We are often asked how can I enforce a judgment of a foreign jurisdiction in Australia.
If a foreign judgment is able to be recognised and registered in one Australian jurisdiction it can be enforced in all the other Australian jurisdiction by virtue of the Service and Execution of Process Act 1992.
Australian is party to two important bilateral treaties with New Zealand and Australia which provide for recognition of certain civil and commercial judgments.
The Australian and New Zealand government are party to the Trans-Tasman Court Proceedings and Regulatory Enforcement No 32 if 2013 which is a treaty and described by the Australian Attorney General on their website introduced a regime to streamline the processes for managing and resolving civil and criminal proceedings, where elements of the proceedings span both countries. The aim of this regime is to reduce the costs associated with litigation, improve efficiency and minimise the existing barriers to enforcing judgments and regulatory sanctions between the two countries.
The treaty underpins the Trans-Tasman Proceedings Act 2010 (Cth) which allows a court in the other jurisdiction where a final judgment is made ordering someone in to pay money or do something specific property be able to register the judgment in that other country and then enforce it.
Australian Treaty Series 1994 No 27 provided for an Agreement between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland providing for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters.
The Legislative Framework
Three Commonwealth legislative instruments which govern the recognition, registration and enforcement of foreign judgments in Australia are:
- The Foreign Judgments Act 1991 (Cth)
- The Trans-Tasman Proceedings Act 2010 (Cth)
- The Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth)
The Foreign Judgments Act 1991 (Cth)
This Act permits the registration of a foreign judgment and replaced the various State and Territory Acts.
The Act provides that the appropriatecourt to hear and determine an application for registration of a foreign judgment in Australia is determined by the type of foreign judgment which will normally be the Supreme Court of a State or Territory.
It is a requirement under the Act the must be ‘substantial reciprocity’ as to the Australian courts.
It currently applies to twenty-four countries including the United Kingdom, Singapore, Korea, Japan, Italy, Germany, France, the superior courts of Hong Kong, several UK overseas territories, and three Canadian provinces being Alberta, British Columbia, and Manitoba.
It also applies to judgments obtained in a small number of foreign inferior courts including the County Courts of England, Wales and Northern Ireland, and the Sheriff Courts of Scotland.
It does not apply to China or the United States of America.
However, if it is ‘money judgment’ under the Commerce Act 1986 (NZ) of New Zealand it may be heard by either the Supreme Court of a State or Territory or the Federal Court of Australia or if it is a ‘non-money judgment’ under the Commerce Act 1986 (NZ), the application must be made to the Federal Court of Australia.
A money judgment must be an “enforceable money judgment” where money is payable for:
- an amount which excludes amounts payable in respect of taxes, fines or penalties;
- an amount payable in respect of New Zealand tax; or
- an amount payable in respect of “recoverable Papua New Guinea income tax”; and
“final and conclusive”, which includes judgments where an appeal may be pending against it or are still subject to appeal
The Trans-Tasman Proceedings Act 2010 (Cth)
This Act permits registration and enforcement of certain types of New Zealand judgments which comply with Section 66 of the Act.
The various types of New Zealand judgments that can be registered in Australia are defined in Part 7 of the Act but include:
- money judgments
- non-money judgments
- judgments in criminal proceedings that involve an obligation to pay
- injured party compensation, damages or reparation
- judgments that involve a regulatory regime criminal fine
- judgments in market proceedings
- judgments registered under the Reciprocal Enforcement of Judgments Act 1934 (NZ).
However, you cannot enforce the following under the Act:
- orders under proceeds of crime legislation
- orders relating to the granting of probate or letters of administration
- guardianship orders
- orders relating to the welfare, control and care of a child
- judgments which are not final and conclusive (including freezing orders)
- judgments which are not enforceable in the original New Zealand Court or Tribunal.
The Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth)
This Act permits the Commonwealth Attorney General to authorise, modify or prohibit the enforcement of certain types foreign judgments in the Federal Court of Australia and these can include judgments that relate to:
- antitrust proceedings
- enforcement of judgments under reciprocal agreements
- orders requiring or prohibiting an act, or for something to be done or conduct in Australia refrained from
- the giving of evidence or the production of documents
The Commonwealth Attorney General must be “satisfied” that it is in the national interest, or that the assumption of jurisdiction by the foreign court or the manner of exercise of jurisdiction by the foreign court would be contrary to international law or inconsistent with international comity or international practice and secondly the Commonwealth Parliament’s legislative competence is limited by the powers conferred upon it under Section 51 of the Constitution.
In the case where a foreign jurisdiction does not meet the requirements of the current legislation framework the only way to try and enforce a foreign judgment is through the Common Law.
This is a difficult area and is governed by the specific rules of each State or Territory Court.
For a State or Territory Court to recognise a foreign judgment so that it can be enforced there are four key principles that must be satisfied:
- The foreign court must have exercised jurisdiction that Australian courts recognise
- The foreign judgment must be ‘final and conclusive
- The identity of the parties to the foreign judgment must be the same as the parties to the Australian enforcement proceedings
- The foreign judgment must be for a debt or definite sum of money, not be for a Revenue Debt
A party can defend any Common Law application to register a foreign judgment by raising such defences as that the foreign judgment is:
- contrary to Australian public policy
- is penal
- was obtained by fraud
- contrary to natural justice principles
How can FC Lawyers help?
Our experienced litigation team has advised various clients from all over the world in relation to the issue of registering foreign judgments in Australia including the chances of success, costs, and execution of the orders.
Contact our team today if you require any legal assistance.
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