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Foreign Judgments (Reciprocal Enforcement) Act 1973

REPUBLIC OF NAURU

FOREIGN JUDGMENTS (RECIPROCAL ENFORCEMENT) ACT 1973

(No. 4 of 1973)

ARRANGEMENT OF SECTIONS

Section

PART I
PRELIMINARY

1. Short Title
2. Interpretation

PART II
REGISTRATION OF FOREIGN JUDGMENTS

3. Power to extend this Part of Act to foreign countries giving reciprocal treatment
4. Application for, and effect of, registration of foreign judgment
5. Rules of court
6. Cases in which registered judgments must, or may, be set aside
7. Powers of Supreme Court on application to set aside registration
8. Foreign judgments which can be registered not to be enforceable otherwise

PART III
MISCELLANEOUS

9. General effect of certain foreign judgments
10. Power to make foreign judgments unenforceable in Nauru if no reciprocity
11. Issue of certificates of judgments of Supreme Court

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AN ACT

To make provision for the enforcement in Nauru of judgments given in foreign countries which accord reciprocal treatment to judgments given in Nauru, for facilitating the enforcement in foreign countries of judgments given in Nauru, and for other purposes in connection with those matters.

(Certified: 16th May, 1973)

Enacted by the Parliament of Nauru as follows:

PART I -PRELIMINARY

SHORT TITLE

1. This Act may be cited as the Foreign Judgments (Reciprocal Enforcement) Act 1973.

INTERPRETATION

2. (1) In this Act, unless the context otherwise requires -

"appeal" includes any proceeding by way of discharging or setting aside a judgment or an application for a new trial or a stay of execution;

"country of the original court" means the country in which the original court is situated and, in the case of Australia, the United States of America or any other country which has a federal constitution, includes a State or other constituent part thereof;

"foreign country" includes a country which is a member of the Commonwealth;

"judgment" means a judgment or order given or made by a court in any civil proceedings, or a judgment or order given or made by a court in any criminal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party and includes an award in proceedings on an arbitration, if the award has, in pursuance of the law in force in the place where it was made, become enforceable in the same manner as a judgment given by a court in that place;

"judgment creditor" means the person in whose favour the judgment was given and includes any person in whom the rights under the judgment have become vested by succession or assignment or otherwise;

"judgment debtor" means the person against whom the judgment was given, and includes any person against whom the judgment is enforceable under the law of the original court;

"original court" in relation to any judgment means the court by which, the judgment was given;

"prescribed" means prescribed by rules of court;

"registration" means registration under Part II of this Act, and the expressions ''register" and "registered" shall be construed accordingly.

(2) For the purposes of this Act, the expression "action in personam" shall not be deemed to include any matrimonial cause or any proceedings in connection with any of the following matters, that is to say, matrimonial matters, administration of the estates of deceased persons, bankruptcy, insolvency, winding-up of corporations, lunacy or guardianship of infants.

PART II - REGISTRATION OF FOREIGN JUDGMENTS

POWER TO EXTEND THIS PART OF ACT TO FOREIGN COUNTRIES GIVING RECIPROCAL TREATMENT

3. - (1) The Cabinet, if it is satisfied that, in the event of the benefits conferred by this Part of this Act being extended to judgments given in the superior courts of any foreign country, substantial reciprocity of treatment will be assured as respects the enforcement in that foreign country of judgments given in the Supreme Court of Nauru, may by an order published in the Gazette direct -

(a) that this Part of this Act shall extend to that foreign country; and

(b) that such courts of that foreign country as are specified in the Order shall be deemed superior courts of that country for the purposes of this Part of this Act.

(2) Subject to the next following subsection, any judgment of a superior court of a foreign country to which this Part of this Act extends, other than a judgment of such a court given on appeal from a court which is not a superior court, shall be a judgment to which this Part of this Act applies, if -

(a) it is final and conclusive as between the parties thereto;

(b) there is payable thereunder a sum of money, not being a sum payable in respect of taxes, death duty, estate duty or other charges of a like nature or in respect of a fine or other penalty; and

(c) it is given after the coming into operation of the order directing that this Part of this Act shall extend to that foreign country.

(3) This Part of this Act shall not apply to any judgment where -

(a) the judgment debtor, being a person who was neither carrying on business nor ordinarily resident in the country of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court; or

(b) the judgment debtor, being the defendant in the proceedings, was not duly served with the process of the original court and did not appear, notwithstanding that he was ordinarily resident or was carrying on business in the country of the original court or agreed to submit to the jurisdiction of that court.

(4) For the purposes of this section, a judgment shall be deemed to be final and conclusive notwithstanding that an appeal may be pending against it, or that it may still be subject to appeal, in the courts of the country of the original court.

(5) The Cabinet may by a subsequent order published in the Gazette vary or revoke any order previously made under this section.

APPLICATION FOR, AND EFFECT OF, REGISTRATION OF FOREIGN JUDGMENT

4. (1) A person, being a judgment creditor under a judgment to which this Part of this Act applies, may apply to the Supreme Court at any time within six years after the date of the judgment, or, where there have been proceedings by way of appeal against the judgment, after the date of the last judgment given in those proceedings, to have the judgment registered in the Supreme Court, and on any such application the Court shall, subject to proof of the prescribed matters and to the other provisions of this Act, order the judgment to be registered:

Provided that a judgment shall not be registered if at the date of the application -

(a) it has been wholly satisfied; or

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

(2) Subject to the provisions of this Act with respect to the setting aside of registration -

(a) a registered judgment shall, for the purposes of execution, be of the same force and effect;

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

(c) the sum for which a judgment is registered shall carry interest; and

(d) the Supreme Court shall have the same control over the execution of a registered judgment;

as if the judgment had been a judgment originally given in the Supreme Court and entered on the date of registration:

Provided that execution shall not issue on the judgment so long as, under this Part of this Act and the rules of court made thereunder, it is competent for any party to make an application to have the registration of the judgment set aside, or, where such an application is made, until after the application has been finally determined.

(3) Where the sum payable under a judgment which is to be registered is expressed in a currency other than Australian currency, the judgment shall be registered as if it were a judgment for such sum in Australian currency as, on the basis of the rate of exchange prevailing at the date of judgment of the original court, is equivalent to the sum so payable.

(4) If at the date of the application for registration the judgment of the original court has been partly satisfied, the judgment shall not be registered in respect of the whole sum payable under the judgment of the original court, but only in respect of the balance remaining payable at that date.

(5) If, on an application for the registration of a judgment, it appears to the Supreme Court that the judgment is in respect of different matters and that some, but not all, of the provisions of the judgment are such that if those provisions had been contained in separate judgments those judgments could properly have been registered, the judgment may be registered in respect of the provisions aforesaid but not in respect of any other provisions contained therein.

(6) In addition to the sum of money payable under the judgment of the original court, including any interest which by the law of the country of the original court becomes due under the judgment up to the time of registration, the judgment shall be registered for the reasonable costs of and incidental to registration, including the costs of obtaining a certified copy of the judgment from the original court.

RULES OF COURT

5. (1) The Chief Justice may make rules of court for the following purposes -

(a) for making provision with respect to the giving of security for costs by persons applying for the registration of judgments;

(b) for prescribing the matters to be proved on an application for the registration of a judgment and for regulating the mode of proving those matters;

(c) for providing for the service on the judgment debtor of notice of the registration of a judgment;

(d) for making provision with respect to the fixing of the period within which an application may be made to have the registration of the judgment set aside and with respect to the extension of the period so fixed;

(e) for prescribing the method by which any question arising under this Act whether a foreign judgment can be enforced by execution in the country of the original court, or what interest is payable under a foreign judgment under the law of the original court, is to be determined;

(f) for prescribing any matter which under this Part of this Act is to be prescribed.

(2) Rules made for the purposes of this Part of this Act shall be expressed to have, and shall have, effect subject to any such provisions contained in orders made under section 3 of this Act as are declared by the said orders to be necessary for giving effect to agreements made between Nauru and foreign countries in relation to matters with respect to which there is power to make rules of court for the purposes of this Part of this Act.

CASES IN WHICH REGISTERED JUDGMENTS MUST, OR MAY, BE SET ASIDE

6. (1) On application in that behalf duly made by any party against whom a registered judgment may be enforced the registration of the judgment -

(a) shall be set aside if the Supreme Court is satisfied -

(i) that the judgment is not a judgment to which this Part of this Act applies or was registered in contravention of the preceding provisions of this Act;

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

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

(iv) that the judgment was obtained by fraud;

(v) that the enforcement of the judgment would be contrary to public policy in Nauru; or

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

(b) may be set aside if the Supreme Court is satisfied that the matter in dispute in the proceedings in the original court had previously to 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.

(2) For the purposes of this section the courts of the country of the original court shall, subject to the provisions of subsection (3) of this section, be deemed to have had jurisdiction-

(a) in the case of a judgment given in an action in personam -

(i) if the judgment debtor, being a defendant in the original court, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings otherwise than for the purpose of protecting, or obtaining the release of, property seized, or threatened with seizure, in the proceedings or of contesting the jurisdiction of that court;

(ii) if the judgment debtor was plaintiff in, or counter-claimed in, the proceedings in the original court;

(iii) if the judgment debtor, being a defendant in the original court, had before the commencement of the proceedings agreed, in respect of the subject matter of the proceedings, to submit to the jurisdiction of that court or of the courts of the country of that court;

(iv) if the judgment debtor, being a defendant in the original court, was at the time when the proceedings were instituted resident in, or being a body corporate had its principal place of business in, the country of that court; or

(v) if the judgment debtor, being a defendant in the original, court, had an office or place of business in the country of that court and the proceedings in that court were in respect of a transaction effected through or at that office or place;

(b) in the case of a judgment given in an action of which the subject matter was immovable property or in an action in rem of which the subject matter was movable property, if the property in question was at the time of the proceedings in the original court situate in the country of that court;

(c) in the case of a judgment given in an action other than any such action as is mentioned in paragraph (a) or paragraph (b) of this subsection, if the jurisdiction of the original court is recognised by the law of Nauru.

(3) Notwithstanding anything in subsection (2) of this section, the courts of the country of the original court shall not be deemed to have had jurisdiction -

(a) if the subject matter of the proceedings was immovable property outside the country of the original court;

(b) except in the cases mentioned in sub-paragraphs (i), (ii) and (iii) of paragraph (a) and in paragraph (c) of subsection (2) of this section, if the bringing of the proceedings in the original court was contrary to an agreement under which the dispute in question was to be settled otherwise than by proceedings in the courts of the country of that court; or

(c) if the judgment debtor, being a defendant in the original proceedings, was a person who under the rules of public international law was entitled to immunity from the jurisdiction of the courts of the country of the original court and did not submit to the jurisdiction of that court.

POWERS OF SUPREME COURT ON APPLICATION TO SET ASIDE REGISTRATION

7. (1) If, on an application to set aside the registration of a judgment, the applicant satisfies the Supreme Court either that an appeal is pending or that he is entitled and intends to appeal, against the judgment, the Court, if it thinks fit, may, on such terms as it may think just, either set aside the registration or adjourn the application to set aside the registration until after the expiration of such period as appears to the Court to be reasonably sufficient to enable the applicant to take the necessary steps to have the appeal disposed of by the competent tribunal.

(2) Where the registration of a judgment is set aside under the last preceding subsection, or solely for the reason that the judgment was not at the date of the application for registration enforceable by execution in the country of the original court, the setting aside of the registration shall not prejudice a further application to register the judgment when the appeal has been disposed of or if and when the judgment becomes enforceable by execution in that country, as the case may be.

(3) Where the registration of a judgment is set aside solely for the reason that the judgment, notwithstanding that it had at the date of the application for registration been partly satisfied, was registered for the whole sum payable thereunder, the Supreme Court shall, on the application of the judgment creditor, order judgment to be registered for the balance remaining payable at that date.

FOREIGN JUDGMENTS WHICH CAN BE REGISTERED NOT TO BE ENFORCEABLE OTHERWISE

8. No proceedings for the recovery of a sum payable under a foreign judgment, being a judgment to which this Part of this Act applies, other than proceedings by way of registration of the judgment, shall be entertained by any Court in Nauru.

PART III – MISCELLANEOUS

GENERAL EFFECT OF CERTAIN FOREIGN JUDGMENTS

9. (1) Subject to the provisions of this section, a judgment to which Part II of this Act applies or would have applied if a sum of money had been payable thereunder, whether it can be registered or not, and whether, if it can be registered, it is registered or not, shall, notwithstanding the provisions of section 7 of the Civil Procedure Act 1972, be recognised in any Court in Nauru as conclusive between the parties thereto in all proceedings founded on the same cause of action and may be relied on by way of defence or counterclaim in any such proceedings.

(2) This section shall not apply in the case of any judgment -

(a) where the judgment has been registered and the registration thereof has been set aside on some ground other than -

(i) that a sum of money was not payable under the judgment;

(ii) that the judgment had been wholly or partly satisfied; or

(iii) that at the date of the application the judgment could not be enforced by execution in the country of the original court; or

(b) where the judgment has not been registered, it is shown, whether it could have been registered or not, that if it had been registered the registration thereof would have been set aside on an application for that purpose on some other ground other than one of the grounds specified in paragraph (a) of this subsection.

(3) Nothing in this section shall be taken to prevent any Court in Nauru recognising any judgment as conclusive of any matter of law or fact decided therein if that judgment would have been so recognised before the passing of this Act.

POWER TO MAKE FOREIGN JUDGMENTS UNENFORCEABLE IN NAURU IF NO RECIPROCITY

10. (1) If it appears to the Cabinet that the treatment in respect of recognition and enforcement accorded by the courts of any foreign country to judgments given in the Supreme Court of Nauru is substantially less favourable than that accorded by the Supreme Court of Nauru to judgments of the superior courts of that country, the Cabinet may by an order published in the Gazette apply this section to that country.

(2) Except in so far as the Cabinet may by an order under this section otherwise direct, no proceedings shall be entertained in any Court in Nauru for the recovery of any sum alleged to be payable under a judgment given in a court of a country to which this section applies.

(3) The Cabinet may by a subsequent order published in the Gazette vary or revoke any order previously made under this section.

ISSUE OF CERTIFICATES OF JUDGMENTS OF SUPREME COURT

11. Where a judgment under which a sum of money is payable, not being payable in respect of a fine or other penalty, has been entered in the Supreme Court against any person and the judgment creditor is desirous of enforcing the judgment in a foreign country to which Part II of this Act applies, the Court shall, on an application made by the judgment creditor and on payment of such fee as may be prescribed by rules of court, issue to the judgment creditor a certified copy of the judgment, together with a certificate containing such particulars with respect to the action, including the causes of action, and the rate of interest, if any, payable on the sum payable under the judgment, as may be prescribed:

Provided that, where execution of a judgment is stayed for any period pending an appeal or for any other reason, an application shall not be made under this section with respect to the judgment until the expiration, of that period.

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