Yee v O’Dea

By Notice of Motion filed on 10 July 2015, the Defendant seeks to set aside the registration of a foreign judgment in favour of the Plaintiff effected in this Court on 16 June 2015 pursuant to Part 2 of the Foreign Judgments Act 1991 (Cth). The order for registration was served on the Plaintiff on 28 June 2015. (The Notice of Motion mis-states the date of registration as 8 June 2015. However, there is only one relevant judgment and the mis-statement is immaterial.)

The foreign judgment was of the High Court of Hong Kong Special Administrative Region Court of First Instance (Proceedings 1683 of 2008) on 8 June 2011. Although the Defendant may have been represented in the Hong Kong litigation until about April 2011, the judgment recites that ultimately he failed to appear.

The ground upon which the Defendant seeks that the registration be set aside is the principle forum non conveniens.

The facts relied on in support of that contention are that the Defendant resides in Victoria, has never conducted business in New South Wales, he is unemployed, his only income is $571 per fortnight from Centrelink and he is not in a position to obtain legal services in NSW. He says Legal Aid NSW has refused to assist him as he does not reside in NSW. Mr O’Dea complains that in combination, the circumstances amount to a denial of natural justice.

It also appears that Mr O’Dea has been made bankrupt in Hong Kong and that proceedings were taken by the trustees there appointed in the Federal Court of Australia in relation to Mr O’Dea’s bankruptcy in Hong Kong. Those proceedings were commenced in the Victorian registry and the solicitor for the Plaintiff here acted for those trustees and caused Mr O’Dea to be served at his current residential address. In the course of the Federal Court proceedings Mr O’Dea has undertaken to provide notification of any change of address and asserts that there has been no change.

Section 7 of the Foreign Judgments Act sets out the grounds that a registered judgment can be set aside. It relevantly provides:

The Defendant has put forward no evidence establishing any of the matters listed in s 7 of the Act. Indeed, while in the absence of legal assistance this cannot be taken too far, there is nothing to suggest that with legal assistance such evidence would have been forthcoming. However, attention was directed to Rule 53.3(1)(e) of the Uniform Civil Procedure Rules 2005 (NSW) which, so far as is presently relevant, provides:-

It was submitted that the Defendant’s lack of connection with New South Wales means that this Court is not “the appropriate court” within that rule.

Section 6 of the Foreign Judgments Act, so far as is presently relevant, provides:

There is no express requirement in s 6 or any other provision of the Foreign Judgments Act requiring that the appropriate court be one in the state where the relevant debtor resides and, although of course, such residence or other appropriate connection is normally required to confer jurisdiction on a court, the nature of proceedings under the Foreign Judgments Act, a Commonwealth statute, make it impossible to infer that such connection is required. Insofar as “appropriate” is intended to have some operation in the context of s 6(2), it operates to distinguish between the Supreme (or Federal) Courts and the District and Magistrates’ courts.

In the result, the application to set aside the registration of the Plaintiff’s foreign judgment fails. The appropriate orders are: