Chapter 4
Relocation of other provisions in the Judicature Act 1908

Trans-Tasman proceedings: Part 1A

4.2Section 3 of the Judicature Amendment Act 1990 added Part 1A to the Judicature Act 1908. Part 1A is entitled “Special Provisions applying to certain proceedings in the High Court and the Federal Court of Australia”. It contains provisions that apply to New Zealand and Australian proceedings relating to the taking advantage of market power in trans-Tasman markets under specified provisions of the Commerce Act 1986 and the Trade Practices Act 1974 (Cth).

4.3The provisions in Part 1A include 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 in New Zealand.

Trans-Tasman Proceedings Act 2010

4.4In 2003, the Prime Ministers of Australia and New Zealand established a working group to look at the potential for the adoption of a trans-Tasman regime for allocation of forum and enforcement of judgments, based on the Australian inter-state arrangements already operating pursuant to the Service and Execution of Process Act 1992 (Cth). The working group’s 2006 recommendations resulted in the “Agreement between the Government of New Zealand and the Government of Australia on Trans-Tasman Proceedings and Regulatory Enforcement”, which was signed in July 2008. Legislation to implement the Agreement has been enacted in both countries.31  The New Zealand legislation, the Trans-Tasman Proceedings Act 2010 (TTPA) is expected to come into force later in 2012 when both New Zealand and Australia have finalised all the rules of court needed to support it.

4.5The TTPA makes fundamental changes to the rules for service of New Zealand proceedings in Australia, and enforcement of Australian judgments in New Zealand.

4.6It also covers:

4.7The purpose of the TTPA is described in the Act as to:33
(a) streamline the process for resolving civil proceedings with a trans-Tasman element in order to reduce costs and improve efficiency; and
(b) minimise existing impediments to enforcing certain Australian judgments and regulatory sanctions; and
(c) implement the Trans-Tasman Agreement in New Zealand law.

4.8When it comes into effect, the TTPA will complement subpart 1 of Part 4 of the Evidence Act 2006, which remains relevant to trans-Tasman proceedings.

4.9Section 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 will continue when the more general later legislation comes into force.

Most appropriate statute for Part 1A?

4.10Issues Paper 29 sought views on whether the provisions in Part 1A of the Judicature Act 1908 should be included in new consolidated courts legislation or moved, without substantive amendment, to the TTPA.

4.11Submitters who responded to this issue either actively supported moving the Part 1A provisions to the TTPA, or said they would have no concerns with such a move. The New Zealand Law Society favoured including the provisions of Part 1A in the TTPA, saying they are a more natural fit with the legislation specifically enacted for trans-Tasman proceedings, and will be less likely to be overlooked by practitioners if included in the TTPA. The Law Society considered that inclusion of the Part 1A provisions in a new Courts Bill would further fragment the process.

4.12The Commission considers that moving the Part 1A provisions to the TTPA would make them more accessible to court users, and we therefore recommend this. To avoid any confusion, it may be useful for new courts legislation to have a “signpost” provision pointing out that provisions concerning trans-Tasman proceedings are included in the TTPA and the Evidence Act 2006.

4.13If the Part 1A provisions are simply “relocated”, substantially unaltered, we foresee no difficulty arising with the Australian Government, as the Australian reciprocal Part 1A provisions are included in its TTPA equivalent (along with the relevant equivalent Evidence Act 2006 provisions). The matter should, of course, be discussed with the Australian Government before any legislation is introduced to Parliament.

R9 The provisions of Part 1A of the Judicature Act 1908 should not be included in new courts legislation. Instead, they should be moved, unaltered in substance, to the Trans-Tasman Proceedings Act 2010.

31Trans-Tasman Proceedings Act 2010; Trans-Tasman Proceedings Act 2010 (Cth).
32Other than to give, examine a person giving, or making submissions in relation to, remote evidence, under sections 168 to 172 of the Evidence Act 2006. 
33Section 3(1).