Recognition of foreign judgments 

A dispute may be fully litigated and decided by a court in another country, and yet the matter is not necessarily over once that foreign court hands down judgment. If the successful party wants that judgment to have effect in Australia — for example, to stop the same dispute being litigated again, or to recover money from a debtor with assets here — an Australian court must first be persuaded to recognise it. This article explains, at a conceptual level, the general principles that govern that question.

Recognition is not automatic

A foreign judgment does not become part of Australian law, or automatically binding on an Australian court, simply because a competent foreign court issued it. Recognition must be actively established, and the party seeking to rely on the foreign judgment generally bears the burden of showing that it is entitled to recognition. This reflects a basic feature of a system of separate legal orders: each state's courts derive their authority from their own legal system, and one country's courts do not automatically defer to another's simply because a judgment exists.

Recognition and enforcement are related but distinct

It is useful to separate two related ideas. Recognition means treating the foreign judgment as conclusive of the matters it decided — for example, using it as a shield to prevent the same issue being relitigated in Australia. Enforcement goes further: it means using the coercive power of an Australian court to make the judgment operative here, such as by allowing a judgment creditor to recover a sum of money the foreign court ordered be paid. A judgment can in principle be recognised without being enforced, though a party seeking to enforce a foreign money judgment will generally need to establish recognition as part of that process.

Grounds on which recognition can be refused

Because recognition is not automatic, Australian law recognises established grounds on which a court may decline to recognise a foreign judgment, even where the judgment is regular on its face. These grounds are conceptual safeguards rather than an invitation to re-argue the foreign case, and an Australian court will not simply re-decide the merits of a dispute already determined elsewhere. The recurring categories include:

• Lack of proper jurisdiction. If the foreign court did not have jurisdiction over the defendant or the subject matter, judged by the standards Australian law itself applies to assess a foreign court's jurisdiction, its judgment will not be recognised.
• Breach of natural justice. If the foreign proceedings denied a party a fair opportunity to be heard — for example, genuine notice of the proceeding or a fair chance to present a case — recognition can be refused on that basis.
• Fraud. A judgment procured by fraud, whether fraud on the foreign court or fraud going to the existence of jurisdiction, is not entitled to recognition.
• Public policy. Recognition can be refused where giving effect to the foreign judgment would be contrary to fundamental Australian public policy.
• Finality. The judgment must be final and conclusive in the court that gave it. A PENDING OR AVAILABLE APPEAL DOES NOT DEFEAT THAT, which is the opposite of the intuition most students bring: Foreign Judgments Act 1991 (Cth) s 5(5) provides that a judgment is taken to be final and conclusive even though an appeal may be pending against it, or it may still be subject to appeal. What an appeal affects is enforcement, not recognition — s 8 lets the registering court stay enforcement pending the appeal's determination. Finality is about whether the originating court has finished with the matter, not about whether some higher court might yet revisit it.

Pathways to recognition

Australian law provides more than one practical pathway toward recognition and enforcement, and the availability and mechanics of a particular pathway depend on which country's court gave the judgment and the type of judgment involved. Some pathways involve dedicated statutory schemes that streamline recognition of judgments from certain other courts — for judgments from the courts the regulations designate, the Foreign Judgments Act 1991 (Cth) allows a judgment creditor to apply for registration within six years.¹ Where no such scheme applies, a judgment creditor may instead need to rely on general principles, including treating the foreign judgment as itself giving rise to a fresh cause of action in an Australian court. The grounds for refusal set out above remain relevant defences regardless of which pathway is used, and a student should identify that a pathway exists and reason about the grounds for refusal rather than trying to state the precise mechanics of any particular scheme without being certain of them.

Applying this in a problem question

1. Confirm the judgment in question was given by a court of a different legal system, not an Australian court.
2. Identify whether the question concerns recognition, enforcement, or both, and explain the difference if relevant.
3. State clearly that recognition is not automatic and identify who bears the burden of establishing it.
4. Work through the recognised grounds for refusal — jurisdiction, natural justice, fraud, public policy, finality — and identify which are genuinely raised by the facts.
5. Avoid treating the exercise as an appeal on the merits of the foreign decision; an Australian court asked to recognise a foreign judgment does not re-decide the original dispute.