LFDB v SM (No 3)

Case [2017] FCA 80

FEDERAL COURT OF AUSTRALIA

LFDB v SM (No 3) [2017] FCA 80

File number: NSD 1665 of 2015
Judge: GRIFFITHS J
Date of judgment: 9 February 2017
Catchwords:

PRIVATE INTERNATIONAL LAW – application under s 72(1) of the Trans-Tasman Proceedings Act 2010 (Cth) (the Act) to set aside the registration of two judgments of the High Court of New Zealand in relation to proceedings under the Property (Relationships) Act 1976 (NZ)  – whether enforcement of judgments would be contrary to public policy in Australia as involving a gross denial of procedural fairness – whether the judgments were given in a proceeding in rem – whether the subject of the proceedings is moveable property not situated in New Zealand – whether one of the judgments is not a “registrable judgment” because if contravened it would make LFDB liable to conviction for contempt in New Zealand.

STATUTORY INTERPRETATION – construction of s 72(1) of the Act – whether judgment contrary to public policy – whether the judgments were given in a proceeding in rem the subject matter of which was moveable property.

Held: application dismissed with costs.

Legislation:

Foreign Judgments Act 1991 (Cth)

International Arbitration Act 1974 (Cth), s 7A

Trans-Tasman Proceedings Act 2010 (Cth), ss 4, 66, 68, 72

Care of Children Act 2004 (NZ), s 78

Children, Young Persons and Their Families Act 1989 (NZ), s 89

Companies Act 1993 (NZ), s 34

Domestic Violence Act 1995 (NZ), s 49

Family Law Act 1975 (Cth), s 79

Financial Markets Conduct Act 2013 (NZ), s 519

New Zealand Bill of Rights Act 1990 (NZ), ss 5, 24

Property (Relationships) Act 1976 (NZ), ss 7, 25, 37, 72

Reciprocal Enforcement of Judgments Act 1934 (NZ)

Resource Management Act 1991 (NZ), s 338

High Court Rules (NZ), r 32.7
Cases cited:

Australasian Meat Industry Employees’ Union v Mudgimberri Station Pty Ltd [1986] HCA 46; 161 CLR 98

Bouton v Labiche (1994) 33 NSWLR 225

Burden v Ainsworth [2004] NSWCA 3; 59 NSWLR 506

Chen v Tan [2012] Fam CA 225

CIBC Mellon Trust Co v Stolzenberg [2003] EWHC 13; [2004] EWCA Civ 827

CT Bowring & Co (Insurance) Ltd v Corsi Partners Ltd [1995] 1 BCLC 148; [1994] 2 Lloyd’s Rep 567

De Santis v Russo [2001] QSC 065; 27 Fam LR 414

Gambazzi v DaimlerChrysler Inc Canada [2010] QB 388

Hytec Information Systems Ltd v Coventry City Council [1997] 1 WLR 1666

In the Marriage of KB and G Wallman (1981) 7 Fam LR 945

In the Marriage of Wilkinson [2005] Fam CA 430; 33 Fam LR 373

International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319

Jenton Overseas Investment Pty Ltd v Townsing [2008] VSC 470; 21 VR 241

JSC BTA Bank v Ablyazov [2012] EWCA Civ 1411

Kioa v West [1985] HCA 81, 159 CLR 550

LFDB v SM [2013] NZCA 481

LFDB v SM [2014] NZSC 197

LFDB v SM [2015] FCA 725;

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Details
AGLC
LFDB v SM (No 3) [2017] FCA 80
Case
[2017] FCA 80
Decision Date

CaseChat Overview and Summary

LFDB initiated an application under section 72(1) of the Trans-Tasman Proceedings Act 2010 (Cth) to set aside the registration of two judgments of the High Court of New Zealand in relation to proceedings under the Property (Relationships) Act 1976 (NZ). The applicants contended that enforcement of the judgments would be contrary to public policy in Australia as involving a gross denial of procedural fairness. They also argued that one of the judgments was not a “registrable judgment” because if contravened it would make LFDB liable to conviction for contempt in New Zealand. The applicants sought an order setting aside the registration of the judgments and alternatively an order that the judgments be registered in a limited form.

The court was required to decide whether enforcement of the judgments would be contrary to public policy in Australia and whether the judgments were given in a proceeding in rem the subject of which was moveable property not situated in New Zealand. The court was also required to determine whether one of the judgments was not a “registrable judgment” because if contravened it would make LFDB liable to conviction for contempt in New Zealand.

The court found that the applicants had not established that enforcement of the judgments would be contrary to public policy in Australia. The court found that the judgments were not given in a proceeding in rem the subject of which was moveable property not situated in New Zealand. The court also found that one of the judgments was a “registrable judgment” because it did not contravene any of the exceptions listed in section 66 of the Act. The court dismissed the applications with costs.

The Federal Court ordered that the originating applications filed in proceedings NSD1664 of 2015 and NSD 1665 of 2015 be dismissed and that the applicants pay the respondent’s costs.

Orders

Orders of the court

1. The originating applications filed in proceedings NSD1664 of 2015 and NSD 1665 of 2015 be dismissed.

2. The applicants pay the respondent’s costs.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is desirable to set out the following relevant provisions from the Act. Section 66 provides the meaning of a registrable NZ judgment. It relevantly provides:66. Meaning of registrable NZ judgment (1) A judgment is a registrable NZ judgment if: (a)the judgment is a final and conclusive judgment that is given in a civil proceeding by a New Zealand court; or (b) the judgment is a final and conclusive judgment that: (i)is given in a civil proceeding by a New Zealand tribunal that is prescribed by the regulations; and (ii) is of a kind prescribed by the regulations; or (c) the judgment is a final and conclusive judgment that: (i)is given in a criminal proceeding by a New Zealand court; and (ii)consists wholly of a requirement to pay an injured party a sum of money by way of compensation, damages or reparation; or (d) the judgment is a final and conclusive judgment that: (i)is given in a criminal proceeding by a New Zealand court; and (ii)consists wholly of an imposition of a regulatory regime criminal fine; and (iii)meets the conditions (if any) of a kind prescribed by the regulations; or (e)the judgment is a final and conclusive order made under the NZ Act or the NZ Evidence Act by a New Zealand court or tribunal, being an order for the payment of expenses incurred: (i)by a witness in complying with a subpoena served on the witness in Australia under Division 3 of Part 5 of this Act; or (ii)in connection with appearing remotely from Australia in a New Zealand proceeding under Division 3 of Part 6 of this Act; or (f) the judgment is an NZ market proceeding judgment; or (g)the judgment is registered in a New Zealand court under the Reciprocal Enforcement of Judgments Act 1934 of New Zealand. (2) However, a judgment is not a registrable NZ judgment if it wholly or partly: (a)-(h) ; or(i)is an order that, if contravened by a person to whom it is directed, will make the person liable to conviction for an offence in the place where it was made; or… Section 68 imposes a duty on the Court to register a judgment in specified circumstances:Registration of NZ judgments (1)An Australian court must, on application under section 67, register a registrable NZ judgment in that court in accordance with this Part. (2)Once registered, the judgment remains registered unless the registration is set aside under section 72. Section 72 of the Act provides for the setting aside of a registered NZ judgment:72. Setting aside registration (1)An Australian court in which an NZ judgment is registered must, on application by a liable person under subsection (2), set aside the registration of the judgment if: (a)the court is satisfied that enforcement of the judgment would be contrary to public policy in Australia; or (b)the judgment was registered in contravention of this Act; or (c) both of the following subparagraphs apply: (i)the judgment was given in a proceeding the subject matter of which was immovable property, or was given in a proceeding in rem the subject matter of which was movable property; (ii)that property was, at the time of the proceeding in the original court or tribunal, not situated in New Zealand. (2)The liable person's application must be made within: (a)30 working days of the Australian court after the day the liable person was given notice of registration under section 73; or (b)if, before or after that period, the liable person applies to the Australian court for a longer period—any longer period the Australian court considers appropriate. (3)The Australian court must not set aside the registration otherwise than in accordance with this section.

Ratio Decidendi

Legal Principle Established

Section 72 of the Act provides for the setting aside of a registered NZ judgment:72. Setting aside registration (1)An Australian court in which an NZ judgment is registered must, on application by a liable person under subsection (2), set aside the registration of the judgment if: (a)the court is satisfied that enforcement of the judgment would be contrary to public policy in Australia; or (b)the judgment was registered in contravention of this Act; or (c) both of the following subparagraphs apply: (i)the judgment was given in a proceeding the subject matter of which was immovable property, or was given in a proceeding in rem the subject matter of which was movable property; (ii)that property was, at the time of the proceeding in the original court or tribunal, not situated in New Zealand. (2)The liable person's application must be made within: (a)30 working days of the Australian court after the day the liable person was given notice of registration under section 73; or (b)if, before or after that period, the liable person applies to the Australian court for a longer period—any longer period the Australian court considers appropriate. (3)The Australian court must not set aside the registration otherwise than in accordance with this section. It is to be noted that s 72(1) provides for a “liable person” to seek to have a registered judgment set aside. “Liable person” is defined in s 4 as follows:liable person, in relation to a judgment, means a person against whom the judgment:(a) was given; or(b) is enforceable under a New Zealand law. The following relevant definitions in s 4 are also to be noted:“civil proceeding” means a proceeding that is not a criminal proceeding.…“criminal proceeding” means: (a)a prosecution for an offence; or (b)a procedure, other than a prosecution, that, under an Australian law or a New Zealand law, may be used: (i) to determine liability for an offence; or (ii) to impose a penalty for an offence; or (c)a proceeding that is related to or associated with a prosecution for an offence or a procedure mentioned in paragraph (b); but does not include: (d) a proceeding for compensation, damages or reparation; or (e) a proceeding under proceeds of crime legislation.…“judgment” of a court or tribunal means a judgment, award, decree or order of the court or tribunal, whether or not it: (a) is given in a primary proceeding or an interlocutory proceeding; or (b) is a money judgment or a non-money judgment.The two registered judgments On 16 December 2015, a Deputy District Registrar of the Court registered, pursuant to s 68 of the Act, a judgment dated 26 November 2015 of the High Court of New Zealand (Ellis J). The New Zealand judgment related to proceedings in the High Court of New Zealand in CIV-2011-404-6851. The New Zealand proceeding to which that judgment related was between SM as plaintiff and LFDB as defendant. The judgment comprised orders as to costs on applications made by the plaintiff for freezing orders dated 27 January, 5 February, 11 March, 3 June and 26 November 2015. The certificate of registration states that judgment had been registered for the equivalent amount in Australian currency, namely AUD$22,826.20. This certificate of registration was made in proceedings in this Court which had the file number NSD 1664 of 2015.