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					        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
help:
 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
Zealand court.

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.


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      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
      above).


      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
                                                             refusing enforcement.
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.




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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).




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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
                                                                judgment debt.
                                                               Public policy exception to
                                                                enforcement available and enforce
                                                                through High Court (or Australian
                                                                equivalents).
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).
                     legislation.




      What regimes for legal co-operation already exist between New Zealand and
      Australia?

      New Zealand and Australia have already put in place several innovative regimes for
      legal co-operation.

         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.




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   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
sovereignty?

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
familiar.

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
proposals?

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.




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Who is the ‘Working Group’?

The Working Group was set up by the Australian and New Zealand Prime Ministers
in 2003.

It is made up of senior officials from Australian and New Zealand government
departments, including:

In New Zealand:
 Ministry of Justice.
 Ministry of Economic Development.
 Ministry of Foreign Affairs and Trade.
 Department of the Prime Minister and Cabinet.

In Australia:
 Attorney-General‟s Department.
 Treasury.
 Department of the Prime Minister and Cabinet.




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