Foreign Judgments Act 1962

Reciprocity. The entire Part II mechanism rests on reciprocity. The Governor in Council must be satisfied that a country will give substantial reciprocity of treatment to Victorian superior court judgments before extending Part II to that country by Order (s 4(2)). The Order itself is conclusive evidence of its validity and of the fulfilment of all conditions precedent (s 4(6)). The Governor in Council may also vary or revoke an Order (s 4(5)) and may, if treatment of Victorian judgments by a country is substantially less favourable, make an Order under s 11 barring enforcement of that country’s judgments in Victoria.

Registration. Registration is the process by which a foreign judgment becomes enforceable. The judgment creditor applies to the Supreme Court, and the Court must order registration subject to proof of prescribed matters and provided the judgment has not been wholly satisfied and is enforceable by execution in the country of the original court at the date of application (s 5(1)). Once registered, the judgment has the same force and effect for execution as if originally given in the Supreme Court on the date of registration, and interest runs from that date (s 5(2)). Execution cannot issue until the period for applying to set aside registration has expired, or if an application is made, until it is finally determined (s 5(2) proviso).

Final and conclusive. A judgment qualifies for registration only if it is final and conclusive between the parties (s 4(3)(a)). Importantly, it remains final and conclusive even if an appeal is pending or may still be brought in the country of the original court (s 4(4)). This enables registration before appeals are exhausted, though s 8 allows the Supreme Court to stay or set aside registration pending an appeal.

Action in personam. The Act contains a defined concept of “action in personam” solely for the purpose of determining jurisdiction under s 7(3). It expressly does not include matrimonial causes, proceedings about administration of estates, bankruptcy, winding up, lunacy, or guardianship of minors (s 3(2)). This matters because the deemed jurisdiction rules in s 7(3)(a) apply only to judgments given in an action in personam; other types of actions are dealt with under s 7(3)(b) (immovable or movable property) or s 7(3)(c) (other actions, with jurisdiction recognised by Victorian law).

Judgment. The definition in s 3(1) is wide. It covers any judgment or order in civil proceedings; any criminal order for compensation or damages; and any arbitration award that, under the law of the place where made, has become enforceable in the same manner as a court judgment. This means that certain foreign arbitration awards can be registered under this Act if they meet the other requirements, though Part II is not the only route for enforcement of arbitral awards.

Recoverable tax. A special category exists for Papua New Guinea income tax, defined in s 3(1) as “recoverable tax” (excluding penalties, interest, and classes of tax the Governor in Council declares are not recoverable tax under s 3(3)). Judgments for sums that include recoverable tax are registrable (s 4(3)(b)(ii)), whereas judgments for other taxes are not (s 4(3)(b)(i)). Where a judgment includes both recoverable and non‑recoverable tax, it may be registered only for the part relating to recoverable tax (s 5(4A)).

The Act directly affects judgment creditors and judgment debtors under qualifying foreign judgments, and persons seeking to enforce Victorian judgments abroad. Judgment creditors may be individuals, corporations, or any entity in whom the rights under the judgment have vested by succession, assignment, or otherwise (s 3(1) definition). They must apply for registration in the Supreme Court of Victoria. Judgment debtors may also be individuals or corporations, including any person against whom the judgment is enforceable under the law of the original court (s 3(1)). The debtor is entitled to apply to set aside the registration on the grounds listed in s 7.

The Act also affects courts in Victoria. The Supreme Court is the only court with jurisdiction to register foreign judgments under Part II, and section 9 prohibits any other Victorian court from entertaining proceedings for recovery of sums under judgments to which Part II applies. This bar is absolute: even if a judgment creditor chooses not to register, they cannot sue on the foreign judgment at common law in Victoria. They must either register or not enforce at all in Victoria (save for recognition under s 10 as a defence or counterclaim). The Supreme Court’s power to make rules of court for Part II (ss 6, 12) also affects litigants and practitioners.

Governments and government instrumentalities are affected when an Order in Council extends Part II to a country or designates courts as superior courts. The Governor in Council must be satisfied of reciprocity before making such orders. The Act also directly concerns the government of Papua New Guinea by virtue of the recoverable tax provisions. Lawyers practising in commercial litigation, cross‑border insolvency, and international dispute resolution are affected because the Act provides a streamlined statutory alternative to suing on a foreign judgment at common law. However, the Act does not apply to all foreign judgments , only those from countries to which Part II has been extended by Order. At the time of the version’s publication (2012), the Act had been extended to a number of countries (the Orders are published in the Government Gazette but are not reproduced in the Act). Practitioners must check current Orders to determine whether a country is covered.

The Act also affects parties seeking to enforce Victorian judgments abroad. A person who has obtained a judgment in the Supreme Court of Victoria may apply for a certified copy of the judgment together with a certificate containing particulars of the action and interest rate, to facilitate enforcement in a country to which Part II applies (s 12). This certificate is intended to assist the judgment creditor in using the reciprocal enforcement machinery of the other country.

Right to apply for registration. A judgment creditor under a qualifying judgment may apply to the Supreme Court for registration within the prescribed time limits (s 5(1)). The Court must order registration if the judgment is within Part II, the prescribed matters are proved, and the judgment has not been wholly satisfied and is enforceable by execution in the country of the original court. The creditor also has the right to register a judgment in respect of part only: if the judgment deals with multiple matters, only some of which are registrable (s 5(5)), or if it includes both recoverable and non‑recoverable tax (s 5(4A)).

Right to seek setting aside of registration. A judgment debtor may apply to have the registration set aside (s 7). On the grounds listed in s 7(1), the Court must set aside if satisfied: the judgment is not one to which Part II applies or was registered in contravention of the Act; the original court lacked jurisdiction; the debtor did not receive sufficient notice of the proceedings and did not appear; the judgment was obtained by fraud; enforcement would be contrary to public policy in Victoria; or the rights under the judgment are not vested in the applicant for registration. There is also a discretionary ground under s 7(2): the matter in dispute had previously been the subject of a final and conclusive judgment by a court having jurisdiction (i.e., res judicata). Additionally, if an appeal is pending or the debtor intends to appeal, the Court may set aside registration or adjourn the application (s 8(1)).

Right to recognition without registration. Section 10 provides that a judgment to which Part II applies or would have applied if a sum of money had been payable, whether it can be registered or not, and whether it is registered or not, shall be recognised in any Victorian court as conclusive between the parties in all proceedings founded on the same cause of action, and may be relied on by way of defence or counterclaim. This right is limited: it does not apply if registration was set aside on a ground other than that no sum was payable, that the judgment was wholly or partly satisfied, or that it could not be enforced by execution at the date of application (s 10(2)(a)). Similarly, if the judgment was not registered and it is shown that registration would have been set aside on a non‑satisfaction ground, then recognition is not available (s 10(2)(b)). Section 10 does not prevent a court from recognising a judgment as conclusive if it would have been so recognised before the Act (s 10(3)).

Duty to use only registration. Section 9 imposes a duty on Victorian courts to refuse to entertain any proceedings other than registration for recovery of a sum under a Part II judgment. This means a judgment creditor cannot sue on the foreign judgment at common law; the only avenue is registration.

Duty of the Supreme Court on registration. The Court must order registration subject to the statutory conditions (s 5(1)). It has no discretion to refuse if the conditions are met. The Court also has control over execution (s 5(2)(d)). On an application to set aside, the Court must set aside if a mandatory ground is proved, and may set aside on the discretionary ground or pending appeal (ss 7, 8).

Rights of the Governor in Council. The Governor in Council has power to make Orders extending Part II to countries (s 4(2)), to vary or revoke such Orders (s 4(5)), to determine that a class of Papua New Guinea tax is not recoverable tax (s 3(3)), to apply s 11 to a country with less favourable treatment, and to give directions under s 13(3) when a relevant order is made.

The Act does not create criminal offences or civil penalties in the traditional sense. Its enforcement mechanism is entirely civil: the registered judgment is executed as if it were a Victorian judgment. Execution may issue only after the time for applying to set aside has expired, or after an application is finally determined (s 5(2) proviso). The Supreme Court has the same control over execution as over its own judgments (s 5(2)(d)). This means that all normal execution processes , writs of seizure and sale, garnishee orders, charging orders, examination of judgment debtors , are available for registered judgments. The judgment also carries interest from the date of registration at the rates applicable to Victorian judgments (s 5(2)(c)). Costs of registration, including obtaining a certified copy of the judgment, are included in the registered sum (s 5(6)).

If registration is set aside under a mandatory ground (s 7(1)), the judgment loses its enforceability in Victoria. If it is set aside only because an appeal is pending or because the judgment was not enforceable by execution in the country of the original court at the date of application, the creditor may apply again later (s 8(2)). If set aside solely because the judgment was registered for the whole sum when it had been partly satisfied, the Court must re-register for the balance payable (s 8(3)).

The Act also provides a penalty in the form of a complete bar to other proceedings. Section 9 prevents any Victorian court from entertaining proceedings for recovery of a sum under a Part II judgment other than registration. Attempting to sue at common law on a judgment that could have been registered will be struck out. This is a strong enforcement disincentive against forum‑shopping: the judgment creditor must use the statutory route or not enforce at all.

Additionally, s 11 gives the Governor in Council a retaliatory power: if a foreign country does not give substantially favourable treatment to Victorian judgments, the Governor may by Order apply s 11 to that country. Thereafter, no Victorian court may entertain proceedings for recovery of any sum under a judgment of that country, except to the extent the Order otherwise directs (s 11(2)). This is a political enforcement measure, not a penalty on an individual party.

There are also potential cost sanctions: rules of court may provide for security for costs when a person applies for registration (s 6(1)(a)), and the registered sum includes the reasonable costs of registration (s 5(6)).

The Foreign Judgments Act 1962 is a Victorian statute and operates within the Australian federal framework. It interacts with the common law on foreign judgments: before the Act, a foreign judgment could be enforced in Victoria by suing on the judgment at common law. Part II provides an alternative statutory regime, and s 9 excludes common law enforcement for judgments that fall within Part II. This means that if a foreign judgment is from a country to which Part II applies, the judgment creditor cannot elect to sue on the judgment at common law; they must use registration. However, if a judgment is from a country to which Part II does not apply (because no Order has been made), common law enforcement remains available. The Act does not apply to judgments for which no sum of money is payable, so such non‑money judgments may still be recognised under common law rules.

The Act also interacts with other Victorian legislation concerning courts. The power to make rules of court for registration procedures is under s 25 of the Supreme Court Act 1986 (s 6(1), s 12(2)). The repeal of Division 11 of Part VIII of the Supreme Court Act 1958 was effected by s 2(1), and transitional provisions preserved existing proclamations and registrations (s 2(2), (3)). The Magistrates’ Court (Consequential Amendments) Act 1989 repealed the definition of “Supreme Court” in s 3(1) (see endnotes). This suggests that the Act now operates solely through the Supreme Court; magistrates’ courts have no role in registration.

The Act’s definition of “judgment” includes arbitration awards that have become enforceable as court judgments in the place where made (s 3(1)). This means that certain foreign arbitral awards may be registrable under Part II, but only if the country of the original court (the place where the award became a judgment) is the subject of an Order under s 4. The Act does not displace the International Arbitration Act 1974 (Cth) or the New York Convention; those operate at a federal level. But for awards that are not covered by that regime (e.g., from non‑Convention countries), the Foreign Judgments Act may provide an alternative route if the award has been converted into a judgment in the country of origin.

The Act also interacts with the Trans‑Tasman Proceedings Act 2010 (Cth) and related state legislation, which provides a separate regime for enforcement of New Zealand judgments. However, the Foreign Judgments Act 1962 does not mention New Zealand. An Order could theoretically extend Part II to New Zealand, but the Commonwealth scheme now governs that bilateral arrangement.

Section 10 provides for recognition of judgments that might not be registrable because no sum of money is payable. This interacts with the common law doctrine of res judicata and issue estoppel , recognition under s 10 is conclusive as between the parties in proceedings founded on the same cause of action, and may be used as a defence or counterclaim. This parallels the common law, but with statutory limits: recognition is lost if registration was set aside on certain grounds (s 10(2)).

The Act also interacts with the law of taxation: s 4(3)(b)(i) excludes judgments for taxes (except PNG recoverable tax). This reflects the principle that one state will not enforce another state’s revenue laws. The definition of “non‑recoverable tax” includes all taxes other than those specifically designated as recoverable by Order (s 3(1)).

Finally, s 11 interacts with foreign relations: it gives the Victorian government a tool to respond to non‑reciprocity by denying enforcement of judgments of the offending country. This is a form of statutory retaliation that can be varied or revoked by subsequent Order (s 11(3)).

The Foreign Judgments Act 1962 was assented to on 20 November 1962 and commenced the same day. The version under analysis is Version No. 023, current as at 30 August 2012. The Act has been amended by five subsequent Acts.

The first amendment was the Foreign Judgments (Amendment) Act 1963 (No. 7041), assented to and commencing on 12 November 1963. It made amendments to sections 4(3), 7(1)(c), 7(3)(a), 7(4)(c), and repealed and replaced section 13. The amendments to s 4(3) appear to have related to the definition of judgments to which Part II applies (the precise nature is not detailed in the endnotes, but the text shows the amendment was made). Similarly, s 7(1)(c) and s 7(3)(a) were amended, and s 7(4)(c) was amended, likely to clarify or adjust the jurisdiction rules. The repeal of old s 13 and insertion of a new s 13 (which itself was later replaced) suggests the savings provisions were revised.

The Statute Law Revision Act 1965 (No. 7332) made a minor amendment to s 4(1)(b) relating to the definition of superior courts within the United Kingdom.

The Age of Majority Act 1977 (No. 9075) amended s 3(2)(f) (definition of immovable property or guardianship? Actually s 3(2)(f) originally likely referred to “minors” and the Age of Majority Act would have changed the age threshold, but the text shows “guardianship of minors” remains , the amendment may have been to the parenthetical reference; the endnotes do not specify details beyond “s. 3(2)(f) amended by No. 9075 s. 5(1)”.

The most substantive amendment was the Foreign Judgments (Amendment) Act 1981 (No. 9621), assented to 8 December 1981 and commencing 1 July 1982. This Act inserted the definitions of “non‑recoverable tax” and “recoverable tax” in s 3(1) (s 3(a) and (b)), added s 3(3) allowing the Governor in Council to declare certain PNG taxes not recoverable, substituted s 4(3)(b) to allow registration of judgments for PNG income tax, inserted s 5(4A) allowing partial registration for recoverable tax only, inserted s 5(4A) (the provision appears in the text), amended s 12(1) regarding certificates, and repealed and replaced s 13 with the current savings provision. The 1981 amendment therefore created the special regime for Papua New Guinea tax, which is the only tax exception to the general rule against enforcing foreign revenue judgments.

The Magistrates’ Court (Consequential Amendments) Act 1989 (No. 57/1989) repealed the definition of “Supreme Court” in s 3(1) (since the Supreme Court Act 1986 now provides the definition) and amended s 1(2) (repealing the commencement provision), s 6(1) (updating the reference to the power to make rules of court now under the Supreme Court Act 1986), and s 12(2) (similar update). This amendment was consequential on the restructuring of the Victorian court system.

The endnotes list no amendments between 1989 and the version date of 2012. No new amendments appear to have been made in that period. The Act therefore remains as amended by the 1989 Act, with no further changes reflected in this version.

The version of the Foreign Judgments Act 1962 provided does not include any cases or litigation history. The Act itself does not refer to any decided cases. However, given that the Act has been in force since 1962, it is likely that the Supreme Court of Victoria has considered applications for registration and setting aside under ss 5, 7, and 8 on numerous occasions. The grounds for setting aside , particularly the jurisdiction requirements in s 7(3) and (4), and the public policy ground in s 7(1)(e) , have probably been the subject of judicial interpretation. Similarly, the meaning of “final and conclusive” despite pending appeal (s 4(4)) and the currency conversion rule (s 5(3)) may have been litigated. The Act’s interaction with the common law and with other statutes (such as the Trans‑Tasman Proceedings Act) would also have been considered in some cases. But because the source text does not include any litigation history, a deep dive grounded in the source cannot discuss any specific cases or judicial trends. The Act’s provisions are detailed enough to allow a practitioner to understand the statutory framework without needing to refer to case law in this analysis.

Several provisions in the Act contain traps for the unwary. First, the time limit for registration is strict: six years from the date of the judgment, or from the date of the last appeal judgment, under s 5(1)(b). For certain pre‑Act UK judgments, the limit is twelve months. Missing this deadline is fatal , there is no general power to extend except as allowed by the Court for the pre‑Act category. However, s 8(2) allows a further application after an appeal is disposed of or after a judgment becomes enforceable by execution if registration was set aside on those grounds. But if the six‑year window expires during the pendency of an appeal, the creditor may need to register promptly after the appeal is finalised; the Act does not expressly toll the time for appeal proceedings.

Second, the currency conversion rule in s 5(3) uses the rate of exchange prevailing at the date of the judgment of the original court, not at the date of registration. This can produce a windfall or a loss if exchange rates have moved significantly, and it is a fixed rule , the Court has no discretion. The creditor bears the exchange risk from the judgment date to the registration date.

Third, the prohibition in s 9 on other proceedings is absolute for judgments to which Part II applies. A judgment creditor cannot bring a common law action on the judgment even if registration is not possible (e.g., because the time limit has expired) , but note that s 9 only applies to “judgments to which this Part applies”. If the judgment could have been registered but was not, s 9 still bars other proceedings? The wording: “No proceedings for the recovery of a sum payable under a judgment to which this Part applies, other than proceedings by way of registration of the judgment, shall be entertained.” This appears to catch any such judgment, regardless of whether it is actually registered. So if a creditor misses the registration deadline, they cannot sue on the judgment at common law either , a serious trap.

Fourth, the definition of “action in personam” in s 3(2) excludes matrimonial causes, administration of estates, bankruptcy, winding up, lunacy, and guardianship of minors. These excluded proceedings are not subject to the deemed jurisdiction rules in s 7(3)(a). Practitioners must check whether the foreign judgment falls within these exclusions, and if so, jurisdiction will be determined under s 7(3)(b) or (c) instead.

Fifth, the requirement that the judgment be “final and conclusive” is satisfied even if an appeal is pending (s 4(4)). This allows registration before appeals are exhausted, but if the debtor appeals, the Supreme Court may set aside or adjourn under s 8(1). The trap is that registration before appeal may be premature if the judgment is later reversed: the debtor must apply to set aside or seek a stay. The Act does not provide for automatic vacation of registration on reversal of the foreign judgment; the debtor must rely on the fraud ground or the public policy ground to overturn registration post‑reversal.

Sixth, the recoverable tax provisions are limited to Papua New Guinea income tax, excluding penalties and interest, and the Governor can designate other PNG taxes as non‑recoverable (s 3(3)). A judgment that includes non‑recoverable tax cannot be registered at all unless separable. The partial registration provision (s 5(4A)) only allows registration for the recoverable part, but the non‑recoverable part cannot be enforced. This is a narrow exception to the general rule against enforcing foreign tax judgments.

Seventh, s 7(3) deems the original court to have had jurisdiction in certain scenarios, but s 7(4) contains exceptions. Notably, if the bringing of proceedings in the original court was contrary to an agreement to settle the dispute by some other means (e.g., an arbitration or exclusive jurisdiction clause), then jurisdiction is not deemed except in the cases where the debtor submitted voluntarily or was plaintiff/counterclaimed, or where jurisdiction is recognised by Victorian law (s 7(4)(b)). This means a party that agreed to arbitrate cannot later rely on a foreign judgment obtained in breach of that agreement , the registration can be set aside for lack of jurisdiction.

Eighth, the service of notice ground in s 7(1)(c) requires that the debtor did not receive notice in sufficient time to defend and did not appear. This applies even if process was duly served under the law of the original court. A debtor who was served but had no practical opportunity to defend (e.g., very short notice) may have the registration set aside, but must show both lack of sufficient time and non‑appearance.

Ninth, the Act does not allow for registration of judgments that are solely for non‑monetary relief (injunctions, specific performance). Only money judgments (or criminal compensation orders) qualify. A foreign judgment for an injunction cannot be registered, but may be recognised under s 10 if it would have been registrable had it been for money? s 10 applies to judgments to which Part II applies or would have applied if a sum of money had been payable. So a judgment that is otherwise final and from a superior court but orders only an injunction cannot be registered but can be recognised as conclusive under s 10.

Tenth, the Governor in Council can make an Order under s 11 barring enforcement of judgments from a country that does not reciprocate favourably. Practitioners must check current Orders because if a country is added to the s 11 list after a judgment is obtained, registration may become impossible. The savings provision s 13 does not protect judgments given before the s 11 order unless the order itself provides otherwise? s 13 deals with relevant orders under s 4(2) and s 3(3), not s 11 orders directly. Actually s 13(2) says the Act continues to apply to judgments given before a relevant order as if the order had not been made. A s 11 order is not a “relevant order” under s 13(1). So a s 11 order likely applies to all judgments of that country, including those given before the order, subject to any directions in the order itself (s 11(2): “Except in so far as the Governor in Council may by Order under this section otherwise direct”). This could cut off enforcement retroactively.

For a judgment creditor seeking to enforce a foreign money judgment in Victoria under this Act, compliance involves several steps. First, confirm that the country of the original court is the subject of a current Order under s 4(2) extending Part II to that country. Check the Government Gazette for the relevant Order. Also confirm that the court that gave the judgment is a superior court specified in that Order. If the country is not covered, the Act cannot be used; the creditor must rely on common law enforcement (sue on the foreign judgment) or other statutory schemes.

Second, ensure the judgment meets the requirements of s 4(3): it must be final and conclusive (appeals pending do not affect finality), for a sum of money (not taxes other than PNG recoverable tax, not a fine or penalty), and given after the Order extending Part II came into operation. For UK judgments and certain pre‑Act Commonwealth countries, the time of the Order may not apply (s 4(3) proviso).

Third, comply with the time limit in s 5(1): apply within six years after the judgment date, or within twelve months for pre‑Act UK judgments. If there was an appeal, the six years run from the date of the last appeal judgment. If the judgment was partly satisfied, register only for the balance remaining (s 5(4)).

Fourth, prepare the application to the Supreme Court with the prescribed materials, including a certified copy of the judgment and proof of the matters required by rules of court (s 6(1)(b)). Calculate the Australian dollar amount using the exchange rate at the date of the original court’s judgment (s 5(3)). Include interest due under the law of the original court up to the time of registration (s 5(6)). Also include the costs of registration.

Fifth, after registration is ordered, serve notice on the judgment debtor within the period fixed by rules of court (s 6(1)(c)). Do not issue execution until the period for applying to set aside has expired, or if an application is made, until it is finally determined (s 5(2) proviso).

For a judgment debtor served with notice of registration, the debtor must act promptly. The debtor should examine whether any mandatory ground under s 7(1) exists: the judgment may not be registrable (e.g., it is for taxes, or it was registered after the time limit); the original court lacked jurisdiction under s 7(3) and (4); the debtor did not receive sufficient notice and did not appear; the judgment was obtained by fraud; enforcement would be contrary to public policy; or the applicant for registration is not the judgment creditor. The debtor may also rely on the discretionary ground under s 7(2) (prior final judgment on the same matter). The debtor must apply to set aside within the period prescribed by rules of court (s 6(1)(d)). If an appeal is pending in the country of original court, the debtor should inform the Supreme Court and seek a stay or setting aside under s 8(1).

For a party seeking to enforce a Victorian judgment abroad, compliance under the Act is straightforward: apply to the Supreme Court for a certified copy of the judgment and a certificate containing prescribed particulars (s 12(1)). Ensure that execution is not stayed; if it is, wait until the stay expires (s 12(1) proviso). Pay the prescribed fee. The certificate will assist in using the reciprocal enforcement machinery of the receiving country.

General compliance with the Act also requires monitoring of Orders in Council. Any change in the list of countries or superior courts can affect existing or planned enforcement. If a country is removed from Part II by a relevant order, s 13(2) protects judgments given before the order came into operation, unless the order includes a direction to the contrary (s 13(3)). Practitioners should check the order and any transitional provisions.

Finally, practitioners must remember the effect of s 9: if a judgment falls within Part II, do not attempt to bring a common law action on it in Victoria , it will be struck out. Always use the registration procedure. Conversely, if the judgment creditor is unsure whether the judgment is within Part II, they may seek advice or apply for registration; if registration is refused, common law might still be available for judgments from non‑Part II countries.