The Reciprocal Enforcement of Foreign Judgments (Australia) Order 1994

Made: 19th July 1994

Coming into force in accordance with Article 1

At the Court at Buckingham Palace, the 19th day of July 1994 Present, The Queen’s Most Excellent Majesty in Council

Now, therefore, Her Majesty, by virtue and in exercise of the powers conferred on Her by section 14(2) of the Administration of Justice Act 1920[^f00004], section 1 as read with section 3 of the Foreign Judgments (Reciprocal Enforcement) Act 1933, section 7 of the Protection of Trading Interests Act 1980[^f00005] and section 9(2) of the Civil Jurisdiction and Judgments Act 1982[^f00006] is pleased by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:

1

This Order may be cited as the Reciprocal Enforcement of Foreign Judgments (Australia) Order 1994. It shall come into force on the date on which the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Australia, signed at Canberra on 23rd August 1990, providing for the reciprocal recognition and enforcement of judgments in civil and commercial matters shall enter into force, which date shall be notified in the London, Edinburgh and Belfast Gazettes.

2

Part I of the Foreign Judgments (Reciprocal Enforcement) Act 1933 shall extend to Australia[^f00007].

3

The following courts of Australia (hereinafter referred to as “recognised courts”) shall be recognised for the purposes of Part I of the Foreign Judgments (Reciprocal Enforcement) Act 1933, that is to say:

• the High Court of Australia;

• the Federal Court of Australia;

• the Industrial Relations Court of Australia;

• the Family Court of Australia;

• the Family Court of Western Australia;

• the Supreme Court exercising jurisdiction in respect of each Australian State or Territory;

• the District Court of New South Wales;

• the County Court of Victoria;

• the District Courts in Queensland;

• the District Court of Western Australia;

• the Local Courts in, and the District Court and the Magistrates' Court of, South Australia;

• the Courts of Requests in Tasmania; and

• the Magistrates' Court of the Australian Capital Territory.

4

The following judgments shall be judgments to which Part I of the Foreign Judgments (Reciprocal Enforcement) Act 1933 applies, that is to say—

• (a) any judgment, decree, rule, order or other final decree for the payment of money (other than in respect of taxes or other charges of a like nature or an order requiring the payment of maintenance) given by a recognised court in respect of a civil or commercial matter;

• (b) an award in proceedings on an arbitration conducted in Australia under the law applying there if the award has become enforceable in the same manner as a judgment in that country;

• (c) a judgment or order given or made by a recognised court in criminal proceedings for the payment of money in respect of compensation or damages to an injured person.

5

A judgment given in a recognised court shall, in the absence of proof to the contrary, be deemed to be capable of execution in Australia on production of a certified copy of the judgment.

6

A judgment of a recognised court obtained under section 10 of the Foreign Proceedings (Excess of Jurisdiction) Act 1984 of Australia shall be enforceable in the same manner and circumstances as an award to which section 6(2) of the Protection of Trading Interests Act 1980 applies, where the judgment—

• (a) was obtained after the coming into force of this Order; and

• (b) relates to the recovery of sums paid or obtained pursuant to a judgment for multiple damages within the meaning of section 5(3) of the said Act of 1980; and

• (c) is founded on an instrument made under section 9(1) of the said Act of 1984 which includes a statement that the Attorney-General is satisfied in accordance with either—

• (i) paragraph 9(1)(b)(ii) of that Act; or

• (ii) paragraph 9(1)(b)(i) and paragraph 9(1)(b)(ii) of that Act.

7

The rate of interest due under the law in Australia upon the sum in respect of which a judgment of a recognised court is given shall be deemed to be that specified in the judgment or any certificate of the original court accompanying the judgment and, if no rate is so specified, no interest shall be deemed to be due thereon under the law in Australia unless the contrary is shown.

8

It is hereby declared that—

• (a) the provisions contained in articles 5 and 7 of this Order are necessary for giving effect to the Agreement scheduled hereto in relation to matters with respect to which there is power to make rules of court for the purposes of Part I of the Foreign Judgments (Reciprocal Enforcement) Act 1933; and

• (b) Article 3 of the Agreement scheduled hereto is a provision of a convention whereby the United Kingdom assumes an obligation of the kind provided for in article 59 of the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, signed at Brussels on 27th September 1968[^f00008].

9

• (1) The Reciprocal Enforcement of Judgments (Australian Capital Territory) Order 1955[^f00009] is hereby revoked.

• (2) The Reciprocal Enforcement of Judgments (Administration of Justice Act 1920, Part II) (Consolidation) Order 1984[^f00010] shall be amended by deleting from Schedule 1 thereto the following entries—

• (a) New South Wales;

• (b) Northern Territory of Australia;

• (c) Queensland;

• (d) South Australia;

• (e) Tasmania;

• (f) Victoria;

• (g) Western Australia.

SCHEDULE — AGREEMENT BETWEEN THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND THE GOVERNMENT OF AUSTRALIA PROVIDING FOR THE RECIPROCAL RECOGNITION AND ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS

The Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Australia,

Desiring to provide, on the basis of reciprocity, for the recognition and enforcement of judgments in civil and commercial matters;

Have agreed as follows:

ARTICLE 1

In this Agreement—

• (a) “the 1968 Convention” means the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters done at Brussels on 27th September 1968[^f00011], as amended from time to time;

• (b) “court of a Party” means one of the following courts—

• (i) in relation to Australia—

• (aa) the High Court of Australia;

• (bb) the Federal Court of Australia;

• (cc) the Family Court of Australia;

• (dd) the Family Court of Western Australia;

• (ee) the Supreme Court exercising jurisdiction in respect of each Australian State or Territory;

• (ff) the District Court of New South Wales;

• (gg) the County Court of Victoria;

• (hh) the District Courts in Queensland;

• (ii) the District Court of Western Australia;

• (jj) the Local Courts in South Australia;

• (kk) the Courts of Requests in Tasmania; or

• (ll) the Magistrates' Court of the Australian Capital Territory;

• (ii) in relation to the United Kingdom—

• (aa) any superior court of the United Kingdom;

• (bb) for England and Wales and Northern Ireland, any county court;

• (cc) for Scotland, any sheriff court,

and such superior courts as may be specified by the United Kingdom in a declaration pursuant to Article 7 of this Agreement;

• (iii) such other courts as may be agreed between the Parties;

• (c) “judgment” means—

• (i) any judgment, decree, rule, order or other final decree for the payment of money (other than in respect of taxes or other charges of like nature or an order requiring the payment of maintenance) given in the territory of a Party in respect of a civil or commercial matter;

• (ii) an award in proceedings on an arbitration conducted in the territory of a Party under the law applying in that territory if the award has become enforceable in the same manner as a judgment in the territory of that Party; or

• (iii) a judgment or order given or made by a court of a Party in criminal proceedings for the payment of money in respect of compensation or damages to an injured person;

• (d) “registering court” means a court of a Party to which an application for the registration of a judgment is made.

ARTICLE 2

ARTICLE 3

ARTICLE 4

This Agreement shall not affect any treaties or arrangements to which both Parties are from time to time parties and which, in relation to particular matters, govern the recognition or enforcement of judgments.

ARTICLE 5

This Agreement shall not apply to any judgment that imposes a liability which a Party is obliged not to recognise or enforce by virtue of a treaty with a third State. That Party shall give notice of any such treaty to the other Party through the diplomatic channel.

ARTICLE 6

Either Party may, at the time of its notification under Article 9 or at any time thereafter, modify by declaration the list of its courts where a court replaces a court specified in Article 1(b)(i) or (ii) or agreed under Article 1(b)(iii) or specified in a declaration under this Article. Such a declaration shall be given through the diplomatic channel and shall take effect three months, or such other time as may be mutually arranged between the Parties, after the date on which it is given.

ARTICLE 7

ARTICLE 8

The Parties shall consult at the request of either concerning the operation of this Agreement.

ARTICLE 9

Signed

N. H. Nicholls — Clerk of the Privy Council

Explanatory note

(This note is not part of the Order)

This Order replaces the Reciprocal Enforcement of Judgments (Australian Capital Territory) Order 1955 and the arrangements under Part II of the Administration of Justice Act 1920 which applied to the rest of Australia. Pursuant to an agreement between the governments of the United Kingdom and of Australia, it provides for the extension of Part I of the Foreign Judgments (Reciprocal Enforcement) Act 1933 to the judgments of designated courts of Australia, so as to enable such judgments to be registered and enforced in the United Kingdom. Substantial reciprocity will be accorded in Australia to judgments of designated courts of the United Kingdom. The Order also (in article 8(b)) gives effect to an undertaking given by the United Kingdom in Article 3 of the Agreement that it will not recognise or enforce judgments given against Australian residents by other States parties to the convention on jurisdiction and the enforcement of judgments in civil and commercial matters signed at Brussels on 27th September 1968 if the judgment could only have been based on a ground of jurisdiction specified in the second paragraph of Article 3 of that convention (which specifies certain exorbitant jurisdictions).

Relevant judgments given after the coming into force of this Order will be enforced in the United Kingdom upon registration in the High Court, the Court of Session or the High Court of Justice in Northern Ireland, as the case may be.

Footnotes

[^f00001]: Cm 1394.

[^f00002]: 1933 c. 13 as extended by S.I. 1933/1073 and as amended by section 35(1) of and Schedule 10 to the Civil Jurisdiction and Judgments Act 1982 (c. 27).

[^f00003]: 1980 c. 11.

[^f00004]: 1920 c. 81.

[^f00005]: As amended by section 38 of the Civil Jurisdiction and Judgments Act 1982 (c. 27).

[^f00006]: 1982 c. 27.

[^f00007]: Insofar as is applicable as modified by section 51 of the Administration of Justice Act 1956 4 & 5 Eliz. II c.46.

[^f00008]: The Convention is set out in Schedule 1 to the Civil Jurisdiction and Judgments Act 1982.

[^f00009]: S.I. 1955/559.

[^f00010]: S.I. 1984/129 as amended by S.I. 1985/1994.

[^f00011]: Treaty Series No. 10 (1988), Cm 306 p.25.