Without the need for a link to the local forum, the plaintiff could enforce the foreign judgment against the defendant in an Australian court. If the defendant had presence or assets in Australia, it would be liable in Australia to any failure to comply with the foreign judgment and would therefore be compelled to comply with the foreign judgment.
As well as tying up resources of Australian courts, such a broad approach to enforcement in Australia might place Australian defendants in a disadvantageous position in international litigation. Any Australian defendant would be liable to comply with a foreign judgment, for fear of liability in Australia. The risks of cross-border transactions might actually increase, and this would deter rather than encourage Australians from entering cross-border transactions.192 Exposing Australian-based defendants to enforcement proceedings from other states may also deter businesses from doing business or establishing a presence in Australia in the first place.193
However, while this suggests that Australian courts should require a connection between Australia and the foreign judgment, the weighing test proposed by Pro Swing is overly stringent. A requirement that the foreign judgment is to be performed in Australia would deal with the concerns outlined above, while still giving maximum effect to the pro-enforcement policies.
B.Defences to Enforcement
The current defences against enforcement play an important role in ‘guarding against unfairness in its most recognisable forms’ and will play the same role in relation to non-monetary judgments, although their application may be modified.194In particular, the public policy defence may expand. As observed above, courts presently apply the public policy defence only to breaches of ordre publique rather than domestic public policy. However, enforcement of non-monetary judgments leads to an increased likelihood that enforcing the foreign judgment may cause conflict with domestic public policy. Thus, courts may need to take a more active role in guarding against conflicts of public policy. Michael Tilbury, Gary Davis and Brian Opeskin note that the ‘open-textured nature of the [public policy defence] leaves considerable scope for its application’.195 The defence could easily be used by courts to include conflicts of domestic public policy.
At present, mere inconsistency between the foreign law and Australian law is not enough to give rise to the public policy defence.196 However, it should provide a defence against the enforcement of non-monetary judgments — an Australian court should not enforce an order if the order requires a defendant to breach Australian laws or other legal obligations. Even where there is no direct breach of Australian law, a foreign judgment may nevertheless occasion breach of domestic public policy by mandating action in some inconsistent way. The public policy defence should also be enlivened in these circumstances.