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C. The Experience of other Federation
The experience of other Federations whose law derives from the common law may be instructive concerning the form a scheme for the interprovincial enforcement on non-money judgments might take.
1. United States
The US Constitution, Art. IV s. 1 requires States to give full faith and credit to one another's laws, Acts and judicial proceedings.
This has often been used to enforce money judgments in sister States by the familiar procedure of acting on the judgment as if it were a debt. However, "an action cannot be maintained on a valid foreign judgment ordering that a defendant do or refrain from doing an act other than the payment of money." 26
"Full faith and credit" appears to work like comity in that it causes the foreign judgment to be taken as evidence of res judicata, and can lead to what we call cause of action estoppel or issue estoppel if the parties attempt to retry the matter. A brief survey of the case law reveals no instance in which Art IV, section 1 has been directly relied on as the basis for the enforcement of a non-money judgment in a state other than that in which it was made.
The Uniform Enforcement of Foreign Judgments Act27 was implemented in 1948 and amended in 1964. The 1964 revised act has been adopted in 47 states.
Section 1 of the 1964 act sets out the definition of "foreign judgment", which has not changed since 1948:
In this Act "foreign judgment" means any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state.
Section 2 provides that, upon filing, a foreign judgment will be treated in the same manner as a judgment of a court of the registering state.
The Commissioners' Comments following s. 1 of the 1948 Uniform Act stated:28
No distinction is made between judgments and decrees requiring the payment of money, ordering or restraining the doing of acts, or declaring rights or duties of any other character, whether in law or equity, in probate, guardianship, receivership, or any other type of proceedings.
This commentary has been cited in a handful of cases29 in which the interstate enforcement of non-money judgments was allowed. A superficial examination of the jurisprudence suggests, however, that there is no well-established practice in this regard.30
2. Great Britain
While Great Britain is normally thought of as a unitary state, for legal purposes it comprises three distinct law districts: England and Wales, Scotland, and Northern Ireland.
To allow enforcement of judgments across England, Wales, Scotland and Northern Ireland, the UK has long had legislation that permits a person to register a judgment with the court of any of the territorial divisions.31 Upon enrolling the judgment for debt, damages or costs, the new court then treated the judgment as its own.
This legislation made no provision for non-money orders, and it was found to not apply to injunctions.32
Following the 1968 Brussels Convention on jurisdiction and enforcement of judgments in civil and commercial matters, Britain revised its whole legislative scheme for dealing with foreign judgments to implement the convention. The Civil Jurisdiction and Judgments Act 1982 also includes new procedures for the registration and enforcement of judgments between juridical entities of the British Isles. Sections 18 and 19, and Schedules 6 and 7 allow for judgments to be enforced in parts of the United Kingdom other than where they were rendered. Schedule 7 specifically deals with the enforcement of UK non-money provisions. Upon registration, a judgment will have the same force and effect as if the judgment were issued by the registering court.33
Section 19 requires the recognition of UK judgments, and specifically removes private international law jurisdictional review from preventing recognition.
The Act makes a number of restrictions as to what judgments may be registered. Generally, excluded are:
- orders enforceable under other statutory schemes;34
- judgments concerning the legal status or capacity of an individual;35
- provisional measures other than orders for the making of interim payments;36
- orders which, if enforced, would cause a breach of the law in the registering terrirory.37
The key provisions of the 1982 Act are annexed to this report.
Australia's Constitution was modelled on that of the US, and as such it includes a "faith and credit" provision. Section 118 of The Commonwealth of Australia Constitution Act41 reads:
118. Full faith and credit shall be given throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State.
Section 51 gives the Commonwealth Parliament the power to make laws for the peace, order and good government of the Commonwealth with respect to
(xxv) The recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States.
This power has been exercised in the State and Territorial Laws and Records Recognition Act 1901-1973 (Cth); the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth); and the Service and Execution of Process Act 1992 (Cth).
The State and Territorial Laws and Records Recognition Act instructs all courts to take judicial notice of seals on orders of all other Australian courts42 and s. 18 reads:
18. All public acts, records and judicial proceedings of any State or Territory, if proved or authenticated as required by this Act, shall have such faith and credit given to them in every
Court and public office as they have by law or usage in the Courts and public offices of the State or Territory from whence they are taken.
While the State and Territorial Laws and Records Recognition Act was widely regarded as embracing the enforcement of non-money judgments,43 the Service and Execution of Process Act 1992 (Cth) has put the matter beyond doubt. Part 6 deals with the enforcement of judgments.
105. (1) Upon lodgment of a sealed copy of a judgment, or a fax of such a sealed copy, the prothonotary, registrar or other proper officer of the appropriate court in a State other than the place of rendition must register the judgment in the court.
(2) ... a registered judgment:
(a) has the same force and effect; and
(b) ... may give rise to the same proceedings by way of enforcement; as if the judgment had been given, entered or made by the court in which it is registered.
Section 3, the general definition section for the Act, defines "judgment" at length to include both money judgments and an order under which "a person is required to do or not to do an act or thing (other than the payment of money)". Judgments enforced by the Act also include orders of courts in civil and criminal proceedings and orders made by tribunals.
Section 109 specifically precludes rules of private international law from preventing interstate enforcement:
109. If a judgment is registered in a court of a State under subsection 105 (1), the courts of the State must not, merely because of the operation of a rule of private international law, refuse to permit proceedings by way of enforcement of the judgment to be taken or continued.
The effect of this provision is that a lack of jurisdiction in the court of origin cannot be raised as an objection to enforcement. The scheme seems to comtemplate that, Like the UECJA, the defendant must return to the court of origin to raise defences of this kind.44
So Australia treats money and non-money judgments alike in its enforcement legislation. A judgment is registered in the new court and treated as if it were an order originally emanating from that court. This solves all the difficulties of having to re-try the case in the new state and removes the need to consider issues of conflicts law and res judicata.
Key provisions of the Australian legislation are annexed to this report.