Herd v Haines

Case [2023] FCA 325

FEDERAL COURT OF AUSTRALIA

Herd v Haines [2023] FCA 325   

File number(s): QUD 789 of 2019
Judgment of: SARAH C DERRINGTON J
Date of judgment: 5 April 2023
Catchwords: PRACTICE AND PROCEDURE – foreign judgments – registration of part New Zealand judgment under Trans-Tasman Proceedings Act 2010 (Cth) – where party now seeks to register omitted judgment debt – power of the court to permit registration of further amount – whether party estopped from seeking to register
Legislation:

 Acts Interpretation Act 1901 (Cth) ss 15AA, 33

Federal Court of Australia Act 1974 (Cth) s 37M

Trans-Tasman Proceedings Act 2010 (Cth) ss 67, 68, 72

Trans-Tasman Proceedings Regulation 2012 (Cth)

Cases cited:

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175

Chamberlain v Commissioner of Taxation (1988) 164 CLR 502

Clayton v Bant [2020] HCA 44; 272 CLR 1

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; 260 CLR 232

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Tjungarrayi v Western Australia [2019] HCA 12; 269 CLR 150
Division: General Division
Registry: Queensland
National Practice Area: Admiralty and Maritime
Number of paragraphs: 21
Date of hearing: 5 April 2023
Counsel for the Applicants: Mr E White
Solicitor for the Applicants: Tim Weissel Solicitor
Counsel for the Respondents: Mr P Travers
Solicitor for the Respondents: HerdLaw

ORDERS

QUD 789 of 2019
BETWEEN:

RODNEY DAVID HAINES

First Applicant

KATHLEEN ANNE NORMAN

Second Applicant
AND:

ROBERT JOHN HERD

First Respondent

RHUMBA HOLDINGS LIMITED

Second Respondent

ORDER MADE BY:

SARAH C DERRINGTON J

DATE OF ORDER:

5 APRIL 2023

THE COURT ORDERS THAT:

1.In accordance with s 67 of the Trans-Tasman Proceedings Act 2010 (Cth), the judgment of the High Court of New Zealand given in Case No. CIV 2014-488-187 as stated in the Certificate of Registration filed in these proceedings, dated 19 December 2022, in the sum of $477,671.04 be registered.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT
(Revised from the transcript)

SARAH C DERRINGTON J:

  1. Pursuant to an application filed on 3 January 2023, the applicants seek to register two judgments of the New Zealand High Court, dated 4 April 2019 and 12 April 2019 (the 12 April Judgment), in matter CIV 2014-488-187 (the NZ Judgment) pursuant to s 67 of the Trans-Tasman Proceedings Act 2010 (Cth) (TTP Act). The NZ Judgment is a registrable judgment within the meaning of s 67(1) of the TTP Act. There is no discretion in this Court not to register such a judgment.

  2. The application is supported by an affidavit of Timothy William Weissel (Aff-TWW), also filed on 3 January 2023. The respondents sought leave to read and file an affidavit of Robert John Herd sworn today. Leave to do so is granted.

  3. The distinguishing feature of this particular application is that it seeks to…

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AGLC
Herd v Haines [2023] FCA 325
Case
[2023] FCA 325
Decision Date

CaseChat Overview and Summary

The applicants in Herd v Haines sought to register a part of a New Zealand judgment in the Federal Court of Australia. The application was pursuant to the Trans-Tasman Proceedings Act 2010, which allows for the registration of judgments from New Zealand in Australian courts. The respondents argued against the registration, claiming that the applicants were estopped from seeking to register the omitted judgment debt due to the principle of Anshun estoppel and res judicata, and also argued that the application contravened public policy.

The legal issues in the case revolved around the power of the Federal Court to permit the registration of a further amount of a judgment that had already been partially registered. The respondents contended that the court lacked the power to order the registration of a further amount, and that the principle of Anshun estoppel and res judicata, as well as public policy, prevented the registration. The applicants argued that the court had the power to permit the registration of the remaining amount of the judgment, and that the principle of Anshun estoppel and res judicata, as well as public policy, did not prevent the registration.

The court found that the power to permit the registration of a further amount of a judgment already registered was not precluded by the principle of Anshun estoppel or res judicata. The court also found that the application did not contravene public policy. The court concluded that the applicants were not estopped from seeking to register the omitted judgment debt, and that the court had the power to permit the registration of the remaining amount of the judgment. Consequently, the court ordered the registration of the remaining amount of the judgment.

In summary, the Federal Court found that the applicants had the power to register the remaining amount of the New Zealand judgment in Australia, despite it having already been partially registered. The court rejected the respondents' arguments that the principle of Anshun estoppel and res judicata, as well as public policy, prevented the registration. The court ordered the registration of the remaining amount of the judgment, in accordance with the Trans-Tasman Proceedings Act 2010.

Orders

Orders of the court

1. In accordance with s 67 of the Trans-Tasman Proceedings Act 2010 (Cth), the judgment of the High Court of New Zealand given in Case No. CIV 2014-488-187 as stated in the Certificate of Registration filed in these proceedings, dated 19 December 2022, in the sum of $477,671.04 be registered.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Pursuant to an application filed on 3 January 2023, the applicants seek to register two judgments of the New Zealand High Court, dated 4 April 2019 and 12 April 2019 (the 12 April Judgment), in matter CIV 2014-488-187 (the NZ Judgment) pursuant to s 67 of the Trans-Tasman Proceedings Act 2010 (Cth) (TTP Act). The NZ Judgment is a registrable judgment within the meaning of s 67(1) of the TTP Act. There is no discretion in this Court not to register such a judgment. The application is supported by an affidavit of Timothy William Weissel (Aff-TWW), also filed on 3 January 2023. The respondents sought leave to read and file an affidavit of Robert John Herd sworn today. Leave to do so is granted. The distinguishing feature of this particular application is that it seeks to register part only of the NZ Judgment, one part of the judgment having already been registered. The respondents contend that such cannot be done, either because there is no power that would permit the Court to order the registration of a further amount in relation to a judgment already registered in the Court, or because of the principle in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (Anshun estoppel), or on the grounds of res judicata. The respondents also contend that the application offends public policy on the grounds that: first, there is a public interest in the finality of litigation and a party should not be twice vexed by the same matter; secondly, it is said to contravene s 37M(1) of the Federal Court of Australia Act 1974 (Cth) (FCA Act); and thirdly, it is said to contravene the purpose of the TTP Act. Power of the Court to permit registration of a further amount The applicants first applied to register the NZ Judgment in 2019 and, by Order of Reeves J dated 25 February 2021, the judgment of the New Zealand High Court in Case No. CIV 2014-488-187, as stated in the Certificate of Registration dated 13 November 2019, in the sum of $484,859.88 was registered. The basis of the respondents’ reliance on res judicata is that it was submitted this order was consensual. The affidavit of Mr Herd sworn today deposes to it being “his recollection that he consented to those orders”. To the extent that this is in issue, I do not accept that Order 1 at least was made by consent. The orders of Reeves J are not marked as such, nor does it seem to me that there could have been any basis for Mr Herd’s consent to be required in relation to Order 1 when, by virtue of s 68 of the TTP Act, the Court is compelled to make such an order. The decision of Chamberlain v Commissioner of Taxation (1988) 164 CLR 502 does not assist the respondents. It was a judgment concerned with the adjudication of a debt as between the appellant and the Commonwealth in which the appellant had consented to the entry of judgment against him in a particular amount. This is not the present case. As explained in Mr Weissel’s affidavit, because of an oversight by the applicants in their original application to register the judgment in 2019, that sum as ordered by Reeves J was not the whole judgment sum: Aff-TWW at [7]. Rather, it comprised only that part of the total judgment sum described in the 12 April Judgment as “Total AUD judgment sum”, being:(a)AU$357,641.95 – part of the 12 April 2019 judgment,(b)interest on that sum from 6 March 2019 to 9 October 2019 of AU$10,631.27,(c)NZ$8139.50 (AU$7570.87) – judgment of 4 April 2019, and(d)interest on that sum from 6 March 2019 to 9 October 2019 of $194.97: Aff-TWW at [8(a)-(d)].

Ratio Decidendi

Legal Principle Established

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