Trans - Tasman Proceedings Act – another step towards a single economic market
POSTED BY Karl Stolberger
Stephanie Nicolson
02 October 2013
posted in Legislation | International | Trans-Tasman Proceedings
VIEWED 11939 TIMES
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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