Trans-Tasman Court Proceedings and Regulatory Enforcement:
A Public Discussion Paper by the Trans-Tasman Working Group
Questions and Answers
What is the purpose of this work?
The Working Group has been considering the potential for greater co-operation in
relation to civil proceedings and regulatory enforcement. Developing a more
coherent framework for trans-Tasman legal co-operation in civil proceedings could
Resolve trans-Tasman disputes more efficiently, effectively and at lower cost.
Reduce barriers to trade.
Contribute to the success of CER.
We currently handle cross-border disputes involving Australia with the same caution
as other countries with unfamiliar legal systems. Yet New Zealand and Australia
have a great deal of trust and confidence in each other‟s legal systems, which share
a common heritage. This trust and confidence is already reflected in existing legal
co-operation regimes with Australia and it is now time to build on their success.
What is the practical impact of these proposals?
There are a number of situations where there are problems enforcing civil court
judgments, civil penalties and certain criminal fines across the Tasman. The
proposals would resolve these problems.
The practical impact is best illustrated by some examples of the current problems.
Example 1 – Enforcement of judgments
Bill builds a house in New Zealand, sells it to Anna and moves to Australia. Anna
later finds a problem with the house and starts court proceedings here against Bill.
The proceedings are served on Bill in Australia but he ignores it and takes no action.
Anna obtains a court judgment by default against Bill for payment of damages. Anna
now wants to enforce that judgment against Bill in Australia but cannot do so. This is
because Bill was served out of New Zealand and did not appear before the New
Example 2 – enforcement of certain criminal fines
S Ltd is an Australian based company. It offers an investment scheme to New
Zealanders. There is a misleading statement in its investment offer documents. S
Ltd is registered as an overseas company in New Zealand and has appointed an
agent to accept service of legal proceedings in New Zealand. S Ltd is prosecuted
under the Securities Act and the Court imposes a fine. However, because S Ltd has
moved all its assets out of New Zealand and back to Australia, it is not possible to
enforce payment of the fine.
Example 3 – Limits on enforcing non-money judgments
Boris and Jane, a married couple in New Zealand, decide to separate. They go to
the New Zealand Family Court for a decision about how to divide their relationship
property. The Court orders Boris to return jewellery to Jane, but Boris moves to
Australia taking it with him. Rules about enforcing judgments between Australia and
New Zealand only apply to judgments about money. The New Zealand Court order
can‟t be enforced in Australia because it requires Boris to do something (return
property), not to pay money. Jane therefore can‟t enforce the judgment.
Do the proposals affect only businesses?
No. While they do have important implications for businesses with dealings across
the Tasman, the proposals will also help people resolve some personal disputes
where, for example, one party has moved across the Tasman (see the examples
What are the proposals?
The Working Group has identified a number of problems in civil proceedings with a
trans-Tasman element, and in the enforcement of regulatory regimes. The table
below describes the problems and the Working Group‟s proposed solutions.
Issue Problem Proposed solution
1. Enforcing Service on defendant means court Allow proceedings in one country to
court can hear a case. be served in the other, without
judgments Defendant can be served overseas, additional requirements.
if conditions met. Defendant not able to ignore
Final money judgments enforceable proceedings but could apply for a
in the other country. stay on grounds a court in other
But if defendant served overseas country is appropriate to hear
and takes no steps in the dispute.
proceedings, judgment not Judgments registered and
enforceable in other country. enforceable in other country.
Public policy grounds only basis for
2. Final non- Only final money judgments can be Extend range of enforceable
money enforced across the Tasman. judgments to include those
judgments Other orders (eg order requiring requiring someone to do, or not do,
defendant to return a specific item something.
of property) are not enforceable. Some exclusions, eg orders about
wills and care/welfare of children.
Issue Problem Proposed solution
3. Interim Interim relief (eg freezing assets Give courts in both countries statutory
relief in until court makes final decision) not power to grant interim relief in support
support of available from a court in one of proceedings in the other country.
foreign country to support proceedings in
proceedings the other country.
Instead need to start new full
proceedings in country where
interim relief sought.
4. Tribunal Many tribunals decide disputes like Allow some decisions of particular
order a court. tribunals to be enforced in the other
Tribunal orders are not enforceable country.
in the other country. Allow some tribunals to use the
service proposal in Issue 1.
5. Forum non New Zealand and Australia apply Adopt a common statutory test
conveniens potentially inconsistent „give way‟ requiring a court in one country to give
rules rules if courts in both countries way if a court in the other country is the
could decide a dispute. appropriate court to decide the dispute.
If proceedings on the same dispute
in each country, possible neither
court would give way.
6. Leave Subpoena (summons requiring a Allow lower court judges to give
requirement person to give evidence in court) permission to serve a subpoena across
for trans- from one country can be served on the Tasman in proceedings before that
Tasman a witness in the other. Permission court or a tribunal.
subpoena of a High Court judge required.
But District Court proceedings
require permission from High Court,
adding cost, complexity and delay.
7. Court Video links already used for trans- Specifically allow parties or counsel
appearance Tasman evidence. wishing to appear by technology to
by video link Greater use could reduce cost and do so with court‟s agreement (civil
inconvenience of physically cases).
attending a court in the other Allow as of right when applying to
country. stay proceedings in the other
country (under Issue 1).
Issue Problem Proposed solution
8. Enforcing Civil pecuniary penalty orders from Allow all civil pecuniary penalty
civil penalty a court in one country not orders from one country to be
orders enforceable in other country. enforced in the other (Issue 1
Long-standing rule against regime).
enforcing another country‟s Public policy exception to
penalties but strong mutual interest enforcement.
in the effectiveness each other‟s A country could exclude particular
regulatory regime. civil penalty regimes from the other
if it wished.
9. Enforcing Criminal fines are not enforceable Allow criminal fines under
fines for in the other country as a penalty. regulatory regimes that impact on
particular Impairs effective enforcement of the integrity and effectiveness of
regulatory regulatory regimes in which each trans-Tasman markets to be
offences country has a strong mutual enforced in other country.
interest. Enforce in same way as a civil
Public policy exception to
enforcement available and enforce
through High Court (or Australian
10. Trans- Trans-Tasman evidence regime Extend trans-Tasman subpoenas
Tasman subpoenas not available in criminal regime to criminal proceedings.
subpoenas in proceedings. Adequate safeguards in the
criminal Must use less convenient regime‟s existing protections (eg
proceedings procedures such as Mutual leave of judge, applying to set aside
Assistance in Criminal Matters if complying causes hardship).
What regimes for legal co-operation already exist between New Zealand and
New Zealand and Australia have already put in place several innovative regimes for
In 1994 both countries enacted legislation that allows a subpoena (a summons
requiring a witness to give evidence in court) issued by a court in one country to
be served in the other country, in certain types of civil proceedings. This
legislation also enables courts to take evidence and hear submissions by video
link or telephone conference from a person in the other country. This regime has
worked very successfully.
Traditional common law rules mean that countries will usually refuse to enforce
tax judgments from another country. However, this rule has not applied between
Australia and New Zealand since 1992.
New Zealand also doesn‟t normally enforce judgments issued by “inferior courts”
of another country. An “inferior court” is one below the level of what we refer to
as the High Court. However, this rule has not applied between Australia and New
Zealand since 1992.
Do the Working Group’s proposals encroach on Australia or New Zealand’s
No. The proposals recognise that Australia and New Zealand are very comfortable
with the way each other‟s legal system works. Significant gains can be made by not
treating each other as cautiously as we do countries whose legal systems are not so
There is no suggestion of integrating the justice systems of the two countries, or that
our legal systems should work in exactly the same way. Australia and New
Zealand‟s legal systems will remain independent of each other, it‟s just that some of
the rules about how they co-operate with each other would be relaxed.
Some people might consider the proposals to enforce each other‟s civil penalties,
and certain criminal fines, as encroaching on sovereignty. This is because there
have been traditional common law rules about not enforcing the punitive laws of
another country. However, the Working Group considers that both Australia and
New Zealand can benefit significantly from these proposals, particularly by ensuring
that organisations or individuals operating on a trans-Tasman basis cannot avoid
penalties or fines in one country by, for example, keeping their assets in the other. It
has proposed safeguards that allow each country to protect its sovereignty.
What is the process after the Working Group receives submissions on its
The Working Group will consider all the submissions it receives. It will then reach an
agreed position and make recommendations to both countries‟ governments.
If both governments accept the Working Group‟s recommendations, their agreement
could be recorded in a treaty or other formal arrangement. Legislation could then be
developed to implement the agreement.
There would be further consultation on the detailed implementation of the agreement
at that stage.
The Working Group anticipates being in a position to make recommendations to both
countries‟ governments during 2006.
Who is the ‘Working Group’?
The Working Group was set up by the Australian and New Zealand Prime Ministers
It is made up of senior officials from Australian and New Zealand government
In New Zealand:
Ministry of Justice.
Ministry of Economic Development.
Ministry of Foreign Affairs and Trade.
Department of the Prime Minister and Cabinet.
Department of the Prime Minister and Cabinet.