LFDB v SM (No 3) - [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; 239 FCR 262

LFDB v SM [2016] NZCA 295

Loucks v Standard Oil Co of New York (1918) 224 NY 99; 120 NE 198

Norsemeter Holding AS v Pieter Boele (No 1) [2002] NSWSC 370

Pemberton v Hughes [1899] 1 Ch 781

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355

Re Jokai Tea Holdings Ltd [1993] 1 All ER 630

Siemer v Solicitor-General [2010] NZSC 54; 3 NZLR 767

SM v LFDB [2012] NZHC 1152

SM v LFDB [2013] NZHC 1056

SM v LFDB [2013] NZHC 3105

SM v LFDB [2014] NZCA 326; [2014] 3 NZLR 494

SM v LFDB [2014] NZHC 2445

SM v LFDB [2015] NZHC 2630

SM v LFDB [2015] NZHC 1217

Shepherd v Shepherd (Unreported, High Court of New Zealand, Asher J, 23 October 2008)

Stern v National Australia Bank [1999] FCA 1421

Thevarajah v Riordan [2015] UKSC 78

Washington H. Soul, Pattinson & Co. Ltd. v Ogilvy (1954) 55 S.R. (NSW) 143

Witham v Holloway [1995] HCA 3; 183 CLR 525

Date of hearing: 12 October 2016

Date of last submissions: 20 October 2016

Registry: New South Wales

Division: General Division

National Practice Area: Commercial and Corporations

Sub-Area: General and Personal Insolvency

Category: Catchwords

Number of paragraphs: 145

Counsel for the Applicants: Mr PD Herzfeld

Solicitor for the Applicants: Corrs Chambers Westgarth

Counsel for the Respondent: Dr C Ward SC and Dr S Tully

Solicitor for the Respondent: Marque Lawyers

ORDERS

NSD 1665 of 2015

BETWEEN:
LFDB

First Applicant

DBA(AU)

Second Applicant

DBA(AU) AS TRUSTEE FOR DPT

Third Applicant

SE

Fourth Applicant

BWP

Fifth Applicant

AND:
SM

Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

9 FEBRUARY 2017

THE COURT ORDERS THAT:
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.

REASONS FOR JUDGMENT
GRIFFITHS J:
Introduction

This proceeding constitutes another chapter in a long saga of litigation extending over many years both in New Zealand and in Australia. In simple terms, the current proceeding involves an 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.
The applicants seek to have those judgments set aside on the following grounds:
(a)enforcement of both the judgments would be contrary to public policy in Australia (s 72(1)(a) of the Act);
(b)the judgments were given in a proceeding in rem, the subject of which is moveable property which is not situated in New Zealand (s 72(1)(c)); and
(c)the second of the judgments was registered in contravention of s 72(1)(b) of the Act because it is not a “registrable judgment” since it is partly an order that, if contravened, would make LFDB liable to conviction or contempt in New Zealand (s 66(2)(i) of the Act).
It is convenient to note that, consistently with the course which had been taken in proceedings in various New Zealand courts, pursuant to orders made by this Court on 14 March 2016 under s 37AF of the Federal Court of Australia Act 1976 (Cth), the first applicant is referred to by the acronym LFDB, while the respondent is referred to by the acronym SM. Other companies and entities associated with the first applicant who are also applicants have been given the following acronyms: DBA(AU), DBA(AU) as Trustee for DPT, SE and BWP. Entities associated with the first applicant have also been referred to in various proceedings as LPDB and DBA(NZ).
It is convenient at this point to note that in earlier proceedings in this Court, LFDB and entities associated with him were successful in having set aside under the Act the registration of various freezing orders made in the course of proceedings in New Zealand (see LFDB v SM [2015] FCA 725; 239 FCR 262 per Gleeson J (LFDB v SM in the Federal Court). It will be necessary to consider aspects of Gleeson J’s judgment below.
Relevant legislative provisions summarised
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.
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.
Also, on 16 December 2015, a Deputy District Registrar of this Court issued another certification of registration of judgment pursuant to s 68 of the Act in respect of parts of another judgment of the High Court of New Zealand which was attached to that certificate. The New Zealand judgment related to two proceedings in the High Court of New Zealand, which had the file numbers CIV-2011-404-6851 and CIV-2011-404-4245. The former proceeding was between SM and LFDB and the latter proceeding was between LFDB and a related company, LPDB as plaintiffs and SM as defendant. The registered judgment related to part of the proceedings in the High Court which resulted in orders being made concerning the division of the parties’ relationship property. The registered judgment contained other orders relating to matters other than the payment of money, including declarations and a direction to LFDB to deliver to SM certain artefacts known as the “Plaza artefacts”. The relevant New Zealand judgment was a judgment of Ellis J which related to what was described as a “relationship property proceeding” (CIV-2011-404-6851) and a tort proceeding (CIV-2011-404-4245). This certificate of registration was made in the context of a proceeding in this Court which had the file number NSD 1665 of 2015.
By an order made on 23 February 2016, the two proceedings in this Court were consolidated and given the single file number NSD 1665/2015.
On 23 March 2016, this Court granted a stay on execution of the registered judgments pending the outcome of proceedings in the Court of Appeal of New Zealand in which LFDB sought an extension of time to appeal orders made by the High Court of New Zealand which formed part of the registered judgments.
The Court of Appeal in LFDB v SM [2016] NZCA 295 granted LFDB an extension of time within which to appeal, but on terms with which ultimately LFDB did not comply.
In these circumstances, the applicants pressed their originating applications in this Court to have the two registered judgments set aside.
As alluded to above, the litigation between the parties has a long and complicated history but the following summary should suffice. The summary draws heavily on the applicants’ outline of written submissions in this Court, however, some additional relevant matters are also noted.
A brief overview
LFDB and SM lived for a time in the 1990s and 2000s as domestic partners. Some of that time they lived in New Zealand; for a longer part of that time, they lived in Australia. They separated in 2009.
SM commenced the NZ proceeding in the Family Court of New Zealand seeking a division of property under the Property (Relationships) Act 1976 (NZ) (PR Act). It was subsequently transferred to the High Court of New Zealand. It was noted by Priestley J in the High Court of New Zealand as early as 28 May 2012 that the “couple seem to be locked into intractable and protracted litigation” (SM v LFDB [2012] NZHC 1152 at [5]). Also, even at that time, the saga of the litigation involving the parties was not confined to New Zealand Courts. In February 2009, LFDB commenced separate proceedings in the Supreme Court of New South Wales concerning the parties’ respective property rights arising from their de facto relationship. SM successfully applied to have those proceedings stayed. The Supreme Court found that LFDB’s proceedings in New South Wales were oppressive (see the discussion of this litigation in Priestley J’s judgment referred to above).
On 10 May 2013, Ellis J published a judgment in the High Court (SM v LFDB [2013] NZHC 1056) concerning SM’s application for an interim distribution under s 25 of the PR Act. Her Honour took into account what she described as “the recalcitrance with which LFDB has made available much of the financial information that is necessary to undertake the required analysis” and that “LFDB’s general approach to this litigation and his reluctance to comply with Court orders [do not] weigh in his favour here” (at [44]). Reference was also made at [48] to “the web of dealings between [LFDB] and entities owned and controlled by him…”.
On 29 August 2013, the High Court (Ellis J) made what is referred to in New Zealand as an “unless” order. It provided that if LFDB did not pay to SM’s solicitors the sum of $24,435.08 plus interest by 5pm on 9 September 2013, “he will be debarred from taking any further part in the proceedings before this Court”.
On 11 October 2013, the Court of Appeal in LFDB v SM [2013] NZCA 481 dismissed an application by LFDB for an extension of time to appeal against the judgment of Priestley J which is referred to in [18] above. The Court was highly critical of LFDB’s conduct. It described LFDB’s application for an extension of time as “a deliberate attempt to frustrate the progress of SM’s proceeding to trial” and that “this step followed a discernible pattern of obstructing the determination of SM’s claim” (at [14]). At [19] the Court described LFDB’s application for an extension of time as “hopeless and his conduct plainly disqualified him from the grant of discretionary relief” in circumstances where his application “was vexatiously or improperly brought”.
LFDB did not pay the amount ordered by Ellis J on 29 August 2013 by the time specified. Thus he was therefore debarred from taking any further part in the NZ proceeding. However, LFDB did pay the requisite amount on 17 October 2013. Subsequently, on 22 November 2013, the High Court (Ellis J in SM v LFDB [2013] NZHC 3105) made an order nunc pro tunc to extend the time for payment to 17 October 2013. The effect was that LFDB was not thereafter debarred from taking part in the substantive proceeding in the High Court.
However, on 14 July 2014, the New Zealand Court of Appeal allowed an appeal by SM from the High Court’s order of 22 November 2013 (SM v LFDB [2014] NZCA 326; [2014] 3 NZLR 494). The effect was that LFDB was again debarred from taking any further part in the substantive proceeding. At [33] the Court said the following regarding LFDB’s conduct:
… We are in no doubt the respondent deliberately flouted the second unless order, knowing full well the consequences. The breach was contumacious. The respondent had the money to pay the costs. On 9 September 2013 he transferred AUD$35,000 from an Australian (sic) into a New Zealand bank account, and then those monies to fund his own legal representation, presumably including making the various applications and appeals he launch unsuccessfully following the second unless order. Ellis J was surely right to observe that the respondent continued to play “some protracted game of ‘chicken’ with the Court”.
On 6 October 2014, Ellis J published reasons for her decision dated 22 November 2013 that SM was entitled to costs in relation to various events consequent upon the making of the unless order against LFDB on 29 August 2013 (SM v LFDB [2014] NZHC 2445). At [4], her Honour noted that SM anticipated that she would meet “further resistance and delay” in bringing the proceedings to an end and that history was “certainly on her side in that regard”.

LFDB was granted leave to appeal to the Supreme Court of New Zealand from the decision of the Court of Appeal but, during the hearing on 5 December 2014, that leave was revoked (LFDB v SM [2014] NZSC 197). This was because, during the course of the hearing, the Court became aware that a further order for costs made against LFDB on 6 October 2014 had not been fully paid as at 5 December 2014. The reasons record (at [13]) that LFDB had become aware of the costs order on 20 October 2014 but that it was not served on him until 2 December 2014 and that it was then payable within 10 working days, i.e. by 16 December 2014. The reasons also record at [15] that the Court considered that the information before it “indicated that [LFDB’s] attitude to the outstanding costs order continued to be that of a recalcitrant and unreasonable litigant”. The Court concluded that the manner in which LFDB had continued to conduct the proceeding was oppressive and that it “is clear that the court system is being abused” (at [26]). Furthermore, at [27] the Court described LFDB as “gaming the court system” and that it was “intolerable for [SM] to be faced with this and inappropriate for the Court to countenance such abuse of its process”.
Accordingly, from 14 July 2014, LFDB was debarred from taking any further part in the NZ division of property and tort proceeding. The substantive proceeding was to proceed to a “formal proof” hearing in which LFDB could not participate.
On 27 January 2015, on the ex parte application of SM, a freezing order was made by the High Court directed to the assets of LFDB and various entities associated with him until 5 February 2015 or further order (the January freezing order). Under [8] of the January freezing order, third parties (including various entities associated with LFDB) were informed that they could apply to the Court by interlocutory application to discharge or vary the order upon giving notice of not less than 48 hours to SM.
On 5 February 2015, on the application of SM, the January freezing order was extended to 16 March 2015 or further order (the February freezing order). Among other things, the February freezing order precluded payments for legal costs, and precluded payments in the ordinary course of business, without the consent of SM. Paragraph 8 stated that any person (other than LFDB) who was detrimentally affected by the freezing order could apply to the Court by interlocutory application to discharge or vary the order upon three clear working days’ notice being given to SM. Counsel for LFDB, on behalf of himself, some Australian companies and a New Zealand company associated with LFDB (DBA(NZ)), had sought to make submissions in support of an application to discharge or vary the January freezing order. However, the Court concluded that the debarring order precluded LFDB from applying to vacate the freezing order. The applicants contend in this Court that counsel sought “in substance” to make submissions on behalf of the Australian and NZ companies, which had not been debarred, but the Court declined to hear him in light of the debarring order.
On 18 February 2015, DBA(NZ) applied to discharge or vary the February freezing order and sought access to documents on the Court file filed by SM in support of her application for the freezing order.
On 20 February 2015, the Court directed disclosure of the documents but later that day it revoked the order. Following a hearing on 23 February 2015, the Court proposed that the documents be released to an amicus. The Court noted that DBA(NZ) was “already in breach of the freezing orders because it has refused to provide the plaintiff with information and documents in accordance with paragraph 4E of those orders”.
On 6 March 2015, still without the documents relied upon by SM, DBA(NZ) renewed its application to vary or discharge the February freezing order. On 11 March 2015, the Australian companies applied to vacate the February freezing order, again without the documents relied upon by SM. However, without determining either application, or making orders for the release of documents to an amicus as had been foreshadowed, on 11 March 2015, without notice to the Australian and NZ companies, on the ex parte application of SM, the February freezing order was extended to 4 June 2015 or pending further order (the March freezing order). Under [10] of the March freezing order, it was stated that any person, other than LFDB, who was detrimentally affected by the order may apply to the Court by interlocutory application to discharge or vary the order upon three clear working days’ notice to SM.
On 17 March 2015, on the application of SM, the High Court (Ellis J) ordered that the Australian and NZ companies give security for costs for their applications to vary or discharge the March freezing and that, only after this, would the Court consider whether the documents filed in support of the freezing orders should be disclosed. The Court stated at [3] that if payment was not made in accordance with the orders requiring security for costs then the “applications made by the entities in question will be dismissed”. Her Honour also indicated that, if the security was paid, she wished to hear further argument on the question of whether the documents filed in support of the freezing orders should be disclosed and that she no longer proposed to appoint an amicus to assist on the issue. In the orders made that day, there is a reference to reasons being provided shortly thereafter. It is unclear whether or not reasons were given for the orders made on 17 March 2015 requiring payment of security for costs. It appears, however, that no such reasons were in fact delivered in circumstances where, on 18 March 2015, Ellis J indicated that she needed to consider whether to recall her earlier judgment requiring payment of security for costs in respect of an interlocutory application.
On 13 April 2015, the Court declined to recall the orders relating to security for costs. The Court noted that if security was provided it “would, in all likelihood, direct that the documents” be made available “but in redacted form” (the redactions not being specified). The Court stated at [4] that if payment was not made within the specified time “then the applications made by the entities in question will be stayed pending further order of this Court”. The Court added a qualification to the effect that, even if security for costs was not given, the Australian and NZ companies could seek the Court’s assistance in resolving difficulties they may experience in obtaining SM’s approval for payments necessary for their day to day business operations.
The Court noted that if such assistance was sought, any failure to inform the Court regarding prior discussions with SM would result in the qualification being revoked.
The security required was not provided by any of the relevant entities. However, on 24 April 2015, the Australian and NZ companies filed a memorandum seeking the Court’s assistance as permitted under the qualification, referring to “extremely urgent” matters causing undue hardship.
In the meantime, on 1 May 2015, the Australian and NZ companies notified the Court that they sought to be heard in the formal proof hearing in the substantive proceeding which they understood to be scheduled for 4 May 2015 if any orders might be sought that may affect their property interests. They also notified the Court that they sought to be heard on any application to renew the March freezing order, and noted that they had not received any response to their 24 April 2015 memorandum.
The formal proof hearing took place on 4 and 5 May 2015. On 5 May 2015, the Court stated its view that nothing in the formal proof hearing was likely to affect the property interests of any of the Australian or NZ companies associated with LFDB and that there was therefore no need for them to be heard in the substantive proceeding. The Court directed that SM respond to the 24 April 2015 memorandum by 6 May 2015. The Court also noted that the issue of whether the associated entities had a right to be heard in relation to the continuation of the freezing orders “will be dealt with (if necessary) closer to the date that the present orders are due to expire”.
Notwithstanding the 1 May 2015 memorandum from the Australian and NZ companies, on 3 June 2015, without notice to them, on the ex parte application of SM, the March freezing order was replaced by a further order of indefinite duration (the June freezing order). Paragraph 10 of the order stated that any person (other than LFDB and any company or trust associated with him) who was detrimentally affected by the June freezing order could apply to the Court by interlocutory application to discharge or vary the order upon giving three clear working days’ notice to SM. With specific reference to the entities who are applicants in the proceedings before this Court, the Court ordered in [10] that, in the event that any of those entities were detrimentally affected by the June freezing order “and have each paid security for costs in accordance with the Court’s orders dated 17 March and 13 April 2015”, they could apply to the Court to have the June freezing order discharged or varied upon giving three clear working days’ notice to SM.
On 3 June 2015, Ellis J published reasons for her decision dated 13 April 2015 in which she declined to alter the judgment of 17 March 2015 which required the associated entities to pay security for costs (SM v LFDB [2015] NZHC 1217). Her Honour’s judgment contains a convenient summary of the background leading up to the making of the freezing orders and the orders relating to security for costs. At [6], her Honour described information previously provided by LFDB to the Court about his travel plans as “false”, which her Honour described as underscoring “the conclusion that has previously been reached by the New Zealand courts at every level; [LFDB] is not to be trusted and deserves no indulgences”. At [9] her Honour noted that SM had filed “persuasive evidence that indicated that all the third party entities were, in reality, the alter ego of the defendant”. At [10], her Honour made reference to there being evidence which showed that both LFDB and the third party entities had failed to comply with the term of the freezing orders which required them to provide SM with certain information on request. Her Honour then noted at [11] that notwithstanding the “considerable sympathy” she had for SM’s position, “judicial instinct necessarily was that the corporate veil must be respected and that the third parties therefore had a right to be heard”.
Her Honour then described the events leading to the making of the orders on 17 March 2015 requiring security for costs. On the question of the power of the Court to make such an order in interlocutory proceedings, her Honour applied the decision of the Court of Appeal of England and Wales in CT Bowring & Co (Insurance) Ltd v Corsi Partners Ltd [1995] 1 BCLC 148; [1994] 2 Lloyd’s Rep 567 that security for costs could be ordered in such proceedings in special circumstances such as where there is a need to prevent an abuse of process. Her Honour concluded at [28] that there were “good grounds for genuine doubt” concerning the bona fides of the associated entities based on the following matters:
(a)her finding that LFDB was the alter ego of the third parties and that she had “no doubt whatsoever that he is the directing mind of each of them”;
(b)LFDB’s personal mala fides in the conduct of the litigation, which she noted had been recorded in other judgments; and
(c)the absence of any evidence to indicate that the Australian entities were suffering any operational hardship or difficulty arising from the freezing orders.
On 3 August 2015, DBA(NZ) requested that the Court deal with the 24 April 2015 memorandum as soon as possible. It repeated the request on 8 September 2015. Having heard nothing, on 18 November 2015, it sought the Court’s leave to pay the security for costs previously ordered so as to deal with the situation. Leave was required because the time specified for paying the security had lapsed on 16 April 2015, i.e. more than seven months previously.
On 20 November 2015, the Court directed SM to respond to the 18 November 2015 memorandum within 10 working days and, as to the 3 August 2015 memorandum, said that unspecified “information provided by the plaintiff following the receipt of the August memorandum” showed DBA(NZ) had not fully and properly informed the Court about prior discussions with SM. The Court also stated that, absent the payment of security for costs, the Court would not consider any substantive argument sought to be advanced by DBA(NZ).
On 26 November 2015, the Court published its reasons for judgment in the NZ proceeding (SM v LFDB [2015] NZHC 2630 – the NZ final judgment). For reasons which are not apparent from the material before this Court, Ellis J directed that the delivery time of the judgment be 2:00 pm on 27 October 2015. The judgment contains what her Honour describes at [8] as “a relatively anodyne account” of the litigation history and was expressed as omitting “many of the steps taken by [LFDB] to prevaricate, obfuscate, frustrate and obstruct the proceedings and their efficient progress”. Her Honour also referred at [57] to what she described as “the fact that [LFDB] has repeatedly failed to comply properly or completely with numerous orders for discovery and disclosure”.
The NZ final judgment was accompanied by a further ex parte freezing order, made the same day, which was expressed to continue until the NZ final judgment and any other orders to be made in those and related proceedings were satisfied (the November freezing order), and orders as to costs of the applications for all the previous freezing orders (the NZ costs judgment). No provision was made for LFDB or any company or trust associated with him to seek a variation or discharge of the November freezing order. It is part of the final orders the subject of the NZ final judgment and the NZ costs judgment which have been registered in this Court.
The NZ final judgment contains a helpful summary of the history of the litigation and sets out the Court’s findings regarding the parties’ respective assets and the Court’s orders concerning the division of the property and the payment of costs.
A copy of the NZ final judgment was not served on LFDB until 24 December 2015. By an application dated 7 March 2016, LFDB together with six other entities associated with him (with the acronyms DBA(AU), DBA(NZ) DPT, SE, BWP and LDT) sought an extension of time within which to appeal to the Court of Appeal from the NZ final judgment and a variation of the November freezing order, together with a stay of enforcement of the NZ final judgment and the appointment of LFDB as representative of the companies in the appeal.
On 10 March 2016, the Registrar of the Court of Appeal refused to accept the documents for filing, because inter alia the six applicants apart from the first applicant had not been parties in the proceeding below which produced the NZ final judgment and, accordingly, were considered to be not entitled to appeal. On 16 March 2016, the Registrar’s decision was upheld by a judge of the Court of Appeal on the basis that the six entitles associated with LFDB had no rights of appeal in proceeding to which they were not parties.
On 14 March 2016, this Court made orders for security for costs, conditional upon variation of the November freezing order to enable such payment to be made.
By application dated 21 March 2016, LFDB resubmitted the appeal papers to the Court of Appeal, without the other six applicants being mentioned as parties. On 29 June 2016, the Court of Appeal granted an extension of time for appealing until 24 March 2016 on condition that LFDB pay into Court substantial sums owing to SM by 12 August 2016. LFDB had submitted to the Court of Appeal that such a condition could not be met because of financial circumstances and, in the event, it was not. Accordingly, on 15 August 2016, the appeal to the Court of Appeal was dismissed.
The applicants’ submissions summarised
It is convenient to summarise the applicants’ submissions by reference to the three separate grounds relied upon by them in seeking to have the registered judgments set aside.
(a) Contrary to public policy
Pursuant to s 72(1)(a) of the Act, the registration of the NZ judgments must be set aside if “the court is satisfied that enforcement of the judgment would be contrary to public policy in Australia”. Repeating a submission made by them in the previous proceeding before Gleeson J (LFDB v SM in the Federal Court), the applicants contended that to enforce a foreign judgment involving a gross denial of procedural fairness is contrary to public policy. The following aspects of the process by which the NZ judgments were obtained were said by the applicants to have that character.
First, by reason of his “debarring”, LFDB was not permitted to contest or otherwise make submissions in relation to SM’s applications for any of the freezing orders or in relation to the NZ final judgment. This, so the applicants submitted, was fundamentally inconsistent with Australian law regarding procedural fairness.
They claimed that there is no analogy with the position concerning a party in contempt whose preclusion from taking a positive step in proceedings is subject to the following two qualifications. First, the preclusion lasts only so long as the party has not purged their contempt. Secondly, even while the preclusion applies, it does not stop the party from appearing on an application to purge the contempt or to set aside the order breach of which has put the party in contempt; nor does it stop the party from defending the action itself. Neither qualification applies to the debarring order applicable to LFDB.
The applicants submitted that a distinction should be drawn between striking out a defence of, and giving default judgment against, a respondent who is in continuing default of orders, as opposed to debarring from contesting any application made thereafter by another party, no matter how egregious its effect on the respondent may be.
The applicants submitted that procedural unfairness is manifested in the fact that the High Court concluded on 5 February 2015 that the January freezing order, which was made ex parte, did not give to LFDB the right to apply for its variation or discharge (citing International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319, in which Heydon J held that a provision which permitted an ex parte restraining order was invalid as repugnant in a fundamental degree to the judicial process, as it did not provide for any right to seek its dissolution).
Secondly, the applicants relied upon several further matters as highlighting the procedural unfairness to which they say they had been subjected. For example, they submitted that the revocation by the Supreme Court of New Zealand of leave to appeal concerning the debarring order compounded the unfairness in the making of the debarring order. The applicants submitted that it was “bizarre” for leave to appeal to be revoked on the basis that LFDB had not paid a costs order which, on the Court’s own reasons, was not yet due for payment.
Thirdly, the applicants complained that the refusal of the High Court on 5 February 2015 to hear counsel on behalf of the Australian and NZ companies was a separate denial of procedural fairness. Given that the debarring order applied only to LFDB, and counsel sought in substance to make submissions on behalf of the Australian and NZ companies affected by the freezing orders (who were not debarred), the basis upon which he was not heard – namely that the application was not expressed to be by the Australian and NZ companies but rather by LFDB on behalf of himself and the companies – was “sophistry”.

Further, the inability to make submissions about the freezing orders had real and adverse consequences for their form. The undertaking as to damages which was accepted by the High Court is manifestly defective, so submitted the applicants. For one thing, it provides only that SM must make good any damage suffered from the proceeds of the NZ proceeding. If she receives no proceeds, her undertaking will be worthless. For another thing, the undertaking is only to make good damage suffered by LFDB. It does not cover damage suffered by the Australian or NZ companies. The NZ freezing orders were said by the applicants to depart radically from the usual strictures of freezing orders in Australia and, indeed, in New Zealand.
Fourthly, applications having been made by DBA(NZ) on 6 March 2015 and the Australian companies on 11 March 2015 to vary or discharge the February freezing order, the Court nonetheless proceeded to hear and determine on that day an ex parte application by SM to renew that order. There was no basis either in the debarring order, or even in the approach taken on 5 February 2015, to support that course, so the applicants submitted.
Fifthly, notwithstanding the notification given on 1 May 2015 that the Australian and NZ companies sought to be heard on any application to renew the March freezing order, the Court proceeded to hear and determine an ex parte application to renew that order. That was a different matter to the Australian and NZ companies’ application to vary or discharge the extant order, for which security had been ordered but not provided. It was a fresh application by SM to extend the previous freezing order before it terminated, on which the Australian and NZ companies had sought to be heard. The applicants noted that, unlike the previous freezing orders, and contrary to r 32.7 of the High Court Rules (NZ), the June freezing order was made with no end date.
Sixthly, notwithstanding that the requirement for security for costs applied only to an application by the Australian and NZ companies to vary or discharge the orders, in March 2016 SM communicated with the Court about varying of the November freezing order without copying in the Australian and NZ companies. The applicants contended that this involved the tendentious submission by SM that the present proceedings involved LFDB “retain[ing] lawyers in … Australia … to take further steps against the plaintiff”.
Seventhly, notwithstanding that the Australian and NZ companies had not been debarred, the refusal to permit them even to see the documents upon which the freezing orders were based was said by the applicants to be “remarkable”. To require them to provide security for costs before there being even the possibility of argument as to whether they should be permitted to see the documents – and in a form with unspecified redactions – was “perverse”. That was especially so in circumstances where the ability to provide security was impeded by the very freezing orders sought to be varied or discharged.
Eighthly, the failure to respond for many months to the urgent requests of DBA(NZ) for assistance in relation to the freezing orders compounded the unfairness in being unable to be heard in relation to the extension of those orders or the documents upon which they were based. Indeed, the Court did not ever determine those requests.
Ninthly, the Australian and NZ companies specifically sought to be heard in the “formal proof” hearing if the orders which might be made could affect their property interests. They were assured by the Court that the orders would not do so. However, they claim that paras 10, 11, 21(a) and 26–28 of the NZ final judgment plainly do affect their interests.
Tenthly, to compound the previous point, the Court of Appeal refused to permit the Australian and NZ companies to be parties to the appeal, even though they were affected by the orders and a ground of appeal was directed to the refusal to permit them to be heard at trial. In any event, given the financial circumstances disclosed in LFDB’s evidence, the requirement to provide security rendered any prospect of appeal nugatory.
(b) Proceeding in rem about moveable property in Australia
Section 72(1)(c) of the Act provides that registration of a judgment must be set aside if “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” and “that property was, at the time of the proceeding in the original court or tribunal, not situated in New Zealand”.
The applicants submitted that by the time of the first of the NZ freezing orders, the subject matter of the NZ proceeding was entirely moveable property. Real property in Australia was not within the Court’s jurisdiction and the real properties in New Zealand had both been sold. The bulk of the moveable property is not situated in New Zealand, as was said to be evidenced in [7] of the NZ final judgment.
The applicants submitted that the NZ proceeding is properly to be characterised as a proceeding in rem and that the hallmark of such a proceeding is the effect of the orders on third parties, not merely the parties to the proceeding. A classic example is an order effecting the disposition of a thing. While some of the final orders simply operate to impose inter partes monetary obligations, others affect dispositions of property in a way which is binding on third parties (in some cases expressly so): see paras 3, 4, 9(a), 9(c), 10, 11, 12, 13 and 21(a) of the final orders. The PR Act expressly permits orders that affect third parties.
The applicants submitted that there is no objection to the characterisation of the NZ proceeding as a proceeding in rem the subject matter of which is movable property not situated in New Zealand. The applicants contended that statements may be found that similar kinds of proceeding in Australia under the Family Law Act 1975 (Cth) are to be regarded as in personam and not in rem. The origin of such statements appears to be cases made prior to the insertion into the Family Law Act of provisions permitting the Family Court to make orders binding third parties.
(c) Liability to conviction for contempt in New Zealand
Pursuant to s 68(1) of the Act, this Court is required to register the NZ final judgment only if it is a “registrable NZ judgment”. Section 66 defines when a judgment is a registrable NZ judgment. Relevantly, s 66(2) provides that a judgment is not a registrable NZ judgment if “it wholly or partly … (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”.
The applicants contended that an order, contravention of which exposes a person to conviction for contempt in New Zealand, falls within s 66(2)(i). Mere failure to comply with a money judgment will not lead to an exposure for conviction for contempt in New Zealand. However, the New Zealand final judgment contains orders which are not mere money judgments: paras 9(e)(i), 9(f), 34–37 and 40. It follows that the New Zealand final judgment is partly an order that, if contravened, will make LFDB liable to conviction for contempt in New Zealand. It is therefore wholly unable to be registered, so submitted the applicants.
The respondent’s submissions summarised
(a) The public policy exception
In her outline of written submissions, the respondent submitted that the public policy exception has a high threshold and does not embrace a denial of natural justice by the Court in the overseas jurisdiction. In support of that initial contention, the respondent relied upon the following matters.
First, the regime established by the Act shares similarities with the Foreign Judgments Act 1991 (Cth) (Foreign Judgments Act) yet goes further by permitting (for example) the registration of non-monetary judgments. This extension of the existing principles was described by the respondent as a consequence of the legislative recognition of a higher level of reciprocity, confidence and trust between the Australian and New Zealand governments.
That confidence and trust was said by the respondent to be reflected in the text of the Treaty to which the Act gives effect:
(a)The Preamble to the Treaty provides:
ACKNOWLEDGING each Party's confidence in the judicial and regulatory institutions of the other Party,
(b)Article 2 of the Treaty provides:
The objective of this Agreement to streamline the process for resolving civil proceedings with a trans-Tasman element in order to reduce costs, improve efficiency, and minimise existing impediments to enforcing certain judgments and regulator sanctions.
Secondly, the respondent relied upon the Explanatory Memorandum to the Bill which described the public policy exception as follows (at [148]):
The judgment must be set aside if its enforcement in Australia would be contrary to public policy. Under general private international law principles, a judgment may be contrary to public policy if it was obtained in a manner inconsistent with the law of the country of registration (for example by distress or undue influence), or is founded on a law that is unacceptable to the country of registration. This is intended to be a high threshold.
The Working Group, which made recommendations preceding to the legislation, considered the scope of the public policy exception. The Working Group's discussion paper considered which of the usual grounds under the Foreign Judgments Act and the Reciprocal Enforcement of Judgments Act 1934 (NZ) should be matters for the enforcing court as opposed to the Court of original jurisdiction. The Working Group said (emphasis added):
While there is no problem with matters such as fraud or natural justice going back to the original court (both Australia and New Zealand would have confidence in the decision of the other's courts on these matters), public policy considerations may be more difficult... While a high threshold must be met for something to be ‘contrary to public policy’, and the courts have only rarely refused enforcement on this ground, there may be benefit in ensuring that the proposed regime does not cut across different public policy concerns in Australia and New Zealand.
The Working Group recommended that “a judgment could only be refused enforcement in the other country on public policy grounds. Other grounds, such as breach of natural justice, would have to be raised with the original court”.
The respondent submitted that it should be assumed that the Act adopted this recommendation by the Working Group. Had the legislature intended denial of natural justice to be a subset of the public policy ground, it could have adopted the approach in the International Arbitration Act 1974 (Cth), which clarifies the scope of its public policy exception, and provides (without limitation) that the “enforcement of a foreign [arbitration] award would be contrary to public policy if (a) the making of the award was induced or affected by fraud or corruption; or (b) a breach of the rules of natural justice occurred in connection with the making of the award” [at 7A].
In Norsemeter Holding AS v Pieter Boele (No 1) [2002] NSWSC 370 (Norsemeter), Einstein J expressly accepted at [43] the following submission of the plaintiff in that case:
Whilst a denial of natural justice is an accepted ground of defence to the enforcement of a foreign judgment, it adds nothing to the Defendant's case on natural justice to invoke public policy.
In Norsemeter, Einstein J considered circumstances in which the defendant to judgment enforcement proceedings had failed to appeal the foreign judgment due to the default or lassitude of his foreign lawyer. At [41] Einstein J rejected the proposition that there had been in those circumstances a denial of natural justice:
To my mind there is clear substance in the submission of the plaintiff's counsel to the effect that in this state of conflict of principle it is necessary for the Court to defer to the need to protect the regular adherence to the practices and procedures of courts of law so as to avoid an injustice to a party which observed those practices and procedures. Regrettably this must be at the expense of relevant prejudice to a party who fails to observe those practices and procedures albeit without personal fault.
Where, as here, the legislature has seen fit to turn its attention to a distinction between considerations of natural justice (which should be dealt with by the courts of New Zealand) and public policy, it becomes clear that the invocation of the public policy exception is to be limited to the most egregious examples of inconsistency with Australian public policy, so submitted the respondent.
The Explanatory Memorandum to the Bill expressly mentions, by way of example of a public policy exception, a judgment which was obtained by distress or undue influence [at 148]. That is consistent with the judicial approach which frames the public policy ground for resisting enforcement at common law or under the Foreign Judgments Act.
The respondent submitted that decisions dealing with the public policy exception uniformly reveal that courts will be “slow” to invoke the exception. It is, in every sense of the word, exceptional.
(b) The “unless orders”
The respondent described the unless orders as a legitimate response by New Zealand courts to repeated and flagrant conduct of the first applicant.
Unless orders exist in other jurisdictions, including the United Kingdom (see, for example, Re Jokai Tea Holdings Ltd [1993] 1 All ER 630; CIBC Mellon Trust Co v Stolzenberg [2003] EWHC 13; [2004] EWCA Civ 827; Hytec Information Systems Ltd v Coventry City Council [1997] 1 WLR 1666 and JSC BTA Bank v Ablyazov [2012] EWCA Civ 1411).
The respondent submitted that late compliance with an unless order does not alter the effect of the order (see Thevarajah v Riordan [2015] UKSC 78).
Unless orders are also recognised in Europe. For example, in Gambazzi v DaimlerChrysler Inc Canada [2010] QB 388, the European Court of Justice found that a judgment obtained by default in the absence of a defendant who was debarred following an unless order was enforceable under the Brussels and Lugano Conventions. The Court held that in appropriate circumstances a national Court could legitimately respond to repeated breaches of Court orders by an 'unless' order, and thereafter debarment. A default judgment that was granted in such circumstances did not contravene any rule of public policy.
(c) The conduct of the first applicant
The respondent submitted that LFDB has shown himself to be a litigant who ignores orders and abuses court processes. The respondent drew attention to multiple criticisms made of the first applicant’s conduct by various New Zealand Courts, some of which are noted in the summary of the history of the litigation above.
The respondent made the following responses to various other claims by the applicants:
(a)As to the claim that the other applicants were denied procedural fairness on 5 February 2015 when the High Court declined to hear counsel who appeared for them as well as for LFDB, the respondent contended that the Court found that the LFDB was acting through those entities.
(b)As to the applicants’ claim that the Court renewed the February freezing order on 11 March 2015 on an ex parte basis even though the New Zealand company had filed an application on 6 March 2015 to vary or discharge that order, the respondent submitted that the New Zealand company had decided not to proceed with the hearing fixed for its application.
(c)As to the matter raised in [36] above and the notification given to the Court by the entities associated with LFDB that they sought to be heard on any application to renew the March freezing order, the respondent submitted that this notification was given in respect to “any further freezing order”, and accordingly to the extent they sought to be heard on any further application for freezing orders, they remained subject to the orders requiring security for costs.
(d)As to the applicants’ complaint that the associated entities were not provided with a copy of SM’s communication to the Court regarding a variation of the November freezing orders, the respondent said that the Court had given an express direction to the effect that the document not be distributed, as it had been provided to lawyers for DBA(NZ) in error.
(e)As to the matters set out in [62] and [63] above, the respondent submitted that the alleged injustice suffered by the companies and trusts in respect of the freezing orders was disposed of by Gleeson J in LFDB v SMin the Federal Court.
(d) Proceedings in rem
The respondent submitted that the New Zealand proceedings were not proceedings in rem, but were a classic example of in personam proceedings. The “subject matter” of those proceedings was not “moveable property”, but was instead “the entirety of the property rights between the parties to the failed relationship in accordance with the system of law by which the parties were domiciled at the time of the relationship and its breakdown”. A proceeding in rem is not apt to describe proceedings involving two parties to a personal relationship by which their property is finally distributed between them. The applicants’ position was said to be inconsistent with Australian caselaw which establishes that proceedings under s 79 of the Family Law Act 1975 (Cth) are proceedings in personam. Furthermore, the respondent submitted that Burden v Ainsworth [2004] NSWCA 3; 59 NSWLR 506 (Ainsworth) at [16] does not support the applicants’ submissions.
(e) Contempt
The respondent submitted that the legislative intention is clear, which is to limit registration of judgments to civil judgments and not to include criminal law judgments.
(f) Proper parties to proceeding
The respondent submitted that DBA(AU), DBA(AU) as trustee for DPT, SE and BWP are not proper parties to this proceeding in circumstances where:
(a)paragraph 26 of the final orders in proceedings CIV-2001-404-6851 and CIV-2011-404-4245 fixed the costs payable by these and other entities to SM at NZ$38,381.24. That amount (and any interest owing on that amount) was said by the respondent to be not included in the total amount that was registered as a judgment in this Court in proceeding NSD 1665/2015; and
(b)on or about 24 December 2015, LFDB, DBA(AU), DBA(AU) as Trustee for DPT, and BWP were served with formal notice of the registration on 16 December 2015 of both the relevant New Zealand judgments and those notices made clear that it is LFDB who is the judgment debtor and not the other applicants.
During the course of the hearing, Dr Ward SC (who appeared with Dr Tully for the respondent) contended that there was a covering letter which accompanied the original application to register the judgment in NSD1665/2015, which letter he said made it very clear that no relief was sought against the companies. It was subsequently acknowledged that in fact there was no such letter, but it was submitted that it should be inferred from the following documents that LFDB and the Australian and New Zealand entities associated with him who were parties to the proceeding had notice of the satisfaction of orders made against those parties:
(a)Annexure B to the affidavit of Kiera Lee Peacock affirmed on 15 January 2016, which is a document entitled “Notice to liable persons of registration of a New Zealand judgment under the Trans-Tasman Proceedings Act 2010”, which set out the amounts owing;
(b)various emails and attached correspondence sent by SM’s New Zealand lawyers to lawyers representing LFDB and the corporate entities, which attached Ellis J’s orders of 26 November 2015 and which advised that the amount of $38,430.50 (pursuant to order 26) was debited from the bank account in DBA (NZ)’s name; and
(c)LFDB’s affidavit sworn 21 March 2016, which includes a statement that on 24 December 2015 LFDB was provided by mail with a copy of Ellis J’s decision dated 26 November 2015 and that earlier on 22 December 2015 LFDB received an email from SM’s lawyers which attached the 26 November 2015 judgment.

The applicants raised no objection to the respondent reopening her case so as to tender the material described above.
Applicants’ submissions in reply summarised
The applicants reiterated that, consistently with the position under the Foreign Judgments Act, a gross denial of procedural fairness falls within the public policy exception. Furthermore, they submitted that acceptance of this position would not create an inconsistency with the views of the Trans-Tasman Working Group relied upon by the respondent and, in any event, the issue turned on the proper construction of the Act and not the subjective views of that Working Group.
While acknowledging the operation of “unless” orders in various overseas jurisdictions, the applicants sought to distinguish the authorities cited by the respondent in respect of such orders on the basis that none were similar to the facts here, where there was said to be a gross denial of procedural fairness.
The applicants also made detailed submissions in reply to the contentions raised by the respondent concerning the criticisms by various New Zealand courts of LFDB’s conduct. It is unnecessary to summarise those submissions because I do not consider that the truth or otherwise of those criticisms is a matter which requires determination in these proceedings (see [105] below).
On the issue of the meaning of the reference in s 72(1)(c) of the Act to a “proceeding in rem”, the applicants submitted that the expression should be construed as not being confined to a proceeding against a thing such as an action in admiralty against a ship or cargo but should be construed as referring to proceedings which yield a judgment in rem.
On the issue of LFDB’s liability to conviction for contempt in New Zealand, the applicants submitted that the Court should adopt and apply Gleeson J’s judgment in LFDB v SMin the Federal Court at [102]-[106], where her Honour upheld a submission that the freezing orders were not registrable judgments because they involved an order which, if contravened by the person to whom they were directed, would make that person liable to conviction for an offence in the place where the order was made. The applicants submitted that her Honour’s view on the ambit of s 66(2)(i) was not plainly wrong and should be followed here.
As to the question of who were proper parties in the proceeding, the applicants contended that parts of the NZ final judgment as registered affected the Australian companies, who are therefore “liable persons” within the meaning of s 4 of the Act. Accordingly, those companies have standing under s 72(1) to apply to have the judgment set aside and are proper parties.
Consideration and determination
It is convenient to deal separately with the three grounds relied upon by the applicants in seeking to have the registered judgments set aside.
(a) Contrary to public policy
Although the respondent appeared initially to resist the applicants’ contention that a gross denial of procedural fairness could amount to a judgment being regarded as contrary to public policy, during oral address her senior counsel seemed to accept that proposition. In my respectful view, he was correct to do so. There is undoubtedly a high threshold to setting aside the registration of a judgment as contrary to public policy, but I see no sound reason for excluding from that concept a judgment obtained in circumstances involving a gross denial of procedural fairness according to relevant principles in this jurisdiction. I respectfully adopt and apply the views expressed by Tamberlin J in Stern v National Australia Bank [1999] FCA 1421 (Stern) where, at [143], in considering the scope of the contrary to public policy doctrine at common law, his Honour said (emphasis added):
The thread running through the authorities is that the extent to which the enforcement of the foreign judgment is contrary to public policy must be of a high order to establish a defence. A number of the cases involve questions of moral and ethical policy; fairness of procedure, and illegality, of a fundamental nature.
Similarly, in Bouton v Labiche (1994) 33 NSWLR 225, Kirby P said at 234:
The interests of comity are not served if the courts of the common law are too eager to criticise the standards of the courts and tribunals of another jurisdiction or too reluctant to recognise their orders, which are, and remain, valid by the law of the domicile …
Nevertheless, the courts of the common law … have reserved to themselves the right to refuse to recognise decrees and orders of foreign courts and tribunals … where:
(a) the order impugned offends against local ideas of substantial justice … ; or
(b)the decree or order has been obtained in the foreign court or tribunal contrary to the requirements of procedural fairness or natural justice … .
I do not consider that any of the extrinsic materials relied upon by the respondent require a different approach. In particular:
(a)I accept the applicants’ submissions in reply that the views expressed by the Working Group did not address a gross denial of procedural fairness and, in any event, the issue turns on the proper construction of the relevant provisions of the Act and not the subjective views of the Working Group;
(b)merely because the public policy exception is expressed as is in the Act and not in the terms used in the International Arbitration Act 1974 (Cth) is not determinative. Having regard to the position at common law as described in Stern, I see no reason why there needed to be an explicit reference to procedural unfairness if it was intended that this concept be included in the public policy exception; and
(c)the comments of Einstein J in Norsemeter were directed to the particular circumstances of that litigation and are not determinative of the issue here.
In applying the notion of a gross denial of procedural fairness as an aspect of the doctrine of contrary to public policy, I consider that helpful guidance is obtained from the following observations of Lindley MR in Pemberton v Hughes [1899] 1 Ch 781 at [790] to [791] which, although directed to the recognition of a foreign judgment at common law, also inform the proper approach under the Act:
If a judgment is pronounced by a foreign Court over persons within its jurisdiction and in a matter with which it is competent to deal, English Courts never investigate the propriety of the proceedings in the foreign Court, unless they offend against English views of substantial justice. Where no substantial justice, according to English notions, is offended, all that English Courts look to is the finality of the judgment and the jurisdiction of the Court, in this sense and to this extent - namely, its competence to entertain the sort of case which it did deal with, and its competence to require the defendant to appear before it. If the Court had jurisdiction in this sense and to this extent, the Courts of this country never inquire whether the jurisdiction has been properly or improperly exercised, provided always that no substantial injustice, according to English notions, has been committed.
The real issue is whether the Court is satisfied that there has been a gross denial of procedural fairness so as to attract the public policy exception. In considering this issue it is important to bear in mind the need for judicial self-restraint, as is highlighted in the passage immediately above. For the following reasons I am not satisfied that a gross denial of procedural fairness has been demonstrated in respect of either judgment.
Insofar as LFDB personally is concerned, I reject his submission that the making of the relevant unless orders which resulted in his debarring from participating in the substantive proceedings in New Zealand involved gross procedural unfairness to him. Merely because “unless orders” are unknown in Australia does not mean that they are contrary to public policy. The Court must recognise that merely because a different approach is taken to a problem in an overseas jurisdiction, such as New Zealand, does not mean that the approach is contrary to public policy. As Cardozo J said in Loucks v Standard Oil Co of New York (1918) 224 NY 99; 120 NE 198 at [201] to [202]:
A right of action is property. If a foreign statute gives the right, the mere fact that we do not give a like right is no reason for refusing to help the plaintiff in getting what belongs to him. We are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home ... The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness. They do not close their doors unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.
Many of the relevant principles which guide the consideration of whether a foreign judgment is contrary to public policy are reflected in the following extracts from Whelan J’s judgment in Jenton Overseas Investment Pty Ltd v Townsing [2008] VSC 470; 21 VR 241 which I consider are also apposite in the specific context of applying that exception under the Act (footnotes omitted):
20It seems to me that the authorities reveal that the courts are slow to invoke public policy as a ground for refusing recognition or enforcement of a foreign judgment. There are few instances in which a foreign judgment has not been recognised or enforced on this ground. There are good reasons for this. There are, as Kirby P puts it, the “interests of comity” to maintain. The respect and recognition of other sovereign states' institutions is important. This is especially so when acting under the Foreign Judgments Act where the registration and enforcement procedures apply on the basis that there is “substantial reciprocity of treatment” for Australian judgments in the foreign forum. There is also a need for caution because of the inherent volatility of the notion of “public policy”. As Atkinson J points out in De Santis v Russo, “what is contrary to public policy in one era might not be considered contrary to public policy in another”.
21This is not a case where what is suggested is that there has been a denial of natural justice in the sense that there was no notice given or no opportunity to participate in the hearing. It is worth noting, however, that even where that is the basis for the public policy ground the task of the applicant in persuading the court not to enforce the foreign order is a difficult one, as exemplified by the judgment of Einstein J in Norsemeter Holdings AS v Boele (No 1). What is submitted here is that the public policy ground is enlivened because there has been substantial injustice.
22I accept that substantial injustice, either because of the existence of a repugnant law or because of a repugnant application of the law in a particular case, may invoke the public policy ground. But it will only do so where the offence to public policy is fundamental and of a high order. For the public policy ground to be invoked in this context enforcement must offend some principle of Australian public policy so sacrosanct as to require its maintenance at all costs.
I also respectfully agree with the following observations of Atkinson J in the Supreme Court of Queensland in De Santis v Russo [2001] QSC 065; 27 Fam LR 414 where, in the context of considering the public policy exception under the Foreign Judgments Act concerning orders made by an Italian court as to the maintenance of children which differed in several respects from comparable laws in Australia (footnotes omitted), his Honour said at [18]:
Certainly these aspects of Italian law are different to Australian law but much more must be shown than that the applicable legal rules are different. Different jurisdictions within Australia, let alone in foreign countries, adopt different solutions to similar problems without suffering the ignominy of being described as contrary to public policy. The relevant Australian law has itself undergone significant change during the course of the twentieth century…
As is evident from the summary of the respondent’s submissions above, there are several overseas jurisdictions, including New Zealand, where powers are conferred on a court to make an unless order in appropriate circumstances.
I accept the respondent’s submission that, in these circumstances, and having regard to the high threshold, this Court should be hesitant to conclude that the making of unless orders in the New Zealand litigation was contrary to public policy. The making of the unless orders debarred LFDB from participating in the proceedings were made in circumstances which were fully explained by Ellis J. I reject the applicants’ submission that the making of those orders is fundamentally inconsistent with Australian law concerning procedural fairness. It is to be recalled that the principles of procedural fairness require that a person whose interests are likely to be adversely affected is entitled to be generally given a reasonable opportunity to be heard (see Kioa v West [1985] HCA 81, 159 CLR 550). LFDB lost that opportunity because of his failure to comply with the unless orders.
In my view, none of the other matters raised by the applicants amounts to such a gross denial of procedural unfairness as to attract the contrary to public policy exception. First, as to the complaints regarding the decision of the Supreme Court of New Zealand to revoke the leave to appeal previously granted to LFDB, detailed reasons were given by that Court in LFDB v SM [2014] NZSC 197, as noted above.
LFDB complained that it was “bizarre” to revoke leave to appeal on the basis that he had not paid a costs order which was not yet due for payment. This complaint misstates the true position. As the Supreme Court noted at [13] of its reasons for judgment, LFDB was required to pay the particular costs order within ten working days of the order having been served on him on 2 December 2014. That period had not lapsed when the Supreme Court decided to revoke leave on 5 December 2014. Significantly, however, that decision was made in circumstances where the Court was informed by LFDB’s counsel that he did not have the financial means to pay the outstanding costs order within the stipulated period and that he would not do so. Accordingly, the fact that the period for payment had not then lapsed was beside the point because LFDB was adamant that he could not and would not pay the outstanding amount. The Supreme Court stated at [14] that these circumstances were previously unknown to it prior to the hearing on 5 December 2014 and at [15] that the information indicated that LFDB’s attitude to the outstanding costs order “continued to be that of a recalcitrant and unreasonable litigant”. As noted above, this information contributed to the Court’s conclusion that LFDB was continuing to conduct the proceedings in an oppressive fashion and which amounted to the court’s system being abused. Although LFDB then made an offer during the course of the hearing on 5 December 2014 to pay the outstanding costs, the Supreme Court was not persuaded by this offer which it described as coming too late and in circumstances where it was plain that LFDB always had the means to comply with the unless orders in issue. Having regard to the detailed and careful reasoning of the Supreme Court, as well as the need for judicial self-restraint, I reject the submission that the decision to revoke leave to appeal compounded the alleged unfairness resulting from the debarring order.
Secondly, I reject the applicants’ submission that Courtney J’s refusal to hear counsel on behalf of the Australian and NZ companies on 5 February 2015 involved procedural unfairness, let alone gross procedural unfairness. It was reasonably open to Courtney J to conclude that the companies had no right to be heard in circumstances where the application to vary or discharge the January freezing order was expressed as having been brought by LFDB “on behalf of himself and associated companies and trusts”, as opposed to those entities bringing the application themselves. At that time, LFDB was debarred and, therefore, had no right to bring an application on behalf of himself and other entities.
It is also significant to note that, as Courtney J observed at [5], it was open to those entities to bring an application in their own right in respect of the January freezing order and that, if this occurred, they would be dealt with in the normal way. This falls far short of a gross denial of procedural fairness of which the applicants complain.
Thirdly, the applicants’ criticisms of the form of the freezing orders, including the adequacy of the undertaking, take the matter no further insofar as gross procedural unfairness is concerned. As has been emphasised above, the Court must exercise appropriate restraint in reviewing an overseas judgment with a view to determining whether it is contrary to a public policy.
Fourthly, as to the applicants’ criticism of the High Court proceeding on 11 March 2015 to hear and determine SM’s ex parte application which led to the March freezing order without hearing from the Australian or New Zealand companies and notwithstanding that DBA(NZ) had filed an interlocutory application seeking to discharge or vary the February freezing order, no gross denial of procedural fairness has been demonstrated in circumstances where the applicants did not dispute the respondent’s submission in this Court that DBA(NZ) made a decision not to proceed with the hearing fixed for its interlocutory application. Moreover, as noted in [31] above, the relevant entities could have sought to have the orders varied or discharged by giving notice to SM.
Fifthly, as to the applicants’ complaint concerning the fact that they were not heard at the formal proof hearing on 5 May 2015, the Court must be mindful of its limited role in reviewing the actions and findings of the overseas court, including in this case the findings of Ellis J which are summarised in [37] above. Her Honour’s stated view at that time was that the matters before her were not likely to affect the property interests of the related entities and that there was therefore no need for them to be heard under s 37 of the PR Act. Her Honour stated that, if that position changed, notice would be given to the entities and they would be afforded an appropriate opportunity to be heard. Her Honour did not make any freezing order on 5 May 2015. The June freezing order was made on 3 June 2015 without hearing from the entities but, as noted above, provision was made in [10] of those orders for the entities to apply to have that order discharged or varied if they were detrimentally affected by it and each had paid security for costs in accordance with the Court’s orders dated 17 March and 13 April 2015. I see no gross denial of procedural unfairness in those circumstances.
Sixthly, nor was there any gross procedural unfairness in the fact that the relevant entities were not provided with a copy of SM’s communication to the Court regarding a variation of the November freezing orders, in circumstances where the applicants did not dispute in this Court the respondent’s claim that the High Court had issued an express direction that the document not be distributed in circumstances where a copy had been provided erroneously to DBA(NZ)’s legal representative. This Court cannot take the matter any further noting that no such direction was included in the materials before the Court.
Seventhly, I reject the applicants’ complaint that it was “perverse” to require them to provide security for costs as a precondition to the hearing of any argument as to whether they should have access to the documents upon which the freezing orders were based. Justice Ellis provided a comprehensive and rational explanation in her reasons for judgment dated 3 June 2015 as to why the security for costs orders were made on 17 April 2015 when she confirmed the earlier orders for security. There was no gross procedural unfairness. It might also be noted that Gleeson J concluded at [117]-[118] that the inability of the associated entities to obtain the documents except on payment of security of costs did not of itself constitute denial of procedural fairness. I respectfully agree with that view.

Eighthly, as to the complaint that the Court never determined the requests of DBA(NZ) for assistance in relation to the practical effects on them of the freezing orders, I do not consider that this conduct is properly characterised as a gross denial of procedural fairness. If in fact the conduct occurred, it is properly characterised as a failure to deal with a request made by a party for reasons which are not explained in the materials before this Court. I see no basis for concluding in these circumstances that there was no gross procedural unfairness. The limited material before this Court does not justify the making of such a serious finding.
Ninthly, as to the applicants’ complaints concerning the alleged injustice suffered by them because of the impact of the freezing orders upon their interests, I do not consider that this complaint adds anything to the matters raised and discussed above. Furthermore, these complaints are specifically directed to the freezing orders, which were the subject of Gleeson J’s judgment in LFDB v SM in the Federal Court, and not to the judgments which are sought to be set aside here.
Tenthly, as to the complaints’ regarding the ruling of the Court of Appeal not to hear the Australian and New Zealand companies, no gross procedural unfairness has been established. Bearing in mind the need for judicial self-restraint in reviewing that ruling, I see no substantial unfairness in the view which was taken that those parties had no standing in the appeal because they were not formal parties to the proceeding below.
In the light of my conclusion that no gross procedural unfairness has been demonstrated so as to attract the contrary to public policy exception, it is unnecessary to determine the respondent’s claim that the applicants apart from LFDB are not proper parties to the proceedings in this Court.
(b) Proceeding in rem or in personam?
For the following reasons I reject the applicants’ claim that the registered judgments should be set aside on the ground provided for in s 72(1)(c) of the Act, i.e. the New Zealand proceeding was a proceeding in rem the subject matter of which was moveable property which was situated elsewhere than New Zealand. The terms of s 72(1)(c) are set out in [7] above.
Section 72(1)(c)(i) provides for two types of distinct judgments, namely:
(a)a judgment given in a proceeding the subject matter of which was immoveable property; and
(b)a judgment given in a proceeding in rem the subject matter of which was moveable property.
If the relevant judgment fits either of those descriptions, for the relevant ground to apply there is an additional requirement which must be satisfied, namely that the property in question (whether it be immoveable or moveable) was not situated in New Zealand at the time of the proceeding in that jurisdiction.
The applicants’ case was predicated on the proposition that, by the time of the making of the first of the freezing orders, the subject matter of the proceeding was entirely moveable property. This was said to be because the New Zealand courts lacked jurisdiction over real property in Australia and the properties situated in New Zealand (known as B Street and M Street, both in Devonport, Auckland) had by then both been sold.
It appears that the position in New Zealand under the PR Act is that the proceeds of the sale of immoveable property would normally be treated as moveable property and that whether there is jurisdiction over the property under s 7 of the PR Act is determined as at the date the hearing takes place and not some earlier time (see Shepherd v Shepherd (Unreported, High Court of New Zealand, Asher J, 23 October 2008).
Of course, the position in New Zealand regarding the proper construction and application of s 7 of the PR Act does not determine the proper construction of s 72(1)(c) of the Act. The construction of that provision needs to take account of the fact that the provision applies to a potentially wide range of proceedings in New Zealand, including but by no means limited to proceedings under the Act. It may also be significant that, while s 72(1)(c)(i) refers to a judgment having been “given in a proceeding”, s 72(1)(c)(ii) refers to the requirement that the property (whether moveable or immoveable) “was at the time of the proceeding in the original court or tribunal, not situated in New Zealand”. This may indicate that the question of whether or not the property was situated in New Zealand is not necessarily confined to the situation as at the date the hearing takes place, but might relate to some other “time of the proceeding”. It is, however, unnecessary to express a concluded view on this potentially complex matter. That is because, even if the applicants’ characterisation of the proceeding is accepted (i.e. that when the final orders were made the subject matter of the proceeding was entirely moveable property), for a registered judgment to be set aside on the basis of the ground specified in s 72(1)(c) it must also be demonstrated that the judgment was given in a proceeding in rem.
For the following reasons, I do not accept that either of the registered judgments should be so characterised. I consider that the better view is that orders made in proceedings concerning matrimonial property division are orders in personam and are recognisable and enforceable according to the principles applicable to judgments in personam. The position in Australia, with reference to s 79 of the Family Law Act 1975 (Cth), is reflected in decisions such as In the Marriage of KB and G Wallman (1981) 7 Fam LR 945 at 950 and In the Marriage of Wilkinson [2005] Fam CA 430; 33 Fam LR 373 at [67]). In Chen v Tan [2012] Fam CA 225 at [17] Kent J said:
However, a Court exercising jurisdiction under the Act in family law exercises jurisdiction in personam and not in rem. There is therefore no offence to the Mozambique Rule for the exercise of jurisdiction with respect to foreign land. Thus, because proceedings for the adjustment of property rights pursuant to s 79 of the Act are in personam, an Order for one party to transfer title to real property situated overseas is not an exercise of jurisdiction in respect of title to, or possession of, foreign land, but an Order in personam against that party. Likewise, Orders for enforcement, including in relation to property located overseas, are made in personam.
I do not consider that the applicants’ position is supported by Ainsworth upon which they relied. The discussion in that case of what constitutes a judgment in rem was in an entirely different context. The question was whether a finding by the Licensing Court on an application for a poker machine licence that Mr Ainsworth was a fit and proper person to be interested in or associated with a holder of such a licence was an order of the Court constituting a judgment in rem and whether a finding as to the status of that person also operated in rem. The issue arose in the context of a defamation proceeding and whether the appellant was precluded from pleading truth and contextual truth because of that finding made by the Licensing Court. Justice Ipp (with whom Sheller and Giles JJA agreed) held at [16] that the Licensing Court’s order granting the licence operated in rem and was conclusive against the world, but the finding that Mr Ainsworth was a fit and proper person to be interested in the Licensee did not operate in rem. In brief, it was held that the order of the Court constituted a judgment in rem, but the finding did not.
It is important to appreciate the ordinary meaning of a judgment in rem. In Washington H. Soul, Pattinson & Co Ltd v Ogilvy (1954) 55 S.R. (NSW) 143, Street CJ, Maxwell J and Roper CJ in Eq described a judgment in rem as being conclusive against all the world. Their Honours approved the following definition from Smith’s Leading Cases, 13^th ed. (1929), vol 2 at pages 666-667 (emphasis added):
A judgment in rem… [is] an adjudication pronounced (as indeed its name denotes) upon the status of some particular subject matter by a Tribunal having competent authority for that purpose. Such an adjudication, being a most solemn declaration from the proper and accredited quarter that the status of the thing adjudicated upon is as declared, concludes all persons from saying that the status of the thing adjudicated upon was not such as declared by the adjudication.
There is a discussion of the meaning of “status” in Ainsworth at [24]-[27]. The Court approved the proposition that the status of a person or thing is “the jural relation of the person, or thing, to the world generally” (at [25], emphasis added).
The PR Act confers powers on the court in dividing relationship property to make orders under ss 25 and 33. The powers are broadly similar to those conferred upon the Family Court of Australia under the Family Law Act. It is evident that, in both cases, orders may be made which affect third parties. In New Zealand, third parties who have an interest in property which is affected by an order under the PR Act have a right to be heard in the circumstances provided for in the PR Act. Merely because there is or may be non-compliance with s 37 and/or a third party who is affected by an order is not heard before the order is made does not mean that a relevant order affecting such a person ceases to have the quality of an order in personam.
The registered judgments the subject of these proceedings are not judgments in rem because the relevant orders bind only the parties to those proceedings and to the other entities to whom the final orders are directed. The orders are not conclusive against all the world. Rather, they are properly to be considered as orders made in personam. Ainsworth provides no support for the applicants’ case. Indeed, the discussion therein of the concept of a judgment in rem points to the contrary.
(c) Does s 66(2)(i) of the Act apply?
I do not accept the applicants’ claim that the NZ final judgment should be set aside because the exception in s 66(2)(i) of the Act applies. As noted above, the essence of the applicants’ claim is that the NZ final judgment should not have been registered because contravention by LFDB of those parts of the final orders which directed him to do specified things, such as return the Plaza artefacts to SM within 28 days at his personal expense (order 9(f)) would render him liable to conviction in New Zealand for the offence of contempt of court. In support of this claim, the applicants urged the Court to adopt and apply the views expressed on the ambit of this provision by Gleeson J in LFDB v SM in the Federal Court.
My reasons for not accepting that claim are as follows. First, it is far from clear that, as a matter of statutory construction, contempt of court falls within the ambit of s 66(2)(i). The notion of a person being charged with contempt of court, at least in Australia, does not sit comfortably with the concepts of “conviction” for an “offence” which appear in the text of that provision, even where the case is one of criminal contempt (see generally the discussion of civil and criminal contempt in Australia in Australasian Meat Industry Employees’ Union v Mudgimberri Station Pty Ltd [1986] HCA 46; 161 CLR 98 at 106 ff per Gibbs CJ, Mason, Wilson and Deane JJ and Witham v Holloway [1995] HCA 3; 183 CLR 525 at 530 ff per Brennan, Deane, Toohey and Gaudron JJ).
Secondly, and perhaps most tellingly of all, acceptance of the applicants’ construction would mean that any NZ judgment which included an order for injunctive relief would fall within the exception and prevent the judgment from being a “judgment” and a “registrable NZ judgment” for the purposes of ss 4 and 66 of the Act respectively. This would be inconsistent with the fact that the definition of “judgment” in s 4 is expressly stated to include both a money judgment or a non-money judgment and “non-money judgment” is defined in s 4 as a judgment that is not a money judgment “including a judgment that does not involve the payment of money but requires a person do, or refrain from doing, other things” (emphasis added). It is without doubt that the Act was intended to apply to injunctions. This is made clear in the Explanatory Memorandum to the Bill which includes the following note in respect of the definition of “Non-money judgment” (at page 5) (emphasis added):
Non-money judgment – includes judgments which require someone to do, or refrain from doing something, for example an injunction or order for specific performance.
It is highly improbable that the exclusion in s 66(2)(i) was intended to operate so as to remove entirely from the ambit of the registration regime orders in the nature of injunctions when one of the stated objects was to include such orders (see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [70] and [78] to [80] per McHugh, Gummow, Kirby and Hayne JJ). But that would be the consequence of accepting the applicants’ position regarding exposure to contempt of court for breach of an order in the nature of an injunction.
Thirdly, I consider that the better view is that the exclusion in s 66(2)(i) is directed to New Zealand statutes which empower the making of orders and provide that if a person to whom such an order is directed contravenes the order the person is liable to conviction for an offence in New Zealand. I do not consider that the provision applies to contempt of court.
In LFDB v SM in the Federal Court, Gleeson J seemed to attach some significance to the fact that the respondent’s counsel was unable to identify any example of an order that would fall within the meaning of s 66(2)(i) (see at [104]). In fact, there are many examples of New Zealand legislation which give meaningful content to the provision without straining its text to include contempt of court. Such legislation includes:
(a)s 49 of the Domestic Violence Act 1995 (NZ), which makes it an offence for a person to breach a protection order and provides in s 49(3) that anyone who is convicted of such an offence is liable to imprisonment for a term not exceeding three years;
(b)s 519 of the Financial Markets Conduct Act 2013 (NZ), which makes it an offence to contravene a banning order made under that Act and exposes any such person to the liability of conviction to imprisonment for a term not exceeding three years, a fine not exceeding $200,000, or both;
(c)s 78 of the Care of Children Act 2004 (NZ), which makes it an offence to contravene various parenting or guardianship orders made under that Act, and attracts a term of imprisonment not exceeding three months or a fine not exceeding $2,500;
(d)s 89 of the Children, Young Persons and Their Families Act 1989 (NZ), which makes it an offence for a person to contravene a restraining order or an interim restraining order, and renders a person liable on conviction to imprisonment for a term not exceeding three months or to a fine not exceeding $2,000;
(e)s 34 of the Companies Act 1993 (NZ), which makes it an offence for a person to fail to comply with s 34(2) relating to the registration of an order altering the constitution of a company and renders a person convicted of such an offence liable to a fine not exceeding $10,000; and
(f)s 338 of the Resource Management Act 1991 (NZ), which makes it an offence for a person to contravene a summons or order to give evidence under s 41 of that Act.
Fourthly, with great respect to Gleeson J, I do not consider that the position is changed by the decision of the Supreme Court of New Zealand in Siemer v Solicitor-General [2010] NZSC 54; 3 NZLR 767, as cited by her Honour at [103]. In that decision, which was published after the Act commenced, the Supreme Court considered and determined whether the right created by s 24(e) of the New Zealand Bill of Rights Act 1990 (NZ) (Bill of Rights Act) (which gives everyone “charged with an offence” the right to the benefit of a trial by jury when the penalty of the offence is or includes imprisonment for more than three months) applied to contempt of court proceedings. The Supreme Court unanimously held that a broad and purposive approach had to be taken in construing and applying the Bill of Rights Act and that the relevant provision did apply to persons against whom contempt of court proceedings are brought. Ultimately, however, the Supreme Court divided, with the majority holding that the effect of the right was to limit the power of a New Zealand court to impose a sentence of imprisonment for contempt to a term of no more than three months (and/or impose a fine). On the other hand, the minority held that the right was not available in the particular circumstances because the “justifiable limitation” in s 5 of the Bills of Rights Act applied. Significantly, the Supreme Court was not considering the proper construction of the Act or its New Zealand counterpart.
Fifthly, Gleeson J’s views as expressed in [102] to [106] of her Honour’s judgment in LFDB v SM in the Federal Court are plainly obiter and are not binding on me, even as a matter of judicial comity. Moreover, those views were directed to the making of freezing orders, not the orders which are the subject of this proceeding.
Finally, for what it is worth, it might be noted that the Court’s attention was not drawn to any part of the extrinsic materials which supported the applicants’ case concerning the ambit of the exclusion in s 66(2)(i).
CONCLUSION
For these reasons, the originating applications should be dismissed and the applicants ordered to pay the respondent’s costs.

I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.
Associate:
Dated: 9 February 2017

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; 239 FCR 262 LFDB v SM [2016] NZCA 295 Loucks v Standard Oil Co of New York (1918) 224 NY 99; 120 NE 198 Norsemeter Holding AS v Pieter Boele (No 1) [2002] NSWSC 370 Pemberton v Hughes [1899] 1 Ch 781 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Re Jokai Tea Holdings Ltd [1993] 1 All ER 630 Siemer v Solicitor-General [2010] NZSC 54; 3 NZLR 767 SM v LFDB [2012] NZHC 1152 SM v LFDB [2013] NZHC 1056 SM v LFDB [2013] NZHC 3105 SM v LFDB [2014] NZCA 326; [2014] 3 NZLR 494 SM v LFDB [2014] NZHC 2445 SM v LFDB [2015] NZHC 2630 SM v LFDB [2015] NZHC 1217 Shepherd v Shepherd (Unreported, High Court of New Zealand, Asher J, 23 October 2008) Stern v National Australia Bank [1999] FCA 1421 Thevarajah v Riordan [2015] UKSC 78 Washington H. Soul, Pattinson & Co. Ltd. v Ogilvy (1954) 55 S.R. (NSW) 143 Witham v Holloway [1995] HCA 3; 183 CLR 525
Date of hearing:	12 October 2016
Date of last submissions:	20 October 2016
Registry:	New South Wales
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-Area:	General and Personal Insolvency
Category:	Catchwords
Number of paragraphs:	145
Counsel for the Applicants:	Mr PD Herzfeld
Solicitor for the Applicants:	Corrs Chambers Westgarth
Counsel for the Respondent:	Dr C Ward SC and Dr S Tully
Solicitor for the Respondent:	Marque Lawyers

JUDGE:	GRIFFITHS J
DATE OF ORDER:	9 FEBRUARY 2017