Mahmood v Chohan

JAGOT J: 1 These reasons for judgment explain why, on 12 August 2021, I granted the applicant leave to serve the originating application and statement of claim in Pakistan pursuant to r 10.43(1)(a) of the Federal Court Rules 2011 (Cth) (the FCR). 2 These reasons for judgment are based on the written submissions for the applicant in support of the interlocutory application prepared by Ms Nomchong SC and Ms Bindon. I indicated on 12 August 2021 that I accepted these submissions and proposed, in effect, to adopt them as my reasons for judgment. I have done so, in effect, because the submissions say all they need to say and no more. I express my gratitude to Ms Nomchong SC and Ms Bindon for the comprehensiveness and clarity of their submissions. 3 Service is proposed to be effected in Pakistan in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Opened for signature 15 November 1965. 658 UNTS 163 (entered into force 10 February 1969), which is a convention within the meaning of r 10.41 of the FCR. 4 The Court must be satisfied of the matters in r 10.43 (3) and (4) of the FCR before leave is granted: The Owners - Strata Plan No 87231 v 3a Composites GMBH [2019] FCA 811; (2019) 369 ALR 315 at [19]-[23]. 5 The proceedings must be one of the kinds of proceeding mentioned in the table to r 10.42. This requirement is satisfied as the proceeding is a claim under the Fair Work Act 2009 (Cth) (the Act) for alleged breaches of s 45 for underpayment of wages in contravention of the applicable provisions of the Fair Work Commission Miscellaneous Award 2010 (the Award), s 323 for failure to pay in money, ss 44 and 90(2) for failure to pay accrued annual leave on termination, and s 536 for failure to provide payslips in respect of the applicant's employment by the respondent in Australia. Claims are also made for breach of contract. It follows that the proceeding is of a kind mentioned in items 1, 2, and 12 in the table in r 10.42. 6 The Court must have jurisdiction in the proceeding. This requirement is satisfied. Section 562 confers jurisdiction on this Court in respect of all matters arising under the Act. The breach of contract claims are within the Court's accrued jurisdiction. 7 The Court must be satisfied that the applicant has a prima facie case for all or any of the relief claimed in the proceeding. This requirement is satisfied. The evidence in support of the application establishes that the applicant came to Australia on a Subclass 403 Temporary Work (International Relations) Visa. The visa was for a private domestic worker. The applicant was employed pursuant to a written contract of employment dated 10 November 2014, to do cooking, cleaning, ironing and other domestic tasks for the respondent. The applicant worked for the respondent from 20 November 2014 to 26 May 2016. The work was performed at the respondent's residence in Canberra. During the term of the applicant's employment the respondent was the High Commissioner of Pakistan to Australia. The Award governed the terms of employment for employees performing domestic tasks in a private household. After leaving the employment of the respondent, the applicant obtained permanent residency in Australia. 8 As submitted for the applicant, there is sufficient evidence to support a prima facie case that: (1) there was an employment contract under which the applicant performed work in Australia between 20 November 2014 to 26 May 2016; (2) the applicant did in fact perform duties for the respondent involving cooking, cleaning and other domestic services, thus engaging the provisions of the Award; (3) the applicant worked excessive hours with minimal breaks; (4) the applicant was not given any annual leave; and (5) the respondent paid wages at a level less than the Award minimum. 9 In a communication from her lawyers the respondent claimed diplomatic immunity under s 9 of the Foreign States Immunities Act 1985 (Cth). Section 9 provides: Except as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding. 10 However, there is a prima facie case that the respondent rather than the State of Pakistan employed the applicant. 11 It was also contended for the respondent that she had immunity under s 7 of the Diplomatic Privileges and Immunities Act 1967 (Cth). Section 7 provides that the provisions of Articles 1, 22 to 24 (inclusive) and 27 to 40 (inclusive) of the Vienna Convention on Diplomatic Relations. Opened for signature 18 April 1961. 500 UNTS 95 (entered into force on 24 April 1964) (the Vienna Convention) have the force of law in Australia and in every external territory. 12 Article 31(1)(c) of the Vienna Convention provides that: 1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of: … (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. 13 Article 39 provides: 1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed. 2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist. … 14 The applicant's contention is that Art 31(1)(c) and Art 39(2) apply with the consequence that the respondent does not have immunity. 15 In Reyes v Al-Malki [2017] UKSC 61 Lord Sumption (with whom Lord Neuberger agreed) said at [4]: In my opinion, the employment of a domestic servant to provide purely personal services is not a "professional or commercial activity exercised by the diplomatic agent". It is therefore not within the only relevant exception to the immunities … But the appeal should be allowed on a different and narrower ground. On 29 August 2014, Mr Al-Malki's posting in London came to an end and he left the United Kingdom. Article 31 confers immunity only while he is in post. A diplomatic agent who is no longer in post and who has left the country is entitled to immunity only on the narrower basis authorised by article 39(2). That immunity applies only so far as the relevant acts were performed while he was in post in the exercise of his diplomatic functions. The employment and maltreatment of Ms Reyes were not acts performed by Mr Al-Malki in the exercise of his diplomatic functions. 16 Lord Wilson (with whom Lady Hale and Lord Clarke agreed) agreed that the immunity did not apply in accordance with Art 39(2) because the acts were not performed by the person "in the exercise of his functions as a member of the mission": at [55] and [69]. As to Art 31(1)(c), Lord Wilson expressed the view, in obiter dicta, that the law had (or, at least, should have) developed to ensure that the exception in Art 31(1)(c) would be engaged by an apparent case of domestic servitude: at [68]. 17 It is not necessary to express any view about Art 31(1)(c). The unanimous view in Reyes about Art 39(2) that a contract of employment for domestic services is not necessarily an act performed by a diplomat in the exercise of the diplomat's functions as a member of the mission suffices to provide a prima facie case for the relief sought in the present proceeding. 18 This is why I made the orders on 12 August 2021 including that leave be granted to serve the originating application and statement of claim in Pakistan. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jagot.