The Foreign Judgments Act 1991 (Cth) (‘FJA’) provides a national regime for the recognition and enforcement of foreign judgments in Australia. The basis of such enforcement is ‘substantial reciprocity’ in the enforcement of judgments between Australia and each country.
A judgment creditor who has obtained a judgment from a relevant court in a country to which the FJA applies can only apply to the Supreme Court for registration. An application under the FJA should be made in accordance with the procedure set out under Order 11 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008.
Enforcement under Foreign Judgments Act 1991 (Cth)
Judgment must be (s 5 of the FJA):
- A money judgment (i.e a judgment whereby an amount of money is payable other than by way of tax or penalty); and
- Final and conclusive (although appeal may be pending).
An Israeli judgment is likely to come under the FJA however it cannot be registered if, at the date of the application (s 6 of the FJA):
- It has been wholly satisfied; or
- It could not be enforced in the country in which it was made.
Enforcement under common law (NOT REQUIRED)
Four conditions must be satisfied:
i. The Israeli court must have exercised an ‘international’ jurisdiction that Australian courts recognise;
ii. The judgment must be final and conclusive;
iii. The parties must be the same; and
iv. The judgement must be for a fixed sum (although certain non-money judgements may be enforceable in equity).
Limitation period under FJA
Limitation period for an application for registration of a foreign judgment under the FJA is 6 years from the date of judgment.
Limitation period under common law
In Victoria, the limitation period is 15 years from the date on which the judgments becomes enforceable in the place where the judgment was given.
Challenging judgment under FJA
The court must set aside registration of the judgment if:
- The judgment is not, or has ceased to be, a judgment to which the FJA applies;
- The judgment was registered for an amount greater than the amount payable under it at the date of registration;
- The judgment was registered in contravention of the FJA;
- The courts of the country of the original court had no jurisdiction in the case;
- If the judgment debtor was the defendant in the proceedings in the original court, that the judgment debtor did not receive notice of the proceedings in the original court in sufficient time to enable the judgement debtor to defend the proceedings and did not appear;
- The judgment was obtained by fraud;
- The judgment has been reversed on appeal or otherwise set aside in the courts of the country of the original court;
- The rights under the judgment are not vested in the person by whom the application for registration was made;
- The judgment has been discharged;
- The judgment has been wholly satisfied; or
- Enforcement of the judgment would be contrary to public policy.
Challenging judgment under common law
Four recognised defences in a common law action to enforce an Israeli judgment:
- The Israeli judgment was obtained by fraud;
- The Israeli is contrary to public policy;
- The Israeli court acted contrary to natural justice; and
- The Israeli judgment is penal or a judgment for a revenue debt (although the unenforceable part of an award of damages may be severed from the enforceable part if it is practical to do so).