361 Fraud XXX may resist the enforcement of the judgment by pleading the

361 fraud xxx may resist the enforcement of the

This preview shows page 106 - 108 out of 111 pages.

- 3.6.1 Fraud - - XXX may resist the enforcement of the judgment by pleading the judgment was obtained by fraud - XXX must be able to produce new evidence showing fraud, particularly if such evidence was not available at trial ( Boughen v Abel ). - However, even if there was evidence at the time of trial showing evidence the matter may be raised in the local forum ( Abouloff v Oppenheimer; Syal v Heyward; Owens Banks v Bracco ) - Note that this matter has not yet been considered by Australian courts - - Examples of fraud - False evidence - Forged documents - Collateral fraud i.e. violence ( Jet Holdings v Patel ) - - Abouloff v Oppenheimer - Action bought on Russian judgment ordering return of certain goods that had been detained or payment of their value - Argued before foreign court that one of parties was engaging in fraud - Foreign court considered matter and determined there was no fraud - When the judgment is being enforced in forum the issue of fraud can be raised again - HELD: it can be raised because how can a foreign court know that it hasn’t been misled, it could never have been in issue before the foreign court - - Vadala v Lawes - Accepts Abouloff - - Syal v Heyward - Even though fraud was deliberately not raised in foreign court it can be raised in forum court - - Jet Holdings v Patel - For purposes of fraud under this defence, it include collateral fraud - There was an assertion that one side had threatened violence and intimidation – this gives grounds for resisting enforcement of judgment - - English Courts Limit Traditional View - House of Spring Gardens v Waite - Fraud was re-litigated in foreign court - English court said enough, that should create an estoppel or be conclusive, was an abuse of court process to re- litigate matter - Owens Bank Ltd v Etoile Commerciale SA - English court had inherent power to prevent misuse of its process - Where an allegation of fraud has been made and determined abroad - There must be plausible evidence disclosing a prima facie case of fraud otherwise there is summary judgment or strike out the claim - Couldn’t change common law view of fraud because this would change statutory view of fraud - This view has been highly criticised – if you change the common law position then the CL just adapts - - Keele v Findley – Australia’s approach - CJ Rogers thought the time had come to abandon the traditional common law approach 106
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- There is no authority in Australia where the matter has come up fairly for decision - - - - 3.6.2 Natural Justice - - XXX may resist the enforcement of the judgment by pleading the judgment was obtained by a breach or denial of natural justice. Traditionally, the concept of natural justice does not refer to the merits of the case but to procedural aspects. - - Two such fundamental aspects of natural justice include - Due notice ( Jamieson v Robb ); and - Proper Opportunity to be Heard o Bias Bias on the part of tribunal is denial of NJ but our courts will be slow to accept there has been bias.
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