Evans v European Bank Ltd [2004] NSWCA 82

Facts: Evans was a US appointed court receiver, acting on behalf of the Federal Trade Commission in the US. He brought proceedings in NSW in an attempt to recover the proceeds of a credit card fraud.

Issue: Did it fall within the foreign governmental interests exclusionary doctrine? 

Held (first instance - Palmer J): Referred to the fraud as one of ‘stupendous audacity’, and the money that was sought after was in a Citibank account in NSW. It was argued that a public official of a foreign state was making the claim based on US Federal legislation, i.e. within the foreign governmental interests exclusionary doctrine.

Held (Court of appeal): This did not come within the exclusionary doctrine when we looked at the particular circumstances of this case. Looking at the nature of the claim being brought, it did not fall within the essential sphere of state authority. Here, the official was seeking the proceeds of fraud, which did not fall within something that could be described as certain powers peculiar to the government. These proceedings were not an assertion of sovereign authority, but were simply proceedings to compensate persons who had been defrauded.

Principle: Whether the enforcement of a foreign statute in the forum will fall within the foreign governmental interest exclusionary rule will turn on the precise scope, nature and purpose of the statute and the facts of the case. It is not sufficient to bring a case within the exclusionary rule that the foreign statute protects a public interest of the foreign state, e.g. the protection of consumers from unfair or deceptive acts or practices in commerce.