Until recently, dealing with civil proceedings which had a trans-Tasman element to them was cumbersome. On 13 October 2013, the Trans-Tasman Proceedings Act 2010 (TTPA) came into force. Along with an Australian act with the same name, it has greatly simplified this process.
The TTPA arises out of the Trans-Tasman Agreement (the agreement) which was concluded between the New Zealand and Australian governments in 2008. The agreement’s objective was to streamline the process for resolving civil proceedings with a trans-Tasman element in order to reduce costs, improve efficiency, and minimise existing impediments to enforcing certain judgments and regulatory sanctions.
The TTPA modernises and reforms civil proceedings which involve a trans-Tasman element. The changes are reciprocal so reference in this article to New Zealand courts, proceedings or judgments can be taken to also apply to Australian courts, proceedings or judgments.
The biggest changes include streamlining the service of New Zealand proceedings in Australia, introducing statutory criteria for determining the most appropriate jurisdiction and reforming the registration of Australian judgments in New Zealand. The TTPA also provides for remote appearances to be made in either jurisdiction (reflecting the availability of remote technology) and allows interim relief to be granted by New Zealand courts in Australian proceedings.
Service of proceedings
Before the introduction of the TTPA, service in Australia of proceedings commenced in New Zealand was subject to the same rules as service in any other overseas country (ie, the procedure in High Court Rules 6.27-6.29). These rules provide that certain types of proceedings may be served overseas as of right, while other types of proceedings require the court’s leave.
The TTPA treats service of proceedings across the Tasman differently from service in other overseas jurisdictions. Proceedings can now be served in Australia in the same way that service is required or permitted in New Zealand (subject to some exclusions) and the effect is the same as if the document had been served in New Zealand. All types of proceedings may be served in Australia without the need to apply for leave.
Proceedings served in Australia must be accompanied by a notice in the prescribed form setting out the steps that the defendant must or may take in relation to the proceedings and the consequences of service upon the defendant. Failure of a party to serve this notice does not invalidate the proceeding or a step in it, but the court may make an order setting aside the proceeding or a step in it if the notice has not been served.
If the defendant wishes to file an appearance or response once served, they have the longer of 30 working days or the period provided for in the relevant procedural rules to do so. This is consistent with the period in which response documents are required to be filed by parties served in other overseas jurisdictions.
Most appropriate forum
The TTPA changes the way that the most appropriate forum is determined. Previously, the court was bound to dismiss proceedings that had been served without leave and were subject to a protest to jurisdiction by the defendant unless the plaintiff could convince the court to assume jurisdiction.1 In deciding whether to assume jurisdiction, the court would weigh the strength of the plaintiff’s case against the defendant and all of the circumstances of the case.2
Now, under the TTPA, the defendant may apply to the court for a stay of the proceeding within 30 working days of service on the grounds that an Australian court is the more appropriate forum for the proceeding. The court has the discretion to stay the proceeding if it is satisfied that an Australian court has jurisdiction to determine the matters in issue and is the more appropriate court to determine those matters. In determining whether the Australian court is the more appropriate court, the court must take into account eight matters which are listed in s24(2). Many cases under R6.29 considered some of the factors set out in s24(2), so will provide guidance on how the court may deal with these matters. The main change is that the court is now required to consider each of the eight matters in every case.
The cases under R6.29 focus heavily on the strength of the plaintiff’s case as a determining factor. The strength of the plaintiff’s case is not one of the matters in s24(2), but could be covered by the catch-all provision in subsection (h), which incorporates any other matters the court considers relevant. It is also interesting to note that the corresponding Australian TTPA s(19) expressly prohibits the court from taking into account the fact that the proceeding was commenced in Australia. There is no such prohibition in the New Zealand TTPA and if the court considered that matter relevant, it would be entitled under subsection (h) to take into account the country of origin of the proceedings.
Exclusive choice clauses
A factor considered in pre-TTPA cases was whether the parties had agreed upon an exclusive choice of court in their contract.
The TTPA, in s25, puts greater weight on exclusive choice of court agreements and requires the court to give effect to these agreements in most circumstances. There are some exceptions set out in s25(2) including where the agreement is null and void; a party lacked capacity; it would lead to manifest injustice; it could not reasonably be performed due to reasons beyond the control of the parties; and the chosen court has decided not to determine the matter. However, it is likely that in most cases the court will give effect to the clause.
Registration and enforcement of judgments
The TTPA creates a code for dealing with the enforcement of Australian judgments in New Zealand. Judgments which meet the definition of a “registrable Australian judgment” in s54 may be registered in New Zealand under the TTPA (s56). For most civil proceedings this requires the judgment to be a final and conclusive judgment given in an Australian court. Unlike the previous legislation, the Reciprocal Enforcement of Judgments Act 1934, the TTPA does not distinguish between money and non-money judgments in general civil proceedings.
To register a judgment, a party must apply to the New Zealand court in the prescribed form within six years of the judgment being delivered. Once a judgment has been registered, it has the same force and effect for enforcement as if it were a judgment given in the court where it has been registered.3
The TTPA provides that registration may be set aside on application by a liable person within 30 days after being served with notice of the registration if the court is satisfied that the judgment was registered in contravention of the TTPA or that enforcement would be contrary to public policy or the judgment related either to immovable property or movable property in an action in rem which was outside Australia at the time of the original proceeding (s61). The court also has the power to stay enforcement of a registered judgment to allow the liable party to challenge the judgment in Australia (s65).
Some matters are excluded from the TTPA. Matters which are excluded from the TTPA as a whole include the dissolution of a marriage; spousal/partner maintenance; and child support. Other matters are excluded only from certain provisions of the TTPA. For example, interim payments, discovery, warrants for arrest of property and matters relating to trans-Tasman evidence4 are matters excluded from the interim relief a New Zealand court can grant in an Australian proceeding (s31(2)).
Interestingly, the excluded interim relief is not identical in the corresponding Australian TTPA provision, which excludes only a warrant for arrest of property from the interim relief that an Australian court can grant in a New Zealand proceeding. The TTPA also excludes certain types of proceeding from registration (s54(2)), recognition and enforcement.5
The procedural ease of proceedings under the TTPA is likely to lead to increased litigation between trans-Tasman parties. It is therefore important for practitioners under the TTPA to have experience in civil procedure in both Australia and New Zealand. There is also likely to be an increase in exclusive choice of court clauses in contracts given the force of these clauses in the TTPA.
In terms of the s22 procedure to stay proceedings in favour of a more appropriate jurisdiction, it may be the case that Australian courts are more likely to grant such a stay than New Zealand courts. Australian courts are more familiar with and ready to facilitate the transfer of proceedings to other jurisdictions due to the country’s federation arrangements.6 It is also the case that New Zealand courts are entitled to take into account the country of origin of the proceedings, whereas the Australian courts are prohibited from doing so.
Kimberly Jarvis is a barrister at Kelly Chambers with Raelene Kelly. Together they have experience in New Zealand and Australian jurisdictions and particular interest in Trans-Tasman proceedings.
- High Court Rule 6.29.
- Kuwait Asia Bank EC v National Mutual Life Nominees Ltd (No 2)  2 NZLR 50 (CA) at 54, upheld by the Privy Council in Kuwait Asia Bank EC v National Mutual Life Nominees Ltd  3 NZLR 513 (PC) at 522-525.
- S63 TTPA. This is provided that notice of the registration has been served on every liable person. If notice has not been served, then the judgment is enforceable as a New Zealand judgment only after 45 working days after the day of registration.
- Under sub-parts 1 & 2 of Part 4 of the Evidence Act 2006.
- See Trans-Tasman Proceedings (Specified Australian Insolvency Judgments Excluded From Recognition or Enforcement in New Zealand and Excluded Matter) Order 2013, clauses 4 & 5.
- See for example s5 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Clth) and mirror legislation in each state.
Last updated on the 17th March 2016