Vetreria Etrusca SRL v Elitepak Pty Ltd  NSWSC
Foreign Judgments Act 1991 (Cth) applies to judgments
Court will look at effect of document in determining whether it
is a judgment.
In Australia, certain foreign judgments can be registered in
Australia and enforced as if an Australian judgment under the
Foreign Judgment Act 1991. The Act applies only to monetary
judgments, not to other orders. The Act does not allow the
registration of all foreign judgments - it allows registration of
certain superior court of foreign countries where there is
reciprocity for the enforcement of Australian judgments. In this
case, Vetreria sought to have a judgment of the Court of Florence
registered in the Supreme Court of New South Wales.
Elitepak purchased bottles which were made in Italy and imported
into Australia. Vetreria claimed that it supplied those bottles to
Elitepak and was entitled to payment for them.
Vetreria sued Elitepak in the Tribunale of the Court of Florence
and these proceedings were decided without Elitepak appearing. A
certified copy of the decided was provided to Elitepak as required
through the diplomatic channel. The document comprised the decision
in Italian signed by the Clerk of the court and a Judge, together
with an interpretation in English duly certified. That
interpretation described the document as a "petition for writ
of injunction", not as a judgment.
This decision was registered in the Supreme Court of New South
Wales pursuant to the Foreign Judgments Act. Elitepak sought
unsuccessfully by notice of motion sought to have that registration
set aside for the following reasons.
First, Elitepak submitted that the effect of registration was to
make the Florentine judgment a judgment of the Supreme Court, which
therefore enlivened the Supreme Court's jurisdiction to set it
aside as though it were a default judgment made in the Supreme
For the purposes of the application, it was conceded that
Elitepak had a bona fide defence. Justice Adams thought that had
the proceedings been commenced in the Supreme Court and had default
judgment been obtained by Vetreria, Elitepak would have obtained an
order setting aside the default judgment and been permitted to
defend subject to requiring the amount claimed and costs to be paid
into court. However, this case was a different situation as it was
a foreign judgment. The jurisdiction to set aside a registered
judgment is set out in section 7 of the Foreign Judgments Act.
There was nothing in section 7 which would permit the Supreme Court
to set aside the judgment. The decision was an order requiring
Elitepak to pay a specified sum within 60 days "from the
notification of this deed".
Second, Elitpak also relied on section 86 of the Civil Procedure
Act 2005 which gives the Supreme Court of NSW a general power,
amongst other things, in respect of orders relating to "any
proceedings" to make them on terms which the court thinks fit,
and pointed to the general power to set aside a judgment under
Order 36.15 of the Uniform Civil Procedure Rules 2005. That
argument was also rejected because that power depends upon a
finding that the primary judgment "was given or entered or the
order was made, irregularly, illegally or against good faith".
None of the preconditions for the exercise of this general power
were established or alleged.
Third, rule 36.16 empowers a court to set aside or vary a
judgment if a notice of motion for that purpose is filed before
entry of the judgment or order and also gave a power to set aside
or vary a default judgment. Justice Adams considered that the
reference to a judgment is a reference to a judgment of the Supreme
Court of NSW and could not apply to the judgment of the Florentine
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