Petersen Energía Inversora, S.A.U. v Argentine Republic [2025] NSWSC 1071 | Case summary

Petersen Energía Inversora, S.A.U. v Argentine Republic [2025] NSWSC 1071 | Case summary | Zoe

Cases Cited: Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9
Australian Competition and Consumer Commission v Yellow Page Marketing BV [2010] FCA 1218
Awad v The Queen (2022) 275 CLR 421; [2022] HCA 36
Capral Ltd v DNV AS [2024] NSWSC 96
Caswell v Sony/ATV Music Publishing (Australia) Pty Ltd [2012] NSWSC 986
CC/DEVAS (Mauritius) v Republic of India [2021] FCA 975
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; [1992] HCA 64
Deputy Commissioner of Taxation v Ranguta Limited [2022] FCA 1572
Douglas v Republic of Nauru [2004] VSC 500; (2004) 187 FLR 221
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; [2021] UKSC 22
Greylag Goose Leasing 1410 Designated Activity Company v PT Garuda Indonesia Ltd (2023) 111 NSWLR 550;
[2023] NSWCA 134
Harris v Attorney-General of The Commonwealth (1994) 52 FCR 386; (1994) 125 ALR 36
Jabiru Satellite Ltd v Societe Generale [2021] VSC 544
Maughan v Wilmot (No 2) [2017] EWCA Civ 1668; [2018] 1 WLR 2356
Mid-East Sales Ltd v United Engineering and Trading Co (PVT) Ltd [2014] EWHC 1457 (Comm)
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17
Petersen Energía Inversora, S.A.U. v The Republic of Argentina, 2025 ONSC 3593
Polites v The Commonwealth (1945) 70 CLR 60; [1945] HCA 3
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Rio Tinto Shared Services Pty Ltd v English Datasystems LLC (2021) 65 VR 25; [2021] VSC 660
Saudi Arabian Cultural Mission v Alramadi (2024) 305 FCR 581; [2024] FCA 1060
Trimbole v Commonwealth (1984) 155 CLR 186; [1984] HCA 83
Unión Fenosa Gas S.A. v. Arab Republic of Egypt [2020] 1 WLR 4732; [2020] EWHC 1723 (Comm)
Volkswagen Aktiengesellschaft v Schlunk, 486 US 694 (1988)
Yager v The Queen (1977) 139 CLR 28; [1977] HCA 10
Zhang v Zemin (2010) 79 NSWLR 513; [2010] NSWCA 255

BELL CJ: These proceedings concern the question of whether the Republic of Argentina (the Republic) has been validly served in proceedings in which the Plaintiffs seek orders for the recognition and enforcement at common law of a final judgment of the Hon. Judge Preska of the United States District Court for the Southern District of New York on 15 September 2023 (Foreign Final Judgment).
By the Foreign Final Judgment, her Honour ordered that the Republic:
pay to the First and Second Plaintiffs damages and pre-judgment interest of USD $14,385,449,737.00;
pay to the Third to Fifth Plaintiffs damages and pre-judgment interest of USD $1,714,338,556.00; and
pay post-judgment interest to all Plaintiffs in accordance with US law on all above-mentioned amounts, calculated from the date of the entry of the Foreign Final Judgment at the rate of 5.42% per annum computed daily to the date of payment and compounded annually.
The Republic seeks, by Notice of Motion dated 7 May 2025, an order pursuant to r 12.11(c) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) declaring that the Commercial List Summons and Commercial List Statement (together the Initiating Process) have not been duly served on it. Other relief sought in the Notice of Motion was not the subject of argument before me, it being common ground that the interlocutory hearing be confined to questions of validity of service.
As explained more fully below, the Plaintiffs first sought to serve the Republic in accordance with s 24 of the Foreign States Immunities Act 1985 (Cth) (FSIA). This process commenced with a request in March 2024 to the Attorney-General for transmission by the Australian Department of Foreign Affairs and Trade (DFAT) to its equivalent department in the Republic of the Initiating Process and other specified documents as listed in s 24(2) of the FSIA. The delivery ultimately occurred on 6 January 2025 with the delivery of the relevant documents by an officer of the DFAT to the offices of the Argentine Ministry of Foreign Affairs, International Trade and Worship (Ministerio de Relaciones Exteriores, Comercio Internacional y Culto) (Argentine MFA) in Buenos Aires.
In the interim, and because of delays in confirmation of service of process through diplomatic channels, the Plaintiffs also purported to serve the Initiating Process on the Republic under the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention). Such service would have been consistent with s 23 of the FSIA but the Republic led evidence that the Argentine Central Authority designated pursuant to Article 2 of the Convention never received documents from the Registrar of the Supreme Court of New South Wales and so declined to issue any certificate under the Hague Convention.
In relation to the purported service under s 24 of the FSIA, the Plaintiffs relied upon a certificate made by a delegate of the Minister of Foreign Affairs pursuant to s 40 of the FSIA (the Section 40 Certificate). That certificate provided:

The Republic, although being fully cognisant of the claims contained in the Initiating Process, contended that both attempts at service by the Plaintiffs were ineffective for different reasons.
Its first argument related to the construction of s 24 of the FSIA and was broadly to the effect that the purported service pursuant to that section was in breach of or inconsistent with Australia’s international law obligations under the Hague Service Convention and considerations of international comity. The Republic contended that, notwithstanding the terms of s 24 permitting service through the diplomatic channel, such service was not available or effective because, following Australia’s accession to the Hague Service Convention, that Convention provided the exclusive route for service on a foreign state which was also party to that Convention such that s 24 ceased to be available or could not be validly complied with.
The Plaintiffs countered this contention in three ways: first, pointing to the alternative modes of service provided for in ss 23 and 24 of the FSIA, and contesting the Republic’s argument that the Convention provided the exclusive route for service on a foreign state; second, invoking Article 9(2) of the Hague Service Convention which, they submitted, preserved the possibility of service through the diplomatic channel and thus pursuant to s 24 of the FSIA; and third, asserting an entitlement to default judgment pursuant to r 11A.11 of the UCPR.
The Republic also contended that s 24 had not been complied with because the translation of the Initiating Process which was required to be delivered under that section, although accurate, was a translation of an unfiled and unstamped copy of the Initiating Process such that the purported service pursuant to s 24 was ineffective for that additional reason.
To the extent that the Plaintiffs endeavoured to serve the Initiating Process in accordance with the Hague Service Convention and s 23 of the FSIA, as noted above, the Republic’s broad contention was that documents apparently sent by the Registry of this Court were never received by the Argentine Central Authority so that they could then be served in accordance with the Argentine Republic’s domestic laws. Unchallenged evidence to this effect was provided in the Affidavit of Aldana Rohr dated 12 June 2025.
Before considering these competing contentions in greater detail, it is first necessary to set out key provisions of the FSIA and the Hague Service Convention, making some passing observations in relation to the parties’ submissions in relation thereto. These reasons then set out the steps taken by the Plaintiffs to serve the Initiating Process on the Republic before returning to consider the competing arguments in greater detail.

By email dated 11 December 2024, G+T responded to the letter forwarded by “cooperacion-civil@mrecic.gov.ar”, confirming that “the position of the Supreme Court of NSW is that it has provided the [Hague] Documents to you” and enclosed copies of the Hague Documents and the letter from the Principal Registrar dated 27 August 2024 confirming that the Hague Documents had been transmitted to the Central Authority.
On 12 December 2024, G+T sent a letter to the Registry of the Supreme Court of New South Wales (the Registry) that requested:
a copy of the Request for Service Abroad that was stamped or signed by the Principal Registrar and transmitted to the Central Authority;
a copy of any tracking number, proof of delivery or proof of receipt relating to the transmission of the Hague Documents to the Argentine MFA; and
confirmation of the address to which the Hague Documents were transmitted and the date on which the Hague Documents were transmitted.
By email dated 13 December 2024, G+T received from an email address associated with the Argentine MFA a letter which purported to “return” the documents enclosed with G+T’s email of 11 December 2024. This communication asserted non-compliance with the form required by Article 3 of the Hague Service Convention and identified the address for service of the Republic by the Central Authority.
By email dated 6 January 2025, G+T requested that the Argentine MFA acknowledge receipt of the Hague Documents from the Supreme Court of New South Wales and provide certification, in the form contemplated by Article 6 of the Hague Service Convention (‘certificate of service’), that the Hague Documents had been served on the Republic.
On or about 12 February 2025, G+T requested an appointment with the Duty Registrar of the Supreme Court of New South Wales to discuss the matters raised in G+T’s letter to the Registry dated 12 December 2024.
On 14 February 2025, G+T received an email from the Counter Manager of the Supreme Court of New South Wales stating that the:

That address was confirmed by Ms Rohr to be DAJIN’s address. The above address was the same address used by the Principal Registrar as recorded in the JusticeLink screenshot attached in the Counter Manager’s email dated 14 February 2025: see [66] above.
The Plaintiffs confirmed by Mr Lynch’s affidavit of 23 May 2025, which was read without objection, that G+T had not received a “certificate of service” of the kind contemplated by r 11A.6 of the UCPR, as issued or transmitted by the Argentine MFA (as Central Authority) to the Registry.
On 30 April 2025, G+T sent a letter by courier to the Argentine MFA, the Republic’s Minister of Foreign Affairs for the Republic, and the President of the Republic, advising of the Plaintiffs’ intention to apply in these proceedings for default judgment on 2 May 2025 should the Republic not enter an appearance. In that letter, G+T enclosed copies of the following documents:
the letter from the Principal Registrar to G+T dated 27 August 2024;
the letter from the Principal Registrar to the “Argentine Central Authority” dated 27 August 2024;
the signed and stamped Request for Service Abroad;
G+T’s email to the Central Authority on 11 December 2024, including copies of the Hague Documents as filed with the Supreme Court of New South Wales on 31 July 2024; and
the Section 40 Certificate.
In relation to G+T’s letter dated 30 April 2025, the Republic provided evidence, by affidavit of Gitanjali Bajaj dated 7 May 2025, that:
the mailboxes associated with the email addresses referred to on the first page of G+T’s letter were searched, but no copy of the letter was found in those mailboxes; and
the Republic first became aware of the letter after a courier delivered two copies of the letter to the Argentine MFA front desk on 5 May 2025 at Esmeralda 1212, City of Buenos Aires, Argentine Republic.
Furthermore, the Republic led evidence that none of the documents purported to be enclosed in G+T’s 30 April 2025 letter (see [71] above) were part of the bundle of materials delivered by courier to the Argentine MFA.

The significance and applicability of the presumption so heavily relied upon by the Republic and which was at the heart of its argument, being identified explicitly in oral submissions as providing the “framework” for the analysis that followed, was somewhat tenuous when the authorities relied upon are considered closely. For example, there is no ambiguity in ss 23 and 24 of the FSIA, either as to their terms or their relationship. They are plainly presented as alternatives in the FSIA and there is no hierarchy as to their operation: cf. Foreign Sovereign Immunities Act of 1976 at 28 USC §1608. As the Plaintiffs pointed out in submissions, the ALRC had this example before it but instead drafted ss 23 and 24 of the FSIA in their present form. The ALRC’s recommendation at [150] was that “there be only two methods allowed in the proposed legislation for service upon the foreign state itself, the diplomatic channel and any method to which the state has agreed.” Gageler J in Firebird treated ss 23 and 24 of the FSIA as providing alternative methods of service without suggesting the existence of any hierarchy between the two provisions: see at [138]-[140], [145], [148]. At [138], his Honour referred to the assumption underlying the structure of the FSIA, namely “that a foreign State will become a party to a proceeding only through service of initiating process on the foreign State in accordance with either of the methods of service for which provision is made in s 23 (which permits service by agreement) and s 24 (which permits service through the diplomatic channel)” (emphasis added).
Nor should words be read into s 24(3) and (4) of the FSIA, which was the effect of the Republic’s contention: see [74] above. The “service” being referred to in those subsections is service for the purposes of the FSIA. Those subsections identify the circumstances where “service shall be taken to have been effected”: s 24(3), (6). The Republic’s contention involved an unnecessary qualification or modification of the clear language of s 24(3) and (4) ultimately driven by reliance on the terms of Article 1 of the Hague Service Convention. Such an approach to statutory construction is inconsistent with Yager.
The Republic’s argument also had the temporal difficulty that the FSIA long predated Australia’s accession to the Hague Service Convention. The Republic endeavoured to overcome this obstacle by referring to the amendments made to the FSIA in 2022 (see [21]-[29] above) and submitting that the FSIA was “always speaking” (as to which, see P Herzfeld and T Prince, Interpretation (3rd ed, 2024, LawBook Co) at [2.30] and [2.80]). It may be accepted that s 23 of the FSIA is “always speaking” as that section expressly contemplates that future agreements may be entered into. It would be perverse, however, if the “always speaking” principle of statutory interpretation had the effect of rendering an entire and important provision of a statute such as s 24 of the FSIA inoperative in respect of serving States which are signatories of the Hague Service Convention. This, it seems to me, would be the consequence of the Republic’s argument in the present case as, on that argument and subject to the proper interpretation of Article 9(2), compliance with s 24 of the FSIA could not result in service consistent with the Hague Service Convention which envisages, in Article 5, that the Central Authority of the foreign state will itself serve the relevant document on the defendant.
The Republic also relied upon the observations of Lord Lloyd-Jones in General Dynamics United Kingdom Ltd v State of Libya [2022] AC 318; [2021] UKSC 22 (General Dynamics), that:

The essential thrust of these observations may be accepted but they do not, with respect, advance the analysis in the present case which essentially involves the construction of the FSIA and its interplay with the Hague Service Convention. Significantly, however, in a part of his judgment not referred to by the Republic, Lord Lloyd-Jones, after making extensive reference to the ALRC Report, went on to describe the method of service through the diplomatic channel (as reflected in s 12(1) of the State Immunity Act 1978 (UK)) as “a means of commencing proceedings which meets the requirements of international law and comity”: at [62]. Furthermore, “service through diplomatic channels has been traditionally regarded as according appropriate deference to the principle of sovereignty”: J Hamilton et al, New South Wales Civil Procedure Handbook 2005 (Lawbook Co, 15th ed, 2025) at 521.
It is difficult, moreover, to construe service through diplomatic channels pursuant to s 24 of the FSIA as involving an impairment of comity, even where the state parties have also agreed to separate methods of service, in circumstances where additional explanations and translations are required to be provided to the putative foreign state defendant over and above provision of the relevant initiating process, as required by s 24(2). As earlier noted, the requirement to provide translations was described in the ALRC Report as a “courtesy”. The ALRC also noted at [151] that “[c]onsiderations of reciprocity make it desirable that translations be included where English is not an official language of the defendant state.” Further, s 27(2) of the FSIA provides an extended time period for the entry of an appearance by a foreign state. As the ALRC had observed at [151], “[i]t seems to be recognised that governments may need more time to respond to service of process than other defendants.”
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 developed a complex argument that the requirement in s 24(2)(b) of the FSIA that the Initiating Process be accompanied by a statutory declaration of the Plaintiffs stating that the rules of court or other laws (if any) in respect of service outside the jurisdiction of the court concerned have been complied with picked up a reference to the Hague Service Convention and conditioned “the availability of service to be effected through the diplomatic channel for the purposes of the FSI Act on compliance with the conditions and limitations on the use of that channel as provided for by s 23 (read with the Hague Service Convention).” This contention involved construing s 23 as having incorporated the Hague Service Convention into domestic law with the consequence that s 23 “in such circumstances imposes obligations, limitations and requirements, as a matter of domestic law, in respect of service outside the jurisdiction, as provided for in the Hague Service Convention.” I disagree. Section 23 does not do that work or impose any relevant obligations or limitations. The section is facultative and provides one of two alternatives for service of process on a foreign state.
The reference to “the rules of court or any other laws (if any) in respect of service outside the state” is to rules, such as those which exist in some state and federal jurisdictions, requiring the prior leave of the Court before any party (including a foreign sovereign state) may be served. An example is supplied by CC/DEVAS (Mauritius) v Republic of India [2021] FCA 975 in which Stewart J granted leave under r 10.43 of the Federal Court Rules 2011 (Cth) to serve the Republic of India outside the jurisdiction in accordance with s 24 of the FSIA. It may be noted that there was no suggestion in that case that service was required, by reason of s 23 of the FSIA, to be effected under the Hague Service Convention to which India had acceded in 2007.
The Republic also submitted that:

Nothing in the text of the FSIA supports this submission. Sections 23 and 24 are alternative modes of achieving service. The Anthony Hordern principle (see Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7; [1932] HCA 9) is one of statutory construction which involves the grant of a power the exercise of which is apparently authorised by separate statutory provisions, with the more broadly expressed power not being permitted to be used to outflank conditions imposed on the exercise of the power by a more specific provision. Sections 23 and 24 of the FSIA are, in my view, alternative facultative provisions to which the Anthony Hordern principle does not apply. They do not represent a case where the ambit of the restricted power is wholly within the ambit of the general power, or where “the statute in question confers only one power to take the relevant action”: see Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 at [59]. It is also very difficult to describe, as the Republic did, s 24 as providing a “general procedure”. It is both detailed and prescriptive.
The Plaintiffs did not advance any argument that the Hague Service Convention was only concerned with service on private parties abroad and had no application where proceedings were brought directly against a foreign state: cf Unión Fenosa Gas S.A. v. Arab Republic of Egypt [2020] 1 WLR 4732; [2020] EWHC 1723 (Comm) at [79], [94].
They did, however, contest the Republic’s claim that the Convention was the exclusive route for service on a foreign state, submitting that “Australian courts have not accepted that the Hague Service Convention provides for an exclusive mechanism for transmitting judicial documents abroad for service, but have permitted service to be made through other methods in cases involving the transmission of initiating process abroad in civil or commercial matters”, citing Australian Competition and Consumer Commission v Yellow Page Marketing BV [2010] FCA 1218; Rio Tinto Shared Services Pty Ltd v English Datasystems LLC (2021) 65 VR 25; [2021] VSC 660; Jabiru Satellite Ltd v Societe Generale [2021] VSC 544 at [44]-[46]; Deputy Commissioner of Taxation v Ranguta Limited [2022] FCA 1572 at [21]-[22], [26], [34]; Capral Ltd v DNV AS [2024] NSWSC 96 at [93]-[99]. In Caswell v Sony/ATV Music Publishing (Australia) Pty Ltd [2012] NSWSC 986 at [30], Hallen AsJ held that it was “clear that the Service Convention is facultative, not mandatory”. His Honour referred in this regard to Articles 8 and 10 of the Convention: see [40] above. Similarly, the Convention has not been treated as being “exclusive” in England: see, in particular, Maughan v Wilmot (No 2) [2017] EWCA Civ 1668; [2018] 1 WLR 2356 at [132] per Moylan LJ with whom Sales and Black LJJ agreed; Mid-East Sales Ltd v United Engineering a**nd Trading Co (PVT) Ltd [2014] EWHC 1457 (Comm) where service was made through diplomatic channels: see at [31]. A similar observation may be made in respect of Canada: see Petersen Energía Inversora, S.A.U. v The Republic of Argentina, 2025 ONSC 3593 at [31]-[34], [37].
The Republic relied upon Volkswagen Aktiengesellschaft v Schlunk, 486 US 694 (1988) in support of its contention that the Hague Service Convention supplied an exclusive mechanism for service of documents abroad. That was not a case in which the Court was concerned with service of process on a foreign state. Moreover, the Supreme Court made it plain in that decision at 705 that its interpretation of the Convention “makes recourse to the Convention's means of service dependent on the forum's internal law”. The Court went on immediately to note that “we do not think that this country, or any other country, will draft its internal laws deliberately so as to circumvent the Convention in cases in which it would be appropriate to transmit judicial documents for service abroad”. That observation may be correct but did not address a situation such as the present case where the relevant internal law, the FSIA, was enacted many years prior to Australia’s accession to the Hague Service Convention. The Court had earlier referred to the fact that “the negotiating history of the Convention also indicates that whether there is service abroad must be determined by reference to the law of the forum state”: at 701. Ultimately, of course, I am concerned with construing the FSIA and, for the reasons already advanced at some length, that Act provides alternative means of serving initiating process on a foreign state.
The Convention does not use the language of exclusivity either generally or in relation to service on a foreign state. Its focus is not on the service of a foreign state at all, and many jurisdictions both before and after accession to the Hague Service Convention have made special legislative provision for service of process on a foreign state, as the ALRC Report made plain. I accept the Plaintiffs’ submission that:

This argument was strained and unattractive. It involved the contrived notion of a “use purpose” but the use of consular (or diplomatic) channels is not the purpose but the means of achieving the identified purpose, namely service of documents. Where the defendant in proceedings is a foreign state, service by or through diplomatic channels may be effected through delivery of the relevant judicial document to the foreign state’s Ministry of Foreign Affairs. Nothing more is required. An example of such service through the diplomatic channel is supplied by s 12(1) of the State Immunity A**ct 1978 (UK) as well as by s 24 of the FSIA. No further act is required for service to have been effected (such as the service by a foreign ministry on another organ of the State) unlike the very different situation where the defendant is a foreign national otherwise unconnected with the foreign state who would in turn be served by a designated central authority of the foreign state after documents had been transmitted to it for service on such a defendant.
The Republic’s interpretation would lead to what the Plaintiffs described in their reply submissions as the “absurd result” that a State defendant to the proceedings which has been served through the diplomatic channel by delivery of documents to its foreign ministry is then required by the Convention to take steps for further acts of service upon itself. In this context, to the extent that both parties sought to point to “state practice” to assist their respective contentions, no sufficiently clear and consistent practice emerges, still less one which would trump the clear language and structure of ss 23 and 24 of the FSIA.
Nor is it to the point that, as the Republic submitted, the functions of a diplomatic mission may include the performance of consular functions. Article 9 draws a contrast between the use of consular channels in a particular way which is spelt out in the first sentence of the article, on the one hand, and the use of diplomatic channels for the purpose of service, on the other hand. Were this differentiation not deliberate, the article could have simply been drafted by including the words “or diplomatic” after “consular” in the first sentence, and omitting the second sentence entirely.
The Republic also suggested that the Plaintiffs’ interpretation of the second sentence of Article 9 in some way “permitted service to be effected by compulsion using the diplomatic channel” and drew a contrast with Article 8 which provides:

It follows that, even if ss 23 and 24 of the FSIA should be construed as contended for by the Republic, no breach of Australia’s international obligations under the Hague Service Convention occurred by reason of the Plaintiffs’ service of the Initiating Process pursuant to s 24 of the FSIA. Such service through diplomatic channels was permitted by the second sentence of Article 9 of the Hague Service Convention.
This leaves for consideration the Republic’s argument which was to the effect that, assuming that service pursuant to s 24 of the FSIA was not inconsistent with international law or Australia’s international obligations or international comity, service nevertheless was not valid because there was a defect in relation to the translation of the Initiating Process supplied with the documents transmitted to the Argentine MFA.
The Republic’s argument in this respect was excessively technical. It arose from the fact that the document which the translator identified in his s 24(2)(c)(ii) certificate as that which he had translated was not the filed and stamped copy of the Initiating Process bearing a case number or a unique identifier but, rather, an unsigned and unstamped version of the Initiating Process. It was not suggested that there was any difference between the unsigned version of the Initiating Process and the actual Initiating Process other than the absence of a signature, stamp and file number. Further, the actual untranslated but stamped and signed version of the Initiating Process was included with the documents that were transmitted by the DFAT.
The Plaintiffs’ response to this argument was essentially twofold. First, that the Section 40 Certificate was conclusive as to the fact that a translation of the Initiating Process had been provided, and that the Republic’s contention was a collateral attack on the certificate. Reliance was placed on s 40(5) of the FSIA which provides that “[a] certificate under this section is admissible as evidence of the facts and matters stated in it and is conclusive as to those facts and matters.” The Republic countered by referring to the recent decision of Raper J in Alramadi at [117] where her Honour held that:

As a matter of substance, there was no failure to comply with the requirement to provide a translation of the Initiating Process. Substantial compliance was adequate and very substantial compliance there was. Non-compliance with a statutory provision does not, in any event, necessarily render invalid an act done in purported compliance with the statute: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [93]; Awad v The Queen (2022) 275 CLR 421; [2022] HCA 36 at [18]; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [89]. In circumstances where the provision of a translation of the Initiating Process was by way of a “courtesy” (see [20], [89] above) and it is not submitted that there was any material departure from the language of the Initiating Process or that the purpose of the statutory requirement was thwarted, one would not attribute an intention to the legislature that trivial non-compliance would result in invalidity.
The trivial nature of the non-compliance (if indeed there was non-compliance) in the present case may be contrasted with the non-compliance in Alramadi where the applicant had failed to obtain the leave of the Federal Circuit and Family Court of Australia (Division 2) (required under its rules) for service of any originating application out of the jurisdiction.
The validity of the service of the Initiating Process was not compromised, in my view, by the matters raised by the Republic in relation to the translation of that process.
There remains for consideration the Plaintiffs’ ultimate fallback argument which asserts an entitlement to default judgment pursuant to r 11A.11 of the UCPR because the Republic had not entered an appearance and the Argentine Central Authority had failed to return a certificate of service in circumstances where “every reasonable effort had been made” to obtain a certificate of service from the Argentine Central Authority or to effect service of the Initiating Process on it: UCPR r 11A.11(2).
As the Republic pointed out in argument, implicit in the Plaintiffs’ reliance on r 11A.11 was that service had not been validly effected on it in accordance with the procedure established by pt 11A of the UCPR.
It was in this context that the Republic made reference to s 27(1) of the FSIA and particularly the requirement that, before default judgment could be entered against it, service of the Initiating Process had to have been effected in accordance with the Act and the time for appearance must have expired. As such it was contended that the Plaintiffs could not obtain default judgment against the Republic through UCPR r 11A.11. In the context of the circumstances of the present case, I agree. It is therefore unnecessary to resolve the question as to whether the Plaintiffs’ attempts to serve the Republic in accordance with the procedure prescribed by the UCPR as set out at [51]-[73] above amounted to “every reasonable effort” within the meaning of UCPR r 11A.11(2).

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

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

The FSIA

Hague Service Convention

Commencement of proceedings and attempted service

Consideration

Conclusion and orders

Parties

Legislation Cited (14)

Cases Cited (22)

Cited By (1)