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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading De Santis v Russo

Details

AGLC: De Santis v Russo [2001] QCA 457
Case: [2001] QCA 457
Decision Date: 26 October 2001

CaseChat Overview and Summary

De Santis v Russo is a case where an Australian resident was sued in the Italian Courts by a creditor, and the Australian resident sought to have the Italian judgment set aside in the Australian Courts. The dispute was brought to the Queensland Court of Appeal. The central legal issues the court had to decide were whether the Italian Court of Appeals had the jurisdiction to make the judgment against the Australian resident and if there was jurisdiction by way of voluntary submission.

The court examined the principles of private international law concerning the enforcement of foreign judgments. It considered whether the Italian Court had the jurisdiction to make the judgment and if there was any voluntary submission by the Australian resident to the Italian Court’s jurisdiction. The court found that the Italian Court did not have jurisdiction over the Australian resident, and there was no voluntary submission by the Australian resident to the jurisdiction of the Italian Court. The court held that the judgment of the Italian Court of Appeals was not enforceable in Australia because it was made without jurisdiction.

The court allowed the appeal with costs, including the costs of the application below. The order of the Supreme Court made on 12 January 1998 was set aside, and the respondent's originating summons filed on 5 January 1998 was dismissed. The court extended the time for making the application to set aside that order to 16 October 2000. This decision reinforces the importance of jurisdiction in international litigation and the need for parties to carefully consider the jurisdictional reach of foreign courts when entering into agreements or conducting business abroad.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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