Foreign Judgments Practice Note (GPN-FRGN)

J L B Allsop, Chief Justice 25 October 2016

Foreign Judgments

1. Introduction

1.1 This practice note provides guidance for applications:

(a) for registration of certain judgments of New Zealand courts and tribunals under the Trans-Tasman Proceedings Act 2010 (Cth) ("TTPA") and the Trans-Tasman Proceedings Regulation 2012 (Cth) ("TTPR");

(b) for registration of certain foreign judgments under the Foreign Judgments Act 1991 (Cth) ("FJA") of various countries specified in the Schedule to the Foreign Judgments Regulations 1992 (Cth) ("FJR"); and

(c) to enforce a money judgment of the Dubai International Financial Centre Courts ("DIFC Courts") in the Federal Court.

1.2 This practice note takes effect from the date it is issued and, to the extent practicable, applies to proceedings whether filed before, or after, the date of issuing.

1.3 Foreign parties seeking to register a foreign judgment in this Court should be aware that a document filed in the Court must contain an address for service of a party within Australia (see rr 2.16(1)(e) and 11.01 of the Federal Court Rules 2011 (Cth) ("Federal Court Rules")).

2. Registering a New Zealand Judgment Under the Trans-Tasman Proceedings Act

2.1 The TTPA was enacted to streamline the process for resolving certain Trans-Tasman civil proceedings, minimise existing impediments to enforcing New Zealand judgments and implement the Trans-Tasman Agreement in Australian law. Part 7 of the TTPA provides the statutory scheme for the recognition and enforcement in Australia of New Zealand judgments.

2.2 A New Zealand judgment that may be registered under the TTPA cannot be enforced in Australia unless it is registered (s 65 of the TTPA).

2.3 Pursuant to s 67(5) of the TTPA and regulation 17 of the TTPR an application to register a judgment under the TTPA is to be commenced by filing a Form 5 - Notice to liable person of registration of a NZ judgment under the TTPA (as prescribed in Schedule 1 to the TTPR), providing a sealed or certified copy of the New Zealand judgment and paying the applicable filing fee. 

2.4 An application must be made within 6 years after the day the judgment is given or, if there have been appeal proceedings against the judgment, within 6 years after the day of the last judgment in those proceedings (s 67(5)(c) of the TTPA).

2.5 If the application is approved, a registrar of the Court will issue a Certificate of Registration of Judgment.

Service

2.6 The party who has the benefit of a New Zealand judgment registered in the Federal Court must then serve (but need not file) a Form 6 - Notice of Registration (as prescribed in Schedule 1 to the TTPR) on every person liable in the judgment within 15 working days of the registration order being made.[1]

Setting Aside Registration

2.7 Section 72 of the TTPA sets out the basis upon which a liable person may apply to the Federal Court to set aside the Federal Court's registration of the New Zealand judgment and the timeframes within which that must be done. The liable person must apply to set aside the registration of the judgment within 30 working days from the date the liable person was given notice of the registration.

2.8 An application by a liable person to set aside a registered judgment must be made by filing an originating application in the proceeding in which the judgment was registered, in accordance with approved Form 101 – Originating Application under the Federal Court Rules, together with an affidavit in support (r 34.74 of the Federal Court Rules) and payment of the applicable Federal Court filing fee.[2]

Other Applications

2.9 In addition to an application to set aside the registration of a judgment, the Form 101 is used to commence an application for:

(a) an extension of the time within which to give notice of the registration of a New Zealand judgment (r 34.73 of the Federal Court Rules);

(b) a stay of the enforcement of a registered New Zealand judgment (r 34.75 of the Federal Court Rules); or

(c) an extension of the time within which to apply for the stay of enforcement of a registered New Zealand judgment (r 34.76 of the Federal Court Rules).

3. Registering a Foreign Judgment Under the Foreign Judgments Act

3.1 The FJA and the FJR provide a statutory scheme for the recognition and enforcement of judgments made in foreign countries. The FJA applies to specified superior courts and to inferior courts of countries that are listed in the "Schedule Superior Courts" to the FJR.

3.2 The Federal Court of Australia is the "appropriate court" in which to register a foreign judgment under the FJA in limited circumstances. Certain "money judgments" given in a matter arising under the Commerce Act 1986 of New Zealand may be registered in the Federal Court (s 6(2)(a) of the FJA). Judgments given in a matter arising under the Commerce Act 1986 of New Zealand that are not money judgments can only be registered in the Federal Court (s 6(2)(b) of the FJA). All other judgments sought to be registered under the FJA are to be registered in the Supreme Court of a state or territory
(s 6(2)(c) of the FJA).

3.3 A foreign judgment is to be registered within 6 years of the judgment (s 6(1) of the FJA).

Federal Court Rules

3.4 Division 41.6 of the Federal Court Rules sets out the procedure to follow to register a judgment pursuant to the FJA.

3.5 In summary, the Federal Court Rules require that a party seeking to register a judgment under the FJA must file an originating application in accordance with Form 134 of the Federal Court Rules and pay the applicable Federal Court filing fee.[3] The form must be accompanied by a copy of the judgment that is certified by the original court[4] and, if the judgment is not in English, a translation of the judgment authenticated by an affidavit (r 41.62 of the Federal Court Rules).

3.6 On the day of the hearing, the party seeking to register the judgment must also file a further affidavit which addresses various aspects of the judgment. That affidavit must comply with r 41.63 of the Federal Court Rules.

Registration and Related Matters[5]

3.7 An order for the registration of a:

(a) money judgment must be in accordance with Form 135;

(b) non-money judgment must be in accordance with Form 136.

3.8 A copy of the order for registration and all supporting affidavits must be served on any party against whom the registered judgment is enforceable.

3.9 A party seeking to set aside the judgment or to stay the enforcement of the judgment must make an interlocutory application in the proceeding in which the judgment was registered, supported by an affidavit (r 41.66(3) of the Federal Court Rules). The interlocutory application must be made within 14 days after the date of service of the order for registration (r 41.66(2) of the Federal Court Rules).

4. Enforcing a Judgment as Between Dubai International Financial Centre Courts and the Federal Court

4.1 The Federal Court has entered into a Memorandum of Guidance between the Federal Court and the DIFC Courts.[6]

4.2 The memorandum provides guidance to parties seeking to enforce money judgments of the DIFC Courts in the Federal Court, or seeking to enforce Federal Court judgments in the DIFC Courts, including guidance in relation to matters such as:

  • the nature of the judgment that may be enforced in the Federal Court or the DIFC Courts (collectively the "respective courts"), which must be final and conclusive;
  • what type of judgments the respective courts will or will not enforce;
  • the requirements giving rise to the respective courts' jurisdiction to enforce judgments from one court in the other court;
  • in what limited circumstances the respective courts' judgments may be challenged;
  • the procedure for enforcement in respective courts', including what material must accompany an application for enforcement.

4.3 The Memorandum of Guidance is available on the DIFC Courts' website.

5. Further Information

5.1 For guidance relating to the enforcement of a judgment in the Federal Court see the Court's Enforcement, Endorsement and Contempt Practice Note (GPN-ENF).

5.2 Excluding the TTPR forms (which are prescribed in Schedule 1 of the TTPR), all other forms referred to in this practice note are available on the Court's website.

5.3 Further information to assist litigants, including a range of helpful guides, is also available on the Court’s website. This information may be particularly helpful for litigants who are representing themselves.

 

J L B ALLSOP
Chief Justice
[DATE]


[1] For further details see ss 73 and 74 of the TTPA and regulation 19 of the TTPR.

[2] For further details see item 115C of Schedule 1 to the Federal Court and Federal Circuit Court Regulation 2012 (Cth).

[3] For further details see item 101 of Schedule 1 to the Federal Court and Federal Circuit Court Regulation 2012 (Cth).

[4] "Original court" is defined in s 3 of the FJA.

[5] See rr 41.64 – 41.66 of the Federal Court Rules.

[6] The Memorandum of Guidance is dated 28 March 2014.