Jurisdictional Issues and the Common Law

It is increasingly common for people and companies to enter into agreements that cross borders. If you or your business are in this situation, you might be interested in understanding how an overseas judgment made in your favour may be enforced in Australia.

As discussed in our most recent blog post, judgments from some foreign courts can be registered and enforced in Australia under the Foreign Judgments Act 1991 (Cth) (“FJA”).

However, some countries do not fall within the ambit of the FJA. This includes countries that Australia has close trade relations with including the United States, China, and India. In this case the judgments may be enforced by common law.

In order for a foreign judgment to be enforced under common law, it must satisfy the following criteria.

• First, the foreign Court must have had jurisdiction in the matter, which means they had the authority to make the decision they did.
• Second, the judgment must be final. This does not mean that there are no avenues to appeal, rather it requires the judgment to be conclusive.
• Next, the parties in the foreign matter must be the same parties in the Australian proceedings. If your matter has multiple defendants this does not mean that all defendants need to be involved in the Australian proceeding, practically this is helpful as it is likely some defendants will be overseas.
• Finally, the judgment must be for a fixed sum of money, this means the amount cannot be unclear or dependant on certain factors or events.

When enforcing a judgment at common law it is necessary to consider both the extensive case law in this area and doctrines of private international law. If you are interested in finding out more about this, please feel free to get in contact with one of our experienced commercial lawyers at Frank Law on (02) 9688 6023.

If you have further questions, please contact us at frank@franklaw.com.au.

This is not legal advice.