New Zealand Legislation: Bills
Bills are proposed Acts
Add to web feed Government Bill
105—1
This Bill implements the Agreement between the Government of New Zealand and the Government of Australia on Trans-Tasman Court Proceedings and Regulatory Enforcement signed in Christchurch on 24 July 2008 (the Agreement).
The Bill establishes the New Zealand limb of a new trans-Tasman regime to improve and simplify the process for resolving civil disputes with a trans-Tasman element. A Bill to be introduced in the Australian Parliament will contain the corresponding Australian provisions. The 2 Bills need to align to ensure that the implementing legislation in both countries is consistent.
The strength and significance of the trans-Tasman relationship is clear. The 1983 Australia New Zealand Closer Economic Relations Trade Agreement (CER), various CER initiatives and the move towards a Single Economic Market (SEM) have increased co-operation and integration between Australia and New Zealand. The result has been greater trans-Tasman trade and the growing movement of people, assets, and services between the two countries.
One consequence of these developments is the much greater likelihood of individuals or businesses becoming involved in disputes with a trans-Tasman element.
As a result, the Trans-Tasman Working Group on Court Proceedings and Regulatory Enforcement (the Working Group) was established in 2003. It examined the effectiveness and appropriateness of current arrangements relating to civil (including family) proceedings, civil penalty proceedings, and criminal proceedings relating to regulatory matters.
After considering submissions on its 2005 discussion paper, the Working Group released a report in 2006. That report recommended the creation of a trans-Tasman regime to address a range of problems with the current arrangements that it had identified. The Working Group's recommendations have been adopted in the Agreement and will be implemented by the Bill.
The objectives of the Agreement are to—
streamline and simplify the process for resolving civil proceedings with a trans-Tasman element to reduce costs and improve efficiency; and
minimise existing impediments to enforcing certain judgments and regulatory sanctions.
The Bill is an important step towards closer integration of the Australian and New Zealand civil justice systems. It contains procedural reforms to simplify and reduce the cost of resolving trans-Tasman disputes. It will also improve the effectiveness of any remedies awarded. The result should increase clarity and certainty for trans-Tasman litigants. This, in turn, will help support and increase the success of the trans-Tasman trade relationship.
The Bill will also improve regulatory enforcement across the Tasman. This will support current and future regulatory co-operation initiatives under the CER and SEM umbrellas.
The main features of the Bill are as follows.
The Bill simplifies arrangements for serving the documents commencing a civil proceeding in New Zealand on a defendant in Australia. It will no longer be necessary for the plaintiff to establish a particular connection between the proceeding and New Zealand, or to seek leave of the court to do so. A defendant served in Australia can apply to stay the New Zealand proceeding on the ground that an Australian court is the more appropriate court to hear the proceeding. If there is a hearing to decide the more appropriate court, the defendant and the defendant's lawyer can appear from Australia by video-link or other technology.
The Bill expands the range of Australian judgments that can be enforced in New Zealand from final money judgments to include final non-money judgments. A non-money judgment is one, such as an injunction, that does not involve the payment of money but requires someone to do, or not to do, something else.
The Bill streamlines the process for registering and enforcing Australian judgments. The only ground for refusing enforcement is that the judgment is contrary to public policy in New Zealand. Other issues, such as breach of natural justice, must be raised with the original court.
The range of courts where an Australian judgment can be registered for enforcement in New Zealand will be expanded from the High Court to include any lower court that could have granted the relief in the judgment.
Certain New Zealand courts will be empowered to grant interim relief in support of an Australian proceeding.
A common test will be adopted, as between Australia and New Zealand, to determine when a court in the other country should decide a dispute. The Bill therefore provides that a person can seek a stay of proceedings in New Zealand on the grounds that a court in Australia is more appropriate to determine the proceeding.
Associated with the common test are additional provisions to give effect to exclusive choice of court agreements. An exclusive choice of court agreement is an agreement between parties that designates the courts of one country, or a specific court in one country, to decide particular disputes to the exclusion of any other courts. The provisions are consistent with the 2005 Hague Convention on Choice of Court Agreements. This will assist in the event that either New Zealand or Australia becomes a party to the Convention.
There are enabling provisions to allow the arrangements for enforcing judgments and service of proceedings to be extended to certain tribunals.
The Bill facilitates greater use of technology to enable parties and their lawyers to appear remotely in proceedings in the other country. It does this by allowing a party and the party's lawyer to appear remotely (by video link, telephone, or other technology) with leave of the court.
Civil pecuniary penalties imposed by an Australian court for regulatory breaches will be enforceable in New Zealand as a civil judgment debt. Particular Australian civil pecuniary penalty regimes can be excluded from the regime by Order in Council.
Fines imposed in Australia for criminal offences under specified regulatory statutes will be enforceable in New Zealand in the same way as civil judgment debts. The relevant statutes or offences will be prescribed by Order in Council.
The Agreement indicates that only fines for offences under a regulatory regime that affects the effectiveness, integrity and efficiency of trans-Tasman markets and in which both countries have a strong mutual interest will be included in the scheme.
The operation of the trans-Tasman evidence regime, found in subpart 1 of Part 4 of the Evidence Act 2006, will be improved by allowing—
the judge of a lower court to grant leave to issue a trans-Tasman subpoena in proceedings before that court:
a District Court to grant leave for a subpoena to be issued in proceedings before a prescribed tribunal:
subpoenas to be issued in criminal proceedings.
These changes will improve the legal framework for resolving civil disputes with a trans-Tasman element. The changes promote cheaper, more efficient, and less complicated dispute resolution that will deliver tangible benefits to individuals and businesses in New Zealand and Australia.
Clause 1 states the Bill's Title.
Clause 2 relates to the Bill's commencement. The Bill's Parts and schedules are to come into force on a date appointed by the Governor-General by Order in Council. The reason for this is to allow commencement—
on or after the entry into force of the Trans-Tasman Court Proceedings and Regulatory Enforcement Agreement (the Agreement); and
in co-ordination with the corresponding Australian Act.
Clause 3 states the Bill's purpose. The Bill implements in New Zealand law the Agreement (as defined in clause 3(1)), the text of which is set out in Schedule 1. The objective of the Agreement, as expressed in Article 2 of the Agreement, is specified in clause 3(2). Provisions to implement the Agreement in Australian law are to be in the Trans-Tasman Proceedings Act 2009 (Aust) (the Australian Act).
Clause 4 gives an overview of the Bill.
Clause 5 defines terms used in the Bill. The terms defined are discussed elsewhere in this analysis.
Clause 6 relates to references in the Bill or in regulations under it to repealed Australian enactments.
Clause 7 makes it clear that the Bill supplements, and does not affect, Part 1A of the Judicature Act 1908. That Part of that Act contains provisions that apply to Australian and New Zealand trans-Tasman market proceedings, namely—
proceedings in the High Court under specified provisions of the Commerce Act 1986, but that may be tried or heard in Australia; and
proceedings in the Federal Court of Australia under specified provisions of the Trade Practices Act 1974 (Aust), but that may be tried or heard at a sitting of that court in New Zealand.
The Bill applies to judgments given in certain proceedings in the Federal Court of Australia under specified provisions of the Trade Practices Act 1974 (Aust). Judgments given in these Australian trans-Tasman market proceedings will be registrable and enforceable under subparts 5 to 7 of Part 2. Judgments given in New Zealand trans-Tasman market proceedings (namely, proceedings in New Zealand courts under specified provisions of the Commerce Act 1986) will also be registrable and enforceable under the Australian Act (which will contain provisions replacing Part IIIA of the Federal Court of Australia Act 1976 (Aust)).
Clause 8 ensures that the Act will bind the Crown.
Clauses 9 to 11 relate to regulations and rules required by, or to give effect to, the Agreement.
Clause 12 and Schedule 2 amend or revoke other enactments. The amendments and revocations are discussed elsewhere in this analysis.
Subpart 1 applies (as clause 13(1) provides) to a proceeding that is—
a civil proceeding commenced in a New Zealand court; or
a civil proceeding commenced in a New Zealand tribunal, but only if—
the tribunal's procedural rules permit an initiating document relating to the proceeding to be served outside New Zealand; and
the tribunal is declared by an order under clause 13(3)(a) to be a tribunal to which subpart 1 applies.
An order under clause 13(3)(a) must not declare a tribunal to be one to which subpart 1 applies unless, when the order is made, the tribunal is prescribed for the purposes of section 66(1)(b)(i) (which relates to enforcement in Australia of New Zealand judgments) of the Australian Act: clause 13(4)
However, subpart 1 does not apply (as clause 13(2) provides) to—
a civil proceeding that relates wholly or partly to an excluded matter (as defined in clause 5(1), for example, the dissolution of a marriage); or
a civil proceeding that relates wholly or partly to an action in rem (compare High Court Rule 25.8(4) and (5)); or
a civil proceeding in a New Zealand tribunal declared by an order under clause 13(3)(b) to be a proceeding to which subpart 1 does not apply.
An initiating document for the proceeding may be served in Australia under subpart 1: clause 14(1). However, the initiating document must be served in Australia (clause 14(2)), in the same way that the document is required or permitted, under the procedural rules of the New Zealand court or tribunal, to be served in New Zealand.
It is not necessary, as clause 14(3) explains, for the New Zealand court or tribunal—
to give leave to serve the initiating document in Australia (as required, for example, for service out of New Zealand under High Court Rule 6.28); or
to be satisfied that there is a connection between the proceeding and New Zealand (as usually required, for example, for service out of New Zealand under High Court Rule 6.27).
Subpart 1 does not affect any procedural rules of the New Zealand court or tribunal, or any other New Zealand laws, under which the initiating document may, with or without leave, or in any other way, be served in Australia: clause 14(4).
Service in Australia under clause 14 of an initiating document has the same effect (for example, it gives rise to the same proceeding, or status as a party to a proceeding) as if the initiating document had been served in New Zealand: clause 15.
An initiating document served in Australia under clause 14 must contain or be accompanied by information for the defendant prescribed by regulations under clause 16. The prescribed information for the defendant must be or include general information about—
steps that the defendant must or may take in relation to the proceeding; and
consequences of the document being served on the defendant in Australia under clause 14.
A failure to provide the prescribed information for the defendant does not (clause 17) invalidate the proceeding or any step taken in, or in respect of, the proceeding. However, the New Zealand court or tribunal in which the proceeding to which the initiating document relates was commenced (the commencement New Zealand court or tribunal) may, on an application by the defendant, make an order setting aside (wholly or in part, and on any terms as to costs or otherwise that it considers appropriate) the proceeding, or any step taken in, or in respect of, the proceeding. (Compare High Court Rule 1.5.) However, the defendant's application can only be made—
within a reasonable time after the defendant becomes aware of the failure; and
before the defendant has taken any fresh step after the defendant becomes aware of the failure.
A defendant on whom an initiating document has been served in Australia under clause 14 and who wishes to file an appearance or response document (as defined in clause 18(2)) must under clause 18(1) do so within a specified default period (or within a shorter or longer period that, on an application for the purpose, the commencement New Zealand court or tribunal considers appropriate).
Clause 19 requires the address for service (in New Zealand or Australia) stated by the defendant in the appearance or response document for a proceeding to be treated as the defendant’s address for service for the proceeding.
Clause 20 explains the effect of clause 23(4), which relates to a defendant who was served, or purportedly served, in Australia under clause 14 with an initiating document for a proceeding. The defendant may apply under clause 22 to the New Zealand court concerned for an order under subpart 2 staying the proceeding. If so, the application must be determined under clause 23. Clause 23 enables the application to be determined without a hearing if no hearing is requested. It also enables the defendant and the defendant's counsel, despite clause 35 (but subject to the rest of subpart 4), to appear remotely in a New Zealand court's hearing of the application for a stay of the proceeding if—
the defendant makes to the court under clause 23(4)(c) a request to appear remotely in the hearing; and
a remote appearance medium is, or can reasonably be made, available.
Clause 21 empowers a commencement New Zealand court or tribunal to order the giving of security for costs—
on an application for the purpose by a defendant on whom an initiating document has been served in Australia under clause 14; and
if it considers it appropriate in all the circumstances to do so.
Clause 22(1) enables a defendant in a civil proceeding commenced in a New Zealand court after the commencement of the Bill to apply to the court for an order staying a proceeding on the grounds that an Australian court is the more appropriate court for the proceeding. The application must be made within the period specified in clause 22(2)(a) (or a shorter or longer period that, on an application for the purpose, the New Zealand court considers appropriate under clause 22(2)(b)).
The New Zealand court may determine the defendant's application under clause 22 without a hearing (clause 23(1)), but must determine that application with a hearing if it is requested to do so by all or any of the people specified in clause 23(2)(a) to (c) within the period specified in clause 23(3)(a) (or a shorter or longer period that, on an application for the purpose, the New Zealand court considers appropriate under clause 23(3)(b)).
Clause 23(4) enables the defendant, the defendant's counsel, or both, despite clause 35 (but subject to the rest of subpart 4), to appear remotely in the hearing by the New Zealand court of the defendant's application under clause 22 if—
the defendant was served, or purportedly served, in Australia under clause 14 with an initiating document for a proceeding; and
the New Zealand court is determining with a hearing the defendant's application under clause 22 for an order to stay the proceeding; and
the defendant has made to the New Zealand court within the period (if any) prescribed for the purposes of clause 23(4)(c) by regulations under clause 23(5)(b) a request to appear remotely in the hearing; and
a remote appearance medium is, or can reasonably be made, available.
Clause 24 empowers the New Zealand court, on an application under clause 22, to make an order staying the proceeding if it is satisfied that an Australian court—
has jurisdiction to determine all the matters in issue between the parties to the proceeding; and
is the more appropriate court to determine those matters.
In determining whether an Australian court is the more appropriate court to determine those matters, the New Zealand court must not take into account the fact that the proceeding was commenced in New Zealand, but must take into account the following matters:
the places of residence of the parties or, if a party is not an individual, its principal place of business:
the places of residence of the witnesses likely to be called in the proceeding:
the place where the subject matter of the proceeding is situated:
any agreement between the parties about the court or place in which those matters should be determined or the proceeding should be instituted (other than an exclusive choice of court agreement to which clause 25(1) applies):
the law that it would be most appropriate to apply in the proceeding:
whether a related or similar proceeding has been commenced against the defendant or another person in a court in Australia:
the financial circumstances of the parties, so far as the New Zealand court is aware of them:
any other matters (other than the fact that the proceeding was commenced in New Zealand) that the New Zealand court considers relevant.
Exclusive choice of court agreements (clause 25) can, however, have an overriding effect. An exclusive choice of court agreement is (clause 25(3)) a written agreement between parties to a proceeding, and in relation to matters in issue between those parties, and that—
designates the courts, or a specified court or courts, of a specified country, to the exclusion of any other courts, as the court or courts to determine disputes between those parties that are or include those matters; and
is not an agreement the parties to which are or include 1 or more individuals acting primarily for personal, family, or household purposes; and
is not a contract of employment (including, without limitation, a collective agreement.
On an application under clause 22 (and despite clause 24) the New Zealand court—
must, by order, stay the proceeding if satisfied that an exclusive choice of court agreement designates an Australian court as the court to determine the matters in issue between the parties to the proceeding (clause 25(1)(a)); and
must not, by order, stay the proceeding if satisfied that an exclusive choice of court agreement designates a New Zealand court as the court to determine those matters (clause 25(1)(b)).
However, clause 25(1) does not apply to an exclusive choice of court agreement if the New Zealand court is satisfied that—
it is null and void under the law (including, without limitation, the rules of private international law) of Australia; or
under New Zealand law, a party to it lacked the capacity to conclude it; or
giving effect to it would lead to a manifest injustice or would be manifestly contrary to New Zealand public policy; or
for exceptional reasons beyond the control of the parties to it, it cannot reasonably be performed; or
the court designated by it as the court to determine the matters in issue between the parties to the proceeding has decided not to determine those matters.
Clause 26 enables an order under clause 24 or 25 staying a proceeding to be made subject to conditions to facilitate, without delay or undue expense, the determination of all matters in issue between the parties to the proceeding. (Clause 26 is similar to section 20(5) of the Service and Execution of Process Act 1992 (Aust).)
Clause 27 ensures that subpart 2—
replaces any other jurisdiction of a New Zealand court to stay a proceeding before it on the grounds that an Australian court is the more appropriate court for the proceeding; but
does not affect any power of a New Zealand court to stay a proceeding before it on other grounds.
Clause 28 prohibits a New Zealand court—
from restraining a person (for example, by an anti-suit injunction) from commencing a proceeding in an Australian court on the grounds that the Australian court is not the appropriate forum for the proceeding; and
from restraining a party to a proceeding before an Australian court from taking a step in that proceeding on the grounds that the Australian court is not the appropriate forum for the proceeding.
Clause 29 suspends limitation periods for claims made earlier in stayed proceedings in Australian courts. It applies if—
a claim is made in a proceeding commenced in an Australian court (the Australian proceeding) that is later stayed by an order of the Australian Court made under the Australian Act on the grounds that a New Zealand court is the more appropriate court to determine the matters in issue between the parties to the proceeding; and
the claim is to be made again in a proceeding to be commenced in a New Zealand court (the New Zealand proceeding) after the staying of (and, if applicable, before any deadline stated in the condition of that order staying) the Australian proceeding.
Clause 29 ensures that, for the purposes of every applicable limitation period or defence under New Zealand law, the New Zealand proceeding is to be treated as commencing at the time the Australian proceeding commenced.
Clause 30(1) enables a party or intended party to a civil proceeding commenced or to be commenced in an Australian court after the commencement of the Bill to apply to the following New Zealand courts for interim relief (other than excluded interim relief) in support of the Australian proceeding:
the High Court:
a New Zealand court (other than the High Court) declared by an order under clause 30(3) to be a court to which clause 30(1)(b) applies.
Excluded interim relief (clause 30(2)) means—
an interim payment:
discovery:
a warrant of arrest of property against which an action or counterclaim in rem is brought:
any action, assistance, order, or other relief under subpart 1 or 2 of Part 4 of the Evidence Act 2006.
Clause 31(1) empowers the New Zealand court, on an application under clause 30(1), to give interim relief (other than excluded interim relief) in support of the Australian proceeding if—
the court considers it appropriate to give the interim relief in support of the Australian proceeding; and
the court, if a proceeding similar to the Australian proceeding had been commenced in the court,—
would have had power to give the interim relief in the similar proceeding; and
would have given the interim relief in the similar proceeding.
The grounds on which the New Zealand court may exercise its discretion to decline to give interim relief include (but are not limited to) the ground that, in its opinion, the court has no jurisdiction (apart from clause 31) in relation to the subject matter of the Australian proceeding and it is for that reason inexpedient to give interim relief.
Subpart 3 does not affect the court's procedural rules, or any other New Zealand laws, under which the court may give interim relief in support of the Australian proceeding.
The procedural rules of the New Zealand court apply to a proceeding for interim relief under subpart 3 as if the Australian proceeding were a similar proceeding commenced in the New Zealand court: clause 32.
Subpart 4 provides for remote appearances unrelated to remote evidence. To appear remotely (as defined by clause 5(1)) in a hearing in or related to a proceeding in a court in the territory of a party to the Agreement (for example, New Zealand) means to participate in the hearing—
not by attending the hearing in person; but instead
by using, in the territory of the other party to the Agreement (namely, Australia), a remote appearance medium.
A remote appearance medium (as defined by clause 5(1)) means—
an audio link (that is, facilities, for example, telephone facilities, that enable audio communication between people in different places); or
an audiovisual link (that is, facilities that enable audio and visual communication between people in different places).
However, no party to the proceeding may under the Bill appear remotely to give evidence, examine a person giving remote evidence, or make submissions in relation to remote evidence (as defined broadly in clause 5(1)). Subpart 4 therefore does not affect, but complements, subpart 1 of Part 4 of the Evidence Act 2006 (operating in conjunction with the Australian Act) and, in particular, the following sections of the Evidence Act 2006:
sections 168 to 172 of that Act (which enable a New Zealand court, as defined in section 150 of that Act, to receive remote evidence, and examination and submissions in relation to remote evidence, by audio link or audiovisual link from Australia); and
sections 173 to 180 of that Act (which enable an Australian court, as defined in section 150 of that Act, to take remote evidence, and receive examination and submissions in relation to remote evidence, by audio link or audiovisual link from New Zealand).
Clauses 35 to 40 apply (clause 34) only to a civil proceeding commenced before or after the commencement of the Bill in—
a New Zealand court; or
a New Zealand tribunal declared by an order under clause 34(3) to be a tribunal to which clauses 35 to 40 apply.
By way of explanation, the proceeding may, but need not, relate to enforcement of a judgment registered under subpart 5, or may, but need not, be a proceeding in respect of an application—
made by a defendant served or purportedly served in Australia under clause 14 with an initiating document for a proceeding; and
for an order under subpart 2 staying the proceeding; and
to be determined with a hearing in which the defendant is, under clause 23(4), to appear remotely from Australia.
Clause 35(1) empowers a New Zealand court or tribunal, on an application for the purpose, to give a party to the proceeding, the party's counsel, or both leave to appear remotely in 1 or more hearings in or related to the proceeding using—
the remote appearance medium specified by the court or tribunal; or
if the court or tribunal does not specify a remote appearance medium, either remote appearance medium.
The court must not give leave to the party or the party's counsel (clause 35(2)) unless it is satisfied that—
the party or the party's counsel can more conveniently participate in the hearing from Australia; and
if the court or tribunal intends to specify a remote appearance medium—that remote appearance medium is, or can reasonably be made, available; and
if the court or tribunal does not intend to specify a remote appearance medium—both remote appearance mediums are, or can reasonably be made, available; and
it is appropriate to give the leave.
If the party's counsel is not entitled to appear before the court or tribunal, the court or tribunal must not give leave to the party's counsel (clause 35(3)) unless satisfied that—
the party ordinarily resides or, if the party is not an individual, has its principal place of business, in a State or Territory of Australia; and
the counsel is entitled to practise as a barrister, a solicitor, or both in the Supreme Court of a State or Territory of Australia.
If the party's counsel is entitled to practise as a barrister, a solicitor, or both in the Supreme Court of a State or Territory of Australia, and is given leave under clause 35(3),—
the party's counsel is entitled to practise as a barrister, a solicitor, or both in relation to the remote appearances to which the leave relates; and
each of those appearances is for the purposes of section 27(1)(b)(i) of the Lawyers and Conveyancers Act 2006 an appearance allowed by the Bill.
Clause 36 explains the effect of clause 23(4), which relates to a defendant served or purportedly served in Australia under clause 14 with an initiating document for a proceeding. The defendant may apply under clause 22 to the New Zealand court concerned for an order under subpart 2 staying the proceeding. If so, the application must be determined under clause 23. Clause 23 enables the application to be determined without a hearing if no hearing is requested. It also enables the defendant and the defendant's counsel, despite clause 35 (but subject to the rest of subpart 4), to appear remotely in a New Zealand court's hearing of the application for a stay of the proceeding if—
the defendant makes to the court under clause 23(4)(c) a request to appear remotely in the hearing; and
a remote appearance medium is, or can reasonably be made, available.
Clause 37 (which follows closely section 170 of the Evidence Act 2006) relates to remote appearances from Australia by audiovisual link. It prohibits a person from appearing remotely from Australia by audiovisual link unless the courtroom or other place in New Zealand where the court or tribunal is sitting (the New Zealand place) and the place in Australia where the remote appearance would be made (the Australian place) are equipped with facilities that enable—
people who are at the New Zealand place to see and hear the person appearing remotely from the Australian place; and
people who are at the Australian place to see and hear people at the New Zealand place.
Clause 38 (which follows closely section 171 of the Evidence Act 2006) relates to remote appearances from Australia by audio link. It prohibits a person from appearing remotely from Australia by audio link unless the courtroom or other place in New Zealand where the court or tribunal is sitting (the New Zealand place) and the place in Australia where the remote appearance would be made (the Australian place) are equipped with facilities that enable—
people who are at the New Zealand place to hear the person appearing remotely from the Australian place; and
people who are at the Australian place to hear people at the New Zealand place.
Unless the New Zealand court or tribunal otherwise orders, the costs involved in the party, the party's counsel, or both participating in hearings by using a remote appearance medium, under leave given under subpart 4, must be paid by the applicant for that leave: clause 39.
For the purposes of a remote appearance from Australia under leave given under subpart 4, the New Zealand court or tribunal may exercise in Australia all its powers that it is permitted to exercise in Australia under Australian law: clause 40.
Clauses 41 to 48 relate to people in New Zealand appearing remotely in a proceeding in an Australian court or tribunal in accordance with the Australian Act. In particular, they provide for matters including the following:
people in New Zealand appearing remotely, under the Australian Act and by or without leave given by an Australian court or tribunal, in a proceeding before the court or tribunal:
the powers that the Australian court or tribunal may exercise for the purposes of a remote appearance by a person in New Zealand, and the Australian law that applies to the practice and procedure of the Australian court or tribunal in allowing a person in New Zealand to appear remotely from New Zealand:
orders (for example, prohibiting or restricting the publication of submissions or the name of any party or of any witness) that may be made by the Australian court or tribunal:
compliance with those orders, and how a High Court Judge may enforce them, in New Zealand:
the privileges, protections, and immunities that participants in the Australian proceeding have in respect of remote appearances, from New Zealand, in those proceedings:
offences relating to contempt of the Australian court or tribunal:
an officer of a New Zealand court or tribunal, at the request of an Australian court or tribunal, attending at the place in New Zealand from which a remote appearance is made in a proceeding before the Australian court or tribunal and taking any action that the Australian court or tribunal directs to facilitate the proceeding.
Subpart 5 relates to enforcement in New Zealand of Australian judgments.
A judgment of a court or tribunal means (clause 5(1)) a judgment, award, decree, or order of the court or tribunal, whether or not it—
is given in a primary proceeding or in an interlocutory proceeding; or
is a money judgment or a non-money judgment.
Subpart 5 also uses the terms entitled person and liable person.
An entitled person, in relation to a judgment, means (clause 5(1)) a person—
in whose favour the judgment was given; or
in whom rights under the judgment have (by assignment, succession, or otherwise) become vested.
A liable person, in relation to a judgment, means (clause 5(1)) a person against whom the judgment——
was given; or
is enforceable under a law of the original jurisdiction (which means the State, Territory, or country, as the case may be, in which the original court or tribunal—the court or tribunal that gave the judgment—is established).
Clause 49(1) provides that a registrable Australian judgment cannot be enforced in New Zealand if it is not registered in a New Zealand court under clause 53. Clause 49(2) explains that the judgment therefore cannot be enforced by way of—
a registration or other enforcement process under Part 1 of the Reciprocal Enforcement of Judgments Act 1934, section 56 of the Judicature Act 1908, or any other enactment in force in New Zealand; or
any common law, or other non-legislative, action or claim to enforce the judgment.
(Subpart 5 thus replaces, in its application to judgments of Australian courts, the Reciprocal Enforcement of Judgments Act 1934 (the 1934 Act). The 1934 Act, and orders under it, are consequentially amended and revoked by clause 12 and Schedule 2.)
Clause 50(1) makes a judgment a registrable Australian judgment if—
the judgment is a final and conclusive judgment that is given in a civil proceeding by an Australian court; or
both of the following are satisfied:
the judgment is a final and conclusive judgment that is given in a civil proceeding by an Australian tribunal declared under clause 51(1)(a) to be a tribunal to which subpart 5 applies; and
the judgment is an order declared under clause 51(1)(b) to be an order to which subpart 5 applies; or
both of the following are satisfied:
the judgment is a final and conclusive judgment that is given in a criminal proceeding by an Australian court; and
the judgment is a requirement to pay an injured party a sum of money by way of compensation, damages, or reparation; or
both of the following are satisfied:
the judgment is a final and conclusive judgment that is given in a civil proceeding or a criminal proceeding by an Australian court; and
the judgment is an order (enforceable under the 1934 Act because of section 181 of the Evidence Act 2006—a section to be repealed by clause 12 and Schedule 2) made under the Australian Act by an Australian court (as defined in section 150 of the Evidence Act 2006) for the payment of expenses (as so defined)—
incurred by a witness (as so defined) in complying with an Australian subpoena (as so defined) served on the witness in New Zealand; or
incurred by a person in connection with the taking of remote evidence, or the receipt of examination or submissions (as so defined) in relation to remote evidence, from New Zealand by audio link or audiovisual link, as the case may be; or
the judgment is a final and conclusive judgment that is registered in an Australian court under the Foreign Judgments Act 1991 (Aust).
However, a judgment is not (clause 50(2)) a registrable Australian judgment by virtue of clause 50(1) if it wholly or partly—
relates to an excluded matter (as defined in clause 5(1)); or
is a non-money judgment of a kind that is declared by an order under clause 50(3) to be excluded from recognition and enforcement under subpart 5; or
is a judgment (other than one imposing a civil pecuniary penalty) given in an Australian trans-Tasman market proceeding (but a judgment of that kind is a registrable Australian judgment for the purposes of subpart 5 by virtue of subpart 6); or
is a judgment (including one given in an Australian trans-Tasman market proceeding) imposing a civil pecuniary penalty (but a judgment of that kind is a registrable Australian judgment for the purposes of subpart 5 by virtue of subpart 7); or
is an order under proceeds of crime legislation; or
is an order relating to the granting of probate or letters of administration or the administration of the estate of a deceased person; or
is an order relating to the guardianship or care of a person who is incapable of managing his or her personal affairs; or
is an order relating to the management of the property of a person who is incapable of managing that property; or
is an order relating to the care, control, or welfare of a child; or
is an order that, if contravened by a person to whom it is directed, will make the person liable to conviction for an offence in the place where it was made; or
is a judgment given before the commencement of the Bill (even if the judgment is, at any time, registered in an Australian court under the Foreign Judgments Act 1991 (Aust)).
For the purposes of clause 50(1), a judgment must be treated as final and conclusive (clause 50(4)) even if—
a person may appeal against it in an Australian court; or
an appeal against it in an Australian court has not been finally determined.
Clause 51(1)(a) and (b) enable orders to be made—
declaring any tribunal of a State or a Territory of Australia to be a tribunal to which subpart 5 applies; and
declaring specified orders of an Australian tribunal declared to be a tribunal to which subpart 5 applies to be orders to which subpart 5 applies.
Orders of an Australian tribunal must not be declared under clause 51(1)(b) to be orders to which subpart 5 applies (clause 51(2)) unless those orders are—
made by the Australian tribunal in or in connection with the performance of an adjudicative function (which means a function of the tribunal of determining the rights or liabilities of a person in a proceeding in which there are 2 or more parties (including determining that those rights or liabilities are altered)); and
enforceable (with or without being filed or registered in a court) without an order of a court.
Clause 52 allows an entitled person to apply to the Registrar of a New Zealand court to register in that court an Australian judgment if that court is—
the High Court; or
an inferior New Zealand court (as defined in clause 5(1)) that has power to give the relief that is in the judgment.
The application must be—
made in the form (if any) prescribed by regulations under clause 52(3); and
made in accordance with the requirements (if any) prescribed by regulations under clause 52(3); and
made within the period specified in clause 52(2)(c)(i) or (ii) (or a longer period the New Zealand court considers appropriate on an application under clause 52(2)(c)(iii)).
Clause 53(1) requires a Registrar of a New Zealand court, on an application under clause 52, to register in that court under subpart 5 a registrable Australian judgment. Once registered, the judgment remains registered unless the registration is set aside under clause 57: clause 53(2).
Clause 54 relates to the currency in which a registrable Australian judgment is to be registered under clause 53 if a sum of money payable under that judgment is expressed in a currency other than New Zealand currency.
Clause 55 ensures that a money judgment that has been partly satisfied at the time at which an entitled person applies for registration of that judgment may be registered under clause 53 only in respect of the balance remaining payable under that judgment at that time.
Clause 56, which follows closely section 4(5) of the Reciprocal Enforcement of Judgments Act 1934 and section 6(13) of the Foreign Judgments Act 1991 (Aust), relates to judgments only some provisions of which are registrable. It applies to a judgment if a Registrar of a New Zealand court to whom an application for registration of the judgment is made under clause 52 considers that—
the judgment is one in respect of different matters (for example, because it is one in respect of different subject matters, or one giving different kinds of relief); and
some of the provisions of the judgment (the registrable provisions) would, if contained in a separate judgment, make that separate judgment a registrable Australian judgment.
Clause 56 enables the judgment to be registered in the New Zealand court under clause 53 in respect of the registrable provisions, but no other provisions.
Clause 57 specifies the only situations in which a New Zealand court in which an Australian judgment has been registered under clause 53 may, on application by a liable person, set aside the registration of the judgment: clause 57(1).
The court must set aside the registration of the judgment (clause 57(2)) if satisfied that—
it was registered in contravention of subpart 5; or
enforcement of it would be contrary to public policy in New Zealand; or
both of the following apply:
the judgment was given in a proceeding the subject matter of which was immovable property, or was given in a proceeding in rem the subject matter of which was movable property; and
that property was, at the time of the proceeding in the original court or tribunal, not situated in Australia.
An application to set aside the registration of a registered Australian judgment must be made within the period specified in clause 57(3)(a) (or a longer period that, on an application for the purpose by the liable person, the New Zealand court considers appropriate under clause 57(3)(b)).
Clause 58 applies if a New Zealand court registers an Australian judgment under clause 53. It requires the entitled person to give a notice of the registration to every liable person. The notice must be in the form (if any) prescribed by regulations under clause 58(4)(a), and must be given in the manner (if any) prescribed by regulations under clause 58(4)(b). The notice must be given within the period specified in clause 58(3)(a) (or a longer period that, on an application for the purpose by the entitled person, the New Zealand court considers appropriate under clause 58(3)(b)).
Clause 59(1) ensures a registered Australian judgment has the same force and effect, and may give rise to the same proceedings for enforcement, as if it were a judgment given by the New Zealand court in which it is registered. However, if notice of the registration of the judgment has not been given to every liable person under clause 58, then clause 59(1) applies to the judgment only after 45 working days of the New Zealand court after the day of registration: clause 59(2).
Clause 59(1) is also (clause 59(3)) subject to the following qualifications:
a registered Australian judgment is capable of being enforced only if, and to the extent that, at the time it is being or is to be enforced, the judgment is capable of being enforced in or by the original court or tribunal or in or by another Australian court or tribunal (clause 60):
a New Zealand court may, by an order under clause 61(1)(a) or (b) (delaying or staying enforcement of a registered judgment so that a liable person can challenge it in an Australian court or tribunal), or any other order, delay or stay enforcement of the judgment; and
interest on a sum of money payable under a registered Australian judgment is payable at the same rate or rates and in respect of the same period or periods as would be applicable in the original court or tribunal (clause 63).
Clause 62 makes specified registration and enforcement costs and expenses recoverable in a proceeding in a New Zealand court for enforcement of a registered Australian judgment.
Clause 64 ensures that enforcement in New Zealand of a registered Australian judgment is not affected by the operation of any rule of private international law (other than any rule in subpart 5) in operation in New Zealand.
Clause 65 requires a judgment to be treated for the purposes of subpart 5 as a registrable Australian judgment if the judgment—
is given in an Australian trans-Tasman market proceeding; and
does not impose a civil pecuniary penalty (but a judgment given in an Australian trans-Tasman market proceeding and that imposes a civil pecuniary penalty is a registrable Australian judgment for those purposes by virtue of subpart 7).
An Australian trans-Tasman market proceeding, as defined in clause 5(1), means a proceeding in the Federal Court of Australia in which—
(a) the matters for determination are or include a matter or matters arising under—
(i) any of sections 46A, 155A, or 155B of the Trade Practices Act 1974 (Aust); or
(ii) a provision of Part VI or Part XII of the Trade Practices Act 1974 (Aust) in so far as it relates to any of sections 46A, 155A, or 155B of that Act; or
(b) any other kind of relief specified in an order under clause 5(2)(a) is sought; or
(c) an interlocutory order is sought in relation to a proceeding of the kind mentioned in paragraph (a) or (b); or
(d) the enforcement is sought of a judgment given in a proceeding of the kind mentioned in paragraph (a) or (b).
Clause 66 indicates that the judgment, referred to in clause 65, that is given in the Australian trans-Tasman market proceeding may, but need not, be—
an interlocutory order that is an interim or interlocutory injunction (whether obtained on or without notice); or
any other interlocutory or final order requiring a person to perform an act, make a payment (other than a payment of a civil pecuniary penalty), observe a condition, or refrain from performing an act or from engaging in specified conduct.
Clause 67(1), however, requires an application under clause 52 to register in a New Zealand court a registrable Australian judgment to be made only to a Registrar of the High Court if the judgment—
is given in an Australian trans-Tasman market proceeding; and
does not impose a civil pecuniary penalty.
Clause 67(1) overrides clause 52, which if not overridden would permit the application to be made to a Registrar of a New Zealand court specified or described in clause 52(1)(a) or (b).
Clause 68(1) requires a judgment to be treated for the purposes of subpart 5 as a registrable Australian judgment if the judgment—
is given by an Australian court in a civil proceeding (including an Australian trans-Tasman market proceeding) and imposes a civil pecuniary penalty; and
is not a kind of judgment imposing a civil pecuniary penalty that is declared by an order under clause 68(2) to be excluded from recognition or enforcement under subpart 5.
Clause 69(2) applies to an application under clause 52 to register in a New Zealand court a registrable Australian judgment if the judgment—
is given otherwise than in an Australian trans-Tasman market proceeding; and
imposes a civil pecuniary penalty.
Clause 69(2) ensures that the application may made only to a Registrar of a New Zealand court that is—
the High Court; or
an inferior court that has power to impose a civil pecuniary penalty under New Zealand law of the same, or a broadly similar, value (but the civil pecuniary penalty under New Zealand law need not be one imposed for the same or similar purposes, or in respect of the same or a similar subject matter, as the one imposed by the Australian judgment).
Clause 69(5) applies to an application under clause 52 to register in a New Zealand court a registrable Australian judgment if the judgment—
is given in an Australian trans-Tasman market proceeding; and
imposes a civil pecuniary penalty.
Clause 69(5) ensures that the application may be made only to a Registrar of the High Court.
Clause 69(2) and (5) override clause 52, which if not overridden would permit the applications to be made to a Registrar of a New Zealand court specified or described in clause 52(1)(a) or (b).
Clause 70(1) requires a judgment to be treated for the purposes of subpart 5 as a registrable Australian judgment if the judgment—
is given by an Australian court in a criminal proceeding and imposes a regulatory regime criminal fine (which means a fine for a criminal offence under Australian legislation and that is declared by an order under clause 70(2)(a) to be a regulatory regime criminal fine for the purposes of subparts 5 and 8); and
complies with any conditions prescribed by an order under clause 70(2)(b) as conditions with which a judgment imposing a regulatory regime criminal fine of that kind must comply in order to be recognised and enforced under subpart 5.
Clause 71(1) ensures an application under clause 52 to register in a New Zealand court a registrable Australian judgment that imposes a regulatory regime criminal fine may be made only to a Registrar of the High Court. Clause 71(1) overrides clause 52, which if not overridden would permit the application to be made to a Registrar of a New Zealand court specified or described in clause 52(1)(a) or (b).
Over time, there has been a significant increase in the movement of people, assets, and services between New Zealand and Australia. For example,—
in 2006, over 900 000 Australians visited New Zealand and well over 1 000 000 New Zealanders visited Australia. Almost 450 000 New Zealanders live in Australia and around 60 000 Australians in New Zealand:
in the year to June 2006, exports of goods from Australia to New Zealand came to NZ$7,641 million and from New Zealand to Australia to NZ$6,806 million:
in the year to September 2006, New Zealand exports of services to Australia came to NZ$2,387 million and Australian exports to New Zealand came to NZ$3,588 million:
as at 31 March 2006, total Australian investment in New Zealand was NZ$68.7 billion and total New Zealand investment in Australia was NZ$25.0 billion.
This leads inevitably to a greater number of disputes involving individuals or businesses with a cross-border element. Under the Australia New Zealand Closer Economic Relations (CER) Agreement and the work around achieving a Single Economic Market (SEM) with Australia, each country also has a significant interest in the effectiveness of existing regulatory regimes, such as the Commerce and Securities Acts and their Australian equivalents, to ensure that limits to the reach of each country's regulatory system are not exploited and that consumers have effective redress.
The Trans-Tasman Working Group on Court Proceedings and Regulatory Enforcement (the Working Group) has identified a range of problems that arise in civil proceedings with a trans-Tasman element or that undermine the effectiveness of various regulatory regimes in each country. It is difficult to determine the scale of each of these problems but anecdotal evidence suggests a sufficient number of disputes are affected by 1 or more of these problems to warrant action. The following problems have been identified.
Although New Zealand and Australian courts have jurisdiction to allow service of proceedings on a defendant overseas, if that defendant does not submit to the court's jurisdiction, the resulting judgment may not be enforceable in the other country. This gives the defendant an incentive to ignore the proceedings, knowing that the defendant is safe from enforcement action.
Currently only final money judgments are enforceable across the Tasman. Orders requiring someone to do, or not do, something (other than paying a sum of money) are not. Instead, new proceedings to obtain this relief must be started in the other country.
Interim relief, such as a Mareva injunction (an order freezing assets), cannot be obtained in one country in support of proceedings in the other. Instead, proceedings seeking resolution of the main dispute must be commenced in the court where interim relief is sought, even if it is not the appropriate court to decide the matter. This involves unnecessary cost, delay, and inconvenience.
Decisions of tribunals in one country cannot be enforced in the other. To achieve an enforceable result, the plaintiff might have to bring court proceedings instead or bring new tribunal proceedings in the other country.
Australia and New Zealand apply potentially inconsistent forum non conveniens or “give way”
rules to determine which country's courts should decide a dispute. This could lead to neither court giving way to the other, leading to a race to judgment, rather than the appropriate court being decided on a more principled basis.
Under the trans-Tasman evidence regime, a subpoena (a summons to a witness to give evidence) issued in one country can be served on a witness in the other with the leave of a higher court Judge. Where a subpoena is issued by a lower court, a separate application must be made to a higher court for leave. This causes delay and unnecessary expense.
A subpoena under the trans-Tasman evidence regime cannot be issued in criminal proceedings. If a witness is unwilling, evidence can only be taken under less convenient procedures such as the Mutual Assistance in Criminal Matters legislation.
Civil pecuniary penalties imposed in one country are not enforceable in the other.
A criminal fine imposed in one country is not enforceable in the other due to sovereignty concerns. Being unable to enforce fines for certain regulatory offences in the other country undermines the integrity of trans-Tasman markets in which each country has a strong mutual interest.
The public policy objective for trans-Tasman court proceedings is to achieve closer integration between the New Zealand and Australian civil justice systems in order to—
make resolution of civil dispute with a trans-Tasman element simpler, less costly, and more efficient; and
make any remedies more effective; and
support the success of the trade relationship between New Zealand and Australia.
A further objective is to improve the enforcement of various regulatory regimes in which both countries have a strong mutual interest to—
reduce incentives for people to move themselves or their assets to the other country to put them beyond reach of a regulatory regime; and
avoid enforcement gaps that would otherwise exist.
Currently, the relevant New Zealand rules are a mixture of statutes, including mirror New Zealand/Australian legislation, as well as common law rules and principles. The position is the same in Australia.
The Reciprocal Enforcement of Judgments Act 1934 (REJA) (reflecting common law rules) prevents the enforcement of an Australian judgment where the defendant was served in New Zealand but did not submit to the jurisdiction of the Australian court. It also limits the Australian judgments that can be enforced in New Zealand to final money judgments. New Zealand judgments are treated similarly under the Australian Foreign Judgments Act 1991 (Aust).
Common law principles, combined with the REJA, prevent the enforcement of civil pecuniary penalties or criminal fines imposed by a court in another country. The same is true in Australia.
The Evidence Amendment Act 1994 currently requires leave of a High Court Judge to serve, in Australia, a subpoena issued by a District Court. Criminal proceedings are currently excluded from the subpoena regime in this Act. The position is the same under the Australian mirror legislation.
The common law prevents interim relief being granted in support of proceedings in another country. The potentially inconsistent Australian and New Zealand forum non conveniens rules are common law rules.
The status quo is not preferred because it will not address the problems identified by the Working Group, resulting in less certainty for litigants and regulators, complexity, greater cost, and less effectiveness both in trans-Tasman dispute resolution and the enforcement of regulatory regimes. These problems can only be addressed by the adoption of mirror solutions by New Zealand and Australia.
This option, considered by the Working Group, would involve amending the existing legislation in both countries for the enforcement of judgments to address some of the problems. The changes could prevent a registered judgment being set aside because of the lack of jurisdiction of the original court, where jurisdiction is in issue only because the defendant was outside the country of the original court. The Acts could also be amended to extend the range of enforceable judgments to non-money judgments and interim orders, and possibly civil penalty orders and certain criminal fines.
However, this proposal is not preferred because both these statutes apply to other countries beyond the trans-Tasman context, although special provisions are included to address particular trans-Tasman issues. Including further trans-Tasman provisions would make both Acts more complex.
It would also only offer a partial solution to some problems or not enable the best solution to be adopted for others. For example, trying to deal with the problem of obtaining interim relief for a foreign proceeding could be addressed by allowing interim orders to be enforced under the REJA. However, interim relief orders tend to require ongoing judicial oversight and direction, the protection of third party interests, and making or modification at short notice. These needs would not be well met under the REJA model.
This option, also considered by the Working Group, would involve enacting new legislation modelled on the Brussels Regulation that operates in the European Union. The Brussels model was developed to ease the enforcement of civil judgments between EU Member States. Mirror legislation would be required in Australia too.
Under the Brussels model, a court's jurisdiction is determined primarily by the defendant's domicile or by specific rules regarding particular types of claim. Where more than 1 court has jurisdiction, priority is decided by a “first to file”
rule. Judgments are readily enforceable, with only limited exceptions.
This option is not preferred. It was originally designed for EU Member States when all were civil law countries. Its civil law origins do not make it the best model for 2 countries with a shared common law heritage. It would also not offer a solution to the range of problems that have been identified. Other difficulties include—
complex jurisdictional rules overlay the domicile rule:
a person, especially a company, can have more than 1 “domicile”
so that more than 1 court has jurisdiction. In that case, the “first to file”
rule determines priority:
a rule based on the defendant's domicile is unnecessary in a trans-Tasman context:
the “first to file”
rule is arbitrary and undesirable, leading to a race to the courthouse.
Under this option, New Zealand and Australia would need to enact mirror legislation to implement the Working Group's recommendations for reform. It would be broadly modelled on the Service and Execution of Process Act 1992 (Aust) (SEPA) that has successfully resolved similar problems between States and Territories within Australia.
The Bill would include the following features:
Civil proceedings from any New Zealand court can be served in any Australian State or Territory, and vice versa. The regime would have the following additional elements:
the plaintiff would not have to show any particular connection between the proceedings and the forum to serve the proceedings in the other country:
the defendant could apply for a stay of proceedings on the basis that a court in the other country is the more appropriate court for the proceeding:
a judgment from one country could be registered in the other. It would have the same force and effect, and be enforceable as a judgment of the registering court:
a judgment could only be varied, set aside, or appealed in the court of origin:
a judgment could only be refused enforcement by a court in the other country on public policy grounds.
The range of final judgments that can be recognised and enforced between Australia and New Zealand would be extended to those requiring a person to do, or not do, something (for example, injunctions and orders for specific performance). There would be certain exclusions, such as orders about the administration of estates or the care or welfare of a child. These sorts of orders are not covered by SEPA.
Appropriate New Zealand and Australian courts would be given statutory authority to grant interim relief in support of proceedings in the other country's courts. New Zealand could extend this to other countries as well.
Certain orders, or orders in certain types of proceedings, made by specified tribunals, would be recognised and enforced between Australia and New Zealand. The particular tribunals, proceedings, and orders to which the regime would apply would be prescribed by subordinate legislation on a case by case basis.
A statutory test would be adopted between Australia and New Zealand to allow a person to seek a stay of proceedings in one country on the grounds that a court in the other country is the more appropriate forum for the proceeding.
Under the trans-Tasman evidence regime, a lower court Judge would be able to grant leave to issue a trans-Tasman subpoena in civil proceedings before that court or before a prescribed tribunal.
A civil pecuniary penalty order made in one country would be enforceable in the other as a civil judgment. Either country could exclude particular pecuniary penalty regimes in the other country.
Fines imposed in one country for criminal offences under certain regulatory regimes would be enforceable in the other, in the same way as civil judgment debts. Only fines for offences under a regulatory regime that affects the effectiveness, integrity, and efficiency of trans-Tasman markets and in which both countries have a strong mutual interest would be included, as the strong mutual interest outweighs the usual sovereignty concerns against enforcement. There would be a list of those fines included in the scheme.
Subpoenas in criminal proceedings should be able to be served across the Tasman with the leave of a Judge.
The proposed regime will streamline processes for the resolution of trans-Tasman disputes. This will enable better use to be made of the courts and for court orders to be more effectively enforced, thereby improving outcomes from the courts system. There will be some administrative costs associated with—
enabling judgments to be registered in District Courts, and not just the High Court:
an increase in the number of Australian judgments registered for enforcement in New Zealand and additional court applications resulting from the proposals.
These costs will not be significant. Third party fees will offset some of the costs of enforcing judgments or court applications. The costs of extending the scheme to particular tribunals will be considered at the time of the decision to prescribe that tribunal.
The improved integrity of New Zealand and Australia’s regulatory regimes is a substantial benefit. Improved regulatory enforcement will extend the reach of regulatory schemes to ensure that people cannot evade their responsibilities by moving themselves or their assets to the other country. The proposals will help ensure that current and future CER and SEM initiatives, such as the Trans-Tasman Mutual Recognition of Securities Offerings, are fully effective because civil penalties and criminal sanctions can be enforced across the Tasman. The proposal could help deal with difficulties facing cross-border provision of service and pave the way for expanding the scope of the Trans-Tasman Mutual Recognition Arrangement.
There will also be reduced costs for regulatory and enforcement agencies that can take action under the simplified processes. An example might be a regulator that seeks an injunction under a regulatory regime and wishes to enforce that across the Tasman.
The proposed regime will deliver substantial benefits to both individuals and businesses involved in a trans-Tasman dispute through a clearer and simpler regime for the resolution of those disputes. The proposals should lead to—
reduced costs (simpler service rules, obtaining interim relief without filing substantive proceedings); and
more efficient court proceedings (lower court Judge able to give leave to issue a subpoena in proceedings before that court, enforcement of trans-Tasman judgments only refused on public policy grounds); and
more effective remedies (ability to enforce wider range of judgments).
On the other hand, some individuals or businesses who could have avoided having an Australian judgment enforced against them in New Zealand because they chose to take no part in the proceedings or the final court order was not for the payment of money, will no longer be able to do so. These people will face the cost of meeting their obligations under the new arrangements.
For businesses, simpler processes and increased certainty surrounding the effective trans-Tasman enforcement of remedies granted by a court will help encourage business transactions with those based in Australia. Improved regulatory enforcement may allow the Government to enter into more trans-Tasman initiatives, thereby creating a more seamless trans-Tasman business environment. In turn this reduces compliance costs, thereby creating further incentives for trans-Tasman trade. The benefits in this area are likely to be significant.
There will be no compliance costs for business arising from these proposals.
There is an overall benefit to society in greater civil justice co-operation between New Zealand and Australia. The regime will assist where a trans-Tasman dispute is heard by a court and may also encourage resolution of disputes without recourse to the courts because enforcement gaps have been closed. Better trans-Tasman dispute resolution and enhanced enforcement of regulatory regimes will have a significant impact on the Australia–New Zealand relationship to the mutual benefit of both countries. They will play a crucial part in the success of CER and SEM initiatives such as streamlined trans-Tasman insolvency procedures and the mutual recognition of financial intermediaries.
The Working Group consulted on its proposals prior to finalising its recommendations. It issued a public discussion paper canvassing the problems and proposed solutions and letters soliciting submissions were sent to the main stakeholders, including the judiciary, legal and accounting professions, industry and consumer bodies, academics, and Australian and New Zealand Government departments and bodies as well as the Australian State and Territory Governments. Thirty-two submissions were received (15 from Australia and 17 from New Zealand). Overall these were very supportive of the proposals, some even suggesting that integration of the 2 systems could go further.
Some submissions raised concerns that allowing the plaintiff to serve proceedings in the other country without demonstrating a connection with the forum shifts the burden of proving the appropriateness of the chosen court from the plaintiff to the defendant. However, the perceived shift is limited in practice as service is already allowed overseas without leave of the court in many cases.
Concerns were also raised about large companies centralising their debt recovery and not commencing proceedings in a small debtor’s home jurisdiction. There is already potential for this to occur under SEPA. There is, however, little concrete evidence of a problem under SEPA and no reason to think it would be more acute under a trans-Tasman regime. If evidence of a significant problem emerges in future, parallel reforms could be considered for SEPA and the trans-Tasman regime.
If the proposals are implemented, stakeholders will be consulted further when preparing the implementing legislation.
The Working Group sent copies of the discussion paper to a wide range of government departments and agencies. In addition, there were meetings with other entities such as the Commerce Commission and the Securities Commission.
The Ministry of Economic Development, Ministry of Foreign Affairs and Trade, Department of the Prime Minister and Cabinet, Ministry of Consumer Affairs, Ministry of Health, Inland Revenue Department, Crown Law Office, and the Treasury have been consulted in the preparation of the Cabinet paper.
No significant concerns were raised.
Hon Simon Power
Government Bill
105—1
Subpart 1—Service in Australia of initiating documents for civil proceedings commenced in New Zealand courts and tribunals
Subpart 2—New Zealand courts declining jurisdiction on grounds that Australian court is more appropriate forum
22 Application for stay of New Zealand civil proceeding on grounds that Australian court is more appropriate forum
29 Suspension of limitation periods for claims made earlier in stayed proceedings in Australian courts
Subpart 3—New Zealand courts giving interim relief in support of civil proceedings in Australian courts
Evidence Act 2006 governs remote appearances related to remote evidence
Remote appearances from Australia in New Zealand proceedings
35 New Zealand courts or tribunals may give parties in Australia leave to appear remotely in civil proceedings
Remote appearances from New Zealand in Australian proceedings
Subpart 5—Recognition and enforcement in New Zealand of specified judgments of Australian courts and tribunals
61 Stay of enforcement of registered judgment so that liable person can challenge it in Australian court or tribunal
64 Enforcement of registered Australian judgment unaffected by certain rules of private international law
Subpart 6—Recognition and enforcement in New Zealand of judgments given in Australian trans-Tasman market proceedings
65 When judgments given in Australian trans-Tasman market proceedings are registrable under subpart 5
Subpart 7—Recognition and enforcement in New Zealand of Australian judgments imposing civil pecuniary penalties
The Parliament of New Zealand enacts as follows:
This Act is the Trans-Tasman Proceedings Act 2009.
Parts 1 and 2 and Schedules 1 and 2 come into force on a date appointed by the Governor-General by Order in Council.
The rest of this Act comes into force on the day after the date on which this Act receives the Royal assent.
(1) The purpose of this Act is to implement in New Zealand law the Agreement between the Government of New Zealand and the Government of Australia on Trans-Tasman Court Proceedings and Regulatory Enforcement done at Christchurch on 24 July 2008 (the Agreement), the text of which is set out in Schedule 1.
(2) The objective of the Agreement, as expressed in Article 2 of the Agreement, is to—
(a) streamline the process for resolving civil proceedings with a trans-Tasman element in order to reduce costs and improve efficiency; and
(b) minimise existing impediments to enforcing certain judgments and regulatory sanctions.
(3) Provisions to implement the Agreement in Australian law are in the Trans-Tasman Proceedings Act 2009 (Aust) (the Australian Act).
(1) This Act provides for the following matters:
(a) service in Australia of initiating documents for civil proceedings commenced in New Zealand courts and tribunals:
(b) New Zealand courts declining jurisdiction and, by order, staying proceedings in New Zealand on the grounds that an Australian court is the more appropriate forum to determine the proceedings:
(c) New Zealand courts giving interim relief in support of civil proceedings commenced in Australian courts:
(d) people in Australia appearing remotely (other than to give, examine a person giving, or make submissions in relation to, remote evidence, under sections 168 to 172 of the Evidence Act 2006) in civil proceedings in New Zealand courts and tribunals:
(e) people in New Zealand appearing remotely (other than to give, examine a person giving, or make submissions in relation to, remote evidence, under sections 173 to 180 of the Evidence Act 2006) in civil proceedings in Australian courts and tribunals:
(f) recognition and enforcement in New Zealand of specified judgments of Australian courts and tribunals:
(g) recognition and enforcement in New Zealand of judgments (other than those imposing civil pecuniary penalties) given in Australian trans-Tasman market proceedings:
(h) recognition and enforcement in New Zealand of Australian judgments (including those given in an Australian trans-Tasman market proceeding) imposing civil pecuniary penalties:
(i) recognition and enforcement in New Zealand of Australian judgments imposing regulatory regime criminal fines.
(2) This Act also amends sections 150 to 162 of the Evidence Act 2006, which relate to subpoenas issued in civil proceedings in New Zealand courts being served and complied with in Australia, so that they also provide for—
(a) leave to serve a New Zealand subpoena on a witness in Australia to be given by an inferior New Zealand court if the subpoena is one issued by that court or is one issued by a tribunal declared to be a New Zealand court under section 152 of the Evidence Act 2006; and
(b) subpoenas issued in criminal proceedings in New Zealand courts to be served and complied with in Australia.
(3) New Zealand court and New Zealand subpoena have, in subsection (2), the meanings given to them by section 150 of the Evidence Act 2006.
(1) In this Act, unless the context otherwise requires,—
adjudicative function, in relation to a tribunal, means a function of the tribunal of determining the rights or liabilities of a person in a proceeding in which there are 2 or more parties (including determining that those rights or liabilities are altered)
Agreement has the meaning given to it by section 3(1)
appearance or response document has the meaning given to it by section 18(2)
appear remotely, in relation to a person and a hearing in or related to a proceeding in a court in the territory of a party to the Agreement, means that the person participates in the hearing, from the territory of the other party to the Agreement, by remote appearance medium
audio link means facilities (for example, telephone facilities) that enable audio communication between people in different places
audiovisual link means facilities that enable audio and visual communication between people in different places
Australian Act has the meaning given to it by section 3(3)
Australian law means a law of the Commonwealth, a State, or a Territory, of Australia
Australian trans-Tasman market proceeding means a proceeding in the Federal Court of Australia in which—
(a) the matters for determination are or include a matter or matters arising under—
(i) any of sections 46A, 155A, or 155B of the Trade Practices Act 1974 (Aust); or
(ii) a provision of Part VI or XII of the Trade Practices Act 1974 (Aust) in so far as it relates to any of sections 46A, 155A, or 155B of that Act; or
(b) any other kind of relief specified in an order under subsection (2)(a) is sought; or
(c) an interlocutory order is sought in relation to a proceeding of the kind mentioned in paragraph (a) or (b); or
(d) the enforcement is sought of a judgment given in a proceeding of the kind mentioned in paragraph (a) or (b)
civil pecuniary penalty means a pecuniary penalty imposed in a civil proceeding
civil proceeding means a proceeding that is not a criminal proceeding
commencement New Zealand court or tribunal, in relation to an initiating document, means the New Zealand court or tribunal in which the civil proceeding to which the initiating document relates was commenced
court includes a Judge, or Associate Judge, of the court
criminal proceeding means a proceeding that is not a proceeding in respect of a claim for compensation or under proceeds of crime legislation, but is—
(a) a prosecution for an offence; or
(b) a procedure, other than a prosecution, that, under a law of a country, State, or Territory, may be used to do either or both of the following:
(i) determine liability for an offence:
(ii) impose a penalty for an offence; or
(c) related to or associated with a prosecution or procedure in paragraph (a) or (b)
defendant, in relation to a proceeding or application, means a person served or intended to be served with the initiating document for the proceeding
enforcement of a judgment means the enforcement or execution of the judgment
entitled person, in relation to a judgment, means a person—
(a) in whose favour the judgment was given; or
(b) in whom rights under the judgment have (by assignment, succession, or otherwise) become vested
examination of a person giving evidence means the examination-in-chief, cross-examination, or re-examination of the person
excluded interim relief has the meaning given to it by section 30(2)
excluded matter means all or any of the following:
(a) the dissolution of a marriage:
(b) the enforcement of—
(i) an obligation under Australian law to maintain a spouse or a de facto partner (within the meaning of the Acts Interpretation Act 1901 (Aust)):
(ii) an obligation under New Zealand law to maintain a spouse, civil union partner, or de facto partner:
(c) the enforcement of a child support obligation:
(d) an arrangement or matter declared by an order under subsection (2)(b) to be an arrangement or matter excluded from the operation of subparts 1 and 5 of Part 2
exclusive choice of court agreement has the meaning given to it by section 25(3)
given, in relation to a judgment, includes entered, granted, or made
High Court means the High Court of New Zealand
inferior New Zealand court means a New Zealand court that is of inferior jurisdiction to the High Court
initiating document means a document—
(a) by which a civil proceeding is commenced in a New Zealand court or tribunal; or
(b) by reference to which a person becomes a party to a civil proceeding in a New Zealand court or tribunal
judgment of a court or tribunal means a judgment, award, decree, or order of the court or tribunal, whether or not it—
(a) is given in a primary proceeding or in an interlocutory proceeding; or
(b) is a money judgment or a non-money judgment
liable person, in relation to a judgment, means a person against whom the judgment—
(a) was given; or
(b) is enforceable under a law of the original jurisdiction
money judgment means a judgment under which a sum of money is payable
non-money judgment means a judgment that is not a money judgment (including, without limitation, a judgment that does not involve the payment of money but requires a person to do, or refrain from doing, other things)
original court or tribunal, in relation to a judgment, means the court or tribunal that gave the judgment
original jurisdiction, in relation to a judgment, means the Commonwealth of Australia, or State or Territory of Australia, as the case may be, in which the original court or tribunal is established
party, in relation to a proceeding, means a plaintiff or defendant
plaintiff, in relation to a proceeding, means the person by whom or on whose behalf the proceeding is brought
procedural rules, in relation to a court or tribunal, means rules, or any other laws (other than this Act or any regulations under it),—
(a) defining or governing the exercise of the court's or tribunal's jurisdiction; or
(b) regulating the court's or tribunal's practice and procedure
proceeding, in a court or tribunal, includes—
(a) an interlocutory proceeding in the court or tribunal; and
(b) a proceeding that relates to an application made to the court or tribunal (including an application for interim relief under subpart 3 of Part 2)
proceeds of crime legislation means the following:
(a) the Proceeds of Crime Act 1987 (Aust):
(b) the Proceeds of Crime Act 2002 (Aust):
(c) a law of a State or Territory of Australia that is a corresponding law (within the meaning of the Proceeds of Crime Act 2002 (Aust)):
(d) any other Australian law that is specified for the purposes of this paragraph by an order under subsection (2)(c):
(e) the Proceeds of Crime Act 1991, and sections 142A to 142Q of the Sentencing Act 2002:
(f) the Criminal Proceeds (Recovery) Act 2009
registered, in relation to an Australian judgment, means registered in a New Zealand court under section 53
registrable Australian judgment has the meaning given to it by section 50
Registrar, in relation to a court or tribunal,—
(a) means a Registrar of the court or tribunal; and
(b) includes a Deputy Registrar of the court or tribunal
regulatory regime criminal fine means a fine—
(a) for a criminal offence under a provision of Australian legislation; and
(b) that is declared by an order under section 70 to be a regulatory regime criminal fine for the purposes of subparts 5 and 8 of Part 2
remote appearance medium means—
(a) an audio link; or
(b) an audiovisual link
remote evidence means evidence given or to be given under section 168 or 173 of the Evidence Act 2006
submissions in relation to remote evidence means—
(a) submissions on whether, and if so in what way or ways, remote evidence may or must be given; and
(b) submissions on whether remote evidence is admitted or admissible; and
(c) other submissions in relation to remote evidence
working day, of a New Zealand court or tribunal in relation to a proceeding in the court or tribunal, means a day on which documents may be filed in the court's or tribunal's registry for the proceeding.
(2) The Governor-General may, by Order in Council,—
(a) specify other kinds of relief the seeking of which in a proceeding in the Federal Court of Australia make it an Australian trans-Tasman market proceeding for the purposes of this Act and under paragraph (b) of the definition of that term in subsection (1):
(b) declare an arrangement or matter to be excluded from the operation of subparts 1 and 5 of Part 2 for the purposes of paragraph (d) of the definition of excluded matter in subsection (1):
(c) specify any other Australian law for the purposes of paragraph (d) of the definition of proceeds of crime legislation in subsection (1).
A reference in, or in any regulations made under, this Act to a repealed Australian enactment is a reference to an Australian enactment that, with or without modification, replaces, or that corresponds to, the Australian enactment repealed.
Compare: 1999 No 85 s 22(2)
Nothing in this Act limits or affects Part 1A of the Judicature Act 1908.
This Act binds the Crown.
(1) Regulations for the following purposes may be made under the following sections:
(a) to prescribe information for defendants served in Australia with initiating documents for civil proceedings commenced in a New Zealand court or tribunal—section 16(3):
(b) to require or permit the defendant's application under section 22 for a stay to be served on people other than the plaintiff and the defendant—section 23(5)(a):
(c) to prescribe a period for requests to appear remotely in hearings of applications for orders staying proceedings—section 23(5)(b):
(d) to prescribe the form of, and requirements for, applications for registration of registrable Australian judgments—section 52(3):
(e) to prescribe the manner of determining the rate of exchange on the conversion day—section 54(4):
(f) to prescribe the form of, and manner of giving, notice of registration of a registrable Australian judgment—section 58(4)(a) and (b).
(2) Orders in Council for the following purposes may be made under the following sections:
(a) to specify other kinds of relief the seeking of which in a proceeding in the Federal Court of Australia make it an Australian trans-Tasman market proceeding for the purposes of this Act and under paragraph (b) of the definition of that term in section 5(1)—section 5(2)(a):
(b) to exclude arrangements or matters from the operation of subparts 1 and 5 of Part 2 for the purposes of paragraph (d) of the definition of excluded matter in section 5(1)—section 5(2)(b):
(c) to specify any other Australian law for the purposes of the definition of proceeds of crime legislation in section 5(1)—section 5(2)(c):
(d) to declare New Zealand tribunals in the performance of an adjudicative function to be tribunals to which subpart 1 of Part 2 applies—section 13(3)(a):
(e) to declare civil proceedings in a New Zealand tribunal to be a proceedings to which subpart 1 of Part 2 does not apply—section 13(3)(b):
(f) to declare New Zealand courts (other than the High Court) to be courts to which section 30(1)(b) (on giving interim relief in support of Australian proceedings) applies—section 30(3):
(g) to declare a New Zealand tribunal to be a tribunal to which sections 35 to 40 (on remote appearances from Australia in New Zealand proceedings) apply—section 34(3):
(h) to exclude kinds of non-money judgments from recognition and enforcement under subpart 5 of Part 2—section 50(3):
(i) to declare tribunals of a State or a Territory of Australia to be tribunals to which subpart 5 of Part 2 applies—section 51(1)(a):
(j) to declare specified orders of an Australian tribunal declared to be a tribunal to which subpart 5 of Part 2 applies to be orders to which that subpart applies—section 51(1)(b):
(k) to exclude kinds of judgments imposing civil pecuniary penalties from recognition or enforcement under subpart 5 of Part 2—section 68(2):
(l) to make fines for criminal offences under Australian legislation regulatory regime criminal fines for the purposes of subparts 5 and 8 of Part 2, and prescribe conditions with which judgments imposing regulatory regime criminal fines must comply in order to be recognised and enforced under subpart 5 of Part 2—section 70(2).
(3) Subsections (1) and (2) are by way of explanation only. They do not affect any section specified in them.
(4) Every Order in Council under this Act is a regulation for the purposes of the Regulations (Disallowance) Act 1989.
The Governor-General may, by Order in Council, make regulations—
(a) prescribing applications, forms, notices, and other documents for the purposes of this Act, and requiring their use:
(b) providing for any other matters contemplated by this Act or necessary for its administration or necessary for giving it full effect.
(1) Rules may be made under the Judicature Act 1908 and the District Courts Act 1947 prescribing anything that is required to be prescribed or necessary for carrying this Act into effect.
(2) Subsection (1) does not limit any powers in those Acts to make rules of court.
(1) The enactments listed in Parts 1 and 2 of Schedule 2 are amended in the manner specified in those Parts.
(2) The orders listed in Part 3 of Schedule 2 are revoked.
(1) This subpart applies to a proceeding commenced after, or commenced before but not served on all or any defendants before, the commencement of this Act, and that is—
(a) a civil proceeding commenced in a New Zealand court; or
(b) a civil proceeding commenced in a New Zealand tribunal, but only if—
(i) the tribunal's procedural rules permit an initiating document relating to the proceeding to be served outside New Zealand; and
(ii) the tribunal is declared by an order under subsection (3)(a) to be a tribunal to which this subpart applies.
(2) However, this subpart does not apply to—
(a) a civil proceeding that relates wholly or partly to an excluded matter; or
(b) a civil proceeding that relates wholly or partly to an action in rem; or
(c) a civil proceeding in a New Zealand tribunal declared by an order under subsection (3)(b) to be a proceeding to which this subpart does not apply.
(3) The Governor-General may, by Order in Council,—
(a) declare a New Zealand tribunal to be a tribunal to which this subpart applies:
(b) declare a civil proceeding in a New Zealand tribunal to be a proceeding to which this subpart does not apply.
(4) An order under subsection (3)(a) must not declare a tribunal to be one to which this subpart applies unless, when the order is made, the tribunal is prescribed for the purposes of section 66(1)(b)(i) (which relates to enforcement in Australia of New Zealand judgments) of the Australian Act.
Compare: 1908 No 89 Schedule 2 r 25.8(4), (5)
(1) An initiating document for the proceeding may be served in Australia under this subpart.
(2) However, the initiating document must be served in Australia in the same way that the document is required or permitted, under the procedural rules of the New Zealand court or tribunal, to be served in New Zealand.
(3) By way of explanation, it is not necessary for the New Zealand court or tribunal—
(a) to give leave to serve the initiating document in Australia; or
(b) to be satisfied that there is a connection between the proceeding and New Zealand.
(4) This subpart does not affect the New Zealand court's or tribunal's procedural rules, or any other New Zealand laws, under which the initiating document may, with or without leave, or in any other way, be served in Australia.
Compare: 1908 No 89 Schedule 2 rr 6.27, 6.28
Service in Australia under section 14 of an initiating document has the same effect (for example, it gives rise to the same proceeding, or status as a party to a proceeding) as if the initiating document had been served in New Zealand.
(1) An initiating document served in Australia under section 14 must contain or be accompanied by the prescribed information for the defendant.
(2) The prescribed information for the defendant must be or include general information about—
(a) steps that the defendant must or may take in relation to the proceeding; and
(b) consequences of the document being served on the defendant in Australia under section 14.
(3) The Governor-General may, by Order in Council, make regulations prescribing information for the defendant for the purposes of, and under, this section.
(1) Failure to comply with section 16(1) does not invalidate—
(a) the proceeding; or
(b) any step taken in, or in respect of, the proceeding.
(2) However, the commencement New Zealand court or tribunal may, on an application by the defendant under subsection (3), make an order setting aside (wholly or in part, and on any terms as to costs or otherwise that it considers appropriate)—
(a) the proceeding; or
(b) any step taken in, or in respect of, the proceeding.
(3) The defendant's application can only be made—
(a) within a reasonable time after the defendant becomes aware of the failure; and
(b) before the defendant has taken any fresh step after the defendant becomes aware of the failure.
Compare: 1908 No 89 Schedule 2 r 1.5
(1) A defendant who is served with an initiating document in Australia under section 14 and who wishes to file an appearance or response document must do so—
(a) within the period (the default period) that is the longer of the following periods:
(i) 30 working days of the commencement New Zealand court or tribunal after the day on which the initiating document was served on the defendant:
(ii) the period within which the procedural rules of the commencement New Zealand court or tribunal would have required or permitted the defendant to file an appearance or response document if the initiating document had been served in New Zealand; or
(b) if, before or after the end of the default period, the plaintiff or defendant applies to the commencement New Zealand court or tribunal for a shorter or longer period—within any shorter or longer period the court or tribunal considers appropriate.
(2) Appearance or response document means a document that—
(a) a defendant who has been served under section 14 with an initiating document files in the commencement New Zealand court or tribunal in response to the initiating document; and
(b) states an address for service in New Zealand or Australia; and
(c) either—
(i) complies with all requirements (other than requirements that are overridden by the time for filing and addresses for service permitted by this section) with which the document must comply under the procedural rules of the commencement New Zealand court or tribunal; or
(ii) the commencement New Zealand court or tribunal determines to be acceptable despite any non-compliance with such requirements.
The address for service stated by the defendant in the appearance or response document for a proceeding is to be treated as the defendant’s address for service for the proceeding.
(1) This section applies to a defendant who—
(a) was served, or purportedly served, in Australia under section 14 with an initiating document for a proceeding; and
(b) applies under section 22 to a New Zealand court for an order staying the proceeding on the grounds that an Australian court is the more appropriate court for the proceeding.
(2) Under section 23(4) the defendant, the defendant's counsel, or both may, despite section 35 (but subject to the rest of subpart 4), appear remotely in the hearing by the New Zealand court of the application for a stay of the proceeding if—
(a) the defendant makes to the court under section 23(4)(c) a request to appear remotely in the hearing; and
(b) a remote appearance medium is, or can reasonably be made, available.
(3) This section is by way of explanation only. It does not affect section 23(4).
(1) A commencement New Zealand court or tribunal that considers it appropriate in all the circumstances to do so may, on an application by a defendant served, or purportedly served, under section 14, order the giving of security for costs.
(2) An order under subsection (1)—
(a) requires the plaintiff or plaintiffs against whom the order is made to give security for costs as directed for a sum that the New Zealand court or tribunal considers sufficient—
(i) by paying that sum into the New Zealand court's or tribunal's registry; or
(ii) by giving, to the satisfaction of the New Zealand court or tribunal or the Registrar, security for that sum; and
(b) may stay the proceeding until the sum is paid or the security is given.
(3) The New Zealand court or tribunal may make an order under subsection (1) even if the defendant has taken a step in the proceeding before applying for security.
(4) A plaintiff's solicitor must not be accepted as surety for a security that the plaintiff is required to give under subsection (1).
Compare: 1908 No 89 Schedule 2 rr 5.45, 5.46
(1) A defendant in a civil proceeding commenced in a New Zealand court after the commencement of this Act may apply to the court for an order staying the proceeding on the grounds that an Australian court is the more appropriate court for the proceeding.
(2) The application must be made—
(a) within 30 working days of the New Zealand court after the day on which the defendant was served with the initiating document for the proceeding; or
(b) if, before or after the end of the period in paragraph (a), the plaintiff or defendant applies to the New Zealand court for a shorter or longer period—within any shorter or longer period the New Zealand court considers appropriate.
(1) The New Zealand court may determine the defendant's application under section 22 without a hearing.
(2) However, the New Zealand court must determine the defendant's application under section 22 with a hearing if any of the following requests it to do so:
(a) the plaintiff; and
(b) the defendant; and
(c) any other person who is required or permitted, by regulations under subsection (5)(a), to be served with the defendant's application.
(3) The request must be made—
(a) within 10 working days of the New Zealand court after the day the defendant made the application; or
(b) if, before or after the end of the period in paragraph (a), a person referred to in subsection (2) applies to the New Zealand court for a shorter or longer period—within any shorter or longer period the New Zealand court considers appropriate.
(4) The defendant, the defendant's counsel, or both may, despite section 35 (but subject to the rest of subpart 4), appear remotely in the hearing if—
(a) the defendant was served, or purportedly served, in Australia under section 14 with an initiating document for a proceeding; and
(b) the New Zealand court is determining with a hearing the defendant's application under section 22 for an order to stay the proceeding; and
(c) the defendant has made to the New Zealand court within the period (if any) prescribed for the purposes of this paragraph by regulations under subsection (5)(b) a request to appear remotely in the hearing; and
(d) a remote appearance medium is, or can reasonably be made, available.
(5) The Governor-General may, by Order in Council, make regulations—
(a) requiring or permitting the defendant's application under section 22 for a stay to be served on people other than the plaintiff and the defendant:
(b) prescribing a period for the purposes of subsection (4)(c).
(1) On an application under section 22, the New Zealand court may, by order, stay the proceeding if it is satisfied that an Australian court—
(a) has jurisdiction to determine all the matters in issue between the parties to the proceeding; and
(b) is the more appropriate court to determine those matters.
(2) In determining whether an Australian court is the more appropriate court to determine the matters in issue between the parties to the proceeding, the New Zealand court must not take into account the fact that the proceeding was commenced in New Zealand, but must take into account the following matters:
(a) the places of residence of the parties or, if a party is not an individual, its principal place of business:
(b) the places of residence of the witnesses likely to be called in the proceeding:
(c) the place where the subject matter of the proceeding is situated:
(d) any agreement between the parties about the court or place in which those matters should be determined or the proceeding should be instituted (other than an exclusive choice of court agreement to which section 25(1) applies):
(e) the law that it would be most appropriate to apply in the proceeding:
(f) whether a related or similar proceeding has been commenced against the defendant or another person in a court in Australia:
(g) the financial circumstances of the parties, so far as the New Zealand court is aware of them:
(h) any other matters (other than the fact that the proceeding was commenced in New Zealand) that the New Zealand court considers relevant.
(1) On an application under section 22 (and despite section 24) the New Zealand court—
(a) must, by order, stay the proceeding, if satisfied that an exclusive choice of court agreement designates an Australian court as the court to determine the matters in issue between the parties to the proceeding; and
(b) must not, by order, stay the proceeding, if satisfied that an exclusive choice of court agreement designates a New Zealand court as the court to determine those matters.
(2) However, subsection (1) does not apply to an exclusive choice of court agreement if the New Zealand court is satisfied that—
(a) it is null and void under the law (including, without limitation, the rules of private international law) of Australia; or
(b) under New Zealand law, a party to it lacked the capacity to conclude it; or
(c) giving effect to it would lead to a manifest injustice or would be manifestly contrary to New Zealand public policy; or
(d) for exceptional reasons beyond the control of the parties to it, it cannot reasonably be performed; or
(e) the court designated by it as the court to determine the matters in issue between the parties to the proceeding has decided not to determine those matters.
(3) Exclusive choice of court agreement, in relation to matters in issue between parties to a proceeding, means a written agreement between those parties that—
(a) designates the courts, or a specified court or courts, of a specified country, to the exclusion of any other courts, as the court or courts to determine disputes between those parties that are or include those matters; and
(b) is not an agreement the parties to which are or include 1 or more individuals acting primarily for personal, family, or household purposes; and
(c) is not a contract of employment (including, without limitation, a collective agreement).
An order under section 24 or 25 may be made subject to any conditions the New Zealand court considers are appropriate in order to facilitate, without delay or undue expense, the determination of all matters in issue between the parties to the proceeding.
Compare: 1908 No 89 Schedule 2 r 15.1(3); Service and Execution of Process Act 1992 s 20(5) (Aust)
(1) A New Zealand court cannot stay a civil proceeding before it on the grounds that an Australian court is the more appropriate court for the proceeding otherwise than in accordance with this subpart.
(2) However, this subpart does not affect any power of the New Zealand court to stay a proceeding before it on any other grounds.
(1) A New Zealand court must not restrain a person from commencing a civil proceeding in an Australian court on the grounds that the Australian court is not the appropriate forum for the proceeding.
(2) Also, a New Zealand court must not restrain a party to a civil proceeding before an Australian court from taking a step in that proceeding on the grounds that the Australian court is not the appropriate forum for the proceeding.
(1) This section applies if—
(a) a claim is made in a proceeding commenced in an Australian court (the Australian proceeding) that is later stayed by an order of the Australian Court made under the Australian Act on the grounds that a New Zealand court is the more appropriate court to determine the matters in issue between the parties to the proceeding; and
(b) the claim is to be made again in a proceeding commenced in a New Zealand court (the New Zealand proceeding) after the staying of (and, if applicable, before any deadline stated in the condition of that order staying) the Australian proceeding.
(2) For the purposes of every applicable limitation period or defence under New Zealand law, the New Zealand proceeding is to be treated as commencing at the time the Australian proceeding commenced.
(1) A party or intended party to a civil proceeding commenced or to be commenced in an Australian court after the commencement of this Act may apply to the following New Zealand courts for interim relief (other than excluded interim relief) in support of the Australian proceeding:
(a) the High Court:
(b) a New Zealand court (other than the High Court) declared by an order under subsection (3) to be a court to which this paragraph applies.
(2) Interim relief is excluded interim relief if it is all or any of the following:
(a) an interim payment:
(b) discovery:
(c) a warrant of arrest of property against which an action or counterclaim in rem is brought:
(d) any action, assistance, order, or other relief under subpart 1 or 2 of Part 4 of the Evidence Act 2006.
(3) The Governor-General may, by Order in Council, declare a New Zealand court (other than the High Court) to be a court to which subsection (1)(b) applies.
(1) On an application under section 30(1), the New Zealand court may give interim relief (other than excluded interim relief) in support of the Australian proceeding if—
(a) the court considers it appropriate to give the interim relief in support of the Australian proceeding; and
(b) the court, if a proceeding similar to the Australian proceeding had been commenced in the court,—
(i) would have had power to give the interim relief in the similar proceeding; and
(ii) would have given the interim relief in the similar proceeding.
(2) The court may refuse to give interim relief if, in its opinion, the court has no jurisdiction (apart from this section) in relation to the subject matter of the Australian proceeding and it is for that reason inexpedient to give interim relief.
(3) Subsection (2) does not limit the generality of the court's discretion under subsection (1).
(4) This subpart does not affect the court's procedural rules, or any other New Zealand laws, under which the court may give interim relief in support of the Australian proceeding.
Compare: 1908 No 89 Schedule 2 r 7.81
The procedural rules of the New Zealand court apply to the proceeding for interim relief under section 30(1) as if the Australian proceeding were a similar proceeding commenced in the New Zealand court.
(1) No party to a civil proceeding may under this Act appear remotely to do all or any of the following:
(a) give evidence:
(b) examine a person giving remote evidence:
(c) make submissions in relation to remote evidence.
(2) This subpart therefore does not affect, but complements, subpart 1 of Part 4 of the Evidence Act 2006 (operating in conjunction with the Australian Act) and, in particular, the following sections of the Evidence Act 2006:
(a) sections 168 to 172 of that Act (which enable a New Zealand court, as defined in section 150 of that Act, to receive remote evidence, and examination and submissions in relation to remote evidence, by audio link or audiovisual link from Australia); and
(b) sections 173 to 180 of that Act (which enable an Australian court, as defined in section 150 of that Act, to take remote evidence, and receive examination and submissions in relation to remote evidence, by audio link or audiovisual link from New Zealand).
(1) Sections 35 to 40 apply only to a civil proceeding commenced before or after the commencement of this Act in—
(a) a New Zealand court; or
(b) a New Zealand tribunal declared by an order under subsection (3) to be a tribunal to which sections 35 to 40 apply.
(2) By way of explanation, the proceeding may, but need not, relate to enforcement of a judgment registered under subpart 5, or may, but need not, be a proceeding in respect of an application—
(a) made by a defendant served or purportedly served in Australia under section 14 with an initiating document for a proceeding; and
(b) for an order under subpart 2 staying the proceeding; and
(c) to be determined with a hearing in which the defendant is, under section 23(4), to appear remotely from Australia.
(3) The Governor-General may, by Order in Council, declare a New Zealand tribunal to be a tribunal to which sections 35 to 40 apply.
(1) The New Zealand court or tribunal may, on an application for the purpose, give a party to the proceeding, the party's counsel, or both leave to appear remotely in 1 or more hearings in or related to the proceeding using—
(a) the remote appearance medium specified by the court or tribunal; or
(b) if the court or tribunal does not specify a remote appearance medium, either remote appearance medium.
(2) The court or tribunal must not give leave to the party or the party's counsel unless it is satisfied that—
(a) the party or the party's counsel can more conveniently participate in the hearing from Australia; and
(b) if the court or tribunal intends to specify a remote appearance medium—that remote appearance medium is, or can reasonably be made, available; and
(c) if the court or tribunal does not intend to specify a remote appearance medium—both remote appearance mediums are, or can reasonably be made, available; and
(d) it is appropriate to give the leave.
(3) If the party's counsel is not entitled to appear before the court or tribunal, the court or tribunal must not give leave to the party's counsel unless satisfied that—
(a) the party ordinarily resides or, if the party is not an individual, has its principal place of business, in a State or Territory of Australia; and
(b) the counsel is entitled to practise as a barrister, a solicitor, or both in the Supreme Court of a State or Territory of Australia.
(4) If the party's counsel is entitled to practise as a barrister, a solicitor, or both in the Supreme Court of a State or Territory of Australia, and is given leave under subsection (3),—
(a) the party's counsel is entitled to practise as a barrister, a solicitor, or both in relation to the remote appearances to which the leave relates; and
(b) each of those appearances is for the purposes of section 27(1)(b)(i) of the Lawyers and Conveyancers Act 2006 an appearance allowed by this Act.
(1) This section applies to a defendant who—
(a) was served, or purportedly served, in Australia under section 14 with an initiating document for a proceeding; and
(b) applies under section 22 to a New Zealand court for an order staying the proceeding on the grounds that an Australian court is the more appropriate court for the proceeding.
(2) Under section 23(4) the defendant, the defendant's counsel, or both may, despite section 35 (but subject to the rest of this subpart), appear remotely in the hearing by the New Zealand court of the application for a stay of the proceeding if—
(a) the defendant makes to the court under section 23(4)(c) a request to appear remotely in the hearing; and
(b) a remote appearance medium is, or can reasonably be made, available.
(3) This section is by way of explanation only. It does not affect section 23(4).
A person must not appear remotely from Australia by audiovisual link unless the courtroom or other place in New Zealand where the court or tribunal is sitting (the New Zealand place) and the place in Australia where the remote appearance would be made (the Australian place) are equipped with facilities that enable—
(a) people who are at the New Zealand place to see and hear the person appearing remotely from the Australian place; and
(b) people who are at the Australian place to see and hear people at the New Zealand place.
Compare: 1908 No 89 Schedule 2 r 10.25; 2006 No 69 s 170
A person must not appear remotely from Australia by audio link unless the courtroom or other place in New Zealand where the court or tribunal is sitting (the New Zealand place) and the place in Australia where the remote appearance would be made (the Australian place) are equipped with facilities that enable—
(a) people who are at the New Zealand place to hear the person appearing remotely from the Australian place; and
(b) people who are at the Australian place to hear people at the New Zealand place.
Compare: 2006 No 69 s 171
(1) Unless the New Zealand court or tribunal otherwise orders, the costs involved in the party, the party's counsel, or both participating in hearings by using a remote appearance medium, under leave given under section 35, must be paid by the applicant for that leave.
(2) The New Zealand court or tribunal may make an order specifying the amount payable by a party under subsection (1), and requiring the party to pay that amount.
(3) An order made under subsection (2) by a tribunal that does not have the power to enforce its orders—
(a) may be filed in a District Court; and
(b) when so filed, is enforceable as a judgment of that District Court.
For the purposes of a remote appearance from Australia under leave given under section 35, the New Zealand court or tribunal may exercise in Australia all its powers that it is permitted to exercise in Australia under Australian law.
(1) A remote appearance from New Zealand in a proceeding in an Australian court or tribunal is authorised if it is in accordance with the Australian Act.
(2) However, a defendant on whom an initiating document has been served in New Zealand under the Australian Act and the defendant's counsel may, without leave, appear remotely in any hearing before that court of the defendant's application under that Act for a stay of proceedings if—
(a) they request to do so under section 18(4)(b) of that Act; and
(b) a remote appearance medium is, or can reasonably be made, available.
(1) For the purposes of a remote appearance by a person in New Zealand under section 41, an Australian court or tribunal may exercise in New Zealand any of its powers, except its powers to—
(a) punish for contempt; and
(b) enforce or execute its judgments or process.
(2) The Australian law that applies to the proceeding in Australia also applies, subject to subsection (1), to the practice and procedure of the Australian court or tribunal in allowing a person in New Zealand to appear remotely under section 41.
(1) The Australian court or tribunal may, by order,—
(a) direct that the hearing or any part of the hearing be held in private; or
(b) require any person to leave the place in New Zealand from which the appearance is being or is to be made; or
(c) prohibit or restrict the publication of submissions or the name of any party or of any witness.
(2) This section does not limit section 42.
(1) An order under section 43 —
(a) must be complied with; and
(b) may be enforced by a Judge of the High Court.
(2) The Judge of the High Court has and may exercise the powers, including the power to punish for contempt, that would have been available to enforce the order if it had been made by that Judge.
For the purposes of sections 42 and 43, the place in New Zealand from which a remote appearance is made in a hearing in or related to a proceeding before an Australian court is deemed to be part of that court.
(1) A Judge, Associate Judge, Magistrate, or Master of an Australian court or member of an Australian tribunal has, in relation to a remote appearance by a person in New Zealand under section 41, all the privileges, protections, and immunities of a Judge of the High Court.
(2) A person in New Zealand appearing remotely under section 41 as a barrister, a solicitor, or both has, in relation to the remote appearance, all the privileges and immunities of counsel in the High Court.
(3) A person in New Zealand appearing remotely under section 41 as a party has, in relation to the remote appearance, all the privileges and immunities of a party in a proceeding in the High Court.
Compare: 1908 No 89 s 26IB(2)((b); 2006 No 69 s 177
(1) A person commits an offence if the person—
(a) is at a place in New Zealand from which a remote appearance is made in a hearing in or related to a proceeding before an Australian court or tribunal; and
(b) assaults—
(i) a person appearing as a barrister, a solicitor, or both in the proceeding; or
(ii) a witness in the proceeding; or
(iii) an officer of a New Zealand court or tribunal giving assistance under section 48.
(2) A person commits an offence if the person—
(a) is at a place in New Zealand from which a remote appearance is made in a hearing in or related to a proceeding before an Australian court or tribunal; and
(b) threatens, intimidates, or wilfully insults—
(i) a Judge, Associate Judge, Magistrate, or Master of the Australian court or member of the Australian tribunal taking part in the proceeding; or
(ii) a Registrar or officer of the Australian court or tribunal taking part in, or assisting with, the proceeding; or
(iii) a person appearing as a barrister, a solicitor, or both in the proceeding; or
(iv) a witness in the proceeding.
(3) A person commits an offence if the person—
(a) is at a place in New Zealand from which a remote appearance is made in a hearing in or related to a proceeding before an Australian court or tribunal; and
(b) wilfully interrupts or obstructs the proceeding.
(4) A person commits an offence if the person—
(a) is at a place in New Zealand from which a remote appearance is made in a hearing in or related to a proceeding before an Australian court or tribunal; and
(b) wilfully and without lawful excuse disobeys any order or direction of the Australian court or tribunal in the course of the proceeding.
(5) Every person who commits an offence against this section is liable on summary conviction to imprisonment for a term not exceeding 3 months, or to a fine not exceeding $1,000, or to both.
Compare: 1908 No 89 s 56C; 1947 No 16 s 112; 2003 No 53 s 35; 2006 No 69 No 179
An officer of a New Zealand court or tribunal may, at the request of an Australian court or tribunal,—
(a) attend at the place in New Zealand from which a remote appearance is made in a hearing in or related to a proceeding before the Australian court or tribunal; and
(b) take any action that the Australian court or tribunal directs to facilitate the proceeding.
(1) A registrable Australian judgment cannot be enforced in New Zealand if it is not registered in a New Zealand court under section 53.
(2) By way of explanation, the judgment therefore cannot be enforced by way of—
(a) a registration or other enforcement process under Part 1 of the Reciprocal Enforcement of Judgments Act 1934, section 56 of the Judicature Act 1908, or any other enactment in force in New Zealand; or
(b) any common law, or other non-legislative, action or claim to enforce the judgment.
(1) A judgment is a registrable Australian judgment if—
(a) the judgment is a final and conclusive judgment that is given in a civil proceeding by an Australian court; or
(b) both of the following are satisfied:
(i) the judgment is a final and conclusive judgment that is given in a civil proceeding by an Australian tribunal declared under section 51(1)(a) to be a tribunal to which this subpart applies; and
(ii) the judgment is an order declared under section 51(1)(b) to be an order to which this subpart applies; or
(c) both of the following are satisfied:
(i) the judgment is a final and conclusive judgment that is given in a criminal proceeding by an Australian court; and
(ii) the judgment is a requirement to pay an injured party a sum of money by way of compensation, damages, or reparation; or
(d) both of the following are satisfied:
(i) the judgment is a final and conclusive judgment that is given in a civil proceeding or a criminal proceeding by an Australian court; and
(ii) the judgment is an order made under the Australian Act by an Australian court (as defined in section 150 of the Evidence Act 2006) for the payment of expenses (as so defined)—
(A) incurred by a witness (as so defined) in complying with an Australian subpoena (as so defined) served on the witness in New Zealand; or
(B) incurred by a person in connection with the taking of remote evidence, or the receipt of examination or submissions (as so defined) in relation to remote evidence, from New Zealand by audio link or audiovisual link, as the case may be; or
(e) the judgment is a final and conclusive judgment that is registered in an Australian court under the Foreign Judgments Act 1991 (Aust).
(2) However, a judgment is not a registrable Australian judgment by virtue of subsection (1) if it wholly or partly—
(a) relates to an excluded matter; or
(b) is a non-money judgment of a kind that is declared by an order under subsection (3) to be excluded from recognition or enforcement under this subpart; or
(c) is a judgment (other than one imposing a civil pecuniary penalty) given in an Australian trans-Tasman market proceeding (but a judgment of that kind is a registrable Australian judgment for the purposes of this subpart by virtue of subpart 6); or
(d) is a judgment (including one given in an Australian trans-Tasman market proceeding) imposing a civil pecuniary penalty (but a judgment of that kind is a registrable Australian judgment for the purposes of this subpart by virtue of subpart 7); or
(e) is an order under proceeds of crime legislation; or
(f) is an order relating to the granting of probate or letters of administration or the administration of the estate of a deceased person; or
(g) is an order relating to the guardianship or care of a person who is incapable of managing his or her personal affairs; or
(h) is an order relating to the management of the property of a person who is incapable of managing that property; or
(i) is an order relating to the care, control, or welfare of a child; or
(j) is an order that, if contravened by a person to whom it is directed, will make the person liable to conviction for an offence in the place where it was made; or
(k) is a judgment given before the commencement of this Act (even if the judgment is, at any time, registered in an Australian court under the Foreign Judgments Act 1991 (Aust)).
(3) For the purposes of subsection (2)(b), the Governor-General may, by Order in Council, declare a kind of non-money judgment to be excluded from recognition and enforcement under this subpart.
(4) For the purposes of subsection (1), a judgment must be treated as final and conclusive even if—
(a) a person may appeal against it in an Australian court; or
(b) an appeal against it in an Australian court has not been finally determined.
(1) The Governor-General may, by Order in Council,—
(a) declare any tribunal of a State or a Territory of Australia to be a tribunal to which this subpart applies:
(b) declare specified orders of an Australian tribunal declared to be a tribunal to which this subpart applies to be orders to which this subpart applies.
(2) Orders of an Australian tribunal must not be declared under subsection (1)(b) to be orders to which this subpart applies unless those orders are—
(a) made by the Australian tribunal in or in connection with the performance of an adjudicative function; and
(b) enforceable (with or without being filed or registered in a court) without an order of a court.
(1) An entitled person may apply to the Registrar of a New Zealand court to register in that court an Australian judgment if that court is—
(a) the High Court; or
(b) an inferior New Zealand court that has power to give the relief that is in the judgment.
(2) The application must be—
(a) made in the form (if any) prescribed by regulations under subsection (3); and
(b) made in accordance with the requirements (if any) prescribed by regulations under subsection (3); and
(c) made—
(i) within 6 years after the day on which the judgment is given; or
(ii) if there have been proceedings by way of appeal against the judgment—within 6 years after the day of the last judgment in those proceedings; or
(iii) if, before or after the period in subparagraph (i) or (ii), the entitled person applies to the New Zealand court for a longer period—within any longer period the New Zealand court considers appropriate.
(3) The Governor-General may, by Order in Council, make regulations prescribing the form of, and requirements for, an application under this section.
(4) Requirements prescribed under subsection (3) may be or include requirements that specified documents be lodged or filed in a specified way, and with, or within a specified time after the lodging or filing of, the application.
(5) Subsection (4) does not limit subsection (3).
(1) A Registrar of a New Zealand court must, on application under section 52, register in that court under this subpart a registrable Australian judgment.
(2) Once registered, the judgment remains registered unless the registration is set aside under section 57.
(1) If a sum of money payable under a registrable Australian judgment is expressed in a currency other than New Zealand currency, the judgment must be registered in the New Zealand court under section 53,—
(a) if an entitled person has requested in the application for registration that the judgment be registered in a particular currency, in that currency; and
(b) in any other case, as if it were for an equivalent amount in New Zealand currency, calculated using the rate of exchange on the working day (the conversion day) before the working day of that court on which the entitled person made the application for registration.
(2) Working day, where that term appears for the first time in subsection (1)(b), has the same meaning as in section 29 of the Interpretation Act 1999.
(3) The rate of exchange on the conversion day is that determined in the prescribed manner.
(4) The Governor-General may, by Order in Council, make regulations prescribing the manner of determining the rate of exchange on the conversion day.
(5) This section is subject to section 55 (money judgments partly satisfied).
A money judgment that has been partly satisfied at the time at which an entitled person applies for registration of that judgment may be registered under section 53 only in respect of the balance remaining payable under that judgment at that time.
(1) This section applies to a judgment if a Registrar of a New Zealand court to whom an application for registration of the judgment is made under section 52 considers that—
(a) the judgment is one in respect of different matters (for example, because it is one in respect of different subject matters, or one giving different kinds of relief); and
(b) some of the provisions of the judgment (the registrable provisions) would, if contained in a separate judgment, make that separate judgment a registrable Australian judgment.
(2) The judgment may be registered in the New Zealand court under section 53 in respect of the registrable provisions, but no other provisions.
Compare: 1934 No 11 s 4(5); Foreign Judgments Act 1991 s 6(13) (Aust)
(1) This section specifies the only situations in which a New Zealand court in which an Australian judgment has been registered under section 53 may set aside the registration of the judgment.
(2) The New Zealand court must, on application by a liable person within the applicable period under subsection (3), set aside the registration of the judgment if satisfied that—
(a) the judgment was registered in contravention of this Act; or
(b) enforcement of the judgment would be contrary to public policy in New Zealand; or
(c) both of the following subparagraphs apply:
(i) the judgment was given in a proceeding the subject matter of which was immovable property, or was given in a proceeding in rem the subject matter of which was movable property; and
(ii) that property was, at the time of the proceeding in the original court or tribunal, not situated in Australia.
(3) An application under subsection (2) must be made—
(a) within 30 working days of the New Zealand court after the day on which the liable person was given notice of registration under section 58; or
(b) if the liable person, before or after the end of the period in paragraph (a), applies to the New Zealand court for a longer period—within any longer period the New Zealand court considers appropriate.
Compare: 1934 No 11 s 6
(1) If a New Zealand court registers an Australian judgment under section 53, the entitled person must give a notice of the registration to every liable person.
(2) The notice must—
(a) be in the form (if any) prescribed by regulations under subsection (4)(a); and
(b) be given in the manner (if any) prescribed by regulations under subsection (4)(b).
(3) The notice must be given—
(a) within 15 working days of the New Zealand court after the day of registration; or
(b) if, before or after the end of the period in paragraph (a), the entitled person applies to the New Zealand court for a longer period—within any longer period the New Zealand court considers appropriate.
(4) The Governor-General may, by Order in Council, make regulations prescribing—
(a) the form of notice to be given under subsection (1):
(b) the manner of giving notice under subsection (1).
(1) A registered Australian judgment has the same force and effect, and may give rise to the same proceedings for enforcement, as if it were a judgment given by the New Zealand court in which it is registered.
(2) However, if notice of the registration of the judgment has not been given to every liable person under section 58, then subsection (1) applies to the judgment only after 45 working days of the New Zealand court after the day of registration.
(3) Subsection (1) is subject to—
(a) section 60 (which prevents enforcement of the judgment if it is not capable of being enforced in or by the original court or tribunal or in or by another Australian court or tribunal); and
(b) any order under section 61(1)(a) or (b) (delaying or staying enforcement of the registered judgment so that a liable person can challenge it in an Australian court or tribunal), or any other order of a New Zealand court, delaying or staying enforcement of the judgment; and
(c) section 63 (which relates to interest on a sum of money payable under a registered Australian judgment).
A registered Australian judgment is capable of being enforced only if, and to the extent that, at the time it is being or is to be enforced, the judgment is capable of being enforced in the original court or tribunal or in another Australian court or tribunal.
(1) A New Zealand court in which an Australian judgment has been registered under section 53 may, on an application under subsection (3) by a liable person, order that a proceeding in that court for enforcement of the judgment—
(a) not be commenced until a specified time or event; or
(b) be stayed for a specified period.
(2) The order—
(a) must be made subject to the following conditions:
(i) that the liable person make, by the end of a period specified in the order, and to an Australian court or tribunal that has power to grant the relief sought by the application, an application to set aside, vary, or appeal against the registered Australian judgment:
(ii) that the liable person prosecute that application expeditiously; and
(b) may be made subject to any other conditions, including conditions as to the giving of security, that the New Zealand court considers appropriate.
(3) An application under subsection (1) must be made—
(a) within 30 working days of the New Zealand court after the day on which the liable person was given the notice of registration required by section 58; or
(b) if the liable person, before or after the end of the period in paragraph (a), applies to the New Zealand court for a longer period—within any longer period the New Zealand court considers appropriate.
(4) If a registered Australian judgment has for enforcement been transferred to a New Zealand court other than the one in which it is registered under section 53, an application under subsection (1) may be made to, and heard and determined by, only that other New Zealand court.
(5) This section does not affect any other powers of the New Zealand court to delay or stay the enforcement of the registered Australian judgment on any grounds on which the court could delay or stay the enforcement of a judgment of a New Zealand court or tribunal.
(1) If a proceeding for enforcement of a registered Australian judgment is commenced in a New Zealand court, the following costs and expenses are recoverable in the proceeding:
(a) costs and expenses reasonably incurred by or on behalf of the person in, or incidental to, registration of the judgment:
(b) costs and expenses reasonably incurred by or on behalf of the person in attempting to enforce the judgment in the original court or tribunal.
(2) However, an entitled person's entitlement to recover, and a liable person's liability to pay, the costs and expenses specified in subsection (1)(b) are the same as they would be in a proceeding in that New Zealand court for enforcement of—
(a) a judgment given by the New Zealand court that is similar to the registered Australian judgment; or
(b) if there is no such similar judgment, a judgment given by the New Zealand court and of a kind that is most analogous to the registered Australian judgment.
Interest on a sum of money payable under a registered Australian judgment—
(a) is payable at the same rate or rates and in respect of the same period or periods as would be applicable in the original court or tribunal; and
(b) is recoverable to the extent that an entitled person satisfies the New Zealand court of the amount of interest that is payable under paragraph (a).
(1) Enforcement in New Zealand of a registered Australian judgment is not affected by the operation of any rule of private international law (other than any rule in this subpart) in operation in New Zealand.
(2) In particular, no New Zealand court may refuse to enforce a registered Australian judgment, or may delay, limit, or prohibit its enforcement, on all or any of the following grounds:
(a) enforcing the judgment would involve the direct or indirect enforcement in New Zealand of an Australian public law:
(b) Australian tax is payable under the judgment:
(c) the judgment imposes a civil pecuniary penalty or a regulatory regime criminal fine.
(3) Subsection (2) does not limit subsection (1).
Compare: 1978 No 103 s 89
A judgment must be treated for the purposes of subpart 5 as a registrable Australian judgment if the judgment—
(a) is given in an Australian trans-Tasman market proceeding; and
(b) does not impose a civil pecuniary penalty (but a judgment given in an Australian trans-Tasman market proceeding and that imposes a civil pecuniary penalty is a registrable Australian judgment for those purposes by virtue of subpart 7).
Compare: 1934 No 11 ss 8A–8D
The judgment referred to in section 65 may, but need not, be—
(a) an interlocutory order that is an interim or interlocutory injunction (whether obtained on or without notice); or
(b) any other interlocutory or final order requiring a person to perform an act, make a payment (other than a payment of a civil pecuniary penalty), observe a condition, or refrain from performing an act or from engaging in specified conduct.
Compare: 1934 No 11 s 8A
(1) An application under section 52 to register in a New Zealand court a registrable Australian judgment may be made only to a Registrar of the High Court if the judgment—
(a) is given in an Australian trans-Tasman market proceeding; and
(b) does not impose a civil pecuniary penalty.
(2) Subsection (1) overrides section 52, which if not overidden would permit the application to be made to a Registrar of a New Zealand court specified or described in section 52(1)(a) or (b).
Compare: 1934 No 11 s 8D(1)
(1) A judgment must be treated for the purposes of subpart 5 as a registrable Australian judgment if the judgment—
(a) is given by an Australian court in a civil proceeding (including an Australian trans-Tasman market proceeding) and imposes a civil pecuniary penalty; and
(b) is not a kind of judgment imposing a civil pecuniary penalty that is declared by an order under subsection (2) to be excluded from recognition or enforcement under subpart 5.
(2) The Governor-General may, by Order in Council, declare a kind of judgment imposing a civil pecuniary penalty to be excluded from recognition or enforcement under subpart 5.
(1) Subsection (2) applies to an application under section 52 to register in a New Zealand court a registrable Australian judgment if the judgment—
(a) is given otherwise than in an Australian trans-Tasman market proceeding; and
(b) imposes a civil pecuniary penalty.
(2) The application may be made only to a Registrar of a New Zealand court that is—
(a) the High Court; or
(b) an inferior court that has power to impose a civil pecuniary penalty under New Zealand law of the same, or a broadly similar, value.
(3) The civil pecuniary penalty under New Zealand law that is referred to in subsection (2)(b) may, but need not, be one imposed for the same or similar purposes, or in respect of the same or a similar subject matter, as the one imposed by the registrable Australian judgment.
(4) Subsection (5) applies to an application under section 52 to register in a New Zealand court a registrable Australian judgment if the judgment—
(a) is given in an Australian trans-Tasman market proceeding; and
(b) imposes a civil pecuniary penalty.
(5) The application may be made only to a Registrar of the High Court.
(6) Subsections (2) and (5) override section 52, which if not overridden would permit the applications to be made to a Registrar of a New Zealand court specified or described in section 52(1)(a) or (b).
(1) A judgment must be treated for the purposes of subpart 5 as a registrable Australian judgment if the judgment—
(a) is given by an Australian court in a criminal proceeding and imposes a regulatory regime criminal fine; and
(b) complies with any conditions prescribed by an order under subsection (2)(b) as conditions with which a judgment imposing a regulatory regime criminal fine of that kind must comply in order to be recognised and enforced under subpart 5.
(2) The Governor-General may, by Order in Council,—
(a) declare a fine for a criminal offence under a provision of Australian legislation to be a regulatory regime criminal fine for the purposes of subpart 5 and this subpart:
(b) prescribe conditions with which a judgment imposing a fine declared under paragraph (a) to be a regulatory regime criminal fine must comply in order to be recognised and enforced under subpart 5.
(3) Section 6 applies to a reference in an order under subsection (2) to a repealed Australian enactment.
(1) An application under section 52 in respect of a registrable Australian judgment that imposes a regulatory regime criminal fine may be made only to a Registrar of the High Court.
(2) Subsection (1) overrides section 52, which if not overridden would permit the application to be made to a Registrar of a New Zealand court specified or described in section 52(1)(a) or (b).
Schedule 1 | s 3 |
The Government of New Zealand and the Government of Australia (hereinafter “the Parties”
):
CONSCIOUS of their long-standing friendship and close historic, political and economic relationship;
RECOGNISING the development of that relationship through the framework established by the Australia New Zealand Closer Economic Relations Trade Agreement done at Canberra on 28 March 1983, and subsequent arrangements and agreements developed within that framework of which this Agreement forms a part;
ACKNOWLEDGING each Party’s confidence in the judicial and regulatory institutions of the other Party;
AFFIRMING their shared commitment to appropriate and effective resolution of trans-Tasman civil disputes and increased regulatory cooperation;
DESIRING therefore to establish a new trans-Tasman regime, building on the existing cooperative regime covering the taking of evidence and associated court procedures, to further streamline aspects of civil court proceedings and regulatory enforcement and reduce unnecessary procedural and regulatory barriers to the conduct of litigation;
HAVE agreed as follows:
Adjudicative function means, in relation to tribunals, the function of determining the rights or liabilities of a person in a proceeding in which there are two (2) or more parties.
Appear remotely means where a person physically located in the territory of one Party is heard, or seen and heard, using technology including video or telephone link, by a court within the territory of the other Party.
Court within the territory of a Party for Australia means any federal court (including the High Court of Australia), or any court of a State or Territory.
Defendant includes a judgment debtor.
Judge for Australia includes a magistrate.
Inferior court means a court that is not a superior court.
Local registration means an entitlement to practice as a legal practitioner before a court by having fulfilled the necessary local requirements.
Money judgment means a judgment under which money is payable.
Non-money judgment means a judgment which does not involve the payment of money, including but not limited to, a judgment requiring a person to do or refrain from doing something.
Plaintiff includes a judgment creditor.
Superior court means:
1. In the case of Australia:
a) the High Court of Australia;
b) the Federal Court of Australia;
c) the Family Court of Australia; or
d) the Supreme Court of a State or Territory.
2. In the case of New Zealand:
a) the High Court;
b) the Court of Appeal; or
c) the Supreme Court.
The territory of a Party means the land areas, internal waters and territorial sea under the sovereignty or jurisdiction of a Party, but with respect to New Zealand does not include Tokelau.
1. The objective of this Agreement is to streamline the process for resolving civil proceedings with a trans-Tasman element in order to reduce costs, improve efficiency, and minimise existing impediments to enforcing certain judgments and regulatory sanctions.
1. This Part shall apply to civil proceedings before courts within the territory of either Party, except civil proceedings in relation to the following matters:
a) dissolution of marriage;
b) enforcement of maintenance obligations; and
c) enforcement of child support obligations.
2. The Parties may, by mutual arrangement, exclude statutory cooperative arrangements and matters covered by existing or proposed bilateral or multilateral arrangements and agreements from the operation of this Part.
3. Actions in rem shall be excluded from the operation of Article 4.
4. The following judgments shall be capable of recognition and enforcement under Article 5:
a) final money judgments, and
b) final non-money judgments, except for the following:
i) orders about probate, letters of administration or the administration of an estate;
ii) orders about the guardianship or management of property of someone who is incapable of managing their personal affairs or property;
iii) orders about the care, control or welfare of a child; and
iv) orders that, if not complied with, may lead to conviction for an offence in the place where the order was made.
5. The Parties may, by mutual arrangement, exclude other non-money judgments from recognition and enforcement under Article 5.
6. A judgment shall be deemed to be final even though an appeal may be pending against it, or it may still be subject to appeal.
1. Initiating process in civil proceedings in a court within the territory of one Party may be served, without leave of a court, in the territory of the other Party.
2. Service rendered in accordance with this Article shall have the same effect as if it had occurred in the jurisdiction of the court in which the initiating process was issued.
3. A plaintiff to a proceeding in the court in which the initiating process is issued shall not be required to establish any particular connection between the proceedings and the forum in order to render service under this Article.
4. Once service has been rendered under this Article, the defendant may apply for a stay of the proceedings on the basis that a court within the territory of the other Party is the more appropriate court.
5. When responding to initiating process served under this Article, the defendant may nominate an address for service in the territory of either Party.
1. On application by the plaintiff, a judgment to which this Article applies issued by a court within the territory of one Party shall be registered by a court within the territory of the other Party (hereinafter “the registering court”
).
2. A judgment registered under this Article shall have the same force and effect, and may be enforced, as if the judgment had been issued by the registering court.
3. The defendant shall receive notice where a judgment is registered under this Article.
4. Subject to paragraph 6 and 8 of this Article, a judgment registered under this Article shall only be varied or set aside by the court in which it was issued, and shall only be the subject of appeal before the courts within the territory of the Party in which it was issued.
5. The registering court may grant a stay of enforcement proceedings in order for an application for variation or setting aside to be made in the court in which the judgment was issued, or in order for an appeal against the judgment to be lodged in the courts within the territory of the Party in which the judgment was issued.
6. The registration of a judgment pursuant to this Article may only be set aside in the registering court, and the judgment refused recognition and enforcement in the country of registration, if registration of the judgment would be contrary to the public policy of that country.
7. Judgments registered under this Article shall not be refused recognition and enforcement on the grounds that to do so would involve the direct or indirect enforcement of a foreign public or revenue law.
8. Registration of the following judgments may be set aside in the registering court on the basis that the property in question was not, at the time of the proceedings before the court which issued the judgment, situated within the territory of the Party in which the court which issued the judgment is located:
a) judgments given in an action where the subject matter is immovable property; and
b) judgments in an action in rem where the subject matter is movable property.
9. For the purposes of this Article, registering court means:
a) In the case of Australia:
i) the Federal Court of Australia;
ii) the Family Court of Australia; or
iii) the Supreme Court of a State or Territory.
b) In the case of New Zealand:
i) the High Court.
c) In addition, any other court within the territory of either Party that could have granted the relief contained in the judgment.
1. The Parties may mutually determine a list of specified tribunals, the decisions, or classes of decisions, of which may be capable of recognition and enforcement pursuant to Article 5 in the courts within the territory of the other Party.
2. In order to be specified under paragraph 1 of this Article, a tribunal must exercise an adjudicative function and its decisions must be capable of enforcement without an order of a court.
3. The Parties may mutually determine the tribunals specified under paragraph 1 of this Article the initiating process of which may be served pursuant to Article 4.
4. In order to be specified under paragraph 3, initiating process in proceedings before that tribunal must be able to be served overseas.
1. Each Party shall nominate courts within its territory to grant interim relief in support of proceedings commenced in the courts within the territory of the other Party.
2. Courts nominated under paragraph 1 shall have the ability to grant the same types of interim relief in support of proceedings initiated in the courts within the territory of the other Party as they are able to grant in domestic proceedings.
1. Where the appropriateness of the forum is in issue in a proceeding, courts within the territory of each Party shall be able to grant a stay of proceedings on the ground that a court within the territory of the other Party is the more appropriate forum to determine the proceedings.
2. The courts within the territory of each Party shall determine the more appropriate forum for the proceeding having regard to the following factors:
a) where the parties and witnesses live;
b) which jurisdiction’s law is to be applied; and
c) whether there is agreement between the parties to the proceeding about the court or place where proceedings should be heard.
3. Any additional factors to which the courts within the territory of each Party must have regard shall be determined by mutual arrangement between the Parties.
4. The preceding paragraphs are not intended to:
a) limit the discretion of the courts to have regard to factors other than those listed in paragraph 2 or mutually determined under paragraph 3; or
b) affect the power of the courts to stay a proceeding on a ground other than the ground mentioned in paragraph 1.
5. Courts within the territory of each Party shall not:
a) restrain a party from commencing proceedings in a court within the territory of the other Party on the ground that the court is not the appropriate forum for the proceeding; or
b) restrain a party in a proceeding before a court within the territory of the other Party from taking a step in the proceeding on the ground that the court is not the appropriate forum for the proceeding.
1. Civil pecuniary penalties imposed by the courts within the territory of one Party shall be enforceable in the courts within the territory of the other Party as a civil judgment debt, under Article 5.
2. The Parties may, by mutual arrangement, exclude civil pecuniary penalty regimes from enforcement under this Article on the basis that a regime is inconsistent with the public policy of the Party seeking to exclude it.
1. The Parties shall mutually determine a list of statutes (or parts or provisions of statutes) under which fines are imposed for criminal offences under regulatory regimes that affect the effectiveness, integrity and efficiency of trans-Tasman markets and in which both Parties have a strong mutual interest.
2. Fines imposed by the courts within the territory of one Party under a statutory provision covered by paragraph 1 shall be enforceable in the courts within the territory of the other Party in the same way as a civil judgment debt under Article 5, but must be registered in a superior court of the country registering the judgment.
1. A party or their legal representative, residing in the territory of one Party, may appear remotely in civil proceedings in the territory of the other Party, with leave of the court.
2. Legal representatives may only appear remotely in that capacity if they have the right to appear before that court, or the court permits an appearance without local registration.
3. Legal representatives may seek leave to appear without local registration if they are registered where their client resides and they will be appearing remotely from that place.
4. Notwithstanding the preceding paragraphs, a party or their legal representative seeking a stay of civil proceedings in accordance with Article 4(4) and Article 8 has the right to appear remotely without applying for leave of the court.
5. This Article is not intended to restrict the circumstances in which legal representatives may appear in accordance with other arrangements between the Parties.
1. Each Party shall ensure that it builds on the existing cooperative regime between the Parties covering the taking of evidence and associated court procedures by providing for:
a) subpoenas to be issued in criminal proceedings and served in the territory of the other Party; and
b) inferior courts to issue subpoenas in proceedings before that court, or before a prescribed tribunal, without leave being sought from a superior court.
1. Any disputes between the Parties arising out of or in connection with this Agreement shall be resolved amicably and expeditiously by consultation or negotiation between the Parties.
1. Any amendments to this Agreement agreed by the Parties shall enter into force 30 days after the date of the later notification by which the Parties notify each other that their domestic requirements for the entry into force of the amendments have been fulfilled.
1. Either Party may at any time give notice in writing through diplomatic channels to the other Party of its decision to terminate this Agreement.
2. Upon such notice being given, the Agreement shall terminate on a date to be agreed by the Parties in writing. In the absence of such agreement, this Agreement shall terminate on the later of:
a) any date specified in the notice as the date on which the termination is to be effective; or
b) the date 1 year after the date on which the notice was received.
3. The termination of this Agreement shall be without prejudice to the completion of any proceedings commenced by persons in reliance on this Agreement before and up to the date of termination.
1. Each of the Parties shall notify the other, through diplomatic channels, of the completion of their respective domestic procedures for the entry into force of this Agreement.
2. This Agreement shall enter into force 30 days after the date of the later of these notifications.
IN WITNESS WHEREOF the undersigned, being duly authorised by their respective Governments, have signed this Agreement.
DONE in duplicate at Christchurch on this 24th day of July, 2008.
Lianne Dalziel
For the Government of New Zealand
Robert McClelland
For the Government of Australia
Schedule 2 | s 12 |
Paragraph (b) of the definition of expenses in section 150: omit “thing—”
and substitute “thing”
.
Definition of expenses in section 150: omit “necessary for the purposes of complying with the subpoena”
in the second place where it appears.
Section 150: insert in their appropriate alphabetical order:
“audio link means facilities (for example, telephone facilities) that enable audio communication between people in different places
“audiovisual link means facilities that enable audio and visual communication between people in different places
“examination of a person giving evidence means the examination-in-chief, cross-examination, or re-examination of the person
“relevant court, in relation to leave to serve a New Zealand subpoena on a witness in Australia, or an application under section 154 for leave of that kind, means—
“(a) a District Court, if the New Zealand subpoena is issued by a tribunal declared by the Minister of Justice under section 152 to be a New Zealand court; and
“(b) the New Zealand court that issued the subpoena, in every other case
“remote appearance medium means—
“(a) an audio link; or
“(b) an audiovisual link
“remote evidence means evidence given or to be given under section 168 or 173
“submissions does not include submissions that are not—
“(a) submissions on whether, and if so in what way or ways, remote evidence may or must be given; or
“(b) submissions on whether remote evidence is admitted or admissible; or
“(c) other submissions in relation to remote evidence”.
Section 151: repeal and substitute:
“151 Meaning of specified proceeding
In this subpart, specified proceeding means a proceeding—
“(a) in respect of which a person is seeking an order under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980; or
“(b) relating to the guardianship or care of a person who is incapable of managing his or her personal affairs; or
“(c) relating to the management of the property of a person who is incapable of managing that property.”
Section 154(1): omit “High Court”
and substitute “relevant court”
.
Section 160: omit “High Court”
in each place where it appears and substitute in each case “relevant court”
.
Section 161(a): omit “High Court”
and substitute “relevant court”
.
Section 163(2)(a): omit “Federal Court, or of the order of the Judge of the Family Court of Australia, or the order of the Judge of a Supreme Court of a State or a territory of Australia, as the case may be,”
and substitute “court of judicature within Australia”
.
Section 165(4)(a): omit “the Federal Court or a Judge of the Family Court of Australia or a Judge of a Supreme Court of an Australian State or a territory”
and substitute “a court of judicature within Australia”
.
Section 165(5): omit “Federal Court or by the Family Court of Australia or by a Supreme Court of an Australian State or a territory”
and substitute “court of judicature within Australia referred to in subsection (4)(a)”
.
Heading above section 168: omit “Video link and telephone conferences”
and substitute “Audio links and audiovisual links”
.
Section 168: repeal and substitute:
“168 New Zealand court may receive evidence, and related examination and submissions, by audio link and audiovisual link from Australia
“(1) A New Zealand court may, on application by a party to a proceeding before it, direct that all or any of the following be done by remote appearance medium from Australia:
“(a) the giving of evidence:
“(b) the examination of a person giving evidence under paragraph (a):
“(c) the making of submissions.
“(2) The remote appearance medium used must be—
“(a) the remote appearance medium specified by the court; or
“(b) if the court does not specify a remote appearance medium—either remote appearance medium.
“(3) The court must not give the direction unless it is satisfied that—
“(a) the evidence, examination, or submission can more conveniently be given or made from Australia; and
“(b) if the court intends to specify a remote appearance medium—that remote appearance medium is, or can reasonably be made, available; and
“(c) if the court does not intend to specify a remote appearance medium—both remote appearance mediums are, or can reasonably be made, available; and
“(d) it is appropriate to give the direction.
“Compare: 1994 No 31 s 19(1)
“168A Costs of giving evidence, and making examination and submissions, from Australia
“(1) Unless the New Zealand court otherwise orders, the costs incurred in giving evidence, or making an examination or submissions, by audio link or audiovisual link, and transmitting the evidence, examination, or submissions, under a direction under section 168(1), must be paid by the applicant.
“(2) The New Zealand court may make an order specifying the amount payable by a party under subsection (1), and requiring the party to pay that amount.
“(3) An order made under subsection (2) by a New Zealand court that does not have the power to enforce its orders—
“(a) may be filed in any District Court; and
“(b) when so filed, is enforceable as a judgment of that District Court.
“Compare: 1994 No 31 s 19(2)–(4)”.
Section 169: omit “submissions by video link or telephone conference”
and substitute “examination or submissions by audio link or audiovisual link”
.
Heading to section 170: omit “submissions by video link”
and substitute “, examination, and submissions by audiovisual link”
.
Section 170: omit “or submissions made by video link”
and substitute “, or examination or submissions made, by audiovisual link”
.
Section 170: omit “or the submissions are to be made”
and substitute “, or the examination is to be made, or the submissions are to be made,”
.
Section 170: omit “video facilities”
and substitute “facilities”
.
Section 170(a): insert “examination or”
before “submissions in Australia”
.
Section 170(b): omit “or the submissions are made”
and substitute “, the examination is made, or the submissions are made,”
.
Heading to section 171: omit “and submissions by telephone”
and substitute “, examination, and submissions by audio link”
.
Section 171: omit “or submissions made by telephone conference”
and substitute “, or examination or submissions made, by audio link”
.
Section 171: omit “or the submissions are to be made”
and substitute “, or the examination is to be made, or the submissions are to be made,”
.
Section 171: omit “telephone conference facilities”
and substitute “facilities”
.
Section 171(a): insert “examination or”
before “submissions in Australia”
.
Section 171(b): omit “or the submissions are made”
and substitute “, the examination is made, or the submissions are made,”
.
Section 172: repeal and substitute:
“172 Rights of Australian counsel
“(1) This section applies to a person who—
“(a) is entitled to practise as a barrister, or a solicitor, or both in a Supreme Court of a State or a territory of Australia from which evidence is to be given or examination or submissions made under a direction under section 168; but
“(b) is not entitled otherwise than under this section to appear before the New Zealand court to examine a person giving evidence, or to make submissions, under that direction.
“(2) The person is entitled to practise as a barrister, a solicitor, or both in relation to each appearance for the examination or submissions to which the direction relates, and each appearance of that kind is for the purposes of section 27(1)(b)(i) of the Lawyers and Conveyancers Act 2006 an appearance allowed by this Act.
“Compare: 1994 No 31 s 23”.
Heading above section 173: omit “Video link and telephone conferences”
and substitute “Audio links and audiovisual links”
.
Section 173: repeal and substitute:
“173 Australian court may take evidence, and receive related examination and submissions, by audio link or audiovisual link from New Zealand
The taking of evidence, or receipt of an examination or submissions, from New Zealand in a proceeding in an Australian court is authorised if it is in accordance with the Australian Act.
“Compare: 1994 No 31 s 24”.
Section 174: insert “examination or”
before “submissions”
in both places where it appears.
Section 175(1)(b): insert “, the examination is or is to be made,”
before “or the submissions are or are to be made”
.
Heading to section 176: insert “or examination or submissions made”
after “evidence given”
.
Section 176: insert “, the examination is made,”
after “the evidence is given”
.
Section 177(1): insert “an examination or”
before “submissions”
.
Section 177(2): insert “examination or”
before “submissions”
.
Section 177: omit “video link or telephone conference”
in each place where it appears and substitute in each case “audio link or audiovisual link”
.
Section 178(1): omit “video link or telephone conference”
and substitute “audio link or audiovisual link”
.
Section 179(1): insert “, an examination is being made,”
after “evidence is being given”
.
Section 179(1): omit “video link or telephone conference”
and substitute “audio link or audiovisual link”
.
Section 180(a): insert “, an examination is being or will be made,”
after “evidence is being or will be given”
.
Section 180(a): omit “video link or telephone conference”
and substitute “audio link or audiovisual link”
.
Section 181 and heading above section 181: repeal.
Section 189(1): omit “subsection”
and substitute “section”
.
Section 199(1)(e): omit “video link or telephone conference”
and substitute “audio link or audiovisual link”
.
Section 369: repeal and substitute:
“369 Reciprocal enforcement of judgments
“(1) Part 1 (except for section 6(3) and (4)) of the Reciprocal Enforcement of Judgments Act 1934 applies to a judgment given by a Court in a country (other than Australia) in respect of which the CLC Convention is in force and to enforce a claim in respect of liability incurred under any provision corresponding to section 345 of this Act.
“(2) A judgment given by a Court in Australia to enforce a claim in respect of liability incurred under Part II of the Protection of the Sea (Civil Liability) Act 1981 (Aust) (or any later Australian enactments corresponding to section 345 of this Act) must be treated as a registrable Australian judgment for the purposes of subpart 5 of Part 2 of the Trans-Tasman Proceedings Act 2009.
“Compare: 1974 No 14 s 44”.
Definition of Australian tax in section 2(1): repeal.
Section 3: insert after subsection (1):
“(1A) Nothing in this Part applies or extends to a judgment that is given in or by a superior court or an inferior court of Australia.
“(1B) Subsection (1A) does not, however, prevent a judgment given in or by a superior court or an inferior court of Australia from being a registrable Australian judgment under subpart 5 of Part 2 of the Trans-Tasman Proceedings Act 2009.
“(1C) Subsection (1A), and the amendments to, and revocations of orders under, this Part effected by Schedule 2 of the Trans-Tasman Proceedings Act 2009, do not, however, affect the application of this Part to a judgment given in or by a superior court or an inferior court of Australia before the commencement of that Act.”
Section 3(3A): repeal.
Section 3A(3) and (4): repeal.
Section 3B(4): omit “, not being a judgment of a superior Court or an inferior Court of Australia,”
.
Section 3B(5): repeal.
Section 6(1)(e): omit “, not being a judgment of a superior Court or an inferior Court of Australia under which Australian tax is payable,”.
Section 6(3)(a)(vi): repeal.
Part 1A: repeal.
Heading and items relating to Australia in Schedule: omit.
Add to web feed