Does it make any difference if we are in Texas or not.?
Obviously, and based on what the judges are saying, it does not.
Read below.:
C. Collection of the Judgment
Central initially asserted that any judgment against it must be registered in Australia for enforcement and will have to be collected in Australia. In our original opinion, we wrote, Assuming, without deciding, that this is correct, Central does not explain why it is unfair or unjust to a foreign company that a judgment against it must be registered and collected in the same place where the company is located. We see no reason to consider such requirements unfair or unjust when neither Central nor GRR claim to be burdened by them. In its reply brief, however, Central reversed its position, and instead argued that “Australia’s Foreign Judgments Act of 1991 allows judgments from certain countries to be registered and enforced,” but that the United States is not a participating country, so that a judgment from this country cannot simply be registered, and an Australian court instead would have to determine under its common law whether a Texas judgment is enforceable. Still later, Central filed a post-submission brief stating that an Australian trial court had rendered an opinion “regarding the same dispute between the same parties.” Although Central attached a copy of the opinion, it did not specifically ask that we take judicial notice of it. After we issued our original opinion, however, GRR filed a motion asking us to deny Central the right to file a motion for rehearing, and GRR, too, attached a copy of the Australian court’s opinion. Like Central, GRR did not ask us to take judicial notice of the opinion. Finally, Central filed a motion for rehearing in which it asserted that “no judgment will be enforceable without litigating this case in Australia,” and again relied on the Australian court’s opinion. To resolve these arguments about whether a Texas judgment is enforceable in Australia and about the effect of the Australian court’s opinion, we will briefly discuss Australian law, and construing the parties’ references to the Australian trial court’s opinion as a request for judicial notice,14 before discussing what was and was not decided by that ruling.15 1. Australia’s Enforcement of a Texas Judgment Australia’s Foreign Judgments Act of 1991 (“the FJA”) allows judgments from participating countries to be registered for enforcement in Australia, while the enforceability of judgments from non-participating countries such as the United States are decided under Australia’s common law. It appears, however, that under both the FJA and the common law, an Australian court determines enforcement not by relitigating the case as Central contends, but by determining whether the foreign court had jurisdiction. Moreover, under both the FJA and Australian common law, a contractual forum-selection clause confers jurisdiction on the foreign court: For both registration under the FJA and enforcement at common law, the foreign Court must have had, inter alia, jurisdiction in the ‘international’ sense—that is, jurisdiction established by residence in the foreign country, submission to the jurisdiction of the foreign Court, or an agreement to so submit (as, for example, in a choice of forum clause in a contract).
Paul Hughes and Mark Wilks, Australia, in TRANSNATIONAL LITIGATION: A PRACTITIONER’S GUIDE § 2:9 (John Fellas ed., Thompson Reuters 1997 & Supp. Dec. 2017). That is the very basis on which this court affirmed the trial court’s denial of Central’s special appearance. The Australian common-law in this respect is similar to the treatment in Texas of another nation’s judgment under the Uniform Foreign-Country Money Judgments Recognition Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 36A.001–.011 (West Supp. 2017). A Texas court may not recognize the judgment of a foreign country if the foreign country lacked personal jurisdiction over the defendant. See id. § 36A.004(b)(2). But, a Texas court will not refuse enforcement for lack of personal jurisdiction if the action falls within the scope of an agreed forum-selection clause. See id. § 36A.005(a)(3).16 The same appears to be true—and, indeed, is presumed true—of an action to enforce a Texas judgment in Australia. See James v. James, 81 Tex. 373, 381, 16 S.W. 1087, 1090 (1891) (“Some law, from necessity, must be presumed, and none can be, in the absence of evidence, except our own.”). If an Australian court determines that a foreign nation properly exercised jurisdiction, then the judgment generally is enforceable in Australia; if not, then the judgment will be unenforceable. That is true in this case, as it is of any other foreign judgment that is sought to be enforced in Australia. Central speculates that “Australian courts will likely never enforce such a judgment,” but that assertion is based solely on the premise that “Central has never had a fixed place of business in Texas.” But, that assertion is a red herring; whether Central had a fixed place of business in Texas has never been at issue, because general jurisdiction was never alleged. This case instead is about specific jurisdiction based on a contractual forum-selection clause, not on Central’s continuing business presence in Texas. GRR has never contended otherwise.
Having provided some context for Central’s argument about the enforceability of a Texas judgment, we turn now to the Australian court’s opinion, and to the extent to which that opinion affects the Texas proceedings, if at all.
2. The Australian Court’s Opinion
Central claims that the “problem [of enforceability] became a reality when the Queensland Supreme Court [a trial court that hears civil claims exceeding $750,000]17 issued its opinion.”
We conclude, however, that the Australian court’s opinion has no effect on this appeal because the opinion concerned a procedural point specific to the Australian litigation. After the Texas trial court denied Central’s special appearance, Central sued GRR in Queensland, Australia, seeking a declaratory judgment that it did not enter into, and is not bound by, the Second Agreement. GRR filed the equivalent of a special appearance, and asked that the trial court dismiss Central’s claim, or alternatively, temporarily or permanently stay proceedings until the Texas litigation, being the first-filed action, concludes.
The Australian court’s rulings on those requests concerned only whether the Australian court—not the Texas court—could and should allow the case before it to proceed. The Australian court’s opinion is its ruling on that application for dismissal or a stay of the Australian action; it is not a ruling on the merits of any claim. GRR argued that the Australian case should be dismissed because it was served in a different country, but the Australian court explained that service outside of Australia is permissible “in a proceeding relating to a contract.” Because Central’s request for a declaration that the Second Agreement is a proceeding related to a contract, the Australian court ruled that it had personal jurisdiction over GRR, even though GRR was not served in Australia.
In effect, the Australian trial court denied GRR’s special appearance for much the same reason that the Texas trial court denied Central’s special appearance. As for GRR’s request for a stay, the Australian court explained that a stay would be appropriate only if “Queensland [were] a clearly inappropriate forum.” Because Central is an Australian company, the court held that this standard was not met. In sum, Central has not shown that under Australian law in general, or under the Australian court’s opinion in particular, a Texas judgment would be unenforceable or that the parties would be required to relitigate the case in Australia.
D. Effect of Litigation
Central asserts that “trial or judgment could hamper development of millions of acres of oil and gas resources in Australia.” Central correctly does not state that “trial or judgment in Texas” would have such an effect, because the alleged risk that trial or judgment could hamper development of the property under Central’s control is a risk that goes with the litigation regardless of where the case is tried. Finally, Central maintains that “assertion of jurisdiction in Texas risks intervening in foreign affairs” because “ntervention in the governance, finances, and daily schedules of those involved in developing the vast interior of Australia surely interests Australia more than Texas.” Central identifies no Australian procedural or substantive policies that would be affected by litigating this dispute in Texas, and again, litigating this dispute anywhere will affect “the governance, finances, and daily schedules of those involved,” regardless of whether the case is tried in Texas or Australia. We conclude that Central has failed to meet its heavy burden to show that the litigating GRR’s claims in a Texas forum offends traditional notions of fair play and substantial justice.
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