Williamson v Commonwealth of Australia & Ors [2023] NTSC 56

Acts Interpretation Act 1901 (Cth) ss 15AB(1)-(2), 23(b)

Defence (Visiting Forces) Act 1963 (Cth) s 13

Foreign State Immunities Act 1985 (Cth) ss 6, 9, 12, 13, 38

Migration Act 1958 (Cth).

Interpretation Act 1978 (NT) ss 24(2), 62B(1)-(2)

Supreme Court Rules 1987 (NT) rr 8.09, 9.06, 23.02, 23.04(2), 46.04(2)

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27; Alfonso v Northern Territory [1999] NTSC 117; Al-Masarir v Kingdom of Saudi Arabia [2022] EWHC 2199 (QB); Chow Hung Ching v The King [1948] HCA 37; (1948) 77 CLR 449; Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380; I Congreso del Partido [1983] 1 AC 244; Kartinyeri v The Commonwealth [1998] HCA 22; (1998) 195 CLR 337; Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l. [2023] HCA 11; Littrell v The United States of America (No 2) [1995] 1 WLR 82; McElhinney v Ireland (European Court of Human Rights, Grand Chambers, Application No. 31253/96, 21 November 2001); Minister for Home Affairs v DMA18 as litigation guardian for DLZ18 [2020] HCA 43; (2020) 270 CLR 372; News Corporation Ltd v Lenfest Communications Inc (1996) 40 NSWLR 250; Olive & Anor v Oceanview Developments Pty Limited & Ors [2023] NTSC 38; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2012] HCA 33; (2012) 247 CLR 240; Republic of Italy v Benvenuto [2018] FCAFC 64; (2018) 261 FCR 19; Thor Shipping A/S v Al Duhail [2008] FCA 1842; (2008) 173 FCR 524; Zhang v Zemin [2010] NSWCA 255; (2010) 243 FLR 299.

British War Office, Manual of Military Law (His Majesty's Stationery Office, 5th ed, 1907)

Law Reform Commission, Foreign State Immunity (Report No 24, 1984)

D Pearce, Statutory Interpretation in Australia, (LexisNexis, 9th ed, 2019)

Williamson v Commonwealth of Australia & Ors [2023] NTSC 56

[1] The United States of America ("Fourth Defendant") has applied by Summons for an order striking out the Plaintiff's Statement of Claim insofar as it seeks relief against the Fourth Defendant. The basis of the application is that the Fourth Defendant claims that it is immune from suit and therefore this Court has no jurisdiction to entertain the Plaintiff's claim against it.

[2] The only evidence on the application was an affidavit of the Plaintiff's solicitor which the Plaintiff intended to rely on. The Fourth Defendant objected on the basis of relevance. As the affidavit did not affect the way in which the Fourth Defendant proposed to conduct its case on the hearing, I provisionally admitted the affidavit de bene esse so that I could properly assess relevance once the matter was fully argued.

[3] That affidavit annexed a partly redacted email chain referring to enquiries concerning maintenance of the relevant barbecue (see below). I was told by Mr Mullins, senior counsel for the Plaintiff, that the email chain demonstrated that there was information that the Plaintiff did not yet know relevant to the claim, I think at least referring to the redactions. The Plaintiff considered that was relevant to whether I determined the jurisdiction issue as a preliminary point or determined it after the missing information was provided, initially by pleadings.

[4] Having further considered the matter I agree with the Fourth Defendant that the affidavit is irrelevant as the issue of jurisdiction is to be determined at the outset and as a matter of law.[1] The reference to "jurisdiction" in section 9 of the Foreign State Immunities Act 1985 (Cth) ("the FSIA") does not relate to identifying the subject matter of a proceeding. Instead it relates to the amenability of a party to the processes of the Court.[2] In any case, to the extent that rule 23.02 of the SCR applies, there can be no evidence on applications made pursuant to that rule.[3] On both accounts, I rule that the proposed evidence is inadmissible.

[5] Another related procedural issue was the basis of the current application. The Fourth Defendant's Summons claims to rely on section 38 of the FSIA (reproduced below) and various rules in the Supreme Court Rules (1987) (NT) ("the SCR")[4], mainly rule 23.02 (also reproduced below). Mr Mullins argued that section 38 of the FSIA did not apply and therefore only rule 23.02 could be the basis of the Fourth Defendant's application. Therefore the appropriate test to apply on the application was the 'no real prospect of success' test which applies to cases of summary determination.[5]

[6] That argument was based on the text of section 38 of the FSIA which was said to apply in respect of "..an immunity conferred by or under this Act...". The argument is that although the general immunity provided for in section 9 of the FISA (which is reproduced and discussed below), ostensibly applied, section 6 of the FSIA (also reproduced and discussed below), provides that the FSIA does not affect any immunity conferred inter alia under the Defence (Visiting Forces) Act 1963 (Cth) ("the DVFA"), therefore, section 38 of the FSIA did not apply.

[7] It was submitted that the argument was supported by Minister for Home Affairs v DMA18 as litigation guardian for DLZ18.[6] That case concerned entirely different legislation, but common with the current case was the wording of a section of the Migration Act 1958 (Cth), which provided for a bar to proceedings and which was claimed to be sufficiently similar to the wording of section 13 of the DVFA (reproduced below) which was central to the argument.

[8] In that case the High Court decided that the corresponding section did not limit the jurisdiction of a Court. That was because it was not expressly framed as taking away jurisdiction. Instead was a statutory bar only which did not extinguish the Court's jurisdiction. That was decided in application of what was described as an "..established principle", ...(that) "a law of the Commonwealth is not to be interpreted as withdrawing or limiting a conferral of jurisdiction unless the implication appears clearly and unmistakably".[7]

[9] Mr Mullins relied on that to submit that as section 13 of the DVFA does not clearly provide for an extinguishment of jurisdiction, it is only a bar to a remedy and operated similarly to a limitation point such that the issue was only enlivened when raised on the pleadings. Therefore, he argued, the current application should be dealt with based on summary determination principles, and after the jurisdiction question was raised by the Fourth Defendant in its Defence.

[10] In response, Mr Ward, senior counsel for the Fourth Defendant relied on News Corporation Ltd v Lenfest Communications Inc.[8] That case dealt with long arm jurisdiction and in that context held that a foreign defendant should not be made subject to the processes of a court to obtain information concerning the immunity as the jurisdiction claim must be first determined on its merits and without regard to the processes of the Court.

[11] I agree that section 38 of the FSIA does not apply but for different reasons. The provision only applies where there has been a "...judgment, order or process... (which) is inconsistent with an immunity..." conferred under that Act and not, as Mr Mullins submitted, generally to a proceeding in respect of "..an immunity conferred by or under this Act...".

[12] Section 38 of the FSIA is only concerned with procedural rectification once a Court has wrongly exercised jurisdiction and it is not a process to challenge jurisdiction.[9] For that reason I do not think that the reference in the Fourth Defendant's Summons to the application being made pursuant to section 38 of the FSIA is intended as the basis of the challenge to jurisdiction. Rather, I think the Fourth Defendant relies on that provision to seek rectification type orders consequent on the issue of proceedings and the naming of the Fourth Defendant as a party. Consistent with that, ancillary orders are also sought under specific enabling powers in the SCR namely rule 8.09 dealing with the setting aside of the Writ, and rule 9.06 dealing with the removal of the Fourth Defendant as a party.

[13] I agree with the Fourth Defendant that the question of immunity from suit, and therefore jurisdiction, must be determined first and as a matter of law only. I reject the Plaintiff's argument in respect of the operation of section 38 of the FSIA. Further, and despite what is set out in the Fourth Defendant's Summons, purportedly in compliance with rule 46.04(2) of that SCR, the application is more correctly made pursuant to the Court's inherent power to determine whether it has jurisdiction. I think that the statutory enabling powers nominated in the Summons are only consequential orders to the jurisdiction issue.

[14] Although the facts are therefore immaterial to the current application, a brief summary of the material facts as pleaded in the Statement of Claim will help to put the application into context.

[15] The Plaintiff is a citizen of the United States of America. His claim is for damages for injuries sustained in Darwin during his period of service as a member of the United States Marine Corps. He was posted to, and accommodated at, the base known as the Defence Establishment Berrimah.

[16] The Plaintiff alleges that on 1 August 2019 he attempted to light a barbecue at the base to cook a meal and due to a gas leak, he was engulfed in flames and he sustained burns to 30 per cent of his body.

[17] The Plaintiff alleges that other military and civilian personnel of the United States Marine Corps were aware of the fault with the barbecue[10] and that at least two of those persons informed a member of the Australian Defence Force of the fault on or about 24 July 2019.

[18] A significant pleading to the Fourth Defendant's case is the allegation that the Fourth Defendant owed the Plaintiff a non-delegable duty to take reasonable care to avoid exposing him to unnecessary risks of injury. The Statement of Claim alleges that arises as a consequence of the employment relationship between the Plaintiff and the Fourth Defendant.

[19] For reference purposes I now set out extracts of the relevant statutory provisions and rules.

Where an endorsement of claim on a writ or originating motion or a pleading or a part of an endorsement of claim or pleading:

(a) does not disclose a cause of action or defence;

(c) may prejudice, embarrass or delay the fair trial of the proceeding; or

(d) is otherwise an abuse of the process of the Court,

the Court may order that the whole or part of the endorsement or pleading be struck out or amended.

(2) On an application under rule 23.02 no evidence shall be admissible on the question whether an endorsement of claim or pleading offends against that rule.

[21] Secondly, from the FSIA, sections 6, 9, 12, 13 and 38.

This Act does not affect an immunity or privilege that is conferred by or under the Consular Privileges and Immunities Act 1972, the Defence (Visiting Forces) Act 1963, the Diplomatic Privileges and Immunities Act 1967 or any other Act.

Except as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding.

(1) A foreign State, as employer, is not immune in a proceeding in so far as the proceeding concerns the employment of a person under a contract of employment that was made in Australia or was to be performed wholly or partly in Australia.

(2) A reference in subsection (1) to a proceeding includes a reference to a proceeding concerning:

(a) a right or obligation conferred or imposed by a law of Australia on a person as employer or employee; or

(b) a payment the entitlement to which arises under a contract of employment.

(3) Where, at the time when the contract of employment was made, the person employed was:

(a) a national of the foreign State but not a permanent resident of Australia; or

A foreign State is not immune in a proceeding in so far as the proceeding concerns:

(a) the death of, or personal injury to, a person; or

caused by an act or omission done or omitted to be done in Australia.

Where, on the application of a foreign State or a separate entity of a foreign State, a court is satisfied that a judgment, order or process of the court made or issued in a proceeding with respect to the foreign State or entity is inconsistent with an immunity conferred by or under this Act, the court shall set aside the judgment, order or process so far as it is so inconsistent..

[22] Thirdly, from the Defence (Visiting Forces) Act 1963 (Cth) (DVFA), section 13.

1. Restriction of proceedings in respect of service of members etc. of visiting force

Proceedings shall not be brought in any court with respect to:

(a) the pay of a person in respect of his or her service as a member of a visiting force or of a civilian component of a visiting force;

(b) the terms of a person's service as a member of a visiting force or of a civilian component of a visiting force; or

(c) a person's discharge from the service of a visiting force or of a civilian component of a visiting force. stuart@etgwealth.au

[23] The public international law principles of foreign State immunity in respect of the issues in this case concern inter alia the concepts of jure imperii and jure gestionis. The former refers to what are otherwise referred to as sovereign acts of a foreign State. The latter refers to other acts of a foreign State, not being sovereign acts, and they are commonly described as private or commercial acts. Whenever any of those terms are referred to in these reasons, they should be read on that basis.

[24] The First Defendant elected not to present any submissions on the application.

[25] The Fourth Defendant's claim to foreign State immunity is made in two separate ways, albeit that there was some overlap between the arguments.

[26] The first is on the basis that the Plaintiff's claim is said to be with respect to "the terms of a person's service" ("the Phrase") within the meaning of that phrase in section 13(b) of the DVFA. That depends on the statutory construction of the Phrase but if that is correct then the Fourth Defendant has immunity by the conflation of that provision and sections 6 and 9 of the FSIA.

[27] The second basis is that the exception to immunity in section 13 of the FSIA does not apply in the current case as that provision is to be interpreted and read as based on the principles of customary international law. In turn, those principles provide that the foreign State immunity exists in respect of acts of a foreign State that are jure imperii. On that theory, known as the restrictive theory of immunity, the exception in section 13 of the FSIA will only apply to acts which are jure gestionis. If that is correct, and if the incident which resulted in the Plaintiff's injuries was a sovereign act, that will mean that the exception to immunity in section 13 of the FSIA would not apply. Therefore the general immunity provided in section 9 of the FSIA would deprive this Court of jurisdiction to hear and determine the Plaintiff's claim.

[28] All parties agree that only the bar provided for in subsection (b) of section 13 of the DVFA applies in the current case. Likewise there is no dispute between the parties as to other formal or incidental matters such as that this Court falls within the definition of "court" in the DVFA, or that the DVFA applies to the United States of America, or that the Plaintiff is a member of a "visiting force" as defined in the DVFA.

[29] Both limbs of the Fourth Defendant's case are founded on the customary international law applying prior to the codification effected by the enactment of the FSIA. Mr Ward set out the relevant customary international law in great detail and relying extensively on Chow Hung Ching v The King ("Chow").[11] The judgment of Dixon J in that case sets out the international law background to the principles dealing with jurisdiction in respect of visiting military forces. I accept that decision as a statement of the principles as they applied prior to the legislative intervention.

[30] As is evident from Chow, historically the doctrine that a foreign State is immune from the jurisdiction of the local Courts was absolute. Although section 9 of the FSIA maintains the immunity as a general rule, it also provides for some exceptions so that the immunity is no longer absolute. That makes section 13 of the DVFA and section 13 of the FSIA relevant to the current application.

[31] Whether the immunity applies on the first basis depends primarily on the meaning of the Phrase. The Fourth Defendant submitted that as the Phrase is not defined in the DVFA, its meaning is to be interpreted in context, having regard to statutory purpose and, in the case of ambiguity, in a manner consistent with Australia's international law obligations. The Fourth Defendant accepts that the FSIA codifies the law of foreign State immunity in Australia,[12] but says that nonetheless the customary international law may be utilised in interpreting provisions of that Act where appropriate.

[32] I agree, and that is consistent with the joint judgment of Gummow and Hayne JJ in Kartinyeri v The Commonwealth ("Kartinyeri") where their Honours said:[13]

"It has been accepted that a statute of the Commonwealth or of a State 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."[14]

[33] The Fourth Defendant's case is that section 13(b) of the DVFA is ambiguous thus calling in principles of statutory interpretation to aid in the construction of the Phrase. Absent an ambiguity, the ordinary meaning of the text in a statute would prevail, see Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue ("Alcan").[15]

[34] Mr Ward relied on the principle of statutory interpretation described in Kartinyeri and more recently confirmed by the High Court in Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l. ("Kingdom of Spain"),[16] to submit that the Phrase applied to sovereign acts. He argued that the Phrase was to be given a broad construction so as to apply to all aspects of the service of a member of a foreign military force, including the obligations of the commanding officers and of the foreign State to the service member. That was put on the basis that the Legislature intended that matters arising between a foreign service member and his State would be the subject of the previously existing immunity in respect of, and as a sovereign act of, a foreign State.

[35] Mr Ward based his submission on what he referred to as the unique relationship between a foreign State and the members of its military force. He referred to Chow as authority defining that relationship. He also relied on McElhinney v Ireland,[17] a decision of the European Court of Human Rights, as authority for the proposition that the actions of soldiers of a State whilst abroad are sovereign acts. As a statement of principle I agree. However, as I discuss below, not every action of a service member of a foreign State can be classified as a sovereign act. The actions of soldiers encompass a very broad range of activities. Even if the interpretation advanced by Mr Ward was accepted, it would still be necessary to establish that the act which resulted in the Plaintiff's injuries was a sovereign act. The determination of that question is discussed in greater detail below.

[36] Mr Ward argued that it would be untenable for a local Court to exercise jurisdiction for claims in tort by members of a military force against their State, or their superior officers, as a result of an accident that occurred on Australian soil. He submitted, citing Littrell v The United States of America (No 2) ("Littrell"),[18] that in cases where service members are injured in the line of duty the local Courts do not have jurisdiction to determine a claim for damages. That, it was submitted, would be akin to the local Court assessing the standards of equipment provided by the foreign State to its service members or the standard of training and the maintenance of equipment and the scrutiny of discipline, military orders and day to day control of military personnel.

[37] However, in my view, all of the foregoing activities are high end of the activities which can be regarded as military. Mr Ward used an analogy to demonstrate his point namely, a claim for injuries sustained by a service member from the failure of a piece of military equipment such as an aircraft, a missile launcher, a rifle or a parachute. I am not convinced that the analogy is appropriate in comparing a training or combat situation to the act in the current case of a service member using a barbecue to cook his own meal. I do not accept that every activity of a visiting military force is a military activity for this purpose.

[38] Part of the Fourth Defendant's argument is the submission that the FSIA gives effect to the restrictive theory of immunity. On that theory, acts which are jure imperii are immune from suit in the Courts of another country. No basis was put for the submission that the FSIA adopts and applies the restrictive theory of immunity in that way, nor is it apparent from the text of the FSIA.

[39] That claim also runs counter to the Australian Law Reform Commission, Foreign State Immunity, Report No 24 ("LRC Report_"_) which recommended that the distinction should be disregarded for the purposes of the tort exception at least. That recommendation was adopted by the Legislature in enacting the FSIA so it is difficult to accept that the intention of the Legislature was to maintain that distinction, or the operation of the theory. The Court is entitled to have regard to that for statutory construction purposes.[19]

[40] The Fourth Defendant relied on the decision in I Congreso del Partido as to the method of characterising State activity between acts jure imperii and acts jure gestionis.[20] That case essentially provides a very general statement that a Court, in considering whether foreign State immunity applies to a particular act, must consider the whole context in which the claim against the State is made. I accept that. Some guidance was also provided in the more recent case of Littrell. I deal below with the application of those principles to the circumstances in which the Plaintiff sustained his injuries.

[41] For now, and despite that the act in question involves the Plaintiff only cooking his own meal on a barbecue, the Fourth Defendant maintains that it is an act jure imperii as the allegations raised by the Plaintiff specifically allege failures of command going to the management and maintenance of the base and in particular the provision of food preparation equipment to service members. That was said to be because the circumstances in which the Plaintiff sustained his injuries were an inherent part of his service and because the Plaintiff would not have been in the position he was in when he sustained the injuries but for the fact that he was a member of the Fourth Defendant's military force at the time.

[42] Mr Ward added that allowing a service member to bring a tort claim against their State in the local forum would be debilitating to the internal functioning of the military as that in turn that would require the military to modify its conduct and standards of duty depending on the local law. Again that seems to relate more to the higher end of military type activities, which I agree would clearly be a military activity and clearly a sovereign act. However, that disregards the entirely different nature of the act which resulted in the Plaintiff's injuries.

[43] The Fourth Defendant relied on the pleading of the employment relationship in the Statement of Claim, arguing that by reason of that pleading, the Plaintiff's proceedings must therefore be with respect to the "the terms of a person's service". However, I do not agree that the pleading of an employment relationship alone, can be the basis for determining the meaning of the Phrase, nor that it necessarily renders the pleaded activity as one coming within the Phrase.

[44] Broadly, the Plaintiff and the Second Defendant and the Third Defendant, and based on various principles of statutory interpretation, each essentially assert that the Phrase does not encompass the circumstances in which the Plaintiff sustained his injuries and that, on its proper construction, the Phrase relates to either the period of service or to contractual terms similar to the other subsections of section 13 of the DVFA. In response the Fourth Defendant submitted that the interpretation of the Phrase advanced by the other parties has no contextual basis but that disregards the argument of the Plaintiff in respect of the historical legislative context.

[45] Mr Mullins added that the primary object of statutory construction is to construe provisions in a way consistent with the language and purpose of all of the provisions in the statute and on the basis that the provisions are intended to achieve results which will best affect the purpose and language of those provisions while maintaining the unity of all statutory provisions, relying on Project Blue Sky Inc v Australian Broadcasting Authority.[21]

[46] The Plaintiff advanced a number of reasons as to why the Phrase should be interpreted narrowly. The first was that, based on the Oxford English Dictionary definition, the natural and ordinary meaning of the word "term" in the Phrase related to time. The natural and ordinary meaning is the starting point for statutory construction. One shortcoming of that argument is the use of the plural in the Phrase but Mr Mullins relied on section 23(b) of the Acts Interpretation Act 1901 (Cth) that the singular includes the plural and vice versa to address that. Section 24(2) is the corresponding provision in the Interpretation Act 1978 (NT).

[47] The second reason involved the rule of statutory construction that statutes are to be interpreted in context.[22] Mr Mullins submitted that the context of the legislation was best determined by the history of the legislation,[23] from which he concluded that the Legislature intended that the Phrase be limited to temporal matters.

[48] Relevant legislation for context purposes was submitted to be firstly, the Defence (Visiting Forces) Act 1939 (Cth). That Act preceded the DVFA and, in section 6(5), provided for immunity in respect of "...the pay, terms of service or discharge of a member of a visiting force...". It was submitted that that section provided only for employment related matters.

[49] Secondly, the 1907 English Manual of Military Law. Paragraph 44 has a margin note that reads "Term of service" (i.e., in the singular), entirely relates to the period of service. I note that that is very dated and is apparently subordinate legislation. It lacks any useful connection, in statutory terms, to the legislation said to form the context relied on and I do not accept it is relevant to the historical legislative context.

[50] Next, two United Kingdom Acts firstly, the Visiting Forces Act 1952 (UK). As the second reading speech indicates, the DVFA is based on that United Kingdom Act.[24] Section 6 of that Act closely approximates the content and text of section 13 of the DVFA although in a different format. It provides:

"No proceedings shall be entertained by any United Kingdom court with regard to the pay of any person in respect of service as a member of a visiting force or as a member of a civilian component of such a force, with regard to the terms of such service or with regard to a person's discharge from such service."

Structured in this way I think the provision reads as relating to pay and discharge only and not in the way advanced by the Fourth Defendant. The phrase in that section closest in wording to the Phrase is "...with regard to the terms of such service..." and, reading the provision as a whole, that is only with respect to the pay of a service member.

[51] Secondly, sections 4-12 of the repealed Army Act 1955 (UK). The heading in that Act applicable to those sections is "Terms and conditions of service". Sections 4-12 inclusive relate to tenure type matters. That Act was repealed and replaced by the Armed Forces Act 2006 (UK). The heading to Part 14 of the 2006 Act is "ENLISTMENT, TERMS OF SERVICE ETC". Similarly with the repealed Act, the 2006 Act, in section 329 which is headed "Terms and conditions of enlistment and service" again only provides for employment matters and the period of service.

[52] The Fourth Defendant disputes that the Army Act 1955 (UK) is an appropriate consideration for historical legislative context purposes. As I understood the submission, that was on the basis that the Armed Forces Act 2006 (UK) provides specifically, and in detail, for terms of service such as the period of service, discharge, pay ranking etc and therefore it cannot be a guide to the interpretation of the Phrase but I disagree. It is relevant to context for what it does, and does not, provide for.

[53] Consideration of United Kingdom legislation in this way is permitted by the principle of statutory interpretation which allows, in some circumstances, the resort to the text in one Act to ascertain the meaning of the same or similar terms in another Act.[25] That most appropriately occurs between like Acts or Acts in pari materia. It is a principle of statutory interpretation that the Legislature is presumed to intend to attach the same meaning to the same words when used in a subsequent statute in a similar connection.[26] The in pari materia principle can be applied to the interpretation of statutes in different jurisdictions.[27] In my view, the Acts under consideration are in pari materia. The definitions can be persuasive but cannot displace the context of words used nor the purpose or object of the legislation.

[54] Although this partly relies on the text of a repealed Act,[28] utilising the text in a repealed Act should not affect the application of the principle as it is the text of the like Act which is important, not its currency.

[55] The third of the Plaintiff's reasons relates to the principle of statutory interpretation that an interpretation which gives a meaning to the words used in legislation is to be preferred.[29] That was relied on to submit that the very broad interpretation of section 13(b) of the DVFA proposed by the Fourth Defendant made the words in subsections (a) and (c) of section 13 of the DVFA redundant as the Fourth Defendant's interpretation would cover all aspects of the service of visiting military personnel. A similar submission was made concerning the words "terms of..." forming part of the Phrase. I think that is a strong point.

[56] The fourth reason, which has some overlap with the third, was that the Plaintiff's interpretation gave structural consistency to the Act. That was said to be the case because each of the matters in section 13 of the DVFA were administrative in nature. Mr Mullins accepted that it was proper for immunity to apply to administrative matters as they were matters appropriately governed by the laws of the foreign State as they related to the creation and maintenance of the relationship between the foreign State and its service member. He relied on the judgment of Latham CJ in Chow where his Honour said:

"In Australia legislation passed during the recent war provided that the authorities of visiting forces should have jurisdiction over their members in respect of matters of discipline and internal administration, but nevertheless preserved the jurisdiction of local civil (as distinct from military) courts:"[30]

[57] The fifth reason, which overlaps with the fourth reason, was that choice of law principles provided good practical reasons for maintaining the distinction advanced on behalf of the Plaintiff. Mr Mullins submitted that there was good reason that the Legislature would intend that anything other than a claim relating to the pay, period of service and discharge, should be dealt with in the local forum, again because each of those matters were administrative in nature.

[58] The Plaintiff additionally submitted that even if the Phrase was interpreted more broadly as the Fourth Defendant proposes, the vicarious liability claim fell outside the meaning of the Phrase. That part of the claim is in respect of liability vicariously for the negligent acts or omissions of the employees of the Fourth Defendant based on the pleading in the Statement of Claim referred to in paragraph 18 above. Put simply, the argument is that, as the Plaintiff has no contractual relationship with those other employees, a claim for vicarious liability cannot be said to be with respect to the terms of the Plaintiff's service. Mr Ward's response was that the context was the failure of command and if that was found to be the case, it would apply to vicarious liability as well as that is essentially the same in that context.

[59] Mr Mullins relied on an analogy with a claim by a contractor to emphasise his point. He submitted that if the same circumstances involved a third party contractor, and not a service member, there is little doubt that the contractor would have a claim against the Fourth Defendant on the basis of vicarious liability. That is correct because section 13 of the FSIA would clearly apply. However, that cannot be determinative as the analogy has no regard to the core consideration of foreign State immunity given the specific reference to members of visiting forces in section 13(b) of the DVFA. In my view that renders the Plaintiff's comparison with a contractor inappropriate in the circumstances of this case.

[60] Having regard to all of the foregoing, in summary the Plaintiff supported broadly by the Second Defendant and the Third Defendant, submitted that on its proper construction, and consistent with its historical context, the Phrase should be interpreted in a limited way and confined to either the duration of the Plaintiff's service, i.e., the temporal sense of the word 'term', or to contractual matters relating to the Plaintiff's service or to employment related matters. Sections 13(a) and 13(c) of the DVFA were said to be consistent with that position as both of those subsections relate only to different aspects of service in a broad grouping of industrial type contractual arrangements. Based on that, and the legislative history of the DVFA, and that contextually the matters in sub sections (a) and (c) of section 13 of the DVFA also relate to administrative type matters, the Phrase does not extend to capture claims for damages for personal injury based on tortious conduct including claims based on vicarious liability.

[61] Mr Baddeley, counsel for the Second Defendant added, relying on Alcan, that it was a principle of statutory interpretation that where the natural and ordinary meaning of the language of the statute is clear, that is determinative of its meaning and therefore it is not appropriate to go beyond that and apply other principles of statutory construction. He added that if the Legislature had intended a foreign State to be immune from tortious actions it could have easily said so and cited as an example section 16(2) of the State Immunity Act 1978 (UK) where such a blanket exception was legislated. That provision is discussed in more detail below in the context of the second limb of the Fourth Defendant's case.

[62] Determination of the first basis of the Fourth Defendant's case is essentially a matter of statutory interpretation of the Phrase. The various principles of statutory interpretation relied on by the parties have been discussed. Although the parties had differing views on the application of the principles, there did not appear to be much difference of opinion regarding the principles themselves.

[63] The Fourth Defendant's submission that the Phrase is ambiguous opens it up to the application of the principle confirmed in Kingdom of Spain namely, that statutory provisions are to be interpreted as far as possible so as to be consistent with international law. However, I do not see how that mandates an interpretation based on customary international law which regards foreign State immunity as absolute, nor why it should be interpreted as referring to every aspect of the activities of a visiting military force in the face of the text and context of section 13 of the DVFA as a whole.

[64] I think a very telling factor countering the argument of the Fourth Defendant is the absence of clear wording in section 13(b) of the DVFA in terms as advanced by the Fourth Defendant. In other words, I think the Fourth Defendant reads too much into the provision. The statement in Alcan, is instructive and apt namely:

"This Court has stated on many occasions that the task of statutory construction must begin with the consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to the legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy."[31]

[65] Consistent with the principle in Alcan, context may be reverted to in the interpretation process in particular for purpose and policy reasons. I cannot discern from that principle anything which justifies giving the Phrase an interpretation which encompasses all military activities which more or less is the interpretation advanced by the Fourth Defendant. That is not consistent with the context in my view. I prefer the submission of the Plaintiff that the context should be set by the legislative background of the DVFA, including the history of in pari materia Acts and according to the administrative nature of the matters provided for in section 13 of the DVFA as a whole.

[66] Having regard to the arguments discussed above, and also to, but without now repeating, the comments I made in the course of that, I accept the Plaintiff's argument, and that of the Second Defendant and the Third Defendant, that the Phrase refers to temporal aspects of the Plaintiff's employment or to other contractual employment type matters. I therefore conclude that the Phrase does not encompass the circumstances by which the Plaintiff sustained his injuries and accordingly I reject the Fourth Defendant's claim to immunity on the first basis.

[67] Dealing now with the second limb of the case of the Fourth Defendant. In summary the Fourth Defendant's case is that section 13 of the FSIA is to be interpreted as only applying to acts jure gestionis. The Fourth Defendant submitted that section 13 of the FSIA was intended to maintain the immunity as was available under the customary international law. As the Fourth Defendant says that the events resulting in the Plaintiff's injuries were acts jure imperii, section 13 does not apply and therefore the general immunity in section 9 of the FSIA deprives this Court of jurisdiction.

[68] The action which resulted in the Plaintiff's injuries is claimed to be an act jure imperii as it related to failures of command going to the management and maintenance of a military base and the provision of food preparation equipment on that base. That therefore rendered that act a military activity.

[69] Mr Ward made a similar submission as part of the first basis of the Fourth Defendant's case and again relied on that in the course of determining whether an action is properly characterised as a sovereign act or otherwise. He likewise submitted that the Court must consider the whole context in which the claim against the foreign State is made[32] and I accept that at least. I also accept that it is well established that military activities are recognised as sovereign acts under international law.

[70] As a general observation preliminary to consideration of section 13 of the FSIA, it is trite to say that, as with the common law, generally the Legislature can modify the customary international law in any way that it sees fit. At one extreme it can totally adopt the customary international law in statutory form. At the other extreme it can totally alter the previous law and enact alternative provisions.

[71] That leads to a consideration of the LRC Report in this context. The Australian Law Reform Commission made recommendations in respect of the Act which would ultimately be enacted as the FSIA.[33] The LRC Report was also relied on to support that proposition. Relevantly that provides:

"Where a foreign state wrongfully causes death for personal injury or damages property within the forum state, the forum's interest in asserting jurisdiction over the wrongful act seems clear. There is no merit in such cases in requiring the plaintiff to litigate in the defendant states courts when the forums courts provide the obvious and convenient local remedy. This argument applies to all torts properly within the jurisdiction irrespective of whether they originate in an act which might be described as 'sovereign', 'governmental' or jure iperii. 'The distinction between jus imperii and jus gestionis... appears to have little or no bearing in regard to this exception' to immunity... Nonetheless it is recommended that the proposed legislation contain a provision removing immunity for actions in tort without reference to any governmental/commercial distinction."[34]

[72] I repeat the observations concerning the LRC Report made by the plurality of the High Court in PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (Garuda), [35] namely:

"... the [Law Reform Commission] traced the development of common law doctrine from the rule of absolute immunity to a more restrictive view of the immunity.... The Outline contained in the Explanatory Notes for the proposed legislation, which is contained in Appendix A to the Report, identified the purpose of the proposed Australian legislation as being to reflect the more restrictive view of the common law immunity which had been taken in other countries and adopted in legislation."[36]

[73] This Court may have regard to the LRC Report in the interpretive process.[37] That Report may be utilised to determine the legislative context, in particular the mischief which the FSIA is seeking to remedy.[38] The Australian Law Reform Commission recommended that the FSIA should not adopt all aspects of the then existing customary international law, in particular that there should not be any distinction between acts which are jure imperii and acts which are jure gestionis for the purposes of the immunity. It recommended that the legislation remove the immunity for actions in tort and without reference to the nature of the act.[39] The subsequent enactment of these provisions in the FSIA in the form of the draft provided by the Australian Law Reform Commission must be a clear statement of the intention of the Legislature in respect of section 13 of the FSIA.

[74] The Fourth Defendant referred to Littrell, ostensibly as an example of the application of the doctrine under customary international law, but in case he relied on that as authority for his argument, as the responses of the other parties seem to assume, I will consider that case further.

[75] Littrell involved a plaintiff who was a serving member of the United States Air Force based in the United Kingdom. He was provided treatment in a United States military hospital on that base and later sought to claim against the United States of America for loss sustained as a result of that treatment. The Court of Appeal found that the Plaintiff's medical treatment in the United States military hospital was an act jure imperii and foreign State immunity applied to deprive the local Courts of jurisdiction to hear and determine the plaintiff's claim.

[76] Although the case can fairly be said to be an example of the application of the doctrine under customary international law, for the reasons that follow I do not consider that it can support the Fourth Defendant's case. That is because of material differences in the applicable legislative provisions. Littrell was based on the State Immunity Act 1978 (UK), which is similar to the FSIA. Section 1(1) of that Act contained a provision corresponding to section 9 of the FSIA. Likewise, section 5 of that Act contained a torts exception which corresponded to section 13 of the FSIA. The claim of the plaintiff in Littrell was a claim which fell within the equivalent torts exception in the United Kingdom Act and ordinarily the general immunity would not apply by reason of the torts exception. However, section 16(2) of the United Kingdom Act, specifically provided that the Act did not apply to proceedings relating to anything done by or in relation to the Armed Forces of a State while present in the United Kingdom.

[77] The net effect was that the case fell to be determined according to the customary international law. The restrictive theory of immunity then applying, that reverted to a determination as to whether the circumstances leading to the plaintiff's injury were jure imperii or jure gestionis. They were found to clearly be the former and consequently the general immunity applied. Were it not for section 16(2) of the United Kingdom Act, the immunity would not have applied. As Mr Baddeley submitted, that was clear from the judgment of Hoffman LJ where, his Lordship said:

"A claim to state immunity in respect of an action for personal injury would ordinarily fail because section 5 of the State Immunity Act 1978 says in terms that 'a State is not immune as respects proceedings in respect of... personal injury... caused by an act or omission in the United Kingdom.'"[40]

[78] Section 16(2) in the United Kingdom Act is a critical distinguishing feature to the current case as the FSIA does not contain a corresponding provision.

[79] All parties, other than the Fourth Defendant, argued that section 13 of the FSIA is unequivocal in so far as it provides that a foreign State is not immune to a proceeding relating to personal injury to a person in respect of an act or omission done or omitted to be done in Australia. Therefore, it was submitted, there was no basis to read in the limitation advanced by the Fourth Defendant. I agree.

[80] All parties, other than the Fourth Defendant, also relied on Al-Masarir v Kingdom of Saudi Arabia (Al-Masarir).[41] The Fourth Defendant was critical of that decision firstly, as it was a decision of a single Judge and was currently on appeal. However, it remains persuasive authority and in any case I agree with the conclusions reached in that case. Secondly, because that case was factually different to Littrell as it did not involve the relationship between a member of a foreign military force and is government. I do not consider that that factual difference affects the statement of the principle in that case and in my view the principle remains valid notwithstanding that factual difference.

[81] As in Littrell, in Al-Masarir immunity was claimed pursuant to the State Immunity Act 1978 (UK). Although there were other issues in respect of the other requirements in the equivalent of section 13 of the FSIA, the primary issue in Al-Masarir was whether the torts exception in that Act applied to acts which were jure imperii.

[82] As with the Fourth Defendant in the current case, the defendant in Al-Masarir argued that based on customary international law, the torts exception in the United Kingdom Act only applied to acts which were jure gestionis. Essentially, that the exception to the general immunity should be narrowly interpreted, based on customary international law and applying the restrictive theory of immunity.

[83] In Al-Masarir the Court accepted that the provisions of the United Kingdom Act had to be construed against the background of the principles of customary international law. However, the Court recognised that while the customary international law was relevant in resolving ambiguities in the meaning of statutory language, those principles are not capable of overriding the terms of a statute which lacked ambiguity. The same can be said in respect of the FSIA.

[84] The Court was satisfied that there was no ambiguity in the wording of the equivalent of section 13 of the FSIA. Indeed, the equivalent section was described as "not a complicated provision".[42] It was found to apply to all acts and omissions occurring in the United Kingdom of whatever type and whether sovereign or otherwise. In coming to that conclusion, the Court applied the statutory interpretation principle that the plain meaning of the terms of a statute are to be applied and that the ordinary grammatical meaning was the meaning intended by the Legislature.

[85] The Court also said that had Parliament intended the immunity to be restricted to private acts, it could have simply said so by the addition of a few words exempting sovereign acts. That Parliament did not do so further supported an interpretation of the provision as applying to both sovereign acts and private acts. Again, the same can be said of the FSIA.

[86] That appears particularly relevant to the current case by reason that the LRC Report recommended the abolition of the distinction. In light of that, if the Legislature had intended section 13 of the FSIA to only apply to acts jure gestionis, then again the Legislature could have so provided_._ I repeat the point made above that the LRC Report provided a draft of the section that the Australian Law Reform Commission recommended for that purpose. As the Legislature adopted that draft unamended, that clearly evidences the intention of the Legislature in respect of that section.

[87] The Second Defendant additionally relied on Garuda where the plurality of the High Court said that section 9 of the FSIA was "..exhaustive of the common law and indicates that statute as providing the sole basis for foreign state immunity in Australian Courts".[43] The Second Defendant argued that negatived the application of Littrell under Australian law. I agree that Littrell is not applicable for the reasons already discussed but, although I accept that the FSIA is a codification of the law of foreign State immunity in Australia, I do not agree that totally displaces the customary international law having regard to Kartinyeri and in Kingdom of Spain.

[88] Mr Slade, counsel for the Third Defendant agreed that section 13 of the FSIA was a clear and unambiguous exception to the immunity. He submitted that the codification of foreign State immunity by the FSIA meant that it was no longer appropriate to interpret the FSIA consistent with international law as that was only of historical significance and no longer relevant given clear text of section 13 of the FSIA which does not adopt the distinction between the two types of acts.

[89] I turn now to the determination of whether an act of a foreign State is sovereign or private in nature. As discussed above as part of the first basis of the Fourth Defendant's case, I Congreso del Partido provided that in general terms, determination of the proper characterisation of an act was to be assessed in the context of all the circumstances and as a general statement, I agree.

[90] More recently, Littrell provided more specific guidance for determining that question. Relevant factors were said to be firstly, where the incident occurred. In that case, that was found to be clearly within the "lines" of the "fortress" as it occurred in a military hospital, run and operated solely by the United States and on a base operated solely by the United States. Secondly, who was involved in the incident. There, only members of the visiting force were involved and it was said that made it more likely to be a sovereign act. Thirdly, what was the nature of the act, particularly was the act wholly military in character. In that case, the act on which the plaintiff's claim was based involved, and occurred in, a military hospital operated by the United States on that base and that was found to clearly be a military activity and therefore a sovereign act.

[91] Applying that to the current case, the base was not exclusively a United States base. It is alleged in the Statement of Claim that the Commonwealth is the owner or occupier of the base. It is an Australian base which also accommodated the United States Marines.

[92] Secondly, as the number of named Defendants attests, it is clear that the Plaintiff's claim does not only involve United States personnel. The Plaintiff is a member of the United States Marines as are those personnel of the United States Marines that are the basis for the claim for vicarious liability. However, the involvement of the remaining Defendants must also be considered. The First Defendant is alleged to be the owner or occupier as aforesaid. The Statement of Claim also pleads that the Second Defendant was engaged by the First Defendant to maintain the First Defendant's equipment on the base and that is alleged to include the barbeque. The Third Defendant is alleged to be a contractor of the Second Defendant for the purposes of performing the Second Defendant's maintenance responsibilities, therefore again being involved with the barbecue.

[93] Lastly, the nature of the act. I accept that it could be characterised as an operational matter if the Plaintiff had been a cook in the mess on the base where meals were provided to all United States personnel and if he was injured when lighting a gas cooker. However, and although the precise location of the barbecue in the context of the ownership, occupation and control of the base is not currently known, to the extent that the base was a shared facility and that the Plaintiff was using the barbecue to cook his own meals, the situation is unclear. Certainly a barbecue, even if located on a jointly occupied military base, is not an item of military equipment.

[94] It is clear that Hoffman LJ in Littrell did not consider that everything occurring in the base would be a sovereign act. Although he said that the maintenance of an Air Force Base in the United Kingdom was "..as imperial an activity as could be imagined" his Lordship said it was too simplistic to regard a context such as the maintenance of an Air Force Base as encompassing all activities on the base. He noted that acts done within that context could range from "... arrangements concerning the flights of bombers (plainly jure imperii_) to ordering milk for the base from a local dairy or careless driving by off-duty airmen on the roads of Suffolk. Both of the latter would seem to me to be_ jure gestionis."[44] Clearly it is too simplistic to describe everything to do with the operation of a base as being an imperial activity. The current circumstances place the activity resulting in the Plaintiff's injuries much closer to the ordering of goods than the flight of a military aircraft.

[95] Although it will depend on evidence to support the allegations pleaded in the Statement of Claim, on a preliminary basis and assuming proof of those allegations, in my view the relevant act cannot be characterised as a sovereign act.

[96] For the foregoing reasons, I think that the Fourth Defendant's claim that, in enacting the FSIA the Legislature intended to apply the concepts of jure imperii or jure gestionis is untenable. With that falls the whole basis of the Fourth Defendant's argument in respect of section 13 of the FSIA. I agree that section 13 of the FSIA is a straightforward provision and unambiguous in its meaning having regard to the ordinary meaning of the text used in the provision. Also, given the Australian Law Reform Commission background to the FSIA, if any intention of the Legislature is evident in the FSIA, in my view that is that the exception to immunity in section 13 of the FSIA is to be entire and to apply divorced of the distinction between acts which are sovereign acts and private acts.

[97] In any case, I am not satisfied that the circumstances resulting in the Plaintiff's injuries were an act jure imperii.

[98] For those reasons I also dismiss the Fourth Defendant's claim to immunity on the second basis.

[99] Accordingly I dismiss the application in its entirety. I will hear the parties as to any ancillary orders.

[1] See Zhang v Zemin [2010] NSWCA 255; (2010) 243 FLR 299 at 309 [33] and the cases cited there.

[2] PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2012] HCA 33; (2012) 247 CLR 240 at 247; Kingdom of Spain v Infrastructure Services Luxembourg S.a.r.l. [2023] HCA 11 at [12].

[5] Olive & Anor v Oceanview Developments Pty Limited & Ors [2023] NTSC 38.

[6] [2020] HCA 43; (2020) 270 CLR 372.

[7] [2020] HCA 43; (2020) 270 CLR 372 at 392.

[8] (1996) 40 NSWLR 250.

[9] Zhang v Zemin [2010] NSWCA 255; (2010) 243 FLR 299 at 308-309.

[10] Statement of Claim paragraphs 14-18.

[11] [1948] HCA 37; (1948) 77 CLR 449.

[13] Kartinyeri v The Commonwealth [1998] HCA 22; (1998) 195 CLR 337 at 384.

[14] See also Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l. [2023] HCA 11 at [16].

[15] [2009] HCA 41; (2009) 239 CLR 27.

[16] [2023] HCA 11 at [16].

[17] European Court of Human Rights, Grand Chamber, Application No 31253/96, 21 November 2001 at [38].

[18] [1995] 1 WLR 82.

[19] Acts Interpretation Act 1901 (Cth), s 15AB(2); Interpretation Act 1978 (NT), s 62B(2).

[20] [1983] 1 AC 244.

[21] (1998) 194 CLR 355 at 381-382.

[22] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at para 69; see also D Pearce, Statutory Interpretation in Australia (Lexis Nexis, 9th ed, 2019) at p 42 and 66.

[23] Per Alcan at 46, context, including legislative history, can be considered when interpreting the text of a statute.

[24] Australia, House of Representatives, Defence (Visiting Forces) Bill 1963, Second Reading Speech, 24 October 1963; that is extrinsic material that is permitted to be considered for statutory interpretation purposes by reason of s 15AB(2) of the Acts Interpretation Act 1901 (Cth) and s 62B(2)of the Interpretation Act 1978 (NT).

[25] Alfonso v Northern Territory [1999] NTSC 117.

[26] Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380, 393 [131]. See generally the discussion in D Pearce, Statutory Interpretation in Australia (LexisNexis, 9th ed, 2019) at pp 119-122.

[27] See discussion in D Pearce, Statutory Interpretation in Australia (LexisNexis, 9th ed, 2019) at p 120.

[29] D Pearce, Statutory Interpretation in Australia, (LexisNexis, 9th ed, 2019) at p 67.

[31] [2009] HCA 41; (2009) 239 CLR 27 at 46 [47].

[32] I Congreso del Partido [1983] 1 AC 244.

[33] Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l. [2023] HCA 11 at para 11.

[35] [2012] HCA 33; (2012) 247 CLR 240.

[36] [2012] HCA 33; (2012) 247 CLR 240, 245 [7].

[37] Acts Interpretation Act 1901 (Cth), s 15AB(1); Interpretation Act 1978 (NT), s 62B(1). That applies equally to the other extrinsic materials referred to in the Acts Interpretation Act 1901 (Cth), s 15AB(2) and the Interpretation Act 1978 (NT), s 62B(2).

[38] Thor Shipping A/S v Al Duhail [2008] FCA 1842; (2008) 173 FCR 524, 539 [52]; Republic of Italy v Benvenuto [2018] FCAFC 64; (2018) 261 FCR 19, 28 [36]; Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l. [2023] HCA 11 at [11].

[39] Refer the extract of the LRC Report at para 71 above.

[41] [2022] EWHC 2199 (QB).

[43] [2012] HCA 33; (2012) 247 CLR 240 at 245 [8].