Civil Trials Bench Book — Particular proceedings

The Trans-Tasman Proceedings Act 2010 (Cth) (“the Act”) makes provision for matters such as service of Australian initiating documents in New Zealand, the granting of interim relief by Australian courts in support of civil proceedings in New Zealand courts, the issue and service of New Zealand and Australian subpoenas, remote appearances in Australian and New Zealand courts and tribunals and the recognition and enforcement of New Zealand judgments in Australia. Part 32 of the UCPR, titled “Trans-Tasman Proceedings Act 2010 (Commonwealth)” also applies to these proceedings to make provision for the practice and procedure to be followed in NSW courts with respect to matters arising under the Act.

The following treatment is not exhaustive but refers to the principal matters provided for in the new Act and Rules.

Part 2 provides for the service of initiating documents for proceedings to which the Part applies: s 9.

The Part applies to a civil proceeding commenced in an Australian court and a civil proceeding commenced in an Australian tribunal. However, in the case of a tribunal certain qualifications are set out in ss 8(1)(b) and (3). Additionally certain proceedings are excluded pursuant to s 8(2).

Section 9 enables service in NZ of an initiating document issued by an Australian court or tribunal. The document must be served in New Zealand in the same way that the document is required or permitted, under the procedural rules of the Australian court or tribunal, to be served in the place of issue: s 9(2).

The note to s 9(2)(b) provides that it is not necessary for the Australian court to be satisfied that there is a connection between the proceeding and Australia. Section 10 provides that service under s 9 has the same effect and gives rise to the same proceedings as if the initiating document had been served in the place of issue. Sections 9 and 10 are not to be read down so as to apply only to service of process involving the exercise of federal jurisdiction, and are not otherwise invalid: Zurich Insurance PLC v Koper (2022) NSWLR 380 at [55]. This decision was unanimously upheld by the High Court of Australia: Zurich Insurance Co Ltd v Koper [2023] HCA 25 which held at [6] that ss 9 and 10 validly apply in accordance with their terms to any initiating document issued by a State court relating to any civil proceeding in that court. That is so irrespective of whether the proceeding is in a matter in federal jurisdiction or in a matter in State jurisdiction.

The Act provides for certain information to be given to the defendant (s 11) and the consequences of failure to do so: s 12. The failure does not invalidate the proceedings.

A time for the filing of an appearance is provided by s 13. Section 15 provides for a security for costs order and a stay until any security ordered is given.

Part 3 provides that a defendant in civil proceedings may apply to the court for an order staying the proceedings on the grounds that a New Zealand court is the more appropriate court to determine the matters in issue: s 17.

The application must be made within 30 working days of service or such shorter or longer period that the court considers appropriate: s 17(2).

Pursuant to s 18, the Australian court may determine the application without a hearing unless the plaintiff, defendant or certain other persons (ss 18(2), (4)) make a timely request for a hearing: s 18(3). Provision is made for a remote appearance about the application for an order to stay the proceedings: s 18(4).

The Australian court may grant a stay if it is satisfied the New Zealand court has jurisdiction to determine the matters in issue between the parties to the proceedings and it is the more appropriate court to determine these matters: s 19(1).

Section 19(2) sets out matters which the Australian court must take into account in determining these questions.

Section 20(3) defines an exclusive choice of court agreement.

On application under s 17 the Australian court must stay the proceedings if satisfied that an exclusive choice of court agreement designates a New Zealand court as the court to determine the matters in issue: s 20(1)(a). The court must not stay the proceeding, if satisfied that an exclusive choice of court agreement designates an Australian court as the court to determine those matters: s 20(1)(b). However, s 20(1)(a) does not apply in the circumstances enumerated in s 20(2). Section 20(1)(b) does not apply to an exclusive choice of court agreement if the Australian court is satisfied that it is null and void under Australian law (including the rules of private international law): s 20(2A).

An Australian court cannot stay a civil proceeding on forum grounds connected with New Zealand otherwise than in accordance with Pt 3: s 21(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 proceedings: s 22(1).

An Australian court must not restrain a party to a civil proceeding before a New Zealand court from taking a step in the proceedings on the grounds that the New Zealand court is not the appropriate forum for the proceedings: s 22(2).

Subject to certain conditions where a stay has been granted by a New Zealand court on the grounds that an Australian court is the more appropriate court, later proceedings in an Australian court will, for the purpose of limitation periods or defence, be treated as commencing at the time the New Zealand proceedings commenced: s 23.

A party or intended party to civil proceedings commenced or to be commenced in a New Zealand court may apply to the Federal Court, the Family Court of Australia, the Supreme Court of a State or Territory or other prescribed Australian court for interim relief (other than a warrant for the arrest of property) in support of the New Zealand proceedings: s 25.

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 proceeding: s 26.

Part 5 provides a detailed regime for the issue, service, application to set aside and enforcement of subpoenas issued by Australian (Div 2) and New Zealand (Div 3) courts. For proceedings in an Australian court, a subpoena cannot be served in New Zealand without the leave of the court: s 31(1).

Division 3 of the UCPR provides for related procedures.

In dismissing an application for leave to issue a subpoena and serve it under s 31 of the Trans-Tasman Proceedings Act 2010 (Cth), the Federal Court in Rauland Australia Pty Ltd v Law [2020] FCA 516 at [27] found that :

This was endorsed in In the matter of Australasian Hail Network Pty Ltd (No 2) [2020] NSWSC 517 at [69]–[75], where the NSWSC rejected an application for leave to serve a subpoena on the basis that the same evidence the defendants sought could be more cheaply and easily obtained from the plaintiffs via discovery.

Part 6 provides a detailed regime for remote appearances from New Zealand in an Australian court or tribunal (Div 2) and for remote appearances from Australia in a New Zealand court or tribunal (Div 3).

A registrable New Zealand judgment cannot be enforced in Australia if it is not registered in an Australian court under s 68: s 65(1).

This prohibition extends to provisions, forming part of a judgment which deals with different matters, some of which would, if contained in a separate judgment, make that separate judgment a registrable New Zealand judgment: ss 65(2), 71.

A registrable New Zealand judgment is defined in s 66.

An entitled person may apply to register a New Zealand judgment, with certain exceptions, in a superior Australian court or an inferior Australian court that has power to give the relief that is in the judgment: s 67(1). In the case of a civil pecuniary penalty, the inferior court must be one that has power to impose such a penalty of the same value: s 67(2).

An Australian court must, on application under s 67, register a registrable New Zealand judgment in that court in accordance with Pt 7: s 68(1). It remains registered unless set aside under s 72: s 68(2).

An Australian court, on appropriate application, must set aside the registration if it is satisfied that enforcement would be contrary to public policy in Australia, or the judgment was registered in contravention of the Act, or if the judgment was given in a proceeding of which the subject matter was immovable property or was given in a proceeding, in which the subject matter was movable property and that property was, at the time of the proceeding in the original court or tribunal not situated in New Zealand: s 72(1).

The application must be made within 30 working days after the day notice of registration was given under s 73 or a court-granted longer period: s 72(2).

The Australian court must not set aside the registration otherwise than in accordance with s 72.

Upon registration, notice of registration must be given to every liable person within 15 working days or court-granted longer period: s 73.

A registered New Zealand judgment has the same force and effect and 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: s 74(1). However, if notice of registration has not been given pursuant to s 73, then s 74(1) does not apply during the period that is 45 working days after registration: s 74(2).

A registered New Zealand 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: s 75.

Section 76 provides for an Australian court to make conditional orders amounting to a stay of execution pending an appeal. However that provision does not affect any other powers of the Australian court to grant a stay on any grounds on which the court could stay the enforcement of a judgment of an Australian court or tribunal

Section 77 makes provision for the costs and expenses of the enforcement of a registered New Zealand judgment and s 78 deals with interest thereon.

Enforcement in Australia of a registered New Zealand judgment is not affected by the operation of any rule of private international law (other than any rule in Pt 7) in operation in Australia: s 79(1).

An Australian court may not refuse to enforce, or delay, limit or prohibit the enforcement of, a registered New Zealand judgment on any of the following grounds:

UCPR Pt 32, amongst other things, provides for:

Legislation

Rules