Hogan-Doran SC / R Harvey (respondents)
Solicitors:
DLA Piper (applicant)
Gilbert + Tobin (respondents)
File Number(s): 2025/00378881
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
In March 2024, the respondents commenced proceedings in the Supreme Court of New South Wales, 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). In January 2025, the respondents purported to serve the Republic with the initiating process in those proceedings, 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 dismissed that application: Petersen Energía Inversora*, S.A.U. v Argentine Republic* [2025] NSWSC 1071.
The Republic, by summons, sought leave to appeal from the primary judge’s decision. The summons raised four issues for determination: (1) whether the method of service provided for by s 24 of the FSI Act, properly construed, is inoperative in circumstances where Australia has acceded to a treaty precluding service by that method, (2) whether, by acceding to the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Convention), Australia undertook to only permit service of judicial documents on and in the Republic in accordance with the Convention, (3) whether service of the initiating process on the Republic was effected pursuant to Article 9 of the Convention, and (4) the legal effect of a certificate issued under s 40 of the FSI Act.
In March 2026, the judgment of the District Court SDNY against the Republic was reversed by the United States Court of Appeals for the Second Circuit. By notice of motion filed 24 April 2026, the respondents sought leave to adduce further evidence on the appeal pertaining to that reversal.
The Court (Mitchelmore JA, Ward P and Payne JA agreeing) held, granting leave to appeal but dismissing the appeal:
Section 24 of the FSI Act
(1) Section 24 of the FSI Act, considered in context and in light of the legislative purpose, was not formulated with a view to achieving general consistency with international law as it might develop over time: [75]. The section was intended to provide a method of service that is effective when its terms are complied with: [58], [79]. Inconsistency with international law does not render the provision inoperative: [79].
Kingdom of Spain v Infrastructure Services Luxembourg sàrl (2023) 275 CLR 292; [2023] HCA 11; Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37; Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309; [1908] HCA 95; Polites v The Commonwealth (1945) 70 CLR 60; [1945] HCA 3; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20; Kartinyeri v The Commonwealth (1998) 195 CLR 337; [1998] HCA 22; Yager v The Queen (1977) 139 CLR 28; [1977] HCA 10; Salomon v Commissioners of Customs and Excise [1967] 2 QB 116; Palmanova Pty Ltd v The Commonwealth [2025] HCA 35; 99 ALJR 1362; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55; Greylag Goose Leasing 1410 Designated Activity Company v PT Garuda Indonesia Ltd (2023) 111 NSWLR 550; [2023] NSWCA 134; Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31; [2015] HCA 43, considered.
Construction of the Convention
(2) In light of the determination on issue 1, it was unnecessary finally to determine whether the Convention supplies the exclusive mechanism for the service of documents abroad and, if so, whether the Convention precludes service in the manner provided for by s 24 of the FSI Act: [80]-[81], [92].
(3) In any event, Article 9(2) of the Convention, properly construed, permits use of the diplomatic channel “for the purpose of service” in exceptional circumstances, which include service on a State: [84], [89], [92].
Certificate issued pursuant to s 40 of the FSI Act
(4) In light of the determinations on the other issues, it was unnecessary to decide whether a certificate issued pursuant to s 40 of the FSI Act is conclusive of the legal issue of whether service pursuant to s 24 was validly effected: [93]. In any event, that such a certificate is so conclusive is consistent with the terms and legislative purpose of s 40 of the Act: [94].
Saudi Arabian Cultural Mission v Alramadi (2024) 305 FCR 581; [2024] FCA 1060; Douglas v Republic of Nauru [2004] VSC 500; 187 FLR 221, considered.
Application for leave to adduce further evidence
(5) The respondents’ application seeking leave to adduce further evidence on the application for leave to appeal was granted: [12].
WARD P: I agree with Mitchelmore JA.
PAYNE JA: I agree with Mitchelmore JA.
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).
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.
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:
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)?
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))?
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))?
What is the legal effect of a certificate issued under s 40 of the FSI Act (ground 3)?
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.
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.
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.
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.
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.
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.
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 , 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 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”.
“(a) June/July 2026 – Decision by the Second Circuit on Claimants’ petition for rehearing or rehearing en banc.
(b) September/October 2026 – Deadline for either of the parties to file for review at the US Supreme Court, if the Second Circuit denies the Claimants a rehearing or rehearing en banc, or hands down a new judgment in the Claimants’ favor (90 days after the Second Circuit’s decision).
(c) December 2026 – If the US Supreme Court denies the petition without further proceedings (and does not call for the views of the [US Solicitor General]).
(d) June 2027 – If the US Supreme Court grants the petition and allows oral argument.”
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”.
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.
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.
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].
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:
“I, Ben Milton, Assistant Secretary of the General Counsel Branch of the Department of Foreign Affairs and Trade, having been duly delegated by the Minister for Foreign Affairs, DO HEREBY CERTIFY, pursuant to section 40 of the Foreign States Immunities Act 1985 (‘the Act’), that in the matter of Petersen Energí**a lnversora, S.A.U. v Argentine Republic (No. 2024/00089582) before the Supreme Court of New South Wales (‘the Proceeding’), the following documents were delivered by hand to the Ministry of Foreign Affairs, Trade and Worship in Buenos Aires at Esmeralda 1212, Ciudad Autónoma de Buenos Aires, Argentina in accordance with section 24 of the Act:
a) the initiating process in the Proceeding, dated 7 March 2024;
b) a translation of the initiating process in the Proceeding into Spanish (including a certification, in Spanish, signed by the translator);
c) a request for service of originating process on the Argentine Republic in the Proceeding, in accordance with section 24(2)(a) of the Act, dated 9 April 2024;
d) a statutory declaration for the purposes of section 24(2)(b) of the Act made by the plaintiffs’ legal representative on 9 April 2024.
The Ministry of Foreign Affairs, Trade and Worship of the Argentine Republic in Buenos Aires is the organ of the government of the Argentine Republic that is equivalent to the Australian Department of Foreign Affairs and Trade. The initiating process and accompanying documents listed above were delivered by Lorenzo Araujo Velosa, Head of Mission Driver and Administrative Assistant at the Australian Embassy in Buenos Aires on 6 January 2025 at 12pm.
GIVEN under my hand and the seal of the Department of Foreign Affairs and Trade this 21st day of January 2025.
Ben Milton
Delegate of the Minister for Foreign Affairs”
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].
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].
23 Service of initiating process by agreement
Service of initiating process on a foreign State or on a separate entity of a foreign State may be effected in accordance with an agreement (wherever made and whether made before or after the commencement of this Act) to which the State or entity is a party.
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].
Section 24 of the FSI Act provides:
24 Service through the diplomatic channel
(1) Initiating process that is to be served on a foreign State may be delivered to the Attorney General for transmission by the Department of Foreign Affairs to the department or organ of the foreign State that is equivalent to that Department.
(2) The initiating process shall be accompanied by:
(a) a request in accordance with Form 1 in the Schedule;
(b) a statutory declaration of the plaintiff or applicant in the proceeding 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; and
(c) if English is not an official language of the foreign State:
(i) a translation of the initiating process into an official language of the foreign State; and
(ii) a certificate in that language, signed by the translator, setting out particulars of his or her qualifications as a translator and stating that the translation is an accurate translation of the initiating process.
(3) Where the process and documents are delivered to the equivalent department or organ of the foreign State in the foreign State, service shall be taken to have been effected when they are so delivered.
(4) Where the process and documents are delivered to some other person on behalf of and with the authority of the foreign State, service shall be taken to have been effected when they are so delivered.
(5) Subsections (1) to (4) (inclusive) do not exclude the operation of any rule of court or other law under which the leave of a court is required in relation to service of the initiating process outside the jurisdiction.
(6) Service of initiating process under this section shall be taken to have been effected outside the jurisdiction and in the foreign State concerned, wherever the service is actually effected.
(7) The time for entering an appearance begins to run at the expiration of 2 months after the date on which service of the initiating process was effected.
(8) This section does not apply to service of initiating process in a proceeding commenced as an action in rem.
(a) it is proved that service of the initiating process was effected in accordance with this Act and that the time for appearance has expired; and
(b) the court is satisfied that, in the proceeding, the foreign State is not immune.
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.
Section 40, which is in Part V of the FSI Act, is headed “Certificate as to foreign State etc.” and provides, in subsection (1):
(1) The Minister for Foreign Affairs may certify in writing that, for the purposes of this Act:
(a) a specified country is, or was on a specified day, a foreign State;
(b) a specified territory is or is not, or was or was not on a specified day, part of a foreign State;
(c) a specified person is, or was at a specified time, the head of, or the government or part of the government of, a foreign State or a former foreign State; or
(d) service of a specified document as mentioned in section 24 or 28 was effected on a specified day.
(5) 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.
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”.
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).
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:
“Each contracting State shall be free, in addition, to use consular 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.
Each contracting State may, if exceptional circumstances so require, use diplomatic channels for the same purpose.”
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].
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 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.
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:
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].
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].
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].
The primary judge accepted the essential thrust of observations made by Lord Lloyd-Jones in [2022] AC 318 (“”) 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 at [62], where Lord Lloyd-Jones described the method of service through diplomatic channels, reflected in s 12(1) of the (UK) c 33, as a means of commencing proceedings which met those requirements: at [88]. The primary judge stated at [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.”
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].
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].
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].
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].
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].
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].
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.
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.
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):
“A ‘long standing’ principle of interpretation is that statutory provisions should be interpreted, so far as possible, to be consistent with international law. This is particularly so where a provision, like s 10 of the Foreign States Immunities Act, seeks to give effect to matters of international law.”
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.
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 O**n the interpretation of s**tatutes (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, O**n the i**nterpretation of s**tatutes (8th ed, 1937, Sweet & Maxwell) at 130), Dixon J at 77, McTiernan J at 79 and Williams J at 80-81.
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).
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]:
“In Polites v The Commonwealth, the Court accepted that, so far as the language of a statute permits, it should be interpreted and applied in conformity with the established rules of international law. That is a rule of construction of long standing. The rationale for the rule is that the legislature is taken not to have intended to legislate in violation of the rules of international law existing when the legislation was enacted. Accordingly, the law is construed as containing an implication to that effect. But, as Polites decided, the implication must give way where the words of the statute are inconsistent with the implication. No doubt the rule of construction had some validity when the rules of international law were few and well-known. Under modern conditions, however, this rule of construction is based on a fiction. Gone are the days when the rules of international law were to be found in the writings of a few well-known jurists.”
(Emphasis in original, footnotes omitted.)
“Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia’s obligations under international law.
It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law. The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia’s international obligations. That is indeed how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations.”
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”.
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.
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.
As to the latter, the Republic submitted that Mason CJ and Deane J in 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.
“…the court must in the first instance construe the legislation, for that is what the court has to apply. If the terms of the legislation are clear and unambiguous, they must be given effect to, whether or not they carry out Her Majesty’s treaty obligations, for the sovereign power of the Queen in Parliament extends to breaking treaties…, and any remedy for such a breach of international obligation lies in a forum other than Her Majesty’s own courts. But if the terms of the legislation are not clear but are reasonably capable of more than one meaning, the treaty itself becomes relevant, for there is a prima facie presumption that Parliament does not intend to act in breach of international law, including therein specific treaty obligations; and if one of the meanings which can reasonably be ascribed to the legislation is consonant with the treaty obligations and another or others are not, the meaning which is consonant is to be preferred. Thus, in case of lack of clarity in the words used in the legislation, the terms of the treaty are relevant to enable the court to make its choice between the possible meanings of these words by applying this presumption.”
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.
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.
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”: (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”: (2012) 250 CLR 503 at [39]; [2012] HCA 55, quoted in at [6].
“• Providing for service exclusively via the diplomatic channel (European Convention on State Immunity 1972, art 16).
• Providing for service either via the diplomatic channel or by channel(s) agreed to by the foreign state (State Immunity Act 1978 (UK) s 12(1) and (6)).
• In addition to (ii), allowing for further methods such as service by registered mail upon the foreign state’s Ministry of Foreign Affairs, the various alternatives being arranged in a hierarchy so that the more cumbersome methods are only available where the simpler ones have failed (Foreign Sovereign Immunities Act 1976 (USA) s 1608(a) and (b)).
• As an alternative to (iii), listing the various methods but without establishing any priority between the different methods, thus leaving the plaintiff to select the preferred method (International Law Association Draft, art VI).”
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].
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]):
“There can be no objection to holding a foreign state to its agreement. It is recommended that such a provision be included in Australian legislation. The legislation should make clear that the agreement of the foreign state may be by contract with the plaintiff or by treaty with Australia. It should also make clear that an agreement by the foreign state which in its terms covers a separate entity binds that entity.”
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].
Under the heading “Related Documentary and Other Requirements for Service”, the ALRC stated (at [151]):
“Where the foreign state has agreed upon a method of service that method will be followed. But if recourse is had to the diplomatic channel it is recommended that a number of ancillary requirements be specified.”
“Proof of Service. The Rules of Court make no provision for service by the diplomatic channel. Therefore the proposed legislation should provide that a certificate from the Department of Foreign Affairs stating that on a given date originating process was delivered to the foreign state or to a person on behalf of and with the authority of the foreign state, is conclusive proof of service. This date would be the date from which time begins to run. Service should be regarded as effective even if the foreign state declines to receive it at the time or later returns it with a diplomatic note stating a refusal to receive it.”
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”.
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].
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).
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:
the necessary accompanying documents (s 24(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));
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
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)).
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.
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.
It is convenient to reproduce Article 9:
“Each contracting State shall be free, in addition, to use consular 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.
Each contracting State may, if exceptional circumstances so require, use diplomatic channels for the same purpose.”
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].
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”.
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.
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”.
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.
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.
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.
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.
Accordingly, I propose the following orders:
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”.
Leave to appeal is granted.
The appellant is to file its notice of appeal within 7 days.
The appeal is dismissed.
The appellant is to file and serve submissions as to costs, of no more than four pages, by 4pm on 29 May 2026.
The respondents are to file and serve submissions as to costs, of no more than four pages, by 4pm on 5 June 2026.
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.
The issue of costs will be determined on the papers.
Argentine Republic
Petersen Energía Inversora, S.A.U.
(1977) 139 CLR 28
(2004) 219 CLR 562
(2019) 268 CLR 593
(1997) 187 CLR 384
(2012) 250 CLR 503
(2015) 258 CLR 31
(2023) 111 NSWLR 550
(1908) 6 CLR 309
(1998) 195 CLR 337
(2023) 275 CLR 292
(1995) 183 CLR 273
(1945) 70 CLR 60
(2024) 305 FCR 581
Leave to appeal was granted and the appeal was dismissed. The respondents were granted leave to adduce the identified additional evidence. The parties were directed to file costs submissions on specified dates, with costs to be determined on the papers: [97].
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.
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:
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):
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].
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]):
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.
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”.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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].
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.
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).
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.