de Santis v Russo [2001] QCA 457

SUPREME COURT OF QUEENSLAND

CITATION: de Santis v Russo [2001] QCA 457

PARTIES: MIRELLA DE SANTIS / (applicant/appellant) / v / MARIA RUSSO / (respondent/respondent)

FILE NO/S: Appeal No 3109 of 2001 / SC No 48 of 1998

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 26 October 2001

DELIVERED AT: Brisbane

HEARING DATE: 12 October 2001

JUDGES: McPherson and Thomas JJA, Cullinane J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER: Appeal allowed with costs, including costs of the application below. Set aside the order of the Supreme Court made on 12 January 1998 and dismiss the respondent’s originating summons filed on 5 January 1998. Extend to 16 October 2000 the time for making the application to set aside that order.

CATCHWORDS: PRIVATE INTERNATIONAL LAW – FOREIGN JUDGMENTS – EFFECT AND ENFORCEMENT – LEGISLATION FOR ENFORCEMENT OF JUDGMENTS – JUDGMENTS OF COURTS OF COUNTRIES OTHER THAN AUSTRALIAN STATES OR TERRITORIES – QUEENSLAND – where Italian Court of Appeals gave judgment against Australian resident – whether the Court of Appeals in Rome had jurisdiction – whether there was jurisdiction by way of voluntary submission / Foreign Judgments Act 1991 (Cth), s 7 / Beavan v Lord Hastings (1856) 2 K & J 724, considered / Emanuel v Symon [1908] 1 KB 302, considered / Harris v Taylor [1915] 2 KB 580, considered / Henry v Geoprosco International Ltd [1976] QB 726, applied / L’Abbate v Collins & Davey Motors Pty Ltd [1982] VR 28, considered / Macartney, Re [1921] 1 Ch 522, distinguished / Overseas Food Importers & Distributors Ltd and Brandt, Re (1981) 126 DLR (3d) 422, distinguished / Vanquelin v Bouard (1863) 15 CB NS 341, considered / Von Wyl v Engeler [1998] 3 NZLR 416, applied

COUNSEL: S J Lee for the appellant / No appearance for the respondent

SOLICITORS: Ellison Moschella & Co for the appellant / No appearance for the respondent

McPHERSON JA: This is an appeal by Mirella de Santis against an order dismissing her application under s 7 of the Foreign Judgments Act 1991 (Cth) to set aside a foreign judgment registered in the Supreme Court of Queensland under s 6 of that Act. The judgment, which was for 20 million lire, together with costs in a further amount of 5.5 million lire, was given against the appellant in favour of the respondent Maria Russo by the Corte di Appello di Roma in Italy on 20 May 1994. On 12 January 1998, Fryberg J, on the application ex parte of Maria Russo, ordered the judgment to be registered under the Act. His Honour’s order was not served on Mrs de Santis, who lives in Frankston, Victoria, until 19 September 2000. On 16 October 2000 she filed the application under s 7 of the Act to set it aside. It was dismissed by Atkinson J on 12 March 2001.

The story begins at some time before 1960, when Ms Maria Russo married Giulio de Santis in Italy, where both of them were then domiciled. There was one child of the marriage, a daughter Carla, who was born on 13 January 1958. In 1960 the parties agreed to separate. Divorce in the sense of dissolution of marriage was not then possible under the law of Italy, but the parties entered into what appears to have been a separation agreement by which he assigned their apartment in Rome to Ms Russo and their daughter Carla.

In March 1961, Mr de Santis emigrated to Australia. He went to live in Victoria, where he became domiciled and was resident until his death in 1984. In October 1966 he became an Australian citizen. He obtained a dissolution of his marriage to Ms Russo, and on 15 March 1968 he married the appellant, whose maiden name was Pase. Like Mr de Santis, she had been born in Itay, but came to Australia in 1958 when she was 16 years old, and also became an Australian citizen. She has been domiciled and resident in Victoria ever since. In 1978 Mr and Mrs de Santis as joint tenants purchased what is described by her as a modest home in Frankston, Victoria. There were two children of their marriage, named Roberto and Patrizia, who were born in Australia.

At some stage while Mr de Santis was carrying on a business as a restaurateur his daughter Carla Russo paid him a visit in Victoria. According to what was said in the proceedings in Rome, the business was then in a prosperous condition. He employed three chefs and 12 waiters, and was also engaged in a real estate development project. Unfortunately, according to Mrs de Santis, the restaurant was destroyed by fire in March 1981. Three loans in substantial amounts were secured by mortgages on the house in Frankston. The first mortgage secured the balance of the purchase price, the second and third secured loans for the restaurant business. On 15 September 1984, Mr de Santis died insolvent. As surviving joint tenant, the widowed Mrs de Santis became the sole owner of the house, on which she says she was then obliged to pay the money owing on mortgage. Because he died insolvent, she acquired no property from her late husband. Under the law of Victoria the surviving joint tenant takes the joint property by right of accretion (ius accrescendi) and not by succession. See Challis’s Real Property (3rd ed) at 366. Her title is in legal theory considered on his death to have been freed from the competing claim of the only other joint tenant.

News of the prosperity of Mr de Santis found its way back to Rome when his daughter Carla returned there. By contrast, the information concerning his subsequent financial misfortunes seems not to have done so. However that may be, Ms Russo commenced proceedings against Mr de Santis in the Tribunal of Rome, which I take to be a court of civil jurisdiction at first instance. In her summons, which was presented to the court on 30 August 1984, she sought sentence or judgment against Mr de Santis for 50 million lire representing “his share of the child support expenses for their daughter Carla for the period between 1978 and the date of the summons”, which was 30 August 1984. That was, as it happens, only 15 days before Mr de Santis died in Australia. Some delay then ensued before Ms Russo re-opened the proceedings on 25 June 1985 by citing the heirs of Mr de Santis “collectively and impersonally” in the Tribunal of Rome. Service of that summons is disputed by Mrs de Santis, and she says she knew nothing about those proceedings until much later.

The amount for which judgment was given in the Tribunal of Rome on 5 December 1988/13 May 1989 was 1.3 million lire, which represented a 50% share of support for Carla for the period between 30 August 1984 (when the summons was issued) and 15 September 1984, with interest to the date of payment. Ms Russo was evidently dissatisfied with this outcome, and on 14 June 1990 she appealed to the Court of Appeals at Rome. The matter went first to a Court or Judge of Inquiry, whose functions may have included that of ascertaining whether or not the proceedings had been properly served on the heirs. On 10 June 1990, Mrs de Santis first received notice of the pending appeal by Ms Russo to the Court of Appeals at Rome. It took the form of a copy of Ms Russo’s summons appealing against the judgment at first instance, which was provided to Mrs de Santis by the Italian Consulate‑General in Melbourne. The precise sequence of events in the courts in Italy is a little difficult to follow; but what is clear is that, following a hearing on 13 May 1994, the Court of Appeals at Rome in the decision given on 20 May 1994 declared Mrs de Santis, who is described as “the summoned party”, to be “guilty of default”. Judgment was given for 20 million lire, together with legal expenses, VAT, and interest. Without the assistance of an expert versed in Italian law, it is impossible to speak with any real confidence on the matter; but it seems that Ms Russo succeeded in increasing the judgment amount because the Court of Appeals accepted her lawyer’s broader submission that, in providing for their daughter’s support, Ms Russo had been “managing the business” of Mr de Santis as Carla’s other parent.

The application to set aside registration of the judgment in Australia was dismissed by Atkinson J on 12 March 2001. One of the grounds advanced for setting registration aside was that the judgment in the Court of Appeals was obtained by fraud; but that ground was not pursued on the appeal before us. The others, which were the subject of submissions by Mr S J Lee on behalf of Mrs de Santis, are: (1) that the judgment in Rome was obtained contrary to the requirements of natural justice; (2) that the enforcement of that judgment in Australia would be contrary to public policy in this country; and (3) that the Court of Appeals in Rome did not have jurisdiction in the claim against Mrs de Santis. I am not satisfied that the first of these challenges has been established by the appellant in this case, nor that there is any reason of public policy that would legitimately preclude enforcement of the judgment here. Not having had the benefit of expert evidence about Italian law, it seems to me that it would be wrong for this Court to make policy strictures on the legal system of another country without having an informed understanding of the philosophy or rationale that underlies the legal rules in question and how they compare with our own. In that context, I would add only that I respectfully agree with Atkinson J that the decision in Re Macartney [1921] 1 Ch 522 is overdue for reconsideration in the light of legal developments that have occurred in Australia (and for that matter also in England) since it was given some 80 years ago.

This leaves for consideration the question whether the Court of Appeals in Rome had jurisdiction to give judgment against Mrs de Santis. Section 7(1) of the Foreign Judgments Act 1991 authorises a party against whom a registered judgment is enforceable to apply to the court of registration to have the judgment set aside. Section 7(2) provides:

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

(a)must set the registration aside if it is satisfied:

…

that the courts of the country of the original court had no jurisdiction in the circumstances of the case.”

Section 7(3) proceeds to add:

“(3) 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 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.”

Section 7(5) provides:

“(5) For the purposes of subparagraph (3)(a)(ii), 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

for the purpose only of one or more of the following:

…

contesting the jurisdiction of the court”.

It is necessary to add that, by s 3(1), “original court” in relation to a judgment means the court by which the judgment was given, which in this case was the Court of Appeals at Rome. It is true that it was an appellate tribunal; but it was not disputed by Mr Lee that that proceeding in that Court was an original proceeding in which, in company with most of such courts in continental legal systems, the plaintiff’s claim was considered de novo. In the absence of expert evidence of Italian law, I am prepared to accept that the judgment of 20 May 1994 is in terms of s 7(3)(a) a judgment in personam: cf the actions against heirs considered in Vanquelin v Bouard (1863) 15 CB NS 341, and Beavan v Lord Hastings (1856) 2 K & J 724, where Lord Hatherly appears to have considered the claim in that case to be analogous to an action at law in quasi-contract. See also L’Abbate v Collins & Davey Motors Pty Ltd [1982] VR 28, 30.

The first question to be considered on the appeal is whether, within the meaning of s 7(2)(a)(iv) of the Foreign Judgments Act, the Court of Appeals in Rome had jurisdiction in the circumstances of this case. There is, I consider, no doubt that the question falls to be determined according to the jurisdictional rules of this Court and not of the Court of Appeals at Rome. That is the principle that prevails at common law: see Henry v Geoprosco International Ltd [1976] QB 726, 745, 746-747; and Von Wyl v Engeler [1998] 3 NZLR 416, 421. The same rule has been applied to the exception for fraud corresponding to s 7(2)(a)(iv) of the Act that appears in the Administration of Justice Act 1920 (Imperial). See Owens Bank Ltd v Bracco [1992] 2 AC 443, 464, where it was said that Parliament “is to be taken to have intended that such questions be decided by reference to the common law …”. In fact the categories of cases in which a registered judgment may be set aside under s 7(2)(a), although not identical, bear a close resemblance to those identified by Buckley LJ in Emanuel v Symon [1908] 1 KB 302, 309, as those in which the courts would at common law enforce a foreign judgment. Finally, it can hardly have been intended that questions of jurisdiction under s 7(2)(a)(iv) should be determined according to the jurisdictional rules of the original court, about which this Court can know nothing at all unless it is assisted by expert evidence on the foreign law.

Putting on one side the question of voluntary submission, it is clear that the Court of Appeals in Rome did not, according to our jurisdictional rules, have jurisdiction in the proceedings between Ms Russo and Mrs de Santis. Mrs de Santis was not present, resident, or domiciled within the jurisdiction of the Italian courts either at the time the proceedings commenced or at any other relevant time. She did not counterclaim in the proceedings there: s 7(3)(a)(iii); nor had she expressly agreed to acknowledge the jurisdiction: s 7(3)(a)(iii). She did not effect any transaction through a place of business in Italy: s 7(3)(a)(v). The case was not, of course, one involving a judgment for New Zealand tax: s 7(3)(a)(vi). Furthermore, for what it matters, she had no property in Italy. Even if, according to Italian law, nationality is sufficient basis for assuming jurisdiction in the courts in that country, Mrs de Santis was not an Italian national at the time of these proceedings.

If the judgment can be sustained at all, it must be in the character of one that was founded on a voluntary submission within s 7(3)(a)(i) to Italian jurisdiction. The Act does not define what is meant by voluntary submission; but s 7(5) describes what does not constitute it. Merely (a) entering an appearance in the proceedings in the foreign court is not; nor is (b) participating in those proceedings, provided in either of those cases that (so far as relevant here) the only purpose is: (d) to contest the jurisdiction of the court. Depending on the view one takes of the ratio of the decision, s 7(5)(a) is evidently directed to problems of the kind that arose in Harris v Taylor [1915] 2 KB 580, as later interpreted in Henry v Geoprosco International Ltd [1976] QB 726. A conditional appearance limited to the purpose of contesting the jurisdiction or even participation in the proceedings only to the extent necessary for that purpose, does not now, even if it may at common law, involve a voluntary submission to the jurisdiction.

When one turns to what was done by Mrs de Santis or on her instructions, it is evident that an attempt was made to present her case to the Court in Rome. After she had on 8 June 1990 received notification of the proceedings from the Italian Consul-General in Melbourne, she consulted solicitors Messrs Scomparin & Bernardi of Clifton Hill in Victoria. That was on 24 July 1990, at a time when the prospective appeal to the Court of Appeals in Rome had been instituted and was before the Inquiring Judge who was due to conduct a pre-trial hearing on 20 June 1991. After explaining the matter to Mrs de Santis and taking instructions, Mr Scomparin prepared a declaration, which was executed by her in the Italian language. After reciting an outline of the proceedings, the declaration recorded that the deceased Mr de Santis and the surviving heirs were all Australian citizens; that the estate of the deceased had shown an excess of liabilities over assets; that the only asset in joint names had been the matrimonial home at Frankston which was held as joint tenants at common law, “and as such the last surviving owner had equitably the right to the property in absolute, and therefore no one else may claim any right to it”; that in Australia there was no such right as a “legitimate portion”, as there was in Italy; that, to the best of the declarant’s knowledge, Ms Russo had not sued Mr de Santis until after his death; and that, although it would have been her wish to be present at the hearing, distance, the expense, and the impossibility of being absent from her work, impelled her to request the “most excellent Court of Appeal of Rome” to accept her declaration as a defence and answer to the claim of Ms Russo.

A copy of the declaration was forwarded to the Inquiring Judge at the address of the Court of Appeals in Rome under cover of a registered airmail letter dated 22 August 1990. A copy of the declaration was also forwarded to Mr Eugenio Mete, who was Ms Russo’s attorney on the record in Rome, under cover of a letter of the same date. The letter addressed to the Court asked that the declaration be accepted in substitution for a deed stating public knowledge and as a reply to the reasons stated in the summons issued by Ms Russo; if any other particulars or documents should be required by the Court of Appeals, the writer of the letter gave an assurance that he would do his best to satisfy the request. He asked that the letter and enclosed declaration be forwarded to the Inquiring Judge, and respectfully requested that its receipt be acknowledged. The letter to Mr Mete was somewhat less detailed; but it too enclosed a copy of the declaration, and asked that it might be sent to whom it may concern at the Court of Appeals. These were in fact the last communications that passed between the parties or between Mrs de Santis and the Court or vice versa prior to 19 September 2000, when Mrs de Santis was served in Victoria with the order made by Fryberg J on 12 January 1998 registering the judgment delivered on 20 May 1994 by the Court of Appeals in Rome.

It is to my mind clear that, in forwarding the letters and accompanying declaration to the Inquiring Judge and to the attorney for Ms Russo, the purpose of Mrs de Santis was both to contest the jurisdiction of the Court of Appeals in Rome and also to contest the merits of Ms Russo’s claim. It is also evident that her attempt to do so was a failure. It was, however, not the case that the Inquiring Judge or the Court of Appeals considered what she said and, having done so, rejected it in the course of and as a step in the process of arriving at the judgment on 20 May 1994. The reasons for judgment of the court, comprising the President, Dr Augusto and Dr Carlo Guglielmo and Dr Francesco, Counsellors, record that, although “duly summoned”, the heirs of Mr de Santis “did not appear before the Court, and were declared guilty of default”. In holding that Ms Russo was entitled to succeed in her claim, the Court said that she had never received any financial contribution from her former husband, “who had emigrated to Australia where he had reached a comfortable financial position”. The reasons refer to the journey by Carla to Melbourne, and to her statement that Mr de Santis managed a well known restaurant with three cooks and 12 waiters; that he had begun construction of a real estate complex; and was living in a “luxurious” house. One would hardly have expected such an unqualified acceptance of Carla’s evidence if the Court had felt itself at liberty to refer to, or had considered, the declaration of Mrs de Santis and the letter from her solicitor as forming part of the material in the proceedings before the Court.

To my mind, the only inference that is fairly capable of being drawn from all these circumstances is that, at the hearing or hearings which resulted in the decision on 20 May 1994, the Court of Appeals gave judgment for Ms Russo in default of an appearance by Mrs de Santis. The summoned party, who were the heirs of Mr de Santis, were, the reasons explain, “guilty of default”. It is possible that this conclusion had already been reached by the Inquiring Judge on an earlier occasion. If so, it was a conclusion of the Judge that was confirmed by the Court of Appeals. That Court does not appear to have conducted a contested hearing on what we would call the merits of both sides of the litigation; or even, so far as can be gathered, a hearing of both sides on the merits of the jurisdictional question raised by Mrs de Santis in her declaration. No doubt being satisfied according to the law of Italy that the Court had jurisdiction, it decided the appeal against Mrs de Santis and the other heirs essentially on the ground that she and they had failed to appear.

As has already been remarked, we are at a disadvantage in not having the benefit of an expert in Italian law to guide us. The parties, we were informed, are too poor to afford such luxuries. In so far as we are left to draw inferences from the contents of the documents before us, Ms Russo’s summons to the heirs of Mr de Santis (which is the document initiating her appeal to the Court of Appeals) embodies a paragraph “inviting her to perform the necessary action for the proper appearance in court as regards time and formalities”, and advising that otherwise the case will be conducted in absentia, for the award of “the amount that follows”. What is meant by “formalities” in this context is apparent from the face of that summons which contains a marginal indorsement entitled Power of Attorney, by which Ms Russo “delegates represents and defends in the present case” [by] Advocate Eugenio Mete. The indorsement, which is evidently signed by Ms Russo, concludes thus: “I choose domicile in his chambers in Rome, Via di Tritone 102”. I am prepared to assume that something equivalent was required from the respondent Mrs de Santis in order to provide what we would describe as an entry of appearance and an address for service. In the absence of such formalities, Ms Russo was entitled, if her claim was otherwise well founded in fact and under the law of Italy, to judgment in default of appearance. The result under our law would, in similar circumstances, probably have been the same if our courts asserted a jurisdiction in cases of this kind.

Here, however, the question falls to be determined by our rules of jurisdiction and not those of Italy. Mrs de Santis did not in terms of s 7(5)(a) of the Act enter an appearance in the proceedings of the Court of Appeals in Rome. According to the notification in the summons or originating process, if she failed to perform the necessary action “for the proper appearance in court as regards time and formalities and advising” the case would be conducted in absentia, which was, in the end, what happened. According to her declaration and her Australian solicitor’s letter, she did nothing resembling what was required. The question then is whether, within the meaning of s 7(5)(b) of the Act, she “participated in the proceedings in the court” only to the extent necessary for the purpose of contesting the jurisdiction. Her purpose, as I have said, included but plainly went beyond merely contesting the jurisdiction of the Court at Rome. The declaration and letter also entered to some extent into the merits of Ms Russo’s claim. But the efforts of Mrs de Santis in that respect were all in vain. The Court of Appeals took no notice of her attempt to put her side of the story. It found her guilty of default of appearance and gave judgment against her on that ground. Had she by these acts participated in the proceedings?

Mr Lee for the appellant candidly referred us to the decision of the British Colombia Court of Appeal in Re Overseas Food Importers & Distributors Ltd and Brandt (1981) 126 DLR (3d) 422. In that case, the application was to set aside the registration of a judgment for $11,000 in favour of the plaintiff given in a district court in Bavaria against a Canadian importer of chocolates in Vancouver. The chocolates had arrived by sea in a spoiled condition and were condemned by the Canadian health authorities. The German Consulate-General served the defendant in Vancouver with a complaint issued by the plaintiff out of the Bavarian court together with a notice of the hearing date. Before that date, the defendant advised the Consulate that, for financial reasons, it would be unable to attend the hearing. It nevertheless also delivered to the Consulate a letter addressed to the Court which explained that the chocolates had been spoiled through being shipped from Bremen in a container that was neither insulated nor properly cooled. Having regretted its inability to appear personally at the hearing, the defendant nominated the Consulate-General as the defendant’s representative. Judgment was given against it at the court hearing in Bavaria.

The Court of Appeal, reversing the decision of Toy J in the Supreme Court, held that the defendant had voluntarily submitted to the jurisdiction of the Bavarian court and that registration of the judgment should not have been set aside. Between that case and this there is the difference that there the Bavarian court certified that the defendant’s letter was read to the court and considered by it, and that no question was raised as to the court’s jurisdiction. See 126 DLR (3rd) 422, 426, where Nemetz CJ said:

“In my view, therefore, this letter amounts to an appearance in the sense used in the statute and a submission to the court in Germany.”

The statute in that instance was the Reciprocal Enforcement of Judgments Act RSBC 1960, ch 331, of which s 3(6)(b) provided that an order registering a foreign judgment should not be made if the judgment debtor “did not voluntarily appear or otherwise submit during the proceedings to the jurisdiction of the [foreign] court”. The statutory provisions did not require, as does s 7(5)(b) of our Act, that the judgment debtor should have “participated in the proceedings”, although in Re Overseas Food Importers & Distributors Ltd the defendant had in fact clearly done so.

The decision in that case may be contrasted with that of the New Zealand Court of Appeal in Von Wyl v Engeler [1998] 3 NZLR 416. Before going to live in New Zealand the defendant Engeler sold his house in Switzerland to the plaintiff Von Wyl. Later the local tax collector made a claim on the plaintiff for capital gains tax, in respect of which the plaintiff then claimed indemnity from the defendant and obtained judgment for the amount of it in the District Court at Winterthur in the Canton of Zurich. It then sought to enforce the judgment by an action at common law in the High Court of New Zealand. The Court of Appeal affirmed the decision of the Master striking out the plaintiff’s application for judgment in the action. Holding that the plaintiff had failed to show that the defendant had accepted the jurisdiction of the Swiss court to determine the proceeding in that country, Richardson P, who delivered the judgment of the Court, said that the defendant had not submitted to the jurisdiction of that court. What had happened in that case was that the defendant in New Zealand had acknowledged receipt in New Zealand through the Swiss Embassy of a document from the Swiss court (which Richardson P described as “incomplete”) notifying him that a claim had been made, and fixing 20 days within which to designate an agent authorised to accept service in accordance with par 30 of the Zurich Code of Civil Process. The defendant responded by letter dated 27 April 1995, stating that it was difficult for him to designate an agent in Winterthur who was authorised to accept service because all his friends had, like him, gone abroad and those friends or relatives who remained in Switzerland were not “bent on getting involved in any form”. Accordingly, he designated the District Court at Winterthur to accept service on his behalf.

Subsequent correspondence went astray and did not reach the defendant. However, it appeared from a copy of it and from the affidavit of a Swiss lawyer, that the nomination of the District Court as the defendant’s agent was constitutionally invalid, and that the Court had declined to accept that mandate. Under Swiss law failure to designate an agent within the jurisdiction enables service to be effected by public notice in the Zurich Gazette, and this step was duly taken, but without the defendant’s being aware of it. In giving judgment, Richardson P said ([1998] 3 NZLR 416, 422) that:

“… submission to the jurisdiction in the form of instructing or authorising someone to accept service on behalf of the defendant must in our view, require proof that the proposed agent was both willing to accept service and actually did so without qualification. On those two grounds – incapacity of the proposed agent though unknown to Mr Engeler when proposing that the District Court should act, and not in fact accepting service as Mr Engeler’s agent - it must be held that Mr Engeler did not submit to the jurisdiction of the Swiss Court.”

The British Columbian and New Zealand decisions are, in my opinion, distinguishable. In the former, the defendant, which took no point about the jurisdiction of the foreign court, succeeded in persuading the Bavarian court to consider his contentions on the merits as part of the process culminating in judgment against it. In that way the defendant in that case “submitted during the proceedings” to the jurisdiction of the court, as provided in the relevant statute. In Von Wyl v Engeler [1998] 3 NZLR 416, the defendant failed in his attempt to induce the court in Switzerland to act as his agent for the purpose of service and was held not to have submitted to the jurisdiction. The present case in my opinion falls on the New Zealand side of the line. Mrs de Santis tried but failed to participate in the proceedings, by invoking the assistance of the Court of Appeals in Rome, or of Ms Rossi’s attorney to act for her. The Court rejected that informal method of seeking to appear before it, and found her guilty of default. The court did not in the course of giving judgment, as the Bavarian court did in Re Overseas Food Importers & Distributors Ltd (1981) 126 DLR (3d) 422, consider the informally presented submissions that were made by the defendant. In my view, the unsuccessful attempt by Mrs de Santis did not amount to participation in the proceedings before the Court of Appeals in Rome or constitute a voluntary submission on her part to the jurisdiction of that Court.

It follows that the appeal should be allowed with costs, and the registration on 12 January 1998 of the judgment of the Court of Appeals in Rome dated 20 May 1994 should be set aside. Section 6(4) of the Act requires the order for registration to state a period within which an application under s 7 to set aside the registration is to be made. In this instance, the period specified by Fryberg J was 28 days. That period might have sufficed had the registration order been served within a time sufficient to enable an application to be made within 28 days; but in fact the order was not served on Mrs de Santis until 19 September 2000, and she applied on 16 October 2000 to set it aside. If Ms Russo or her solicitors had not delayed so long in serving Mrs de Santis with the notification of the registration order, it can fairly be assumed that the application by Mrs de Santis to set it aside would have been made within the period stated. The registration order was, as I have said made on an application ex parte by Ms Russo, and is therefore open to variation by this Court. I would order that the time specified in para 4 of the order made on 12 January 1998 be extended to the date on which the application to set aside was filed, which was 16 October 2000. Ms Russo was, it may be noted, given notice of this application and appeal by Mrs de Santis by service upon her solicitors on the record before they were given leave to withdraw.

THOMAS JA: I agree with most of what McPherson JA has written. In particular I agree that the appellant did not submit to the jurisdiction of the Court of Appeals in Rome and note that that Court did not regard her as having done so either. In the circumstances of the present case, there is no other basis upon which the respondent has any entitlement to have her judgment registered in the Supreme Court of Queensland.

I agree with the orders proposed by McPherson JA.

CULLINANE J: I agree with the reasons of McPherson JA in this matter and the orders proposed.