There are many statutory, procedural and evidentiary requirements relevant to applications to register, recognise and enforce foreign and interstate judgments in Victoria.

Interstate judgments can be enforced rather effortlessly in Victoria through Part 6 of the Service and Execution of Process Act 1992 (Cth).  Similarly, New Zealand judgments can be enforced with relative ease under the registration process provided by the Trans-Tasman Proceedings Act 2010 (Cth).

Foreign judgments are a different creature.

Traditionally, foreign judgments were sued on at common law or relied on during proceedings as part of a claim or defence.  However, on 27 June 1991, the Commonwealth Government introduced the Foreign Judgments Act 1991 (Cth)(“FJA”) with the intention of providing a simpler and more uniform registration process than at common law. In essence, the FJA provides a nationwide mechanism for the enforcement of foreign civil judgments in any state or territory of Australia.

However, the complex and strict requirements of the FJA often present significant difficulties to legal practitioners. This article discusses the highly technical and challenging process of registering and enforcing a foreign judgment in Victoria under the FJA.

Registering a foreign judgment under the FJA

The FJA is the only Australian statute enabling the registration of foreign judgments. Once a foreign judgment has been registered under the FJA in one state, it can be recognised in any other state by following the process provided by the Service and Execution of Process Act 1992 (Cth). 

The FJA only applies to judgments of superior courts in foreign countries which are recognised as offering substantial reciprocity of treatment to Australian judgments.[1] The list of recognised countries is set out in the Foreign Judgments Regulations 1992 (Cth) and includes the following:

      1. Germany
      2. Fiji
      3. Israel
      4. Japan
      5. Korea
      6. The United Kingdom.

For judgments from other countries, the only basis for recognition and enforcement in Australia is at common law.

The FJA applies to the registration of money judgments, although its application can also extend to non-money judgments in limited circumstances. To qualify for registration, the judgment must be enforceable in the foreign court in which it was pronounced and be final and conclusive.[2] The judgment must also not relate to amounts payable in respect of taxes, fines or charges of a similar penal nature.

Applying for registration in Victoria

An application under the FJA to register a foreign judgment can be made without notice to the judgment debtor.[3] There is no need for the judgment debtor to be located in Australia or subject to its authority at the date of registration.[4]

In Victoria, an application under the FJA is made to the Supreme Court of Victoria within 6 years after the date of the judgment or, where there have been proceedings by way of appeal, from the date of the last judgment.[5] The application is made in accordance with Order 11 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) (Rules), including the following requirements:

      1. The application is made by originating motion (Form 5D) and supported by an affidavit addressing various matters set out in Rule 11.04. For example:
          • that the applicant is entitled to enforce the judgment by way of execution in the country of the original court;
          • that the judgment is final and conclusive between the parties;
          • that at the date of the application the judgment has not been satisfied or, if the judgment has been satisfied in part, the amount in respect of which it remains unsatisfied;
          • the amount of interest (if any) which under the law of the country of the original court has become due under the judgment up to the time of the application; and
          • the full name, title, occupation and last known place of residence or business of the judgment creditor and of the judgment debtor.

      2. The affidavit must exhibit:[6]
          • a copy of the judgment of the original court certified as such by the proper officer of the court and authenticated by its seal; and
          • if the judgment is not in English, a translation of the judgment certified by a notary public or authenticated by affidavit.

      3. The Court may order that a person applying for registration of a judgment give security for costs.[7]

      4. If the sum payable under the foreign judgment is not expressed in Australian currency, then the affidavit must state whether it is to be registered in:[8]
          • that other currency; or
          • an amount of Australian currency calculated in accordance with section 6(11) to 6(11B) of the FJA.

However, an anomaly arises in relation to the calculation of Australian currency under the FJA because it is no longer possible to calculate Australian currency in accordance with sections 6(11) to 6(11B) of the FJA. More specifically, the Reserve Bank of Australia has stopped authorising foreign exchange dealers in Australia and the licensing of all financial service providers is now dealt with by the Australian Securities & Investment Commission. Accordingly, there have been no “authorised foreign exchange dealers” as defined by section 6(16) of the FJA since around 2004.

It appears the Courts are unaware of this conundrum and have been continuing to register foreign currency judgments in Australian dollars. However, in the author’s view, the best way to minimise any potential issues is to register the judgment sum in the same foreign currency as it was originally expressed.

Hearing of the application

Applications under the FJA are heard by an Associate Judge of the Supreme Court of Victoria.[9]

At the hearing, the Associate Justice will ordinarily make an order for registration of the judgment sum together with:[10]

      1. the reasonable costs of and incidental to registration, including the cost of obtaining a certified copy of the judgment from the original court; and
      2. any interest which, by the law of the country of the original court, becomes due under the judgment up to the time of registration.

The order for registration will also state the period within which an application to set aside the registration may be made under the FJA (discussed below), and that the judgment will not be enforced until after the expiration of that period.[11]

Notice of registration

Once the orders for registration have been made, the applicant must serve a ‘notice of registration’ on the respondent unless otherwise ordered by the Court. [12] The notice must be served personally and there is no time limit for this to take place. However, the service of a notice of registration is a precondition before any further enforcement action can take place (discussed below).

The notice of registration must state:

      1. full particulars of the judgment registered and the order for registration;
      2. the name and address of the applicant or its solicitor or agent; and
      3. that the respondent may apply under the FJA to have the judgment set aside and the timeframe within which such an application may be made.

There is no prescribed form of the notice of registration under the court rules.

Setting aside registration

Section 7 of the FJA enables a respondent to apply to set aside the registration of a foreign judgment on various grounds. If one of the grounds is established, then the Court must set aside the registration.[13] The application is usually required within 14 days after the service of the notice of registration. However, the time period can vary by court order. 

The application is made by summons in the same proceeding and is supported by affidavit material.[14]

In summary, the judgment debtor must file an affidavit which establishes one of the 11 grounds set out in section 7(2)(a) of the FJA to succesfully set aside the registration. For example:

      1. that the judgment was registered for an amount greater than the amount payable at the date of registration; or
      2. that the courts of the country of origin had no jurisdiction to make the judgment; or
      3. that the judgment debtor did not receive sufficient notice of the proceedings in the country of origin to enable them to defend the proceedings and did not appear; or
      4. that the judgment was obtained by fraud; or
      5. that the judgment has been reversed on appeal or otherwise set aside in the courts of the country of origin; or
      6. that enforcement of the judgment would be contrary to public policy.

Before making an application to set aside the registration of a foreign judgment, detailed legal advice should be sought in respect of each of the grounds to set aside a registration.

If the registration is set aside, it may be possible to seek re-registration of the judgment in limited circumstances. Otherwise, the only other recourse is to issue proceedings for the recovery of the judgment sum by way of debt or implied contract. These options fall outside the scope of this article.

Enforcement methods in Victoria

A registered judgment cannot be enforced until:[15]

      1. the period allowed for an application to set aside the registration has expired or any such application has been determined by the Court;
      2. there has been filed in the Court:
        • an affidavit of service of the notice of registration; and
        • a copy of the notice of registration; and
      3. any order of the Court in relation to the judgment has been authenticated and filed.

For the purposes of enforcement, a registered judgment has the same force and effect as if it had been delivered by a Victorian court and entered on the date of registration. Accordingly, a money judgment may be enforced by the same means of execution as are available for any other judgment made in Victoria. For example, by any of the following methods:

      1. Warrants of seizure and sale.
      2. Warrants of possession.
      3. Orders for attachment of debts or earnings.
      4. Charging orders against securities (e.g. shareholdings) held beneficially by the judgment debtor.
      5. As the basis for a bankruptcy notice or statutory demand.

The majority of the methods of execution will require the personal service of court documents on the judgment debtor(s). This means that, if the judgment debtor resides outside of Australia, the personal service requirements of the Hague Convention (if dealing with a signatory country) or the relevant court rules dealing with service out of Australia (if dealing with a non-signatory country) [16] should be carefully considered when purporting to execute the judgment.

Lastly, it should be noted that the judgment sum accrues interest at the same rate as any other Victorian judgment from the date of registration.[17]  This is why it is important to register the foreign judgment as soon as possible to maximise the amount of interest claimable.

[1] Section 5(1) of the Foreign Judgments Act 1991 (Cth).
[2] Section 5(4)(a) of the Foreign Judgments Act 1991 (Cth).
[3] Rule 11.03(1) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic).
[4] Hunt v BP Exploration Co (Libya) Ltd (1980) 144 CLR 565.
[5] Section 6 of the Foreign Judgments Act 1991 (Cth).
[6] Rule 11.04(2) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic).
[7] Rule 11.05 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic).
[8] Rule 11.04(1)(h) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic).
[9] Rule 11.12 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic).
[10] Section 6(15) of the Foreign Judgments Act 1991 (Cth).
[11] Rule 11.06 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic).
[12] Rule 11.07 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic).
[13] Lewis v Beck (Unreported, Supreme Court of Victoria, Beach J, 12 May 1998).
[14] Rule 11.08 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic).
[15] Rule 11.09 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic).
[16] For example, see Order 7 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
[17] Section 6(7) of the Foreign Judgments Act 1991 (Cth).