Service in Australia of civil proceedings commenced in New Zealand

In relation to civil proceedings commenced in a New Zealand court or tribunal (where the tribunal's procedural rules allow it or the Governor-General has declared by Order in Council that the appropriate provision applies to the tribunal), the Bill provides that an "initiating document" for the proceeding may be served in Australia in the same way that the document is required or permitted, under the procedural rules of the New Zealand court or tribunal, to be served in New Zealand. The Bill provides exceptions to this as follows:

• a civil proceeding that relates wholly or partly to an "excluded matter" ;
• a civil proceeding that relates wholly or partly to an action in rem; or
• a civil proceeding in a New Zealand tribunal not subject to this provision.

An initiating document for the proceeding may be served in Australia but must be served in the same way that the document is required or permitted, under the procedural rules of the New Zealand court or tribunal, to be served in New Zealand. Such service in Australia of an initiating document has the same effect as if the initiating document had been served in New Zealand (Part 2, Subpart 1, Clauses 13-21).

"Initiating document", "excluded matter" and "action in rem"

The Bill defines the term "Initiating document" as " ... a document:

• by which a civil proceeding is commenced in a New Zealand court or tribunal; or
• by reference to which a person becomes a party to a civil proceeding in a New Zealand court or tribunal (Part 1, Clause 5(1), definition of "initiating document").
• The term "excluded matter" means all or any of the following:
• the dissolution of a marriage;
• the enforcement of an obligation under Australian law to maintain a spouse or a de facto partner (within the meaning of the Acts Interpretation Act 1901 (Australia));
• the enforcement of an obligation under New Zealand law to maintain a spouse, civil union partner, or de facto partner;
• the enforcement of a child support obligation;
• an arrangement or matter declared by an Order in Council to be an arrangement or matter excluded from the operation of subparts 1 and 5 of Part 2 of the Bill (Part 1, Clause 5(1), definition of "excluded matter").
• An "In rem action" is an action concerning specific property (either land or another thing), rather than against a person (an "in personam" or personal action). The action is usually concerned with the ownership of the property. In the current law, an in rem action is usually heard in the jurisdiction where the property (for example, the land concerned) is itself located [8]   .

Declining jurisdiction in NZ where the Australian court is the more appropriate forum

The Bill provides that a defendant in a civil proceeding commenced in a New Zealand court after the commencement of the Bill may apply to the court for an order staying a proceeding on the grounds that an Australian court is the more appropriate court for the proceeding, and the court may grant the order if it is satisfied that an Australian court:

• has jurisdiction to determine all the matters in issue between the parties to the proceeding; and
• is the more appropriate court to determine those matters, taking into account that
• the places of residence of the parties or, if a party is not an individual, its principal place of business;
• the places of residence of the witnesses likely to be called in the proceeding;
• the place where the subject matter of the proceeding is situated;
• generally, any agreement between the parties about the court or place in which those matters should be determined or the proceeding should be instituted (i.e. an exclusive choice of court agreement usually has determinative effect);
• the law that it would be most appropriate to apply in the proceeding;
• whether a related or similar proceeding has been commenced against the defendant or another person in a court in Australia;
• the financial circumstances of the parties, so far as the New Zealand court is aware of them; and
• any other matters (other than the fact that the proceeding was commenced in New Zealand) that the New Zealand court considers relevant.

The Bill prohibits a New Zealand court from restraining a person (for example, by an anti-suit injunction) from commencing a proceeding in an Australian court on the grounds that the Australian court is not the appropriate forum for the proceeding and from restraining a party to a proceeding before an Australian court from taking a step in that proceeding on the grounds that the Australian court is not the appropriate forum for the proceeding. Limitation periods are suspended for claims made earlier in stayed proceedings in Australian courts where a claim is made in a proceeding commenced in an Australian court (the Australian proceeding) that is later stayed by an order of the Australian Court made under the Australian Act on the grounds that a New Zealand court is the more appropriate court to determine the matters in issue between the parties to the proceeding. A limitation period may also be suspended if the claim is to be made again in a proceeding to be commenced in a New Zealand court (the New Zealand proceeding) after the staying of (and, if applicable, before any deadline stated in the condition of that order staying) the Australian proceeding. For the purposes of every applicable limitation period or defence under New Zealand law, the New Zealand proceeding is to be treated as commencing at the time the Australian proceeding commenced (Part 1, Subpart 2, Clauses 22-29).

Interim relief in support of civil proceedings in Australian courts

The Bill provides that a party or intended party to a civil proceeding commenced in an Australian court may apply for interim relief (other than for excluded interim relief such as an interim payment, discovery, or a warrant of arrest of property (e.g. a ship) against which an action or counterclaim in rem is brought, or certain relief under the Evidence Acct 2006) to the High Court or another New Zealand court declared by an order to be subject to the provison and the court may grant the interim relief if the court considers it appropriate to give the interim relief in support of the Australian proceeding and the court, if a proceeding similar to the Australian proceeding had been commenced in the court, would have had power to give the interim relief in the similar proceeding and would have in fact given the interim relief in the similar proceeding (Part 2, Subpart 3, Clauses 30-32).

Remote appearances and remote evidence

The Bill makes detailed provison for remote appearances unrelated to remote evidence (remote evidence is covered in the Evidence Act 2006). The Bill allows parties and their lawyers to appear remotely in proceedings in the other country by allowing a party and the party's lawyer to appear remotely (by audiovisual link, telephone, or other technology, called in the Bill a "remote appearance medium") with the leave of the court (Part 2, Subpart 4, Clauses 33-48).

Recognition and enforcement in New Zealand of specified Australian judgments

The Bill provides for the enforcement of Australian judgments in New Zealand, increasing the range from final money judgments (at present enforceable) to include final non-money judgments. However, only judgments registered in a New Zealand court may be enforced. The Bill sets out the circumstances when an Australian judgment is registrable. Such circumstances include:

• the judgment is a final and conclusive judgment that is given in a civil proceeding by an Australian court; or
• the judgment is a final and conclusive judgment that is given in a civil proceeding by an Australian tribunal declared by the Governor-General by Order in Council under Clause 51(1)(a) to be a tribunal to which Subpart 5 of the Bill applies and the judgment is an order declared under Clause 51(1)(b) to be an order to which Subpart 5 applies; or
• the judgment is a final and conclusive judgment that is given in a criminal proceeding by an Australian court and the judgment is a requirement to pay an injured party a sum of money by way of compensation, damages, or reparation; or
• the judgment is a final and conclusive judgment that is given in a civil proceeding or a criminal proceeding by an Australian court and the judgment is an order (subject to specified circumstances) for the payment of certain expenses incurred by a witness (as defined) in complying with an Australian subpoena (as defined) served on the witness in New Zealand or are incurred by a person in connection with the taking of remote evidence; or
• the judgment is a final and conclusive judgment that is registered in an Australian court under the Foreign Judgments Act 1991 (Australia).

The Bill sets out a list of types of judgments which are not registrable Australian judgments.

Examples of such non-registrable judgments include a judgment which wholly or partly:

• relates to an excluded matter; or
• is a non-money judgment of a kind that is declared by an order under Clause 50(3) to be excluded from recognition and enforcement under Subpart 5 of the Bill; or
• is a judgment (other than one imposing a civil pecuniary penalty) given in an Australian trans-Tasman market proceeding (but a judgment of that kind is a registrable Australian judgment for the purposes of Subpart 5 by virtue of Subpart 6 - see below); or
• is a judgment (including one given in an Australian trans-Tasman market proceeding) imposing a civil pecuniary penalty (but a judgment of that kind is a registrable Australian judgment for the purposes of Subpart 5 by virtue of Subpart 7 - see below) ; or
• is an order under proceeds of crime legislation; or
• is an order relating to the granting of probate or letters of administration or the administration of the estate of a deceased person; or
• is an order relating to the guardianship or care of a person who is incapable of managing his or her personal affairs; or
• is an order relating to the management of the property of a person who is incapable of managing that property; or
• is an order relating to the care, control, or welfare of a child; or
• is an order that, if contravened by a person to whom it is directed, will make the person liable to conviction for an offence in the place where it was made; or
• is a judgment given before the commencement of the Bill (even if the judgment is, at any time, registered in an Australian court under the Foreign Judgments Act 1991 (Australia)) (Part 2, Subpart 5, Clauses 49-67).

New Zealand judgments given in Australian trans-Tasman market proceedings

The Bill requires a judgment to be treated for the purposes of Subpart 5 of the Bill as a registrable Australian judgment if the judgment is given in an Australian trans-Tasman market proceeding and does not impose a civil pecuniary penalty (but a judgment given in an Australian trans-Tasman market proceeding and that imposes a civil pecuniary penalty is a registrable Australian judgment for those purposes by virtue of subpart 7 -see below) (Part 2, Subpart 6, Clauses 65-67)).

Australian judgments imposing civil pecuniary penalties

The Bill requires a judgment to be treated for the purposes of Subpart 5 as a registrable Australian judgment if the judgment is given by an Australian court in a civil proceeding (including an Australian trans-Tasman market proceeding) and imposes a civil pecuniary penalty and is not a kind of judgment imposing a civil pecuniary penalty that is declared by an Order in Council to be excluded from recognition or enforcement under Subpart 5 of the Bill (Part 2, Subpart 7, Clauses 68 and 69).

Australian judgments imposing regulatory regime criminal fines

The Bill requires a judgment to be treated for the purposes of Subpart 5 the Bill as a registrable Australian judgment if the judgment is given by an Australian court in a criminal proceeding and imposes a fine for certain criminal offences under Australian legislation and that is declared by an Order in Council to be a regulatory regime criminal fine and which complies with conditions prescribed by an Order in Council (Part 2, Subpart 8, Clauses 70 and 71).