Bills Digest no. 84 2009–10
Trans-Tasman Proceedings Bill 2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Date
introduced: 25 November
2009
House: House of Representatives
Portfolio: Attorney-General
Commencement:
Sections 1 and 2: on Royal
Assent; Sections 3 110: on a date to be fixed by Proclamation, but
not before the Agreement between the Governments of Australia and
New Zealand on Trans-Tasman Court Proceedings and Regulatory
Enforcement enters into force for Australia if the provisions have
not commenced within six months of the Agreement entering into
force for Australia, they will commence on the day immediately
after that six-month period: see clause
2
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The Trans-Tasman Proceedings Bill
2009 (the Bill) implements the Agreement between the Governments of
Australia and New Zealand on Trans-Tasman Court Proceedings and
Regulatory Enforcement (the Agreement). The Agreement seeks to
establish a regime for the conduct of court proceedings between
Australia and New Zealand (the trans-Tasman regime), which aims to
establish a simpler, more cost-effective and efficient way of
resolving cross-border disputes.[1]
The economic relationship between Australia and New Zealand has
reportedly been close for many years, with several trans-Tasman
initiatives underway, including:
- the Trans-Tasman Travel Arrangement (1973)
- the Australia New Zealand Closer Economic Relations Trade
Agreement (1983)
- the Trans-Tasman Mutual Recognition Arrangement (1998),
and
- the Trans-Tasman Council on Banking Supervision (2005).[2]
Within this context, the number of cross-border civil disputes
has risen. Yet, despite the close ties and similarities in the
justice systems between Australia and New Zealand, both countries
generally treat such disputes as they would treat a dispute
involving any other foreign country.
It was within this context that, in 2003, the then Prime
Ministers of Australia and New Zealand, John Howard and Helen
Clark, established the Trans-Tasman Working Group on Court
Proceedings and Regulatory Enforcement (the Working Group).
The Working Group s terms of reference were to examine the
effectiveness and appropriateness of current arrangements relating
to civil proceedings; civil penalty proceedings; as well as
criminal proceedings relating to regulatory matters.[3]
Its membership comprised of senior officials from relevant
government departments in both countries.[4]
In August 2005, the Working Group released a public discussion
paper inviting comments regarding the resolution of trans-Tasman
disputes and increased regulatory co-operation (the discussion
paper).[5] After
considering the responses received as part of that process, the
Working Group released a report in which it made several
recommendations on improving the existing legal framework within
which trans-Tasman civil disputes are resolved (the
report).[6] The main
recommendation was to create a trans-Tasman legal regime (based on
the Service and Execution of Process Act 1992) between
Australia and New Zealand. Such a regime would enable initiating
process in civil proceedings commenced in a court in either country
to be served in the other country and would broaden the range of
Australian and New Zealand judgments that could be registered and
enforced in the other country.[7] Other recommendations include greater use of
teleconference and video-link technologies in remote appearances in
trans-Tasman proceedings.[8]
On 25 February 2005, the then Australian Attorney-General,
Philip Ruddock, referred the following inquiry to the House of
Representatives Standing Committee on Legal and Constitutional
Affairs (the House of Representatives Committee):
- lack of harmonisation within Australia s legal system, and
- lack of harmonisation between Australia s and New Zealand s
legal systems,
particularly as it relates to the impact on trade and
commerce.[9]
In its report published in November 2006, the House of
Representatives Committee endorsed the Working Group s suggestions
in its discussion paper, which were very much the same as the
recommendations made in its report. The House of Representatives
Committee stated that such measures should streamline the legal
systems between both countries; and reduce the costs and
inconvenience associated with trans-Tasman proceedings.[10]
In 2007, the Australian and New Zealand Governments both agreed
to implement the recommendations of the Working Group. The
Agreement, based on those recommendations, was signed on 24 July
2008 by the Australian Attorney-General and New Zealand Associate
Justice Minister, Robert McClelland and Lianne Dalziel.[11]
The Agreement:
- allows civil proceedings from a court in one country to be
served in the other without additional requirements
- extends the range of civil court judgments enforceable between
the two countries judgments could only be refused to be enforced if
they conflict with public policy in the country of enforcement
- provides for interim relief to be obtained from a court in one
country in support of civil proceedings in the other
- allows the regime to be extended to tribunals on a case by case
basis
- adopts a common rule to apply when a dispute could be heard by
a court in either country
- encourages greater use of technology for trans-Tasman court
appearances
- allows enforcement of civil penalty orders across the Tasman,
and
- allows fines for certain regulatory offences to be enforced
across the Tasman, where there is a strong mutual interest in doing
so.[12]
On 27 November 2009, the Senate Standing Committee on the
Selection of Bills resolved to not refer the Bill to a
parliamentary committee.
As at 21 January 2010, the Standing Committee on the Scrutiny of
Bills has not yet released any comments on the Bill.
Stakeholder positions on general principles underlying the Bill
s provisions can be ascertained from submissions made to the
Working Group and the House of Representatives Committee
inquiry.
Comments regarding proposed measures will be addressed in the
Main Provisions section of this Digest.
The Government states that the proposed measures in the Bill
would not have any significant financial impact on the
Commonwealth.[13]
The Bill is divided into 10 parts, dealing with matters
including:
- service in New Zealand of initiating documents issued by
Australian courts and tribunals
- Australian courts declining jurisdiction on the basis that a
New Zealand court is the more appropriate forum
- Australian courts granting interim relief for civil proceedings
in New Zealand courts
- issue of subpoenas in both countries
- remote appearances
- recognition and enforcement of specific judgments of New
Zealand courts and tribunals in Australia
- trans-Tasman market proceedings, and
- evidence of certain New Zealand matters.
Due to the comprehensiveness of the Explanatory Memorandum, this
Digest will only focus on some of those matters.
Part 2 seeks to implement Article 4 of the
Agreement ( Service of Process ).
In particular, clause 9 proposes that an
initiating document issued by an Australian court or tribunal
relating to the proceedings may be served in New Zealand without it
being necessary for the Australian court or tribunal to give leave
for the service, or to be satisfied that there is a connection
between the proceedings in question and Australia.
It is noted that under clauses 11 and
12, the initiating document must include certain
information, that must be given to the defendant and failure to
provide the defendant with such information could result in the
issuing Australian court or tribunal making an order, on
application by the defendant, to set aside the proceedings or a
step taken in relation thereof. Such information, to be prescribed
by regulations, would generally include information about steps
that the defendant may or must take and consequences of being so
served.
As it is stated in the Explanatory Memorandum:
This is designed to be an additional safeguard for defendants,
to balance the simplified process for service of Australian
initiating process in NZ.[14]
These proposals are consistent with the Working Group s
recommendations about service of initiating process, which
include:
A regime, modelled on the Service and Execution of Process
Act 1992 (Cth), should be introduced between Australia and New
Zealand to allow:
- civil initiating process issued out of any Australian federal,
State or Territory court to be served in New Zealand, and
- civil initiating process issued out of any New Zealand court to
be served in any Australian State or Territory.
Service should have the same effect and give rise to the same
proceedings as if service had occurred in the jurisdiction of
issue.The regime should have the following features:
- the plaintiff would not have to establish any particular
connection between the proceedings and the forum to be allowed to
serve the proceedings in the other country ...[15]
Submissions made to the Working Group were said to be generally
supportive of such proposals. However, some concerns were expressed
that allowing service without leave would actually shift the burden
of proving appropriateness of the chosen court from the plaintiff
to the defendant.[16] The Working Group responded by stating that:
in New Zealand and several Australian jurisdictions, plaintiffs
are, in many cases, not currently required to obtain leave to serve
overseas (although they must then obtain leave to proceed if the
defendant fails to appear). Where leave to serve is not required,
there is already effectively a burden on the defendant regarding
the appropriateness of the chosen court. This perceived shift,
therefore, is limited in practice.[17]
Part 3 seeks to implement Article 8 of the
Agreement ( Declining jurisdiction ).
Subclause 17(1) provides that a defendant in
civil proceedings in an Australian court may apply for a court
order staying the proceedings on grounds that a New Zealand court
is the more appropriate court to determine the matter in
dispute.
In determining what would be the more appropriate court to
determine the matters in dispute, under subclause
19(2), the Australian court must consider matters
including:
- the parties places of residence (or principal place of business
in the case of an entity)
- places of residence of likely witnesses
- where the subject matter of the proceedings is located
- any agreement between the parties as to where the matters
should be determined
- the most appropriate law to apply to the proceedings, and
- the parties financial circumstances to the extent that the
court is aware of them.
Importantly, under subclause 20(1), where an
exclusive choice of law agreement designates a New Zealand court to
determine the matters in dispute, the Australian court must make an
order staying the proceedings. However, where an exclusive choice
of law agreement designates an Australian court to determine the
matters in dispute, the Australian court must not make such an
order.[18]
These proposals are consistent with the Working Group s
recommendation that the defendant should be able to apply for a
stay of proceedings on the basis that the court in the other
country is the more appropriate court for the proceedings.[19] According to the
Working Group:
Courts would decide this issue taking into account a list of
factors such as where the parties and witnesses live, and which
jurisdiction s law is to be applied.
Another of the factors to be taken into account should be
whether there is agreement between the parties about the court or
place where proceedings should be heard. Where that agreement is
exclusive (i.e only the chosen court, and no other, has
jurisdiction to decide the dispute) a court would be required to
decline jurisdiction in favour of the chosen court. There would be
an exception where the agreement is null and void, or inoperative
(as determined by the law of the jurisdiction of the chosen court)
or incapable of being performed. This approach is consistent with
the 2005 Hague Convention on Choice of Court Agreements, a
consideration that will be important if either Australia or New
Zealand ultimately decide to become a Party to this
Convention.[20]
It is also stated that submissions to the Working Group
expressed strong support for such a proposal.[21]
Part 4 seeks to implement Article 7 of the
Agreement ( Interim relief ).
Under clause 25, an existing or intended party
to civil proceedings in a New Zealand court may apply to the
following Australian courts for interim relief (but not a warrant
for the arrest of property) in support of the New Zealand
proceedings:
- the Federal Court of Australia
- the Family Court of Australia
- a State or Territory Supreme Court, and
- any other Australian court prescribed by regulations.
According to the Explanatory Memorandum:
This avoids the need for substantive proceedings seeking
resolution of the main dispute to be commenced in Australia. The
Australian court will retain control over the interim relief, and
can protect local third parties and any other relevant local
interests when deciding on the appropriate relief, if any, to grant
...
Reference to an intended party to a civil proceeding to be
commenced is intended to allow a party who has not yet formally
commenced the main proceeding in NZ to apply for interim relief in
Australia. This might occur in circumstances where, for example,
action needs to be taken quickly to preserve assets from being
removed from the Australian jurisdiction ...[22]
Under subclause 26(1), the Australian court may
provide such relief if:
- it considers that it would be appropriate to do so, and
- if it had the power to do so, it would have given such relief
in similar proceedings commenced in the Australian court.
However, under subclause 26(2), the Australian
court may refuse to give such relief if it considers that it has no
jurisdiction in relation to the New Zealand proceedings subject
matter and it would therefore be inexpedient to do so.
According to the Explanatory Memorandum:
The Australian court may make an (sic) interim orders such as a
Mareva injunctions (which prevent a party removing assets from the
jurisdiction or disposing of them), Anton Piller orders (which
prevent a defendant destroying key material), and suppression
orders (which prevent publication of a report of public court
proceedings).
The court will not be able to grant a warrant for the arrest of
property under Part 4. Warrants for the arrest of property are
excluded as they are a form of interim relief under the court s
admiralty jurisdiction, which carries with it an assertion of
jurisdiction to determine the merits of a proceeding.
For the avoidance of doubt, the NZ Bill expressly excludes
discovery from the types of interim relief that can be granted by
NZ courts in favour of Australian proceedings. It is not considered
that orders for discovery are interim relief in Australia as they
are final orders rather than those made for a specific period of
time to preserve the status quo until final judgment is given in a
proceeding. It is intended that such orders, particularly discovery
from non-parties, should be made by the court hearing the
substantive proceeding.[23]
This approach is consistent with the Working Party s
comments:
We recommend that appropriate Australian and New Zealand courts
(ie those in the country where the order will have effect and which
are competent to grant the relief sought) be given statutory
authority to grant interim relief in support of proceedings in the
other country. The range of eligible interim orders would not be
limited, so could include Mareva injunctions, Anton
Piller orders and suppression orders, where the court
considers such relief to be appropriate.
This option appears both practical and effective. It would mean
that the court in the country where the interim relief is sought
would retain control over that interim relief. That court can
protect local third parties and any other relevant local interests
when deciding on the appropriate relief, if any, to grant.[24]
Submissions to the Working Group were also supportive of such
proposals.[25]
Part 5 contains provisions allowing subpoenas
to be served and enforced between Australia and New Zealand.
Division 2 of Part 5 deals
with Australian subpoenas. Under clause 29,
Division 2 provisions apply to subpoenas issued in proceedings
in:
- a federal court
- a state or territory court prescribed by regulations, or
- an Australian tribunal prescribed by regulations.
It is noted that regulations must not prescribe a tribunal
unless it is a person or body legally authorised to take evidence
on oath or affirmation.
However, under clause 31, where proceedings are
in an Australian court, the subpoena must not be served in New
Zealand without leave of the court. Similarly, where proceedings
are in an Australian tribunal, the subpoena must not be served in
New Zealand without leave of an inferior Australian court.[26] In deciding whether to
give leave, the court must consider:
- the significance of the evidence to be given or produced by the
named person, and
- whether the evidence could be obtained by alternative means
without significantly greater expense and with less inconvenience
to the named person.
This leave requirement is consistent with
stakeholders submissions made to the Working Group and the Working
Group s own comments.
Submissions to the Working Group were said to
have been overwhelmingly supportive of retaining the leave
requirement and of lower court judges being able to grant
leave.[27]
The Working Group, itself, regarded retaining the
leave requirement as an important safeguard .[28] According to the Working
Group:
The requirement for a witness to answer an overseas subpoena and
appear in person before an overseas court (or at least appear by
video or telephone link) is potentially more burdensome than a
requirement to appear before a domestic court. There is also
potential for misuse to harass or deliberately inconvenience a
witness. The leave requirement therefore protects against the
inappropriate use of a subpoena against a witness in the other
country.[29]
The Working Group also recommended that judges of
lower courts should be allowed to grant leave to serve a
trans-Tasman subpoena in civil proceedings in that court or a
tribunal, as additional costs, inconvenience and delay may occur by
having always to apply to higher courts.[30]
In the Bill, it is also noted that a person s reasonable
expenses of complying with a subpoena would be payable to that
person under clause 33. According to
clause 37, if the subpoena was issued at the
request of a person, the expenses must be paid by that person,
else:
- where the subpoena was issued by a federal court expenses would
be payable by the Commonwealth
- otherwise expenses would be payable by the state or territory
where the subpoena was issued.
Under subclause 35(1), the named person may
apply for the subpoena to be set aside. The Australian court may
set aside a subpoena under clause 36.
There are certain circumstances set out in subclause
36(2) when the court must set aside a subpoena:
- if the subpoena requires someone to attend at a particular
place in Australia and the court is satisfied that:
- the person cannot travel
- the person is facing certain other legal proceedings in
Australia, or
- the court is satisfied that the person s movements are legally
restricted and the person cannot comply with the subpoena.
The court may also set aside a subpoena under subclause
36(3) if the court is satisfied of certain matters such
as:
- the evidence to be given by the person named in the subpoena
could be satisfactorily obtained by other means without incurring
significantly greater expense, or
- complying with the subpoena would cause the person hardship or
serious inconvenience.
Division 3 of Part 5 deals
with New Zealand subpoenas.
Clause 41 provides that New Zealand subpoenas
may be served on a person in Australia in accord with the
Evidence Act 2006 (NZ).
While is noted that there is no provision in the Bill itself for
New Zealand subpoenas to be set aside, subclause
42(2) provides that a person s right under New Zealand law
to apply for the subpoena to be set aside remains unaffected. Such
applications may be made to the High Court of New Zealand, where
leave had been given for the subpoena to be served.[31]
Part 6 seeks to implement Article 11 of the
Agreement ( Remote appearances ).
Division 2 of Part 6 relates
to remote appearances from New Zealand in proceedings in an
Australian court or prescribed Australian tribunal.[32]
Subdivision A deals with remote appearance by a
party or the party s lawyer where the appearance is unrelated to
evidence in the proceedings. Under clause 48, the
Australian court or tribunal may give leave for such remote
appearances only when it is satisfied that:
- the party or the party s lawyer could participate more
conveniently in the hearing from New Zealand
- if the court or tribunal intends to specify a remote appearance
medium, such medium is or can reasonably be made available
- if the court or tribunal does not intend to specify a remote
appearance medium, remote appearance mediums are or can reasonably
be made available, and
- it is appropriate to give leave.
Importantly, under subclause 48(3), if a party
s lawyer is not entitled to appear before the court or tribunal,
the court or tribunal can only give leave if satisfied that the
lawyer is a qualified New Zealand lawyer and the party either
resides or if the party is not an individual the party has its
principal place of business in New Zealand. Under
subclause 48(4), once leave is given, a
qualified New Zealand lawyer otherwise not entitled to appear
before the court or tribunal is entitled to practise as a legal
practitioner in relation to that leave.
Subdivision B deals with remote appearances
where the appearance is evidence-related. Clause
50 is a similar provision to clause 48,
enabling evidence to be given, witnesses to be examined and
submissions to be made from New Zealand in certain
circumstances.
The Australian Government states that:
The Australian court or tribunal cannot give this leave unless
it is satisfied that the evidence can more conveniently be given
remotely, and the necessary facilities for the remote appearance
can be provided. This may include consideration of the availability
of the witnesses, the cost of the witness attending in Australia as
compared with using the audio or audiovisual link facilities, the
nature of the evidence to be given and whether the credibility of
the witness is likely to be an issue.[33]
Subdivision C contains general provisions
regarding remote appearances. Under
clauses 51 and 52, a person
must not appear remotely from New Zealand by audiovisual or audio
links unless the place where the court or tribunal is sitting in
Australia and the place in New Zealand where the remote appearance
would be made, are properly equipped with facilities enabling
people at both places to hear (and, where there is audiovisual link
see) each other.
In addition, costs orders may be made for payment of expenses
incurred in connection with the remote appearance under
clause 53.
Division 3 of Part 6 relates
to remote appearances from Australia in proceedings commenced in a
New Zealand court or tribunal.
According to clause 55, a remote appearance in
Australia in New Zealand proceedings is authorised if it is in
accord with the Trans-Tasman Proceedings Act 2009 (NZ) and
the Evidence Act 2006 (NZ).
Clauses 56 and 57 allow the
New Zealand court or tribunal to exercise any of its powers (except
powers to punish for contempt; and to enforce or execute its
judgments or process) and make certain orders in Australia for the
purposes of the remote appearance. Importantly, subclause
56(2) provides that the New Zealand law applying to the
New Zealand proceedings also applies to the New Zealand court or
tribunal s practice/procedure in allowing a person to appear
remotely from Australia.
Participants in New Zealand proceedings, such as judges, legal
practitioners, parties and witnesses, are given privileges,
protections and immunities under clause 60.
Clause 61 sets out offences for particular
conduct engaged in at a place in Australia where a remote
appearance is being made in New Zealand proceedings. The maximum
penalty for these offences is two years imprisonment or 120 penalty
units (or both).[34] It is stated in the Explanatory Memorandum that:
This is designed to allow the court maximum flexibility in
determining the appropriate penalty according to the seriousness of
the offence.[35]
These proposals relating to remote appearances are also
consistent with the Working Group s recommendations:
In order to reduce the cost and inconvenience of physically
attending court in trans-Tasman litigation, we recommend that
parties seeking a stay of proceedings under the proposed
trans-Tasman regime, and their lawyer, should be able to appear
from the other country as of right. The court should decide the
technology to be used
lawyers without the right to appear before the court in question
should be allowed to appear by video link or telephone conference
with the leave of the court. The court could refuse leave in
situations where it was apparent that lawyers were circumventing
the TTMRA [Trans-Tasman Mutual Recognition Arrangement]
requirements (eg appearing without a satisfactory reason for a
client resident in the place where the court is, or making multiple
appearances on unrelated proceedings before the same court).
Although a lawyer might not be registered in the jurisdiction where
the court is situated, the court would still have effective
sanctions to control their conduct. These would include declining
leave to appear in future, making a complaint to the professional
regulator in the lawyer s home jurisdiction and sanctions for
contempt.
Statutory provisions would be needed to give appropriate
privileges, immunities and protections to those appearing
remotely.[36]
Submissions to the Working Group were said to be generally
supportive of the idea to make greater use of technology but some
submissions raised the question of who should bear the costs of
doing so.[37] The
Working Group noted that:
although costs (which should reduce over time as technology
improves and becomes more widespread) would initially be the
responsibility of the party applying to appear remotely, those
costs could be factored into any award of costs eventually made
against the other party.[38]
In relation to the costs associated with remote appearances,
clause 53 of the Bill simply provides that where a
person appears remotely in New Zealand under the Bill, the
Australian court may make such orders as it considers appropriate
for payment of expenses connected with the remote appearance. On
the contrary, it is noted that subclause 39(1) of
the Trans-Tasman Proceedings Bill 2009 (NZ) provides that:
Unless the New Zealand court or tribunal otherwise orders, the
costs involved in the party, the party s counsel, or both
participating in hearings by using a remote appearance medium,
under leave given under section 35, must be paid by the applicant
for that leave.
Part 7 sets out provisions allowing specified
judgments of New Zealand courts and tribunals to be enforced in
Australia.
Under clause 65, a registrable New Zealand
judgment must be registered in an Australian court under
clause 68 before it can be enforced in
Australia.[39]
Judgments not considered to be registrable are set out in
subclause 66(2), including:
- orders under proceeds of crime legislation
- orders related to the granting of probate, letters of
administration, or the administration of a deceased person s
estate
- orders related to the guardianship or care of people incapable
of managing their financial affairs, and
- orders relating to the care, control or welfare of
children.
Under clause 72, an Australian court in which a
New Zealand judgment is registered must set aside that registration
if:
- the court is satisfied that enforcing the judgment would be
contrary to public policy in Australia
- the judgment was registered in contravention of the provisions
in the Bill, or
- both the subject matter of the proceedings in which the
judgment was given was immoveable property or the judgment was
given in proceedings in rem where the subject matter was
moveable property; and such property was not located in New Zealand
at the time of the proceedings.[40]
It is noted that:
Under general private international law principles, a judgment
may be contrary to public policy if it was obtained in a manner
inconsistent with the law of the country of registration (for
example by distress or undue influence), or is founded on a law
that is unacceptable to the country of registration. This is
intended to be a high threshold.
Registration must also be set aside if the judgment was given in
an action where the subject matter was immovable property, or the
judgment was in an action in rem where the subject matter was
movable property, if the property in question was not situated in
NZ at the time of the proceeding. This preserves the private
international rule that a court generally has no power to determine
matters of title to, or possession of, immovable property situated
outside the jurisdiction of the court.[41]
Under clause 76, an Australian court in which a
New Zealand judgment is registered may, subject to conditions,
order that enforcement proceedings for that judgment in the
Australian court:
- not commence until a specified time or event, or
- be stayed for a specified time.
Conditions include:
- the liable person applies to set aside, vary or appeal against
the judgment to a New Zealand court or tribunal having the power to
grant such application within a specified time
- the liable person prosecutes the application expeditiously,
and
- any other conditions that the Australian court deems
appropriate (such as conditions that relate to the giving of
security).
Reasonable costs incurred in registering and enforcing New
Zealand judgments in Australia are recoverable under clause
77 to the same extent as what would be recoverable for a
similar/analogous Australian judgment.
The provisions in the Bill relating to recognising and enforcing
certain New Zealand court and tribunal judgments in Australia are
generally consistent with the Working Group recommendations
that:
- a judgment from one country could be registered in the other.
It would have the same force and effect, and could be enforced, as
a judgment of the court where it is registered
- a judgment could only be varied, set aside or appealed in the
court of origin. The court of registration would be able to stay
enforcement to allow this to happen
- a judgment could only be refused enforcement in the other
country on public policy grounds. Other grounds, such as breach of
natural justice, would have to be raised with the original
court
The scheme should not apply to certain existing statutory
co-operation arrangements or matters covered by existing or
proposed multi-lateral arrangements, such as dissolution of
marriage or enforcing maintenance and child support
obligations.[42]
The enforcement of certain tribunal judgments is also consistent
with the Working Group s statement that:
We recommend that certain decisions or decisions in certain
types of proceedings of specified tribunals should be enforceable
in the other country. The initiating process in certain types of
proceedings before specified tribunals could also be served in the
other country under the proposed trans-Tasman regime [43]
It is stated that on the issue of enforcing tribunal orders,
submissions expressed a broad range of views. These views generally
supported expanding the enforceability of tribunal orders, but
concerns were expressed about which tribunals would be
included.[44]
It is noted that paragraph 66(1)(b) provides
that a judgment is a registrable judgment if (among other things),
the judgment is a final and conclusive judgment given in a civil
proceeding in a New Zealand court or tribunal that is prescribed by
the regulations. It could be argued that this requirement for a
tribunal to be prescribed by the regulations is consistent with the
Working Group s caution that:
To ensure the appropriateness of particular arrangements, we
recommend that tribunals be added to the regime on a case by case
basis, by subordinate legislation.
For decisions to be eligible to be prescribed for enforcement
purposes, a tribunal should be exercising an adjudicative function
and its orders should be enforceable without an order of a court.
We consider that, to be prescribed for service purposes under the
trans-Tasman regime, service of the initiating process of that
tribunal overseas should already be possible under existing
law.
A detailed assessment of the way a tribunal works, its rules of
procedure and processes and the nature of the orders it makes will
be required when that tribunal is considered for inclusion under
the scheme. Consultation with interested parties on specific issues
relevant to the inclusion of a particular tribunal in the regime
would also be important.[45]
Part 8 sets out special rules about Australian
and New Zealand proceedings relating to the trans-Tasman
market.[46] In
general:
Trans-Tasman market proceedings are proceedings brought under
the Trade Practices Act 1974 which prohibit a corporation
with a substantial degree of market power from taking advantage of
this power to eliminate or damage competition in any
market.[47]
Division 2 of Part 8 is about
Australian market proceedings. Under clause 81,
the Federal Court of Australia may make an order that an Australian
market proceeding may be conducted or continued in New Zealand if
it is satisfied that the proceeding could be more conveniently or
fairly conducted or continued there. Under clause
82, qualified New Zealand lawyers would be entitled to act
as legal practitioners in such a proceeding before the Federal
Court of Australia sitting in New Zealand.
Division 3 of Part 8 is about
New Zealand market proceedings. Under clause 85,
the High Court of New Zealand would be able to conduct or continue
such proceedings in Australia, exercising certain powers for those
purposes. Clause 86 would give judges, legal
practitioners, parties and witnesses specific privileges,
protections and immunities in these proceedings.
Division 4 of Part 8 would
enable the Federal Court of Australia to obtain evidence for New
Zealand market proceedings in the New Zealand High Court. This
includes making orders related to:
- examination of witnesses
- production of documents or things
- inspection, photograph, preservation, custody or detention of
property
- taking samples of any property, and
- carrying out experiments on or with property.[48]
It is noted that under clause
90, a person cannot be compelled to give evidence in
Australia under clause 89 that the person could
not be compelled to give in the New Zealand proceeding itself.
Concluding comments
The Bill appears to be consistent with both the Agreement and
recommendations made by the Working Group, reflecting the
Australian Government s underlying policy commitment.
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Sharon Scully
22 January 2010
Bills Digest Service
Parliamentary Library
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