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Roe v Howard

Roe v Howard

Case [2020] VSC 442 21 July 2020

Appeal

Jurisdiction

Res Judicata

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
GENERAL LIST

S ECI 2020 01108

SARAH ROE (A Pseudonym)	Plaintiff
v
LINDA SUSAN HOWARD	Defendant

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	21 July 2020
DATE OF JUDGMENT:	21 July 2020
CASE MAY BE CITED AS:	Roe v Howard
MEDIUM NEUTRAL CITATION:	[2020] VSC 442

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CIVIL PROCEDURE – Foreign judgments – Application to enforce a judgment of the United States District Court – Enforcement of foreign judgments at common law – Doe v Howard [2015] VSC 75 applied; Practice Note SC Gen 15 2, Schnabel v Yung Lui [2002] NSWSC 15, Benefit Strategies Group Inc v Prider (2005) 91 SASR 544, Bhushan Steel Ltd v Severstal Export GmbH [2012] NSWSC 583 and Bao v Qu; Tian (No 2) [2020] NSWSC 588 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C Cunliffe	Jones Day
For the Defendant	No appearance

HIS HONOUR:

Introduction

The plaintiff makes application for judgment in this proceeding pursuant to r 45.03(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules), and for related orders.

The proceeding seeks the registration in this Court of a judgment of the United States District Court for the Eastern District of Virginia entered on 26 October 2017 (US Judgment), to enable the plaintiff to enforce it in this jurisdiction. The only known asset of the defendant is an apartment in the Docklands, Melbourne (Docklands Property).

The plaintiff commenced this proceeding by originating motion filed on 5 March 2020. At a hearing before Macaulay J on that day, the plaintiff sought leave to commence the proceedings under a pseudonym and sought a freezing order over the defendant’s assets without giving the usual undertaking as to damages. On 12 March 2020, Macaulay J made orders granting leave for the plaintiff to commence the proceedings under her pseudonym and other orders protecting her identity in the proceedings. His Honour denied the plaintiff’s application for a freezing order without giving the usual undertaking as to damages, but ordered that a freezing order would be made without the need for a further hearing upon the plaintiff giving the usual undertakings.[1]
[1]Roe v Howard [2020] VSC 212.

On 25 May 2020 upon the plaintiff giving the usual undertaking as to damages, Macaulay J granted a freezing order in favour of the plaintiff over the Australian assets of the defendant, including the Docklands Property (Freezing Order).

On 20 April 2020 Matthews JR made orders for substituted service on the defendant of the plaintiff’s originating motion, the orders of Macaulay J made on 12 March 2020 and a Form 7AAA notice to the defendant[2] (First Substituted Service Orders). The documents referred to in the order were emailed and posted to the persons required by the order on 23 April 2020 and service was deemed by the order to have been effected by 1 May…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Roe v Howard

Details

AGLC: Roe v Howard [2020] VSC 442
Case: [2020] VSC 442
Decision Date: 21 July 2020

CaseChat Overview and Summary

The matter of Roe v Howard involved a dispute concerning the enforcement of a judgment rendered by the United States District Court. The plaintiff, Roe, sought to enforce the foreign judgment within the Australian legal system. The case was heard in the Supreme Court of New South Wales, with the primary focus being whether the Australian court should recognise and enforce the United States judgment.

The central legal issue the court had to address was whether the judgment from the United States District Court could be enforced under Australian law. This involved examining the principles of common law regarding the enforcement of foreign judgments, as well as relevant statutory provisions and previous case law. The court had to consider whether the judgment met the criteria for enforcement, including whether it was final, binding, and capable of being enforced in its country of origin. The court also needed to determine if there were any grounds to refuse enforcement, such as public policy considerations or issues related to the jurisdiction of the foreign court.

In reaching its decision, the court drew upon various authorities, including Doe v Howard [2015] VSC 75, which provided guidance on the enforcement of foreign judgments at common law. The court also referred to Practice Note SC Gen 15 2, as well as the cases of Schnabel v Yung Lui [2002] NSWSC 15, Benefit Strategies Group Inc v Prider (2005) 91 SASR 544, Bhushan Steel Ltd v Severstal Export GmbH [2012] NSWSC 583, and Bao v Qu; Tian (No 2) [2020] NSWSC 588. After a thorough analysis of the legal principles and precedents, the court concluded that the United States judgment could be enforced in Australia, provided it met the necessary criteria. The court found that there were no grounds for refusing enforcement based on the facts of the case.

The final orders of the court were that the judgment of the United States District Court be recognised and enforced in Australia, subject to the conditions outlined in the decision. The court's ruling allowed Roe to proceed with enforcing the foreign judgment within the Australian legal system, subject to compliance with the specific terms and conditions set forth by the court.

Orders