An Overview of Enforcing Foreign Judgments in Australia

By Sophie Dawson, Matthew Mulcahy

07-2018

Foreign judgments may be enforced in Australia under the Foreign Judgments Act 1991 or, if that Act does not apply, pursuant to common law principles.

Registration and enforcement pursuant to the Foreign Judgments Act 1991

The Foreign Judgments Act 1991 provides a regime for the registration and enforcement of judgments obtained in a superior court of another country where there is "substantial reciprocity" in the enforcement of judgments between Australia and the other country. The regime currently applies to 24 countries including the United Kingdom, Singapore, Korea, Japan, Italy, Germany, and France. Notably, the regime does not apply to China or the United States of America. The regime also applies to judgments obtained in the superior courts of Hong Kong, a number of UK overseas territories, and three Canadian provinces (Alberta, British Columbia, and Manitoba), and 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.

To qualify for registration, the judgment must be:

  1. for a sum of money (other than taxes or a fine or penalty);
  2. enforceable in the court in which it was made; and
  3. final and conclusive.

To register the judgment, a judgment creditor must apply to the Supreme Court of a State or Territory in Australia within 6 years after the date of the judgment. The judgment may be registered for an amount including the reasonable costs of and incidental to registration, and any interest due on the judgment up to the time of registration. Where the amount payable under the judgment is expressed in a foreign currency, the judgment creditor has the option of registering the judgment in the currency in which it is expressed. Otherwise, the judgment will be registered for the equivalent amount in Australian currency, based on the rate of exchange prevailing on the second business day before the day on which the application for registration was made.

Once registered, the judgment has the same force and effect as if it were a judgment of the court of registration. The judgment debtor may apply to the court to have the registration of the judgment set aside, but the court will only set aside the judgment if it is satisfied as to one or more of a number of grounds specified in the Act. These grounds include where:

  1. the judgment was obtained by fraud;
  2. the judgment has been reversed on appeal or otherwise set aside in the courts of the originating country;
  3. the judgment has been discharged or wholly satisfied; and
  4. enforcement of the judgment would be contrary to public policy.

Enforcement pursuant to common law

A judgment creditor looking to enforce a foreign judgment not covered by the regime in the Foreign Judgments Act 1991 must commence fresh proceedings in an Australian court, relying on the foreign judgment as creating a debt payable by the judgment debtor to the judgment creditor. Alternatively, the judgment creditor can commence fresh proceedings based on the original cause of action and rely on the foreign judgment to estop the judgment debtor from raising any defence which was or could have been raised in the foreign proceedings.

The judgment creditor may rely on the foreign judgment in fresh proceedings provided that:

  1. the foreign court had jurisdiction over the judgment debtor;
  2. the judgment is for a fixed or readily calculable sum, and is not based on a foreign revenue debt or penalty imposed by foreign law; and
  3. the judgment is final and conclusive in the sense that it settles conclusively the issues raised in the foreign court proceedings, subject to appeal to a higher court.

The question of whether the foreign court had jurisdiction over the judgment debtor is to be determined by an Australian court, in accordance with Australian rules of private international law. A foreign court will be recognised as having jurisdiction over a judgment debtor in person in a number of situations, including if he or she was served with the originating process while physically present within the foreign court's jurisdiction, or was a citizen of, or domiciled in, that jurisdiction. For a judgment debtor corporation, a foreign court will have jurisdiction if the corporation carried on business within the court's jurisdiction.

A judgment debtor cannot challenge the foreign judgment by alleging that the foreign court made a legal or factual error. However, the judgment debtor may defend the enforcement of the judgment where:

  1. it was obtained by fraud, and the allegation of fraud was not and could not have been raised before the foreign court;
  2. its enforcement would be contrary to public policy; or
  3. the judgment debtor was denied natural justice before the foreign court.

 

Authors

Sophie Dawson

Sophie Dawson

Partner
Australia

Call me on: +61 2 9226 9888
Matthew Mulcahy

Matthew Mulcahy

Associate
Australia

Call me on: +61 2 9226 9888