Recent Cases

Greylag Goose Leasing 1410 Designated Activity Company v P.T. Garuda Indonesia Ltd [2023] NSWCA 134 (14 June 2023) (Bell CJ, Meagher and Kirk JJA)


Catchwords:


CORPORATIONS — Insolvency — Application to wind up foreign air carrier — foreign carrier a “separate entity of a foreign State” within the meaning of the Foreign States Immunities Act 1985 (Cth) (FSIA) — whether separate entity entitled to immunity under s 9 of FSIA — whether proceedings fell within an exception to the general immunity – proper construction of s 14(3) of FSIA — whether application to wind up a separate entity of a foreign State fell within exception or whether exception was confined to proceedings where foreign State or separate entity had an interest in property in proceedings concerning the bankruptcy, insolvency or the winding up of a body corporate

PRIVATE INTERNATIONAL LAW — Jurisdiction — Immunities – Foreign States Immunities Act 1985 (Cth) (FSIA) — where winding up proceedings brought against separate entity of a foreign state – where separate entity claims immunity under s 9 of FSIA – whether nature of proceedings within s 14(3)(a) of FSIA and thus within an exception to the s 9 immunity — proper construction of s 14(3) of FSIA — relevance of Australian Law Reform Commission Report No. 24 Foreign State Immunity in construction of FSIA and ascertainment of statutory purpose — whether proceedings for the winding up of a “separate entity” within the meaning of the FSIA were proceedings concerning the bankruptcy, insolvency or the winding up of a body corporate – whether exception to statutory immunity on its proper construction applies to suscept separate entity of foreign state to winding up proceeding of the separate entity itself

STATUTORY INTERPRETATION — Foreign States Immunities Act 1985 (Cth) (FSIA) — Literal meaning and legal meaning of statutory provisions — Context — Extrinsic materials as part of statutory context — relevance of Australian Law Reform Commission Report No. 24 Foreign State Immunity in construction of Foreign States Immunities Act 1985 (Cth) and ascertainment of statutory purpose – where second reading speech and explanatory memorandum state that the subsequent Act is based on Law Reform Commission Report