Chapter 13 - Miscellaneous provisions of the Judicature Act 1908

Part 1A – Trans-Tasman proceedings

Trans-Tasman proceedings are governed by the provisions of the Trans-Tasman Proceedings Act 2010 (“TTPA”), Part 4 of the Evidence Act 2006 and Part 1A of the Judicature Act 1908. The Australian counterpart legislation is contained in one Act, the Trans-Tasman Proceedings Act 2010 (Cth).

Part 1A was inserted into the Judicature Act 1908 as from 1 July 1990.371 It contains provisions that apply to Australian and New Zealand proceedings relating to the taking advantage of market power in trans-Tasman markets, namely:

  • proceedings in the High Court under specified provisions of the Commerce Act 1986, but that may be tried or heard in Australia;372 and
  • proceedings in the Federal Court of Australia under specified provisions of the Trade Practices Act 1974 (Cth), but that may be tried or heard at a sitting of that court in New Zealand.373

The provisions in Part 1A cover matters such as the circumstances in which the High Court may order New Zealand proceedings to be heard in Australia, subpoenas, the administration of oaths, contempt of the Federal Court of Australia, and arrangements to facilitate sittings of the New Zealand High Court in Australia, and the Federal Court of Australia in New Zealand.

Twenty years after the insertion of Part 1A, the TTPA was passed by the New Zealand Parliament. It implements the Agreement between the Government of New Zealand and the Government of Australia on Trans-Tasman Court Proceedings and Regulatory Enforcement, signed on 24 July 2008. Its purposes also include streamlining the process for resolving civil proceedings with a trans-Tasman element in order to reduce costs and improve efficiency, and minimising impediments to enforcing certain Australian judgments and regulatory sanctions.374 (At the time of writing, the operative provisions of the Act are not yet in force.)

The TTPA provides for the following matters:

  • service in Australia of initiating documents for civil proceedings commenced in New Zealand courts and tribunals;
  • New Zealand courts declining jurisdiction and, by order, staying proceedings in New Zealand on the grounds that an Australian court is the more appropriate forum to determine the proceedings;
  • New Zealand courts giving interim relief in support of civil proceedings commenced in Australian courts;
  • parties and counsel in Australia appearing remotely in civil proceedings in New Zealand courts (and parties and counsel in New Zealand appearing remotely in Australian civil proceedings);375
  • recognition and enforcement in New Zealand of specified judgments of Australian courts and tribunals; and
  • amendments to the Evidence Act 2006 provisions dealing with subpoenas.

Section 6 of the TTPA provides that nothing in that Act limits or affects Part 1A of the Judicature Act 1908, so the specific provisions in Part 1A remain untouched by the more general later legislation.

At the time the TTPA was being drafted, there were already provisions dealing with the trans-Tasman subpoena and evidence regime in the Evidence Act 2006. These provisions were left in the Evidence Act 2006, with modifications, largely because that Act was so new. Trans-Tasman proceedings are just one part of the Evidence Act 2006 provisions relating to evidence from overseas or to be used overseas.

Since all of the relevant provisions would not be contained in the TTPA, there was no impetus at the time to shift the provisions in Part 1A of the Judicature Act 1908 to the TTPA.

The TTPA applies to trans-Tasman proceedings generally. It covers some, but not all, of the elements of the Part 1A regime, which applies only to a narrow class of proceedings. While the TTPA deals with the recognition and enforcement in New Zealand of judgments given in Australian trans-Tasman proceedings, Part 1A goes further by allowing the New Zealand High Court to sit in Australia in certain circumstances, and provides support for the Australian Federal Court to sit in New Zealand.

Part 1A of the Judicature Act 1908 clearly needs to be retained, but it may be a better fit with the provisions of the TTPA than with the new courts legislation. We are considering leaving Part 1A out of the draft Courts Bill and providing for the entire Part to be moved, without substantive amendment, to the TTPA, where it may be more accessible to users. However, it would not bring all of the provisions relating to trans-Tasman proceedings into one place, as some are contained in the Evidence Act 2006.

Q36

Should the provisions in Part 1A of the Judicature Act 1908 be included in a new consolidated Courts Bill, or in the Trans-Tasman Proceedings Act 2010?

Judicature Amendment Act 1990, s 3.

Commerce Act 1986, ss 36A, 98H or 99A.

Trade Practices Act 1974 (Cth), ss 46A, 155A or 155B.

Trans-Tasman Proceedings Act 2010, s 3.

Other than to give, examine a person giving, or making submissions in relation to, remote evidence, under ss 168 to 172 of the Evidence Act 2006.