Consideration
10 The primary judge found that none of the exceptions in Pt II of the Foreign States Immunities Act applied to the appellant's proceedings against Vanuatu. The appellant did not argue that his Honour made any error in that finding. His Honour was undoubtedly correct to have so found. Accordingly, s 9 applied so as to confer immunity from this Court's jurisdiction on Vanuatu. The acts of Vanuatu complained of by the appellant were assertions of the character of acts of State or sovereignty in respect of a ship within its sovereign jurisdiction. All those acts were done by Vanuatu or its officials or agencies on its territory. The appellant's failure to identify to the primary judge, or on his appeal, any basis on which an exception to Vanuatu's right to immunity under s 9 could be established is fatal to the appeal.
11 The appellant's argument that the Admiralty Act created rights for him to proceed against Vanuatu independently of the operation of the Foreign States Immunities Act must be rejected. Nothing in the Admiralty Act expressly deals with any immunity of foreign States that is created by s 9 of the Foreign States Immunities Act. The latter Act created an exception to the immunity of a foreign State in s 18 in respect of certain classes of proceedings commenced as actions in rem.
12 The purpose of this exception was explained in the report of the Australian Law Reform Commission, Foreign State Immunity (ALRC 24). The Foreign States Immunities Act substantially gave effect to the recommendations in ALRC 24. In PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2011) 192 FCR 393 at 440 [216] Rares J said, with the agreement of Lander and Greenwood JJ (at 396 [1] and 406 [67]):
"The ALRC also recommended that a foreign State not be immune in certain in rem proceedings brought against a ship in use for commercial purposes (ALRC 24 at [139]). This was reflected in s 18. Although the Admiralty Act 1988 (Cth) had not yet been enacted, in rem proceedings could then be brought where persons had certain maritime claims, including maritime liens for damage caused by a ship: see generally Civil Admiralty Jurisdiction: Australian Law Reform Commission (ALRC 33) esp Ch 4; Harmer v Bell ("The Bold Buccleugh") (1852) 7 Moo. PC 267 at 284-285 [13 ER 884 at 890-891]; The Tolten [1946] P 135 esp at 145-147 per Scott LJ; cf: Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45. Once again, the potential scope of operation of the exclusion in s 18 of the Foreign States Immunities Act was wider than maritime claims arising from contracts or other transactions of a commercial nature."
13 And, as Lander and Greenwood JJ noted, s 9 reflected, subject to the exceptions created in the Foreign States Immunities Act itself, the previous common law position that an independent sovereign State may not be proceeded against, without its consent, in the Courts of another State: PT Garuda 192 FCR at 398 [12], see too at 415 [107] per Rares J.
14 The Admiralty Act was enacted after, and gave effect to recommendations in, another report of the Australian Law Reform Commission, Civil Admiralty Jurisdiction (ALRC 33): Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 416 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. The Commission said in that report (ALRC 33 at [200]):
"200. Foreign State Vessels. The question of suits in personam and in rem against foreign state-owned vessels was comprehensively dealt with in the Commission's Reference on Foreign State Immunity (ALRC 24, Foreign State Immunity, AGPS, Canberra, 1984, para 139-44). Now that the relevant provisions of the Draft Bill proposed in that Reference have been enacted, nothing need be done in the proposed admiralty legislation on the point (Foreign States Immunities Act 1985 (Cth) s 18)."
15 The Admiralty Act created or conferred jurisdiction on particular courts, including this Court, in respect of particular causes of action in proceedings commenced in rem or in personam. In contrast, the Foreign States Immunities Act, in s 9, created a general immunity for a foreign State from the ordinary jurisdiction of a court in Australia in a proceeding already instituted in that court. That is, s 9 operated on the jurisdiction that a court of this nation would, or could arguably, exercise in proceedings over a foreign State. The immunity created or recognised by the Parliament in its enactment of s 9, represents a legislative policy choice to refrain from asserting the sovereignty of Australia over a foreign State unless particular exceptions, carefully set out in Pt II of the Foreign States Immunities Act, apply.
16 There is no basis to think that the Parliament intended to do away with the immunity of a foreign State from jurisdiction by Australian courts, conferred by s 9 of the Foreign States Immunities Act, when it enacted the Admiralty Act. Each Act is capable of operating, and was intended to operate, harmoniously with the other. Thus, assuming that the appellant were able to establish (and we do not accept that he did) that the Court had any jurisdiction under the Admiralty Act in respect of his claims against Vanuatu, that State was entitled to avail itself of the immunity from any such jurisdiction conferred by s 9 of the Foreign States Immunities Act. The assertion of jurisdiction under the Admiralty Act would be inconsistent with Vanuatu's immunity from the jurisdiction of the Court.
17 The primary judge was correct to be satisfied under s 38 of the Foreign States Immunities Act, that the appellant's claims made in his application in this Court were inconsistent with Vanuatu's assertion of its immunity. Hence, his Honour was correct to set aside the application, and service of it, as against Vanuatu.
18 His Honour was also correct to have refused to confirm service on Vanuatu in that State under O 8 r 3(1)(b). Once Vanuatu asserted its immunity, as it did before the primary judge, ss 9 and 38 of the Foreign States Immunities Act compelled the conclusion that service on Vanuatu would be an abuse of the process of the Court because the proceedings against it were foredoomed to fail by force of those sections: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ. Vanuatu was protected from the exercise of jurisdiction in the proceedings by its immunity.