Australia and New Zealand set to close the gap on legal process

by Azadeh Khalilizadeh

Australian and New Zealand lawyers will see closer jurisdictional ties when it comes to court proceedings, thanks to a new treaty proposed by a Trans-Tasman working group.

According to Federal Attorney-General Philip Ruddock and New Zealand Associate Justice Minister Clayton Cosgrove in a statement dated 25 May 2007, the proposed reforms will make the legal process “easier and more affordable” for businesses and individuals involved in trans-Tasman civil legal cases.

Background to the reforms

The reforms stem from the final report of the Trans-Tasman Working Group on Court Proceedings and Regulatory Enforcement released on 13 December 2006.

In this report, the working group investigated reform in areas such as:

  • Service of process: including a recommendation that service should have the same effect and give rise to the same proceedings as if service had occurred in the jurisdiction of issue.
  • Final non-money judgments: including a recommendation to broaden final judgments to include requirements such as injunctions and orders for specific performance.
  • Interim relief in support of foreign proceedings: including a recommendation to include interim orders such as Mareva injunctions, Anton Piller orders and suppression orders.
  • Enforcing tribunal orders: recommending certain orders made by specified tribunals to be enforceable between Australian and New Zealand.
  • Declining jurisdiction: recommending a common statutory test between the two countries to allow a person to seek a stay of proceedings in one country on the grounds that a court in the other country is the more appropriate forum for the proceeding.
  • Taking of evidence: including opportunity for parties to appear in civil proceedings via telephone or video link. The working group also recommended that lawyers could also appear remotely – but with leave.
  • Recognition and enforcement of judgements: including a recommendation that a civil pecuniary penalty order made in one country should be enforceable in the other as a civil judgement.
  • Regulatory enforcement: including a recommendation that fined imposed on one country for criminal offences under certain regulatory regimes be enforceable in the other – in the same manner as civil judgement debts.
Implications of the finalised agreement

The Ministers said the finalised agreement would:
  • represent an unprecedented level of cooperation between Australia and New Zealand in civil court proceedings;
  • enhance the effectiveness of civil court proceedings in both countries;
  • help resolve trans-Tasman disputes more effectively and at a lower cost, which could support closer economic relations and could underpin other trans-Tasman initiatives; and
  • increase the effectiveness of each country’s regulatory rules.
This is because parties would no longer be able to avoid the consequences of a judgment by moving themselves or their assets from one country to the other. Fines would also be introduced in a range of areas deemed to be “of mutual interest”, such as securities offerings made to the public.

The next step

According to the Ministers, the Australian and New Zealand governments will continue to consult widely with stakeholders in both countries in developing the details of the reforms.

Once the treaty has been established, both governments expect to introduce legislation to enforce the arrangements in each country respectively.

“Good progress” is expected during 2007.


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