Enforcing foreign judgments in Australia

In a globalized and interconnected world where individuals and corporations have distributed their assets and interests over multiple jurisdictions, the issue of enforcing judgments from different jurisdictions has become ubiquitous. We explore the mechanisms that Australia has in place to deal with the enforcement of foreign judgments in Australia.

The enforcement of foreign or international judgments in Australia is primarily administered by the Foreign Judgments Act 1991 (Cth) (the Act). The Act allows for foreign judgments to be enforced provided that the statutory criteria are met. These are explored below.

Key Criterion for Enforcement under the Act

Reciprocity of treatment

Section 5 of the Act provides that judgments from countries designated as having substantial reciprocity of treatment with Australia may fall within the operation of the Act.

Essentially, if the superior or inferior courts in a foreign jurisdiction treat monetary judgments handed down by Australian courts as enforceable within their jurisdiction, regulations may be made that reciprocate by recognising foreign monetary judgments made within those same jurisdictions. The same reciprocal recognition may also be extended (although rarely) to non-monetary judgments made in foreign jurisdictions.

Notably, judgments for taxes or penalties are not enforceable in Australia, unless they are specifically covered by statute.

A list of these reciprocal arrangements is contained in the Foreign Judgments Regulations 1992 (Cth) (FJR). Notable exclusions from this list include major trading partners such as the United States of America and the People’s Republic of China. The enforcement of judgments from these countries are explored below.

Treatment of non-reciprocal jurisdictions (under common law principles)

The enforcement of judgments originating from countries that are not recognised under the Act and FJR will require enforcement under common law principles, which are more complicated to navigate and can be generally summarised as follows:

1. The foreign court must have exercised jurisdiction recognised under Australian conflict of laws rules;
2. The judgment must be final and conclusive;
3. The parties must be specifically identified;
4. In personam judgments must be for a fixed sum of money.

If these conditions are satisfied, the judgment will be presumed to be enforceable. However, limited and strict grounds may move a court to refuse enforcement, such as grounds of fraud, denial of natural justice, or if enforcement would go against Australian public policy. The case of Xu v Wang [2019] VSC 269 explores in detail the application of the common law principles above, and, for example, the court’s general reluctance, as noted at [90], to make a finding that enforcement of a foreign judgment would contravene Australian public policy.

General procedural requirements

Section 6 of the Act provides that should a foreign judgment for money fall within the scope of the Act due to reciprocity of treatment, a judgment creditor may make an application to register the judgment. A registered foreign judgment is then treated as if it were given by an Australian court, allowing for the enforcement of the foreign judgment as if it were a locally made and given judgment.

The procedure for registration of a foreign judgment is broadly outlined below.

Application for Registration

The judgment creditor must apply to an Australian court to register the foreign judgment. This must be done within six years of the original judgment or the last judgment in any appeal made in the original foreign jurisdiction.

Requirements for Registration

The court will register the judgment if:

(a) It is from a recognised country under the Act;

(b) It is final and enforceable in the original country;

(c) It has not been fully satisfied;

(d) It is not contrary to public policy in Australia.

Align Law has extensive experience assisting clients from foreign jurisdictions with the enforcement of judgments in Australia. Our team is experienced, diverse and well connected globally. Please do not hesitate to get in touch for assistance or an initial consult.