Answer ... Foreign Judgments Act 1991 (Cth): Section 10 provides that no proceedings for “the recovery of an amount payable under a judgment” to which the act applies are to be “entertained by a court having jurisdiction in Australia”, except by way of registration under the act. As such, if a foreign judgment can be enforced under the act, it must only be enforced under the same.
The foreign judgment must be a “judgment” within the meaning of Section 3. This includes:
- a final or interlocutory judgment or order given or made by a court in civil proceedings;
- 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 (Cth) or an award that may be enforced under Section 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.
As per Section 6, the foreign judgment must be a judgment to which Part 2 applies. Section 5 provides the substantive requirements for the applicability of Part 2, which are summarised below:
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Specification by the governor general: If the governor general is “satisfied” that the enforcement of “money judgments” or “non-money judgments” of Australian courts will be assured a “substantial reciprocity of treatment” in certain foreign courts, the Foreign Judgments Regulations 1992 (Cth) may extend the application of Part 2 to those courts. By way of summary only, these are as follows:
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- Superior courts – certain specified superior courts of Canada, the Bahamas, the British Virgin Islands, Dominica, the Falkland Islands, Fiji, France, Germany, Gibraltar, Grenada, Hong Kong Special Administrative Region, Israel, Italy, Japan, Korea, Malawi, Montserrat, Papua New Guinea, Poland, St Helena, St Kitts and Nevis, St Vincent and the Grenadines, Seychelles, Singapore, the Solomon Islands, Sri Lanka, Switzerland, Taiwan, Tonga, Tuvalu, the United Kingdom and Western Samoa.
- Inferior courts – specified inferior courts of Canada, Poland, Switzerland and the United Kingdom.
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Money judgments: A “money judgment” must be:
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an “enforceable money judgment” where money is payable for:
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- an amount which excludes amounts payable in respect of taxes, fines or penalties;
- an amount payable in respect of New Zealand tax; or
- an amount payable in respect of “recoverable Papua New Guinea income tax”; and
- “final and conclusive”, which includes judgments where an appeal may be pending against it or are still subject to appeal.
- At this time, the Foreign Judgment Regulations do not specify any “non-money judgments” which are enforceable under the act. As such, only money judgments can be enforced under the act.
- Further requirements: A foreign judgment cannot be registered if, at the date of application for registration, it has been wholly satisfied or it could not be enforced in the country of the original court.
The following types of foreign judgments are excluded from the scope of Part 2 of the act:
- a judgment given by a foreign court before the regulations extend the application of the act to judgment given by that court;
- 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 Part 2 applies; and
- a judgment given by a court of New Zealand.
Trans-Tasman Proceedings Act 2010 (Cth): Section 65 provides that a “registrable NZ judgment” cannot be enforced in Australia unless it is registered under the act and cannot be enforced in Australia by any other means.
Section 66 and the Trans-Tasman Proceedings Regulation 2012 (Cth) define the types of New Zealand judgments that are a “registrable NZ judgment”. These are summarised below:
- New Zealand court civil proceeding: A final and conclusive judgment that is given in a civil proceeding by a New Zealand court.
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NZ tribunal civil proceeding: A final and conclusive judgment that:
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- is given in a civil proceeding by a New Zealand tribunal that is prescribed by the Trans-Tasman Regulations; or
- is of a kind prescribed by the Trans-Tasman Regulations that:
- is not made in connection with the performance of an adjudicative function;
- is not enforceable without an order of a court; or
- imposes a civil pecuniary penalty.
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New Zealand court criminal proceeding – compensation: A final and conclusive judgment that:
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- is given in a criminal proceeding by a New Zealand court; and
- consists wholly of a requirement to pay an injured party a sum of money by way of compensation, damages or reparation.
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New Zealand court criminal proceeding – regulatory regime criminal fine: A final and conclusive judgment that:
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- is given in a criminal proceeding by a New Zealand court;
- consists wholly of the imposition of a “regulatory regime criminal fine”; and
- meets the conditions (if any) of a kind prescribed by the Trans-Tasman Regulations.
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New Zealand Trans-Tasman Proceedings Act or Evidence Act: A final and conclusive order made under the Trans-Tasman Proceedings Act 2010 (NZ) or the Evidence Act 2006 (NZ) by a New Zealand court or tribunal, being an order for the payment of expenses incurred:
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- by a witness in complying with a subpoena served on the witness in Australia under Division 3 of Part 5 of the act; or
- in connection with appearing remotely from Australia in a New Zealand proceeding under Division 3 of Part 6 of the act.
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New Zealand market proceeding: A “NZ market proceeding judgment” as per Section 85(2) of the act.
- Reciprocal enforcement: A judgment registered in a New Zealand court under the Reciprocal Enforcement of Judgments Act 1934 (NZ).
A foreign judgment cannot be a “registrable NZ judgment” if the judgment falls into any of the categories listed below.
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Excluded matters: The judgment relates to an “excluded matter”, which includes:
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- the dissolution of a marriage;
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the enforcement of:
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- an obligation under Australian law to maintain a spouse or a de facto partner (within the meaning of the Acts Interpretation Act 1901 (Cth));
- an obligation under New Zealand law to maintain a spouse, a civil union partner (within the meaning of the Civil Union Act 2004 (NZ)) or a de facto partner (within the meaning of the Property (Relationships) Act 1976 (NZ)); or
- the enforcement of a child support obligation.
- Prescribed non-money judgment: The judgment is a non-money judgment of a kind prescribed by the Trans-Tasman Regulations.
- Proceeds of crime legislation: An order issued under the proceeds of crime legislation.
- Deceased estates: An order relating to the granting of probate or letters of administration or the administration of the estate of a deceased person.
- Guardianship: An order relating to the guardianship or care of a person who is incapable of managing his or her personal affairs.
- Incapacity: An order relating to the management of the property of a person who is incapable of managing that property.
- Children: An order relating to the care, control or welfare of a child.
- Prescribed civil pecuniary penalty: The judgment imposes a civil pecuniary penalty of a kind prescribed by the Trans-Tasman Regulations.
- Liable for an offence: An order that, if contravened by a person to whom it is directed, would make the person liable to conviction for an offence in the place where it was made.
- Prescribed by the regulations: The judgment relates to a matter of a kind prescribed by the Trans-Tasman Regulations, such as Section 16 of the same concerning certain types of orders made by a New Zealand court under the Insolvency (Cross-border) Act 2006 (NZ).
Unlike the usual rules concerning the enforcement of money judgments that comprise taxes or penalties, Section 79 provides that an Australian court may not refuse to enforce, or delay, limit or prohibit the enforcement of, a “registered New Zealand judgment” on any of the following grounds listed below.
- Enforcement of public law: Enforcing the judgment would involve the direct or indirect enforcement in Australia of a New Zealand public law.
- New Zealand tax: New Zealand tax is payable under the judgment.
- Civil pecuniary penalty or regulatory regime criminal fine: The judgment imposes a “civil pecuniary penalty” or a “regulatory regime criminal fine”.
Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth): This act empowers the commonwealth attorney general to prohibit or limit the enforcement of certain types of foreign judgments. These can include judgments relating to:
- the giving of evidence or the production of documents as per Section 6;
- “antitrust proceedings” as per Section 9;
- costs in antitrust proceedings as per Section 11;
- enforcement of judgments under reciprocal agreement as per Section 12; or
- an order requiring or prohibiting an act, or for something to be done or conduct in Australia refrained from, as per Section 14.
However, there are two major limitations to this power. First, in most cases, the commonwealth attorney general must be “satisfied” that it is in the national interest, or that the assumption of jurisdiction by the foreign court or the manner of exercise of jurisdiction by the foreign court would be contrary to international law or inconsistent with international comity or international practice. In the case of proceedings covered by Section 9, the attorney general must also be satisfied that the taking of an action by a “foreign authority”, or the manner of taking that action, would be contrary to international law or inconsistent with international comity or international practice.
Second, the Commonwealth Parliament’s legislative competence is limited by the powers conferred upon it under Section 51 of the Constitution. As such, the proceedings must relate to one of the categories mentioned in Section 5 of the act.
Section 12 provides that where arrangements have been made by agreement with a foreign country, the attorney general can declare by legislative instrument that the foreign judgment can be enforced in Australia. However, as the attorney general has never made such a declaration, these provisions have never been employed. As such, and by way of brief summary only, the arrangements would concern the recovery of sums paid by a defendant under the enforcement of a foreign “antitrust proceeding” to, among other things, recover amounts paid pursuant to an award for “multiple damages”.
Common law: If the foreign judgment cannot be recognised or enforced under the Foreign Judgments Act 1991 (Cth), the Trans-Tasman Proceedings Act 2010 (Cth) or the Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth), then the foreign judgment may be susceptible to recognition and enforcement at common law. There are three ways in which a foreign judgment can be recognised and enforced under the common law of Australia:
- an action in debt;
- an action in indebitatus assumpsit; or
- an action on the original cause of action relied upon in the foreign court.
The onus of proof is upon the plaintiff to establish all of the grounds of the chosen cause of action.
A foreign judgment may be recognised and enforced via an action in debt for a liquidated sum arising from the foreign judgment as per RDCW Diamonds Pty Ltd v Da Gloria [2006] NSWSC 450 at [26] and XPlore Technologies Corporation of America v Tough Corp Pty Ltd [2008] NSWSC 1267 at [15].
Historically, actions in debt and indebitatus assumpsit were quite distinct. While the history of these causes of action is beyond the scope of this Q&A, the essence of the distinction as this developed over several hundred years was that an action in debt was for the return of physical money held by the defendant, while indebitatus assumpsit was based on a promise implied by law that the defendant would pay a certain sum to the plaintiff (see further Young v Queensland Trustees Ltd [1956] 99 CLR 560 at 566–568). However, by 1845, English courts accepted that where assumpsit could be pleaded to enforce a judgment, so could an action in debt as per Williams v Jones (1845) 153 ER 262 at 264. By 1883, it had been held that an “action upon a foreign judgment may be treated as an action in either debt or assumpsit: the liability of the defendant arises upon the implied contract to pay the amount of the foreign judgment”, as per Grant v Easton (1883) 13 QBD 302 at 303. This passage was explicitly adopted and approved by Justice Buckley of the Chancery Division in In re Flynn, decd (No 2) [1969] 2 Ch 403. A similar conclusion was reached by the English Court of Appeal in Berliner Industriebank Aktiengesellschaft v Jost [1971] 3 WLR 61 at 70D, stating that “An action in this country upon a foreign judgment for an ascertained sum is an action in debt or assumpsit, which is an action “in personam”, the court citing Williams v Jones.
There does not appear to be any Australian authority that overturns or distinguishes these decisions. As such, it appears that under the common law of Australia, a foreign judgment can be enforced by way of an action in debt or via indebitatus assumpsit.
Both causes of action have four essential requirements, which are summarised in Doe v Howard [2015] VSC 75 at [56].
International jurisdiction: First, the foreign court must have exercised a jurisdiction that Australian courts will recognise which has also been called “international jurisdiction”. Buckley LJ in Emanuel v Symon [1907] 1 KN 302 at 309 stated that
In actions in personam there are five cases in which the Courts of this country will enforce a foreign judgment: (1) Where the defendant is a subject of the foreign country in which the judgment has been obtained; (2) where he was resident in the foreign country when the action began; (3) where the defendant in the character of plaintiff has selected the forum in which he is afterwards sued; (4) where he has voluntarily appeared; and (5) where he has contracted to submit himself to the forum in which the judgment was obtained.
This has been applied in Australia as per Liu v Ma[2017] VSC 810 at [6], in support of the proposition that a foreign court can exercise jurisdiction based on the citizenship of the defendant. See also Xu v Wang [2019] VSC 269 at [77].
In Central Petroleum Limited v Geoscience Resource Recovery LLC [2017] QSC 223 at [58], the court considered the modern Australian position regarding “jurisdiction in the international sense”. Such jurisdiction can arise by “the presence or residence of the defendant in the jurisdiction of the foreign court” or by voluntary submission by the defendant to that jurisdiction. An Australian court must make its own determination regarding jurisdiction and at [59], the court quoted Staughton LJ in Jet Holdings Inc v Patel [1990] 1 QB 335 at 344 where he stated that “the foreign court’s decision on its own jurisdiction is neither conclusive nor relevant. If the foreign court had no jurisdiction in the eyes of English law, any conclusion it may have reached as to its own jurisdiction is of no value”.
However, the common law position regarding the voluntary submission to jurisdiction is altered by Section 11 of the Foreign Judgments Act 1991 (Cth), which provides that a foreign court does not have jurisdiction merely because the “judgment debtor” entered an appearance in the proceedings before the foreign court or only participated in those proceedings to the extent as necessary to protect or obtain the release of property seized or threatened with seizure or subject to an order restraining it disposition or disposal, to contest the jurisdiction of the court or to invite the court to exercise its discretion not to exercise jurisdiction in the proceedings.
Final and conclusive: Second, a foreign judgment must be final and conclusive, in that it must “put an end to the particular proceeding pending between the parties, and must settle once and for all the controversy between them” as per Doe v Howard at [67]. The foreign judgment is conclusive as long as it stands, even if it can be altered, varied or discharged on the basis of fresh evidence, or if it can be reversed, appealed or set aside as per Ainslie v Ainslie (1927) 39 CLR 381 at 388. Similarly, in Benefit Strategies Group Inc v Prider [2007] SASC 250, the court stated that a foreign judgment is presumed to be conclusive “so long as it stands” at [11], citing Venquelin v Bouard (1863) 15 CB (NS) 341 at [12] and Ainslie v Ainslie at 388 and 410. Default judgments may also be held to be final and conclusive as per Schnabel v Lui [2002] NSWSC 1184 at [134]–[135] and RDCW Diamonds v Da Gloria at [38]. Furthermore, “brevity or apparent lack of analysis necessarily defeats” a plea of res judicata as per Telesto Investments Ltd v UBS AG [2013] NSWSC 503 at [188] – [189] and [201].
Additionally, a foreign judgment will support a finding of res judicata as per Trawl Industries of Australia Pty Ltd (in liquidation) v Effem Foods Pty Ltd (1992) 108 ALR 335 at 347–40; Spirits International BV v Federal Treasury Enterprise (FKP) Sojuzplodoimport [2011] FCAFC 69 at [45]; and Telesto Investments Ltd v UBS AG [2013] NSWSC 503 at 185. As such, an Australian court will not permit the parties to “agitate the merits of the matter before the foreign court, at least to the extent that it is a matter with which the foreign court was capable of dealing”, as per Xplore Technologies v Tough Corp at [15] and RDCW Diamonds v Da Gloria at [26], [28] –32]. See also Ainslie v Ainslie at 402.
Identity of the parties: Third, there must be an “identity of the parties”, which means that the parties to the original cause of action are the same as those in the common law recognition and enforcement action. See Benefit Strategies v Prider at [8] and Bhushan Steel Ltd v Severstal Export GmbH [2012] NSWSC 583 at [146] – [147].
Definite sum: Fourth, the foreign judgment must be for a definite, liquidated sum of money. For example, while the sum can include costs and interest, it cannot be subject to a future deduction for costs or a future addition for interest. See Benefit Strategies v Prider at [8] and Bhushan Steel v Severstal at [146]-[147].
Further considerations In addition to the requirements above, other factors may arise if the original cause of action is to be relitigated. First, while the common law of Australia now holds that a foreign judgment is conclusive proof of the matters to which it relates, foreign courts are still not held to be “courts of the records” and as such, the doctrine of res judicata does not apply as per Xplore Technologies v Tough Corp at [16], citing Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853, among others. As such, there is no merger of the original cause of action in the foreign judgment. However, the defendant will usually be estopped from raising defences in the rehearing that were raised in the original hearing and were not successful.
Second, and more importantly for plaintiffs, limitation periods on the original cause of action will run from the underlying events. As such, it may be possible that a plaintiff is stature-barred from moving on the original cause of action, but moving on the foreign judgment in debt or indebitatus assumpsit is still permitted.
Three vitiating factors: Irrespective of the cause of action relied upon by the plaintiff, the common law of Australia will not recognise or enforce a foreign judgment where the foreign judgment:
- was obtained by or infected by fraud;
- is manifestly contrary to or incompatible with Australian public policy; or
- arises from a court process that is manifestly contrary to or incompatible with Australian concepts of procedural fairness or natural justice.
As regards the first factor, it is a long-standing proposition of Australian law that a foreign judgment can be set aside for fraud, as per Ainslie v Ainslie at 402. However, while new evidence was required to set aside a domestic judgment, the same was not true of foreign judgments. As such, where a party seeks to set aside a judgment of an Australian court on the ground of fraud, among other things, “newly discovered facts” must be adduced that were not available at the time of the original hearing as per Kirby P in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538–539. However, due to the legacy of the English decision of Abouloff v Oppenheimer & Co (1882) 10 QBD 295 at 300–305, Australian courts were bound to effectively permit a rehearing of the foreign case where fraud was alleged. However, this decision was not followed in Keele v Findley (1990) 21 NSWLR 444, as Chief Justice Rogers of the Commercial Division held at 457G–458D that Abouloff was incorrectly decided and that the approach to addressing allegations of fraud should be the same for domestic and foreign judgments. This approach was followed in XPlore Technologies v Tough Corp at [19], but was not adopted in Close v Arnott (Unreported, Common Law Division, 21 November 1997, BC 9706194) or Yoon v Song (2000) 158 FLR 295 at [22]. However, the approach in Keele v Findley was approved in obiter by the Full Court of the Supreme Court of South Australia in Benefit Strategies Group Inc v Prider (2005) 91 SASR 544 at 558–559 [41] and by the NSW Court of Appeal in Quarter Enterprises Pty Ltd v Allardyce Lumber Company Pty Ltd (2014) 85 NSWLR 404 at 432 [136] to 432 [137].
Ultimately, the law of England changed in Altimo Holdings and Investment Ltd v Kyrgz Mobile Tel Limited [2011] 4 All ER 1027 at 1057 [115], so that new evidence would be required for both domestic and foreign judgments. While this change is not binding on Australian courts today, this further reinforced the adoption of the Keele approach in Doe v Howard at [127]–[131]; and this was followed in subsequent Victorian decisions such as Xu v Wang at [84]. As such, despite the lack of a clear case from any Australian intermediate court of appeal, it appears that Keele v Findley is correct for the purposes of Australian law.
As regards the second factor, recent authorities – such as Xu v Wang at [90] – indicate that it is difficult to prevent the enforcement of a properly recognised foreign judgment on the grounds of incompatibility with Australian public policy. Examples at [91] include:
- where the content of a foreign law was “repugnant”, such as by permitting slavery; or
- enforcement would jeopardise Australia’s national interest or lead to an “unacceptably unjust result”, citing De Santis v Russo (2001) 27 Fam LR 414 at [21].
Another example is where the court determines that the foreign judgment is a “foreign penal order” in the nature of a punishment as per Doe v Howard at [135]–[136] citing Islamic Republic of Iran v The Barakat Galleries Ltd [2009] QB 22 at 53 [106] with approval. See also Doe v Howard at [138], citing Attorney General of New Zealand v Ortiz [1984] AC 1 at 20 regarding penal and revenue laws and from [139]–[146], especially [145]. See further Huntington v Attrill [1893] AC 150 and Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (No 2) (1988) 165 CLR 30.
As regards the third factor, a finding of a foreign court of fact or law cannot be impeached by an Australian court unless it is obtained by fraud or “the foreign law, or at least some part of the proceedings in the foreign Court, is repugnant to natural justice…and…it is repugnant to natural justice if a decision has been ‘arrived at in a mode which is according to our notions unjust’ or unless it ‘offend against English views of substantial justice’”, as per Justice Higgins of the High Court of Australia in Ainslie v Ainslie at 402. An example is in Boele v Norsemeter Holding AS [2002] NSWCA 363 at [28], where the notice provisions of a foreign court will be a consideration, but not determinative in determining whether due notice has been given so as to satisfy Australian concepts of natural justice. For example, it would not be acceptable for a respondent to receive no notice of the proceeding or have no opportunity to be heard, as per Terrell v Terrell (1971) VR 155 at 157.
Equity: There is a line of authority in Australia that stands for the proposition that an Australian court of equity will assist the enforcement of the judgment of a foreign court of equity without necessarily having to recognise the judgment at common law where there is a “sufficient connection between the defendant and the jurisdiction in which the foreign order was made to justify recognition of the foreign court’s order”, as per Independent Trustee Services Ltd v Morris [2010] NSWSC 1218 at [33].
The first key authority regarding an Australian court exercising its equitable jurisdiction to assist in the enforcement of the judgment of a foreign court of equity appears to be the judgment of Justice McPherson, as he was then, of the Queensland Supreme Court in White v Verkouille (1989) 2 Qld R 191. In summary, the Second District Court of Nevada had appointed a receiver to pursue the enforcement of certain outstanding amounts. The receiver then attempted to enforce the Nevadan court’s judgment and, among other things, seek the appointment of auxiliary receivers in Queensland. Drawing on the English cases of Penn v Lord Baltimore (1750) 1 Ves Sen 444, Houlditch v Marquess of Donegal (1834) 2 Cl & F 470; 6 ER 1232, and Schemmer v Property Resources Ltd [1975] Ch 273, the court stated at 194 that: “Equity lends its aid to the enforcement of a foreign judgment without requiring as a prerequisite that it be made a judgment of this Court…[where] the foundation of the assistance afforded by courts of equity in cases such as this is the jurisdiction to act in personam against the defendant.”
It continued at 195:
“the court must be satisfied of a sufficient connexion between the defendant and the jurisdiction in which the foreign receiver has been appointed as to justify recognition of the foreign court’s order. In my opinion that correctly states the principle upon which this Court acting in its equitable jurisdiction will aid in the enforcement of a foreign judgment.”
The court ultimately permitted the appointment of the auxiliary receivers and the enforcement of other orders against the defendants, despite not having recognised the underlying judgment. Subsequently, Justice Campbell, as he was then, of the Supreme Court of New South Wales in Davis v Turning Properties [2005] NSWSC 742 relied upon White v Verkouille at [16] to [20] and [35] to conclude that the court had the power to issue freezing orders in New South Wales to support similar orders made by the Supreme Court of the Commonwealth of the Bahamas. The court also noted the following at [35]:
“As well, the ordinary course of administration of justice has long included a court making certain of its remedies available in aid of proceedings in another court – the old equitable remedies of a Bill of discovery, a Bill to perpetuate testimony, and a Bill to take testimony de bene esse pending a suit (Story, Commentaries on Equity Jurisprudence 13th ed 1886 para [1480] ff) provide examples of remedies being available in Chancery in aid of proceedings in another court before the other court has heard a suit. After another court has heard and decided a suit, the title of a foreign appointed administrator of an insolvent estate to movables is recognised in Australia under the general law (Australian Mutual Provident Society v Gregory (1908) 5 CLR 615), and can provide a sufficient basis for an appointment of a receiver of immoveables within the jurisdiction (In Re Kooperman (1928) B & C R 49).”
Both White v Verkouille and Davis v Turning Properties were relied upon by Acting Justice Bryson, as he was then, in Independent Trustee Services Ltd v Morris [2010] NSWSC 1218. As per [29] of the judgment, one order of the High Court of Justice of England and Wales was recognised by the court as a money judgment; whereas the other orders, including a declaration, could not be recognised on that basis. As per [19], the court was presented with the option to hear the underlying cause of action, but considered this unnecessary. As per [30] to [36], the court adopted the approach taken by Justice McPherson in White v Verkouille, noting that “His Honour made a characteristically careful review of instances in case law where equity courts had acted in this way”, and that he was “fortified by observations of Justice Campbell in Davis v Turning Properties Pty Ltd”. As such, the types of equitable remedies which an Australian court of equity will extend do not appear to be closed.
Inherent jurisdiction of the court: In the specific case of freezing orders, a separate but related line of authority has arisen which now holds that the supreme courts of the states and territories can, in their inherent jurisdiction, make freezing orders in aid of foreign judgments that are prospective and cannot yet be registered under the Foreign Judgments Act 1991 (Cth). This was confirmed by the High Court of Australia in PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36; 258 CLR 1 at [2] per the majority. As such, where the court can be convinced that the future enforcement of a foreign judgment in that court may be frustrated or vitiated, freezing orders may be made even where that foreign judgment is not yet final and therefore cannot immediately be registered or recognised in the usual way.