Foreign Judgments Regulations (Amendment) 1996 No. 145
EXPLANATORY STATEMENT
STATUTORY RULES 1996 No. 145
Issued by the Authority of the Attorney-General and Minister for Justice
Foreign Judgments Act 1991
Foreign Judgments Regulations (Amendment)
Section 16 of the Foreign Judgments Act 1991 (the Act) provides that the Governor-General may make regulations prescribing all matters required or permitted by the Act to be prescribed.
Part 2 of the Act provides, amongst other matters, for the registration and enforcement in Australia of judgments given in foreign courts to which the Act has been extended.
Subsection 5(1) of the Act provides that the Regulations may provide that Part 2 of the Act extends in relation to a country if the Governor-General is satisfied that, in the event of the benefits conferred by Part 2 being applied to money judgments given in the superior courts of that country, substantial reciprocity of treatment will be assured in relation to the enforcement in that country of money judgments. given in Australian superior courts.
Subsection 5(3) of the Act provides that the Regulations may provide that Part 2 of the Act extends in relation to a country if the Governor-General is satisfied that, in tile event of the benefits conferred by Part 2 being applied to money judgments given ill the inferior courts of that country, substantial reciprocity of treatment will be assured in relation to the enforcement in that country of money judgments given ill Australian inferior courts.
The purpose of the Regulations is to extend Part 2 of the Act to the superior courts of Fiji, Switzerland, and Taiwan, China and also to extend Part 2 of the Act to inferior courts of tile Canadian province of Manitoba, Taiwan, China and Switzerland.
Fiji, Switzerland, Taiwan and the Canadian Province of Manitoba have reciprocal enforcement of judgments legislation similar to the Act. The relevant legislation has been applied to Australia or an undertaking has been given by the authorities of each of these jurisdictions to apply that legislation to Australia. The requirements of subsections 5(1) and 5(3) of the Act having been met, the Regulations provide that Part 2 extends to the courts of those jurisdictions.
Details of the Regulations are as follows:
Regulation 1 is formal.
Regulation 2 provides in effect that Part 2 of the Act extends to the Provincial Court of Manitoba, the District Courts of Taiwan, China and to four categories of Swiss inferior courts: Bezirksgerichte, Erstinstanzliche Gericlite, Arbeitsgerichte, Mietgerichte.
Regulation 3 amends the Schedule to the Foreign Judgments Regulations to provide that Part 2 of the Act extends to the superior courts of Fiji, Switzerland and Taiwan, China.
The Regulations commenced on gazettal.
Overview
The Foreign Judgments Regulations (Amendment) 1996 No. 145, issued under the authority of the Attorney-General and Minister for Justice, amends the Foreign Judgments Regulations 1992 to extend the application of the Foreign Judgments Act 1991 to certain foreign jurisdictions. Enacted by the Parliament of Australia, the Foreign Judgments Act 1991 aims to facilitate the recognition and enforcement of foreign judgments in Australia, addressing the problem of ensuring reciprocity and cooperation in the enforcement of judgments between Australia and other jurisdictions. This amendment seeks to enhance the Act's effectiveness by extending its provisions to the superior courts of Fiji, Switzerland, and Taiwan, China, as well as to the inferior courts of the Canadian province of Manitoba, Taiwan, China, and Switzerland, thereby promoting a more comprehensive framework for international judicial cooperation.
Scope and Application
The Foreign Judgments Regulations (Amendment) 1996 No. 145, pursuant to the Foreign Judgments Act 1991, extend the application of Part 2 of the Act, which deals with the registration and enforcement of foreign judgments in Australia, to include the superior courts of Fiji, Switzerland, and Taiwan, China, as well as the inferior courts of the Canadian province of Manitoba, Taiwan, China, and Switzerland. The regulations are based on the principle of substantial reciprocity, ensuring that there will be mutual enforcement of money judgments between Australia and these jurisdictions. This extension is achieved through the satisfaction of the Governor-General that reciprocal treatment will be provided for Australian judgments in the respective foreign jurisdictions. The Regulations, which commenced on gazette, amend the existing Schedule to include these additional countries and courts, thereby formalising the scope and application of the Foreign Judgments Act 1991 to these new jurisdictions.
Key Provisions
The Foreign Judgments Regulations (Amendment) 1996 No. 145 amend the Foreign Judgments Regulations to extend Part 2 of the Foreign Judgments Act 1991 (the Act) to additional jurisdictions. Regulation 2 of the Amendment specifies that Part 2 of the Act will now apply to the Provincial Court of Manitoba, the District Courts of Taiwan, China, and four categories of Swiss inferior courts: Bezirksgerichte, Erstinstanzliche Gerichte, Arbeitsgerichte, and Mietgerichte. Regulation 3 amends the Schedule to the Foreign Judgments Regulations, ensuring that Part 2 of the Act now also extends to the superior courts of Fiji, Switzerland, and Taiwan, China. These amendments were made under the authority provided by section 16 of the Act, which allows the Governor-General to make regulations prescribing matters required or permitted by the Act.
Under the amended regulations, the Act's provisions for the registration and enforcement of foreign judgments now apply to the specified courts in Fiji, Switzerland, Taiwan, China, and the Canadian province of Manitoba. This means that judgments from these jurisdictions' courts can be recognised and enforced in Australia under the Act, provided they meet the relevant criteria. These amendments were predicated on the satisfaction of the Governor-General, pursuant to subsections 5(1) and 5(3) of the Act, that there will be substantial reciprocity in the enforcement of Australian judgments in these jurisdictions.
The obligations imposed by the amended regulations on the parties and entities governed by the Act include ensuring that any judgment from the specified foreign courts meets the criteria for recognition and enforcement under the Act. This involves verifying that the judgment is final, that the court had jurisdiction, and that there are no grounds for refusing recognition or enforcement. Additionally, the Act requires that any party seeking to enforce a foreign judgment must apply to the relevant Australian court for registration, and the judgment creditor must comply with any conditions set by the court.
Breach of the requirements under the Act can lead to civil or criminal consequences. For example, if a party fails to comply with the conditions set by the court for the enforcement of a foreign judgment, they may be subject to fines or other penalties. The Act also provides for the possibility of contempt of court proceedings if a party refuses to comply with a court order related to the enforcement of a foreign judgment. The specific penalties for such breaches are not detailed in the regulations but would be determined by the relevant court according to the nature and severity of the breach.