REASONS FOR JUDGMENT
MOORE J
30 I have had the benefit of reading the reasons of Black CJ and Finkelstein J in a draft form. It is unnecessary to repeat much of the background. The power the primary judge was being asked to exercise is conferred by O 8 r 2 of the Federal Court Rules which provides:
(2) The Court may, by order, give leave to serve originating process outside the Commonwealth in accordance with Division 2 or 3 of this Order or, subject to sub rule (2B) on such terms and conditions as it considers appropriate, if the Court is satisfied that:
(a) the Court has jurisdiction in the proceedings; and
(b) rule 1 applies to the proceeding; and
(c) the parties seeking leave has a prima face the case for the relief sought by the party in the proceeding.
On one view of the rule, particularly having regard to its structure and the subject matter it addresses, the Court would be obliged to grant leave if the preconditions in paragraphs (a), (b) and (c) are satisfied. On that view of the rule, and notwithstanding the use of the word 'may', the discretion would be a limited one of the type considered in Commissioner of State Revenue v Royal Insurance Australia Limited (1993) 182 CLR 51. However, it appears the matter proceeded before the primary judge on the basis that his Honour had a residual discretion to decide whether to grant leave notwithstanding the satisfaction of the preconditions. In addition, there are many authorities which say there is, or assume the existence of, a residual discretion: see Bray v F Hoffman-La Roche Ltd and Others (2003) 130 FCR 317 at 356; Best (Australia) Ltd v Aquagas Marketing Pty Ltd (1988) 83 ALR 217 at 222; Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd and Others (1995) 58 FCR 365 at 371; Century Insurance Ltd (In provisional liquidation) and Ors v New Zealand Guardian Trust Ltd and Ors (1996) (unreported, Fed C of A, Lee J, No. WAG 81 of 1995, 16 May 1996); Southern Cross Airlines Holdings Ltd v Arthur Anderson & Co (A firm) and Ors (unreported, Fed C of A, Cooper J, QG 170 of 1996, 27 March 1998; Bell Group Ltd (in liq) and Others v Westpac Banking Corporation and Others (1996) 20 ACSR 760; TPC v The Gillette Company and Others (No 2)(1993) 45 FCR 366; Quinlan v Safe International Försäkrings AB [2005] FCA 1362 at [26]-[27]; Equiticorp Industries Group Ltd v Hawkins [1991] 3 NZLR 700; Hartwell Trent (Australia) Pty Ltd v Tefal Societe Anonyme [1968] VR 3 and Kuwait Asia Bank EC v National Mutual Life Nominees Ltd [1991] 1 AC 187 at 212.
31 In my opinion, the existence of a recognised residual discretion to grant leave to serve outside the jurisdiction tells against the proposition that if an applicant has standing, seeks to prosecute an action which is not oppressive, vexatious or otherwise an abuse of process, and the Court can assume jurisdiction (by service or submission), then the Court is obliged to adjudicate the dispute and a judge must grant leave to serve outside the jurisdiction. I will return to this question later.
32 It is convenient, at this point, to consider the way in which the primary judge exercised the discretion when refusing leave to serve outside the jurisdiction. On 27 May 2005, his Honour dismissed the application for leave to serve the originating process on the respondent in Japan: Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2005] FCA 664. His Honour's decision was based upon discretionary considerations advanced on behalf of the Attorney-General for the Commonwealth appearing as amicus curiae. These considerations can be divided into two categories. The first relates to the international political context of the dispute, and the possible adverse ramifications that permitting service in Japan may have on Australia's relations with Japan as well as on other signatories to the Antarctic Treaty.
33 As to Australia's relations with Japan, his Honour's focus was Japan's likely response to any attempt at service, which might have the effect of developing into an international disagreement with Australia. His Honour accepted that Japan would view service as the attempt to enforce rights which it did not recognise, and in addition, would view it as an illegitimate interference with its own rights, under international law, in relation to area it regards as the high seas.
34 His Honour also appeared to accept the argument advanced by the Attorney General that service could be 'reasonably expected to prompt a significant adverse reaction from other Antarctic Treaty Parties' (besides Japan, which is also a party to the Treaty). This view appeared to be based on the notion that enforcing domestic legislation of one of the parties to the Antarctic Treaty would undermine the diplomatic status quo of that Treaty, which, in addition, was contrary to Australia's long term national interests and might endanger Australia's claims to sovereignty in Antarctica.
35 The primary judge also appeared to be influenced by the view that the issues disputed in the proceedings would better be dealt with by diplomatic solutions or other means which did not have the effect of placing a domestic court 'at the centre of an international dispute': at [29], [31] and [34].
36 The second type of discretionary consideration relied upon by the primary judge was more orthodox and related to the many difficulties said to attend the enforcement of any order. Service was unlikely to be effectual in bringing the respondent to Court, and similarly, the ultimate orders sought were unlikely to be effective in enforcing the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ('the EPBC Act').
37 In addition, there was a further consideration apparently relied on by his Honour which drew these two strands together. His Honour had regard to the position in which the Executive Government would necessarily be placed in terms of having to assist in the enforcement of any Court orders, in a situation where that Government viewed the orders as contrary to national interests on the basis of (non-justiciable) matters uniquely within the domain of the Executive Government.
38 I agree with Black CJ and Finkelstein J, for the reasons their Honours have given at [11] and [12], that the primary judge erred in the exercise of his discretion by taking into account the first category of considerations. The political repercussions of service of the process and, additionally, potentially the litigation of this application in an Australian court, are irrelevant in deciding whether to grant leave. To allow such considerations to influence the resolution of the application for leave denies this Court its proper role in our system of government. Courts must be prepared to hear and determine matters whatever their political sensitivity either domestically or internationally. To approach the matter otherwise, is to compromise the role of the courts as the forum in which rights can be vindicated whatever the subject-matter of the proceedings.
39 In taking those considerations into account, the primary judge erred in a way that authorises appellate intervention: see House v King (1936) 55 CLR 499 at 505, having allowed 'extraneous or irrelevant matters to guide or affect him'. This leads to a consideration of how the discretion should be exercised. I referred earlier (at [30]) to Kuwait Asia Bank EC v National Mutual Life Nominees Ltd. That was a judgment of the Privy Council concerning an unsuccessful application by a foreign company to set aside process invoking the jurisdiction of the New Zealand High Court. The procedural rules of that Court enabled service of proceedings outside the jurisdiction without the leave of the Court, on the basis that the rules made provision for the person served to make an application that the proceedings be dismissed because the Court had no jurisdiction to hear and determine them. The Privy Council concluded that, in addition to the express power to dismiss conferred by the rules, the Court retained a discretionary power to set aside the service on the same principles that governed the grant of leave to serve originating process extra-territorially in relation to a rule such as O 8 r 2 of the Federal Court Rules. The then equivalent rule of the English Supreme Court Rules, O 11, was, in relevant respects, in substantially the same terms as O 8 r 2 of the rules of this Court.
40 In the course of discussing the way the discretion under O 11 should be exercised, their Lordships said at 212:
'The English R.S.C., Ord. 11, which has served as the model in most Commonwealth countries for service of process out of the jurisdiction, does not spell out the entirety of the court's discretion to refuse leave, even where the case falls within rule 1, but that the discretion exists is not in doubt: see Johnson v. Taylor Brothers & Co. Ltd [1920] A.C. 144, 153, per Lord Birkenhead L.C. and Viscount Haldane, and Lord Dunedin who said, at p. 154:
"I think it is legitimate to begin by considering the genesis of the rule. I understand that jurisdiction according to English law is based on the act of personal service and that if this is effected the English law does not feel bound by the Roman maxim 'Actor sequitur forum rei'. It is far otherwise in other systems where service is in no sense a foundation of jurisdiction, but merely a sine qua non before effective action is allowed. Now service being the foundation of jurisdiction, it follows that that service naturally and normally would be service within the jurisdiction. But there is an exception to this normal rule, and that is service out of the jurisdiction. This however is not allowed as a right but is granted in the discretion of the judge as a privilege, and the rule in question here prescribes the limits within which that discretion should be exercised."
For further statements of principle one may refer to The Brabo, Vitkovice Horni v. Korner, Siskina (Owners of cargo lately laden on board) v. Distos Compania Naviera SA [1979] A.C. 210, The Hagen [1908] P 189 and The Spiliada [1987] A.C. 460 and, for a recent example, see Kloeckner & Co AG v. Gatoil Overseas Inc [1990] 1 Lloyd's Rep. 177.'
41 It has been said by the High Court that a court should not grant leave to serve outside the jurisdiction unless '[the court] is positively persuaded that it should do so': Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 565. That statement appears to continue to identify the applicable principle in relation to provisions requiring a court's leave to serve an originating process outside the jurisdiction on the ex parte application of a plaintiff or applicant. Differently cast provisions concerning the exercise of a court's exorbitant jurisdiction may require another approach: see Agar v Hyde (2000) 201 CLR 552 particularly at [51], where it is said that a plaintiff has a prima facie right to obtain leave to proceed once service outside the jurisdiction has been effected and no unconditional appearance has been filed by the defendant. In earlier times it has been said that the discretionary power to exercise jurisdiction against a foreigner by service outside the jurisdiction should be 'exercised with caution and with a bias against invading the sovereignty of a foreign State' (per Lord Simonds in Vitkovice Horni A Hunti Tezirstvo v Korner [1951] AC 869 at 877).
42 In an era of international commerce and global human engagement, it may not be necessary for courts to be overly cautious about exercising jurisdiction in relation to foreigners. Nonetheless there remains, on the authorities, a need for courts to approach with some circumspection the grant of leave to serve outside the jurisdiction: see, for example, the observations of Nicholson J in Quinlan v Safe International Försäkrings AB at [27].
43 But for one consideration, I would grant leave. The applicant has demonstrated that it has an arguable case involving, from one perspective, issues of significance and public importance. The factor which results in me not being positively satisfied that leave should be granted is the almost certain futility of the litigation the applicant wishes to pursue. There are some older authorities to the effect that leave should not be granted if the relief sought is injunctive relief and there is no method for making the injunction effectual: see Marshall v Marshall (1888) 38 Ch D 330 and Kinahan v Kinahan (1890) 45 Ch D 78. This is qualified by the principle that leave might be given if there was a reasonable ground for believing that the injunction will be efficacious at some time in the future: see Tozier v Hawkins (1885) 15 QBD 650 and Re Burland's Trade Mark (1889) 41 Ch D 157.
44 More recent Australian authority would support that approach. The jurisdiction of courts created under Chapter III of the Australian Constitution is centrally concerned with the determination of 'matters'. It has been said that a legally enforceable remedy is as essential to the existence of a 'matter' as the right, duty or liability which gives rise to the remedy: see Abebe v Commonwealth (1999) 197 CLR 510 at [31] (per Gleeson CJ and McHugh J) and Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, especially Gaudron J at [49]. More generally, this Court has been enjoined not to embark upon the determination of hypothetical questions which can include the making of a declaration in default of a defence: see Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 especially at [47].
45 In the present matter, the relief sought is a declaration that the conduct of the respondent contravenes the EPBC Act and an injunction restraining the respondent from engaging in the contravening conduct. It is almost certain that the respondent will not submit to the jurisdiction of an Australian court having regard to the broad political context in which it engages in whaling and, in particular, having regard to the fact that it is doing so seemingly lawfully under Japanese law with the authority of the Japanese Government. On the evidence as it presently stands, the respondent has only the most tenuous connection with Australia, involving periodically entering remote Australian waters in the Antarctic to undertake the activities the subject of the relief sought by the appellant. Those circumstances are quite unusual if not unique. It is also almost certain that any proceedings in this Court will proceed ex parte. While the applicant may ultimately obtain relief of the type sought (though plainly discretionary considerations may militate against the grant of such relief), it is not apparent to me that it will be effective relief. That is because it is highly probable the orders will never be served or otherwise rendered efficacious. Senior counsel for the appellant accepted that any judgment could not be registered and enforced in Japan. In the unlikely event that this Court made an order under O 8 r 3 facilitating service in Japan of any order of this Court (whether by way of declaration or injunction), it would almost certainly be ignored.
46 Indeed, the position of the appellant appeared to involve an acceptance that no enforceable injunction will be granted but that, at least in part, any declaration would operate to influence the Japanese Government, which is not a party to the proceedings. In the applicant's written submissions in reply, it repeated and elaborated on a submission earlier made:
'...... the fact that an order is likely to prove difficult or even impossible to enforce is not necessarily a bar to the grant of relief, although it is a material consideration to be weighed against other circumstances relevant to the exercise of the Court's discretion to grant relief. The declaration sought in these proceedings does not rely upon enforcement in any foreign jurisdiction. It will remove any doubt for the respondent that it breaches Australian law by whaling within the Australian Wildlife Sanctuary. It should also not lightly be assumed that the Government of Japan will ignore the declaration by granting further permits to the respondent in such a manner as to allow contravention of Australian domestic laws. Consequently, the relief sought cannot be said to be ineffective or futile and this is not a basis for refusing to grant leave to serve the proceedings.'
47 It is not legitimate, in my opinion, for a court to sanction the commencement of proceedings by granting leave to serve outside the jurisdiction if a purpose of the application, if not the dominant purpose, is to pressure a person or body which is not a party to the proceedings. In any event, the making of a declaration without service of the order would not bind the respondent to any determination made by this Court of its obligations and liabilities under Australian law. It may be accepted that in litigation not intended to enforce private rights but which has a public dimension (such as enforcing a norm of conduct established by statute for the protection of the public interest), an unduly narrow view has not been adopted about the circumstances in which a bare declaration might be made: for example, Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd. However, such cases have, as far as I am aware, involved litigation between parties within the jurisdiction of the Australian court seized of the matter.
48 While I do not suggest that this Court is not seized of a 'matter' (though it is a question which has not been agitated to this point in the proceedings), authorities such as those referred to at [44] above give content to the judicial power of the Commonwealth having regard to questions of public policy. Courts exist in our system of government to adjudicate real disputes and exert 'actual power', an expression used by members of the High Court in Laurie v Carroll (1958) 98 CLR 310. In my opinion, similar considerations can inform the exercise of a discretion to grant leave to serve outside the jurisdiction. Leave should not be given in circumstances where the proceedings only involve the adjudication of a legal controversy in form but not in substance. As I have already said, any remedy that might be granted will be incapable of enforcement. That feature of these proceedings denies them substance. I would refuse leave to serve the application on the respondent.
49 It might be thought that leave should be given on the footing that the respondent could move the court to set aside the service. But what in fact would almost certainly happen if leave to serve was granted is that the respondent would ignore any process and would not engage with this Court in exercise of its jurisdiction. It would do this for the reasons given at [45] above.
50 As I would refuse leave to serve the application, the appropriate order is that the appeal be dismissed. No question of costs arises.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.