Vetreria Etrusca SRL v Elitepak Pty Ltd [2008] NSWSC 496
- Foreign Judgments Act 1991 (Cth) applies to judgments only.
- Court will look at effect of document in determining whether it is a judgment.
In Australia, certain foreign judgments can be registered in Australia and enforced as if an Australian judgment under the Foreign Judgment Act 1991. The Act applies only to monetary judgments, not to other orders. The Act does not allow the registration of all foreign judgments - it allows registration of certain superior court of foreign countries where there is reciprocity for the enforcement of Australian judgments. In this case, Vetreria sought to have a judgment of the Court of Florence registered in the Supreme Court of New South Wales.
Elitepak purchased bottles which were made in Italy and imported into Australia. Vetreria claimed that it supplied those bottles to Elitepak and was entitled to payment for them.
Vetreria sued Elitepak in the Tribunale of the Court of Florence and these proceedings were decided without Elitepak appearing. A certified copy of the decided was provided to Elitepak as required through the diplomatic channel. The document comprised the decision in Italian signed by the Clerk of the court and a Judge, together with an interpretation in English duly certified. That interpretation described the document as a "petition for writ of injunction", not as a judgment.
This decision was registered in the Supreme Court of New South Wales pursuant to the Foreign Judgments Act. Elitepak sought unsuccessfully by notice of motion sought to have that registration set aside for the following reasons.
First, Elitepak submitted that the effect of registration was to make the Florentine judgment a judgment of the Supreme Court, which therefore enlivened the Supreme Court's jurisdiction to set it aside as though it were a default judgment made in the Supreme Court.
For the purposes of the application, it was conceded that Elitepak had a bona fide defence. Justice Adams thought that had the proceedings been commenced in the Supreme Court and had default judgment been obtained by Vetreria, Elitepak would have obtained an order setting aside the default judgment and been permitted to defend subject to requiring the amount claimed and costs to be paid into court. However, this case was a different situation as it was a foreign judgment. The jurisdiction to set aside a registered judgment is set out in section 7 of the Foreign Judgments Act. There was nothing in section 7 which would permit the Supreme Court to set aside the judgment. The decision was an order requiring Elitepak to pay a specified sum within 60 days "from the notification of this deed".
Second, Elitpak also relied on section 86 of the Civil Procedure Act 2005 which gives the Supreme Court of NSW a general power, amongst other things, in respect of orders relating to "any proceedings" to make them on terms which the court thinks fit, and pointed to the general power to set aside a judgment under Order 36.15 of the Uniform Civil Procedure Rules 2005. That argument was also rejected because that power depends upon a finding that the primary judgment "was given or entered or the order was made, irregularly, illegally or against good faith". None of the preconditions for the exercise of this general power were established or alleged.
Third, rule 36.16 empowers a court to set aside or vary a judgment if a notice of motion for that purpose is filed before entry of the judgment or order and also gave a power to set aside or vary a default judgment. Justice Adams considered that the reference to a judgment is a reference to a judgment of the Supreme Court of NSW and could not apply to the judgment of the Florentine Court.
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