Enforcing U.S. and other foreign judgments in Australia - what are the rules?

• Author: Clark, S. Stuart

THE UNITED STATES of America is Australia's biggest trade and investment partner (the value of two way trade between the two nations was valued at U.S. $21.2 (A$33.5) billion in 2006) and there are currently 300,000 Australians living and working in the United States (comprising approximately 5% of the total U.S. workforce), (1) This important economic relationship is also reflected by the Australia-United States Free Trade Agreement that was signed in 2004 making trade between the two nations more accessible.

Given the close economic relationship that now exists between the United States and Australia, it can often come as a surprise that there is no legislation governing the recognition and enforcement of U.S. judgments in Australian courts. The question of whether or not a judgment can be enforced is determined according to common law rules rather than legislation.

With closer economic ties comes the possibility that there will be an increase in the number of U.S. judgments involving Australian companies or individuals that may need to be recognised and enforced in Australian courts. This article provides an overview of the common law rules that will be applied when attempts are made to recognise/enforce a U.S. judgment which imposes a personal obligation on the defendant in Australian courts. (2) While the article focuses on U.S. judgments, it also addresses the question of other foreign judgments.

1. The Australian Legal System (3)

   Australia is a federation comprising six states and two self-governing territories. The Australian Constitution specifies a range of matters that are the responsibility of the Federal government. The balance of legal issues remains the responsibility of the various State and Territory governments.

   Australia's laws and legal system have their foundation in the common law of England. However, while the judgments of the House of Lords and the English Court of Appeal are of persuasive authority, they are not binding on Australian courts. More recently, in developing the law, Australian courts have looked to the jurisprudence of other countries, particularly the United States and Canada.

   Australia has both a federal court system and a hierarchy of courts in each of the states and territories. In all cases, the ultimate appellate court is the High Court of Australia ("High Court"). Decisions of the High Court are binding on all other Australian courts. The High Court is also responsible for the determination of Constitutional disputes, in the same way as the U.S. Supreme Court.

   Actions heard by Australian courts proceed on an adversarial basis. The practice and procedure, including the rules of evidence, are similar to those in English courts. While these are also similar to the rules in American courts, there are some very significant differences.

   First, there is no Constitutional right to a jury trial in civil proceedings in Australia. Many, and in some states most, civil actions are heard and determined by a judge sitting without a jury known in the United States as a "bench trial". While the rules of the Federal Court of Australia provide for trial by jury where "the ends of justice appear to render it expedient to do so", there is a presumption that civil trials will be heard by a judge alone, and a civil jury trial has never occurred in that court. (4)

   Second, discovery in Australia follows the English tradition and the concept of the deposition as a mode of discovery is unknown in Australia. (5) Rather, discovery takes the form of documentary discovery and, albeit very limited, use of interrogatories. Trial by ambush, a possible consequence of not having a deposition procedure, is addressed in most Australian jurisdictions by way of an obligation to exchange witness statements setting out the evidence in chief of the parties and witnesses prior to trial.

2. Lack of Legislation in Relation to U.S. Judgments

   While there is a federal statute (6) that provides for the recognition and enforcement of certain foreign judgments it does not apply to U.S. judgments. Specifically, the Foreign Judgments Act 1991 (Cth) (the "Act") provides a set of rules for the recognition/enforcement of foreign judgments by Australian courts. However, in order for a successful litigant to utilise those rules, the judgment must have been obtained from one of the courts of the countries listed in the Foreign Judgments" Regulations 1992 (Cth) (the "Regulations"). A list of the relevant countries and their recognised superior/inferior courts is set out in the Schedule at the end of this article.

   Broadly, if a foreign judgment is to be recognised under the Act, it must be registered in the appropriate Australian court within a period of six years from the date of the judgment (or relevant appeal) (7)

   The appropriate court is generally the Supreme Court of a State or Territory, (8) depending on the nature of the judgment. The rules of the court will normally prescribe the matters that must be addressed in order to register a foreign judgment under the Act including: (9)

   * The evidence in support of the registration application;

   * The form of the registration order;

   * The making of an application to set the registration order aside; and

   * The process for the enforcement of the registered judgment.

   Unfortunately, the United States of America is not a country listed in the Regulations. Accordingly, in order to enforce a U.S. judgment in Australia, a successful litigant is required to rely upon common law principles regarding the recognition/enforcement of foreign judgments which have their origin in 19th century English case law.

3. The Common Law Elements That Must Be Established

   At common law, the elements that must be established for the recognition/enforcement of a foreign judgment are commonly described as follows: (10)

   * The foreign court has exercised a jurisdiction which Australian courts will recognise;

   * The foreign judgment is final and conclusive;

   * There is an identity of the parties; and

   * If based on a judgment in personam, the judgment must be for a fixed debt.

   The onus of establishing these elements rests on the party seeking to rely upon the foreign judgment. If the foreign judgment satisfies these elements, it has 'jurisdiction in the international sense' and is prima facie enforceable in Australia unless the defendant can establish one or more of the recognised defences to the enforcement of a foreign judgment. (11)

   1. Does the Foreign Court Have Jurisdiction?

      A foreign judgment will not be enforced by Australian courts unless the foreign court had jurisdiction over the defendant at the time when that jurisdiction was invoked. (12)

      This element...