Firebird Global Master Fund II Ltd v Republic of Nauru [No 2]

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Kiefel,Nettle,Gordon JJ
• Judgment Date: 23 December 2015
• Neutral Citation: [2015] HCA 53
• Docket Number: S29/2015
• Date: 23 December 2015

[2015] HCA 53

HIGH COURT OF AUSTRALIA

French CJ, Kiefel, Nettle and Gordon JJ

S29/2015

Firebird Global Master Fund II Ltd

Appellant

and

Republic Of Nauru & Anor

Respondents

Firebird Global Master Fund II Ltd v Republic of Nauru [No 2]

Civil procedure — Costs — Where appellant succeeded on certain issues on appeal but unsuccessful in overall outcome — Whether costs order apportioning costs between parties or order that each party bear their own costs appropriate.

Words and phrases — ‘costs follow the event’.

ORDER

Appellant to pay the respondents' costs of the appeal to this Court.

1 French CJ, Kiefel, Nettle and Gordon JJ. On 2 December 2015, this Court made orders that, save in one respect, upheld the decision of the Court of Appeal of the Supreme Court of New South Wales from which the appellant (‘Firebird’) appealed to this Court 1. The exception was that a variation was made to the order made by the Court of Appeal which had the effect that Firebird retained its registration of the foreign judgment against the first respondent (‘Nauru’).

2 The issues on the appeal to this Court were:

• (1) whether Nauru was immune from the jurisdiction of the Supreme Court of New South Wales in the proceeding for registration of the foreign judgment by virtue of the Foreign States Immunities Act 1985 (Cth) (‘the Immunities Act’);

• (2) whether the relevant provisions of that Act were impliedly repealed by the Foreign Judgments Act 1991 (Cth);

• (3) whether registration of the foreign judgment should be set aside because Firebird had not served Nauru in accordance with the requirements of the Immunities Act;

• (4) whether Nauru was immune from execution over certain property it held in Australia by reason of the Immunities Act.

3 The first issue involved two questions: whether the application for registration of the foreign judgment was a ‘proceeding’ within the meaning of s 9 of the Immunities Act; and whether the exception to that immunity, provided by s 11, applied. This Court held that the application was a ‘proceeding’ to which s 9 applied and that Nauru therefore would have enjoyed immunity from jurisdiction pursuant to s 9, but that the exception in s 11 operated to deny that immunity.

4 Firebird's success on this appeal was limited to the issues concerning s 11 and service. It was unsuccessful on all other issues, including the issue as to...