Trans - Tasman Proceedings Act – another step towards a single economic market
The
Trans - Tasman Proceedings Act 2010 (TTPA) is scheduled to come fully
into force on 11 October 2013. It implements the Agreement between the
Government of New Zealand and the Government of Australia on Trans-Tasman Court
Proceedings and Regulatory Enforcement (Agreement). Reciprocal
legislation has been passed in Australia and is also scheduled to take effect
from 11 October 2013.
The
Agreement aims to streamline the process for resolving civil proceedings with a
trans-Tasman element and to minimise impediments to enforcing certain trans -
Tasman judgments and regulatory sanctions. In brief summary, under the
TTPA:
- The procedure for
service of New Zealand proceedings in Australia is simplified and is available
as of right. If a defendant seeks to stay New Zealand proceedings in favour of
having the dispute determined in Australia then the application for stay may be
determined on the papers. If one of the parties requires that any
application for stay be heard in person, Australian counsel and parties
may appear by audio or video link as of right. (More generally the TTPA also,
complementing existing rules in the Evidence Act, provides that where it is
appropriate and convenient the Court may give Australian parties permission to
appear by audio or video link with their Australian lawyers.)
- The range of Australian
court judgments which can be enforced in New Zealand is extended by allowing
Australian non – money judgments, certain civil pecuniary penalties and
criminal regulatory fines imposed in Australia to be enforced in New Zealand.
Under the TTPA a New Zealand Court may not refuse enforcement of an Australian
judgment simply on the basis that Australian tax is payable under the judgment.
Exceptions to the new regime include judgments in respect of
various family law matters; actions "in rem” (an action focussed on
proprietary title to property); orders relating to probate and the
administration of estates; orders under proceeds of crimes legislation and any
order which if contravened could expose a person to conviction for an offence
in the place where it was made. Certain judgments in trans - Tasman
market proceedings in the Federal Court of Australia which involve matters
arising under the Australian Trade Practices Act 1974 (now Competition and
Consumer Act 2010) are also registerable. Regulations set out details of
Australian criminal fines which may be enforced in New Zealand. These centre
around fines imposed for breaches of Australian consumer protection, banking,
securities, company and competition laws.
- Final Australian
judgments are enforceable in New Zealand by registration under the TTPA.
A judgment will be final even if it is open to appeal or an appeal has yet to
be fully determined, so long as it would be enforceable in Australia.
Registration is an administratively simple matter. Application is made to the
Registrar of the appropriate court in the prescribed form within 6 years of the
date on which the Australian judgment was given. Judgments awarding money will
be registered in New Zealand dollars at an appropriate rate of exchange
calculated at the time of filing, unless another currency is stipulated by the
applicant. Once registered an Australian judgment will be enforceable in the
New Zealand courts in the same manner as a local judgment. Application
may be made to set aside a judgment registered under the TTPA, however the
grounds on which the court may set aside a judgment are limited.
- The New Zealand Courts
may grant interim in support of Australian civil proceedings relief (pending a
final determination of the case) in circumstances where, if a similar
proceeding had been commenced in New Zealand, the New Zealand court would have
given interim relief in that similar proceeding. There are certain exceptions
however including in relation to interim payments, discovery, arrest of
property and relief in respect of various matters covered by the Evidence Act
2006 relating to trans – Tasman proceedings.
- A common "give way” rule
is adopted for situations in where a dispute could be heard in either county.
Matters which a court may take into account in deciding whether New
Zealand is the appropriate jurisdiction to hear a claim are listed in the TTPA
and include reference to the place of residence/principal place of business of
parties, location of witnesses, agreements between the parties as to which
court or where any disputes should be heard (a valid written exclusive choice
of law and jurisdiction clause will be upheld unless there is an exceptional
inability to perform, incapacity by one or more of the parties or the clause is
contrary to public policy or would give rise to manifest injustice), the
most appropriate law, whether any other related proceedings have been commenced
and if so where, the financial circumstances of the parties and any other
matters the court considers relevant.
- Limitation periods will
stop running when a proceeding is commenced in the first country, so that a
claimant will not be prejudiced if it must subsequently re-commence proceedings
in the second country.
Under the Australian mirror
legislation, similar rights and procedures will apply to New Zealand based
claimants seeking to pursue defendants in Australia.
For further information contact
Karl Stolberger, Partner or Stephanie Nicolson, Solicitor
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