S A Cryonic Medical
[2002] VSC 338
•22 August 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 6065 of 2002
In the Matter of:
| S.A. CRYONIC MEDICAL | Applicant |
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JUDGE: | Nettle J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 9, 13 August 2002 | |
DATE OF JUDGMENT: | 22 August 2002 | |
CASE MAY BE CITED AS: | In the Matter of S.A. Cryonic Medical | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 338 | |
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Practice and procedure – Registration of foreign judgments – Registration in State in which it is not intended to enforce judgment – Foreign Judgments Act 1991, s. 6.
Statutory interpretation – intent of legislation – Foreign Judgments Act 1991; Service and Execution of Process Act 1992
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M. MacKinnon | Michael Bula |
HIS HONOUR:
This is an appeal from the dismissal by a Master of an application under s. 6 of the Foreign Judgments Act 1991 (Cth) to register a money judgment of the Tribunal de Commerce. The judgment, which is for the sum of 158,000 French francs, was given on 13 October 2000 against an Australian Company, Medicold Pty Ltd, Australian Company No. 084 681 185, and according to the material filed in support of the application, that company has its usual place of business at 60 Trappers Way, Avalon, in New South Wales. It appears, however, that the company does not carry on business or have any assets in Victoria.
Section 6 of the Foreign Judgments Act provides, so far as is relevant, for registration of foreign judgments as follows:
“(1)A judgment creditor under a judgment to which this Part applies may apply to the appropriate court at any time within 6 years after:
(a)the date of the judgment; or
(b)where there have been proceedings by way of appeal against the judgment, the date of the last judgment in those proceedings;
to have the judgment registered in the court.
(2) For the purposes of subsection (1), the appropriate court is:
(a)if the judgment is a money judgment and was given in proceedings in which a matter for determination arises under the Commerce Act 1986 of New Zealand (other than proceedings in which a matter for determination arises under section 36A, 98H or 99A of that Act)—the Federal Court of Australia or the Supreme Court of a State or Territory; or
(b)if the judgment is not a money judgment and was given in such proceedings—the Federal Court of Australia; or
(c)in any other case—the Supreme Court of a State or Territory.
(3)Subject to This Act and to proof of the matters prescribed by the applicable Rules of Court, if an application is made under this section, the Supreme Court of a State or Territory or the Federal Court of Australia is to order the judgment to be registered.
…
(7)Subject to sections 7 and 14:
(a)a registered judgment has, for the purposes of enforcement, the same force and effect; and
(b)proceedings may be taken on a registered judgment; and
(c)the amount for which a judgment is registered carries interest; and
(d)the registering court has the same control over the enforcement of a registered judgment;
as if the judgment had been originally given in the court in which it is registered and entered on the date of registration.
(8)A judgment registered under this section in the Supreme Court of a State or Territory is registrable in the Supreme Court of any other State or Territory under Part 6 of the Service and Execution of Process Act 1992 as if the judgment had been originally given in the first-mentioned Supreme Court and entered on the day of registration.”
So far as appears from the material filed in support of the application, the judgment of the Tribunal is a judgment within the meaning of sub-s. 6(1) of the Act. The Tribunal is included in the schedule of superior courts, Schedule 3, to the Foreign Judgments Registration Regulations as amended by Statutory Rules 1993 No. 143.
The Master, however, refused the application for registration because he considered that this court is not "the appropriate court" within the meaning of sub-s. 6(2) of the Act. In the Master's view, it is not the appropriate court because the plaintiff does not have a present intention of enforcing the judgment in Victoria. The plan instead appears to be to register first in Victoria and then to re-register in New South Wales under sub‑s. 6(8) of the Act and enforce against assets in that State.
The Master noted that sub-s. 6(3) does not in terms leave room for a discretion as to registration, but he considered that the scheme of the Act is to enable registration of a foreign judgment for the purpose of enforcement within the jurisdiction in which registration is sought and thus that it is not the intention of the Act to permit registration in a jurisdiction in which the judgment creditor does not intend to enforce. In the Master's view, because sub-s. 6(3) is expressed as being "subject to this Act", its operation is conditioned by the legislative intention which he discerned and hence is limited to judgments intended to be enforced within Victoria.
On this appeal the first question is whether the Master was correct to conclude that a foreign judgment may not be registered in Victoria unless it is intended to enforce the judgment against assets in Victoria. In my view he was not correct.
The Foreign Judgments Act was enacted to provide a framework for the enforcement of foreign civil judgments in Australia by a simple registration process, and to give effect to arrangements agreed with New Zealand as part of closer economic relations and an agreement entered into with the United Kingdom in 1990. It replaced the State and Territories-based system of registration which until then had applied: see Yoon v Song[1]. Its aim was to avoid the multiplication of effort involved in implementing and keeping up to date arrangements under various State and Territories laws. It was considered by its propounders to be, and it was, a good example of the effectiveness that can be achieved through Commonwealth, State and Territory co-operation in the allocation of functions: see the Attorney's Second Reading Speech in Hansard of 29 May 1991 at pp. 4218 and 4219.
[1](2000) NSWSC 1147 at paragraph [12].
That being so I do not see reason to conclude that the intention of the legislation was to facilitate the registration of a judgment in a State or Territory only if at the time of registration it was intended to enforce the judgment against assets in the State or Territory. To the contrary, it appears to me that the aim was to establish a nationwide Commonwealth-State co-operative scheme in which each jurisdiction would in effect be regarded as identical to each other, and hence with results akin to what might have been achieved by a wholly Commonwealth scheme. Thus, registration in any one jurisdiction would be as good as registration in any other jurisdiction, and each jurisdiction would regard as the equivalent of its own any judgment registered in any of the other jurisdictions.
The Master considered that it would be an odd consequence of the Act that it imposed the administrative burden of registration on the court of a jurisdiction in which it was not intended to enforce the judgment, simply to facilitate registration in the Australian Register of Judgments for the purpose of enforcement in another Australian jurisdiction; and thereby to impose additional cost burden on the judgment creditor. But those observations appear to me to reflect a view of this court's jurisdiction which belongs to an earlier era. The true view now is that State courts are part of an integrated system of State and Federal courts and organs for the exercise of Federal judicial power as well as State judicial power: see Kable v Director of Public Prosecutions NSW[2]. As a result of the legislative advances made by the Jurisdiction of Courts (Cross Vesting) Act 1987 and the Service and Execution of Process Act 1992, it may now be said that the jurisdiction of each State court extends to the boundaries of the Commonwealth and that, at least for the purposes of exercise of personal or transitory jurisdiction, there is now a single jurisdictional area: see Schmidt v Won[3].
[2](1996) 189 CLR 51, esp at 114-5 and 143, but cf 84.
[3][1998] 3 VR 435 at 452-453, per Ormiston JA.
Accordingly, I see nothing odd or questionable about the consequence that a judgment creditor is enabled to choose to register a foreign judgment in one State court rather than another, even though the creditor may not then or ever intend to enforce the judgment against assets situate in that State. There may be good reason to choose one State over another, such as, for example, that the that the judgment creditor is resident in the State of choice, or customarily retains solicitors in the State of choice (as the material in support of the application shows to be the case here), or there may be no reason. But, either way, I consider that the intention of the legislation is to make that choice available as part of a one-stop nationwide system of registration. In that respect it is analogous to the choices afforded to an applicant by the nationwide system of corporate regulation created by the Corporations Act 2001: see, for example, the definition of "court" in s. 9 of that Act.
It is perhaps unnecessary I say anything about the part of the Master's reasoning which was based on the words "subject to this Act" at the beginning of sub‑s. 6(3), but in case it does matter, and because I have had the benefit of submissions on the point, I will say that I think it more likely that those words are directed at specific qualifications and conditions, such as sub-ss. 6(6), 6(11), 6(11A) and 6(14), than to any overriding legislative intent as to the ends to be achieved by the Act: see and compare The Attorney-General ex relatione Bate v Camberwell[4]; Corporate Affairs Commission v Bradley[5]; Jones v Metropolitan Meat Industry Board[6]; Kazar v Duus[7]; Permanent Finance Corporation v Tornabene[8]: compare Commissioner of Stamp Duties v Henry[9].
[4](1907) VLR 448 at 450.
[5](1973) 1 NSWLR 382 at 387.
[6](1925) 37 CLR 252 at 259.
[7](1998) 88 FCR 218 at 224.
[8](1968) QR 236 at 242.
[9](1964) 114 CLR 322 at 329.
There is, however, one other aspect of the Master's reasoning which warrants attention. It concerns the interrelationship between the definition of "the appropriate court" in sub-s. 6(2) and the requirement in Rule 11.16(c) of Chapter 2 of the Supreme Court (General Civil Procedure) Rules 1996 to state in an affidavit in support of an application for registration of a foreign judgment facts demonstrating that this court is the appropriate court under sub-s. 6(1) of the Act. The Master thought it significant that the expression used in sub-ss. 6(1) and 6(2) is "the appropriate court" rather than "an appropriate court", although ultimately he said that he did not base his decision on that consideration. But in my opinion the significance of the expression "the appropriate court" is not what was envisaged by the Master. It is rather to emphasise that when a judgment is of the kind mentioned in paragraph 6(2)(b) the appropriate court is the Federal Court, and when a judgment is of a kind mentioned in paragraph 6(2)(a) or 6(2)(c) the appropriate court will be, in the case of paragraph 6(2)(a), the Federal Court or the Supreme Court of a State or Territory and, in the case of paragraph 6(2)(c), the Supreme Court of a State or Territory. Consequently, when Rule 11.16(c) operates to require to be stated facts to demonstrate that this court is the appropriate court, it requires no more than that there be stated facts which demonstrate that a judgment is of the kind mentioned in paragraph 6(2)(a) or 6(2)(c).
The second question which arises on this appeal concerns the application of sub-s. 6(11) in light of events which have occurred since the judgment of the Tribunal was given on 13 October 2000.
Sub-sections 6(11) and 6(11A) and (11B) provide:
“(11)Subject to subsection (12), if the amount payable under a judgment that is to be registered is expressed in a currency other than Australian currency, the judgment is to be registered:
(a)if the judgment creditor has stated in the application that the judgment creditor wishes the judgment to be registered in the currency in which it is expressed—in that currency; or
(b)in any other case—as if it were for an equivalent amount in Australian currency, based on the rate of exchange prevailing on on the second business
day (the ‘conversion day’) before the day on which the application for registration is made.
(11A)For the purposes of paragraph (11)(b), the rate of exchange prevailing on the conversion day referred to in that paragraph is the average of the rates at which Australian dollars may be bought in the currency in which the judgment is expressed at:
(a)11 am; or
(b)if another time is prescribed for the purposes of this subsection—that other time;
on that day from 3 authorised foreign exchange dealers selected by the judgment creditor.
(11B)The reference in paragraph (11)(b) to a business day is a reference to a day on which the authorised foreign exchange dealers selected by the judgment creditor as mentioned in subsection (11A) publish rates at which Australian dollars may be bought in the currency in which the judgment is expressed.”
The plaintiff has not stated that it wishes the foreign judgment to be entered in a currency other than Australian currency. Consequently, paragraph 6(11)(b) requires that the foreign judgment be treated as if it were for an equivalent amount in Australian currency based on the rate of exchange prevailing on the second business day before the day on which the application for registration is made. But according to the material filed in support of the application, there was no rate of exchange prevailing on that day, because on 1 January 2002 the French franc ceased to exist and was officially converted into a new currency, called the Euro, at an official conversion rate between the French franc and the Euro of one Euro to 6.55957 French francs.
The question is how sub-s. 6(11) is to be applied when the currency in which the judgment was expressed has ceased to exist and therefore cannot be bought with Australian dollars.
Despite the apparent difficulties, I think that the problem is soluble. Since the matter first came on for hearing before me on 9 August 2002 there has been filed a further affidavit of Michael Leopold Bula which establishes that, consequent upon the change from French francs to Euros, obligations which had been expressed in French francs were converted by the laws of France into obligations expressed in Euros. It follows that, as a matter of French law, the judgment of the Tribunal imposes upon the judgment creditor, an obligation to pay the appropriate number of Euros. In turn I consider it follows that in applying sub-s. 6(11) one takes the average of rates at which Australian dollars may be bought in Euros at the relevant date.
Mr Bula’s further affidavit also establishes that under French law interest accrues on the judgment debt from the date of judgment at the rates set out in the affidavit and that the judgment debt is increased by the amount of the interest. The rates of interest and conversion are also provided.
In the result, I will allow the appeal from the Master’s order and I will make orders in the terms of the draft minutes which have been submitted to me by Mr McKinnon.
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