Enforcement sought for foreign award comprising NZ, US, Fijian dollars
Australia’s Federal Court has found it appropriate to grant a New Zealand-based applicant permission to serve an interlocutory application and supporting materials on a body corporate that was a Fijian agent or instrumentality outside Australia.
In Stantec New Zealand v Fiji Roads Authority, [2025] FCA 1149, the parties had consultancy and arbitration agreements. A dispute arose under the consultancy agreement.
According to the applicant, a 17 January 2022 final foreign award ordered the respondent to pay the applicant:
The applicant brought an originating application under r 28.44 of the Federal Court Rules 2011 (Cth) seeking to enforce the foreign award against the respondent under s 8(2) of the International Arbitration Act 1974 (Cth).
The applicant chose to serve the originating process and supporting documents on the respondent outside of Australia. The applicant asserted that the respondent was a body corporate established under the Fiji Roads Authority Act 2012.
The applicant alleged that it properly served the originating process on the respondent in the Republic of Fiji under Fijian law by leaving a copy of the originating process, a supporting affidavit, and Form 26A with the respondent’s chairman. The respondent filed no notice of address for service.
The applicant filed an interlocutory application. It requested leave to proceed against the respondent in the absence of a notice of address for service under r 10.43D of the Rules, as well as a r 17.03(a) order to serve its application on the respondent without a filed address for service.
The Federal Court of Australia granted the applicant leave to serve the interlocutory application and supporting documents on the respondent outside Australia by a mode authorised for serving writs of summons issued by the High Court of Fiji.
The court determined that such service would come to the attention of the respondent’s officer authorised to deal directly and responsively with the documents through service by either method stated in Order 10 r 1(1) or r 1(2)(a) of Fiji’s High Court Rules.
The court saw no basis to suggest that Fijian law prohibited serving an interlocutory application issued by an Australian court on the respondent in Fiji through the method or mode contemplated.
Upon considering the Fiji Roads Authority Act’s provisions, the court found it reasonably arguable that the respondent was a body corporate that was a Fijian agent or instrumentality or a separate entity of a foreign state under the Foreign States Immunities Act 1985, not a department or organ of the Fijian government’s executive arm.
The court also deemed it reasonably arguable that a proceeding to enforce the final award against the respondent fell within an exception to immunity under the Foreign States Immunities Act. This exception pertained to proceedings to enforce arbitral awards arising from disputes involving commercial transactions.
