Commonwealth: Trans-Tasman Proceedings Act 2010 (Cth)

Trans‑Tasman Proceedings Act 2010 No. 35, 2010 Compilation No. 2 Compilation date: 1 September 2021 Includes amendments up to: Act No. 13, 2021 Registered: 4 November 2021 About this compilation This compilation This is a compilation of the Trans-Tasman Proceedings Act 2010 that shows the text of the law as amended and in force on 1 September 2021 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Purpose of, and guide to, this Act 4 Definitions 5 This Act binds the Crown 6 This Act extends to the external Territories Part 2—Service in New Zealand of initiating documents issued by Australian courts and tribunals Division 1—Introduction 7 Guide to this Part Division 2—Service in New Zealand of initiating documents issued by Australian courts and tribunals 8 Application of this Part 9 Service of initiating documents in New Zealand 10 Effect of service under section 9 11 Information that must be given to the defendant 12 Consequences of not giving the information to the defendant 13 When the defendant must file an appearance 14 Defendant's address for service 15 Security for costs 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 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 18 Hearing on the application 19 Order of stay of proceeding 20 Exclusive choice of court agreements 21 How this Part affects powers of the court to stay proceeding 22 No restraint of proceedings 23 Suspension of limitation periods Part 4—Australian courts granting interim relief in support of civil proceedings in New Zealand courts Division 1—Introduction 24 Guide to this Part 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 26 Giving of interim relief in support of a New Zealand proceeding 27 Application of Australian court procedural rules in an interim relief proceeding Part 5—Subpoenas Division 1—Introduction 28 Guide to this Part Division 2—Australian subpoenas 29 Application of this Division 30 Service of Australian subpoenas in New Zealand 31 Subpoenas not to be served in New Zealand without leave 32 How Australian subpoenas must be served in New Zealand 33 Expenses of complying with Australian subpoenas 34 Australian subpoenas that require production 35 Applications to set Australian subpoenas aside 36 Setting aside Australian subpoenas 37 Payment of expenses for complying with Australian subpoenas 38 Contravening Australian subpoenas 39 This Division does not affect other court or tribunal powers Division 3—New Zealand subpoenas 40 Application of this Division 41 Service of New Zealand subpoenas in Australia 42 Obligation to comply with New Zealand subpoenas 43 Contravening New Zealand subpoenas 44 Documents etc. for transmission to a New Zealand court 45 This Part does not affect other powers to serve subpoenas Part 6—Remote appearances Division 1—Introduction 46 Guide to this Part Division 2—Remote appearances from New Zealand in Australian proceedings Subdivision A—Remote appearances unrelated to remote evidence 47 Application of this Subdivision 48 Remote appearances unrelated to remote evidence Subdivision B—Remote appearances related to remote evidence 49 Application of this Subdivision 50 Remote appearances related to remote evidence Subdivision C—General provisions about remote appearances 51 Remote appearances by audiovisual link 52 Remote appearances by audio link 53 Costs of remote appearances from New Zealand 54 Powers of Australian courts in New Zealand Division 3—Remote appearances from Australia in New Zealand proceedings 55 People in Australia appearing remotely in New Zealand proceedings 56 Powers of New Zealand courts and tribunals in Australia 57 Orders of New Zealand courts and tribunals 58 Enforcement of orders of New Zealand courts and tribunals 59 Remote appearance place in Australia is part of the New Zealand court or tribunal 60 Privileges, protections and immunities of participants in New Zealand proceedings 61 Contempt of New Zealand courts or tribunals 62 New Zealand courts and tribunals may administer oath or affirmation in Australia 63 Assistance to New Zealand courts and tribunals Part 7—Recognition and enforcement in Australia of specified judgments of New Zealand courts and tribunals Division 1—Introduction 64 Guide to this Part 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 66 Meaning of registrable NZ judgment 67 Application to register NZ judgments 68 Registration of NZ judgments 69 Currency in which NZ judgments are registered 70 Money judgments partly satisfied when entitled person applies for registration 71 Judgments only some provisions of which are registrable 72 Setting aside registration 73 Notice of registration 74 Effect of registration and notice of registration 75 Restriction on enforcing registered NZ judgments 76 Stay of enforcement of registered NZ judgment so that the liable person can appeal it 77 Costs and expenses of enforcement of registered NZ judgments 78 Interest on registered NZ judgments 79 Private international law does not affect enforcement of registered NZ judgments Part 8—Trans‑Tasman market proceedings Division 1—Introduction 80 Guide to this Part Division 2—Federal Court exercising jurisdiction in New Zealand 81 Federal Court sitting etc. in New Zealand 82 New Zealand lawyers entitled to practise in the Federal Court in New Zealand 83 Injunctions in relation to New Zealand conduct 84 Service of injunctions and other judgments in New Zealand Division 3—High Court of New Zealand exercising jurisdiction in Australia 85 High Court of New Zealand sitting in Australia etc. 86 Privileges, protections and immunities of participants in NZ market proceedings 87 New Zealand High Court may administer oath etc. in Australia 88 Service of injunctions and other judgments in Australia Division 4—Taking of evidence by the Federal Court for the High Court of New Zealand 89 Taking of evidence by the Federal Court 90 Privilege of witnesses 91 This Division does not affect other Australian laws Division 5—Miscellaneous 92 Jurisdiction of the Federal Court under this Part 93 Contempt of the High Court of New Zealand 94 Reciprocal arrangements for use of court facilities Part 9—Evidence of certain New Zealand matters Division 1—Introduction 95 Guide to this Part Division 2—Evidence of certain New Zealand matters 96 Application of this Part 97 Matters of law 98 Evidence of New Zealand official instruments 99 Evidence of New Zealand acts of state 100 Evidence of public documents admissible in New Zealand under New Zealand Acts 101 Evidence of other New Zealand public documents 102 Evidence of New Zealand documents of a public nature 103 This Part does not affect other Australian laws Part 10—Miscellaneous Division 1—Introduction 104 Guide to this Part Division 2—Miscellaneous 105 Jurisdiction of federal courts 106 References to repealed New Zealand Acts 107 Interaction with the Foreign States Immunities Act 1985 108 Interaction with the Mutual Assistance in Criminal Matters Act 1987 109 Court rules 110 Regulations Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act relating to proceedings in Australian and New Zealand courts and tribunals, and for related purposes Part 1—Preliminary 1 Short title This Act may be cited as the Trans‑Tasman Proceedings Act 2010. 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. 13 April 2010 2. Sections 3 to 110 A single day to be fixed by Proclamation. 11 October 2013 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. (see F2013L01445) 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. (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 (c) implement the Trans‑Tasman Agreement in Australian law. 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 issue. 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 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 (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 (c) a proceeding that is related to or associated with a prosecution for an offence or a procedure mentioned in paragraph (b); but does not include: (d) a proceeding for compensation, damages or reparation; 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 (c) anything from which sounds, images or writings can be 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, damages or reparation 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 (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 Property (Relationships) Act 1976 of New Zealand); or (c) the enforcement of a child support obligation. 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 (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 2010 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 (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 (c) a law of a State or Territory that is a corresponding law (within the meaning of the Proceeds of Crime Act 2002); or (d) the Criminal Proceeds (Recovery) Act 2009 of New Zealand; or (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: (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 (c) other submissions in relation to the evidence. subpoena means: (a) a subpoena to give evidence; or (b) a subpoena for production; or (c) a subpoena that is both a subpoena to give evidence and a 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 Federal Circuit and Family Court of Australia (Division 1); or (c) the Supreme Court of: (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). working day, of an Australian court or tribunal in relation to a proceeding in the court or tribunal, means a day on which documents may be filed in the registry of the court or tribunal for the proceeding. 5 This Act binds the Crown (1) This Act binds the Crown in each of its capacities. (2) This Act does not make the Crown liable to be prosecuted for an offence. 6 This Act extends to the external Territories This Act extends to every external Territory. 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. 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 (c) a civil proceeding in an Australian tribunal, being a civil 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 section 55 of the NZ Act to be a tribunal to which subpart 5 of Part 2 of that Act applies. 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 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. (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: (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. 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 issue. 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 the matters in issue 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 issue, the Australian court's order as to whether or not to stay the proceeding must be consistent with that agreement (see section 20). 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 issue. (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; (c) any other person who is required or permitted, by the 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 (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 (c) a remote appearance medium is, or can reasonably be made, 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 the matters in issue 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; (c) the place where the subject matter of the proceeding is 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 the matters in issue 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 issue; 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) Paragraph (1)(a) does not apply to an exclusive choice of court agreement if the Australian court is satisfied that: (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 (c) giving effect to it would lead to a manifest injustice or would 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 issue between the parties to the proceeding has decided not to determine those matters. (2A) Paragraph (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). (3) Exclusive choice of court agreement, in relation to matters in issue 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 (c) is not a contract of employment. 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. (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. 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. 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 Federal Circuit and Family Court of Australia (Division 1); (c) the Supreme Court of a State or Territory; (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. (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 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. 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 (c) an Australian tribunal prescribed by the regulations. (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 (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. 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 (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 Competition and Consumer Act 2010); 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 (c) in the case of a subpoena for production: (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 (c) a remote appearance medium is, or can reasonably be made, 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: (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. 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 (c) at the time of service or at some other reasonable time before 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. (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; (c) an Australian tribunal prescribed by the regulations. (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 (c) must not prescribe a court or tribunal of any other Territory 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 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. 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 (c) if the court or tribunal does not intend to specify a remote 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 (c) an Australian tribunal prescribed by the regulations. (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 (b) the examination of a person giving evidence under paragraph (a); or (c) the making of submissions relating to the giving of evidence 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 (c) if the court or tribunal does not intend to specify a remote 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 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