• there was a danger that, before satisfaction of that judgment, Bayan may dispose of its Australian assets.
However, Bayan contended that the Supreme Court did not (and does not) have the power to make a freezing order in relation to a prospective judgment of a foreign court.
The High Court disagreed, holding that the Supreme Court has the power to make a freezing order in the exercise of its inherent power2. A money judgment in the Singapore proceeding is a prospective judgment of the Supreme Court of Western Australia as it can be registered under the Foreign Judgments Act 1991 (Cth) and enforced as a judgment of the Supreme Court. The freezing order is made to prevent frustration of that judgment3. It is relief appurtenant to a prospective judgment; there does not need to be an underlying cause of action appurtenant to the freezing order before the Supreme Court.
In summary, the High Court concluded that the process which a freezing order is designed to protect is a prospective enforcement process so it does not matter that the freezing order is in anticipation of a foreign judgment coming into existence. This is so even if there are other conditions or contingencies (in addition to the outcome of the foreign proceeding) that need to be satisfied before the order can come into existence4.
APPLICATION TO ARBITRAL AWARDS
Like foreign judgments, although under a different statutory regime, domestic and international arbitral awards are enforceable by Australian courts (subject to certain exceptions)5. So the High Court's reasoning should apply equally to anticipated arbitral awards, both domestic and international, regardless of the seat of the arbitration or the underlying law of the dispute. Interim measures made by courts—such as freezing orders—are not incompatible with an arbitration agreement6. In exceptional circumstances, a freezing order may be sought before an arbitration commences.
Indeed, all seven Justices specifically approved a 'frequently applied' 1984 decision of the Supreme Court of New South Wales7, holding that a freezing order is available to support (domestic) arbitrations8. In that case, the Court said that in providing protection where a party is exposed to the risk that their opponent may dissipate their assets, there is no reason to distinguish between arbitral proceedings and proceedings instituted in court.