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In re the Foreign Judgment (Reciprocal Enforcement) Ordinance [1997] VUSC 2; Civil Case 146 of 1996 (15 January 1997)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

CIVIL CASE No. 146 OF 1996

IN THE MATTER OF
THE FOREIGN JUDGMENT
(RECIPROCAL ENFORCEMENT) ORDINANCE 1963

BETWEEN:

AUSTRALIAN COMPETITION ANSUMER COMMISSION
<Plaintiff

AND:

GOLDEN SPHERE INTERNATIONAL, INC.
First Respondent

AND:

PAMELA JOY REYNOLDS
Second Defendant

AND:

VICTOR MICHAEL COTTRIL
Third Respondent

Counsel: Mr Hudson for the Applicant
Mr Baxter Wright for the First & Second Respondents.

AER">AND IN THE MATTER
OF A JUDGEMENT OF THE FEDERAL COURT OF AUSTRALIA,
QUEENSLAND DISTRICT REGISTRY, GENERAL DIVISION
OBTAINED IN CASE Q G 153 OF 1996,
AND DATED 1 OCTOBER 1996.

By Summons dated 27th November 1996, the First & Second Respondent apply to this Court for an Order for Registration of Foreign Judgement issued by this Court on 5th November 1996 on the request of the Applicant’s counsel to be set aside.

The Summons is supported by an Affidavit of John Jeremy Ridgway which set out the grounds as follows:

(a) That there is no evidence before this Honourable Court that the Foreign Judgements (reciprocal enforcement) Ordinance 1963 ("Ordinance") is a law which is in force or applied in Vanuatu or alternatively was a law which was in force or applied in Vanuatu prior to Independence;

(b) That the Ordinance applies only in respect of the territory previously known as the British Solomon Islands Protectorate;

(c) That even if the Ordinance was held by this Honourable Court to be applicable in Vanuatu:

(i) it applies only to judgements or Orders given or made by a Court in any civil proceedings... for the payment of a sum of money in respect of compensation or damages to an injured party;

(ii) the Orders filed by the Applicant in these proceedings is not a judgement within the definition of Judgement contained in Section 2 of the Ordinance;

(iii) the Orders filed by the Applicant in these proceedings are Interlocutory Orders and are not final and conclusive as between the parties;

(iv) the Orders filed by the Applicant in these proceedings concern the conduct of the Respondent within Australia only and not within Vanuatu.

In this case, the Applicant is a Regulatory Body that governs certain Trade Practices in Australia. They issue proceedings against the First and Second Respondents in Australian Federal Court. The statement of claim were filed in the Federal Court of Australia sometimes last year 1996; Interlocutory Orders in the nature of Mareva Injunctions were granted on 14 October 1996 by the Australian Court against the First and Second respondents.

By reading the terms of Orders issued by the Australian Courts it is interesting to note the following:

"The Second Respondent by herself, her servants or her agents, be restrained from doing any act within Australia or taking any step within Australia which would have the effect of disposing of or dealing with any assets when such assets be within or outside the jurisdiction, and, in the case of any such assets within the jurisdiction, from removing such assets from the jurisdiction including , but without limiting the generality of the foregoing,

(a) ...

(b) the Second Respondent’s interest in funds held at the Australia and New Zealand Bank; Vanuatu;

(c) ... "

On 5th November 1996, this Court granted an Order for Registration of that Australian Mareva Injunction on the basis of the Foreign Judgements (Reciprocal Enforcement) Ordinance 1963. AT that time, Counsel for the Applicant relied on an Order for Registration of Foreign Judgement, and/or certain Mareva Injunctions Orders issued by the then Chief Justice d’Im�court on 27 September 1996 on the basis of the Ordinance 1963 referred to earlier. The said Order for Registration of Foreign Judgement, and/or Orders of 27 September 1996, was then after vacated by this Court.

The question to be answered by this Court is whether or not the Foreign Judgement (Reciprocal Enforcement) Ordinance 1963 is a law which is in force or applied in Vanuatu or alternatively was a law which was in force or applied in Vanuatu prior to Independence.

The Respondents contended that the Ordinance 1963 is not a law which is in force or applied in Vanuatu or in the alternative was in force or applied in Vanuatu prior to Independence for there is no evidence to that effect. (See the Respondent’s grounds (a)).

They argued also that the Ordinance applies only in respect of the territory previously known as the British Solomon Islands Protectorate (grounds (b)).

The Applicant does not dispute the Respondent’s grounds (a), (b). The Applicant’s counsel only submitted that the application for the Order for Registration of the Australian Mareva Injunctions of 14 October 1996, which was granted on the 5th November 1996, was made in reliance to an Order for Registration of some Foreign Mareva Injunctions granted by the then Chief Justice on the basis of the Ordinance 1963. As the said Order for Registration dated 27 September 1996 was then vacated, the Applicant said this Court should not Order costs.

In Civil Case No. 35 of 1992 (In the Matter of: Westpac Banking Corporation- And: In the Matter of: The Family Court of Australia), the then Chief Justice d’Im�court held that there are no reciprocal agreement between Australia and Vanuatu. Vanuatu is an Independent Sovereign Territory where Australian Writs do not run.

Although, as a Judge of the Supreme Court of Vanuatu, I am not bound by his Lordship decision, I am entirely in agreement with his Lordship’s opinion and I do accept it as constituting the law on that point.

Furthermore I have been referred to and assisted by the written notes made by Mr N. D. Hudson in his contributions to Kimes, 1996, International Law Directory. On the topic of "Enforcement of Foreign Judgements", the Learned author says this:

"... (In Vanuatu) there is no system of enforcement by Registration, and a foreign judgement in personam to which English laws of Vanuatu apply can only be sued upon as a cause of action in fresh proceedings, by the parties to the foreign judgement or their privies..." (at p. 660).

This is the correct position on the issue of the enforcement of Foreign Judgement in this jurisdiction. In this instant case, it is open to the Applicant to prove sufficient interest for such an order to be made by this Court if application is made to that effect.

I finally express the view that if the judgement is for the payment of a sum of money in respect of compensation or damages to an injured party and/or is a final judgement and conclusive as between the parties, consideration as to its enforcement in this jurisdiction (Vanuatu) can be sought at Common law, if the doctrine of estoppel applies. This is not the situation in the instant case.

On the basis of the above considerations, the Order for Registration dated 5th November, 1996 is hereby set aside. It is also ordered that the costs follow the event.

DATED AT PORT VILA this 15th Day of January 1997

BY ORDER OF THIS COURT

LUNABEK VINCENT J
Acting Chief Justice.

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