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14 Sep 2010

Trans-Tasman Proceedings: A Narrowing "Ditch"

On 24 July 2008 the New Zealand and Australian Governments signed the "Trans-Tasman Agreement"; an agreement setting up - and initiating - a framework to enable closer integration of our civil justice systems.

Arising out of the Trans-Tasman Agreement, the Australian Parliament passed its Trans-Tasman Proceedings Act 2010 in March this year. The New Zealand Parliament closely followed suit, with the Trans-Tasman Proceedings Bill 2009 being enacted into law, here, on 31 August 2010. This article will refer to the above enactments, collectively, as the "TTP legislation" (or the "New Zealand TTPA" or "Australian TTPA", when the enactments are referred to separately).

What is the purpose of the TTP legislation?

The TTP legislation echoes the desires and objectives contained in the Trans-Tasman Agreement. Specifically, the legislation seeks to streamline the process for resolving civil proceedings with a "trans-Tasman" element in order to reduce costs and improve efficiency, and to minimise existing impediments to enforcing judgments and regulatory sanctions of one jurisdiction in the other.

How will this be achieved?

There are several aspects to the TTP legislation:

The legislation simplifies the service of civil court proceedings, by enabling initiating documents (such as a statement of claim) filed in one jurisdiction to be served on a business/individual in the other jurisdiction, as of right. The legislation also provides for the service of subpoenas in either jurisdiction, although leave is required.
The legislation extends the range of judgments of one jurisdiction enforceable in the other, and simplifies the process for such enforcement. For example, previously only final money judgments were enforceable either side of the Tasman; the legislation extends this to enable the enforcement of final non-money judgments (such as an injunction).
The legislation introduces new measures to improve regulatory enforcement by allowing, for instance, civil pecuniary penalties of one jurisdiction to be enforced in the other (although there are exemptions to this). This will enable, for instance, penalties under the Commerce Act (NZ) and Trade Practices Act (Australia) to be enforced in each country.
The legislation also seeks to simplify the conduct of court proceedings. For example, the legislation encourages the greater use of technology so that parties and their lawyers can, without leave of the court, take part in proceedings across the ditch by audio or video link.

How are parties served with Trans-Tasman proceedings?

The TTP legislation governs how initiating documents for civil proceedings, commenced in courts or specified tribunals in one jurisdiction, are to be served on an individual or business in the other. For example, the New Zealand TTP enables, without leave, a party to be served in Australia in the same way that court documents are required or permitted to be served under New Zealand law. However, the service requirements are strict, and the courts or tribunals may set aside a proceeding, or any step taken in that proceeding, if those service requirements are not followed.

Are there any rights for parties served with documents from one jurisdiction to have the proceedings heard in their/its own jurisdiction?

If a party is served with proceedings from (say) New Zealand, the TTP legislation entitles that party to apply to the New Zealand court, within 30 working days, for an order to stay that proceeding on the grounds that an Australian court is the more appropriate court to determine the matters in issue. The order to stay proceedings can be granted if the New Zealand court is satisfied that the Australian court has jurisdiction to determine the matters in issue, and that it is the more appropriate court to determine those matters. The New Zealand court must take into account certain matters in making its decision, such as - but not limited to - the places of residence of the parties/principal place of business; the places of residence of likely witnesses; the place where the subject matter of the proceeding is situated; any agreements between the parties about the court or place in which those matters should be determined; the law that it would be most appropriate to apply; whether a related or similar proceeding has been commenced in a court in Australia; and the financial circumstances of the parties.

Do parties have to appear in courts of the other jurisdiction, in person?

Subject to the availability of audio visual or audio technology, and subject to other rules of evidence, parties can apply to appear remotely (including lawyers and witnesses). The TTP legislation provides an extensive framework for remote appearances, including for example who is to pay the costs of participating in hearings using a remote appearance medium.

How is a judgment from the foreign jurisdiction recognised and enforced locally?

The TTP legislation allows, and governs for, judgments from one jurisdiction to be recognised and enforced in the other. There are, however, specific rules for this. Let us consider a New Zealand company wishing to enforce a New Zealand judgment in Australia:

First, the New Zealand judgment must be a "registrable New Zealand judgment". "Registrable New Zealand" judgment is defined in the TTP legislation, and generally includes a final and conclusive judgment (although a judgment is treated as final and conclusive even if it is appealable or an appeal of it has not been concluded). This could include (subject to certain, specified, exemptions) a non-money judgment or judgments imposing a civil pecuniary penalty.
The Registrable New Zealand judgment must be registered in an Australian court. The TTP legislation governs how such judgments are to be registered, and also for the setting aside of such registration.
Once the Australian court has registered the New Zealand judgment, notice must be given to every liable person.
And finally, once registered, the 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 an Australian court.

What TTP legislation applies to me?

This will depend on which country action is required. Common situations are set out below:

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Commercial Litigation

Trans-Tasman Proceedings: A Narrowing "Ditch"