How strong are Aussie Courts?
What ability do Australian Courts have to enforce our laws overseas?
This is the question raised in a current high-publicity case in the Federal Court between Amber Harrison and Seven West Media. Ms Harrison, the sacked former lover of Seven West Media boss Tim Warner has a Fair Work claim, alleging Seven West violated her work place rights.
In a legal and media twist, the US owners of blogging platform WordPress.com are defying the Australian Court and refusing to pull down leaked documents related to Ms Harrison. The documents are part of a recent post on the internet site.
The Judge in the case, Justice Tony North made Orders for the blog site to remove 2 confidential legal letters. In response, the San Francisco-based company has indicated that they will not respond unless there is compliance with United States law, which essentially requires a Court in California to authenticate the Order by the Australian Judge.
Justice North said it was “highly interesting” that the US company was refusing to comply with Australian laws. “It means…Australia is right at the periphery as far as its Courts are concerned, and enforcement of its laws,” he said. “I wonder if we have the same attitude towards American laws?”
This case raises important questions about the power of Australian Courts when dealing with digital tech giants who have world-wide reach. “It’s an illustration,” Justice North said, “of how the legal world is slowly lurching itself into the digital age.”
What about the situation where a Court in foreign country makes an Order or Judgement, is that able to be enforced in Australia?
As an example, what happens if I obtain a Judgement from the Japanese Court requiring a company to repay money to me; is it possible that I can use that Judgement in Australia in situation where the company owns real estate in Australia?
Foreign Judgements Act 1991 (Australian Federal Government Law) provides the ability for foreign Judgements to be recognised by registration in Australian Courts. The Act provides that foreign Judgements of the Court of a country (with substantial reciprocal treatment) may be registered for sealing in the Supreme Court. In the example, the foreign Judgement Regulations 1992 provides that recognised superior Courts of Japan are its Supreme Courts, High Courts, District Courts and Family Courts. So, if my Judgement was obtained from one of those Courts in Japan then I could make an application for that foreign Judgement to be recognised through registration process with the Supreme Court in Brisbane.
The foreign Judgement however cannot be enforced until the set time has elapsed allowing for any application to have the registration of the foreign Judgement set aside or, subject to any such application being made, that the application to set aside first be determined. One basis it may be set aside is if the Judgement could not be enforced in the country of the original Court.