13 December 2006
Ministers welcome proposals to improve trans-Tasman enforcement of court judgments
Joint media statement with the Australian Attorney-General Philip Ruddock
Australian Attorney-General Philip Ruddock and New Zealand Associate Justice Minister Clayton Cosgrove today welcomed the release of the final report by the Trans-Tasman Working Group on Court Proceedings and Regulatory Enforcement.
The report recommends reforms to improve civil court proceedings and the enforcement of civil court judgments across the Tasman. It also proposes to expand the range of enforceable judgments.
The Ministers said the reforms if agreed to, would mean an unprecedented level of co-operation between Australia and New Zealand in civil court proceedings.
“This level of co-operation can only be contemplated because we have such mutual trust and confidence in each other’s legal systems,” they said.
The Ministers also said the reforms would help resolve trans-Tasman disputes more effectively and at lower cost.
“The proposals aim to bring benefits across the board, for both private individuals involved in trans-Tasman legal disputes and for those conducting business across the Tasman. The recommended reforms would support closer economic relations between Australia and New Zealand and contribute to the significant progress being made on single economic market issues.”
The proposed reforms would also increase the effectiveness of each country’s regulatory rules in areas of mutual benefit, such as the rules that apply to securities offerings made to the public. The reforms would extend to criminal fines for certain offences under these regulatory rules, but not to criminal fines generally.
The Working Group was established by the Australian and New Zealand Prime Ministers in 2003 and is made up of senior officials from both countries. The Working Group released a discussion paper in August 2005 inviting views on possible options for reform. The submissions received in response to that paper were generally supportive of the Working Group’s proposals, which are reflected in the final report.
The New Zealand and Australian Governments will now consider the report’s recommendations. If both countries agree to go ahead, there will be further consultation with interested parties as part of the implementation process.
Copies of the report are available at www.ag.gov.au and www.justice.govt.nz
Printed copies will also be available shortly from the Australian Attorney-General's Department and the New Zealand Ministry of Justice.
SUMMARY OF TRANS-TASMAN WORKING GROUP RECOMMENDATIONS
Issue Problem Recommendation
1. Enforcing civil court judgments
Service on defendant means court can hear a case.
Defendant can be served overseas, if conditions met.
Final money judgments enforceable in the other country.
But if defendant served overseas and takes no steps in the proceedings, judgment not enforceable in other country.
Allow proceedings in one country to be served in the other, without additional requirements.
Defendant not able to ignore proceedings but could apply for a stay on grounds a court in other country is appropriate to hear dispute.
Judgments registered and enforceable in other country.
Public policy grounds only basis for refusing enforcement.
2. Final non-money judgments
Only final money judgments can be enforced across the Tasman.
Other orders (eg order requiring defendant to return a specific item of property) are not enforceable.
Extend range of enforceable judgments to include those requiring someone to do, or not do, something.
Some exclusions, eg orders about wills and care/welfare of children.
3. Interim relief in support of foreign proceedings
Interim relief (eg freezing assets until court makes final decision) not available from a court in one country to support proceedings in the other country.
Instead need to start new full proceedings in country where interim relief sought. Give courts in both countries statutory power to grant interim relief in support of proceedings in the other country.
4. Tribunal order
Many tribunals decide disputes like a court.
Tribunal orders are not enforceable in the other country.
Allow some decisions or decisions in certain proceedings of particular tribunals to be enforced in the other country.
Allow some tribunals to use the service proposal in Issue 1.
5. Forum non conveniens rules New Zealand and Australia apply potentially inconsistent ‘give way’ rules if courts in both countries could decide a dispute.
If proceedings on the same dispute in each country, possible neither court would give way. Adopt a common statutory test requiring a court in one country to give way if a court in the other country is the appropriate court to decide the dispute.
Issue Problem Recommendation
6. Leave requirement for trans-Tasman subpoena
Subpoena (summons requiring a person to give evidence in court) from one country can be served on a witness in the other. Permission of a High Court judge required.
But District Court proceedings require permission from High Court, adding cost, complexity and delay. Allow lower court judges to give permission to serve a subpoena across the Tasman in proceedings before that court or a tribunal.
7. Court appearance by video link
Video links already used for trans-Tasman evidence.
Greater use could reduce cost and inconvenience of physically attending a court in the other country. Allow parties or lawyers to appear by technology with court’s agreement (civil cases). Lawyers without the right to appear before the court could still do so with leave.
Allow as of right when applying to stay proceedings in the other country (see Issue 1).
8. Enforcing civil penalty orders
Civil pecuniary penalty orders from a court in one country not enforceable in other country.
Long-standing rule against enforcing another country’s penalties but strong mutual interest in the effectiveness of each other’s regulatory regime.
Allow all civil pecuniary penalty orders from one country to be enforced in the other.
Public policy exception to enforcement.
A country could exclude particular civil penalty regimes from the other if it wished.
9. Enforcing fines for particular regulatory offences
Criminal fines are not enforceable in the other country as a penalty.
Impairs effective enforcement of regulatory regimes in which each country has a strong mutual interest.
Allow criminal fines under regulatory regimes that impact on the integrity and effectiveness of trans-Tasman markets to be enforced in other country.
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-Tasman subpoenas in criminal proceedings
Trans-Tasman evidence regime subpoenas not available in criminal proceedings.
Must use less convenient procedures such as Mutual Assistance in Criminal Matters legislation.
Extend trans-Tasman subpoenas to criminal proceedings.
Adequate safeguards in the regime’s existing protections (eg leave of judge, applying to set aside if complying causes hardship).