Our ‘Australian Enforcement of Foreign Judgments Guide’, is a practical resource for parties seeking to recognise and enforce foreign judgments and awards in Australia. It brings together the key legal principles and the strategic considerations that arise in cross-border enforcement and asset recovery.
The guide is presented as a series of focused sections, each designed to stand alone as a practical reference for live matters.
While the series is focused on Australian law, it is also relevant to overseas practitioners stakeholders involved in cross-border disputes, enforcement of foreign judgments and awards, asset recovery, and enforcement strategy.
Series roadmap
Across 9 parts, the series covers:
Part 1 – Legislation | Part 6 – Examination of the foreign judgment |
Part 2 -Bringing a claim for enforcement | Part 7 – Awards and security for appeals |
Part 3 – Opposition | Part 8 – Enforcement and pitfalls |
Part 4 – Requirements for recognition – (this article) | Part 9 – Update and trends |
Part 5 – Jurisdiction of the foreign court |
Part 4
Part 4 examines the requirements for recognising foreign judgments in Australia. It considers the mandatory criteria for recognition under the statutory regimes and at common law, other factors that may be relevant to recognition, and the procedural fairness requirements that may affect whether a foreign judgment will be recognised and enforced.
1. Basic requirements for recognition: What are the basic mandatory requirements for recognition of a foreign judgment?
A. FJA
A foreign judgment can be recognised under the FJA on condition that the judgment is an enforceable money judgment that is final and conclusive and has been given by a court recognised under the FJR. A judgment is not to be registered if it has been wholly satisfied or it could not be enforced by the foreign court of origin.
Further, a party seeking to register a foreign judgment must file an originating motion application, supporting affidavit and authenticated copy of the foreign judgment, with a certified translated copy when necessary.
B. TTPA
A New Zealand judgment can be recognised and enforced in Australia if it is registrable under the TTPA. The TTPA extends registrability to:
- money judgments;
- non-money judgments;
- criminal judgments that require;
- the payment of compensation, damages or reparation; or
- the payment of a regulatory regime criminal fine;
- orders made to pay the expenses of witness served with subpoenas in Australia or appearing remotely in a New Zealand court from Australia;
- market proceeding judgments; and
- judgments registered under Reciprocal Enforcement of Judgments Act 1934 of New Zealand.
However, registration will not extend to:
- excluded matters;
- non-money judgments prescribed by regulations;
- orders under proceeds of crime legislation;
- orders concerned with the granting of probate or letters of administration;
- orders relating to the guardianship or care of a person or the management of their property;
- orders relating to the care, control or welfare of a child;
- orders imposing a civil pecuniary penalty;
- orders that, if contravened, will make the person liable to conviction for an offence in the place where it was made; or
- matters of a kind prescribed by the regulations.
Similarly, an authenticated copy of the New Zealand judgment must be filed at the relevant Australia court along with the application for registration.
C. Common law
For jurisdictions that are not listed in the FJR and the TTPA, common law rules of recognition apply. At common law, the party seeking the enforcement of a foreign judgment must prove that these four conditions have been satisfied:
- that Australian courts recognise the jurisdiction exercised by the foreign court;
- that the foreign judgment is final and conclusive;
- that the parties have the same identity; and
- that the judgment must be for a fixed amount if it is in personam.
First, jurisdiction must ordinarily be invoked while the defendant is present or resident within the jurisdiction. Alternatively, the person might voluntarily submit themselves to the jurisdiction in question. For corporations, operating for more than a minimal period of time from their own fixed place of business (owned or leased) in the jurisdiction shall be sufficient. Corporations might also accrue this status due to the activity of an agent based in the jurisdiction provided that they have authority to bind the company and are operating for more than a minimal amount of time.
Second, the foreign forum has put an end to the dispute at hand and settled the issue definitively. Even where an appeal is pending, a judgment will be determined to be final and conclusive. Rather, finality refers to whether the judgment is capable of being altered by the court that made it. Given this, default judgments may be treated as final and conclusive unless the defendant has initiated the process of trying to get it set aside.
Third, the parties appearing must be the same as those present in the foreign judgment. This means that, where a foreign judgment is made against a partnership, the entire enforcement of that judgment cannot be carried out against an individual member. However, where the judgment refers to multiple defendants individually, the Australian courts can bring enforcement against them separately.
Fourth, the foreign judgment must be for a sum of money that is fixed or can be calculated. This is a common law restriction and does not apply to equitable remedies.
2. Other factors: May other non-mandatory factors for recognition of a foreign judgment be considered and, if so, what factors?
Factors under the statutory regimes for setting aside a registered judgment may be considered for recognition. Similarly, common law principles have certain defences to preclude recognition of a foreign judgment.
Procedural equivalence: Is there a requirement that the judicial proceedings where the judgment was entered correspond to due process in your jurisdiction and, if so, how is that requirement evaluated?
- FJA
The FJA requires that the judgment debtor be given due notice of proceedings, for a judgment to be enforceable. This is accompanied by defences on the grounds of fraud and public policy, which can apply with respect to the procedural process followed by the foreign forum. - TTPA
The TTPA requires a notice of the registration for the procedural fairness. If the notice is not given to every liable person, the entitled person must wait for 45 working days after the registration day to enforce the judgment. - Common law
At common law, natural justice requires that each party has been given due notice of the proceeding and given the opportunity to be heard before an impartial adjudicator. Generally speaking, if the due process under the laws of the original forum is satisfied, natural justice will ordinarily be fulfilled. However, simply complying with the foreign procedural fairness does not guarantee natural justice in some circumstances. In Yin v Wu [2023] VSCA 130, the court held that despite serving the defendant through public announcement is sufficient under Chinese law, failing to attempt other available electronic means to adequately inform the defendant, whose whereabouts is unknown, breaches natural justice and impedes enforcement in Australia. It may be applicable for any jurisdiction that does not set the same standard and interpretation of ‘personal service’ in common law jurisdictions.
Next, Part 5
Part 5 examines the jurisdictional requirements for recognition and enforcement, including the circumstances in which Australian courts will recognise the personal and subject-matter jurisdiction of a foreign court, the role of service and procedural fairness, and the approach taken to challenges concerning the legitimacy of the foreign forum.
If you are seeking to enforce a foreign judgment or award in Australia, or to resist enforcement and protect assets, we can help you move quickly and defensibly. Our cross-border disputes work is designed to be commercial, evidence-disciplined, and aligned to the outcome that matters, whether that is recovery, restraint, leverage in settlement, or clean exit.
Further Information
For further information about the recognition and enforcement of foreign judgments in Australia, the requirements for recognition under statutory and common law regimes, or procedural fairness issues in cross-border enforcement, please contact the author of this article:
