High court of Australia rules in favour of Nauru in Firebird case
1. On the 3 September 2014,
Firebird Global Master Fund sought to garnishee or freeze funds
belonging to Nauru in Australian bank accounts. Firebird had
obtained judgment against Nauru for a sum in excess of $30 million
arising from the issuance of bonds by the Nauru Finance Corporation
close to two decades ago. Government guaranteed those bonds in the
event of a default by the Corporation.
2. On 10 September 2014, the Common
Law Division of the Supreme Court of NSW issued a Garnishee Order
against Nauru. The legal effect of the Garnishee Order was
that it caused all funds in the name of Nauru held in Westpac bank
accounts in Australia to be frozen.
3. In September 2014, Nauru applied
to have the registration of the Japanese judgment set aside in the
Supreme Court. In October 2014, Justice Peter Young ruled in favor
of Nauru and set aside the registration of the Japanese
4. Firebird subsequently appealed
to the NSW Court of Appeal against the decision of the Supreme
Court in favor of Nauru. On 23 October 2014, the NSW Court of
Appeal handed down its decision in favour of Nauru. It dismissed
Firebird's appeal against the decision of the Supreme Court.
5. In September this year Firebird
appealed to the High Court of Australia against the decision that
went against it in the Supreme Court and Court of Appeal of
6. In a lengthy 74 page judgment
handed down today 2 December 2015 in Canberra, a Full Bench of the
High Court of Australia (comprising 5 Judges headed by Chief
Justice Robert French) dismissed Firebird's appeal and ruled that
Nauru is "immune from the jurisdiction of Australian courts"
subject to various exceptions in the Immunities Act.
7. The High Court found that Nauru
is immune from execution against its property and bank accounts
Australia because they had been earmarked for government, and not
8. It is noteworthy that the High
Court reaffirmed and accepted the evidence of the Minister for
Finance Hon. David Adeang as to the purposes to which various
Government accounts were to be applied.
9. Mr Robert Dick SC, Darrell
Barnett and Naomi Oreb of Banco Chambers (Sydney) acted as Counsel
for the Government of Nauru. John Lobban and Meredith Bennett of
Ashurst Lawyers Brisbane briefed Counsel. The Department of Justice
in Nauru provided support to the Australian lawyers.