Foreign Judgments Act 1991

Subject to subsection (2), this Act commences on the day on which it receives the Royal Assent.

Section 21 commences at the end of 4 months after the day on which this Act receives the Royal Assent.

In this Act, unless the contrary intention appears:

matrimonial matters; or

the administration of the estates of deceased persons; or

bankruptcy or insolvency; or

the winding up of companies; or

mental health; or

the guardianship of infants.

which is part of a foreign country; or

which is under the protection of a foreign country; or

for whose international relations a foreign country is responsible.

an amount of money, other than (except as mentioned in paragraphs (b) and (c)) an amount payable in respect of:

taxes or other charges of a similar nature; or

a fine or other penalty; or

an amount of money payable in respect of New Zealand tax; or

an amount of money payable in respect of recoverable Papua New Guinea income tax.

where there is not an amount of money payable under the judgment, enforcement by:

attachment; or

committal; or

fine; or

sequestration; or

where there is an amount of money payable under the judgment, enforcement by execution.

a final or interlocutory judgment or order given or made by a court in civil proceedings; or

a judgment or order given or made by a court in criminal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party; or

an award (other than an award given in a dispute of a kind referred to in paragraph 34(a) of the International Arbitration Act 1974 or an award that may be enforced under subsection 35(2) of that Act) in proceedings on an arbitration conducted in, and under the law applying in, a country, being an award that has become enforceable in a court of that country in the same manner as a judgment or order given by that court.

additional or other tax payable, by way of penalty, interest or otherwise, because of a contravention of any of those laws or of a requirement made under any of those laws; or

tax of a class or description prescribed for the purposes of subsection (2).

The regulations may provide that a specified tax, or a tax included in a specified class of taxes, payable under the laws of Papua New Guinea is not a recoverable Papua New Guinea income tax.

Regulations are not to be made in relation to a tax or class of taxes unless the Governor‑General is satisfied that the tax, or each tax included in the class, is not properly a tax on income.

For the purposes of this Act, an award of a kind to which paragraph (c) of the definition of judgment in subsection (1) applies is taken to be a judgment of the court, referred to in that paragraph, in which the award has become enforceable.

If the Governor‑General is satisfied that, in the event of the benefits conferred by this Part being applied to money judgments given in the superior courts of a country, substantial reciprocity of treatment will be assured in relation to the enforcement in that country of money judgments given in all Australian superior courts, the regulations may provide that this Part extends in relation to that country.

A specified court of such a country is taken to be a superior court for the purposes of this Act if the regulations so provide, but a failure so to provide in relation to a particular court is not taken to imply that the court is not a superior court for the purposes of this Act.

If the Governor‑General is satisfied that, in the event of the benefits conferred by this Part being applied to money judgments given in all or some inferior courts of such a country, substantial reciprocity of treatment will be assured in relation to the enforcement in that country of money judgments given in all or some Australian inferior courts, the regulations may provide that this Part extends in relation to specified inferior courts of that country.

This Part applies to an enforceable money judgment that:

is final and conclusive; and

was given in:

a superior court of a country in relation to which this Part extends; or

an inferior court of such a country, being an inferior court in relation to which this Part extends.

For the purposes of paragraph (4)(a), a judgment is taken to be final and conclusive even though:

an appeal may be pending against it; or

it may still be subject to appeal;

If the Governor‑General is satisfied that, in the event of the benefits conferred by this Part being applied to all or some non‑money judgments given in courts of a country in relation to which this Part extends, substantial reciprocity of treatment will be assured in relation to the enforcement in that country of all or some non‑money judgments given in Australian courts, the regulations may provide that this Part applies to such non‑money judgments, given in the courts of that country, as are prescribed.

Regulations made for the purposes of subsection (6) must provide for the kinds of non‑money judgments, given in the courts of a country, to which this Part applies by specifying or describing:

the courts in which such non‑money judgments are given; and

the kinds of proceedings in which such non‑money judgments are given; and

the kinds of non‑money judgments.

This Part does not apply to:

a money judgment given by a superior court of a country before the day on which the regulations extend this Part in relation to that country; or

a money judgment given by an inferior court before the day on which the regulations extend this Part in relation to that court; or

a non‑money judgment of a particular kind given in a court in proceedings of a particular kind before the day on which the regulations apply this Part to non‑money judgments of that kind given in that court in proceedings of that kind;

the judgment was given by a court of the United Kingdom; or

the judgment was, immediately before that day, registrable in the Supreme Court of a State or Territory under a law of that State or Territory.

This Part does not apply to a judgment given by a superior court on appeal from a judgment given by an inferior court, unless the judgment of the inferior court is a judgment to which this Part applies.

This Part does not apply to a judgment given by a court of New Zealand.

For the enforcement in Australia of judgments given by courts of New Zealand, see Part 7 of the Trans‑Tasman Proceedings Act 2010.

A judgment creditor under a judgment to which this Part applies may apply to the appropriate court at any time within 6 years after:

the date of the judgment; or

where there have been proceedings by way of appeal against the judgment, the date of the last judgment in those proceedings;

For the registration of a foreign judgment against a foreign State, or a separate entity of a foreign State, see the Foreign States Immunities Act 1985.

For the purposes of subsection (1), the appropriate court is:

if the judgment is a money judgment and was given in proceedings in which a matter for determination arises under the Commerce Act 1986 of New Zealand (other than proceedings in which a matter for determination arises under section 36A, 98H or 99A of that Act)—the Federal Court of Australia or the Supreme Court of a State or Territory; or

if the judgment is not a money judgment and was given in such proceedings—the Federal Court of Australia; or

in any other case—the Supreme Court of a State or Territory.

Subject to this Act and to proof of the matters prescribed by the applicable Rules of Court, if an application is made under this section, the Supreme Court of a State or Territory or the Federal Court of Australia is to order the judgment to be registered.

The court’s order must state the period within which an application may be made under section 7 to have the registration of the judgment set aside.

The court may, by order, extend the period within which such an application may be made.

A judgment is not to be registered if at the date of the application:

it has been wholly satisfied; or

it could not be enforced in the country of the original court.

Subject to sections 7 and 14:

a registered judgment has, for the purposes of enforcement, the same force and effect; and

proceedings may be taken on a registered judgment; and

the amount for which a judgment is registered carries interest; and

the registering court has the same control over the enforcement of a registered judgment;

A judgment registered under this section in the Supreme Court of a State or Territory is registrable in the Supreme Court of any other State or Territory under Part 6 of the Service and Execution of Process Act 1992 as if the judgment had been originally given in the first‑mentioned Supreme Court and entered on the day of registration.

Subsection (8) does not apply if an order has been made under section 8 that enforcement of the judgment be stayed.

Action is not to be taken to enforce a registered judgment:

during the period fixed under subsection (4) (including any extensions of that period under subsection (5)) as the period during which a party may apply to have the registration of the judgment set aside; or

where such an application has been made, until after the application has been finally determined.

Subject to subsection (12), if the amount payable under a judgment that is to be registered is expressed in a currency other than Australian currency, the judgment is to be registered:

if the judgment creditor has stated in the application that the judgment creditor wishes the judgment to be registered in the currency in which it is expressed—in that currency; or

in any other case—as if it were for an equivalent amount in Australian currency, based on the rate of exchange prevailing on the second business day (the conversion day) before the day on which the application for registration is made.

For the purposes of paragraph (11)(b), the rate of exchange prevailing on the conversion day referred to in that paragraph is the average of the rates at which Australian dollars may be bought in the currency in which the judgment is expressed at:

11 am; or

if another time is prescribed for the purposes of this subsection—that other time;

The reference in paragraph (11)(b) to a business day is a reference to a day on which the authorised foreign exchange dealers selected by the judgment creditor as mentioned in subsection (11A) publish rates at which Australian dollars may be bought in the currency in which the judgment is expressed.

If, on the day of the application for registration of a judgment, the judgment of the original court has been partly satisfied, the judgment is not to be registered in respect of the whole amount payable under the judgment of the original court, but only in respect of the balance remaining payable on that day.

If, on an application to a court for the registration of a judgment, it appears to the court that the judgment is in respect of different matters and that some, but not all, of the provisions of the judgment are such that, if those provisions had been contained in separate judgments, those judgments could properly have been registered, the judgment may be registered in respect of those provisions, but not in respect of any other provisions contained in it.

Without affecting the operation of subsection (13), where, on an application to a court for the registration of a judgment, it appears to the court that:

the judgment is in respect of an amount of money payable in respect of both recoverable Papua New Guinea income tax and non‑recoverable tax; and

the judgment could have been registered if it had been in respect of recoverable Papua New Guinea income tax only;

A judgment registered under this section is to be registered for:

the reasonable costs of and incidental to registration, including the cost of obtaining a certified copy of the judgment from the original court and the costs of obtaining from foreign exchange dealers evidence of the rates at which Australian dollars may be bought in the currency in which the judgment is expressed; and

where an amount of money is payable under the judgment—any interest which, by the law of the country of the original court, becomes due under the judgment up to the time of registration.

In this section:

A party against whom a registered judgment is enforceable, or would be enforceable but for an order under section 8, may seek to have the registration of the judgment set aside by duly applying to the court in which the judgment was registered, or (where applicable) a court in which the judgment was registered under Part 6 of the Service and Execution of Process Act 1992, to have the registration of the judgment set aside.

Where a judgment debtor duly applies to have the registration of the judgment set aside, the court:

must set the registration of that judgment aside if it is satisfied:

that the judgment is not, or has ceased to be, a judgment to which this Part applies; or

that the judgment was registered for an amount greater than the amount payable under it at the date of registration; or

that the judgment was registered in contravention of this Act; or

that the courts of the country of the original court had no jurisdiction in the circumstances of the case; or

that the judgment debtor, being the defendant in the proceedings in the original court, did not (whether or not process had been duly served on the judgment debtor in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable the judgment debtor to defend the proceedings and did not appear; or

that the judgment was obtained by fraud; or

that the judgment has been reversed on appeal or otherwise set aside in the courts of the country of the original court; or

that the rights under the judgment are not vested in the person by whom the application for registration was made; or

that the judgment has been discharged; or

that the judgment has been wholly satisfied; or

that the enforcement of the judgment, not being a judgment under which an amount of money is payable in respect of New Zealand tax, would be contrary to public policy; or

may set the registration of the judgment aside if it is satisfied that the matter in dispute in the proceedings in the original court had before the date of the judgment in the original court been the subject of a final and conclusive judgment by a court having jurisdiction in the matter.

For the purposes of subparagraph (2)(a)(iv) and subject to subsection (4), the courts of the country of the original court are taken to have had jurisdiction:

in the case of a judgment given in an action in personam:

if the judgment debtor voluntarily submitted to the jurisdiction of the original court; or

if the judgment debtor was plaintiff in, or counter‑claimed in, the proceedings in the original court; or

if the judgment debtor was a defendant in the original court and had agreed, in respect of the subject matter of the proceedings, before the proceedings commenced, to submit to the jurisdiction of that court or of the courts of the country of that court; or

if the judgment debtor was a defendant in the original court and, at the time when the proceedings were instituted, resided in, or (being a body corporate) had its principal place of business in, the country of that court; or

if the judgment debtor was a defendant in the original court and the proceedings in that court were in respect of a transaction effected through or at an office or place of business that the judgment debtor had in the country of that court; or

if there is an amount of money payable in respect of New Zealand tax under the judgment; or

in the case of a judgment given in an action of which the subject matter was immovable property or in an action in rem of which the subject matter was movable property—if the property in question was, at the time of the proceedings in the original, court situated in the country of that court; or

in the case of a judgment given in an action other than an action of the kind referred to in paragraph (a) or (b)—if the jurisdiction of the original court is recognised by the law in force in the State or Territory in which the judgment is registered.

In spite of subsection (3), the courts of the country of the original court are not taken to have had jurisdiction:

if the subject matter of the proceedings was immovable property situated outside the country of the original court; or

except in the cases referred to in subparagraphs (3)(a)(i), (ii) and (iii) and paragraph (3)(c), if the bringing of the proceedings in the country of the original court was contrary to an agreement under which the dispute in question was to be settled otherwise than by proceedings in the courts of the country of that court; or

if the judgment debtor, being a defendant in the original proceedings, was a person who under the rules of public international law was entitled to immunity from the jurisdiction of the courts of the country of the original court and did not submit to the jurisdiction of that court.

For the purposes of subparagraph (3)(a)(i), a person does not voluntarily submit to the jurisdiction of a court by:

entering an appearance in proceedings in the court; or

participating in proceedings in the court only to such extent as is necessary;

protecting, or obtaining the release of:

property seized, or threatened with seizure, in the proceedings; or

property subject to an order restraining its disposition or disposal;

contesting the jurisdiction of the court;

inviting the court in its discretion not to exercise its jurisdiction in the proceedings.

Where the registration of a judgment is set aside on an application to a court in which the judgment was registered under Part IV of the Service and Execution of Process Act 1901, the applicant must:

forthwith notify the Registrar of the court in which the judgment was registered under this Act of the order setting the judgment aside; and

within 7 days lodge a certified copy of the order in that court.

If the court in which a judgment is registered is satisfied that the judgment debtor has appealed, or is entitled and intends to appeal, against the judgment, the court may order that enforcement of the judgment be stayed pending the final determination of the appeal, until a specified day or for a specified period.

If the court in which a judgment is registered makes an order on the ground that the person is entitled and intends to appeal against the judgment, the court must require the person, as a condition of the order, to bring the appeal by a specified day or within a specified period.

Every order is to be made on the condition that the judgment debtor pursues the appeal in an expeditious manner.

An order may be made or such other conditions, including conditions relating to giving security, as the court in which the judgment is registered thinks fit.

If the registration of a judgment is set aside under subparagraph 7(2)(a)(ii), the court in which the judgment was registered must, on the application of the judgment creditor, order that the judgment be registered in respect of the amount payable under the judgment at the date of the application.

If the registration of a judgment has been set aside under subparagraph 7(2)(a)(iii) solely because it was not at the date of the application for registration enforceable in the country of the original court, the setting aside of the registration does not prejudice a further application to register the judgment if and when the judgment becomes enforceable in that country.

No proceedings for the recovery of an amount payable under a judgment to which this Part applies, other than proceedings by way of registration of the judgment, are to be entertained by a court having jurisdiction in Australia.

Nothing in this section affects the enforcement, under the International Arbitration Act 1974, of an award.

entered an appearance in proceedings in the court; or

participated in proceedings in the court only to such extent as was necessary;

protecting, or obtaining the release of:

property seized or threatened with seizure, in the proceedings; or

property subject to an order restraining its disposition or disposal;

contesting the jurisdiction of the court;

inviting the court in its discretion not to exercise its jurisdiction in the proceedings.

Subject to this section, a judgment to which Part 2 applies, or would have applied if it were a money judgment, must, whether or not it is, or can be, registered, be recognised in any Australian court as conclusive between the parties to it in all proceedings founded on the same cause of action and may be relied on by way of defence or counter‑claim in any such proceedings.

This section does not apply to:

a judgment that has been registered, the registration of which has been set aside under subparagraph 7(2)(a)(iv), (v), (vi), (vii) or (xi); or

a judgment (whether registrable or not) that has not been registered, the registration of which would, if it were registered, have been set aside under one or more of those subparagraphs.

Nothing in this section prevents any Australian court from recognising a judgment as conclusive of any matter of law or fact decided in the judgment if that judgment would be recognised as conclusive under the common law.