TRANS-TASMAN PROCEEDINGS BILL 2010

i Trans-Tasman Proceedings Bill 2009 No. , 2009

Contents

Part 1--Preliminary

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

Purpose of, and guide to, this Act ...................................................... 3

4 Definitions

.........................................................................................

5 This

Act

binds

the Crown ................................................................ 11

This Act extends to the external Territories ..................................... 11

Part 2--Service in New Zealand of initiating documents issued

by Australian courts and tribunals

Division 1--Introduction

Guide to this Part ............................................................................. 12

Division 2--Service in New Zealand of initiating documents

issued by Australian courts and tribunals

Application of this Part .................................................................... 13

Service of initiating documents in New Zealand ............................. 13

Effect of service under section 9 ...................................................... 14

Information that must be given to the defendant ............................. 14

Consequences of not giving the information to the defendant ......... 14

When the defendant must file an appearance ................................... 15

14 Defendant's

address for service ....................................................... 16

Security for costs ............................................................................. 16

Part 3--Australian courts declining jurisdiction on the grounds

that a New Zealand court is a more appropriate forum

Division 1--Introduction

Guide to this Part ............................................................................. 17

Division 2--Australian courts declining jurisdiction on the

grounds that a New Zealand court is a more

appropriate forum

Application to stay Australian proceeding on forum grounds ......... 18

Hearing on the application ............................................................... 18

Order of stay of proceeding ............................................................. 19

Exclusive choice of court agreements .............................................. 20

How this Part affects powers of the court to stay proceeding .......... 21

No restraint of proceedings .............................................................. 21

Suspension of limitation periods ...................................................... 22

Trans-Tasman Proceedings Bill 2009 No. , 2009 ii

Part 4--Australian courts granting interim relief in support of

civil proceedings in New Zealand courts

Division 1--Introduction

Guide to this Part ............................................................................. 23

Division 2--Australian courts granting interim relief in support

of civil proceedings in New Zealand courts

Application to an Australian court for interim relief ....................... 24

Giving of interim relief in support of a New Zealand

proceeding ....................................................................................... 24

Application of Australian court procedural rules in an

interim relief proceeding .................................................................. 25

Part 5--Subpoenas

Division 1--Introduction

Guide to this Part ............................................................................. 26

Division 2--Australian subpoenas

Application of this Division ............................................................. 27

Service of Australian subpoenas in New Zealand ............................ 27

Subpoenas not to be served in New Zealand without leave ............. 27

How Australian subpoenas must be served in New Zealand ........... 28

Expenses of complying with Australian subpoenas ......................... 29

Australian subpoenas that require production .................................. 29

Applications to set Australian subpoenas aside ............................... 29

Setting aside Australian subpoenas .................................................. 30

Payment of expenses for complying with Australian

subpoenas ......................................................................................... 31

38 Contravening

Australian subpoenas ................................................ 32

This Division does not affect other court or tribunal powers ........... 32

Division 3--New Zealand subpoenas

Application of this Division ............................................................. 33

Service of New Zealand subpoenas in Australia .............................. 33

Obligation to comply with New Zealand subpoenas ....................... 33

43 Contravening

New

Zealand subpoenas ............................................ 33

Documents etc. for transmission to a New Zealand court ................ 34

This Part does not affect other powers to serve subpoenas .............. 35

Part 6--Remote appearances

Division 1--Introduction

Guide to this Part ............................................................................. 36

iii Trans-Tasman Proceedings Bill 2009 No. , 2009

Division 2--Remote appearances from New Zealand in

Australian proceedings

Subdivision A--Remote appearances unrelated to remote

evidence

Application of this Subdivision ....................................................... 37

Remote appearances unrelated to remote evidence ......................... 37

Subdivision B--Remote appearances related to remote evidence

Application of this Subdivision ....................................................... 38

Remote appearances related to remote evidence ............................. 38

Subdivision C--General provisions about remote appearances

Remote appearances by audiovisual link ......................................... 39

52 Remote

appearances by audio link .................................................. 40

Costs of remote appearances from New Zealand ............................. 40

Powers of Australian courts in New Zealand ................................... 40

Division 3--Remote appearances from Australia in New Zealand

proceedings

People in Australia appearing remotely in New Zealand

proceedings ...................................................................................... 41

Powers of New Zealand courts and tribunals in Australia ............... 41

Orders of New Zealand courts and tribunals ................................... 41

Enforcement of orders of New Zealand courts and tribunals ........... 41

Remote appearance place in Australia is part of the New

Zealand court or tribunal .................................................................. 42

Privileges, protections and immunities of participants in New

Zealand proceedings ........................................................................ 42

Contempt of New Zealand courts or tribunals ................................. 43

New Zealand courts and tribunals may administer oath or

affirmation in Australia .................................................................... 44

Assistance to New Zealand courts and tribunals .............................. 44

Part 7--Recognition and enforcement in Australia of specified

judgments of New Zealand courts and tribunals

Division 1--Introduction

Guide to this Part ............................................................................. 46

Division 2--Recognition and enforcement in Australia of

specified judgments of New Zealand courts and

tribunals

When registrable NZ judgments are enforceable in Australia ......... 47

66 Meaning

registrable NZ judgment ............................................... 47

67 Application

Trans-Tasman Proceedings Bill 2009 No. , 2009 iv

68 Registration

NZ judgments .......................................................... 50

Currency in which NZ judgments are registered ............................. 51

70 Money

judgments

partly

satisfied when entitled person

applies for registration ..................................................................... 51

Judgments only some provisions of which are registrable ............... 52

Setting aside registration .................................................................. 52

73 Notice

registration

.......................................................................

Effect of registration and notice of registration ............................... 53

Restriction on enforcing registered NZ judgments .......................... 54

Stay of enforcement of registered NZ judgment so that the

liable person can appeal it ................................................................ 54

Costs and expenses of enforcement of registered NZ

judgments ......................................................................................... 55

Interest on registered NZ judgments ................................................ 56

Private international law does not affect enforcement of

registered NZ judgments .................................................................. 56

Part 8--Trans-Tasman market proceedings

Division 1--Introduction

Guide to this Part ............................................................................. 57

Division 2--Federal Court exercising jurisdiction in New

Zealand

Federal Court sitting etc. in New Zealand ....................................... 58

New Zealand lawyers entitled to practise in the Federal

Court in New Zealand ...................................................................... 59

83 Injunctions

relation

to New Zealand conduct .............................. 59

Service of injunctions and other judgments in New Zealand ........... 59

Division 3--High Court of New Zealand exercising jurisdiction

in Australia

High Court of New Zealand sitting in Australia etc. ....................... 60

Privileges, protections and immunities of participants in NZ

market proceedings .......................................................................... 61

New Zealand High Court may administer oath etc. in

Australia ........................................................................................... 62

Service of injunctions and other judgments in Australia ................. 62

Division 4--Taking of evidence by the Federal Court for the

High Court of New Zealand

Taking of evidence by the Federal Court ......................................... 63

90 Privilege

witnesses

......................................................................

This Division does not affect other Australian laws ........................ 64

v Trans-Tasman Proceedings Bill 2009 No. , 2009

Division 5--Miscellaneous

Jurisdiction of the Federal Court under this Part ............................. 65

Contempt of the High Court of New Zealand .................................. 65

Reciprocal arrangements for use of court facilities .......................... 66

Part 9--Evidence of certain New Zealand matters

Division 1--Introduction

Guide to this Part ............................................................................. 67

Division 2--Evidence of certain New Zealand matters

Application of this Part .................................................................... 68

Matters of law .................................................................................. 68

Evidence of New Zealand official instruments ................................ 68

Evidence of New Zealand acts of state ............................................ 69

100

Evidence of public documents admissible in New Zealand

under New Zealand Acts .................................................................. 69

101

Evidence of other New Zealand public documents .......................... 70

102

Evidence of New Zealand documents of a public nature ................. 70

103

This Part does not affect other Australian laws ............................... 70

Part 10--Miscellaneous

Division 1--Introduction

104

Guide to this Part ............................................................................. 71

Division 2--Miscellaneous

105

Jurisdiction of federal courts ............................................................ 72

106

References to repealed New Zealand Acts ...................................... 72

107 Interaction

with

the

Foreign States Immunities Act 1985 ................ 72

108 Interaction

with

the

Mutual Assistance in Criminal Matters

Act 1987 ........................................................................................... 72

109 Court

rules

.......................................................................................

110 Regulations

......................................................................................

Part 1 Preliminary

Section 2

2 Trans-Tasman Proceedings Bill 2009 No. , 2009

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 and

2 and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Sections 3 to

110

A single day to be fixed by Proclamation.

A Proclamation must not specify a day that

occurs before the day the Agreement

between the Government of Australia and

the Government of New Zealand on

Trans-Tasman Court Proceedings and

Regulatory Enforcement, done at

Christchurch on 24 July 2008, enters into

force for Australia.

However, if the provision(s) do not

commence within the period of 6 months

beginning on the day the Agreement enters

into force for Australia, they commence on

the first day after the end of that period. If

the provision(s) commence in this way, the

Minister must announce by notice in the

Gazette the day the provision(s)

commenced.

The notice is not a legislative instrument.

Note:

This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

Preliminary Part 1

Section 3

Trans-Tasman Proceedings Bill 2009 No. , 2009 3

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Purpose of, and guide to, this Act

The purpose of this Act 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 NZ

judgments and regulatory sanctions; and

Note:

Provisions to implement the Trans-Tasman Agreement in

New Zealand law are in the NZ Act.

This Part has a list of the terms that are defined in this Act (see

section 4). The terms are either defined in section 4 or in another

provision of this Act. If another provision defines the term,

section 4 will have a signpost to that definition.

Part 2 is about serving defendants in New Zealand with initiating

documents for certain civil proceedings in Australian courts or

tribunals.

Part 3 is about when an Australian court may stay a proceeding on

the grounds that a New Zealand court is the more appropriate

forum to determine the matters in dispute.

Part 4 provides for certain Australian courts to give interim relief

in support of civil proceedings in New Zealand courts.

Part 5 is about subpoenas issued by certain Australian and New

Zealand courts and tribunals. It allows for those subpoenas to be

served in the other country and provides for how that service must

be done.

Part 1 Preliminary

Section 4

4 Trans-Tasman Proceedings Bill 2009 No. , 2009

Part 6 is about people appearing remotely from New Zealand in

Australian proceedings and people appearing remotely from

Australia in New Zealand proceedings.

Part 7 is about the enforcement in Australia of specified judgments

of New Zealand courts and tribunals.

Part 8 has some special rules about particular Australian and New

Zealand proceedings that relate to the trans-Tasman market.

Part 9 has a number of evidential rules relating to New Zealand

that apply in proceedings in Australian courts and certain other

bodies.

Part 10 deals with miscellaneous matters.

4 Definitions

In this Act:

adjudicative function, in relation to a tribunal, means the function

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).

appearance: see subsection 13(2).

appears remotely: a person appears remotely in a hearing related

to a proceeding in a court or tribunal in the territory of a party to

the Trans-Tasman Agreement if 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 persons in different places.

audiovisual link means facilities that enable audio and visual

communication between persons in different places.

Australian court means:

(a) a federal court; or

Preliminary Part 1

Section 4

Trans-Tasman Proceedings Bill 2009 No. , 2009 5

(b) a court of a State or Territory.

Australian law means a law of the Commonwealth, a State or a

Territory.

Australian market proceeding: see subsection 81(2).

Australian market proceeding judgment means a judgment given

in an Australian market proceeding.

civil pecuniary penalty means a pecuniary penalty imposed by a

court or tribunal in a civil proceeding in relation to a contravention

of legislation.

civil proceeding means a proceeding that is not a criminal

proceeding.

criminal proceeding means:

(a) a prosecution for an offence; or

(b) a procedure, other than a prosecution, that, under an

Australian law or a New Zealand law, may be used:

(i) to determine liability for an offence; or

(ii) to impose a penalty for an offence; or

prosecution for an offence or a procedure mentioned in

paragraph (b);

but does not include:

(d) a proceeding for compensation; or

(e) a proceeding under proceeds of crime legislation.

defendant, in relation to a proceeding, means a person served or

intended to be served with an initiating document for the

proceeding.

document means any record of information, and includes:

(a) anything on which there is writing; or

(b) anything on which there are marks, figures, symbols or

perforations having a meaning for persons qualified to

interpret them; or

Part 1 Preliminary

Section 4

6 Trans-Tasman Proceedings Bill 2009 No. , 2009

reproduced with or without the aid of anything else; or

(d) a map, plan, drawing or photograph.

enforcement of a judgment means the enforcement or execution of

the judgment.

entitled person, in relation to a judgment:

(a) means a person:

(i) in whose favour the judgment was given; or

(ii) in whom rights under the judgment have (by

assignment, succession, or otherwise) become vested;

and

(b) for an NZ judgment in a proceeding for compensation

relating to an offence against New Zealand law--includes the

Crown in right of New Zealand acting on behalf of a person

referred to in paragraph (a).

examination of a person giving evidence means the

examination-in-chief, cross-examination or re-examination of the

person.

excluded family proceeding means:

(a) a proceeding in respect of an application made under the

Convention on the Civil Aspects of International Child

Abduction signed at The Hague on 25 October 1980; or

(b) a proceeding relating to the status or property of a person

who is not fully able to manage his or her own affairs.

Note:

The text of the Convention referred to in paragraph (a) is set out in

Australian Treaty Series 1987 No. 2 ([1987] ATS 2). In 2009, the text

of a Convention in the Australian Treaty Series was accessible

through the Australian Treaties Library on the AustLII website

(www.austlii.edu.au).

excluded matter means:

(a) the dissolution of a marriage; or

(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); or

Preliminary Part 1

Section 4

Trans-Tasman Proceedings Bill 2009 No. , 2009 7

(ii) an obligation under New Zealand law to maintain a

spouse, a civil union partner (within the meaning of the

Civil Union Act 2004 of New Zealand) or a de facto

partner (within the meaning of the Interpretation Act

1999 of New Zealand); or

exclusive choice of court agreement: see subsection 20(3).

expenses, in relation to a subpoena, include the reasonable costs of:

(a) necessary travel to and from, and accommodation at, the

place where complying with the subpoena is required; or

(b) finding, collating and producing a document or thing;

for the purposes of complying with the subpoena.

Federal Court means the Federal Court of Australia.

given, in relation to a judgment, includes entered, made or granted.

inferior Australian court means an Australian court that is not:

(a) the High Court of Australia; or

(b) a superior Australian court.

initiating document means a document:

(a) by which a civil proceeding is commenced in an Australian

court or tribunal; or

(b) by reference to which a person becomes a party to a civil

proceeding in an Australian court or tribunal.

issuing Australian court or tribunal, in relation to a document,

means the Australian court or tribunal that issued the document.

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 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

Part 1 Preliminary

Section 4

8 Trans-Tasman Proceedings Bill 2009 No. , 2009

(b) is enforceable under a New Zealand law.

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 a judgment that does not involve the payment

of money but requires a person do, or refrain from doing, other

things).

NZ Act means the Trans-Tasman Proceedings Act 2009 of New

Zealand.

NZ Evidence Act means the Evidence Act 2006 of New Zealand.

NZ judgment means a judgment given by a New Zealand court or

tribunal.

NZ market proceeding: see subsection 85(2).

NZ market proceeding judgment means a judgment given in an

NZ market proceeding.

original court or tribunal, in relation to a judgment, means the

court or tribunal that gave the judgment.

party, in relation to a proceeding, means a plaintiff or defendant.

person named, in relation to a subpoena, means the person to

whom the subpoena is addressed.

place of issue, in relation to an initiating document or subpoena

issued by an Australian court or tribunal, means the State or

Territory in which the court or tribunal issued the document.

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 made under

it) that:

(a) define or govern the exercise of the jurisdiction of the court

or tribunal; or

Preliminary Part 1

Section 4

Trans-Tasman Proceedings Bill 2009 No. , 2009 9

(b) regulate the practice and procedure of the court or tribunal.

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

Part 4).

proceeds of crime legislation means:

(a)

the

Proceeds of Crime Act 1987; or

(b)

the

Proceeds of Crime Act 2002; or

(within the meaning of the Proceeds of Crime Act 2002); or

(d)

the

Criminal Proceeds (Recovery) Act 2009 of New Zealand;

(e)

the

Proceeds of Crime Act 1991 of New Zealand; or

(f) sections 142A to 142Q of the Sentencing Act 2002 of New

Zealand; or

(g) any other law of Australia or New Zealand that is prescribed

by the regulations.

qualified NZ lawyer means a lawyer within the meaning of

section 6 of the Lawyers and Conveyancers Act 2006 of New

Zealand.

registered NZ judgment means an NZ judgment to the extent that

it is registered in an Australian court under section 68.

regulatory regime criminal fine means a fine for a criminal

offence under a provision of New Zealand legislation, being a

provision of a kind prescribed by the regulations.

remote appearance: see appears remotely.

remote appearance medium means:

(a) audio link; or

(b)

audiovisual

link.

submissions, in relation to evidence, means:

Part 1 Preliminary

Section 4

10 Trans-Tasman Proceedings Bill 2009 No. , 2009

(a) submissions on whether and, if so, in what way the evidence

may or must be given; and

(b) submissions on whether the evidence is admitted or

admissible; and

subpoena means:

(a) a subpoena to give evidence; or

(b) a subpoena for production; or

subpoena for production;

but does not include a process that requires a person to produce a

document in connection with discovery and inspection of

documents.

subpoena for production means a process that requires the person

named to attend as directed by the order and produce a document

or thing for the purpose of evidence.

subpoena to give evidence means a process that requires the person

named to attend as directed by the order for the purpose of giving

evidence.

superior Australian court means:

(a) the Federal Court; or

(b) the Family Court of Australia; or

(i) a State; or

(ii) the Australian Capital Territory; or

(iii) the Northern Territory; or

(iv)

Norfolk

Island.

Trans-Tasman Agreement means the Agreement between the

Government of Australia and the Government of New Zealand on

Trans-Tasman Court Proceedings and Regulatory Enforcement

done at Christchurch on 24 July 2008.

Note:

The text of the Agreement is set out in Australian Treaty Series [2008]

ATNIF 12. In 2009, the text of an Agreement in the Australian Treaty

Series was accessible through the Australian Treaties Library on the

AustLII website (www.austlii.edu.au).

Part 2 Service in New Zealand of initiating documents issued by Australian courts and

tribunals

Division 1 Introduction

Section 7

12 Trans-Tasman Proceedings Bill 2009 No. , 2009

Part 2--Service in New Zealand of initiating

documents issued by Australian courts and

tribunals

Division 1--Introduction

7 Guide to this Part

This Part is about serving defendants in New Zealand with

initiating documents for certain civil proceedings in Australian

courts or tribunals.

This Part allows defendants to be served with the initiating

document in New Zealand and provides for how that service must

be done.

Defendants must be given certain information when served with

the initiating document. The Australian court or tribunal may set

aside the proceeding or any step taken in it if defendants are not

given that information.

Defendants must file an appearance in the Australian court or

tribunal within a particular period after being served with the

initiating document in New Zealand. In the appearance defendants

must state an address for service in Australia or New Zealand for

the proceeding.

Service in New Zealand of initiating documents issued by Australian courts and

tribunals Part 2

Service in New Zealand of initiating documents issued by Australian courts and

tribunals Division 2

Section 8

Trans-Tasman Proceedings Bill 2009 No. , 2009 13

Division 2--Service in New Zealand of initiating

documents issued by Australian courts and

tribunals

8 Application of this Part

(1) This Part applies to:

(a) a civil proceeding commenced in an Australian court; and

(b) a civil proceeding commenced in an Australian tribunal, but

only if:

(i) the tribunal's procedural rules permit an initiating

document relating to the proceeding to be served outside

Australia; and

(ii) the tribunal is prescribed by the regulations.

(2) However, this Part 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

proceeding of a kind prescribed by the regulations; or

(d) a civil proceeding that relates to a matter of a kind prescribed

by the regulations.

(3) For the purposes of subparagraph (1)(b)(ii), the regulations must

not prescribe a tribunal unless, at the time of making the

regulations, the tribunal is declared under the NZ Act to be an

Australian court for the purposes of subpart 5 of Part 2 of that Act.

9 Service of initiating documents in New Zealand

(1) An initiating document issued by an Australian court or tribunal

that relates to the proceeding may be served in New Zealand under

this Part.

(2) However, the document must be served in New Zealand in the

same way that the document is required or permitted, under the

Part 2 Service in New Zealand of initiating documents issued by Australian courts and

tribunals

Division 2 Service in New Zealand of initiating documents issued by Australian courts

and tribunals

Section 10

14 Trans-Tasman Proceedings Bill 2009 No. , 2009

procedural rules of the Australian court or tribunal, to be served in

the place of issue.

Note:

For service of the initiating document in New Zealand under this Part,

it is not necessary for the Australian court or tribunal:

(a) to give leave for the service; or

(b) to be satisfied that there is a connection between the proceeding

and Australia.

10 Effect of service under section 9

Service of an initiating document in New Zealand under section 9:

(a) has the same effect; and

(b) gives rise to the same proceeding;

as if the initiating document had been served in the place of issue.

Note:

For initiating documents issued by an Australian court, the defendant

may apply to the Australian court to stay the proceeding on the

grounds that a New Zealand court is the more appropriate court: see

Part 3. In some cases, the defendant and the defendant's lawyer may

appear remotely in that stay proceeding without the court's leave: see

subsection 18(4).

11 Information that must be given to the defendant

(1) An initiating document served under section 9 must contain or be

accompanied by information for the defendant that is prescribed by

the regulations.

(2) For the purposes of subsection (1), the regulations must prescribe

general information for the defendant about:

(a) the steps that the defendant must or may take in relation to

the proceeding; and

(b) the consequences of the document being served on the

defendant in New Zealand under section 9.

12 Consequences of not giving the information to the defendant

(1) Failure to comply with section 11 does not invalidate:

(a) the proceeding; or

(b) any step taken in relation to the proceeding.

Service in New Zealand of initiating documents issued by Australian courts and

tribunals Part 2

Service in New Zealand of initiating documents issued by Australian courts and

tribunals Division 2

Section 13

Trans-Tasman Proceedings Bill 2009 No. , 2009 15

(2) However, the issuing Australian court or tribunal may, on

application by the defendant under subsection (3), make an order in

the terms it considers appropriate setting aside:

(a) the proceeding; or

(b) any step taken in relation to the proceeding.

(3) The defendant's application can only be made:

(a) within a reasonable time; and

(b) before the defendant has commenced taking any step in the

proceeding;

after the defendant becomes aware of the failure.

13 When the defendant must file an appearance

Period within which defendant must file appearance

(1) A defendant who is served with an initiating document in New

Zealand under section 9 and who wishes to file an appearance in

the issuing Australian court or tribunal must do so within:

(a) the period (the default period) which is the longer of the

following periods:

(i) 30 working days of the issuing Australian 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

issuing Australian court or tribunal would have required

or permitted the defendant to file an appearance if the

initiating document had been served in the place of

issue; or

(b) if, before or after the end of the default period, the plaintiff or

defendant applies to the issuing Australian court or tribunal

for a shorter or longer period--any shorter or longer period

the court or tribunal considers appropriate.

Meaning of appearance

(2)

Appearance means a document that:

Part 2 Service in New Zealand of initiating documents issued by Australian courts and

tribunals

Division 2 Service in New Zealand of initiating documents issued by Australian courts

and tribunals

Section 14

16 Trans-Tasman Proceedings Bill 2009 No. , 2009

(a) a defendant who has been served under section 9 with an

initiating document files in the issuing Australian court or

tribunal in response to the initiating document; and

(b) states an address for service in Australia or New Zealand

(despite paragraph (c)); and

(c)

either:

(i) complies with any requirements which the document

must comply with under the procedural rules of the

issuing Australian court or tribunal; or

(ii) the issuing Australian court or tribunal determines to be

acceptable despite any non-compliance with such

requirements.

14 Defendant's address for service

The defendant's address for service for the proceeding is:

(a) the address that is stated in the defendant's appearance; or

(b) if, on application by the defendant, the court or tribunal

directs that another address in Australia or New Zealand is to

be the defendant's address for service for the proceeding--

that other address.

15 Security for costs

(1) An issuing Australian court or tribunal may, on application by a

defendant that was served, or purportedly served, under section 9,

order that:

(a) the plaintiff in the proceeding give such security as the court

or tribunal specifies for the defendant's costs of, and

incidental to, the proceeding; and

(b) the proceeding be stayed until that security is given.

(2) Subsection (1) does not affect the power of the court or tribunal to

make an order requiring security for costs.

Australian courts declining jurisdiction on the grounds that a New Zealand court is a

more appropriate forum Part 3

Introduction Division 1

Section 16

Trans-Tasman Proceedings Bill 2009 No. , 2009 17

Part 3--Australian courts declining jurisdiction on

the grounds that a New Zealand court is a

more appropriate forum

Division 1--Introduction

16 Guide to this Part

This Part is about when an Australian court may stay a proceeding

on the grounds that a New Zealand court is the more appropriate

court to determine the matters in dispute.

The Australian court may only stay the proceeding if the defendant

applies for the proceeding to be stayed. The defendant must make

the application within 30 working days after being served with the

initiating document for the proceeding, or such shorter or longer

period that the court considers appropriate.

The Australian court may only stay the proceeding if it is satisfied

that a New Zealand court has jurisdiction to determine all the

matters in dispute and that it is the more appropriate court to

determine those matters. In determining whether the New Zealand

court is the more appropriate court, the Australian court must take

certain matters into account. They are set out in section 19.

However, if the parties have made an exclusive choice of court

agreement that designates either an Australian court or a New

Zealand court as the court to determine the matters in dispute, the

Australian court's order as to whether or not to stay the proceeding

must be consistent with that agreement (see section 20).

Part 3 Australian courts declining jurisdiction on the grounds that a New Zealand court

is a more appropriate forum

Division 2 Australian courts declining jurisdiction on the grounds that a New Zealand

court is a more appropriate forum

Section 17

18 Trans-Tasman Proceedings Bill 2009 No. , 2009

Division 2--Australian courts declining jurisdiction on the

grounds that a New Zealand court is a more

appropriate forum

17 Application to stay Australian proceeding on forum grounds

(1) A defendant in a civil proceeding in an Australian court may apply

to the court for an order staying the proceeding on the grounds that

a New Zealand court is the more appropriate court to determine the

matters in dispute.

(2) The application must be made within:

(a) 30 working days of the Australian 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 that period, the plaintiff or

defendant applies to the Australian court for a shorter or

longer period--any shorter or longer period the Australian

court considers appropriate.

18 Hearing on the application

(1) The Australian court may determine the defendant's application

under section 17 without a hearing.

(2) However, the Australian court must determine the defendant's

application with a hearing if any of the following requests the court

to do so:

(a)

the

plaintiff;

(b)

the

defendant;

regulations or the Australian court's procedural rules, to be

served with the defendant's application.

(3) The request must be made within:

(a) 10 working days of the Australian court after the day the

defendant made the application; or

Australian courts declining jurisdiction on the grounds that a New Zealand court is a

more appropriate forum Part 3

Australian courts declining jurisdiction on the grounds that a New Zealand court is a

more appropriate forum Division 2

Section 19

Trans-Tasman Proceedings Bill 2009 No. , 2009 19

(b) if, before or after the end of that period, a person referred to

in subsection (2) applies to the Australian court for a shorter

or longer period--any shorter or longer period the Australian

court considers appropriate.

(4) The defendant and the defendant's lawyer may appear remotely in

a hearing in the Australian court about the application for an order

to stay the proceeding if:

(a) the defendant was served, or purportedly served, with the

initiating document for the proceeding in New Zealand under

section 9; and

(b) within the period (if any) prescribed by the regulations, the

defendant made a request to the Australian court for that

remote appearance; and

available.

This subsection applies despite Subdivisions A and B of Part 6, but

is subject to the rest of Part 6.

Note:

Ordinarily, for a person to appear remotely from New Zealand in a

proceeding in an Australian court, the person needs the leave of the

Australian court (see sections 48 and 50).

19 Order of stay of proceeding

(1) On application under section 17, the Australian court may, by

order, stay the proceeding if it is satisfied that a New Zealand

court:

(a) has jurisdiction to determine all the matters in dispute

between the parties to the proceeding; and

(b) is the more appropriate court to determine those matters.

(2) In determining whether a New Zealand court is the more

appropriate court to determine those matters, the Australian court

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;

Part 3 Australian courts declining jurisdiction on the grounds that a New Zealand court

is a more appropriate forum

Division 2 Australian courts declining jurisdiction on the grounds that a New Zealand

court is a more appropriate forum

Section 20

20 Trans-Tasman Proceedings Bill 2009 No. , 2009

situated;

(d) any agreement between the parties about the court or place in

which those matters should be determined or the proceeding

should be commenced (other than an exclusive choice of

court agreement to which subsection 20(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 New

Zealand;

(g) the financial circumstances of the parties, so far as the

Australian court is aware of them;

(h) any matter that is prescribed by the regulations;

(i) any other matter that the Australian court considers relevant;

and must not take into account the fact that the proceeding was

commenced in Australia.

(3) An order under subsection (1) may be made subject to any

conditions the Australian court considers are appropriate in order

to facilitate, without delay or undue expense, the determination of

all matters in dispute between the parties to the proceeding.

20 Exclusive choice of court agreements

(1) On application under section 17 (and despite section 19), the

Australian court:

(a) must, by order, stay the proceeding, if satisfied that an

exclusive choice of court agreement designates a New

Zealand court as the court to determine the matters in

dispute; and

(b) must not, by order, stay the proceeding, if satisfied that an

exclusive choice of court agreement designates an Australian

court as the court to determine those matters.

(2) However, subsection (1) does not apply to an exclusive choice of

court agreement if the Australian court is satisfied that:

Australian courts declining jurisdiction on the grounds that a New Zealand court is a

more appropriate forum Part 3

Australian courts declining jurisdiction on the grounds that a New Zealand court is a

more appropriate forum Division 2

Section 21

Trans-Tasman Proceedings Bill 2009 No. , 2009 21

(a) it is null and void under New Zealand law (including the

rules of private international law); or

(b) a party to it lacked the capacity to conclude it under

Australian law; or

be manifestly contrary to Australian 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 dispute between the parties to the proceeding has

decided not to determine those matters.

(3)

Exclusive choice of court agreement, in relation to matters in

dispute 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 an

individual acting primarily for personal, family, or household

purposes; and

21 How this Part affects powers of the court to stay proceeding

(1) An Australian court cannot stay a civil proceeding on forum

grounds connected with New Zealand otherwise than in accordance

with this Part.

(2) However, this Part does not affect any power of the Australian

court to stay the proceeding on any other grounds.

22 No restraint of proceedings

(1) An Australian court must not restrain a person from commencing a

civil proceeding in a New Zealand court on the grounds that the

New Zealand court is not the appropriate forum for the proceeding.

Part 3 Australian courts declining jurisdiction on the grounds that a New Zealand court

is a more appropriate forum

Division 2 Australian courts declining jurisdiction on the grounds that a New Zealand

court is a more appropriate forum

Section 23

22 Trans-Tasman Proceedings Bill 2009 No. , 2009

(2) Also, an Australian court must not restrain a party to a civil

proceeding before a New Zealand court from taking a step in that

proceeding on the grounds that the New Zealand court is not the

appropriate forum for the proceeding.

23 Suspension of limitation periods

(1) This section applies if:

(a) a claim is made in a civil proceeding (the NZ proceeding) in

a New Zealand court that is later stayed by an order of the

New Zealand court made under the NZ Act on the grounds

that an Australian court is the more appropriate court; and

(b) the claim is to be made again in a civil proceeding (the

Australian proceeding) in an Australian court after the

staying of (and, if applicable, before any deadline stated in

the condition of that order staying) the New Zealand

proceeding.

(2) For the purposes of every applicable limitation period or defence

under Australian law, the Australian proceeding is to be treated as

commencing at the time the New Zealand proceeding commenced.

Australian courts granting interim relief in support of civil proceedings in New Zealand

courts Part 4

Introduction Division 1

Section 24

Trans-Tasman Proceedings Bill 2009 No. , 2009 23

Part 4--Australian courts granting interim relief in

support of civil proceedings in New

Zealand courts

Division 1--Introduction

24 Guide to this Part

This Part provides for certain Australian courts to give interim

relief in support of civil proceedings in New Zealand courts.

For the Australian court to give interim relief, a party to the New

Zealand proceeding must apply for it.

The Australian court may give interim relief if it considers it

appropriate and, if a similar proceeding had been commenced in

the Australian court, it would have given interim relief in that

similar proceeding.

Part 4 Australian courts granting interim relief in support of civil proceedings in New

Zealand courts

Division 2 Australian courts granting interim relief in support of civil proceedings in

New Zealand courts

Section 25

24 Trans-Tasman Proceedings Bill 2009 No. , 2009

Division 2--Australian courts granting interim relief in

support of civil proceedings in New Zealand

courts

25 Application to an Australian court for interim relief

A party or intended party to a civil proceeding commenced or to be

commenced in a New Zealand court may apply to any of the

following Australian courts for interim relief (other than a warrant

for the arrest of property) in support of the New Zealand

proceeding:

(a)

the

Federal

Court;

(b) the Family Court of Australia;

(d) another Australian court prescribed by the regulations.

26 Giving of interim relief in support of a New Zealand proceeding

(1) On application under section 25, the Australian court may give

interim relief (other than a warrant for the arrest of property) in the

terms it considers appropriate if:

(a) the court considers it appropriate to give the interim relief in

support of the New Zealand proceeding; and

(b) if a proceeding similar to the New Zealand proceeding had

been commenced in the court, the court:

(i) would have had power to give the interim relief in that

similar proceeding; and

(ii) would have given the interim relief in that similar

proceeding.

(2) Without limiting subsection (1), the Australian court may refuse to

give the interim relief if it considers it has no jurisdiction (apart

from this section) in relation to the subject matter of the New

Zealand proceeding and it is for that reason inexpedient to give the

interim relief.

Australian courts granting interim relief in support of civil proceedings in New Zealand

courts Part 4

Australian courts granting interim relief in support of civil proceedings in New Zealand

courts Division 2

Section 27

Trans-Tasman Proceedings Bill 2009 No. , 2009 25

(3) This section does not affect any other powers of the Australian

court to give interim relief in support of the New Zealand

proceeding.

27 Application of Australian court procedural rules in an interim

relief proceeding

The procedural rules of the Australian court apply to the

proceeding for interim relief under this Part as if the New Zealand

proceeding were a similar proceeding commenced in the Australian

court.

Part 5 Subpoenas

Division 1 Introduction

Section 28

26 Trans-Tasman Proceedings Bill 2009 No. , 2009

Part 5--Subpoenas

Division 1--Introduction

28 Guide to this Part

This Part is about subpoenas issued by certain Australian and New

Zealand courts and tribunals.

Division 2 is about subpoenas issued by certain Australian courts

and tribunals. It allows for those subpoenas to be served on a

person in New Zealand with leave of an Australian court and

provides for how the service is to be done. It also allows the person

named in the subpoena to apply for the subpoena to be set aside.

Division 3 is about subpoenas issued by New Zealand courts and

tribunals. It allows for those subpoenas to be served on a person in

Australia in accordance with the NZ Evidence Act. It requires the

person served with the subpoena in Australia to comply with it.

Subpoenas Part 5

Australian subpoenas Division 2

Section 29

Trans-Tasman Proceedings Bill 2009 No. , 2009 27

Division 2--Australian subpoenas

29 Application of this Division

(1) This Division applies to a subpoena that is issued in a proceeding

(other than an excluded family proceeding) in:

(a) a federal court; or

(b) a State or Territory court prescribed by the regulations; or

(2) Regulations made for the purposes of paragraph (1)(c) must not

prescribe a tribunal unless the tribunal is a person or body

authorised by or under an Australian law to take evidence on oath

or affirmation.

30 Service of Australian subpoenas in New Zealand

(1) The subpoena may be served on a person in New Zealand in

accordance with this Division.

(2) The subpoena may require the person named to attend to give

evidence or produce documents at a place in Australia or a place in

New Zealand.

31 Subpoenas not to be served in New Zealand without leave

(1) If the proceeding is in an Australian court, the subpoena must not

be served in New Zealand without the leave of the court.

(2) If the proceeding is in an Australian tribunal, the subpoena must

not be served in New Zealand without the leave of an inferior

Australian court.

(3) Without limiting the matters that the court may take into account in

deciding whether to give leave under subsection (1) or (2), the

court must take into account:

(a) the significance of the evidence to be given, or the document

or thing to be produced, by the person named; and

Part 5 Subpoenas

Division 2 Australian subpoenas

Section 32

28 Trans-Tasman Proceedings Bill 2009 No. , 2009

(b) whether the evidence, document or thing could be obtained

by other means without significantly greater expense, and

with less inconvenience to the person named.

(4) In giving leave, the court:

(a) must impose a condition that the subpoena not be served after

a specified day; and

(b) may impose other conditions.

(5) The court must not give leave if the person named is less than 18

years old.

32 How Australian subpoenas must be served in New Zealand

(1) The subpoena must be served in New Zealand:

(a) in the same way that the subpoena is required or permitted,

under the procedural rules of the issuing Australian court or

tribunal, to be served in the place of issue; and

(b) in accordance with any directions given by the Australian

court that gave leave for the subpoena to be served.

(2) The subpoena must be accompanied by:

(a) a copy of the order giving leave for the subpoena to be served

in New Zealand; and

(b) a notice in the form prescribed by the regulations or the

procedural rules of the issuing Australian court or tribunal

that:

(i) sets out the rights and obligations of the person named

in relation to the subpoena; and

(ii) includes information about the way in which an

application to have the subpoena set aside may be made.

(3) If there is no form prescribed by the regulations or the procedural

rules for the purposes of paragraph (2)(b), the subpoena must be

accompanied by the corresponding form under the Federal Court

Rules, with such modifications as are necessary.

Subpoenas Part 5

Australian subpoenas Division 2

Section 33

Trans-Tasman Proceedings Bill 2009 No. , 2009 29

33 Expenses of complying with Australian subpoenas

(1) Allowances and travelling expenses sufficient to meet the person's

reasonable expenses of complying with the subpoena must be paid

to the person at:

(a) the time of service of the subpoena; or

(b) some other reasonable time before the person named is

required to comply with it.

(2) The allowances or travelling expenses may be paid by giving a

voucher in substitution for the whole or part of those allowances

and travelling expenses.

34 Australian subpoenas that require production

If the subpoena only requires production of a document or thing, it

must permit the person named to comply by producing the

document or thing at any registry of the High Court of New

Zealand not later than 10 days before the date specified in the

subpoena as the date on which the document or thing is required

for production in the court or tribunal that issued the subpoena.

35 Applications to set Australian subpoenas aside

(1) The person named in the subpoena may apply for the subpoena to

be set aside.

(2) The application must be made to the Australian court that gave

leave for the subpoena to be served.

(3) The application must contain an address in Australia or New

Zealand that is the applicant's address for service. That address is

to be treated as the applicant's address for service for the

proceeding.

(4) The Registrar of the Australian court must cause a copy of the

application, and any affidavit setting out facts on which the

applicant wishes to rely in support of the application, to be served

on:

(a) the lawyer for the person who obtained leave to serve the

subpoena in New Zealand; or

Part 5 Subpoenas

Division 2 Australian subpoenas

Section 36

30 Trans-Tasman Proceedings Bill 2009 No. , 2009

(b) if there is no lawyer for that person--that person.

(5) This section does not affect the procedural rules of the Australian

court in relation to the application.

36 Setting aside Australian subpoenas

(1) On application under section 35, the Australian court may set aside

the subpoena in whole or in part.

(2) The court must set the subpoena aside if:

(a) the subpoena requires the person named to attend at a place

in Australia and the court is satisfied that:

(i) the person does not have the necessary travel documents

and cannot by the exercise of reasonable diligence

obtain them within the time permitted for compliance

with the subpoena; or

(ii) were the person to comply with the subpoena, he or she

would be liable to be detained for the purpose of serving

a sentence; or

(iii) the person is liable to a prosecution, or is being

prosecuted for an offence, in Australia; or

(iv) the person is liable to the imposition of a penalty in a

civil proceeding in Australia (other than a proceeding

under the Trade Practices Act 1974); or

(b) the court is satisfied that the person is subject to a restriction

on his or her movements, imposed by law or by order of a

court, that is inconsistent with the person complying with the

subpoena.

(3) Without limiting the grounds on which the subpoena may be set

aside, the court may set it aside if the court is satisfied that:

(a) the evidence to be given by the person named could be

obtained satisfactorily by other means without significantly

greater expense; or

(b) compliance with the subpoena would cause the person

hardship or serious inconvenience; or

Subpoenas Part 5

Australian subpoenas Division 2

Section 37

Trans-Tasman Proceedings Bill 2009 No. , 2009 31

(i) the document or thing should not be taken out of New

Zealand; and

(ii) satisfactory evidence of the contents of the document, or

satisfactory evidence of the thing, can be given by other

means.

(4) The court may determine the application without a hearing.

(5) However, the court must determine the application with a hearing

if any of the following requests the court to determine it with a

hearing:

(a)

the

applicant;

(b) any person at whose request the subpoena was issued.

(6) The applicant and the applicant's lawyer may appear remotely in a

hearing to set aside the subpoena if:

(a) the applicant was served, or purportedly served, with the

subpoena in New Zealand under this Division; and

(b) within the period (if any) prescribed by the regulations, the

applicant made a request to the Australian court or tribunal

for that remote appearance; and

available.

This subsection applies despite Subdivisions A and B of Part 6, but

is subject to the rest of Part 6.

Note:

Ordinarily, for a person to appear remotely from New Zealand in a

proceeding in an Australian court, the person needs the leave of the

Australian court or tribunal (see sections 48 and 50).

37 Payment of expenses for complying with Australian subpoenas

(1) The person named is entitled to payment of an amount equal to the

reasonable expenses incurred by the person in complying with the

subpoena.

(2) If the subpoena was issued at the request of a person, the amount

must be paid by that person.

(3) If the subpoena was not issued at the request of a person, the

amount must be paid:

Part 5 Subpoenas

Division 2 Australian subpoenas

Section 38

32 Trans-Tasman Proceedings Bill 2009 No. , 2009

(a) if the subpoena was issued by a federal court--by the

Commonwealth; or

(b) otherwise--by the State or Territory in which the subpoena

was issued.

(4) The Australian court or tribunal that issued the subpoena may

make orders to ensure that the person complying with the subpoena

receives the amount of the person's reasonable expenses in so

complying.

38 Contravening Australian subpoenas

If the person named in the subpoena fails to comply with it, the

Australian court or tribunal that issued the subpoena may issue a

certificate under the seal of the court or tribunal stating that:

(a) leave to serve the subpoena was given by an Australian court;

and

(b) the person named failed to comply with the subpoena.

39 This Division does not affect other court or tribunal powers

This Division does not affect any other powers of an Australian

court or tribunal.

Subpoenas Part 5

New Zealand subpoenas Division 3

Section 40

Trans-Tasman Proceedings Bill 2009 No. , 2009 33

Division 3--New Zealand subpoenas

40 Application of this Division

This Division applies to a subpoena that:

(a) is issued in a proceeding (other than an excluded family

proceeding) in a New Zealand court or tribunal; and

(b) may be served in Australia under the NZ Evidence Act.

41 Service of New Zealand subpoenas in Australia

The subpoena may be served on a person in Australia in

accordance with the NZ Evidence Act.

42 Obligation to comply with New Zealand subpoenas

(1) A person served in Australia with the subpoena must comply with

it if:

(a) the subpoena was served under section 41; and

(b) the person is at least 18 years of age; and

the person is required to comply, allowances and travelling

expenses sufficient to meet the person's reasonable expenses

of complying with the subpoena are paid to the person.

(2) This section does not affect any right a person has under New

Zealand law to apply to have the subpoena set aside.

(3) For the purposes of paragraph (1)(c), allowances and travelling

expenses may be paid by giving a voucher in substitution for the

whole or part of those allowances and travelling expenses.

43 Contravening New Zealand subpoenas

(1) A person who contravenes section 42:

(a) is in contempt of the Federal Court; and

(b) is punishable accordingly;

unless the person establishes that the contravention should be

excused.

Part 5 Subpoenas

Division 3 New Zealand subpoenas

Section 44

34 Trans-Tasman Proceedings Bill 2009 No. , 2009

(2) In determining whether the contravention should be excused, the

Federal Court may take into account:

(a) any matters that have not been brought to the attention of the

New Zealand court that gave leave for the subpoena to be

served in Australia, if the Federal Court is satisfied that:

(i) the New Zealand court would have been likely to have

set aside the subpoena if the matters had been brought to

its attention; and

(ii) the failure to bring the matters to the attention of the

New Zealand court was not the person's fault, or was

the result of an omission by the person that should be

excused; and

(b) any other matters to which the Federal Court would have had

regard if it had issued the subpoena.

(3) A certificate under a seal of the New Zealand court or tribunal that

issued the subpoena stating that:

(a) a New Zealand court granted leave to serve the subpoena in

Australia; and

(b) the person named failed to comply with the subpoena;

is evidence of the person's contravention of section 42 unless the

person establishes to the satisfaction of the Federal Court that the

person did not in fact contravene that section.

(4) Findings of fact made by a New Zealand court on an application to

that court to set aside the subpoena cannot be challenged by a

person alleged to have contravened section 42 unless that court was

deliberately misled in making those findings of fact.

44 Documents etc. for transmission to a New Zealand court

(1) Subject to subsection (2), the following are authorised to receive a

document or thing that is required by a subpoena to be produced:

(a)

the

Federal

Court;

(b) a State or Territory court prescribed by the regulations;

Subpoenas Part 5

New Zealand subpoenas Division 3

Section 45

Trans-Tasman Proceedings Bill 2009 No. , 2009 35

(2) If the regulations so provide in relation to such a court or tribunal,

this section only applies in relation to specified locations of the

registry of the court or tribunal.

(3) If a document or thing is filed at the registry of such a court or

tribunal in compliance with a subpoena, the Registrar of the court

or tribunal must, as soon as practicable after filing, cause:

(a) the Registrar of the court or tribunal that issued the subpoena

to be informed in writing that the document or thing has been

so filed; and

(b) the document or thing to be transmitted to that court or

tribunal.

(4) Regulations made for the purposes of subsection (1):

(a) must not prescribe a court or tribunal of a State unless the

Governor of that State has requested in writing that the court

or tribunal be so prescribed; and

(b) must not prescribe a court or tribunal of the Australian

Capital Territory unless the Chief Minister of the Australian

Capital Territory has requested in writing that the court or

tribunal be so prescribed; and

unless the Administrator of the Territory has requested in

writing that the court or tribunal be so prescribed.

(5) Regulations made for the purposes of subsection (1) must not

prescribe a tribunal unless the tribunal is a person or body

authorised by or under an Australian law to take evidence on oath

or affirmation.

45 This Part does not affect other powers to serve subpoenas

This Part does not affect any right or power, conferred by or under

New Zealand law, to serve a subpoena in Australia on a citizen of

New Zealand.

Part 6 Remote appearances

Division 1 Introduction

Section 46

36 Trans-Tasman Proceedings Bill 2009 No. , 2009

Part 6--Remote appearances

Division 1--Introduction

46 Guide to this Part

This Part is about people appearing remotely from New Zealand in

Australian proceedings and people appearing remotely from

Australia in New Zealand proceedings.

Division 2 is about remote appearances from New Zealand in a

proceeding in an Australian court or a prescribed Australian

tribunal. Subdivision A deals with remote appearances by a party

or a party's lawyer where the appearance is not related to evidence

in the proceeding. Subdivision B deals with remote appearances by

any person (including a party or a party's lawyer) where the

appearance relates to evidence. Subdivision C has general

provisions that relate to all remote appearances from New Zealand.

Division 3 is about remote appearances from Australia in a

proceeding in a New Zealand court or tribunal where those remote

appearances are made in accordance with the NZ Act or the NZ

Evidence Act. It allows the New Zealand court or tribunal to

exercise certain powers in Australia for the purpose of the remote

appearances. It also gives certain privileges, protections and

immunities to participants in the remote appearances and has

offences that apply for particular conduct engaged in (for example,

obstructing the proceeding) at the place in Australia from where

the remote appearances are being made.

Remote appearances Part 6

Remote appearances from New Zealand in Australian proceedings Division 2

Section 47

Trans-Tasman Proceedings Bill 2009 No. , 2009 37

Division 2--Remote appearances from New Zealand in

Australian proceedings

Subdivision A--Remote appearances unrelated to remote

evidence

47 Application of this Subdivision

(1) This Subdivision applies to a civil proceeding in:

(a) an Australian court; or

(b) an Australian tribunal prescribed by the regulations.

(2) This Subdivision does not apply in relation to remote appearances

covered by subsection 50(1).

Note:

Section 50 allows the court to give leave for remote appearances

related to the giving of evidence remotely from New Zealand.

48 Remote appearances unrelated to remote evidence

(1) The Australian court or tribunal may, on application by a party,

give the party, the party's lawyer, or both, leave to appear remotely

from New Zealand in one or more hearings related to the

proceeding by:

(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.

Note:

In some cases, a defendant and a defendant's lawyer may appear

remotely without the leave of the court or tribunal: see subsections

18(4) and 36(6) (which deal with applications to stay proceedings or

set aside subpoenas).

(2) The Australian court or tribunal must not give leave to the party or

the party's lawyer unless it is satisfied that:

(a) the party or the party's lawyer can more conveniently

participate in the hearing from New Zealand; 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

Part 6 Remote appearances

Division 2 Remote appearances from New Zealand in Australian proceedings

Section 49

38 Trans-Tasman Proceedings Bill 2009 No. , 2009

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 lawyer is not entitled to appear before the court or

tribunal, the court or tribunal must not give leave to the party's

lawyer unless it is satisfied that:

(a) the lawyer is a qualified NZ lawyer; and

(b) the party ordinarily resides or, if the party is not an

individual, has its principal place of business, in New

Zealand.

(4) If the court or tribunal gives leave, then a qualified NZ lawyer who

is not otherwise entitled to appear before the court or tribunal is

entitled to practise as a barrister, a solicitor, or both, in relation to

that leave.

Subdivision B--Remote appearances related to remote

evidence

49 Application of this Subdivision

(1) This Subdivision applies to a civil or criminal proceeding in:

(a) a federal court; or

(b) a State or Territory court prescribed by the regulations; or

(2) Regulations made for the purposes of paragraph (1)(c) must not

prescribe a tribunal unless the tribunal is a person or body

authorised by or under an Australian law to take evidence on oath

or affirmation.

50 Remote appearances related to remote evidence

(1) The Australian court or tribunal may, on application by a party,

give leave for:

(a) the giving of evidence; or

Remote appearances Part 6

Remote appearances from New Zealand in Australian proceedings Division 2

Section 51

Trans-Tasman Proceedings Bill 2009 No. , 2009 39

(b) the examination of a person giving evidence under

paragraph (a); or

under paragraph (a);

from New Zealand in one or more hearings related to the

proceeding by:

(d) the remote appearance medium specified by the court or

tribunal; or

(e) if the court or tribunal does not specify a remote appearance

medium--either remote appearance medium.

Note 1:

For remote appearances other than those related to giving evidence

remotely from New Zealand, see section 48.

Note 2:

In some cases, a defendant and a defendant's lawyer may appear

remotely without the leave of the court or tribunal: see subsections

18(4) and 36(6) (which deal with applications to stay proceedings or

set aside subpoenas).

(2) The Australian court or tribunal must not give leave unless it is

satisfied that:

(a) the evidence, examination or submission can more

conveniently be given or made from New Zealand; 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

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 Australian court or tribunal gives leave, then a qualified NZ

lawyer who is not otherwise entitled to appear before the court or

tribunal is entitled to practise as a barrister, a solicitor, or both, in

relation to that leave.

Subdivision C--General provisions about remote appearances

51 Remote appearances by audiovisual link

A person must not appear remotely from New Zealand by

audiovisual link, unless the courtroom or other place in Australia

Part 6 Remote appearances

Division 2 Remote appearances from New Zealand in Australian proceedings

Section 52

40 Trans-Tasman Proceedings Bill 2009 No. , 2009

where the court or tribunal is sitting (the Australian place), and the

place in New Zealand where the remote appearance would be made

(the New Zealand place), are equipped with facilities that enable:

(a) persons who are at the Australian place to see and hear the

person appearing remotely from the New Zealand place; and

(b) persons who are at the New Zealand place to see and hear

persons at the Australian place.

52 Remote appearances by audio link

A person must not appear remotely from New Zealand by audio

link, unless the courtroom or other place in Australia where the

court or tribunal is sitting (the Australian place), and the place in

New Zealand where the remote appearance would be made (the

New Zealand place), are equipped with facilities that enable:

(a) persons who are at the Australian place to hear the person

appearing remotely from the New Zealand place; and

(b) persons who are at the New Zealand place to hear persons at

the Australian place.

53 Costs of remote appearances from New Zealand

If a person appears remotely from New Zealand under this Act, the

court may make such orders as the court considers appropriate for

the payment of expenses incurred in connection with the remote

appearance.

54 Powers of Australian courts in New Zealand

For the purposes of a remote appearance from New Zealand in

accordance with this Act, the Australian court or tribunal may

exercise in New Zealand all its powers that it is permitted to

exercise in New Zealand under New Zealand law.

Remote appearances Part 6

Remote appearances from Australia in New Zealand proceedings Division 3

Section 55

Trans-Tasman Proceedings Bill 2009 No. , 2009 41

Division 3--Remote appearances from Australia in New

Zealand proceedings

55 People in Australia appearing remotely in New Zealand

proceedings

A remote appearance by a person from Australia in a proceeding in

a New Zealand court or tribunal is authorised if it is in accordance

with the NZ Act or the NZ Evidence Act.

56 Powers of New Zealand courts and tribunals in Australia

(1) For the purposes of a remote appearance by a person in Australia

under section 55, a New Zealand court or tribunal may exercise in

Australia any of its powers, except its powers to:

(a) punish for contempt; and

(b) enforce or execute its judgments or process.

(2) The New Zealand law that applies to the proceeding in New

Zealand also applies, subject to subsection (1), to the practice and

procedure of the New Zealand court or tribunal in allowing a

person in Australia to appear remotely under section 55.

57 Orders of New Zealand courts and tribunals

Without limiting section 56, the New Zealand 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 Australia from which

the appearance is being or is to be made; or

of any party or of any witness.

58 Enforcement of orders of New Zealand courts and tribunals

(1) An order under section 57 must be complied with.

Part 6 Remote appearances

Division 3 Remote appearances from Australia in New Zealand proceedings

Section 59

42 Trans-Tasman Proceedings Bill 2009 No. , 2009

(2) Subject to the Federal Court Rules, the order may be enforced by

the Federal Court as if the order were an order of the Federal

Court.

(3) Without limiting subsection (2), a person who contravenes the

order:

(a) is in contempt of the Federal Court; and

(b) is punishable accordingly;

unless the person establishes that the contravention should be

excused.

59 Remote appearance place in Australia is part of the New Zealand

court or tribunal

For the purposes of sections 56 and 57, the place in Australia from

which a remote appearance is made in a hearing related to a

proceeding before a New Zealand court or tribunal is taken to be

part of that court or tribunal.

60 Privileges, protections and immunities of participants in New

Zealand proceedings

(1) A Judge or an Associate Judge of a New Zealand court or a

member of a New Zealand tribunal has, in relation to a remote

appearance by a person in Australia under section 55, the same

privileges, protections and immunities as a Judge of the Federal

Court.

(2) A person in Australia appearing remotely under section 55 as a

barrister, a solicitor, or both, has, in relation to the remote

appearance, the same protections and immunities as a barrister

appearing for a party in a proceeding in the Federal Court.

(3) A person in Australia appearing remotely under section 55 as a

party has, in relation to the remote appearance, the same

protections and immunities as a party in a proceeding in the

Federal Court.

(4) A person in Australia appearing remotely as a witness under

section 55 has the same protection as a witness in a proceeding in

the Federal Court.

Remote appearances Part 6

Remote appearances from Australia in New Zealand proceedings Division 3

Section 61

Trans-Tasman Proceedings Bill 2009 No. , 2009 43

61 Contempt of New Zealand courts or tribunals

(1) A person commits an offence if the person:

(a) is at a place in Australia from which a remote appearance is

being made in a proceeding in a New Zealand court or

tribunal; and

(b)

assaults:

(i) a person appearing in the proceeding as a barrister, a

solicitor, or both; or

(ii) a witness in the proceeding; or

(iii) an officer of an Australian court or tribunal giving

assistance under section 63.

Penalty: 2 years imprisonment or 120 penalty units, or both.

(2) A person commits an offence if the person:

(a) is at a place in Australia from which a remote appearance is

being made in a proceeding in a New Zealand court or

tribunal; and

(b) intentionally threatens, intimidates or insults:

(i) a Judge, Associate Judge or member of the New

Zealand court or tribunal who is taking part in the

proceeding; or

(ii) a Registrar, Deputy Registrar or other officer of the

New Zealand court or tribunal who is taking part in or

assisting in the proceeding; or

(iii) a person appearing in the proceeding as a barrister, a

solicitor, or both; or

(iv) a witness in the proceeding.

Penalty: 2 years imprisonment or 120 penalty units, or both.

(3) A person commits an offence if the person:

(a) is at a place in Australia from which a remote appearance is

being made in a proceeding in a New Zealand court or

tribunal; and

(b) intentionally interrupts or obstructs the proceeding.

Penalty: 2 years imprisonment or 120 penalty units, or both.

Part 6 Remote appearances

Division 3 Remote appearances from Australia in New Zealand proceedings

Section 62

44 Trans-Tasman Proceedings Bill 2009 No. , 2009

(4) A person commits an offence if the person:

(a) is at a place in Australia from which a remote appearance is

being made in a proceeding in a New Zealand court or

tribunal; and

(b) intentionally disobeys an order or direction of the New

Zealand court or tribunal.

Penalty: 2 years imprisonment or 120 penalty units, or both.

62 New Zealand courts and tribunals may administer oath or

affirmation in Australia

(1) A New Zealand court or tribunal may, for the purpose of obtaining

the testimony of a person in Australia by remote appearance

medium, administer an oath or affirmation in accordance with the

practice and procedure of the court or tribunal.

(2) Evidence given by a person on oath or affirmation so administered

is, for the purposes of section 35 of the Crimes Act 1914, testimony

given in a judicial proceeding.

63 Assistance to New Zealand courts and tribunals

(1) An officer of an Australian court or tribunal to which

subsection (2) applies may, at the request of a New Zealand court

or tribunal:

(a) attend at the place in Australia from which a remote

appearance is made in a hearing related to a proceeding

before the New Zealand court or tribunal; and

(b) take any action that the New Zealand court or tribunal directs

to facilitate the proceeding; and

tribunal of an oath or affirmation.

(2) This subsection applies to the following:

(a)

the

Federal

Court;

(b) the Family Court of Australia;

(d) an Australian tribunal prescribed by the regulations.

Remote appearances Part 6

Remote appearances from Australia in New Zealand proceedings Division 3

Section 63

Trans-Tasman Proceedings Bill 2009 No. , 2009 45

(3) Regulations made for the purposes of paragraph (2)(c) or (d):

(a) must not prescribe a court or tribunal of a State unless the

Governor of that State has requested in writing that the court

or tribunal be so prescribed; and

(b) must not prescribe a court or tribunal of the Australian

Capital Territory unless the Chief Minister of the Australian

Capital Territory has requested in writing that the court or

tribunal be so prescribed; and

unless the Administrator of the Territory has requested in

writing that the court or tribunal be so prescribed.

(4) Regulations made for the purposes of paragraph (2)(d) must not

prescribe a tribunal unless the tribunal is a person or body

authorised by or under an Australian law to take evidence on oath

or affirmation.

Part 7 Recognition and enforcement in Australia of specified judgments of New

Zealand courts and tribunals

Division 1 Introduction

Section 64

46 Trans-Tasman Proceedings Bill 2009 No. , 2009

Part 7--Recognition and enforcement in Australia

of specified judgments of New Zealand

courts and tribunals

Division 1--Introduction

64 Guide to this Part

This Part is about the enforcement in Australia of specified

judgments of New Zealand courts and tribunals.

To be enforceable, the judgment has to be registered in an

Australian court. To be registered, the judgment must be a

registrable NZ judgment (which is defined in section 66) and an

application for its registration must be made.

Once registered in an Australian court, the judgment has the same

force, and may be enforced in the Australian court, as if the

judgment had been given by the Australian court. There are some

exceptions to this--see, for example:

(a) subsection 74(2) (which provides that the judgment cannot be

enforced during a particular period if notice of the registration

has not been given to each liable person); and

(b) section 75 (which provides that the judgment cannot be

enforced if the judgment could not be enforced in New

Zealand); and

court may stay a proceeding to enforce the judgment).

Recognition and enforcement in Australia of specified judgments of New Zealand

courts and tribunals Part 7

Recognition and enforcement in Australia of specified judgments of New Zealand

courts and tribunals Division 2

Section 65

Trans-Tasman Proceedings Bill 2009 No. , 2009 47

Division 2--Recognition and enforcement in Australia of

specified judgments of New Zealand courts and

tribunals

65 When registrable NZ judgments are enforceable in Australia

(1) A registrable NZ judgment cannot be enforced in Australia if it is

not registered in an Australian court under section 68.

Note:

A registrable NZ judgment cannot be enforced in Australia otherwise

than in accordance with this Part.

(2) Provisions of an NZ judgment that, because of section 71, could be

registered in an Australian court under section 68 cannot be

enforced in Australia if they are not so registered.

66 Meaning of registrable NZ judgment

(1) A judgment is a registrable NZ judgment if:

(a) the judgment is a final and conclusive judgment that is given

in a civil proceeding by a New Zealand court; or

(b) the judgment is a final and conclusive judgment that:

(i) is given in a civil proceeding by a New Zealand tribunal

that is prescribed by the regulations; and

(ii) is of a kind prescribed by the regulations; or

(i) is given in a criminal proceeding by a New Zealand

court; and

(ii) consists wholly of a requirement to pay an injured party

a sum of money by way of compensation, damages or

reparation; or

(d) the judgment is a final and conclusive judgment that:

(i) is given in a criminal proceeding by a New Zealand

court; and

(ii) consists wholly of an imposition of a regulatory regime

criminal fine; and

(iii) meets the conditions (if any) of a kind prescribed by the

regulations; or

Part 7 Recognition and enforcement in Australia of specified judgments of New

Zealand courts and tribunals

Division 2 Recognition and enforcement in Australia of specified judgments of New

Zealand courts and tribunals

Section 66

48 Trans-Tasman Proceedings Bill 2009 No. , 2009

(e) the judgment is a final and conclusive order made under the

NZ Act or the NZ Evidence Act by a New Zealand court or

tribunal, being an order for the payment of expenses

incurred:

(i) by a witness in complying with a subpoena served on

the witness in Australia under Division 3 of Part 5 of

this Act; or

(ii) in connection with appearing remotely from Australia in

a New Zealand proceeding under Division 3 of Part 6 of

this Act; or

(f) the judgment is an NZ market proceeding judgment; or

(g) the judgment is registered in a New Zealand court under the

Reciprocal Enforcement of Judgments Act 1934 of New

Zealand.

(2) However, a judgment is not a registrable NZ judgment if it wholly

or partly:

(a) relates to an excluded matter; or

(b) is a non-money judgment of a kind prescribed by the

regulations; or

(d) is an order relating to the granting of probate or letters of

administration or the administration of the estate of a

deceased person; or

(e) is an order relating to the guardianship or care of a person

who is incapable of managing his or her personal affairs; or

(f) is an order relating to the management of the property of a

person who is incapable of managing that property; or

(g) is an order relating to the care, control, or welfare of a child;

(h) imposes a civil pecuniary penalty of a kind prescribed by the

regulations; or

(i) 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

(j) relates to a matter of a kind prescribed by the regulations.

Recognition and enforcement in Australia of specified judgments of New Zealand

courts and tribunals Part 7

Recognition and enforcement in Australia of specified judgments of New Zealand

courts and tribunals Division 2

Section 67

Trans-Tasman Proceedings Bill 2009 No. , 2009 49

(3) For the purposes of subsection (1), a judgment is to be treated as

final and conclusive even if:

(a) a person may appeal against it in a New Zealand court or

tribunal; or

(b) an appeal against it in a New Zealand court or tribunal has

not been finally determined.

(4) For the purposes of subparagraph (1)(b)(ii), the regulations must

not prescribe a judgment of a New Zealand tribunal prescribed for

the purposes of subparagraph (1)(b)(i) unless the judgment:

(a) is made in connection with the performance of an

adjudicative function; and

(b) is enforceable without an order of a court.

67 Application to register NZ judgments

Judgments (other than civil pecuniary penalties, criminal fines or

NZ market proceeding judgments)

(1) An entitled person may apply to register an NZ judgment (other

than one that imposes a civil pecuniary penalty or a regulatory

regime criminal fine, or is an NZ market proceeding judgment) in

any of the following courts:

(a) a superior Australian court;

(b) an inferior Australian court that has power to give the relief

that is in the judgment.

Civil pecuniary penalties

(2) An entitled person may apply to register an NZ judgment that

imposes a civil pecuniary penalty (other than an NZ market

proceeding judgment) in:

(a) a superior Australian court; or

(b) an inferior Australian court that has power to impose a civil

pecuniary penalty of the same value as the penalty imposed

by the judgment.

Part 7 Recognition and enforcement in Australia of specified judgments of New

Zealand courts and tribunals

Division 2 Recognition and enforcement in Australia of specified judgments of New

Zealand courts and tribunals

Section 68

50 Trans-Tasman Proceedings Bill 2009 No. , 2009

Criminal fines

(3) An entitled person may apply to register an NZ judgment (other

than an NZ market proceeding judgment) in a superior Australian

court if the judgment imposes a regulatory regime criminal fine.

NZ market proceeding judgments

(4) An entitled person may apply to register an NZ market proceeding

judgment in the Federal Court.

Application requirements

(5) An application under this section must be made:

(a) in the form (if any) prescribed by the regulations; and

(b) in accordance with the requirements (if any) prescribed by

the regulations; and

(c)

within:

(i) 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--6 years after the day of the last judgment

in those proceedings; or

(iii) if, before or after the period referred to in

subparagraph (i) or (ii), the entitled person applies to the

Australian court for a longer period--any longer period

the Australian court considers appropriate.

(6) Without limiting paragraph (5)(b), regulations made for the

purposes of that paragraph may prescribe that specified documents

be filed:

(a) in a specified way; and

(b) with, or within a specified time after the filing of, the

application.

68 Registration of NZ judgments

(1) An Australian court must, on application under section 67, register

a registrable NZ judgment in that court in accordance with this

Part.

Recognition and enforcement in Australia of specified judgments of New Zealand

courts and tribunals Part 7

Recognition and enforcement in Australia of specified judgments of New Zealand

courts and tribunals Division 2

Section 69

Trans-Tasman Proceedings Bill 2009 No. , 2009 51

(2) Once registered, the judgment remains registered unless the

registration is set aside under section 72.

69 Currency in which NZ judgments are registered

(1) If a sum of money payable under an NZ judgment is expressed in a

currency other than Australian currency, the judgment must be

registered in the Australian court under section 68:

(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) otherwise--as if it were for an equivalent amount in

Australian currency, calculated in accordance with the rate of

exchange on the working day (the conversion day) of the

Australian court before the working day of that court on

which the entitled person made the application for

registration.

(2) The rate of exchange on the conversion day is that determined in

the manner prescribed by the regulations.

(3) This section is subject to section 70 (which deals with money

judgments that are partly satisfied).

70 Money judgments partly satisfied when entitled person applies

for registration

If:

(a) an entitled person applies for registration of a money

judgment; and

(b) at the time of application, the judgment has been partly

satisfied;

then the Australian court may only register the balance remaining

payable under that judgment at that time under section 68.

Part 7 Recognition and enforcement in Australia of specified judgments of New

Zealand courts and tribunals

Division 2 Recognition and enforcement in Australia of specified judgments of New

Zealand courts and tribunals

Section 71

52 Trans-Tasman Proceedings Bill 2009 No. , 2009

71 Judgments only some provisions of which are registrable

(1) This section applies to an NZ judgment if an Australian court to

which an application for registration of the judgment is made

considers that:

(a) the judgment is one in relation to different matters (for

example, because it is a judgment in relation to different

subject matters, or granting 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 NZ judgment.

(2) The judgment may be registered in the Australian court under

section 68 in relation to the registrable provisions, but no other

provisions, as if the registrable provisions were a separate

registrable NZ judgment.

72 Setting aside registration

(1) An Australian court in which an NZ judgment is registered must,

on application by a liable person under subsection (2), set aside the

registration of the judgment if:

(a) the court is satisfied that enforcement of the judgment would

be contrary to public policy in Australia; or

(b) the judgment was registered in contravention of this Act; or

(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;

(ii) that property was, at the time of the proceeding in the

original court or tribunal, not situated in New Zealand.

(2) The liable person's application must be made within:

(a) 30 working days of the Australian court after the day the

liable person was given notice of registration under

section 73; or

Recognition and enforcement in Australia of specified judgments of New Zealand

courts and tribunals Part 7

Recognition and enforcement in Australia of specified judgments of New Zealand

courts and tribunals Division 2

Section 73

Trans-Tasman Proceedings Bill 2009 No. , 2009 53

(b) if, before or after that period, the liable person applies to the

Australian court for a longer period--any longer period the

Australian court considers appropriate.

(3) The Australian court must not set aside the registration otherwise

than in accordance with this section.

73 Notice of registration

(1) If an Australian court registers an NZ judgment, the entitled person

must give a notice of the registration to every liable person.

Note:

If the notice is not given, the entitled person will not be able to enforce

the NZ judgment for 45 working days of the Australian court after the

registration day: see section 74.

(2) The notice must:

(a) be in the form prescribed by the regulations; and

(b) be given in the manner prescribed by the regulations.

(3) The notice must be given within:

(a) 15 working days of the Australian court after the day of

registration; or

(b) if, before or after that period, the entitled person applies to

the Australian court for a longer period--any longer period

the Australian court considers appropriate.

74 Effect of registration and notice of registration

(1) A registered NZ judgment:

(a) has the same force and effect; and

(b) may give rise to the same proceedings for enforcement;

as if the judgment had been given by the Australian court in which

it is registered.

Note:

An NZ judgment can be enforced in Australia as soon as it is

registered and notification of it is given. The entitled person does not

need to wait until the expiry of the period in which the liable person

could make an application to set aside the registration or to stay

enforcement of the judgment under section 72 or 76. Nor does the

entitled person need to wait until such an application is finally

determined.

Part 7 Recognition and enforcement in Australia of specified judgments of New

Zealand courts and tribunals

Division 2 Recognition and enforcement in Australia of specified judgments of New

Zealand courts and tribunals

Section 75

54 Trans-Tasman Proceedings Bill 2009 No. , 2009

(2) However, if notice of the registration of the judgment has not been

given to every liable person under section 73, then subsection (1)

does not apply during the period that is 45 working days of the

Australian court after the day of registration.

(3) Subsection (1) is subject to:

(a) section 75 (which deals with restrictions on the enforceability

of registered NZ judgments); and

(b) an order of the Australian court staying the enforcement of

the judgment (whether the order is made under section 76 or

otherwise); and

judgments).

75 Restriction on enforcing registered NZ judgments

A registered NZ judgment is capable of being enforced in Australia

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 New Zealand court or tribunal.

76 Stay of enforcement of registered NZ judgment so that the liable

person can appeal it

(1) An Australian court in which an NZ judgment has been registered

may, on an application by a liable person under subsection (3),

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 an application to set aside,

vary or appeal against the judgment to a New Zealand

court or tribunal that has power to grant the application

by the end of a period specified in the order;

Recognition and enforcement in Australia of specified judgments of New Zealand

courts and tribunals Part 7

Recognition and enforcement in Australia of specified judgments of New Zealand

courts and tribunals Division 2

Section 77

Trans-Tasman Proceedings Bill 2009 No. , 2009 55

(ii) that the liable person prosecute that application

expeditiously; and

(b) may be made subject to any other conditions that the

Australian court considers appropriate (including conditions

as to the giving of security).

(3) The liable person's application must be made within:

(a) 30 working days of the Australian court after the day the

liable person was given notice of the registration under

section 73; or

(b) if, before or after that period, the liable person applies to the

Australian court for a longer period--any longer period the

Australian court considers appropriate.

(4) This section does not affect any other powers of the Australian

court to stay the enforcement of the registered NZ judgment on any

grounds on which the court could stay the enforcement of a

judgment of an Australian court or tribunal.

77 Costs and expenses of enforcement of registered NZ judgments

(1) If a proceeding for enforcement of a registered NZ judgment is

commenced in an Australian court, the following are recoverable in

that proceeding:

(a) costs and expenses reasonably incurred by, or on behalf of,

the entitled person in, or incidental to, registration of the

judgment;

(b) costs and expenses reasonably incurred by, or on behalf of,

the entitled 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

paragraph (1)(b) are the same as they would be in a proceeding in

that Australian court for enforcement of:

(a) a judgment given by the Australian court that is similar to the

registered NZ judgment; or

Part 7 Recognition and enforcement in Australia of specified judgments of New

Zealand courts and tribunals

Division 2 Recognition and enforcement in Australia of specified judgments of New

Zealand courts and tribunals

Section 78

56 Trans-Tasman Proceedings Bill 2009 No. , 2009

(b) if there is no such similar judgment, a judgment given by the

Australian court that is most analogous to the registered NZ

judgment.

78 Interest on registered NZ judgments

Interest on a sum of money payable under a registered NZ

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 Australian court of the amount of interest that is payable

under paragraph (a).

79 Private international law does not affect enforcement of

registered NZ judgments

(1) Enforcement in Australia of a registered NZ judgment is not

affected by the operation of any rule of private international law

(other than any rule in this Part) in operation in Australia.

(2) Without limiting subsection (1), an Australian court may not refuse

to enforce, or delay, limit or prohibit the enforcement of, a

registered NZ judgment on any of the following grounds:

(a) enforcing the judgment would involve the direct or indirect

enforcement in Australia of a New Zealand public law;

(b) New Zealand tax is payable under the judgment;

regulatory regime criminal fine.

Trans-Tasman market proceedings Part 8

Introduction Division 1

Section 80

Trans-Tasman Proceedings Bill 2009 No. , 2009 57

Part 8--Trans-Tasman market proceedings

Division 1--Introduction

80 Guide to this Part

This Part has some special rules about particular Australian and

New Zealand proceedings that relate to the trans-Tasman market.

Division 2 is about the Australian proceedings. It allows the

Federal Court to conduct or continue the proceedings in New

Zealand if it is satisfied that the proceedings could be more

conveniently or fairly conducted or continued there.

Division 3 is about the New Zealand proceedings. It allows the

High Court of New Zealand to conduct or continue the proceedings

in Australia and exercise certain powers in Australia for those

purposes. It also gives participants in the proceedings in Australia

certain privileges, protections and immunities.

Division 4 allows the Federal Court to obtain evidence in Australia

for the purposes of the New Zealand proceedings.

Division 5 deals with miscellaneous matters, such as the

jurisdiction of the Federal Court and offences that apply for

particular conduct engaged in (for example, obstructing the New

Zealand proceedings) at the places in Australia from where the

New Zealand proceedings are being conducted.

Part 8 Trans-Tasman market proceedings

Division 2 Federal Court exercising jurisdiction in New Zealand

Section 81

58 Trans-Tasman Proceedings Bill 2009 No. , 2009

Division 2--Federal Court exercising jurisdiction in New

Zealand

81 Federal Court sitting etc. in New Zealand

(1) If the Federal Court is satisfied, at any stage of an Australian

market proceeding, that the proceeding could be more conveniently

or fairly conducted or continued in New Zealand, the Federal Court

may order that the proceeding be conducted or continued at a place

in New Zealand specified in the order.

(2)

Australian market proceeding is a proceeding in the Federal

Court in which:

(a) a matter for determination arises under:

(i) section 46A, 155A or 155B of the Trade Practices Act

1974; or

(ii) a provision of Part VI or XII of the Trade Practices Act

1974 so far as the provision relates to section 46A,

155A or 155B of that Act; or

(iii) this Part; or

(b) any other kind of relief prescribed by the regulations is

sought; or

covered by paragraph (a) or (b); or

(d) enforcement is sought of a judgment given in a proceeding

covered by paragraph (a) or (b).

(3) The order may be subject to such conditions (if any) as are

specified in the order.

(4) Without limiting subsection (1), judgment may be given in New

Zealand in an Australian market proceeding.

(5) The Federal Court may, for the purposes of an Australian market

proceeding, exercise in New Zealand any of the powers that the

Federal Court is permitted, under New Zealand law, to exercise in

New Zealand.

Trans-Tasman market proceedings Part 8

Federal Court exercising jurisdiction in New Zealand Division 2

Section 82

Trans-Tasman Proceedings Bill 2009 No. , 2009 59

82 New Zealand lawyers entitled to practise in the Federal Court in

New Zealand

A qualified NZ lawyer is entitled to practise as a barrister, solicitor,

or both, in an Australian market proceeding before the Federal

Court sitting in New Zealand.

83 Injunctions in relation to New Zealand conduct

(1) The Federal Court may, in an Australian market proceeding, make

an order or grant an injunction (whether final or interlocutory)

restraining a person from engaging in conduct, or requiring a

person to do an act or thing, in New Zealand.

(2) This section does not affect any other power that the Federal Court

has to make an order or grant an injunction.

84 Service of injunctions and other judgments in New Zealand

(1) An order or injunction under section 83, or other Australian market

proceeding judgment, may be served in New Zealand.

(2) Subsection (1) is subject to the procedural rules of the Federal

Court.

Part 8 Trans-Tasman market proceedings

Division 3 High Court of New Zealand exercising jurisdiction in Australia

Section 85

60 Trans-Tasman Proceedings Bill 2009 No. , 2009

Division 3--High Court of New Zealand exercising

jurisdiction in Australia

85 High Court of New Zealand sitting in Australia etc.

(1) The High Court of New Zealand may conduct or continue an NZ

market proceeding in Australia.

(2)

NZ market proceeding is a proceeding in the High Court of

New Zealand in which:

(a) a matter for determination arises under section 36A, 98H or

99A of the Commerce Act 1986 of New Zealand; or

(b) any other kind of relief prescribed by the regulations is

sought; or

covered by paragraph (a) or (b); or

(d) enforcement is sought of a judgment given in a proceeding

covered by paragraph (a) or (b).

(3) Without limiting subsection (1), judgment may be given in

Australia in an NZ market proceeding.

(4) The High Court of New Zealand may, for the purposes of an NZ

market proceeding, exercise in Australia all of the powers it has

when sitting in New Zealand, except its powers:

(a) to punish for contempt; and

(b) to enforce or execute its judgments or process.

(5) Without limiting subsection (4), the High Court of New Zealand

may in an NZ market proceeding, by order:

(a) direct that the proceeding be conducted or continued in

private; or

(b) require a person to leave the court; or

proceeding or of the name of a party to, or a witness in, the

proceeding.

(6) Without limiting subsections (1) to (5):

(a)

the

Judicature Act 1908 of New Zealand; and

Trans-Tasman market proceedings Part 8

High Court of New Zealand exercising jurisdiction in Australia Division 3

Section 86

Trans-Tasman Proceedings Bill 2009 No. , 2009 61

(b) the High Court Rules made by or under that Act that apply to

New Zealand proceedings generally;

also apply to the practice and procedure of the High Court of New

Zealand in a proceeding that is an NZ market proceeding so far as

the proceeding is conducted or continued in Australia.

(7) An order under subsection (5) must be complied with.

(8) Subject to the procedural rules of the Federal Court, an order under

subsection (5) may be enforced by the Federal Court.

(9) Without limiting subsection (8), a person who contravenes an order

under subsection (5):

(a) is in contempt of the Federal Court; and

(b) is punishable accordingly;

unless the person establishes that the contravention should be

excused.

86 Privileges, protections and immunities of participants in NZ

market proceedings

(1) A Judge of the High Court of New Zealand has, at a sitting in

Australia of the High Court in an NZ market proceeding, the same

privileges, protections and immunities as a Judge of the Federal

Court.

(2) A person appearing as a barrister, solicitor, or both, in an NZ

market proceeding has, at a sitting in Australia of the High Court

of New Zealand, the same protections and immunities as a barrister

appearing for a party in a proceeding in the Federal Court.

(3) A party to an NZ market proceeding has, at a sitting in Australia of

the High Court of New Zealand, the same protections and

immunities as a party in a proceeding in the Federal Court.

(4) A person appearing as a witness in an NZ market proceeding has,

at a sitting in Australia of the High Court of New Zealand, the

same protection as a witness in a proceeding in the Federal Court.

Part 8 Trans-Tasman market proceedings

Division 3 High Court of New Zealand exercising jurisdiction in Australia

Section 87

62 Trans-Tasman Proceedings Bill 2009 No. , 2009

87 New Zealand High Court may administer oath etc. in Australia

(1) The High Court of New Zealand may, at a sitting in Australia of

the High Court in an NZ market proceeding, administer an oath or

affirmation in accordance with the practice and procedure of the

High Court of New Zealand.

(2) Evidence given by a person on oath or affirmation administered by

the High Court of New Zealand under subsection (1) is, for the

purposes of section 35 of the Crimes Act 1914, testimony given in

a judicial proceeding.

88 Service of injunctions and other judgments in Australia

An injunction (whether final or interlocutory) given in an NZ

market proceeding, or other NZ market proceeding judgment, may

be served in Australia.

Trans-Tasman market proceedings Part 8

Taking of evidence by the Federal Court for the High Court of New Zealand Division 4

Section 89

Trans-Tasman Proceedings Bill 2009 No. , 2009 63

Division 4--Taking of evidence by the Federal Court for

the High Court of New Zealand

89 Taking of evidence by the Federal Court

(1) The High Court of New Zealand may request the Federal Court to

obtain evidence in Australia for the High Court of New Zealand for

the purposes of an NZ market proceeding.

(2) The Federal Court may, by order, make any provision it considers

appropriate for the purpose of obtaining the evidence.

(3) An order may require a specified person to take any steps the

Federal Court considers appropriate for that purpose.

(4) Without limiting subsections (2) and (3), an order may, in

particular, make provision:

(a) for the examination of witnesses, either orally or in writing;

(b) for the production of documents or things; or

detention of any property; or

(d) for taking samples of any property and carrying out any

experiments on or with any property.

(5) Subsection (4) does not prevent the Federal Court from making an

order requiring a person to give testimony (either orally or in

writing) otherwise than on oath or affirmation if the High Court of

New Zealand requests it to do so.

(6) A person who is required by an order to attend at any place is

entitled to the same amount of conduct money and payment for

expenses and loss of time as the person would be entitled on

attendance as a witness before the Federal Court.

90 Privilege of witnesses

An order under section 89 must not compel a person to give

evidence (including by answering a question, or producing a

Trans-Tasman market proceedings Part 8

Miscellaneous Division 5

Section 92

Trans-Tasman Proceedings Bill 2009 No. , 2009 65

Division 5--Miscellaneous

92 Jurisdiction of the Federal Court under this Part

(1) Jurisdiction is conferred on the Federal Court in any matter arising

under this Part.

(2) Without limiting subsection (1), jurisdiction is conferred on the

Federal Court to hear and determine prosecutions for offences

against this Part.

(3) The jurisdiction conferred on the Federal Court by this section is

exclusive of the jurisdiction of any other court.

(4) Without limiting subsection (3), prosecutions for offences against

this Part may be brought only in the Federal Court.

(5) This section has effect subject to section 75 of the Constitution.

(6) This section has effect despite anything in any other

Commonwealth law.

93 Contempt of the High Court of New Zealand

(1) A person commits an offence if the person:

(a) is at a sitting of the High Court of New Zealand in Australia

in an NZ market proceeding; and

(b) assaults or intentionally threatens, intimidates or insults:

(i) a Judge of the High Court of New Zealand; or

(ii) a Master, Registrar, Deputy Registrar or another officer

of the High Court of the New Zealand; or

(iii) a person appearing as a barrister, a solicitor, or both, in

the proceeding; or

(iv) a witness in the proceeding.

Penalty: 2 years imprisonment or 120 penalty units, or both.

(2) A person commits an offence if the person:

(a) is at a sitting of the High Court of New Zealand in Australia

in an NZ market proceeding; and

(b) intentionally interrupts or obstructs the proceeding.

Part 8 Trans-Tasman market proceedings

Division 5 Miscellaneous

Section 94

66 Trans-Tasman Proceedings Bill 2009 No. , 2009

Penalty: 2 years imprisonment or 120 penalty units, or both.

(3) A person commits an offence if the person:

(a) is at a sitting of the High Court of New Zealand in Australia

in an NZ market proceeding; and

(b) intentionally disobeys an order or direction of the High Court

of New Zealand.

Penalty: 2 years imprisonment or 120 penalty units, or both.

94 Reciprocal arrangements for use of court facilities

(1) The Chief Justice of the Federal Court may make arrangements

with the Chief Justice of the High Court of New Zealand for the

purposes of giving effect to this Part.

(2) Without limiting subsection (1), arrangements may be made:

(a) to enable the Federal Court to sit in New Zealand, for the

purposes of an Australian market proceeding, in courtrooms

of the High Court of New Zealand or in other places in New

Zealand; or

(b) to enable the High Court of New Zealand to sit in Australia,

for the purposes of an NZ market proceeding, in courtrooms

of the Federal Court or in other places in Australia; or

of an Australian market proceedings or an NZ market

proceeding.

Part 9 Evidence of certain New Zealand matters

Division 2 Evidence of certain New Zealand matters

Section 96

68 Trans-Tasman Proceedings Bill 2009 No. , 2009

Division 2--Evidence of certain New Zealand matters

96 Application of this Part

This Part applies to a proceeding:

(a) in an Australian court; or

(b) before a person or body authorised by:

(i) a law of the Commonwealth, a State or Territory; or

(ii) the consent of the parties to the proceeding;

to hear, receive or examine evidence.

97 Matters of law

(1) Proof is not required about the provisions and coming into

operation (in whole or in part) of:

(a) a New Zealand Act or an Imperial Act in force in New

Zealand; or

(b) a regulation, rule or by-law made, or purporting to be made,

under such an Act; or

the Governor-General of New Zealand under such an Act; or

(d) an instrument of a legislative character (for example, a rule of

court) made, or purporting to be made, under such an Act,

being an instrument that is required by or under a law to be

published, or the making of which is required by or under a

law to be notified, in the New Zealand Gazette.

(2) The Australian court, or the person or body, may inform itself

about those matters in any way that it considers appropriate.

98 Evidence of New Zealand official instruments

Evidence of an official instrument issued by the Governor-General

of New Zealand, or by or under the authority of a New Zealand

Minister, may be adduced by producing:

(a) if the instrument was made by the Governor-General in

Council of New Zealand--a copy of, or an extract from, the

instrument purporting to have been certified as a true copy or

Evidence of certain New Zealand matters Part 9

Evidence of certain New Zealand matters Division 2

Section 99

Trans-Tasman Proceedings Bill 2009 No. , 2009 69

extract by the Clerk of the Executive Council of New

Zealand; or

(b) otherwise--a copy of, or an extract from, the instrument

purporting to have been certified as a true copy or extract by

a New Zealand Minister.

99 Evidence of New Zealand acts of state

Evidence of a treaty or other act of state of New Zealand may be

adduced by producing:

(a) a copy of it that purports to be sealed with the seal of New

Zealand; or

(b) a book or pamphlet, containing the treaty or act of state, that

purports to have been printed by authority of the New

Zealand Government; or

state, that appears to the court to be a reliable source of

information; or

(d) a book or pamphlet that would be admissible in the courts of

New Zealand as evidence of the treaties or acts of state of

New Zealand that are contained in the book or pamphlet; or

(e) a copy of the treaty or act of state that is proved to be an

examined copy; or

(f) a document that:

(i) purports to be a copy of the treaty or act of state; and

(ii) on which is endorsed, or to which is attached, a

certificate by the person who has custody of the

original, stating that the document is a true copy of the

original.

100 Evidence of public documents admissible in New Zealand under

New Zealand Acts

(1) If, under a New Zealand Act, a public document is admissible in

evidence to any extent or for any purpose, then the document is,

without further proof, admissible in evidence to the same extent

and for the same purpose if it purports to be:

(a) sealed, signed and stamped; or

Part 9 Evidence of certain New Zealand matters

Division 2 Evidence of certain New Zealand matters

Section 101

70 Trans-Tasman Proceedings Bill 2009 No. , 2009

(b) signed and sealed; or

in accordance with that Act.

(2) If a document is admissible in evidence under subsection (1), a

certified copy of it, or a certified extract from it, is also admissible

in evidence.

101 Evidence of other New Zealand public documents

If, under New Zealand law, a public document is admissible in

evidence to any extent or for any purpose, without proof of:

(a) the seal, stamp or signature that authenticates it; or

(b) the judicial or official character of the person who appears to

have signed it;

the document is admissible in evidence to the same extent and for

the same purpose without such proof.

102 Evidence of New Zealand documents of a public nature

If a document in New Zealand is of such a public nature as to be

admissible in evidence in New Zealand on its mere production

from proper custody, a copy of, or extract from, it is admissible in

evidence if the copy or extract:

(a) is proved to be an examined copy or extract; or

(b) purports to be signed and certified as a true copy or extract

by a New Zealand officer who certifies that he or she has

custody of it.

103 This Part does not affect other Australian laws

This Part does not affect any other Australian law.

Part 10 Miscellaneous

Division 2 Miscellaneous

Section 105

72 Trans-Tasman Proceedings Bill 2009 No. , 2009

Division 2--Miscellaneous

105 Jurisdiction of federal courts

(1) Jurisdiction is conferred on a federal court in relation to any matter

arising under this Act (other than Part 8).

Note:

See section 92 for the jurisdiction of the Federal Court in relation to

matters arising under Part 8 (which deals with trans-Tasman market

proceedings).

(2) Without limiting subsection (1), jurisdiction is conferred on a

federal court to hear and determine prosecutions for offences

against this Act (other than Part 8).

106 References to repealed New Zealand Acts

A reference in this Act or the regulations to a repealed New

Zealand Act is a reference to a New Zealand Act that, with or

without modification, replaces, or

corresponds to, the repealed

New Zealand Act.

107 Interaction with the Foreign States Immunities Act 1985

This Act is subject to the Foreign States Immunities Act 1985.

108 Interaction with the Mutual Assistance in Criminal Matters Act

1987

This Act is not subject to, and does not override, the Mutual

Assistance in Criminal Matters Act 1987.

Note: The

Mutual Assistance in Criminal Matters Act 1987 operates in

parallel with this Act.

109 Court rules

(1) The power to make rules regulating the practice and procedure of a

federal court extends to making any rules prescribing matters

necessary or convenient to be prescribed for carrying out or giving

effect to this Act.

Miscellaneous Part 10

Miscellaneous Division 2

Section 110

Trans-Tasman Proceedings Bill 2009 No. , 2009 73

(2) Rules so made must not be inconsistent with this Act or the

regulations.

(3) If, in a proceeding in the Family Court of Australia or the Federal

Magistrates Court:

(a) a matter arises in relation to which the court has not made

rules under this section prescribing practice and procedure;

and

(b) the regulations have not prescribed practice and procedure in

relation to the matter; and

procedure in relation to the matter;

then, subject to any direction that the court makes in that

proceeding, the Federal Court Rules apply in relation to the matter

with such modifications as are necessary.

(4) This section does not affect any power to make rules under any

other law.

110 Regulations

The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

Commonwealth of Australia Bills

TRANS-TASMAN PROCEEDINGS BILL 2010