Mulhern & Anor v The Australian Government & Anor

Factual and Procedural Background

The Appellants brought an application under Order 71 of the Rules of the Court of Judicature (Northern Ireland) 1980 to register and enforce a foreign judgment from Australia. The application was made ex parte on 18 November 2022 against the Respondents, identified as the Australian Government and the Commonwealth of Australia. The application was dismissed by a Master on 21 November 2022 without a hearing. The Appellants appealed to the High Court, which dismissed their appeal on 9 January 2023, affirming the Master's decision on the basis that there was no judgment from Australia to enforce.

The Appellants contended that a notice of discontinuance filed in Federal Court of Australia proceedings (NSD371 of 2015) represented a binding settlement agreement entitling them to enforce a sum of $750 million plus interest. The Respondents disputed any such settlement or liability, supported by correspondence from the Australian Government Solicitor (AGS) and reference to a prior Federal Court judgment dismissing the Appellants’ claims.

The central procedural issue was whether a valid and enforceable foreign judgment existed which could be registered under the relevant statutory provisions. The Appellants relied primarily on the notice of discontinuance and related correspondence, whereas the court and Respondents maintained that no judgment or enforceable order had been made in favour of the Appellants.

Legal Issues Presented

1. Whether the Appellants had produced a valid and enforceable foreign judgment or order from an Australian court capable of registration and enforcement in Northern Ireland under Order 71 and the relevant reciprocal enforcement statutes.
2. Whether the notice of discontinuance filed in the Australian Federal Court proceedings constituted a judgment or order for the purposes of registration and enforcement.
3. Whether the Appellants’ application under Order 71, absent a certified foreign judgment, constituted an abuse of process.

Arguments of the Parties

Appellants' Arguments

• The Appellants contended that the notice of discontinuance filed in the Federal Court of Australia proceedings reflected a binding settlement agreement whereby the Australian Government agreed to pay compensation of $750 million plus interest.
• They argued that the failure of the Australian Government Solicitor to dispute the terms of the notice of discontinuance upon service amounted to acceptance of its contents.
• The Appellants relied on the fact that the notice was filed and accepted by the Australian court’s electronic filing system as evidence of its validity and enforceability.
• They also referenced a purported binding settlement agreement allegedly entered into with the Australian Government in 2020 and contended that the Australian Government had breached this agreement.

Respondents' Arguments

• The Respondents denied any settlement or liability towards the Appellants.
• Correspondence from the Australian Government Solicitor stated that no order had been attached to the Appellants’ correspondence and that the notice of discontinuance was misconceived.
• The Respondents highlighted the Federal Court’s prior summary judgment against the Appellants, dismissing their claims and ordering costs against them.
• They maintained that the notice of discontinuance was not a judgment or order and that the Appellants had no entitlement to any sums claimed.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by emphasizing that the statutory framework for registering foreign judgments under Order 71 and the relevant Acts requires a certified copy of a foreign judgment or order to be produced. The judgment must be a determination by a court that a sum of money is payable. The Appellants failed to provide any such certified judgment from the Australian court.

The notice of discontinuance relied upon by the Appellants was not a judgment or enforceable order; it was a procedural document indicating discontinuance of proceedings, accompanied by disputed and self-serving terms that the court found unsubstantiated.

The court noted that the Appellants’ reliance on the absence of a response from the Respondents to the notice of discontinuance did not amount to acceptance or a binding agreement. The Respondents’ correspondence explicitly denied any settlement or liability.

The Federal Court of Australia had previously dismissed the Appellants’ proceedings and awarded costs against them, confirming the lack of any enforceable entitlement. The acceptance of the notice of discontinuance for electronic filing did not equate to judicial endorsement or a judgment.

Accordingly, the court concluded that there was no foreign judgment capable of registration and enforcement. The Appellants’ application was therefore properly dismissed, and proceeding in the absence of a certified judgment was potentially an abuse of process.

Holding and Implications

The appeal is DISMISSED, and the order of the High Court Judge affirming the Master’s dismissal of the application is upheld.

The direct effect of this decision is that the Appellants may not register or enforce the purported foreign judgment or settlement in Northern Ireland as no valid foreign judgment exists. No new legal precedent was established, and the court expressly refrained from addressing the merits of the underlying disputes in Australia.