However, applying defences based on the nature of the order would require an Australian court to be familiar with the facts of the original proceedings. It would also require an Australian court to be familiar with the foreign law. Although Australian courts might be familiar with similar systems of law, such as equity, the same could not be said for other systems of law such as civil law or Sharia law. Even if the Australian court were broadly familiar with the foreign legal system, such doctrines might have developed differently in other jurisdictions. As mooted above, a preferable approach in this situation would be for the Australian court to stay enforcement proceedings, allowing the foreign court, already familiar with the proceedings, to determine if the circumstances warranted amending the order.
C.The Form of the Remedy
One final issue that may arise is the remedy granted by the foreign court. If the judgment satisfies the requirements for enforcement, and there are no applicable defences, the local court will enforce the foreign judgment by issuing a local order. In cases where the remedy granted by the foreign court is one available in the local forum, then that remedy can be granted. Australian courts will be familiar with many foreign non-monetary remedies, especially those from other common law jurisdictions.204 However, in some cases, the remedy granted by the foreign court will not exist in Australia. As the majority in Pro Swing explained, ‘comity does not require receiving courts to extend greater judicial assistance to foreign litigants than it does to its own litigants’.205 The local court should try to grant a local remedy that fulfils the same objectives as the foreign order as far as possible,206although this is likely to require some further litigation to determine the most analogous remedy. The remedy granted by the foreign court may also be so different that enforcement is not at all possible.207
D.The Role of the Foreign Court
Many of the concerns raised in this part can be addressed by the foreign court. A court that wishes another court to enforce its judgment can do much to aid this by, for example, ensuring that its order is specific, clear about its territorial scope, and makes provision for the protection of third parties.208 The standard provisions developed for worldwide Mareva orders, which include provisions for the protection of the defendant and other third parties, could provide guidance on the formulation of other foreign judgments.