FEDERAL COURT OF AUSTRALIA

Herd v Haines [2023] FCA 325

ORDERS

THE COURT ORDERS THAT:

1.    In accordance with s 67 of the Trans-Tasman Proceedings Act 2010 (Cth), the judgment of the High Court of New Zealand given in Case No. CIV 2014-488-187 as stated in the Certificate of Registration filed in these proceedings, dated 19 December 2022, in the sum of $477,671.04 be registered.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT (Revised from the transcript)

SARAH C DERRINGTON J:

1    Pursuant to an application filed on 3 January 2023, the applicants seek to register two judgments of the New Zealand High Court, dated 4 April 2019 and 12 April 2019 (the 12 April Judgment), in matter CIV 2014-488-187 (the NZ Judgment) pursuant to s 67 of the Trans-Tasman Proceedings Act 2010 (Cth) (TTP Act). The NZ Judgment is a registrable judgment within the meaning of s 67(1) of the TTP Act. There is no discretion in this Court not to register such a judgment.

2    The application is supported by an affidavit of Timothy William Weissel (Aff-TWW), also filed on 3 January 2023. The respondents sought leave to read and file an affidavit of Robert John Herd sworn today. Leave to do so is granted.

3    The distinguishing feature of this particular application is that it seeks to register part only of the NZ Judgment, one part of the judgment having already been registered. The respondents contend that such cannot be done, either because there is no power that would permit the Court to order the registration of a further amount in relation to a judgment already registered in the Court, or because of the principle in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (Anshun estoppel), or on the grounds of res judicata. The respondents also contend that the application offends public policy on the grounds that: first, there is a public interest in the finality of litigation and a party should not be twice vexed by the same matter; secondly, it is said to contravene s 37M(1) of the Federal Court of Australia Act 1974 (Cth) (FCA Act); and thirdly, it is said to contravene the purpose of the TTP Act.

Power of the Court to permit registration of a further amount

4    The applicants first applied to register the NZ Judgment in 2019 and, by Order of Reeves J dated 25 February 2021, the judgment of the New Zealand High Court in Case No. CIV 2014-488-187, as stated in the Certificate of Registration dated 13 November 2019, in the sum of $484,859.88 was registered. The basis of the respondents’ reliance on res judicata is that it was submitted this order was consensual. The affidavit of Mr Herd sworn today deposes to it being “his recollection that he consented to those orders”. To the extent that this is in issue, I do not accept that Order 1 at least was made by consent. The orders of Reeves J are not marked as such, nor does it seem to me that there could have been any basis for Mr Herd’s consent to be required in relation to Order 1 when, by virtue of s 68 of the TTP Act, the Court is compelled to make such an order. The decision of Chamberlain v Commissioner of Taxation (1988) 164 CLR 502 does not assist the respondents. It was a judgment concerned with the adjudication of a debt as between the appellant and the Commonwealth in which the appellant had consented to the entry of judgment against him in a particular amount. This is not the present case.

5    As explained in Mr Weissel’s affidavit, because of an oversight by the applicants in their original application to register the judgment in 2019, that sum as ordered by Reeves J was not the whole judgment sum: Aff-TWW at [7]. Rather, it comprised only that part of the total judgment sum described in the 12 April Judgment as “Total AUD judgment sum”, being:

(a)    AU$357,641.95 – part of the 12 April 2019 judgment,

(b)    interest on that sum from 6 March 2019 to 9 October 2019 of AU$10,631.27,

(c)    NZ$8139.50 (AU$7570.87) – judgment of 4 April 2019, and

(d)    interest on that sum from 6 March 2019 to 9 October 2019 of $194.97: Aff-TWW at [8(a)-(d)].

6    It also comprised an award described in the 12 April Judgment as “Total costs and disbursements: NZ$110,518.63” (AU$102,797.80), and interest on those costs from 12 April 2019 to 9 October 2019 of AU$2,534.74.

7    Further, it comprised the sum of AU$3,363.23 being the costs incurred in drafting and filing the original application and the costs and expenses related to the registration of the judgment in the sum of AU$125.00.

8    The original application omitted what was described in the 12 April Judgment as “Total NZD judgment sum: NZ$426,843.12”, which was comprised of NZ$352,595.84 plus interest of NZ$62,446.55 and two amounts of NZ$747.50 and NZ$11,053.23. This is the amount the applicants seek to register, in Australian dollars which, at the date of judgment, equated to AU$403,100.50.

9    The applicants seek interest on that judgment sum, calculated at 5% from 12 April 2019 to 19 December 2022, of AU$74,435.54. They also seek their costs of the registration of the judgment of AU$135.00.

10    The purpose of TTP Act is set out in s 3 as being to:

(a)    streamline the process for resolving civil proceedings with a trans-Tasman element in order to reduce costs and improve efficiency; and

(b)    minimise existing impediments to enforcing certain NZ judgments and regulatory sanctions; and

(c)    implement the Trans-Tasman Agreement in Australian law.

11    The process established under the TTP Act is essentially administrative. An application to register a judgment under the TTP Act is made in the prescribed form (s 67(5)(a)) in accordance with the requirements prescribed in the Trans-Tasman Proceedings Regulation 2012 (Cth) (s 67(5)(b), Form 5). This has to be done also within the prescribed period (s 67(5)(c)). Upon the application being approved, a Registrar of the Court issues a Certificate of Registration.

12    Section 68 provides that “an Australian court must, on application under section 67, register a registrable NZ judgment” (emphasis added).

13    There is no presumption in the TTP Act that only the whole of a judgment may be registered. To the contrary, s 71 provides that if an Australian court considers that the New Zealand judgment relates to different matters, some of which, if they were contained in a separate judgment, would make that judgment registrable, the judgment may be registered under s 68 in relation to those registrable provisions only. There is no apparent reason why the converse should not also be permissible, allowing separate judgment sums to be treated as “registrable provisions” and thus be registered under s 68 as if the registrable provisions were a separate registrable New Zealand judgment.

14    Further, s 33(1) of the Acts Interpretation Act 1901 (Cth) provides that:

Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires.

15    In the absence of any express prohibition on registering part of a New Zealand judgment, I rely on s 33(1). This is consistent with the nature of the statutory provisions contained in the TTP Act. They are beneficial provisions which enact facilitative procedures to minimise the impediments to enforcing certain New Zealand judgments. Consequently, it is to be construed in a manner that best achieves the purpose of the TTP Act: s 15AA of the Acts Interpretation Act 1901 (Cth); New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; 260 CLR 232 at [32]–[33] and [92]; Tjungarrayi v Western Australia [2019] HCA 12; 269 CLR 150 at [44].

16    I reject the respondents’ submission that the principle of Anshun estoppel is engaged in this case. This is not a case where it can be said there were “rights” of the applicants which were or might have been asserted and finally determined in earlier proceedings, in this Court at least, and that there is “correspondence between those rights and the statutory right asserted [in later proceedings]”: Clayton v Bant [2020] HCA 44; 272 CLR 1 at [32] and [37]. As has been explained, each judgment sum awarded in the NZ Judgment can be characterised as a “registrable provision”, capable of registration through the process envisaged by the TTP Act. As was submitted by the applicants, no “cause of action” is claimed or put in suit between the parties when an application is made to register a New Zealand judgment. At the point of such an application, nothing remains to be decided as between the rights and interests of the parties. The NZ Judgment has resolved such issues.

17    Similarly, I reject the respondents’ submission that this application offends public policy in any of the three ways they have posited. For the reasons just given in relation to the assertion of an Anshun estoppel, the respondents have not been “twice vexed by the same matter” in the sense described by French CJ in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175.

18    The New Zealand Judgment holds the respondents liable to the applicants for three separate judgment sums, AU$357,641.95, NZ$426,843,12 and NZ$110,518.63. There is no extant appeal from the NZ Judgment and the respondents’ previous application to set aside the registration pursuant to s 72 of the TTP Act was dismissed by consent on 9 December 2021. The respondents continue to owe the judgment debt. They cannot be prejudiced by a registrable provision of the New Zealand Judgment being registered within the time frame provided in s 67(5)(c) of the TTP Act. That time period is six years. It can hardly be suggested that an application brought within the statutory time period contravenes the purpose of the TTP Act to streamline the process for resolving civil disputes with a trans-Tasman element in order to reduce costs and improve efficiency. Similarly, s 37M of the FCA Act cannot be used as a means by which a judgment debtor can vary the judgment sum by invoking pleas to efficiency when it is clear that an injustice would be perpetrated were the applicants to be refused registration of a registrable provision of a New Zealand judgment.

19    For these reasons, pursuant to s 68 of the TTP Act, the applicants are entitled to the registration of the registrable provision of the NZ Judgment that was omitted from their original application, being the judgment sum of NZ$426,843.12, converted to AU$403,100.50. They are also entitled to interest on that sum pursuant to s 78 of the TTP Act in the amount of AU$74,435.54 and the judgment registration fee of $135.

20    The judgment will be registered in the sum of $477,671.04.

21    There will be no order as to costs.

Associate:

Dated:    17 April 2023