Trans-Tasman Proceedings Regulations 2011 Regulations 2011

Part 1 Preliminary

1 Name of regulation

This regulation is the Trans-Tasman Proceedings Regulation 2012.

2 Commencement

This regulation commences on the commencement of sections 3 to 110 of the Trans-Tasman Proceedings Act 2010.

3 Definitions

In this regulation:

Act means the Trans-Tasman Proceedings Act 2010.

Cth is short for ‘Commonwealth of Australia’.

NZ is short for ‘New Zealand’.

registrable NZ judgement has the meaning given by section 66 of the Act.

Note Several other words and expressions used in this regulation have the meaning given by section 4 of the Act, for example:

 liable person

 plaintiff.

4 Forms

A reference in a provision of this regulation to a form by number is a reference to the form of that number in Schedule 1.

Note A form must be completed in accordance with any directions specified in the form, but the directions may be omitted from the completed document.

Part 2 Service in NZ of initiating document

5 Information to be given to defendant

For subsection 11 (1) of the Act, an initiating document served in NZ under section 9 of the Act must contain or be accompanied by a notice in accordance with Form 1.

Part 3 Application to stay proceeding on forum grounds

6 Request for hearing of stay application

A request by a person mentioned in paragraph 18 (2) (a), (b) or (c) of the Act for a hearing to determine an application made under section 17 of the Act may be made in accordance with Form 2.

7 Request for remote appearance

A request by a defendant under paragraph 18 (4) (b) of the Act to appear remotely in a hearing may be made in accordance with Form 3.

Part 4 Australian courts granting interim relief

8 Australian courts to which application for interim relief may be made

For paragraph 25 (d) of the Act, the following Australian courts are prescribed:

(a) Federal Magistrates Court;

(b) County Court (Victoria);

(d) District Court of Queensland;

(e) Magistrates Courts (Queensland);

(f) The District Court of Western Australia;

(g) Magistrates Court (Western Australia);

(h) Family Court of Western Australia;

(i) Magistrates Court (Australian Capital Territory);

(j) Local Court (Northern Territory).

Part 5 Subpoenas

9 Australian courts and tribunals to which Division 2 of Part 5 of the Act applies

For paragraph 29 (1) (b) of the Act, the following State and Territory courts are prescribed:

(a) Supreme Court of New South Wales;

(b) District Court of New South Wales;

(d) Children’s Court of New South Wales;

(e) Dust Diseases Tribunal of New South Wales;

(f) Supreme Court of the State of Victoria;

(g) County Court (Victoria);

(h) Magistrates’ Court of Victoria;

(i) Supreme Court of Queensland;

(j) District Court of Queensland;

(k) Magistrates Courts (Queensland);

(l) Planning and Environment Court (Queensland);

(m) Land Court (Queensland);

(n) Childrens Court of Queensland;

(o) Industrial Court of Queensland;

(p) Supreme Court of Western Australia;

(q) The District Court of Western Australia;

(r) Magistrates Court of Western Australia;

(s) Family Court of Western Australia;

(t) Supreme Court of South Australia;

(u) District Court of South Australia;

(v) Magistrates Court of South Australia;

(w) Supreme Court of Tasmania;

(x) Magistrates Court (Civil Division) (Tasmania);

(y) Supreme Court of the Australian Capital Territory;

(z) Magistrates Court (Australian Capital Territory);

(za) Supreme Court of the Northern Territory of Australia;

(zb) Local Court (Northern Territory);

(zc) Court of Summary Jurisdiction (Northern Territory);

(zd) Youth Justice Court (Northern Territory);

(ze) Work Health Court (Northern Territory).

10 Notice to accompany subpoena

For paragraph 32 (2) (b) of the Act, Form 4 is prescribed.

11 Receipt of documents and things required by subpoena

(1) For paragraph 44 (1) (b) of the Act, the following State and Territory courts are prescribed, and for subsection 44 (2) of the Act, each registry of those courts is specified:

(a) Supreme Court of New South Wales;

(b) Local Court of New South Wales;

(d) Dust Diseases Tribunal of New South Wales;

(e) Supreme Court of the State of Victoria;

(f) Country Court (Victoria);

(g) Supreme Court of Queensland;

(h) Supreme Court of Western Australia;

(i) The District Court of Western Australia;

(j) Magistrates Court of Western Australia;

(k) Family Court of Western Australia;

(l) Supreme Court of South Australia.

(2) In addition, the following courts are prescribed, and the registries mentioned for those courts are specified:

(a) Launceston and Burnie registries of the Supreme Court of Tasmania;

(b) Darwin and Alice Springs registries of the Supreme Court of the Northern Territory of Australia;

(d) Darwin, Alice Springs, Katherine, Tennant Creek and Nhulunbuy registries of the Court of Summary Jurisdiction (Northern Territory).

Part 6 Remote appearances

12 Remote appearances unrelated to remote evidence

For paragraph 47 (1) (b) of the Act, the following Australian tribunals are prescribed:

(a) Victorian Civil and Administrative Tribunal;

(b) Queensland Civil and Administrative Tribunal;

(d) ACT Civil and Administrative Tribunal.

13 Remote appearances related to remote evidence

For paragraph 49 (1) (b) of the Act, the following State and Territory courts are prescribed:

(a) Supreme Court of New South Wales;

(b) District Court of New South Wales;

(d) Children’s Court of New South Wales;

(e) Dust Diseases Tribunal of New South Wales;

(f) Supreme Court of the State of Victoria;

(g) County Court (Victoria);

(h) Magistrates’ Court of Victoria;

(i) Supreme Court of Queensland;

(j) District Court of Queensland;

(k) Magistrates Courts (Queensland);

(l) Planning and Environment Court (Queensland);

(m) Land Court (Queensland);

(n) Childrens Court of Queensland;

(o) Industrial Court of Queensland;

(p) Supreme Court of Western Australia;

(q) The District Court of Western Australia;

(r) Magistrates Court of Western Australia;

(s) Family Court of Western Australia;

(t) Supreme Court of South Australia;

(u) District Court of South Australia;

(v) Magistrates Court of South Australia;

(w) Supreme Court of Tasmania;

(x) Supreme Court of the Australian Capital Territory;

(y) Magistrates Court (Australian Capital Territory);

(z) Supreme Court of the Northern Territory of Australia;

(za) Local Court (Northern Territory);

(zb) Court of Summary Jurisdiction (Northern Territory);

(zc) Youth Justice Court (Northern Territory);

(zd) Work Health Court (Northern Territory).

14 Courts and tribunals that may provide assistance to NZ courts and tribunals

(1) For paragraph 63 (2) (c) of the Act, the following State and Territory courts are prescribed:

(a) Supreme Court of New South Wales;

(b) Local Court of New South Wales;

(d) Dust Diseases Tribunal of New South Wales;

(e) Supreme Court of the State of Victoria;

(f) County Court (Victoria);

(g) Magistrates’ Court of Victoria;

(h) Supreme Court of Queensland;

(i) Supreme Court of Western Australia;

(j) The District Court of Western Australia;

(k) Magistrates Court of Western Australia;

(l) Family Court of Western Australia;

(m) Supreme Court of South Australia;

(n) Supreme Court of Tasmania;

(o) Supreme Court of the Australian Capital Territory;

(p) Supreme Court of the Northern Territory of Australia;

(q) Local Court (Northern Territory);

(r) Court of Summary Jurisdiction (Northern Territory).

(2) For paragraph 63 (2) (d) of the Act, the Victorian Civil and Administrative Tribunal is prescribed.

Part 7 Recognition and enforcement of judgements

15 Regulatory regime criminal fines

(1) For the definition of regulatory regime criminal fine in section 4 of the Act, a regulatory regime criminal fine is a fine for a criminal offence under:

(a) a provision of the following NZ Acts:

(i) Agricultural Compounds and Veterinary Medicines Act 1997 (NZ);

(ii) Companies Act 1993 (NZ);

(iii) Credit Contracts and Consumer Finance Act 2003 (NZ);

(iv) Fair Trading Act 1986 (NZ);

(v) Financial Markets Authority Act 2011 (NZ);

(vi) Financial Reporting Act 1993 (NZ);

(vii) Financial Service Providers (Registration and Dispute Resolution) Act 2008 (NZ);

(viii) Food Act 1981 (NZ);

(ix) Insurance (Prudential Supervision) Act 2010 (NZ);

(x) Securities Act 1978 (NZ);

(xi) Securities Markets Act 1988 (NZ);

(xii) Takeovers Act 1993 (NZ);

(xiii) Unit Trusts Act 1960 (NZ);

(b) a provision of the Commerce Act 1986 (NZ), other than a provision in Subpart 9 or 10 of Part 4;

(d) one or more of the following provisions of the Medicines Act 1981 (NZ):

(i) sections 17, 20, 24, 36, 38, 41, 42, 59 and 78;

(ii) subsection 18 (5);

(e) a provision in Part 4, 5 or 5D of the Reserve Bank of New Zealand Act 1989 (NZ).

(2) The reference in subsection (1) to a provision (an Act provision) includes a reference to any provision of any subordinate legislation (however described) that is made:

(a) under a NZ Act; and

(b) in connection with, or for the purposes of, the Act provision.

(3) Subsection (1) applies even if the criminal offence under the provision relates to a contravention of, or relates to a fine in or calculated under, or is extended in its application or operation by, any other provision in or made under a NZ Act.

16 Judgements that are not registrable NZ judgements

For paragraph 66 (2) (j) of the Act, a judgement is not a registrable NZ judgement if it relates wholly or in part to an order made by a NZ court:

(a) under the Insolvency (Cross-border) Act 2006 (NZ):

(i) recognising an Australian or foreign (other than NZ) proceeding; or

(ii) providing a discretionary remedy in relation to an Australian or foreign proceeding, if the order is made:

(A) on or after the filing of an application for recognition of the proceeding and before the application is decided; or

(B) on or after recognition of the proceeding; or

(b) under NZ domestic insolvency laws—commencing a proceeding and appointing a representative, if the order is subject to recognition in Australia under the Cross-Border Insolvency Act 2008.

17 Application for registration of NZ judgement

(1) For paragraph 67 (5) (a) of the Act, Form 5 is prescribed.

(2) For paragraph 67 (5) (b) of the Act:

(a) if the court is able to receive an application by fax or email—the application may be filed by fax or email; and

(b) a sealed, certified or otherwise authenticated copy of the NZ judgement must be physically filed at the court in hard copy:

(i) with the application; or

(ii) if the application is filed by facsimile or email—within 15 working days after the application is filed.

18 Rate of exchange

For subsection 69 (2) of the Act, the rate of exchange on the conversion day, within the meaning of paragraph 69 (1) (b) of the Act, is the rate of exchange published for that day by the Reserve Bank of Australia.

Note The Reserve Bank of Australia exchange rate is published at www.rba.gov.au.

19 Notice of registration of NZ judgement

(1) For paragraph 73 (2) (a) of the Act, Form 6 is prescribed.

(2) For paragraph 73 (2) (b) of the Act, the notice must be given to each liable person by:

(a) delivering the notice by registered post to the liable person’s last known address; or

(b) handing the notice to the liable person.

Schedule 1 Forms

(section 4)

Form 1 Notice to defendant served in NZ

(section 5)

Please read this notice and the attached document(s) very carefully.

If you have any trouble understanding these documents, you should get legal advice as soon as possible.

The plaintiff has commenced a proceeding against you in the [Australian commencement court or tribunal]. Attached to this notice is a/are [name(s) of document(s)] (‘the attached document(s)’) filed in the [Australian commencement court or tribunal].

Service of the attached document(s) in NZ is authorised by the Trans‑Tasman Proceedings Act 2010 (Cth).

Consequences of the attached document(s) being served on you

The [Australian commencement court or tribunal] can consider, and make a decision on, any claim set out in the attached document(s).

The [Australian commencement court or tribunal]’s decision on this claim (its judgement) may be enforced in Australia or NZ.

Your rights to apply for the proceeding to be stayed

If a court in NZ is the more appropriate court to decide the claim set out in the attached document(s), you may be able to have the proceeding stayed by applying to the [Australian commencement court or tribunal]. If the proceeding is stayed, the claim cannot proceed in the [Australian commencement court or tribunal].

You have 30 working days from the day on which you are served with the attached document(s) to apply for the proceeding to be stayed.

If you think the proceeding should be stayed, it is recommended you get legal advice as soon as possible.

Contesting this claim

If you want to contest this claim, you must take any action set out in the attached document(s) as being necessary to contest the claim. You have 30 working days,1 after the day on which you are served with the attached document(s), to respond.

The [name of appearance or response document] must contain an address in Australia or NZ where documents can be left for you or sent to you.

1 If the procedural rules of the Australian commencement court or tribunal would allow a longer period than 30 working days for filing an appearance or response document in the case of service within Australia, substitute that longer period.

Form 2 Request for a hearing of defendant’s application for stay of an Australian civil proceeding

(section 6)

To the Registrar of the [Australian commencement court or tribunal] at [place]

and

To [name of other party to the proceeding]

This document notifies you that —

The [plaintiff / defendant*], [name], requests that the [Australian commencement court or tribunal] determine with a hearing the defendant’s application under section 17 of the Trans-Tasman Proceedings Act 2010 (Cth) for an order staying the proceeding.

Date:

Signature:

[Plaintiff/Defendant/Solicitor for Plaintiff/Solicitor for Defendant/ Counsel for Plaintiff/Counsel for Defendant*]

*Select one

Form 3 Request to appear remotely in the hearing of an application for stay of Australian civil proceeding

(section 7)

[Heading]

To the Registrar of the [Australian commencement court or tribunal]

1. The [defendant/defendant’s counsel/defendant and defendant’s counsel*] requests under section 18 of the Trans-Tasman Proceedings Act 2010 (Cth) (‘the Act’) to appear remotely in the hearing of the defendant’s application for a stay of the proceeding.

2. The defendant was [served/purportedly served*] in NZ under section 9 of the Act with the initiating document for the proceeding.

3. The [Australian commencement court or tribunal] is determining with a hearing the defendant’s application under section 17 of the Act for an order staying the proceeding.

4. A remote appearance medium is, or can reasonably be made, available for the hearing.

5. The remote appearance can be made from [place in NZ].

6. The [audio link/audiovisual link*] facilities are available at [courtroom or other place in NZ where remote appearance is to be made].

7. I estimate that the remote appearance will take [amount of time for remote appearance].

Date:

Signature:

(Defendant/Defendant’s counsel*)

*Select one

Form 4 Notice to accompany subpoena

(section 10)

NOTICE TO WITNESS

THIS NOTICE IS VERY IMPORTANT

Please read this notice and the attached document(s) very carefully.

If you have any trouble understanding them you should get legal advice as soon as possible.

Attached to this notice is a subpoena. [If the process served is not called a subpoena, substitute the name of the process for the word ‘subpoena’ throughout this notice.]

The subpoena has been issued by [court or tribunal that issued the subpoena].

The subpoena may be served in NZ under section 30 of the Trans-Tasman Proceedings Act 2010 (Cth).

This notice:

sets out your rights relating to the subpoena; and
sets out your obligations relating to the subpoena; and
includes information about how you may apply to have the subpoena set aside.

YOUR RIGHTS

1. You are entitled to receive payment of an amount equal to the reasonable expenses you incur in complying with the subpoena.

2. An amount of money, or money and vouchers, that is sufficient to meet your reasonable expenses of complying with the subpoena must be given to you within a reasonable time before the date for compliance with the subpoena (see below: ‘YOUR OBLIGATIONS’).

3. If, in complying with the subpoena, you incur expenses that are more than the amount that was given to you before you complied, you may obtain an order from the [court or tribunal that issued the subpoena] that you be paid the additional amount you incurred.

4. You may apply to the [court that gave leave for the subpoena to be served] to have the subpoena wholly or partly set aside. If you wish to apply to have the subpoena set aside you should get legal advice as soon as possible.

5. An application can be made and determined by that court without you having to go to Australia, or to retain Australian solicitors. All necessary arrangements can be made in NZ.

Note Details of some of the grounds on which a subpoena can be set aside, and the procedures for setting aside a subpoena, are set out at the end of this notice.

YOUR OBLIGATIONS

1. Unless the subpoena is set aside, you must comply with the subpoena if:

(a) when the subpoena was served on you, or at some reasonable time before the date specified in the subpoena for compliance with it, you were offered or given either:

(i) enough money to meet your reasonable expenses in complying with it, including any travel and accommodation expenses; or

(ii) a combination of money and vouchers (for example, travel tickets) to meet those expenses; and

(b) you were given, with the subpoena, a copy of an order by a judge giving leave to serve the subpoena in NZ; and

(c) the subpoena was served on you before or on the date specified in the order as the last day on which the subpoena may be served; and

(d) service of the subpoena complied with any other conditions specified in the order; and

(e) when the subpoena was served on you, you were over the age of 18 years.

2. If the subpoena only requires you to produce documents or things, it must specify the date on which the documents or things are required for production in the court or tribunal that issued the subpoena. You may comply with the subpoena by producing the documents or things at a registry of the High Court of New Zealand no later than 10 days before the date specified for production in the subpoena. When you produce the documents or things at the registry you will be required to produce the subpoena and to pay the cost of sending the documents or things to the court or tribunal that issued the subpoena. You will be able to pay that cost out of the money given to you to meet your reasonable expenses of complying with the subpoena.

FAILURE TO COMPLY WITH THE SUBPOENA

If you do not comply with this subpoena you may be arrested and taken before the High Court of New Zealand. Unless the High Court is satisfied that failure to comply should be excused, a fine not exceeding NZ$10,000 may be imposed.

GROUNDS FOR SETTING ASIDE A SUBPOENA

1. If you apply for the subpoena to be set aside, the court must set aside the subpoena if the subpoena requires you to attend at a place in Australia and:

(a) you do not have necessary travel documents and cannot reasonably get them within the time allowed for compliance with the subpoena; or

(b) compliance with the subpoena would make you liable to be detained for the purpose of serving a sentence; or

(d) you are liable to the imposition of a penalty in a civil proceeding in Australia (other than a proceeding under the Competition and Consumer Act 2010 (Cth)); or

(e) the court is satisfied that you are subject to a restriction on your movements imposed by law or an order of a court that is inconsistent with you complying with the subpoena (for example, bail conditions, release conditions, or terms of a community based sentence).

2. The court may set aside the subpoena on other grounds, including:

(a) the evidence you would give in the proceeding can be obtained satisfactorily by other means without significantly greater expense; or

(b) compliance with the subpoena would cause you hardship or serious inconvenience; or

(i) that document or thing should not be taken out of NZ; and

(ii) satisfactory evidence of the contents of the document or satisfactory evidence of the thing can be given by other means.

Note The above list does not include all the matters the court will consider in an application to set aside a subpoena, but if any of the matters in the list apply to you they should be included in your application.

PROCEDURE FOR APPLYING TO SET ASIDE A SUBPOENA

1. Application must be made to the [court that gave leave for service of the subpoena in NZ].

2. You may fax your application to that court on [fax number of court].

3. Your application must contain an address for service in NZ or Australia. Any documents to be served on you will be delivered, faxed or posted to you at that address.

4. The Registrar of the [court that gave leave for service of the subpoena in NZ] will arrange for service of your application and any affidavit you lodge with your application.

5. The court may determine your application without a hearing unless you, or the person who requested that the subpoena be issued, asks for a hearing.

6. If there is a hearing, the court can direct that it be held by audio link or audiovisual link. In that case, you or your lawyer can take part in the hearing by audio link or by audiovisual link from a place in NZ.

7. If, in your application or within a reasonable time after lodging your application, you request that the hearing be held by audio link or audiovisual link, the court must hold the hearing by audio link or audiovisual link. However, in such a case, the court will determine which of audio link or audiovisual link will be used.

Form 5 Application to register a judgement under the Trans‑Tasman Proceedings Act 2010

(subsection 17 (1))

[Heading]

To the Registrar of the [Australian commencement court or tribunal]

The applicant applies under the Trans-Tasman Proceedings Act 2010 (Cth) to have the following judgement of the [NZ court or tribunal] registered in the Court.

A copy of the judgement is attached.

Details of parties to original proceeding

Plaintiff:1

Defendant:

Last known address of liable person:

Details of judgement2

Court or tribunal:

Judge:

Date of judgement:

Where made:

The judgement is, or is be to treated as, a registrable NZ judgement for the purposes of section 66 of the Trans-Tasman Proceedings Act 2010 (Cth) for the following reasons: [specify].

The judgement is, in terms of section 75 of the Trans-Tasman Proceedings Act 2010 (Cth), capable of being enforced in the original court or tribunal or in another NZ court or tribunal.

1 If the parties to the original proceeding were called the ‘applicant’ and ‘respondent’ rather than the ‘plaintiff’ and ‘defendant’, substitute those descriptions.

2 If not all provisions of the judgement are registrable, change to ‘Details of the registrable provisions’ and only provide details of the provisions for which registration is sought.

If the judgement is a money judgement

Amount: [expressed in the currency in which judgement was given].

The applicant [wants/does not want*] the judgement registered in the foreign currency in which it was given.

The applicant wants the judgement to be registered in [the currency in which judgement is to be registered].

Balance remaining payable: [expressed in the currency in which the judgement was given].

The rate of interest carried by the judgement by [NZ law under which it was given] is [rate]%. The amount of interest which, by that law, has become due up to the time of this application is [expressed in the currency in which the judgement was given].

If the judgement is for something other than the payment of money

Terms of judgement:

Costs

Costs of registration of the judgement: [specify the amount and the currency].

Costs of enforcing the judgement in the original court or tribunal: [calculated in accordance with section 77 of the Trans-Tasman Proceedings Act 2010 (Cth)].

[Attach all relevant documents showing costs incurred.]

I confirm that the information provided in this form is correct.

Date:

Signature:

[Applicant/Solicitor for Applicant/Counsel for Applicant*]

*Select one

Form 6 Notice to liable person of registration of a NZ judgement under the Trans‑Tasman Proceedings Act 2010

(subsection 19 (1))

Please read this notice very carefully.

If you have any trouble understanding the notice, you should get legal advice as soon as possible.

Attached to this notice is a copy of the judgement given by [NZ court or tribunal]. This judgement has been registered in the [Australian commencement court or tribunal] under the Trans-Tasman Proceedings Act 2010 (Cth).

Details of judgement

The particulars of the judgement that are entered in the records of the [Australian court in which judgement is registered] include the following:

If the judgement is one under which a sum of money is payable

(a) amount payable under the judgement—$ [specify the amount and the currency];

(b) interest payable under paragraph 67 (a) of the Trans-Tasman Proceedings Act 2010—$ [specify the amount and the currency].

If the judgement is not one under which a sum of money is payable

[specify the terms of the judgement]

Costs and expenses related to registration of the judgement

[specify the amount and the currency]

Costs and expenses related to attempted enforcement in original court or tribunal

[specify the amount and the currency]

Consequences of registration and this notice being served on you

The NZ judgement can be enforced in Australia as if it were a judgement given by the [Australian court in which judgement is registered].

Your rights

Setting aside registration

If the judgement should not have been registered in Australia under the Trans‑Tasman Proceedings Act 2010 (Cth), you may be able to have the registration set aside by applying to the [Australian court in which judgement is registered]. The Act sets out limited grounds on which registration of a judgement may be set aside.

You must make an application for the registration to be set aside within 30 working days after the day on which you were given this notice.

If you think the registration should be set aside you should get legal advice as soon as possible.

Stay of enforcement

If you intend to apply to the [NZ court or tribunal] to set aside, vary or appeal the judgement, you may apply for enforcement of the registered judgement in Australia not to be commenced or to be stayed (put on hold) for a period of time.

You must make an application for enforcement not to commence or to be stayed within 30 working days after the day on which you were given this notice.

If you think enforcement of the judgement should not commence, or should be stayed, you should get legal advice as soon as possible.

Failure to comply with judgement

If you fail to comply with the judgement:

further interest may accrue on any amount owing1; and
you may be required to pay the costs of the entitled person enforcing the judgement.

1 Delete if judgement is not a money judgement.