What Happens when you Obtain an Australian Judgment but the Debtor is Located Overseas?

By Su-Ann Loh

The case against the Valve Corporation by the ACCC dovetails nicely into a short reminder to our readers about Australia’s reciprocity provisions with other countries for the overseas registration and enforcement of monetary judgments obtained in an Australian Court.

The regulations to the Foreign Judgments Act 1991 (Cth) list in its schedule the countries and the accompanying superior courts which will give Australian Court judgments reciprocated treatment. The inferior courts are listed at Rule 5.

By reciprocated treatment the legislation and regulation expressly assures that the foreign court (and vice versa Australian Courts for foreign judgments) provide the forum through which enforcement of the monetary judgment can take place.

This does not preclude the foreign jurisdiction from considering the judgment, although not litigating it to its full extent, to ensure that it is consistent with their legal jurisprudence.

The mechanism for obtaining a certificate for the Australian judgment for the purpose of overseas registration is contained at Rule 15. An important precursor to the foreign registration is that there is no stay on enforcement of the Australian judgment.

Parties to a court case in Australia cannot always be certain that the other party will remain in the Australian jurisdiction. This means that before embarking on any major legal action you should work with your lawyer on the likelihood of the other party to the case absconding to another country, if they do not ordinarily reside or trade from there already.

The limitation period for foreign registration under the Act is 6 years and can take time and expense that a judgment creditor may not have otherwise anticipated.

If the Federal Court hands down a monetary judgment against Valve Corporation, the ACCC will be faced with the likelihood of enforcing the judgment overseas if there is no other recourse available under the Australian Consumer Law (although we note that the relief sought by the ACCC is non-monetary relief). The difficulty for the ACCC should that happen is that Valve Corporation is registered in the United States and they are not a reciprocal country listed in the regulation.

In an ever increasing global commerce where parties trade online and with one another from different countries, the mode of dispute resolution must still remain pragmatic from an enforcement point of view. This is especially the case where aggrieved parties are still motivated to seek legal recourse for monetary compensation over other non-monetary relief.

If you would like further advice on resolving a business dispute or registering a foreign judgment in Australia or an Australian judgment overseas, please contact Su-Ann Loh (Senior Associate, Dispute Resolution Practice Group) or Chris Morey (Director, Business and Dispute Resolution Practice Group) on 03 9629 9629 .