Australia: Enforcing A Foreign Judgment In Australia
Whether a foreign judgment can be enforced in Australia will depend on the type of judgment and the country where the judgment is obtained.
The Foreign Judgments Act (FJA) and some bilateral treaties (which have limited application) enable foreign judgments from prescribed courts in specified countries to be registered under the FJA or treaty.
In other cases you will need to rely on the common law in Australia to enforce your money judgment.
Equity may however assist in the enforcement of equitable relief granted in a foreign court without first requiring the foreign order to be made a judgment of an Australian court. For example, an Australian court may appoint a receiver to enforce rights determined by a foreign court.
Under the common law the judgment must be for the payment of money and the person seeking to enforce the foreign judgment has the onus of establishing:
1. The parties are the same parties as in the foreign judgment.
2. The judgment is for a definite sum of money.
3. The foreign judgment is final and conclusive – that is, it is determinative of the rights and obligations of the parties.
4. The foreign court had and validly exercised jurisdiction over the defendant and the defendant submitted to the foreign jurisdiction.
The fact that the judgment is being appealed, does not affect the finality of the judgment.
It is not sufficient for the foreign court to have jurisdiction over the defendant under its own rules. At common law the foreign court must have had jurisdiction by the defendant’s presence or submission to the jurisdiction. Merely participating in the foreign proceedings to contest jurisdiction is not sufficient.
Not surprisingly, a judgment debtor will try to rely upon technical legal arguments to prevent a foreign judgment being enforced in their home jurisdiction.
The court in Australia will require evidence regarding the foreign law that applied to the proceedings and the procedures that were followed in the foreign court.
If you would like more information about these issues, please contact Graham Roberts, Partner Cooper Grace Ward on +61 7 3231 2404.
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