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Accident Compensation Cases

Re Morgan ex parte Brierley Holdings Ltd (HC, 01/09/09)

Judgment Text

Heath J
Mr Morgan seeks an order registering two judgments given in his favour by the Supreme Court of New South Wales. Brierley Holdings Ltd, the alleged judgment debtor, opposes the application. 
On 5 October 1998, Mr Morgan was employed by Union Shipping (New Zealand) Ltd (Union Shipping NZ) as a seaman. He was working on a coal barge at the Port Kembla Coal Terminal, in New South Wales. Coal was being unloaded from the barge, through the use of a mechanical conveyor belt. Mr Morgan was physically injured when the conveyor belt malfunctioned. His arm became caught in the conveyor belt rollers, causing severe injury. 
The law on personal injury claims in New South Wales and New Zealand is very different. In New Zealand, there is a no fault compensation regime created by statute. In New South Wales, juries continue to hear personal injury claims and, if successful, award damages. 
The proceedings in New South Wales 
Mr Morgan brought a personal injury claim in the Supreme Court of New South Wales, to recover damages for alleged negligence by the employer. Union Shipping NZ (a company registered in New Zealand) protested the jurisdiction of the New South Wales Courts. 
The protest was based on two grounds: 
the applicable law was that of New Zealand; and 
New Zealand was the most appropriate forum. 
On the first of those grounds, Union Shipping NZ contended that Mr Morgan's remedies were limited to those available under the New Zealand accident compensation scheme. 
Union Shipping NZ's protest to jurisdiction was heard by Sperling J, in March 2001. In a judgment given on 4 May 2001, the Judge held that the law of New South Wales applied and that the Supreme Court of New South Wales was the most appropriate forum to determine Mr Morgan's claims. 
Union Shipping NZ appealed to the Court of Appeal of New South Wales. The appeal was dismissed on 14 June 2002. 
After the Court of Appeal's decision, Union Shipping NZ elected to take no steps in the substantive proceeding. Not having contested the merits of the proceeding, Union Shipping NZ has never submitted to the jurisdiction of the New South Wales Courts. 
On 21 January 2003, the Supreme Court entered judgment, by default, against Union Shipping NZ. Judgment was entered for both damages and costs, to be assessed. 
On 28 July 2003, the Supreme Court ordered that Union Shipping Group Ltd be substituted as the defendant in the proceeding, in the place of Union Shipping NZ. Union Shipping Group Ltd had been formed as a result of an amalgamation of nine different companies, including Union Shipping NZ, under Part 13 of our Companies Act 1993. 
On 20 September 2004, leave was granted to Mr Morgan to proceed against Union Shipping Group Ltd and to enforce the Supreme Court costs order against Union Shipping Group Ltd, as if the judgments had been entered against that company. 
On 11 October 2005, the Supreme Court appointed a costs assessor to determine the party and party costs to which Mr Morgan was entitled in the substantive proceeding. 
Mr Morgan's claim for damages was assessed at $AUD1,344,046. On 9 March 2006, the Supreme Court ordered Union Shipping Group Ltd to pay that sum, plus the assessed costs. Some costs, in relation to the first instance and appellate processes, have been fixed. They total $AUD61,428.19. 
On 28 February 2007, subsequent to the entry of judgment, Union Shipping Group Ltd amalgamated with two other companies, to become Brierley Holdings Ltd. Mr Morgan contends that Brierley Holdings has become the judgment debtor, even though no formal orders in that regard have been made in the New South Wales Courts. 
Why is registration opposed? 
Brierley Holdings opposes the application on three broad bases: 
First, there is no evidence that the judgments would be enforceable against Brierley Holdings, as a matter of New South Wales Law. 
Second, it contends that, notwithstanding the “protest” judgments, the Supreme Court of New South Wales lacked jurisdiction to hear and determine the personal injury claim. 
Third, it would be contrary to New Zealand public policy to register a foreign judgment against a New Zealand employer arising out of a personal injury by accident, when the employee has received some recompense for the same injury under the New Zealand accident compensation scheme. 
The factual relevance of the accident compensation claim 
At the time that Mr Morgan was employed by Union Shipping NZ, he lived with his family in Brisbane. Occasionally, he would travel to New Zealand to visit his wider family and friends. Immediately after the accident, Mr Morgan remained in Australia, receiving medical treatment in both Wollongong and Brisbane. 
In December 1998, Mr Morgan returned to New Zealand and was treated at Nelson Hospital. He continued to live in Nelson while he recuperated, returning to Brisbane in March 1999. 
Between March 1999 and March 2000, with the exception of three or four visits to New Zealand for medical treatment, Mr Morgan remained in Brisbane. Between March and July 2000, he moved back to New Zealand to have surgery to remove a metal plate from his arm. Since July 2000, Mr Morgan has lived in Queensland with his family. 
At the time of the accident Mr Morgan was a member of the New Zealand Seafarers' Union. As part of the Collective Employment Agreement between that Union and Union Shipping NZ, provision was made for an employee to be entitled to benefits provided by the Accident Rehabilitation and Compensation Insurance Act 1992, the accident compensation statute in force at the time of Mr Morgan's injury. 
Although Mr Morgan received accident compensation payments while in New Zealand, it has always been understood that he would reimburse the Corporation from any successful personal injury claim brought in New South Wales. The extent of compensation requiring reimbursement is relatively high: compensation for inability to work resulted in payment of $NZD210,419.12 between August 1999 and late 2005. Mr Morgan also received treatment and rehabilitation costs of $NZD33,487.89. 
During the course of the hearing on 8 June 2009, Mr Knight, for Brierley Holdings, withdrew the opposition based on the allegation of “windfall” recovery on the grounds that Mr Morgan was required to reimburse the Corporation out of any recovery from the Australian litigation. 
Registration of foreign judgments 
Mr Morgan's application is made under s 4(1) of the Reciprocal Enforcement of Judgments Act 1934 (the Act). It is accepted that s 4 applies to a judgment entered in New South Wales. 
Section 4(1) provides: 
“4 Application for, and effect of, registration of judgment 
A person, being a judgment creditor under a judgment to which this Part of this Act applies, may apply to the High Court at any time within 6 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 High Court, and on any such application the said 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— 
It has been wholly satisfied; or 
It could not be enforced in the country of the original Court. 
… ”
Ordinarily, registration of a foreign judgment is ordered on proof of formal requirements. Once registered, a judgment debtor may apply to the High Court to have registration set aside. In this case, for reasons of efficiency, the parties have agreed to argue, on the application to register, issues that would ordinarily be addressed on an application to set aside registration. As to the appropriate procedure, see generally, Laws NZ, Conflict of Laws: Jurisdiction and Foreign Judgments, at paras 47-53 (inclusive). 
Section 6 of the Act sets out the grounds on which a judgment debtor may apply to set aside a registered judgment. Section 6(1)(b) and (e) is relevant to the present application: 
“6 Cases in which registered judgments must, or may, be set aside 
On an application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration of the judgment shall be set aside if the High Court is satisfied— 
That the Courts of the country of the original Court had no jurisdiction in the circumstances of the case; or 
That the enforcement of the judgment, not being a judgment of a superior Court or an inferior Court of Australia under which Australian tax is payable, would be contrary to public policy in New Zealand; or 
Section 6(3) of the Act provides a list of circumstances in which a foreign Court is deemed to have jurisdiction: 
For the purposes of this section the Courts of the country of the original Court shall, subject to the provisions of subsection (4) of this section, be deemed to have had jurisdiction— 
In the case of a judgment given in an action in personam— 
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; or 
If the judgment debtor was plaintiff in, or counterclaimed in, the proceedings in the original Court; or 
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; or 
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 
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: 
If Australian tax is payable under the judgment: 
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: 
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 the registering Court. ”
Notwithstanding the concurrent jurisdictional findings of the Supreme Court and Court of Appeal of New South Wales, Brierley Holdings contends that jurisdiction did not exist (at least for the purposes of registration of the judgments in New Zealand) because none of the circumstances set out in s 6(3) apply. 
Is Brierley Holdings the “judgment debtor”
The first question is whether Brierley Holdings is the party against which proceedings under the Act should be taken. As mentioned in para [10] above, Union Shipping Group Ltd and two other companies amalgamated on 28 February 1997 to form Brierley Holdings. 
Part 13 of the Companies Act 1993 governs the amalgamation procedure. Section 219 provides: 
Two or more companies may amalgamate, and continue as one company, which may be one of the amalgamating companies, or may be a new company. ”
After amalgamation has been completed, the Registrar of Companies issues a certification of incorporation in respect of the amalgamated company. A certificate, to that effect, has been issued in respect of the amalgamation that led to the incorporation of Brierley Holdings, as an amalgamated company. 
The effect of a certificate of amalgamation is set out in s 225 of the Companies Act. Relevantly, for the purposes of this case: 
Effect of certificate of amalgamation 
On the date shown in a certificate of amalgamation,— 
The amalgamation is effective; and 
The amalgamated company succeeds to all the liabilities and obligations of each of the amalgamating companies; and 
Proceedings pending by, or against, an amalgamating company may be continued by, or against, the amalgamated company; and 
A conviction, ruling, order, or judgment in favour of, or against, an amalgamating company may be enforced by, or against, the amalgamated company; and ”
… (my emphasis) 
The combined effect of s 225(e), (f) and (g) means, in my view, that Brierley Holdings became the “judgment debtor” upon the issue of the certificate of amalgamation. The effects are not limited to debts incurred or judgments entered in New Zealand. 
There is no reason why, as a matter of New Zealand law, the amalgamated company should be in any better position, in relation to its potential liability to another, merely because a formal order has not been made in a foreign proceeding to substitute the amalgamated company's name as a defendant. 
I hold that Brierley Holdings is the judgment debtor, for the purposes of this application. 
The central question is whether it is necessary to meet at least one of the criteria in s 6(3) to obtain an order registering a foreign judgment. To put the point another way, does s 6(3) represent an exhaustive list of circumstances in which the jurisdiction of the foreign Court is accepted for registration purposes? 
I am satisfied that the judgment obtained in New South Wales does not fall within any of the criteria set out in s 6(3)(a). Although Mr Wadsworth, for Mr Morgan, submitted that s 6(3)(a)(v) applied, I hold it does not. There is no evidence that Union Shipping NZ had an “office or place of business” in New South Wales, through which a transaction to which the proceeding relates was effected. The transitory presence of a vessel owned by a ship-owning company in foreign waters cannot be enough to amount to that company having “an office or place of business” in the foreign jurisdiction. 
Section 6(1)(c) makes it clear that a judgment of a foreign Court ought not to be registered in New Zealand if “in the circumstances of the case”, “the original Court had no jurisdiction”. Section 6(3) specifies circumstances in which the original Court will be deemed to have had jurisdiction. 
In Gordon Pacific Developments Pty Ltd v Conlon [1993] 3 NZLR 760 (HC)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] , Henry J considered a similar question, in the context of an application to enforce a judgment given in the District Court at Southport, in Queensland. The report suggests that the defendant elected to take no steps rather than to protest the Queenland Court's jurisdiction. 
Henry J followed the approach taken in Sharps Commercials Ltd v Gas Turbines Ltd [1956] NZLR 819 (SC)Has Cases Citing which are not known to be negative[Green]  and Société Co-operative Sidmetal v Titan International Ltd [1966] 1 QB 828 (QBD)Has Cases Citing which are not known to be negative[Green] . Having paraphrased observations made by McGregor and Widgery JJ respectively, in those cases, Henry J continued, at 765: 
“If the provisions of s 6(3)(a) concerning judgments in personam were not intended to be exhaustive, there would be no need for its detailed provisions, which largely but not entirely incorporate the common law. The exhaustive nature of the provisions of both paras (a) and (b) is also made clear by para (c), which in contrast refers in general terms to a jurisdiction which is recognised by New Zealand law. If some other basis of recognition additional to those specified in paras (a) and (b) were to qualify under those heads, then an appropriate provision would have been included. 
The intention of s 6(3) is clear. Jurisdiction in respect of judgments in personam is recognised under and only under para (a); in respect of judgments where the subject-matter is immovable property or movable property in the case of an action in rem there is recognition under para (b): in actions not under either para (a) or para (b) jurisdiction must be recognised by the existing law. It is a comprehensive provision. It is common ground that the present judgments do not meet any of the criteria set out in s 6(3)(a), and accordingly the jurisdiction of the Queensland District Court cannot be recognised under that head. ”
Henry J also concluded that there was no general principle of comity which could avail a plaintiff in the circumstances before him. That proposition is amply supported by the authorities, for example Adams v Cape Industries Plc [1990] 2 WLR 765 (Ch D and CA)
During the course of the hearing, I expressed concerns about whether the prior authorities had dealt specifically with the particular problem that had emerged in this case. In particular, I discerned that there were no other authorities that had considered whether full argument on a contested protest to jurisdiction application would make any difference to the outcome of a registration application. I invited counsel to confer on this issue and to provide further submissions in writing, should they wish to do so. Both counsel, subsequently, filed helpful further submissions. 
The authorities to which Mr Knight has now referred me demonstrate clearly that his argument is correct. Not only are the authorities consistent on the need for s 6(3) to be interpreted in an exhaustive fashion, but there has been no criticism of that approach in any of the leading texts on conflict of laws. 
The fundamental proposition is that, in determining its own jurisdiction, the foreign Court applies its own conflict of laws' rules, which may or may not be the same as others applied in New Zealand. The position was put most strongly by Staughton LJ, in Jet Holdings Inc v Patel [1989] 2 All ER 648 (CA) at 652: 
“Where the objection to enforcement is based on jurisdiction, that is r 43, it is to my mind plain that the foreign court's decision on its own jurisdiction is neither conclusive nor relevant. If the foreign court had no jurisdiction in the eyes of English law, any conclusion it may have reached as to its own jurisdiction is of no value. To put it bluntly, if not vulgarly, the foreign court cannot haul itself up by its own bootstraps. ”
Having regard to the increase in trade between Australia and New Zealand, even since Gordon Pacific Developments Pty Ltd v Conlon was decided, I retain reservations about the appropriateness of this approach, particularly when there is likely to be little difference between conflicts of laws principles applied in Australia and New Zealand and a considered judgment has been given by an Australian Court, after hearing full argument. 
However, my concerns have been assuaged by a recent Treaty entered into between Australia and New Zealand, whereby a wider jurisdiction to register judgments given on each side of the Tasman will be conferred: Trans-Tasman Court Proceedings and Regulatory Enforcement Treaty. It is clear from a Working Group report of December 2006 that led to that Treaty, that the type of problem that has arisen in this case was seen as a reason to extend recognition of mutual judgments in the two jurisdictions. 
It follows that Mr Morgan's application must fail. 
Public policy 
It is unnecessary to deal with this issue in detail, having regard to my findings on the s 6(3) point. I express a view briefly, in case the jurisdiction point were taken on appeal. 
In my view, it would not have been contrary to public policy to allow Mr Morgan to register his judgment. He was injured within the jurisdiction of the New South Wales Courts and it was open to him to proceed in that jurisdiction. 
It is clear that the Accident Compensation Corporation was aware of the issue of proceedings in New South Wales and that arrangements were made for reimbursement should damages have been successfully obtained. 
For the reasons given, the application is dismissed. 
Costs are awarded in favour of Brierley Holdings on a 2B basis, together with reasonable disbursements. Both costs and disbursements shall be fixed by the Registrar. I do not certify for second counsel. 

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