Morf-Zinggeler v Morf - [1999] WASC 96

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MORF-ZINGGELER -v- MORF [1999] WASC 96

CORAM: McKECHNIE J

HEARD: 2 JULY 1999

DELIVERED : 20 JULY 1999

FILE NO/S: FRJ 11 of 1998

BETWEEN: JEANNETTE MORF-ZINGGELER
Plaintiff
AND
MARCO MORF
Defendant

Catchwords:

Foreign judgments - Registration - Extent to which Commonwealth law prevails - Transitional provisions - Whether limited to two years: amendment to plead new cause of action under foreign judgment - Whether amendment should be allowed

Legislation:

Foreign Judgments Act 1901 (Cth) s 5(1), s 5(8)(a)-(e), s 18, s 19

Constitution (Cth)

Foreign Judgments Act 1971 (SA)

Result:

Order for registration of foreign judgment discharged

Representation:

Counsel:

Plaintiff: Mr M J Buss QC & Mr O D Feinauer
Defendant: In Person

Solicitors:

Plaintiff: Preuss Feinauer & Associates
Defendant: In Person

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

McKECHNIE J: On 27 April 1999 an order for the registration of a foreign judgment was made.
Paragraph 1 of the order read as follows:
"The judgment of Bezirksgericht Meilen obtained in the matter of Jeanette Morf-Zinggeler and Marco Morf on the 19th day of May 1993 at Meilen, Switzerland be registered in this Honourable Court pursuant to the Foreign Judgments Act 1991 (Cth)."
At the time of making the order, the provisions of s 5(8) of the Foreign Judgments Act 1991 (Cth) were overlooked.
These provisions make it clear that the regulations have no antecedent effect in respect of judgments.
Mr Buss of senior counsel, who now appears for the plaintiff submits that nevertheless the order is valid. If the order is invalid, he submits that the plaintiff ought to be able to substitute a statement of claim and have the present matter proceed as an action. These are the questions for determination.

Is the judgment valid?

The Foreign Judgments Act 1991, a Commonwealth statute, replaced a number of State Acts. Section 5(1) reads as follows:
"If the Governor-General is satisfied that, in the event of the benefits conferred by this Part being applied to money judgments given in the superior courts of a country, substantial reciprocity of treatment will be assured in relation to the enforcement in that country of money judgments given in all Australian superior courts, the regulations may provide that this Part extends in relation to that country."
Pursuant to that part, regulations have been made.
On 28 June 1996, by an amendment to the regulations, the provisions of s 5(1) and s 5(3) applied to Switzerland. In particular, they applied to the Bezirksgericht, an inferior court of Switzerland.
Section 5(8) reads:
"This Part does not apply to:
(a)a money judgment given by a superior court of a country before the day on which the regulations extend this Part in relation to that country; or
(b)a money judgment given by an inferior court before the day on which the regulations extend this Part in relation to that court; or
(c)a non-money judgment of a particular kind given in a court in proceedings of a particular kind before the day on which the regulations apply this Part to non-money judgments of that kind given in that court in proceedings of that kind;
unless:
(d)the judgment was given by a court of New Zealand or the United Kingdom; or
(e)the judgment was, immediately before that day, registrable in the Supreme Court of a State or Territory under a law of that State or Territory."
The present judgment was obtained from the Bezirksgericht at Meilen in Switzerland in 1993 and therefore the Foreign Judgments Act1991 (Cth) cannot apply unless the judgment falls within s 5(8)(e).
Mr Buss argues that the judgment was registrable under South Australian law. The Foreign Judgments Act 1971(SA) provides:
"5. (1) Subject to subsection (2) of this section, a judgment shall be registrable under this Act if -
(a)the jurisdiction of the original court in the cause of action is recognized under the rules of private international law, and the judgment is final and conclusive;
(b)the circumstances in which jurisdiction was assumed by the original court justify recognition of the judgment on the basis of comity and the judgment is final and conclusive;
or
(c)it is, in the opinion of the court, just and equitable that the judgment be enforced pursuant to the provisions of this Act.
(2)A judgment shall not be registrable under this Act if it is a judgment for the enforcement of any penal law or for the recovery of a non-recoverable tax."
The subsections are to be read disjunctively. The judgment in form falls within that Act.
Under normal rules of constitutional law and by virtue of Constitution s 109, upon the enactment of the Commonwealth Act, the inconsistent State Act will become invalid.
However, Parliament can evince an intention through the Commonwealth Act to continue the State legislation provisions in force in whole or part for a period or indefinitely. When Parliament so intends the State Act is effectively continued not through operation of the State law but through operation of the Commonwealth law.
To overcome some difficulties which would otherwise occur through invalidity of State laws, at the time of enactment, Part 4 of the Foreign Judgments Act1991 (Cth) provided transitional provisions. Sections 18 and 19 provide:
"Registration of judgments recognised under State or Territory law
18.    (1) Subject to this section, a judgment that:
(a)is a judgment of a court of a country that is not a country prescribed for the purposes of subsection 5 (1); and
(b)but for the operation of this Act (other than section 19) would be registrable under the law of a State or Territory;
may be registered in the Supreme Court of that State or Territory.
(2)   This section does not extend to the courts of countries that are prescribed for the purposes of this section.
(3)   This section ceases to be in force at the end of 2 years, or such lesser period as is prescribed, after the day on which it commences.
Enforcement of judgments registered under State or Territory law after commencement of this Act
19. A State or Territory law providing for the enforcement of judgments of courts of a country continues to apply, and this Act (other than this subsection) does not apply, after the commencement of this Act to judgments registered:
(a)   under that law before the commencement of this Act; or
(b) under section 18 of this Act."
The plaintiff argues that s 18 and s 19 do not limit or confine s 5(8)(e). It is submitted that s 5(8)(e) should receive a beneficial construction and does not cease to apply on the day on which s 18 ceases to be in force.
If the plaintiff's contentions are correct the Foreign Judgments Act1991 (Cth) would have ambulatory effect. Judgments obtained from courts of other countries which are registrable under State laws but not under regulations made pursuant to the Foreign Judgments Act 1991 (Cth) would continue to be registrable under the Commonwealth Act until such time as a regulation was made.
I am unable to accept this submission.
The intention of the Foreign Judgments Act1991 (Cth) was to replace entirely the existing State system with a Commonwealth regime no later than two years after enactment.
It cannot have been the intention of Parliament to allow the provisions of the State Acts to continue indefinitely. The regulation making power is predicated upon the satisfaction of the Governor General as to reciprocity of treatment. It can hardly be supposed that Parliament intended that there would continue for some undefined period into the future, a scheme whereby the States could effectively decide which judgments could or could not be registered, without necessarily having to pay regard to reciprocity of treatment.
In my opinion, s 5(8)(e) is to be read with the transitional provisions which are limited in time to a period of two years. The Foreign Judgments Act 1991 (Cth) would be otherwise ineffective in providing for an entire regime for the registration of foreign judgments. It would be necessary to search every State jurisdiction to see whether a particular judgment could be registered somewhere. Indeed, that has been the approach of the plaintiff, who does not contend that the judgment was registrable under Western Australia law but instead found support for registration in the Foreign Judgments Act 1971 (SA). I do not consider this was the intention of the Commonwealth Parliament and that the better view is that s 5(8)(e) is limited in its effect to a period of two years.
Transitional provisions are, as their name suggests, to provide a bridge between the previous statutory scheme and the new scheme. In this case the bridge is between a scheme whereby States decided what foreign judgments might be registered and a scheme where the Commonwealth made those decisions.
The proper construction of the transitional provisions of the Foreign Judgments Act 1991 (Cth) s 18 and s 19 is that after two years a State law ceases to have effect. Therefore there is now no Foreign Judgments Act (1971) (SA) or indeed any other State legislation under which a judgment may be registered.
A judgment already registered under a State law continues to have effect, notwithstanding the Foreign Judgments Act 1991 (Cth). A judgment that was registrable, but not in fact registered, was able to be registered under a State law for a period until 1993. After that, the State laws become ineffective and the Foreign Judgments Act 1991 (Cth) entirely prevails as the sole statutory scheme. Unless a judgment was given by a court of New Zealand or the United Kingdom then a judgment can only be registered if it is a judgment from a court of a country in respect of which the Governor General has, by regulation, included in the scheme.
I therefore conclude that the registration of the foreign judgment pursuant to the order of 27 April 1999 is invalid and that I should discharge the order.

Should the present action continue in a different form?

The plaintiff submits that in this event, leave should be given to proceed against the defendant in terms of a minute of proposed statement of claim. There are various consequential programming orders which would follow.

Relief from non‑compliance with the rules

Order 2 gives a wide discretion to the Court to relieve a party from the consequences of their own mistake. The Order is remedial in nature and is designed to allow substance to overcome form and for the real issues between parties to be litigated and resolved notwithstanding considerable technical irregularities. The guiding principle for a court must always be to seek to do justice between the parties. This involves balancing the rights of each party. I am mindful that the defendant is a litigant in person who is conducting proceedings in what is for him a second language with the added difficulty of dealing with an unfamiliar legal system.
The minute of proposed statement of claim raises a different cause of action and relies directly on the 1993 consent judgment. The present proceedings were commenced by ex parte motion for an order for the registration of a foreign judgment. At the same time, an interlocutory injunction was sought and obtained against the defendant.
Subsequently, the defendant has appeared in person. Upon the obtaining of the order for registration of the foreign judgment, the defendant applied to set aside that judgment. That application was refused.

The real issue between the parties

The real issue is not a dispute about whether judgment was entered into by consent in Switzerland, but the amount, if any, which is payable under it. The defendant contends in part that the plaintiff has lived, or is now living, in a de facto relationship. Under the terms of the judgment, this has an effect on any money due and payable. The plaintiff contends that she is entitled to set‑off part of the debt due to her by redeeming a promissory note, the details of which are fully set out in the judgment. There is also a question which may arise as to whether proceedings on the judgment are now time barred.
These matters are not, of their nature, easily determined on affidavit evidence alone.

Conclusion

It seems to me that this action cannot now proceed in the manner that the plaintiff would hope. Necessarily there will have to be a trial of issues. The defendant would be entitled to discovery and may wish to make use of other interlocutory processes to advance his case. The programming orders sought by the plaintiff indicate to me there is a danger in engrafting a new cause of action onto the present proceedings. The danger is that the defendant, through ignorance, may not be appropriately protected in a rush to summary judgment on the present state of these proceedings.
The potential for prejudice to the defendant is greater if I allow the plaintiff leave to proceed on the statement of claim in the present action. It will be fairer to the defendant if the action is commenced by writ of summons and the processes which that will open are allowed to unfold. Therefore in all the circumstances, I am not persuaded by the plaintiff that the interests of justice require me to grant leave to proceed by way of the statement of claim in the present action.
I propose, therefore, to discharge the order made on 27 April 1999 and, in lieu thereof, order that the plaintiff's claim be dismissed.