Enforcement of Foreign Judgments Comparative Guide

1 Legal and judicial framework

1.1 Which legislative and regulatory provisions govern the recognition and enforcement of foreign judgments in your jurisdiction?

Legislation

Three federal legislative regimes govern the recognition and enforcement of foreign judgments in Australia:

The Foreign Judgments Act 1991 (Cth): This federal act replaced the various state and territory acts concerning the registration and enforcement of foreign judgments and permits the registration of a foreign judgment on the basis of reciprocity. The Trans-Tasman Proceedings Act 2010 (Cth): This concerns, among other things, the registration and enforcement of certain types of New Zealand judgments. The Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth): Among other things, this permits the commonwealth attorney general to authorise, modify or prohibit the enforcement of certain types foreign judgments. In all cases, wherever a foreign judgment has been registered or recognised in any Australian jurisdiction, it may be enforced in all other Australia jurisdictions via the Service and Execution of Process Act 1992 (Cth).

1.2 Which bilateral and multilateral instruments on the recognition and enforcement of foreign judgments have effect in your jurisdiction?

Multilateral treaties: Australia is not a party to any multilateral treaties concerning the recognition of or enforcement of foreign judgments such as the Hague Convention on Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters 1971 and the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters 2019.

Bilateral treaties: Australia is a party to the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters [1994] ATS 27, which is a bilateral treaty with the United Kingdom. This treaty was implemented via the Foreign Judgments Regulations (Amendment) 1994 (Cth).

Australia is also a party to the Agreement between the Government of Australia and the Government of New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement [2013] ATS 32, which provides the basis for the Trans-Tasman Proceedings Act 2010 (Cth).

1.3 Which courts have jurisdiction to hear applications for the recognition and enforcement of foreign judgments?

Foreign Judgments Act 1991 (Cth): Section 6(2) provides that the appropriate court to hear an application for registration is determined by the type of foreign judgment. This will generally be the supreme court of a state or territory, with two exceptions. The first is that where an application concerns a "money judgment" that was given "in proceedings in which a matter for determination arises under the Commerce Act 1986 of New Zealand (other than proceedings in which a matter for determination arises under section 36A, 98H or 99A of that Act)", it may be heard by either the supreme court of a state or territory or the Federal Court of Australia. The second is that if the application concerns a non-money judgment in respect of these types of proceedings arising under the Commerce Act 1986 (NZ), the application must be made to the Federal Court of Australia. Please see question 2.1 for further details concerning the definition of a 'money judgment'.

Trans-Tasman Proceedings Act 2010 (Cth): Section 67 provides that the appropriate court to hear an application for registration is determined by the type of New Zealand judgment. This can vary from a "superior Australian court" - which means the Federal Court of Australia, the Family Court of Australia or the supreme court of a state, the Australian Capital Territory, the Northern Territory or Norfolk Island - or an "inferior Australian court", which means any Australian court that is not the High Court of Australia or a superior Australian court.

The different types of New Zealand judgments that can be registered under the act are summarised below.

Civil pecuniary penalty: A New Zealand judgment that imposes a "civil pecuniary penalty" and is not a "New Zealand market proceeding judgment" can be registered in a superior Australian court or an inferior Australian court that has power to impose a civil pecuniary penalty of the same value as the penalty imposed. A "civil pecuniary penalty" means a pecuniary penalty imposed by a court or tribunal in a civil proceeding in relation to a contravention of legislation. A 'New Zealand market proceeding judgment' means a judgment given in a New Zealand market proceeding, which is defined in Section 85 to mean a proceeding in the High Court of New Zealand in which: a matter for determination arises under Section 36A, 98H or 99A of the Commerce Act 1986 (NZ); any other kind of relief prescribed by the regulations is sought; an interlocutory order is sought in relation to a proceeding covered by the first two subparagraphs; or enforcement is sought of a judgment given in a proceeding covered by the first two subparagraphs. Criminal fines: A New Zealand judgment that imposes a "regulatory regime criminal fine" and is not a New Zealand market proceeding judgment can be registered in a superior Australian court. A "regulatory regime criminal fine" means a fine for a criminal offence under a provision of New Zealand legislation, being a provision of a kind prescribed by Section 15 of the Trans-Tasman Proceedings Regulation 2012 (Cth). New Zealand market proceeding judgments: A New Zealand market proceeding judgment must be registered in the Federal Court of Australia. All other New Zealand judgments: Any New Zealand judgment that does not impose a civil pecuniary penalty or a regulatory regime criminal fine, or that is a New Zealand market proceeding judgment, may be registered by a superior Australian court or an inferior Australian court that has power to give the relief that is in the judgment. Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth): This act empowers the commonwealth attorney general to prohibit or limit the enforcement of certain types of foreign judgments. Section 12 provides when certain types of judgments can be recognised and enforced in the Federal Court of Australia. Please see question 2.1 for further details.

Common law: As the common law rules for the recognition of and enforcement of foreign judgments are limited to those for a definite sum of money, the jurisdiction of a court to hear the same is determined by the usual rules. For example, in New South Wales, the Local Court of New South Wales can hear matters in its General Division up to a value of A$20,000. The District Court of New South Wales' jurisdictional limit is A$750,000; whereas the Supreme Court of New South Wales has jurisdiction to hear matters of any amount.

Equity: There is a line of authority in Australia that stands for the proposition that an Australian court of equity will assist the enforcement of the judgment of a foreign court of equity without necessarily having to recognise the judgment at common law where there is a "sufficient connection between the defendant and the jurisdiction in which the foreign order was made to justify recognition of the foreign court's order", as per Independent Trustee Services Ltd v Morris [2010] NSWSC 1218 at [33]. This is considered further at question 2.1. Such an application must be made to one of the state or territory supreme courts, as these have an inherent equitable jurisdiction and also a general jurisdiction as may be necessary for the administration of justice, as per their respective founding legislation.

2 Requirements for enforceability

2.1 What types of judgments may be recognised and enforced in your jurisdiction? Are any types of judgments specifically precluded from enforcement?

Foreign Judgments Act 1991 (Cth): Section 10 provides that no proceedings for "the recovery of an amount payable under a judgment" to which the act applies are to be "entertained by a court having jurisdiction in Australia", except by way of registration under the act. As such, if a foreign judgment can be enforced under the act, it must only be enforced under the same.

The foreign judgment must be a "judgment" within the meaning of Section 3. This includes:

a final or interlocutory judgment or order given or made by a court in civil proceedings; a judgment or order given or made by a court in criminal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party; or an award (other than an award given in a dispute of a kind referred to in Paragraph 34(a) of the International Arbitration Act 1974 (Cth) or an award that may be enforced under Section 35(2) of that act) in proceedings on an arbitration conducted in, and under the law applying in, a country, being an award that has become enforceable in a court of that country in the same manner as a judgment or order given by that court. As per Section 6, the foreign judgment must be a judgment to which Part 2 applies. Section 5 provides the substantive requirements for the applicability of Part 2, which are summarised below:

Specification by the governor general: If the governor general is "satisfied" that the enforcement of "money judgments" or "non-money judgments" of Australian courts will be assured a "substantial reciprocity of treatment" in certain foreign courts, the Foreign Judgments Regulations 1992 (Cth) may extend the application of Part 2 to those courts. By way of summary only, these are as follows: Superior courts - certain specified superior courts of Canada, the Bahamas, the British Virgin Islands, Dominica, the Falkland Islands, Fiji, France, Germany, Gibraltar, Grenada, Hong Kong Special Administrative Region, Israel, Italy, Japan, Korea, Malawi, Montserrat, Papua New Guinea, Poland, St Helena, St Kitts and Nevis, St Vincent and the Grenadines, Seychelles, Singapore, the Solomon Islands, Sri Lanka, Switzerland, Taiwan, Tonga, Tuvalu, the United Kingdom and Western Samoa. Inferior courts - specified inferior...