Enforcing judgments from the Pacific in Australia
Updated: Dec 12, 2019
By Jia Lee
In Australia, the Foreign Judgments Act 1991 (Cth) (FJA) provides a relatively straightforward statutory regime in registering foreign judgments from other countries. This regime is particularly valuable for companies doing business in the Pacific who have obtained judgments against debtors who have assets in Australia. The FJA applies to judgments issued by courts of certain countries including the superior courts of Papua New Guinea, Fiji, Tonga, Tuvalu, Samoa and the Solomon Islands.
To qualify for registration under the FJA, the judgment must be:
1. For a sum of money but may not be for taxes or a penalty;
2. Enforceable in the foreign court it was made; and
3. Final and conclusive.
Registration of foreign judgments under the FJA involves an application to either a state Supreme Court or Federal Court of Australia. These applications are usually determined on the papers without a need for court appearances. Once a judgment is registered, it may be enforced within Australia, like an Australian court judgment, through enforcement procedures such as garnishee orders on bank accounts and wages as well as writs of levy of property, which allows for seizure of property (except real property) to satisfy the judgment debt.
What do you do if you have a judgment from a court NOT covered by the FJA, for example from Vanuatu?
If judgment is obtained from a court that is not covered under the FJA regime, the judgment may still be recognised at common law in Australian courts. This would involve commencing proceedings in a state Supreme Court or the Federal Court of Australia for recognition of the foreign judgment. In order for a foreign judgment to be recognised at common law, courts would consider whether:
1. The judgment was a monetary judgement for a fixed amount or readily calculable sum;
2. The judgment was from a jurisdiction recognised in Australia;
3. The judgment was final (although the judgment may be subject to an appeal); and
4. The action to recognise the judgment is made against the same parties and in the same interests as was litigated in the foreign jurisdiction.
Unlike an application for registration under the FJA, an application to recognise a judgment at common law may involve a hearing and more substantive preparation of evidence. Once a judgment is recognised, the judgment may be enforced in the same manner as an Australian court judgment or a judgment registered under the FJA regime.
A more comprehensive discussion on the recognition, registration and enforcement of foreign judgments in Australia may be accessed here: https://www.multilaw.com/Multilaw/Litigation/Enforcement_of_Foreign_Judgment/Australia.aspx