Enforcing U.S. and Other Foreign Judgments in Australia - What Are the Rules?

THE UNITED STATES of America is Australia's biggest trade and investment partner (the value of two way trade between two nations was valued at U.S. $21.2 (A$33.5) billion in 2006) and there are currently 300,000 Australians living and working in United States (comprising approximately 5% of total U.S. workforce), (1) This important economic relationship is also reflected by Australia-United States Free Trade Agreement that was signed in 2004 making trade between two nations more accessible. Given close economic relationship that now exists between United States and Australia, it can often come as a surprise that there is no legislation governing recognition and enforcement of U.S. judgments in Australian courts. The question of whether or not a judgment can be enforced is determined according to common law rules rather than legislation. With closer economic ties comes possibility that there will be an increase in number of U.S. judgments involving Australian companies or individuals that may need to be recognised and enforced in Australian courts. This article provides an overview of common law rules that will be applied when attempts are made to recognise/enforce a U.S. judgment which imposes a personal obligation on defendant in Australian courts. (2) While article focuses on U.S. judgments, it also addresses question of other foreign judgments. I. The Australian Legal System (3) Australia is a federation comprising six states and two self-governing territories. The Australian Constitution specifies a range of matters that are responsibility of Federal government. The balance of legal issues remains responsibility of various State and Territory governments. Australia's laws and legal system have their foundation in common law of England. However, while judgments of House of Lords and English Court of Appeal are of persuasive authority, they are not binding on Australian courts. More recently, in developing law, Australian courts have looked to jurisprudence of other countries, particularly United States and Canada. Australia has both a federal court system and a hierarchy of courts in each of states and territories. In all cases, ultimate appellate court is High Court of Australia (High Court). Decisions of High Court are binding on all other Australian courts. The High Court is also responsible for determination of Constitutional disputes, in same way as U.S. Supreme Court. Actions heard by Australian courts proceed on an adversarial basis. The practice and procedure, including rules of evidence, are similar to those in English courts. While these are also similar to rules in American courts, there are some very significant differences. First, there is no Constitutional right to a jury trial in civil proceedings in Australia. Many, and in some states most, civil actions are heard and determined by a judge sitting without a jury known in United States as a bench While rules of Federal Court of Australia provide for trial by jury where the ends of justice appear to render it expedient to do so, there is a presumption that civil trials will be heard by a judge alone, and a civil jury trial has never occurred in that court. (4) Second, discovery in Australia follows English tradition and concept of deposition as a mode of discovery is unknown in Australia. (5) Rather, discovery takes form of documentary discovery and, albeit very limited, use of interrogatories. Trial by ambush, a possible consequence of not having a deposition procedure, is addressed in most Australian jurisdictions by way of an obligation to exchange witness statements setting out evidence in chief of parties and witnesses prior to trial. II. Lack of Legislation in Relation to U. …