Hunt v BP Exploration Co (Libya) Ltd

[1980] HCA 7

HIGH COURT OF AUSTRALIA

Barwick C.J., Stephen, Mason, Murphy, Aickin and Wilson JJ.

HUNT v. BP EXPLORATION CO. (LIBYA) LTD.

(1980) 144 CLR 565

27 February 1980

Judgments

Judgments—Foreign judgments—Registration in Queensland Supreme Court—Judgment debtor having assets in Queensland but not otherwise connected with State—Whether registration valid—Provision for making statutory rules for service of notice of judgment—Failure to make rules—Consequences—The Reciprocal Enforcement of Judgments Act, 1959 (Q.), ss. 5, 6 (1) (c).

Decisions

1980, February 17.
The following written judgments were delivered: -
BARWICK C.J. On 26th March 1979, the High Court of Justice, Queen's Bench Division, in the United Kingdom gave judgment in favour of BP Exploration Co. (Libya) Ltd. against Nelson Bunker Hunt in two sums, one of U.S. $15,575,823.00 and the second in a further 8,922,060 pounds stg. Hunt lodged an appeal with the Court of Appeal which is as yet undetermined. Sections 4 and 5 of The Reciprocal Enforcement of Judgments Act, 1959 (Q.) ("the Act") provide:

"4. (1) (a) This Part of this Act shall extend to the United Kingdom. (b) In relation to the United Kingdom, the term 'superior Court' shall mean the High Court in England, the Court of Sessions in Scotland, the High Court in Northern Ireland, the Court of Chancery of the County Palatine of Lancaster or the Court of Chancery of the County Palatine of Durham, or such other Court as the Governor in Council may by Order in Council specify for the purposes of this Part of this Act. (2) . . . (3) Any judgment of a superior Court of a country to which this Part of this Act extends, other than a judgment of such a Court given on appeal from a Court which is not a superior Court, shall be a judgment to which this Part of this Act applies, if - (a) It is final and conclusive as between the parties thereto; and (b) There is payable thereunder a sum of money, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty; and (c) It is given after the coming into operation of the Order in Council directing that this Part of this Act shall extend to that country: Provided that nothing in this paragraph (c) shall apply with respect to judgments given in the United Kingdom or in any other Commonwealth country (not including the Commonwealth of Australia) to which 'The Reciprocal Enforcement of Judgments Act of 1927', applied immediately before the passing of this Act. (4) For the purposes of this section a judgment shall be deemed to be final and conclusive notwithstanding that an appeal may be pending against it, or that it may still be subject to appeal, in the Courts of the country of the original Court. (5) . . . (6) . . . 5. (1) A person, being a judgment creditor under a judgment to which this Part of this Act applies, may apply to the Supreme Court at any time - (a) In the case of a judgment given before the passing of this Act in the United Kingdom or in any other Commonwealth country (not including the Commonwealth of Australia) to which 'The Reciprocal Enforcement of Judgments Act of 1927', applied immediately before the passing of this Act, within twelve months from the date of the judgment or such longer period as may be allowed by the Supreme Court; (b) . . . to have the judgment registered in the Supreme Court, and on any such application the said Court shall, subject to proof of the prescribed matters and to the other provisions of this Act, order the judgment to be registered: Provided that a judgment shall not be registered if at the date of the application - (i) It has been wholly satisfied; or (ii) It could not be enforced by execution in the country of the original Court. (2) Subject to the provisions of this Act with respect to the setting aside of registration - (a) A registered judgment shall, for the purposes of execution, be of the same force and effect; and (b) Proceedings may be taken on a registered judgment; and (c) The sum for which a judgment is registered shall carry interest; and (d) The Supreme Court shall have the same control over the execution of a registered judgment, as if the judgment had been a judgment originally given in the Supreme Court and entered on the date of registration:

. . . (3) . . . (4) . . . (5) . . . (6) . . ."

"Judgment" is defined in s. 3 of the Act as: "'Judgment' - A judgment or order given or made by a Court in any civil proceedings, or a judgment or order given or made by a Court in any criminal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party, and includes an award in proceedings on an arbitration if the award has, in pursuance of the law in force in the place where it was made, become enforceable in the same manner as a judgment given by a Court in that place;" (at p568)

2. It will be observed that this Act contemplates the registration of a judgment on an ex parte application by the judgment creditor and for notice of the registration of the judgment thereafter to be given to the judgment debtor. Section 6 of the Act, provides the Court with power to make rules, including rules as to service on the judgment debtor. No such rules have as yet been made. (at p568)

3. Although doubtless the legislation contemplated reciprocity, no legislation of the United Kingdom reciprocal to the present Queensland Act has been enacted, but there had been reciprocity under a prior Act, namely The Reciprocal Enforcement of Judgments Act, 1927 (Q.) and the Administration of Justice Act, 1920 (10 &11 Geo. 5, c. 81) (U.K.) and an Order in Council which was made pertaining to Queensland in March 1928 (cf. No. 252 of 1928 in the Statutory Rules and Orders of the United Kingdom). Section 21 (2) of the Acts Interpretation Act, 1954-1962 (Q.), as amended, would appear to continue in force the Orders in Council made under the prior statute until such time as some supplanting orders were made. However, s.4 is not conditioned on the existence of reciprocal provisions in the country from which the judgment to be registered has come. (at p568)

4. On 17th September 1979, BP Exploration Co. (Libya) Ltd. applied to the Supreme Court of Queensland for the registration of the judgment of the High Court, Queen's Bench Division, for the two sums which I have mentioned. The Supreme Court (Kelly J.) on 21st September made an order for the registration of the judgment. He similarly entertained an application for an injunction to restrain the judgment debtor from removing his assets from the jurisdiction, it having appeared to the court that the judgment debtor had considerable assets within the State of Queensland. The order extended to the proceeds of sale of certain cattle on the assumption that these were the property of the judgment debtor. However, in the event, they proved not to be his cattle but he none the less had substantial assets within the jurisdiction. (at p569)

5. The judgment debtor has consistently challenged the jurisdiction of the Supreme Court of Queensland to register the judgment or to have put it in execution. He has not submitted to that jurisdiction. An application was made on his behalf to the Supreme Court to set aside the registration of the judgment but the Court (Matthews J.) refused to set it aside. The judgment debtor was granted special leave to appeal to this Court and here claims that there was no jurisdiction in the Supreme Court of Queensland to register the judgment because he, the judgment debtor, was neither present within the jurisdiction, nor was there any other factor or circumstance to connect him with the State of Queensland. It was submitted that the general words of s. 3 in the definition of "judgment" and "judgment debtor" must be qualified in order to give them validity and that the qualification should be the existence of some connexion of the judgment debtor with the jurisdiction of the State of Queensland, emphasis being placed on the territorial nature of that jurisdiction. The submission was that a judgment could be registered under the section only if the Court would otherwise have had jurisdiction over the judgment debtor at the time the judgment was presented for registration. In aid of this submission, reliance was placed upon several pronouncements of Sir Owen Dixon, and in particular, the views he expressed in Barcelo v. Electrolytic Zinc Co. of Australasia Ltd. (1932) 48 CLR 391, at p 420 and Wanganui-Rangitikei Electric Power Board v. Australian Mutual Provident Society (1934) 50 CLR 581, at p 599 . (at p569)

6. The Act provides a mechanism by which an enforceable judgment may be entered by the Supreme Court of Queensland. Its registration, of course, can only have effect by reason of the Act within Queensland and, so far as the Act is concerned, it can only affect assets or the person of the judgment debtor within Queensland. The Act does not purport to have any extra-territorial effect. (at p569)

7. The passages from Barcelo's Case and the Wanganui-Rangitikei Case to which we were referred relate to a settled rule of construction that where the generality or universality of the words of a statute would give it an effect or operation on matters or things governed by foreign law, that generality or universality will be qualified so as to limit the effect and operation of the Act to matters and things within the legislative competence of the enacting legislature. In the Act with which the Court was dealing in these cases there were general words which, being given universal or unrestrained operation, would exceed the legislative competence of the respective legislatures. There was therefore need to connect their terms with the jurisdiction of the legislating State which, basically, is territorial. (at p570)

8. But here, not only is the Act dealing with a judiciary set up by the State of Queensland but its provisions operate only within Queensland. Of course, the description of the judgments which may be registered is only qualified by their nature and the description of the court which pronounced them. The description of judgment debtor is unqualified except by reference to the judgment in question. But the generality of these descriptions and definitions has no effect outside the State of Queensland. They need no qualification to secure the validity of the registration of the judgment in a Queensland court to be executed in Queensland. (at p570)

9. I am unable to see any reason why the generality of the words of s. 3 or s. 4 must be qualified in any respect in order to attain validity. (at p570)

10. Reference was also made to a case in bankruptcy: Cooke v. Charles A. Vogeler Co. (1901) AC 102 deciding that an act of bankruptcy must be committed within the jurisdiction. The jurisdiction in bankruptcy, and particulaly in relation to acts of bankruptcy, necessitates the conclusion that the act of bankruptcy must be committed within the jurisdiction. I derive no assistance in the present case from the decisions to which we were referred. However, reference may be made to In re A Judgment Debtor (1939) Ch 601 which does not support the appellant's proposition. (at p570)

11. Reliance was placed on the circumstance that no rules had yet been made for service of a notice of the registration of a judgment but that circumstance cannot, in my opinion, affect the validity of the Act. In my opinion, the judgment was not improperly registered because the judgment debtor was neither present in the jurisdiction nor otherwise subject to it. (at p570)

12. I would dismiss the appeal lodged pursuant to special leave granted. (at p570)

STEPHEN, MASON AND WILSON JJ. The answer to the case which has been presented by the appellant is to be found in the character and in the provisions of the statute itself. The arguments advanced by the appellant are but variations on a single theme, namely that the statute, notably the definition of "judgment debtor" in s. 3, should be read down so that the only judgments authorized to be registered are those obtained against a judgment debtor who is answerable or amenable to the jurisdiction of the Supreme Court of Queensland. (at p571)

2. The first submission in support of this approach invokes the settled rule of construction "for confining the operation of general language in a statute to a subject matter under the effective control of the Legislature" (Barcelo v. Electrolytic Zinc Co. of Australasia Ltd. (1932) 48 CLR, at p 423 ; Wanganui-Rangitikei Electric Power Board v. Australian Mutual Provident Society (1934) 50 CLR 581 ). This rule of construction is applied in order to preserve the validity of a statute which would, if its general language were not restrained, be held to be beyond legislative power. There is in this case no occasion to apply the suggested rule of construction for the reason that The Reciprocal Enforcement of Judgments Act, 1959 (Q.) ("the Act") is plainly a valid enactment of the Parliament of Queensland, construed according to its terms. Indeed, the appellant scarcely suggests otherwise. (at p571)

3. By its long title the Act is described as:

"An Act to make Provision for the Enforcement in Queensland of Judgments given in the United Kingdom or in other Countries (whether Commonwealth Countries or not) which accord Reciprocal Treatment to Judgments given in Queensland, for Facilitating the Enforcement in other Countries of Judgments given in Queensland, and for other purposes."

The Act provides for the registration and enforcement in Queensland of judgments obtained in countries which accord reciprocity of treatment for the enforcement of judgments given in the superior courts of Queensland - see s. 4 (2) which appears in "Part II - Reciprocal Enforcement of Judgments". In fact, s. 4 (1) (a) extends the provisions of Pt. II to the United Kingdom so that the part applies to judgments of superior courts of the United Kingdom whether or not that country provides reciprocal treatment for the enforcement of judgments obtained in Queensland. This is an understandable exception to the general rule, previous United Kingdom legislation having made provision for the registration and enforcement of Queensland judgments. (at p571)

4. The subject matter of the Act has a sufficient nexus or connexion with the territorial jurisdiction of Queensland. It not only provides for the reciprocal enforcement of foreign judgments, it specifically provides that certain foreign judgments shall be registered in the Supreme Court of Queensland (s. 5 (1)) and that once registered they shall "for the purposes of execution, be of the same force and effect" as if they had been originally judgments of the Supreme Court of Queensland (s. 5 (2)). The subject matter of the relevant provision of the Act is therefore the registration of foreign judgments in the Supreme Court and their enforcement within the State, matters plainly within the legislative and territorial competence of the Parliament. The fact that the parties to a foreign judgment sought to be registered have no connexion with Queensland is irrelevant to the question of validity. For that purpose it is enough that the Act deals with the registration of judgments in the Supreme Court and with their enforcement as if they were originally judgments of that Court. (at p572)

5. The appellant's second submission is that prima facie a statute conferring jurisdiction on a court will be construed as limited in its application to persons within the territorial jurisdiction (City Finance Co. Ltd. v. Matthew Harvey &Co. Ltd. (1915) 21 CLR 55, at p 59 ), unless the statute makes provision for service of process on a defendant out of the jurisdiction (Laurie v. Carroll (1958) 98 CLR 310, at ). According to the appellant, the Act confers a jurisdiction on the Supreme Court to order that a foreign judgment be registered in the Supreme Court and this amounts to an exercise of jurisdiction in personam against the foreign judgment debtor, necessitating the service of process upon the judgment debtor. (at p572)

6. True it is that at common law a judgment creditor who sought to enforce a foreign judgment in Queensland by suing on the judgment in the Supreme Court could only do so if the judgment debtor was answerable or amenable to the jurisdiction of that Court. The judgment creditor was required to serve the writ commencing the action, which for relevant purposes was an action in personam, within the jurisdiction or, pursuant to statutory authority, out of the jurisdiction, in those cases in which service out of the jurisdiction was permitted. (at p572)

7. Unfortunately for the appellant the common law does not provide a reliable guide. It is the purpose of the Act, as it was with its statutory predecessors in the United Kingdom, to replace the common law with a simpler and more effective system of enforcement of foreign judgments, the essence of which is that the foreign judgment, provided that it satisfies the necessary qualifications, is registered and enforced as if it were a judgment of the local court. The Act dispenses altogether with the old procedure whereby the judgment creditor sues on the foreign judgment so as to obtain a new judgment in the Supreme Court which is then enforced against the local assets of the judgment debtor. Instead the foreign judgment is registered and once registered, subject to certain qualifications, execution may be effected against local assets. The application for registration does not involve an action in personam requiring service of the Supreme Court's process in or outside the jurisdiction. (at p573)

8. There is no requirement for service of a notice of application for registration because the Act contemplates that the application will be made ex parte and that notice of registration of the judgment will be given to the judgment debtor who may then move to set aside the registration under s. 7. True it is that the Act does not explicitly state that the application is to be made ex parte. However, s. 5 (2) expressly makes the consequences of registration subject to the provisions relating to the setting aside of registration. Further, the proviso to the sub-section ensures that "execution shall not issue on the judgment so long as, under this Part of this Act and the Rules of Court made thereunder, it is competent for any party to make application to have the registration of the judgment set aside, or, where such an application is made, until after the application has been finally determined". (at p573)

9. Section 6 (1) specifically enables Rules of Court to be made: "(c) For providing for the service on the judgment debtor of notice of the registration of a judgment". No such rules have been made. The absence of a requirement for giving notice of registration is a very serious defect, but it is not a factor which can influence the construction of the statute. As we read the Act it contemplates the making of an ex parte application for registration, the prescription by the rules of court of notice of registration to the judgment debtor after registration has been effected and an application by the judgment debtor to set aside registration, if he desires to contest registration. There is accordingly no room for the application of the principle of construction relied on by the appellant, a principle which relates to jurisdiction in actions in personam and the service of originating process in such actions. (at p573)

10. The decision of the Court of Session in English's Coasting and Shipping Co. Ltd. v. British Finance Co. Ltd. (1886) 14 R 220 supports this view. There it was held that to entitle the creditor who held a judgment of the High Court of Justice in England to register the same in Scotland under s. 2 of the Judgments Extension Act 1868 it was not necessary that the debtor should be subject to the jurisdiction of Scottish courts. The Judgments Extension Act provided for the registration in a superior court of one part of the United Kingdom of a certificate of a judgment of a superior court in another part of the United Kingdom and the enforcement of the judgment as if it were a judgment obtained in the court of registration. There were some differences between the 1868 Act and the Act but not such as to make inapposite the observations of the Lord President (1886) 14 R, at pp 225-226 :

"But then a second objection is taken, viz., that the Court of Session had no jurisdiction as against the pursuers of this reduction, and that if the defenders had raised an action against them here, it would have been thrown out on the plea of want of jurisdiction, and that no proceedings were taken to found jurisdiction in Scotland. Now, that raises a question of some importance on the effect of the 2d section of the Statute of 1868. If the meaning merely is that an English or Irish decree may be enforced here against any domiciled Scotsman, or against anyone over whom we have jurisdiction, it would limit the utility of the Act very much, and in a way which has hitherto not been contemplated. The question therefore is, whether the effect of registering an English judgment here, or a Scottish judgment in England, is merely to enable the party obtaining the judgment to proceed against the person of the defender, or whether it is not also to enable him to proceed against any property of the defender which may be situated in the country where the judgment is registered. The policy of the statute points to the larger construction, viz., that if an Englishman or Irishman holds a judgment obtained in England or Ireland, he may use it and make it effectual against the person and property of his debtor, wherever he may find it within the United Kingdom." (at p574)

11. The appellant relies on observations made by their Lordships in Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G. (1975) AC 591, esp at p 632 in support of the view that the Act should be interpreted in the light of the antecedent common law. However, the decision in Black-Clawson related to the counterpart of s. 10 of the Act, a provision which is contained in Pt III. It therefore has no relevance to the question now under consideration which is the subject of statutory provisions which depart radically from the antecedent common law. (at p574)

12. The absence of rules making provision for service on the judgment debtor of notice of registration of the judgment is, as we have said, a very serious defect. There is nothing in the Act which would empower the Court to dispense with service on the judgment debtor of notice of the registration of a judgment or of any subsequent process relating to enforcement or to authorize service beyond the jurisdiction. The enforcement of the judgment may be subject to difficulties as yet unexplored. (at p575)

13. However, for the reasons already given, we would uphold the jurisdiction of the Supreme Court to make the order for registration of the judgment and dismiss the appeal. Having regard to the limited terms of the grant of special leave, we would declare that the dismissal of the appeal is without prejudice to the appellant's right to contest on the merits the decision of Kelly J. dated 21st September 1979 and we would extend the time within which the appellant may move in the Supreme Court to contest that decision. That time should be extended so as to expire ten days from the date of delivery of this judgment. (at p575)

MURPHY J. Enforcement in Australia of foreign judgments and enforcement elsewhere of Australian judgments are aspects of Australia's external affairs and the subject of international concern, touching international relations and affairs, which are within the province of the federal government and the federal Parliament. Legislative power to provide for enforcement is found in the external affairs power in s. 51 (xx.) of the Constitution. Legislative provisions for such enforcement do not necessarily involve the courts of the enforcing nation (administrative methods of execution may suffice). (at p575)

2. The Australian States have no international personality (see New South Wales v. The Commonwealth (1975) 135 CLR 337, at pp 373,-468 (the Seas and Submerged Lands Case)). I do not share the view that provision for enforcement of foreign judgments is plainly within the competence of the States. However, there is a presumption (at least in the absence of some relevant constitutional guarantee or prohibition) that Acts and State Acts are valid. As well, the appellant has not asserted that the Reciprocal Enforcement of Judgments Act, 1959 (Q.) is invalid. In these circumstances, it should be treated as valid. I agree with the observations in the judgment of Stephen, Mason and Wilson JJ. that the Act should not be construed in the light of the common law because its purpose was to replace common law enforcement of foreign judgments by a simpler and more effective system. Once common law notions are discarded, the terms of the Act are plain and lead to the result that the Supreme Court had jurisdiction to make the order for registration of the judgment. (at p575)

3. The appellant contended that the registration provisions were not presently operative because essential rules had not been made. The Act authorizes the making of rules of court for "providing for the service on the judgment debtor of notice of the registration of a judgment". The Act contemplates service of the notice but no such rules have been made. If jurisdiction is conferred on a court and no procedural machinery has been provided, it is for the court to provide such machinery as best it can. In Browne v. Commissioner for Railways (1935) 36 SR 21, at p 29 , Jordan C.J. said:

"If it is provided by Statute than an application may be made to a Court within the time and in the manner and on the conditions directed by rules of Court, this is regarded as creating a right in the applicant to make, and a duty in the Court to hear, the application, irrespectively of whether any rules have been made. In such a case, there is a power in the Court to prescribe conditions by rules, but until it does so, the Court must deal with applications as justice and common sense demand."

See also Gramophone Co. Ltd. v. Leo Feist Inc. (1928) 41 CLR 1 ; Downey v. Pryor (1960) 103 CLR 353, at p 362 . (at p576)

4. The appeal should be dismissed. I agree with the proposed declaration and order. (at p576)

AICKIN J. I agree with the reasons contained in the joint judgment of Stephen, Mason and Wilson JJ. and with the order which they propose. (at p576)

Orders

Appeal dismissed with costs.

Order that the time limited within which the appellant may take such proceedings as he thinks fit in relation to the order of Kelly J., dated 21st September 1979, be extended until ten days after the date of delivery of this judgment.