Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Quarter Enterprises Pty Ltd v Allardyce Lumber Company Ltd [2014] NSWCA 3
• Hearing dates: 1-2 July 2013
• Decision date: 06 February 2014
• Before: Bathurst CJ at [1]; Gleeson JA at [149]; Sackville AJA at [150]

Decision

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: JUDGMENTS - foreign judgment - High Court of Solomon Islands judgment registered pursuant to Foreign Judgments Act 1991 (Cth) - application to set aside registration - whether judgment was a "money judgment" within the meaning of the Act.; JUDGMENTS - foreign judgment - application to set aside registration - whether the foreign court had jurisdiction.; JUDGMENTS - foreign judgment - application to set aside registration - whether there was a prior final and conclusive judgment.; JUDGMENTS - foreign judgment - application to set aside registration - setting aside foreign judgment for fraud - relevant principles - whether the foreign judgment had been obtained as a result of fraud.
• Legislation Cited: Administration of Justice Act 1920 (UK), s 9; Civil Procedure Act 2005 (NSW), s 56; Corporations Law (Cth), s 459E; Evidence Act 1995 (NSW), s 108C; Foreign Judgments Act 1991 (Cth), ss 3, 5, 6, 7; Foreign Judgments Regulations 1992 (Cth); Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK); Foreign Judgments (Reciprocal Enforcement) Act (SOL), s 12; Solomon Islands Courts (Civil Procedure) Rules 2007 (SOL), r 24.18
• Cases Cited: Abouloff v Oppenheimer & Co (1882) 10 QBD 295; Adams v Cape Industries Plc [1990] 1 Ch 433; Allardyce Lumbar Company Limited v Quarter Enterprises Pty Limited [2010] NSWSC 807; Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2011] UKPC 7; [2012] 1 WLR 1804; Banque Commerciale SA, en Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279; Beals v Saldanha 2003 SCC 72; [2003] SCR 416; Blohn v Desser [1962] 2 QB 116; Boswell v Coaks [1894] 6 R 167; Cabassi v Vila (1940) 64 CLR 130; Daewoo Australia Pty Ltd v Suncorp Metway Ltd [2000] NSWSC 35; (2000) 48 NSWLR 692; de Santis v Russo [2001] QCA 457; [2002] 2 Qd R 230; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Henry v Geoprosco International Ltd [1976] 1 QB 726; House of Spring Gardens Ltd v Waite [1991] 1 QB 241; Jolley v Mainka (1933) 49 CLR 242; Keele v Findley (1990) 21 NSWLR 444; Krakowski v Eurolynx Properties Ltd [1995] HCA 68; (1995) 183 CLR 563; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361; McDonald v McDonald (1965) 113 CLR 529; Miliangos v Frank (Textiles) Ltd [1976] AC 443; Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2) (1992) 37 FCR 234; Owens Bank Ltd v Bracco [1992] 2 AC 443; Owens Bank Ltd v Etoile Commerciale SA [1995] 1 WLR 44; Quarter Enterprises Pty Ltd v Allardyce Lumber Company Ltd [2009] SBCA 15; Rubin v Eurofinance SA [2012] UKSC 46; [2013] 1 AC 236; Toubia v Schwenke [2002] NSWCA 34; (2002) 54 NSWLR 46; Vadala v Lawes (1890) 25 QBD 310; Vehicle Wash Systems Pty Ltd v Mark VII Equipment Inc (1997) 80 FCR 571; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534; Yoon v Song [2000] NSWSC 1147; (2000) 158 FLR 295
• Category: Principal judgment
• Parties: Quarter Enterprises Pty Ltd (First Appellant); Ronald Harry Gibbs (Second Appellant); Allardyce Lumber Company Ltd (First Respondent); John Henry Howden Beverley (Second Respondent); Devon George Minchin (Third Respondent)
• Representation: Counsel: P E King (Appellants); F Assaf (Respondents); Solicitors: Hayes Partners (Appellants); Jackson Lalic Lawyers (Respondents)
• File Number(s): 2012/173630
• Publication restriction: No

Decision under appeal

• Jurisdiction: 9111
• Citation: [2012] NSWSC 438
• Date of Decision: 2012-05-04 00:00:00
• Before: Johnson J
• File Number(s): 2010/54251

Judgment

1 BATHURST CJ: This is an appeal from a judgment of Johnson J (the primary judge) dated 4 May 2012 in which his Honour declined to set aside a judgment of Davies J ordering the registration of a judgment of the High Court of Solomon Islands granting judgment against the appellants in favour of the respondents for an adjusted sum of US$315,118.93. The judgment was registered pursuant to the provisions of Pt 2 of the Foreign Judgments Act 1991 (Cth) (the Act).

Background

2 The first appellant (Quarter) brought proceedings in the High Court of Solomon Islands against the first respondent (Allardyce) and two of its directors, the second and third respondents (Mr Beverley and Mr Minchin respectively), arising out of contracts connected with logging, selling and exporting timber.

3 Quarter was successful at first instance and obtained judgment against each of the respondents for sums of US$2,733,936.54 and AU$51,923.18.

4 However, that judgment was set aside on appeal. An important issue at both the trial and the appeal was the credibility of the second appellant (Mr Gibbs). The trial judge accepted the evidence of Mr Gibbs. However, the Court of Appeal of Solomon Islands accepted evidence that cast doubt on the credibility of Mr Gibbs, including the fact that there was a serious question that at least one of the file notes which he claimed was contemporaneous had been falsified. The conclusions of the Court of Appeal were in the following terms:

"[27] In the way the case came to be decided, the fundamental question at trial was reduced to one of credibility; that is, whether Ronald Gibbs or Beverley was to be believed in the competing versions which they each gave of events and conversations in 1996 and 1997, but principally with respect to what was said on the occasion when the Contract ex 1 was signed on 21 February 2007. In relation to all these matters Brown J emphatically preferred the evidence of Gibbs to that of Beverley. His Lordship was unfavourably impressed with Beverley's attitude to his duty of discovery, especially his failure to admit or to produce the Itochu agreements of 1996. In this context, the learned Judge formed a distinctly adverse view of Beverley's demeanour, referring variously to his 'overweening pride' and 'apparent disdain', his 'dogmatic and patronising manner', and 'his prevarication in cross-examination'.

[28] Some, perhaps many, of these comments may have been justified, as a reading of the transcript tends to confirm. Yet, despite reminding himself not to be diverted from the primary task of finding the relevant facts in issue, it is evident that his Lordship was strongly influenced by Beverley's forensic deficiencies, to which he reverted more than once and at length in the course of his reasons. They were all matters that a trial Judge may legitimately take into account in determining issues of credibility. It nevertheless remains true that in litigation like this, which required clear proof of misrepresentations, the plaintiff was obliged to establish his case on the strength of his own evidence rather than weaknesses in that of his opponent, or supposed character defects in the personality of its leading witness.

[29] His Lordship was not merely entitled but required to make findings of credibility and, if thought fit, to express them as he did in strong language. It should, however, be borne in mind that the witnesses were speaking about events and conversations that had taken place some eight or nine years before trial, and almost as long before they would first have been asked to recall details of the incidents. Faced with the inevitable problem of failing memories, his Lordship preferred the evidence of Ronald Gibbs to that of Beverley. His main reason for doing so was that Gibb's account was supported by contemporaneous file notes, whereas Beverley's was not.

[30] Having set out in his reasons an extract from cross-examination that extended over some nine pages concerning 'The Itochu deal' that was said to affect Beverley's credit 'fatally', Brown J went on (vol 1, at p217) under the sub-heading Competing issues of credit to make some further observations on that subject. We set out verbatim the following passage from his Lordship's reasons:

'The material on which the plaintiff has relied is principally that from the records of the defendants. So the credit of respectively Mr Beverley and Mr Ron Gibbs whom have been contrasted by Mr Sullivan need to be looked at with any supporting documentary material in mind. The material which undermines Mr John Beverley's credit has been exhaustively elicited by Mr King as the trial progressed. The material which undermined Mr Ron Gibbs credit was that contemporaneous note where Gibbs included Mr Wilkie as a participant in a meeting when he clearly wasn't there. That is somewhat inexplicable but as I have said, I do accept the practice of Gibbs to make file notes.'

[31] The contemporaneous file note in which Gibbs included Wilkie as 'a participant in the meeting' purported to be a brief note of the critical meeting on Friday morning 21 February 1997, at which the Contract ex 1 was concluded and signed. The meeting was held at Mr Wilkie's house in Sydney. Present there were Mr Gibbs and Mr Hayes, solicitor, on behalf of Quarter, and Mr Beverley and Mr Minchin on behalf of Allardyce. Also present, according to Mr Gibbs's file note, as well as his affidavit and oral evidence at the trial, was Mr Howard Wilkie. It is desirable that the file note, which was tendered, be set out in full:

'ALLARDYCE FILE NOTE:

Went with David Hayes to Howard Wilkie's place today to sign the agreement with Allardyce. John Beverley, Devon Minchin and Howard and Dorothy Wilkie present. Beverley reported everything was fine with Dakolae project. He said that the necessary approvals were in hand and that the agreement with land owners was being finalised as per the heads of agreement they had sent us. He said that this was a formality as land ownership was not in question. I asked him about timber cutting licence and log export licence. No problems anticipated. I also commented about the inclusion of a second ranking floating charge in the agreement instead of a bill of sale over the equipment as previously suggested by them. My comment was that I hoped that this clause would not need to be used. Devon Minchin said everything would be fine. Agreement was signed by myself and David Hayes for our side and by Beverley and Minchin for their side. Mention was made of need to have the agreement stamped. John Beverley will do this.

RHG21/2/97'

[32] The fact was, however, as was independently proved and accepted by the Judge, that, on arriving at Mr Wilkie's house on Friday morning 21 February, the four visitors discovered Mr Wilkie was not there. He had been rushed to hospital with a heart complaint. His wife, Mrs Wilkie, was there only briefly before leaving for the hospital. It having been arranged that the meeting take place at the Wilkie house, it proceeded as planned, but without Mr Wilkie. The final draft of the Contract was given to Gibbs and Hayes, who read it. There was some discussion about various matters, before the Contract was signed and witnessed as already described. Surprisingly perhaps, Mr Hayes, the solicitor, evidently made no notes of the meeting; at any rate, he gave no evidence about the conversations of that morning, although he was, we were told, present throughout the trial.

[33] Despite its being put to Gibbs in cross-examination that Mr Wilkie was not present at the meeting but was in hospital on 21 February, Mr Gibbs remained adamant that Wilkie was there. He said that he, Gibbs, personally prepared the file note and arranged for it to be typed on returning to his office later that day. He subsequently used the note to refresh his memory when compiling his affidavit of evidence for the trial. Furthermore, on the following Monday morning, 24 February, Beverley from his hotel in Sydney sent a fax to Gibbs to discuss postponing another meeting which they had arranged to hold that day. The fax begins:

'Howard [Wilkie] is back home and I hope to see him tomorrow afternoon if he is feeling okay'.

[34] From that part of the fax, Mr Gibbs would have been clearly reminded on Monday 24 February that Mr Howard Wilkie had been absent from home on the occasion of the meeting on the previous Friday 21 February. After receiving that fax at 9:34 am on the Monday, Gibbs himself sent a fax saying that he would not phone Howard or Dorothy 'as they both need some quiet...' Having accepted that in fact Wilkie was not present at the Friday meeting, Brown J nevertheless continued to regard Gibbs's evidence as reliable because of the support he thought it derived from the contemporaneous file notes. Accordingly, he preferred Gibbs's accounts of that and other meetings and events rather than that of Beverley with respect to the same matters.

[35] As appears from the foregoing extract from his reasons, Brown J disposed of this inconsistency in Gibbs's file note and evidence quite simply as being 'somewhat inexplicable'. It plainly merited that description. More to the point, it was in fact unexplained. No attempt was made by the plaintiff at trial to find any plausible explanation for it. On appeal, Mr King of counsel for Quarter suggested that perhaps Gibbs had dictated the file note a week or so after the meeting and had simply overlooked Wilkie's absence from the meeting. This seems improbable; but in any event it is contrary to Gibbs's own assertion in evidence that he had prepared the note on returning to the office on the same day. On reflection, there is, we consider, no acceptable explanation of how this error crept into the file note, except the one suggested by [senior counsel] for the appellant. It is that it was in fact not a contemporaneous note as claimed, but a later fabrication made at a time sufficiently remote from the event for Gibbs to have forgotten about Wilkie's absence from the Friday meeting as well as the reason for it. He must have made the file note later on without referring to the contemporaneous faxes of Monday 24. No other explanation for it has been suggested on appeal.

[36] We reach this conclusion with some regret, for it has grave and far-reaching implications for the fate of the appeal. If Mr Gibbs was prepared on one occasion to support his evidence by falsifying a note, there is reason to suspect he might have been prepared to do so on other occasions too. [Senior counsel for the respondents] took us to further examples that he claimed exhibited features similar to the file note of 21 February 1997. One was a file note dated 20 September 1996 in which Gibbs states that Beverley was 'pushing for an answer' to his fax of 15 September. In fact, it appears that the answer had already been supplied on 17 September 1996, which casts suspicion on the authenticity of the file note of 20 September 1996. Then there is a note of a meeting with Beverley held on 31 December 1999 (or it may have been 30 December 1999) in which Gibbs records his having given Beverley a letter dated 22 December addressed to him and Minchin. When called for, and produced by the plaintiff at the trial, the letter ex 22 turned out to be the original, with Gibbs's original signature on it. Plainly, the original letter cannot have been sent as claimed in the file note.

[37] We do not think it is necessary on this appeal to reach a final conclusion about these matters of fact. Suffice to say that they raise serious questions about the correctness of the trial Judge's decision to accept the reliability of Mr Gibbs's evidence by reason of the support for it his Lordship thought it gained from documentary material in the form of file notes. We have thought it right to express ourselves cautiously on this matter because we now see no feasible alternative to the process of sending this action back for retrial."

5 After referring to cases including Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, the Court of Appeal concluded as follows:

"[41] Considered by these standards, and despite the traditional reluctance of appellate courts to interfere when confronted by factual findings resting on credit, we are persuaded that in this case the trial judge's assessment of the credit worthiness of Mr RH Gibbs is falsified by an indisputable fact; that is to say, the witness's erroneous claim concerning the presence of Mr Wilkie at the meeting on 21 February 1997. The impact of that error cannot be confined to the specific event or conversation to which the particular file note dated 21 February 1997 relates. His Lordship's acceptance of Gibbs's general practice of making file notes carries by implication the further finding that in the Judge's view they were contemporaneous and accurate. Otherwise they would have been worthless as aids to determining credibility. His conclusions on the matter flowed through not only to other file notes, but to Gibbs's evidence generally. Conversely, it helped to determine his Lordship's overall preference for his evidence over against that of Beverley. The case is therefore one in which the relevant credibility finding is, within the meaning of the authorities referred to, one that is contradicted by an 'incontrovertible fact'; or that was arrived through 'disregard of a material fact'; or is 'falsified' by a fact that is 'indisputable'. The delay of 18 months in giving judgment in this case is another factor that weighs against unquestioning acceptance of credibility findings on this appeal. See the discussion of the English and Australian authorities in Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, at 32-35.

[42] It follows that the appeals of each of the three appellant defendants must be allowed and the judgments against them set aside. Because we have in mind that, in the case of at least two of the defendants, re-trials must be ordered, we have been cautious in stating our own views on contentious issues of fact that will fall for determination by another Judge in the future. We would have preferred, if possible, to have saved something from the wreck. But the influence of credibility on the Judge's findings generally and on his perceptions of the case as a whole are too far-reaching to admit of a half-way house, if any were legally possible. As well in this context, we feel unable to part from this matter without some comment on the quality of the reasons for judgment on which the decision is based. In all, they extend over some 90 pages of typescript. They are, we regret to say, so replete with unnecessary and confusing repetitions, lengthy extracts from the transcript, obscurities of language, and grammatical and other solecisms, as to leave the meaning unclear and in some places incomprehensible. There are also inconsistencies in some findings that are nowhere resolved. The result is to raise the suspicion that the reasons may have been dictated sporadically at intervals over the period of 18 months since trial, and then delivered without first being read through and edited or corrected and fully integrated as a whole. Identifiable mistakes of fact and law are so numerous as to raise the question whether, even apart from the issue of credibility, the judgment could have been allowed to stand.

...

[44] Consistently with our wish to avoid observations on facts that will be submitted to for re-trial on a future occasion, we will try to avoid comments that go beyond the bare allegations pleaded in para 52 of the statement of claim, and the findings made at the trial on this occasion. The main point to be noticed is that in essence the representations are alleged to have been made orally by Beverley to Gibbs and Hayes on the occasion of the meeting on 21 February 1997, when the Contract was concluded and signed at Wilkie's house in Sydney. It was very much this occasion on which, at the trial, competing claims of credit became critical to proof of each of the alleged representations. For the reasons we have given in relation to the credit findings made in favour of Gibbs, these allegations will necessarily fall to be tried and determined again when the matter comes to be re-heard. We therefore refrain here from commenting further on those issues."

6 In the result, the Court of Appeal allowed the appeal with costs, set aside the verdict and judgment of the High Court and dismissed the claim against Mr Minchin. The Court ordered that Quarter pay Mr Minchin's costs of and incidental to the action, including reserved costs, and ordered that the costs of Allardyce and Mr Beverley abide the event of a new trial.

7 Subsequently an order for security for costs was made against Quarter. Quarter failed to provide the security and Allardyce made an application seeking to have the action dismissed for want of prosecution.

8 On 20 May 2009 Goldsbrough J dismissed Quarter's claim for want of prosecution and ordered that the costs of Allardyce be paid by Quarter and Mr Gibbs. The power to order Mr Gibbs to pay the costs was contained in r 24.18(f) of the Solomon Islands Courts (Civil Procedure) Rules 2007 (SOL), which empowers the court to make a costs order against a person who is the effective controlling mind of a body corporate against whom a costs order is made. In his judgment at par [5] Goldsbrough J recorded that an application had previously been made for leave to serve Mr Gibbs with the application to dismiss the claim.

9 Goldsbrough J also recorded in par [34] of his judgment that Mr Gibbs was brought into the matter on the question of costs. His Honour noted that Mr Gibbs stated that he was the controlling mind of Quarter.

10 A copy of the order of Goldsbrough J dated 22 May 2009 is Annexure A to this judgment.

11 An appeal from the order of Goldsbrough J was dismissed by the Court of Appeal of Solomon Islands: Quarter Enterprises Pty Ltd v Allardyce Lumber Company Ltd [2009] SBCA 15. The Court expressly rejected an argument that there was no power to make a costs order against Mr Gibbs. McPherson JA, who delivered the judgment of the Court, put the matter as follows:

"[10] The order that was made on 20 May 2009 determined several matters. In addition to dismissal of the action, the defendants' costs of the first trial, which were assessed and fixed at the sum of US$419,053.26, were ordered to be paid within one month of the order, together with the costs of the application itself fixed at SB$35,800. The order that these costs be paid jointly and severally by the plaintiff and Gibbs was challenged in ground 3 of the draft appeal. Gibbs, of course, was not a party to the action as originally constituted, but was added only on the matter of costs. Rule 24.17 provides that a court must not make an order for costs in a proceeding against a person who is not a party to it except in accordance with rule 24.18. That Rule (24.18) authorises the court to make an order, including an indemnity costs order:

'(f) for costs against a person who is the effective controlling mind of a body corporate against whom a costs order is made'.

[11] An order with respect to the costs of the appeal had been made against the plaintiff by the Court of Appeal in its order of 12 March 2008. As to the remaining requirement of Rule 24.18(f), at the hearing before Goldsbrough J, Mr Gibbs himself asserted that he was the controlling mind of the plaintiff. When, as the learned Judge records, Mr Hayes for the plaintiff sought to stop him from making this concession, Mr Gibbs persisted with it. Quite apart from this statement, there was evidence at the first trial that, in the absence of Mr Gibbs, no decision could be taken by the plaintiff. His Lordship's conclusion that Rule 24.18(f) was available here was therefore correct. Ground 3 in the plaintiffs written submission is that an order of the kind made against Gibbs may not be, or ought not to have been, made retrospectively after the trial; but it is quite clear that such an order is within the contemplation of Rule 24.18, as can be seen, for example, from the terms of Rule 24.18(c). It provides for an order against someone who has committed an abuse of the court's process that caused or inflicted cost upon a party to the proceeding. That is something that, of course could ordinarily be determined only after the trial was over.

[12] Among the various paragraphs of Rule 24.18 there are some others that the defendants claim are applicable to the conduct of Gibbs at the first trial. They also suggest that the order against him was justified at common law independently of the Rule: See Aidin Shipping Co Ltd v Interbuilt Ltd [1986] 1 AC 965, and Aerolift International Ltd v Mahoe Heli Lift Ltd [2001] SBHC 139. It is not necessary to pursue these submissions in detail because the jurisdiction under Rule 24.18(f) is plainly apparent in this instance. In Carborundum Abrasives v Bank of New Zealand [1992] 3 NZLR 757, 764, Tomkins J said in effect that the corporate 'veil' is not readily removed; but the potential exceptions to corporate personality recognised in Rule 24.18 are statutory and quite specific. It may be added that some of the plaintiffs written submissions in para 11 appear to be directed to orders for security for costs, which is not the issue at this juncture. We consider that his Lordship did not exercise his discretion incorrectly in deciding that Mr Gibbs ought be ordered to pay costs along with the plaintiff. There are limits on the extent to which the corporate veil is capable of protecting individual wrongdoers: see Standard Chartered Bank v Pakistan National Shipping Corporation [2003] 1 AC 959. It is just such an exception that has now been enacted in Rule 24.18(f). It follows that Ground 3 of the draft cannot be sustained."(Emphasis in original)

12 Subsequently, an order was made pursuant to s 12 of the Foreign Judgments (Reciprocal Enforcement) Act (SOL), the Solomon Islands equivalent to the Act, issuing to the first and second respondents a certified copy of the judgments and relevant orders, together with a certificate showing particulars of the balance of the judgment debt in the sum of US$315,118.93. A copy of the certificate is Annexure B to this judgment.

13 On 12 August 2010 Davies J ordered that the judgment of Goldsbrough J be registered under Pt 2 of the Act. Unusually, the appellants appeared by counsel and made submissions in opposition to its registration. Notwithstanding, Davies J ordered that the appellants were entitled within 28 days after service upon them of the notice of registration to apply to set aside the registration.

14 The appellants made such an application. The primary judge permitted them to reagitate many of the arguments made before Davies J but ultimately dismissed the application. The appeal is brought from that dismissal.

The relevant legislation

15 The relevant provisions are contained in Pt 2 of the Act. Section 5 relevantly states that the Part applies to an enforceable money judgment that is final and conclusive. It should be noted that the effect of s 6(2) which I have set out below does not enable a foreign non-money judgment to be registered in the Supreme Court of a State or Territory.

16 Section 6 of the Act provides for the registration of foreign judgments to which the Part applies, namely, superior courts of a country to which the Part of the Act is stated to apply. The Schedule to the Foreign Judgments Regulations 1992 (Cth) specifies both the High Court and Court of Appeal of Solomon Islands as superior courts for the purposes of the Act.

17 Section 6 so far as relevant provides as follows:

"6(1) A judgment creditor under a judgment to which this Part applies may apply to the appropriate court at any time within 6 years after:

(a) the date of the judgment; or

(b) where there have been proceedings by way of appeal against the judgment, the date of the last judgment in those proceedings;

to have the judgment registered in the court.

(2) For the purposes of subsection (1), the appropriate court is:

(a) if the judgment is a money judgment and was given in proceedings in which a matter for determination arises under the Commerce Act 1986 of New Zealand (other than proceedings in which a matter for determination arises under section 36A, 98H or 99A of that Act)-the Federal Court of Australia or the Supreme Court of a State or Territory; or

(b) if the judgment is not a money judgment and was given in such proceedings-the Federal Court of Australia; or

(c) in any other case-the Supreme Court of a State or Territory.

(3) Subject to this Act and to proof of the matters prescribed by the applicable Rules of Court, if an application is made under this section, the Supreme Court of a State or Territory or the Federal Court of Australia is to order the judgment to be registered.

...

(6) A judgment is not to be registered if at the date of the application:

(a) it has been wholly satisfied; or

(b) it could not be enforced in the country of the original court.

(7) Subject to sections 7 and 14:

(a) a registered judgment has, for the purposes of enforcement, the same force and effect; and

(b) proceedings may be taken on a registered judgment; and

(c) the amount for which a judgment is registered carries interest; and

(d) the registering court has the same control over the enforcement of a registered judgment;

as if the judgment had been originally given in the court in which it is registered and entered on the date of registration.

....

(11) Subject to subsection (12), if the amount payable under a judgment that is to be registered is expressed in a currency other than Australian currency, the judgment is to be registered:

(a) if the judgment creditor has stated in the application that the judgment creditor wishes the judgment to be registered in the currency in which it is expressed-in that currency; or

(b) in any other case - as if it were for an equivalent amount in Australian currency, based on the rate of exchange prevailing on the second business day (the conversion day) before the day on which the application for registration is made.

(11A) For the purposes of paragraph (11)(b), the rate of exchange prevailing on the conversion day referred to in that paragraph is the average of the rates at which Australian dollars may be bought in the currency in which the judgment is expressed at:

(a) 11 am; or

(b) if another time is prescribed for the purposes of this subsection - that other time;

on that day from 3 authorised foreign exchange dealers selected by the judgment creditor.

(11B) The reference in paragraph (11)(b) to a business day is a reference to a day on which the authorised foreign exchange dealers selected by the judgment creditor as mentioned in subsection (11A) publish rates at which Australian dollars may be bought in the currency in which the judgment is expressed.

(12) If, on the day of the application for registration of a judgment, the judgment of the original court has been partly satisfied, the judgment is not to be registered in respect of the whole amount payable under the judgment of the original court, but only in respect of the balance remaining payable on that day.

...

(15) A judgment registered under this section is to be registered for:

(a) the reasonable costs of and incidental to registration, including the cost of obtaining a certified copy of the judgment from the original court and the costs of obtaining from foreign exchange dealers evidence of the rates at which Australian dollars may be bought in the currency in which the judgment is expressed; and

(b) where an amount of money is payable under the judgment - any interest which, by the law of the country of the original court, becomes due under the judgment up to the time of registration."

...

18 It should be noted that "money judgment" is defined in s 3 of the Act as a judgment under which money is payable, whilst "judgment creditor" and "judgment debtor" are defined as follows:

"judgment creditor, in relation to a judgment, means the person in whose favour the judgment was given, (whether or not a sum of money is payable under the judgment) and includes a person in whom the rights under the judgment have become vested by succession, assignment or otherwise.

judgment debtor, in relation to a judgment, means the person against whom the judgment was given, (whether or not a sum of money is payable under the judgment) and includes a person against whom the judgment is enforceable under the law of the original court."

19 Section 7(1) of the Act gives the party against whom the judgment is registered the right to apply to have it set aside. Section 7(2) of the Act sets out the ground on which the judgment is to be set aside on such an application. It provides as follows:

"7(2) Where a judgment debtor duly applies to have the registration of the judgment set aside, the court:

(a) must set the registration of that judgment aside if it is satisfied:

(i) that the judgment is not, or has ceased to be, a judgment to which this Part applies; or

(ii) that the judgment was registered for an amount greater than the amount payable under it at the date of registration; or

(iii) that the judgment was registered in contravention of this Act; or

(iv) that the courts of the country of the original court had no jurisdiction in the circumstances of the case; or

(v) that the judgment debtor, being the defendant in the proceedings in the original court, did not (whether or not process had been duly served on the judgment debtor in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable the judgment debtor to defend the proceedings and did not appear; or

(vi) that the judgment was obtained by fraud; or

(vii) that the judgment has been reversed on appeal or otherwise set aside in the courts of the country of the original court; or

(viii) that the rights under the judgment are not vested in the person by whom the application for registration was made; or

(ix) that the judgment has been discharged; or

(x) that the judgment has been wholly satisfied; or

(xi) that the enforcement of the judgment, not being a judgment under which an amount of money is payable in respect of New Zealand tax, would be contrary to public policy; or

(b) may set the registration of the judgment aside if it is satisfied that the matter in dispute in the proceedings in the original court had before the date of the judgment in the original court been the subject of a final and conclusive judgment by a court having jurisdiction in the matter."

20 Section 7(3) of the Act sets out when courts of the country of the original court are taken to have had jurisdiction. So far as relevant, s 7(3)(a)(i) provides that in the case of a judgment given in an action in personam, courts of the country of the original court will have jurisdiction where the judgment debtor voluntarily submitted to the jurisdiction of the original court.

Structure of the judgment

21 In the proceedings below, the appellants advanced a number of discrete grounds on which it was said the registration should be set aside. The primary judge dealt separately with each of the grounds and rejected them. A considerable number of the grounds that were taken in the Court below have been reagitated in this appeal. It is convenient in those circumstances to deal with the matters raised in the appeal in the same fashion as the primary judge. It should be noted that Grounds 4, 9, 10 and 11 of the amended notice of appeal were not pressed.

Ground 1 - The primary judge erred in holding that the foreign judgment should not be set aside pursuant to the Foreign Judgments Act 1991 (Cth) s 7(2)(a)(iii) on the ground the judgment was registered in contravention of the Act

(a) The reasoning of the primary judge

22 The basis of this ground as argued in the Court below was that the judgment was not a money judgment as it related to a foreign currency and the summons seeking registration of the judgment did not state that the judgement creditor wished the judgment to be registered in the currency in which it was expressed.

23 The primary judge in rejecting this submission adopted the reasoning of Davies J in Allardyce Lumbar Company Limited v Quarter Enterprises Pty Limited [2010] NSWSC 807 at [28], [51]-[55]. Davies J concluded that the fact that Allardyce sought in its summons the judgment in the sum of US$315,118.93 be registered was a sufficient statement that the judgment creditor sought registration in United States dollars.

24 In the paragraphs adopted by the primary judge, Davies J also rejected the submission that because the certificate for registration involved set-offs between three different judgments, being that of Goldsbrough J and the two judgments of the Court of Appeal of Solomon Islands, it was not a judgment in a monetary sum. He concluded that the certificate showed what remained unsatisfied from the judgment of Goldsbrough J.

(b) The submissions of the parties

(i) The appellants

25 The appellants submitted that the judgment was not a money judgment and not registrable as it was expressed in a currency foreign to both Australia and the Solomon Islands and involved a mix of currencies and possible set-offs. In this regard reliance was placed on the judgment of Finkelstein J in Vehicle Wash Systems Pty Ltd v Mark VII Equipment Inc (1997) 80 FCR 571. In their submissions in reply, the appellants contended that the effect of order 6 made by Goldsbrough J on 22 May 2009, which directed the ANZ Bank to pay SBD$200,000 to the Sol-Law Trust Account pursuant to the bank guarantee in favour of the High Court of Solomon Islands, was to make the order an executory order for specific performance against a non-party, ANZ Bank, in favour of another non-party, Sol-Law, the Solomon Island solicitors for the respondent.

26 Counsel for the appellants submitted that the judgment was not a money judgment on what he described as three discrete bases. First, it was not a judgment for a money sum, but rather was a judgment for payment of a commodity, a foreign currency. Second, it involved set-offs and, third, it was made against third parties.

27 In making this submission counsel for the appellants conceded that the amount ordered to be paid by his clients took into account the set-offs. However, he submitted that a money judgment can only relate to an award in a monetary sum.

28 Counsel for the appellants sought support for the proposition from the fact that the currency named in the certificate was a currency foreign to both the jurisdiction of the Solomon Islands and of this country. He submitted that the effect of the nomination of United States dollars as the currency in which the judgment was to be denominated involved the respondents taking an unjustifiable advantage of United States exchange rates.

29 Counsel for the appellants also submitted that the effect of the set-offs was that it was impossible to determine the amount due under the judgment and consequently the judgment was not final and conclusive.

(ii) The respondents

30 The respondents contended that the appellants' argument under this head was not the subject of any ground of appeal. However, they submitted that the judgment of Finkelstein J in Vehicle Wash Systems Pty Ltd supra bore no relationship to the requirements of the Act. The respondents pointed out that the Act does not stipulate that a money judgment needs to be expressed in a particular currency. They submitted that it was trite to observe that foreign judgments by their very nature will be expressed in a foreign currency. The respondents submitted that this approach was consistent with the analysis of Austin J in Daewoo Australia Pty Ltd v Suncorp Metway Ltd [2000] NSWSC 35; (2000) 48 NSWLR 692.

(c) Consideration

31 In Vehicle Wash Systems Pty Ltd supra, Finkelstein J considered a statutory demand made under s 459E of the then Corporations Law (Cth) which was expressed in a foreign currency. He stated that whilst the position in the United Kingdom may be different following the decision of the House of Lords in Miliangos v Frank (Textiles) Ltd [1976] AC 443, an action to recover a sum in a foreign currency in this country was treated as an action for damages for breach of contract for the failure to pay that currency. He referred to what was said by Dixon J in Jolley v Mainka (1933) 49 CLR 242 at 260, to the effect that an action for the recovery of a foreign currency debt was an action in detinet not debt. Austin J in Daewoo Australia Pty Ltd supra took a contrary view.

32 It is unnecessary to determine which of these views is correct for the following reasons. First, a process of registering a foreign judgment is not an action for recovery of a debt, but a process by which foreign judgments are registered and take effect as a judgment of the court. Second, the question of whether a judgment in a foreign currency is a money judgment within the definition contained in the Act must be determined by reference to the Act itself. It would be surprising to say the least that an Act providing for the registration of foreign money judgments could not apply to a judgment in a foreign currency. Further, if there was any residual doubt, ss 6(11), 6(11A) and 6(11B) of the Act make it clear that a judgment in a foreign currency can be registered.

33 The position is not altered, in my opinion, by reason of the fact that the sum was arrived at by a conversion calculated by the foreign court from Solomon Island dollars into United States dollars. The judgment remains a money judgment regardless of the mode of calculation.

34 Nor is the position affected by what was described in the appellants' submissions as set-offs. The judgment provided in effect that if money was paid to the respondents out of the bank guarantee, then that amount would be deducted from the judgment sum. It remains, in my opinion, a final and conclusive judgment for a money sum.

35 The fact that the judgment included a demand on the bank guarantee given by the ANZ Bank does not alter the position. As far as the appellants were concerned, the judgment remained a money judgment against them. It is immaterial that the ultimate amount recoverable under the judgment or the amount for which it could be registered in Australia having regard to s 6(12) of the Act may depend on the amount recovered under the bank guarantee.

36 In these circumstances this ground of appeal is not made out.

Ground 2 - The judge erred in holding the judgment should not be set aside pursuant to the Foreign Judgments Act 1991 (Cth) s 7(2)(a)(iv) on the ground of defect of jurisdiction

(a) The reasoning of the primary judge

37 The primary judge noted Quarter's contention that Goldsbrough J had no power to make orders either against Mr Gibbs or in favour of Mr Minchin.

38 The primary judge accepted the submission that the question to be answered for the purpose of s 7(2)(a)(iv) of the Act was not whether the High Court of Solomon Islands had jurisdiction under Solomon Islands law, but rather, whether there was jurisdiction in the international sense. In that context the primary judge noted that the High Court had jurisdiction in personam against Mr Gibbs and that he had voluntarily submitted to the jurisdiction of the High Court. In this regard, the primary judge noted that s 7(3)(a)(i) of the Act provides that the foreign court is taken to have jurisdiction in an action in personam if the judgment debtor voluntarily submitted to the jurisdiction of the court.

39 The primary judge adopted the statement of Davies J that r 24.18(f) of the Solomon Islands Courts (Civil Procedure) Rules contained a power to make a costs order against a person who was the effective controlling mind of a body corporate against which any costs order was made. The primary judge concluded that Mr Gibbs was a party to the proceedings, having appeared and made submissions both before Goldsbrough J and on the appeal to the Court of Appeal of Solomon Islands from his orders.

40 The primary judge did not deal with the submission that no order could be made in favour of Mr Minchin because of his dismissal from the proceedings by the Court of Appeal of Solomon Islands, save to record that no other submission made by the appellants on this ground had merit.

(b) The submissions of the parties

(i) The appellants

41 The appellants submitted that for an Australian court to recognise a foreign judgment, the parties must be identical and in the same interest. They submitted that this was consistent with the fiction that the foreign judgment once registered operates as if it were a judgment of the Supreme Court.

42 The appellants submitted that on the face of the order of the High Court of Solomon Islands of 22 May 2009, Mr Gibbs was not a party thereto.

43 The appellants also submitted that there was no jurisdiction to make orders in favour of Mr Minchin as he had been dismissed from the proceedings by the Court of Appeal of Solomon Islands. Further, whilst that Court had made an order for costs in Mr Minchin's favour, no order was made in his favour against Mr Gibbs.

44 The appellants further submitted that as the bank guarantee was only given as security for the costs of the retrial, the High Court had no jurisdiction to order that the money the subject of the guarantee be paid over in partial satisfaction of orders arising out of the dismissal of the action for want of prosecution.

45 Counsel for the appellants submitted that Mr Gibbs had never been joined as a party to the proceedings. He submitted that Mr Gibbs was not a judgment debtor within the meaning of the Act and that Mr Minchin was not a judgment creditor. He also submitted that there was no power to make the order under the Solomon Islands Courts (Civil Procedure) Rules as the relevant rule was not part of the Court of Appeal rules.

46 In dealing with the position of Mr Minchin, counsel for the appellant relied upon the decision of Diplock J in Blohn v Desser [1962] 2 QB 116 in contending that the judgment obtained by the respondents was not enforceable by Mr Minchin because Mr Gibbs was not a party to any obligation owed to Mr Minchin.

47 Counsel for the appellant described the passage of the second judgment of the Court of Appeal of Solomon Islands in which it was stated that Mr Gibbs was joined as a party to the proceedings on the matter of costs as "an error on the face of the record".

(ii) The respondents

48 The respondents submitted that this ground was not raised in the Court below. They submitted there was nothing in the Act which required that the parties to the foreign judgment and the enforcement proceedings be identical. In any event, the respondents submitted that the requirement was satisfied as orders had been made against both appellants.

49 The respondents submitted that the decision in Blohn v Desser supra had no application to the present case, as unlike that case where there was no order against the respondent personally, in the present case there was an order against Mr Gibbs.

50 Further, the respondents submitted that the Solomon Islands courts had jurisdiction. They submitted the requirement of s 7(3)(a)(i) of the Act was satisfied as the judgment was given in an action in personam and the judgment debtor, Mr Gibbs, had voluntarily submitted to the jurisdiction of the court. The respondents submitted that Mr Gibbs was a party in the international sense in that he participated in the proceedings before Goldsbrough J and addressed the Court, and was also a party to the appeal from his Honour's judgment.

51 Counsel for the respondents referred to an affidavit filed by a Solomon Islands solicitor, Mr Rodney Kingmele, who swore that Mr Gibbs was joined on the question of costs and that Mr Gibbs acknowledged this.

(c) Consideration

52 Section 7(3)(a)(i) of the Act reflects the common law position.

53 The appellants do not dispute that the question of whether the foreign court has jurisdiction over a person will be determined by the common law rules of this country. They were correct in not doing so: Henry v Geoprosco International Ltd [1976] 1 QB 726 at 734; Adams v Cape Industries Plc [1990] 1 Ch 433 at 518; de Santis v Russo [2001] QCA 457; [2002] 2 Qd R 230 at [9]; Rubin v Eurofinance SA [2012] UKSC 46; [2013] 1 AC 236 at [7]-[9], see also pars [160]-[163]. The question in the present case is whether Mr Gibbs voluntarily submitted to the jurisdiction of the Court.

54 The second judgment of the Court of Appeal of Solomon Islands makes it clear at par [11], set out in par [11] above, that Mr Gibbs was joined in the proceedings for the purpose of the costs application and participated in the proceedings before Goldsbrough J. Further, the order of Goldsbrough J makes it clear that Mr Gibbs took part in the proceedings and thus voluntarily submitted to the jurisdiction of the Court. The High Court of Solomon Islands had jurisdiction for the purpose of s 7(2)(a)(iv) of the Act.

55 The appellants' submission that Mr Gibbs was not a party cannot be sustained.

56 The argument that Mr Gibbs could not be ordered to pay the costs of the trial as he was only joined after the trial had concluded was rejected by the Court of Appeal of Solomon Islands which affirmed the orders of Goldsbrough J: Quarter Enterprises Pty Ltd v Allardyce Lumber Company Ltd [2009] SBCA 15 at [10] set out in par [11] above. The respondents thus obtained a judgment against Mr Gibbs. Mr Minchin was a judgment creditor within the meaning of the Act.

57 The position in the present case is quite different to that which arose in Blohn v Desser supra. In that case a judgment was obtained against a partnership which as a matter of Austrian law was not a judgment against a partner personally as a further proceeding to obtain such a judgment was necessary in which different defences could be raised. At 124, Diplock J unsurprisingly held that in these circumstances the judgment was not a final and conclusive judgment against the defendant. In the present case the judgment in favour of Mr Minchin was final and conclusive.

58 It follows that this ground of appeal has not been made out.

Ground 5 - The judge erred in holding that the registration in the foreign judgment should not be set aside pursuant to the Foreign Judgments Act 1991 (Cth) s 7(2)(b) on the ground the matter had been the subject of a final and conclusive judgment

(a) The reasoning of the primary judge

59 The argument developed before the primary judge in the Court below was that the matter in dispute was the subject of a final and conclusive judgment by the Court of Appeal of Solomon Islands and, therefore, Goldsbrough J had no power to make the orders dated 22 May 2009.

60 The primary judge dealt with the matter briefly. His Honour stated that he was entirely unpersuaded by the submission, pointing out that all of the parties to the proceedings were represented before Goldsbrough J and that the whole question of costs was dealt with by him without objection. The primary judge stated that it had not been demonstrated that the course adopted by Goldsbrough J was not available to him.

(b) The submissions of the parties

(i) The appellants

61 As the appellants developed their submissions on this ground, it related primarily to the order in favour of Mr Minchin.

62 The appellants submitted that the rights of Mr Minchin had been dealt with finally by the Court of Appeal of Solomon Islands in its first judgment and it was not permissible thereafter for the High Court to make orders in his favour against either of the appellants. Counsel for the appellants submitted in this context that the Court of Appeal of Solomon Islands was a separate court with power to make such order as to costs as it sees fit. He submitted that in these circumstances, s 7(2)(b) of the Act required that the registration of the judgment be set aside.

(ii) The respondents

63 The respondents submitted that the orders made were consequential to the dismissal of the action for want of prosecution. They submitted those orders were within power.

(c) Consideration

64 Section 7(2)(b) of the Act is directed to the situation where the matter in dispute the subject of the judgment sought to be registered has been the subject of a prior final and conclusive judgment. In these circumstances the court has a discretion as to whether it should set aside the registration.

65 In the present case there was no final and conclusive judgment for a money sum in favour of any of the respondents, including Mr Minchin, against Mr Gibbs prior to the order of Goldsbrough J.

66 So far as Quarter is concerned, the Court of Appeal of Solomon Islands ordered that the costs of the action between it and Allardyce and Mr Beverley abide the outcome of the new trial. Thus on any view the first final and conclusive judgment on the question of costs was that of Goldsbrough J. There was no prior final and conclusive judgment in respect of these respondents.

67 Further, the Court of Appeal of Solomon Islands in its first judgment did not quantify the costs to be paid to Mr Minchin. The first judgment in his favour in a money sum was that of Goldsbrough J which was upheld by the Court of Appeal of Solomon Islands in that Court's second judgment.

68 There was thus no prior final and conclusive judgment which would enliven s 7(2)(b) of the Act. Even if there was I would not as a matter of discretion set aside the judgment on this ground. There is no reason as a matter of discretion why Mr Minchin should not be entitled to register a judgment in his favour for costs in a quantifiable amount, particularly when the judgment was upheld by the Court of Appeal of the foreign jurisdiction.

69 It follows that this ground of appeal has not been made out.

Grounds 3, 6-8 12 and 13

70 These grounds which all relate to the proposition that registration should be set aside under s 7(2)(a)(vi) on the basis of fraud were as follows:

"3. The Judge erred in holding that the foreign judgment should not be set aside pursuant to Foreign Judgments Act 1991 [Cth] section 7(2)(a)(vi) on the ground of fraud."

"6. The Judge erred in holding that the Appellants, with respect to the argument that the judgment of the Solomon Islands court had been affected or brought about by fraud, should have and did not raise or attempt to raise such argument in Solomon Islands Court of Appeal [the second hearing] at in either the first and second hearing in the matter and hence was a reason for refusing relief in this Court."

"6A. The Judge erred in holding that the appellants by their legal representatives or otherwise had ample opportunity before the foreign court to correct the mistakes or errors upon which it proceeded and/or erroneous and/or misleading submissions put to it."

"7. The Judge erred as to the test of fraud, and as to whether fraud on the appropriate or any test had been established."

"8. The Judge erred in holding the registration of the foreign judgment had not occurred in contravention of Foreign Judgments Act 1991 [Cth] and/or in not setting aside the registration thereof in the Register of Foreign Judgments of the Court."

"12. The Judge erred in not admitting into evidence the Affidavit or Mr Gibbs sworn on 22 July 2011 or part thereof.

13. The primary Judge erred in not admitting MFI 2 being the material annexed to Affidavit of David Anthony Hayes sworn 8th March 2013."

71 Ground 13 was sought to be raised by a further amended notice of appeal. The relevant material was contained on a USB data storage device which comprised the record of appeal in the Court of Appeal of Solomon Islands. It apparently comprised some 23 volumes of written material. The primary judge in ruling on the application to tender the material told the appellants that it would be necessary to take him to the relevant documents that were to be relied upon. It is by no means clear that this occurred.

72 At the hearing of the appeal the Court indicated that it would defer any decision on this issue until reference was made to any specific part of the material on which reliance was placed. Only one document was said to be relied upon, namely, a document said to support the proposition that Mr Gibbs kept his file notes according to a numbered sequence. The reference to the material in the Supplementary Blue Book given by counsel for the appellants, namely, p 267J (T 02/07/2013 p 35:1-2) did not exist. Counsel for the appellants may have been referring to pars [16]-[17] in an affidavit of Deborah Therese Bourke sworn on 25 August 2005 and apparently before the Court of Appeal of Solomon Islands. In any event, a series of file notes were in evidence showing consecutive numbering. In these circumstances I do not consider leave should be granted to add Ground 13.

(a) The reasoning of the primary judge

73 The primary judge identified two issues. First, whether the same test ought to be applied to an application to set aside registration of a foreign judgment on the ground that it had been obtained by fraud as would apply to a similar application to set aside a local judgment and, second, whether whatever test was to be applied, had Quarter and Mr Gibbs established that the judgment was obtained by fraud.

74 The primary judge referred to the differing views of Rogers CJ Comm D in Keele v Findley (1990) 21 NSWLR 444 and Dunford J in Yoon v Song [2000] NSWSC 1147; (2000) 158 FLR 295. The view of Rogers CJ Comm D in Keele v Findley supra was to the effect that to set aside a foreign judgment on the ground of fraud it was necessary to rely on evidence not reasonably discoverable at the time of the original hearing, this being the position which applies in respect of setting aside a domestic judgment on the ground of fraud. However, Dunford J in Yoon v Song supra followed the approach adopted in the United Kingdom that it was not necessary to show such fresh facts. The primary judge expressed a preference for the views of Rogers CJ Comm D, but concluded that on either ground fraud was not established.

75 The primary judge noted that Quarter and Mr Gibbs relied on two areas of fraud. First, the costs orders stemmed from and included those of the Court of Appeal of Solomon Islands of 12 March 2008, which judgment was itself influenced by fraud and, second, that the High Court of Solomon Islands was misled into "mulcting without power" the ANZ Bank for funds to be paid to the lawyers for the respondents, when such funds had been provided as security for costs for the purpose of a retrial.

76 His Honour noted that the appellants initially contended that counsel who appeared for the present respondents in the Court of Appeal of Solomon Islands intentionally misled the Court by making submissions he knew to be false in respect of certain documents. However, the primary judge noted that counsel for the appellants retreated from that serious allegation, in reply stating that it was enough if the Court was led to a wrong conclusion as a result of submissions put by the respondents' then counsel. The primary judge concluded that this would not amount to fraud.

77 The primary judge pointed to the acknowledgement by counsel for the appellants that the facsimiles and reports said to be significant to this topic were in the possession of the appellants at all relevant times. His Honour pointed out that one of the functions of counsel was to rebut erroneous submissions and that counsel who appeared for the appellants, the same counsel to appear before this Court, had ample opportunity to do so.

78 The primary judge concluded that the appellants had demonstrated nothing more than the prospect of a further argument which could have been advanced on Quarter's behalf. Further, he pointed to what he described as the litany of legal and factual errors made by the trial judge which were identified by the Court of Appeal of Solomon Islands. He concluded that even if the submissions made on fraud had any traction (which he stated they did not), it would be very difficult to demonstrate that the judgment of the Court of Appeal was obtained by fraud.

79 The primary judge, whilst doubting that even if fraud was shown in the antecedent judgment of the Court of Appeal it would infect the judgment of Goldsbrough J, concluded that no fraud had been demonstrated.

80 After the primary judge had reserved judgment, the appellants sought to re-open the hearing by filing a notice of motion and an affidavit of Mr Gibbs. The primary judge noted that the affidavit contained more than 300 pages of assorted documents and its submissions would involve a further hearing with consequent prejudice being experienced by the respondents.

81 His Honour noted that no explanation was proffered as to why the application was made after the hearing. He concluded that to re-open the hearing and admit the affidavit would be entirely contrary to the provisions of s 56 of the Civil Procedure Act 2005 (NSW) and declined the application.

(b) Background

82 One difficulty in dealing with the appellants' submissions was that the fraud which they alleged to have taken place, to say the least, was elusive. As I indicated above at pars [75]-[76], that was also the position before the primary judge. In that context shortly before the hearing of the appeal Sackville AJA directed that the appellants file and serve particulars of the alleged fraud. That produced the following particulars:

"17. As to further particulars of the fraud Mr Beverley said in his evidence in the High Court that he did not receive the fax of 22 December 1999 [Blue page 364] which was untrue, and then his legal representatives in his presence misled the Court in aiding and abetting that deception in the course of the evidence before the trial court [but which nonetheless accepted Mr Gibbs on the whole of the evidence] and then persisted in the argument in CA 1 by reference to the Court record knowing the submission was apt to mislead that Court and amount to an abuse of the discovery process because the then Respondents were not in a position to meet or counter the misapprehension [as described in greater detail in the written submissions of the Appellants and where the evidence is referred to at paragraph 11/Orange 31R; paragraphs 38 to 41/orange 34 VL; paragraphs 48 to 81/Orange 31V to 41V."(Footnote omitted)

83 At the hearing counsel for the appellants was requested to more precisely identify the fraud alleged. He submitted that the fraudulent representation was that a letter of 22 December 1999 from Quarter to Messrs Minchin and Beverley was not sent, and further, that the file note made by Mr Gibbs on 31 December 1999 that referred to the letter of 22 December was "concocted and fabricated and demonstrably untrue."

84 The parties to the fraud were said to be Mr Beverley and his legal representative who made the submission. He said that the submission was made by the legal representative knowing it to be false.

85 This was a completely different case to that put to the judge below. The primary judge recorded that at the hearing before him counsel for the appellants drew back from an allegation of actual fraud: Allardyce Lumber Company Limited v Quarter Enterprises Pty Limited (No 2) [2012] NSWSC 438 at [137]. A review of the transcript of the hearing before the primary judge indicated that that was correct (T 05/07/2011 p 84:18-26).

86 The circumstances giving rise to the allegation of fraud can be summarised as follows. The solicitor for the respondents in the Solomon Islands who also appeared for them at the trial was responsible for preparing the court bundle. He suggested that the bundle include only one copy of each document. The original of the letter of 22 December 1999 signed by Mr Gibbs which was in the possession of the appellants was included, whilst a faxed copy discovered by the respondents was not.

87 As I indicated, the letter of 22 December 1999 was from Quarter, signed by Mr Gibbs, to Messrs Minchin and Beverley. It contained a statement by Mr Gibbs that Messrs Minchin and Beverley had indicated that they would make a repayment proposal in respect of monies apparently alleged to be due by Allardyce to Quarter. On the face of the letter, it would seem that it indicated that Messrs Beverley and Minchin had put forward or were proposing to put forward a proposal to remedy past breaches of contract.

88 During the course of the trial Mr Beverley was cross-examined as to a meeting he had with Mr Gibbs on 30 December 1999. He was then asked the following questions about the letter:

"MR KING: Would you have a look at this document that I ask the officer to show you - page 2015 Your Lordship - document 1198 - volume 10. Does that letter refresh your recollection as the letter you received from Mr Gibbs that day.

MR BEVERLEY: I didn't receive a letter from Mr Gibbs and it's during the course of these proceedings that this letter has come to my attention.

MR KING: I suggest you did receive it Mr Beverley.

MR BEVERLEY: I'm afraid I can't help you with that because I will have to - I will have to say that I did not receive this letter.

...

MR KING: Now Mr Beverley, Mr Gibbs handed you a copy of this letter at that meeting

MR BEVERLEY: I have no recollection of that

MR KING: And he asked you to give a copy to Mr Minchin and Mr Beverley

MR BEVERLEY: No

...

MR KING: And you were, continued to lead Mr Gibbs on to believe, notwithstanding you'd written off the debt in your accounts that there was some hope for repayment out of future log shipments for Ovau didn't you.

MR BEVERLEY: No I did not

MR KING: You didn't respond to this letter Mr Beverley

MR BEVERLEY: The letter, sorry my apologies

MR KING: You didn't contradict any of these matters in this letter did you, after you received it

MR BEVERLEY: I have said, that is was during the course of these proceedings that I first saw this letter and I'm absolutely certain of that. The letter I've got in front of me right now, this exhibit 22 is the original letter signed by Mr Gibbs in blue ink and its an original copy of the letter, it has a fax mark on it and it had obviously been faxed somewhere but I have no recollection of receiving the original copy or a fax of this letter."

89 Mr Gibbs was also cross-examined on the statement in the file note that he handed the letter to Mr Beverley at the meeting on 30 December 1999. The cross-examination was to the following effect:

"MR SULLIVAN: Mr Gibbs - can you go to - can you go to paragraph 75 of your affidavit. Have you got that.

MR GIBBS: Yes.

MR SULLIVAN: Now Mr Gibbs this meeting at your office on the 30th of December that you talk about there - see that in the second internal paragraph.

MR GIBBS: I do.

MR SULLIVAN: Yes - how long did that meeting last.

MR GIBBS: I met Mr Beverley at my office and then we spent a short time either in the office or outside the office and then we walked up to a café about three or four hundred metres up - up the street and I think I had a cup of coffee - I am not sure - I might have had a cup of coffee and some - something to eat as a breakfast and I am not sure - I can't remember what Mr Beverley had.

MR SULLIVAN: There was no discussions at your office were there.

MR GIBBS: Discussions either outside or on the way up as we walked together up to the café.

MR SULLIVAN: Now you didn't give Mr Beverley any letter did you.

MR GIBBS: Oh yes I did.

MR SULLIVAN: No.

MR GIBBS: I gave him a copy of a letter dated the 22nd which I had faxed and I asked him to give a copy of that letter to Mr Minchin.

MR SULLIVAN: Who did you fax it to.

MR GIBBS: I can't remember because it's not - it's not on the fax but it - it was either faxed to Allardyce's office here in Honiara or to Mr Beverley's Sydney fax number.

MR SULLIVAN: Now Mr Gibbs - you are assiduous in your discovery of fax - of discovering the fax markings of documents you say you faxed. You haven't discovered any such ..

MR GIBBS: Marking

MR SULLIVAN: Facsimile markings in respect of this document have you.

MR GIBBS: No - because this was sent on a new fax and this new fax just puts a circle when - when the fax is sent. It's a different system - there's no - there's no summary slip.

MR SULLIVAN: Yes - and then what you gave Mr Beverley that document in person did you.

MR GIBBS: Yes I did.

MR SULLIVAN: I see - well Mr Beverley denies ever seeing that document.

MR GIBBS: I definitely gave that document to Mr Beverley that morning.

MR SULLIVAN: He says outside of the discovery - outside of these proceedings he has never seen it and never received any facsimile of it.

MR GIBBS: It was faxed as I said - it was faxed and it was also handed to Mr Beverley that morning. I had discussed the - that content - the content of that fax after I had worked out what I wanted to say in it.

...

MR SULLIVAN: Well - let me finish - and you can't recall whether you faxed it to Sydney or Honiara - is that what you are saying.

MR GIBBS: It was faxed to one or the other.

MR SULLIVAN: Alright - and then you gave the original document to Mr Beverley - is that what you are saying.

MR GIBBS: I did.

MR SULLIVAN: Yes - alright - I call for the original of Plaintiff's document 1293. Have a look at this document Mr Gibbs. Go to the second page - have you got the second page.

MR GIBBS: Yes.

MR SULLIVAN: Is that your signature.

MR GIBBS: It is."

90 The latter document was the original letter of 22 December 1999 signed by Mr Gibbs.

91 It was on the basis of this cross-examination that counsel for the respondents in the Solomon Islands made the submission that the file note of 31 December 1999 was false in stating the letter was handed to Mr Beverley, that submission being the one now said to be fraudulent.

92 It should be noted that the alleged fraud was not raised before Davies J.

(c) The submissions of the parties

(i) The appellants

93 Counsel for the appellants submitted that the fraud was able to occur because of the omission from the court bundle of a facsimile of the letter said to be in the possession of Mr Beverley, the production of which would have demonstrated the truth of the file note. He said at one point that the document was omitted from the discovery deliberately to perpetuate a fraud. He later said counsel for the respondents in the Solomon Islands knowingly took advantage of the opportunity presented by the document not being in the court bundle to make the misleading submission.

94 The appellants submitted that the finding made in respect of the 31 December 1999 file note was central to the conclusion reached by the Court of Appeal of Solomon Islands in the first appeal. They acknowledged that it was the third in a series of file notes dealt with by the Court but submitted that it had a particular significance.

95 The appellants noted that there were a number of matters which gave the file note verisimilitude, being matters which were either admitted or proved independently. First, the meeting referred to in the file note took place. Second, Mr Beverley accepted that the debt due by Allardyce to a company, Itochu, had been repaid as asserted in the letter and acknowledged that he may have said something about that at the meeting. Third, Mr Beverley said it was possible that there were discussions concerning the negotiation of a new agreement for logging on Ovau Island.

96 The appellants submitted that the circumstances in which a foreign judgment will be set aside on the ground of fraud are not limited to the circumstances where a domestic judgment will be set aside on that ground, namely, on the production of evidence not available at the trial to show that the judgment was obtained by fraud: Boswell v Coaks [1894] 6 R 167 at 170; McDonald v McDonald (1965) 113 CLR 529 at 533; Cabassi v Vila (1940) 64 CLR 130 at 147; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538.

97 The appellants submitted that consistent with the decisions of the United Kingdom Court of Appeal in Abouloff v Oppenheimer & Co (1882) 10 QBD 295 and Vadala v Lawes (1890) 25 QBD 310 and that of the House of Lords in Owens Bank Ltd v Bracco [1992] 2 AC 443, jurisdiction to set aside registration of a foreign judgment on the ground of fraud was not limited to circumstances where evidence not available at the trial demonstrated the fraud, but rather, extended to an investigation of all the circumstances surrounding the action, whether available or deployed at the trial or otherwise. In that regard the appellants contended that the decision of Rogers CJ Comm D in Keele v Findley supra, which declined to follow Abouloff v Oppenheimer & Co, should not be followed. Counsel for the appellants submitted that a judgment obtained by fraud had both reputational and monetary consequences and should not only be able to be impeached on the basis of new evidence. He provided no convincing reason why the same position would not apply to a domestic judgment.

98 The appellants submitted that the primary judge fell into error by concluding at par [117] of his reasons that the appellants had not satisfied him that the judgment was obtained by fraud without giving reasons for that conclusion. That submission was unjustified, particularly in circumstances where fraud was abandoned before the primary judge. The primary judge succinctly and clearly stated his views in pars [137]-[147].

99 The appellants pointed to the fact that Mr Gibbs was not a party to the trial in the High Court of Solomon Islands and in the first appeal to the Court of Appeal of Solomon Islands and thus could not have responded to the erroneous submission made in the Court of Appeal. That ignores the fact that there was no issue that Mr Gibbs was the controlling mind of Quarter and, indeed, counsel who appeared for the appellants in this Court also appeared for Quarter in the trial in the High Court and the first appeal to the Court of Appeal, and for both Mr Gibbs and Quarter in the second appeal to the Court of Appeal. However, it would seem to follow from the decision of the High Court in McDonald v McDonald supra at 532-533 (Barwick CJ with whom Kitto J agreed) and 542-543 (Menzies J) and the decision of this Court in Toubia v Schwenke [2002] NSWCA 34; (2002) 54 NSWLR 46 at [42]-[45] that in an application to set aside a judgment on the ground of fraud it is not necessary to show that the fraud could not have been discovered with reasonable diligence at the time of trial. I am prepared to proceed on that basis, although it should be noted that the House of Lords and the Full Court of the Federal Court appear to have taken a different view: Owens Bank Ltd v Bracco supra at 483-484; Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2) (1992) 37 FCR 234 at 240-241.

100 The appellants in a written narrative attached to their submissions at pars [34]-[36] criticised the decision of the Court of Appeal of Solomon Islands on the basis "that as there was a serious question as to Mr Gibbs' credit to be redetermined, they would order a retrial". The appellants submitted that "a new trial is only granted if it can be shown that the verdict was obtained by fraud or subornation or surprise which was not the case here". That submission has nothing to do with whether the judgment was obtained by fraud and to the extent it asserts these are the only grounds on which a domestic court of appeal will grant a new trial, it is demonstrably incorrect.

101 The appellants next submitted that the denial by Mr Beverley of the receipt of the letter of 22 December 1999 when a copy was in his possession meant that the Court of Appeal of Solomon Islands should have concluded that Mr Beverley deliberately did not acknowledge that he received the letter. This, it was submitted, led to an inference that he breached his duty to tell the truth in respect of the matter because he was aware that acknowledgement of its possession would have led to success in the litigation being impossible: see Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 at [64]. The submission seemed to be that the Court of Appeal of Solomon Islands was precluded from drawing this inference by the fraudulent conduct alleged.

102 The appellants also pointed to the finding of the Court of Appeal of Solomon Islands in the first appeal at par [36] of the judgment where the Court stated, "Plainly, the original letter cannot have been sent as claimed in the file note". The appellants submitted that this conclusion arose from the submission put by Mr Sullivan QC, counsel for the respondents in the Solomon Islands, that it was demonstrably untrue that the letter had been handed to Mr Beverley, a submission it was contended was false to the knowledge of Mr Sullivan because he was aware of the faxed copy of the letter in the possession of the respondents. They submitted that "to the knowledge of Mr Sullivan as solicitor and later counsel for the Defendants it was not false for Mr Gibbs to assert in his evidence that he had sent the letter to Mr Beverley, because he knew from the correspondence regarding discovery that a faxed copy had been sent and received, in that the received faxed copy was referred to specifically by him as an exclusion from the Court Book, as being unnecessary as a 'duplicate'".

103 The appellants asserted that these propositions were confirmed by a fax activity management sheet kept by the appellants. Although it is correct that the letter of 22 December 1999 was faxed from the appellant's office on that day, there is no evidence that Mr Beverley received it or read it. Even if that were true, it would not of itself prove the alleged fraud.

104 The appellants justified not raising these matters before the Court of Appeal of Solomon Islands because the evidence was closed. They submitted in those circumstances that counsel for the respondents was permitted to raise the matter before the Court of Appeal in the first appeal without fear of contradiction. The appellants described this as "a slight of hand or sharp practice" by taking advantage of the exclusion of the document from the court bundle. In that context the appellants relied on the affidavit of Mr Gibbs which the primary judge refused to admit and which is the subject of Ground 12. It was in that context that the appellants made submissions in relation to the file note referred to in pars [30]-[32] of the judgment of the Court of Appeal. The appellants submitted that the error identified by the Court of Appeal, namely, that a Mr Wilkie who was said in the note to be present at the meeting was not there, was not an error of substance. It was submitted that the Court of Appeal would not have ordered a new trial on the basis of the error in the 1997 file note had they not be influenced by the submission in respect of the 1999 note.

105 The appellants in their submissions then criticised the reliance by the Court of Appeal of Solomon Islands on the 1997 file note in ordering a new trial. However, save to the extent that it could be put that the Court of Appeal was influenced in its conclusion by the 1999 file note, this submission has no relevance to the issue of fraud.

106 In what might be described as an unusual submission, the appellants contended in par [121]-[122] of the narrative attached to their submissions that by reason of Mr Sullivan QC's involvement in the business of the respondents and his previous advising, he should not have been involved in the proceedings and, conversely, by reason of his involvement the Court of Appeal was more likely to be impressed by his submissions. The most charitable thing that can be said about these submissions is that they are irrelevant.

107 The third file note in question was a file note of 20 September 1996. The Court of Appeal referred in par [36] of its judgment to the submission of Mr Sullivan QC that the fact the file note stated that Mr Beverley was "pushing for an answer to his fax of 15th September" when an answer had been already supplied, cast doubt on the veracity of the file note and hence the credibility of Mr Gibbs. The appellants submitted that the Court of Appeal ignored the fact that the alleged error was only one of the matters raised in the file note. They submitted that the Court of Appeal erred in questioning the authenticity of the file note and would not have done so but for the submissions in relation to the file note of 31 December 1999.

108 The alternative submission was that in some unidentified respects it was fraudulent to seek to apply the ANZ funds in reduction of the principal sum.

(ii) The respondents

109 The respondents submitted that the evidence relied upon by the appellants did not give rise to any question of fraud. They submitted that there was a failure to articulate the alleged fraud with any precision, that a substantial part of the appellants' submissions relied upon evidence not before the primary judge and that the allegations involved litigating afresh the credibility issues decided by the Court of Appeal of Solomon Islands.

110 The respondents submitted that the alleged fraud did not relate to the judgment of Goldsbrough J as distinct from the first judgment of the Court of Appeal of Solomon Islands. They submitted that any chain of causation was broken by Quarter's conduct in failing to prosecute the retrial.

111 The respondents also submitted that fraud cannot be relied upon when the allegation that the judgment should be set aside on the ground of fraud had been raised and specifically rejected by the foreign court: House of Spring Gardens Ltd v Waite [1991] 1 QB 241. They pointed to the fact that the appellants submitted in the second Court of Appeal of Solomon Islands hearing that the judgment was obtained by fraud, alleging there was an unexplained failure by the respondents to discover relevant material, that the respondents misled the Court of Appeal as to the authenticity of documents including the 1999 file note and misled the High Court as to the whereabouts of discoverable documents. The respondents submitted that the two decisions of the Court of Appeal created an issue estoppel preventing the question of fraud being raised in the present proceedings.

112 The respondents emphasised that the critical file note was that of 21 February 1997, as that file note formed the basis of the reasoning of the first decision of the Court of Appeal. They emphasised that the submission concerning the 1999 file note was of marginal significance.

113 The respondents submitted that to the extent it was necessary to decide the issue, the approach of Rogers CJ Comm D in Keele v Findlay supra should be preferred to that in Abouloff v Oppenheimer & Co and Owens Bank Ltd v Bracco supra. They pointed out that the decisions in Abouloff v Oppenheimer & Co and Vadala v Lawes supra were decided shortly before the House of Lords made it clear in Boswell v Coaks supra that a domestic judgment could only be set aside on the ground of fraud in reliance on evidence not available at the trial. They submitted Abouloff v Oppenheimer & Co had not been followed in Canada and that the result in Owens Bank Ltd v Bracco was described as regrettable by the Privy Council in Owens Bank Ltd v Etoile Commerciale SA [1995] 1 WLR 44.

(d) Consideration

114 It is convenient to deal with a preliminary matter at the outset. The appellants sought to rely on a report of a consultant psychologist, Professor Keith Kennett, described as a Psychological Report on Mr Gibbs. Professor Kennett contended that Mr Gibbs in preparing the 1997 file note made an error within the experience of any human being.

115 It is not necessary for present purposes to consider whether and to what extent the provisions of s 108C of the Evidence Act 1995 (NSW) will permit such evidence. A conclusion that people can make errors does not appear to me to be evidence based on an opinion wholly or substantially based on specialised knowledge within the meaning of that section.

116 In any event the evidence of Professor Kennett was not relevant to these proceedings. Whatever be the ambit of the fraud exception to the recognition of foreign judgments, it does not extend to revisiting credit findings made by a foreign court, much less to base such consideration on the views of a person purporting to apply expert knowledge as to credibility. The question is not whether the Court of Appeal of Solomon Islands was correct in reaching the conclusion to which they came, but whether that conclusion was reached as a result of fraud.

117 Further, there was no explanation as to why the evidence of Professor Kennett was not available before the primary judge. Even if it was relevant it was evidence which could have been produced at the hearing before the primary judge. For that additional reason it should not be admitted.

118 It was for these reasons that the Court rejected the tender of the report of Professor Kennett.

119 I have already indicated why leave to raise Ground 13 should not be granted.

120 So far as Ground 12 is concerned, the affidavit of Mr Gibbs was sought to be read following the conclusion of the hearing before the primary judge. The material, as the primary judge pointed out, included more than 300 pages of annexures and exhibits, raised further factual matters and was in many respects in inadmissible form. Most importantly it was sought to be read without any explanation as to why the material was not available at the hearing.

121 In these circumstances the primary judge was entirely justified in rejecting the evidence.

122 The balance of the grounds of appeal under this heading relate directly to the question of fraud. Because of the approach adopted by the appellants in this case, it is appropriate to restate a number of fundamental principles which apply in cases where an allegation of fraud is made.

123 First, an application to set aside a judgment on the ground of fraud like any claim based on fraud must be pleaded distinctly and with particularity: Krakowski v Eurolynx Properties Ltd [1995] HCA 68; (1995) 183 CLR 563 at 573; Banque Commerciale SA, en Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 285, 295; Wentworth v Rogers (No 5) supra at 538.

124 Although there were no pleadings in the present case, it was incumbent on the appellants and their legal advisers to clearly articulate the alleged fraud. They singularly failed to do so. As I have pointed out, actual fraud was abandoned before the primary judge only to be resurrected in this Court. Further, the alleged fraud was only articulated at the outset of the hearing following questions from the bench. Even then its width varied, ranging from a claim that the solicitor for the respondents deliberately excluded the facsimile of the letter of 22 December 1999 from the agreed bundle to facilitate the later false representation to, alternatively, taking advantage of this absence to make the false representation to the Court.

125 Second, the fraud must be strictly proved: Wentworth v Rogers (No 5) supra at 538; Cabassi v Vila supra at 147; Krakowski supra at 573.

126 Third, the fraud must be material to the judgment obtained in that it would have probably affected the outcome: Monroe Schneider Associates (Inc) supra at 241; Wentworth v Rogers (No 5) supra at 538.

127 In the present case the judgment sought to be registered was not obtained by fraud. It was obtained as a result of a failure to prosecute the action. The appellants' contention is that they were put in a position of having to prosecute the action by reason of the fraud of the respondents which led to the first judgment of the Court of Appeal of Solomon Islands. Even if it is accepted that the necessary causal link between the alleged fraud and the judgment can be established in the manner alleged, the appellants in my opinion face insuperable difficulties in establishing their claim.

128 First, the alleged fraud concerned the file note of 31 December 1999. However, the file note that formed the basis of the first judgment of the Court of Appeal of Solomon Islands was that of 21 February 1997 which, as extracted in par [4] above, the Court set out in par [31] of its judgment. The evidence concerning that file note is set out by the Court in par [33] of its judgment. The Court in pars [33]-[36] reasoned from the falsity of that file note that it may have been possible that other notes were fabricated. However, the Court expressly stated in par [37] that they did not reach any conclusion on that matter. Further, after considering in par [42] the general structure of the judgment at first instance, the Court emphasised again that the critical issue was what occurred on 21 February 1997.

129 There was no suggestion in this appeal that the Court of Appeal of Solomon Islands erred in its conclusion that the 21 February 1997 file note was incorrect to the extent it recorded that Mr Wilkie was present at the meeting on that day. However, it was suggested that the Court of Appeal was influenced in its consideration of that note by the submission regarding the 31 December 1999 file note. The contrary seems to be the case. As I indicated, the Court without deciding said their conclusion on the 1997 file note raised doubts as to the veracity of the 1999 file note.

130 In these circumstances it is clear that the first judgment of the Court of Appeal of Solomon Islands was not obtained as a result of a fraudulent submission concerning the 1999 file note. It follows from this reason alone that the registration of the judgment would not be set aside on the ground of fraud.

131 Further, the evidence did not establish fraud. The fraud was alleged both against the respondents and their solicitor, Mr Sullivan QC. There was no evidence whatsoever to suggest that Mr Sullivan knowingly made a false submission. The submission he made that the file note of 31 December 1999 was incorrect because the letter of 22 December 1999 was not handed to Mr Beverley at the time of the meeting the subject of the file note was accurate. There is nothing to suggest that he made that submission with intent to deceive the Court in that the letter had been faxed previously to Mr Beverley, much less that he knowingly took advantage of the omission of the faxed copy from the court bundle to make what he knew to be a false submission.

132 Further, the evidence fell short of establishing that Mr Beverley received the facsimile, much less that he deliberately instructed his solicitor to make a submission to the Court which he knew to be false. Mr Beverley denied seeing the facsimile. The evidence before this Court did not reveal it was received by him, although it did show that it had been faxed from the office of Quarter. His denial that he was handed a copy of the letter at the meeting was not shown to be false and he ultimately acknowledged that the letter had been faxed somewhere but said he had no recollection of receiving it. That evidence cannot lead to a conclusion that Mr Beverley was party to a deliberate deception of the Court in claiming (correctly) that he was not handed the letter whilst deliberately concealing the fact that he had earlier received a faxed copy.

133 It should be noted that two affidavits of Mr Beverley were read before Davies J and no application was made to cross-examine him.

134 It follows that the application to set aside the judgment on the ground of fraud fails.

135 In these circumstances Grounds 3 and 8 have not been made out. As I have indicated, I have proceeded on the assumption that the fact the alleged fraud could have been raised in the Solomon Islands would not preclude the appellant from relying on the fraud in this Court if it had been established. This was generally the subject of Grounds 6 and 6A of the grounds of appeal. It is unnecessary to deal with these grounds in circumstances where the alleged fraud has not been proved.

136 So far as Ground 7 is concerned, it is unnecessary to choose between the differing views of Rogers CJ Comm D in Keele v Findley supra and Dunford J in Yoon v Song supra on the question of whether the Court should follow Abouloff v Oppenheimer & Co and Owens Bank Ltd v Bracco supra in determining whether an application to set aside the registration of a foreign judgment on the ground of fraud can only be made on the same basis as an application to set aside a domestic judgment on that ground, namely, on evidence not available at the trial.

137 There are powerful reasons for preferring the views in Keele v Findley supra. First, there is no textual reason for reading s 7(2)(a)(vi) of the Act as conferring a wider power on the court to set aside registration of a foreign judgment than that which it has to set aside a domestic judgment. This is particularly the case when the foreign judgment takes effect as a judgment of the domestic court.

138 Second, the object of the Act is to facilitate registration of foreign judgments of particular recognised courts. There is no reason in a period of increasing international trade with the corresponding likelihood of further cross-border disputes to treat registered judgments any differently to judgments of domestic courts. In this context it must be remembered that the Act was intended to facilitate the enforcement of foreign judgments.

139 Third, the decision in Abouloff v Oppenheimer & Co supra, was based at least in part on the proposition that the rationale of the jurisdiction was that the foreign court was misled and persons should not be permitted to take advantage of their own wrong: see Abouloff v Oppenheimer & Co supra at 300 (Lord Coleridge CJ) and 305-6 (Brett LJ). The same principles would seem to apply equally to a domestic judgment. Indeed, so much was recognised by Brett LJ where his Lordship stated that he could not help thinking that the same principle would apply to a domestic judgment which was sought to be set aside by another domestic court on the ground of fraud. In this context, as the respondent pointed out, Abouloff was decided before the House of Lords in Boswell v Coaks supra finally determined the basis on which a domestic judgment will be set aside on the ground of fraud.

140 Fourth, Lord Bridge of Harwich in his speech in Owens Bank Ltd v Bracco supra in considering s 9(2) of the Administration of Justice Act 1920 (UK) and the Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK) which contains similar provisions to the Act in relation to the setting aside of registered judgments on the ground of fraud, referred to the report of Lord Sumner which rejected the approach that Commonwealth judgments be given the full status and currency of United Kingdom judgments. Lord Bridge stated in that context that each of the United Kingdom Acts had to be considered in the context of the common law as it stood in 1920 which included what had been decided in Abouloff v Oppenheimer & Co: Owens Bank Ltd v Bracco supra at 488-489.

141 Although the substantially uniform State and Territory legislation which preceded the Act was based on the Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK), the considerations of Lord Bridge do not seem to me to have the same force in this country. The Sumner Report considered a different statute and, as I have indicated, Abouloff preceded Boswell v Coaks supra and its implication on the former decision had not been considered. In addition, the caution in the Sumner Report against adopting a principle of strict reciprocity which, as Lord Bridge summarises, "would give to all judgments of courts within the Empire an equal status and currency in all parts of the Empire" does not seem to me to be of particular relevance in the interpretation of an Australian statute in the twenty-first century: see Wentworth v Rogers (No 5) supra at 541.

142 Fifth, Owens Bank Ltd v Bracco supra has not escaped criticism in the United Kingdom. In Owens Bank Ltd v Etoile Commerciale SA supra at 50 it was described by Lord Templeman speaking for the Privy Council as a decision whose result may be regretted, adding that the Board did not regard the decision in Abouloff with enthusiasm, especially in its application to countries whose judgments the United Kingdom has agreed to register and enforce. The same may equally be said of judgments of countries which Australia has agreed to register and enforce.

143 More recently in the judgment of the Privy Council in Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2011] UKPC 7; [2012] 1 WLR 1804, Lord Collins of Mapesbury summarised the arguments against the application of Abouloff v Oppenheimer & Co in the following terms, describing the arguments as powerful:

"[115] The appellants submit that the rule in Abouloff v Oppenheimer & Co should not be applied in the Isle of Man because: (a) the courts should apply the same rules in relation to foreign judgments as they apply at common law to the setting aside of a domestic judgment; (b) the rule allows the party seeking to challenge the judgment several bites at the cherry, which is unjustifiable, especially in relation to evidence and submissions which could have been put forward with reasonable diligence at the trial; (c) the rule ignores the doctrines of cause of action and issue estoppel and the nature of the doctrine of obligation, and is wrong in principle; (d) the policy underlying Abouloff v Oppenheimer & Co is objectionable and wrong, and is inconsistent with judicial comity. A policy which requires a Manx court to appropriate for itself the responsibility of deciding whether a foreign court was deceived, especially where the foreign court has its own procedure for setting aside judgments obtained in such circumstances, is anomalous and unjustifiable."

I respectfully agree.

144 Sixth, the Supreme Court of Canada has declined to adopt Abouloff v Oppenheimer & Co in considering whether foreign judgments should be set aside on the ground of fraud: Beals v Saldanha 2003 SCC 72; [2003] SCR 416 at [44]-[45].

145 Notwithstanding these criticisms the decision in Owens Bank Ltd v Bracco supra remains the law of the United Kingdom. In Rubin v Eurofinance SA supra at [129], Lord Collins of Mapesbury expressed the view that the law relating to the enforcement of foreign judgments is not an area of law which has in recent times been left to be developed by judge-made law. In Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd supra at [116], his Lordship stated that any change in a rule which has stood for almost 120 years requires "detailed argument and mature consideration". Further, Owens Bank Ltd v Bracco supra has been followed on this issue by this Court in Toubia v Schwenke supra, albeit without argument and on the basis that it was not a requirement that the fraud could not be discovered with reasonable diligence at the time of trial. In Monroe Schneider Associates (Inc) supra at 241 it was noted that it was not disputed that the law relating to the enforcement of foreign judgments in Australia was to the same effect as described by Lord Bridge in Owens Bank Ltd v Bracco.

146 Having regard to the state of authority it seems to me that as it is unnecessary to do so it is not appropriate to express a concluded view on the issue. Whatever test be adopted, fraud has not been made out.

147 There is no suggestion of any fraud activating in the decision of Goldsbrough J to call on the ANZ Bank to pay the monies the subject of the bank guarantee to the Court to the solicitor for the respondents.

Conclusion

148 It follows that the appeal should be dismissed with costs.

149 GLEESON JA: I agree with Bathurst CJ.

150 SACKVILLE AJA: I agree with Bathurst CJ.

 

 

Annexures A and B (PDF)

 

Decision last updated: 07 February 2014