Federal Register of Legislation - Australian Government

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Act No. 111 of 1994 as made
An Act about certain matters relating to evidence and procedure in Australia and New Zealand, and for related purposes
Administered by: Attorney-General's
Date of Assent 16 Sep 1994
Date of repeal 11 Oct 2013
Repealed by Trans-Tasman Proceedings (Transitional and Consequential Provisions) Act 2010

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111, 1994

Making Information

- Assented to 16 September 1994

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - TABLE OF

PROVISIONS

TABLE

                             TABLE OF PROVISIONS

                           PART 1-PRELIMINARY Section

    1.    Short title

    2.    Commencement

    3.    Definitions

    4.    Extended definitions of "court" etc.

    5.    External Territories

    6.    Act to bind Crown

                        PART 2-AUSTRALIAN SUBPOENAS

    7.    Application of this Part

    8.    Service of subpoenas in New Zealand

    9.    Subpoenas not to be served without leave

   10.    How subpoenas are to be served in New Zealand

   11.    Expenses

   12.    Subpoenas not requiring attendance

   13.    Applications to set subpoenas aside

   14.    Setting aside subpoenas

   15.    Entitlement to expenses

   16.    Non-compliance with subpoenas

   17.    Courts' other powers unaffected

                          PART 3-NEW ZEALAND SUBPOENAS

   18.    Application of this Part

   19.    Service of subpoenas in Australia

   20.    Obligation to comply with subpoenas

   21.    Non-compliance with subpoenas

   22.    Documents etc. for transmission to a New Zealand court

   23.    Other powers to serve subpoenas unaffected

     PART 4-USE OF VIDEO LINKS OR TELEPHONES IN AUSTRALIAN PROCEEDINGS

   24.    Application of this Part

   25.    Australian courts may take evidence etc. from New Zealand

   26.    Taking evidence by video link

   27.    Taking evidence by telephone

   28.    Expenses

   29.    New Zealand counsel entitled to practise in Australia during

          video links etc.

   PART 5-USE OF VIDEO LINKS OR TELEPHONES IN NEW ZEALAND PROCEEDINGS

   30.    New Zealand courts may take evidence etc. from Australia

   31.    Powers of New Zealand courts

   32.    Orders made by New Zealand courts

   33.    Enforcement of orders

   34.    Privileges, protection and immunity of participants in New

          Zealand proceedings

   35.    New Zealand courts may administer oath in Australia

   36.    Assistance to New Zealand courts

   37.    Contempt of New Zealand courts

                 PART 6-EVIDENCE OF CERTAIN NEW ZEALAND MATTERS

   38.    Application of this Part

   39.    Faxes

   40.    Matters of law

   41.    Evidence of New Zealand official instruments

   42.    Evidence of New Zealand acts of state

   43.    Evidence of public documents admissible in New Zealand under

          New Zealand Acts

   44.    Evidence of other New Zealand public documents

   45.    Evidence of New Zealand documents of a public nature

   46.    Part not to derogate from existing Australian laws

                         PART 7-MISCELLANEOUS

   47.    Application of the Foreign Judgments Act 1991

   48.    Rules of Court

   49.    Regulations Evidence and Procedure (New Zealand) Act 1994

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - LONG TITLE

SECT

       An Act about certain matters relating to evidence and procedure

         in Australia and New Zealand, and for related purposes

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - PART 1

                               PART 1-PRELIMINARY

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 1

Short title

SECT

  1. This Act may be cited as the Evidence and Procedure (New Zealand) Act

1994.

(Minister's second reading speech made in-

            House of Representatives on 25 November 1993

            Senate on 23 August 1994)

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 2

Commencement

SECT

  2. (1) Sections 1 and 2 commence on the day on which this Act receives the

Royal Assent.

  (2) The remaining provisions of this Act commence on a day to be fixed by

Proclamation.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 3

Definitions

SECT

  3.

  (1) In this Act, unless the contrary intention appears:

  "court" includes the extended meaning given in section 4;

  "document" means any record of information, and includes:

  (a) anything on which there is writing; or

  (b) anything on which there are marks, figures, symbols or perforations

having a meaning for persons qualified to interpret them; or

  (c) anything from which sounds, images or writings can be reproduced with or

without the aid of anything else; or

  (d) a map, plan, drawing or photograph;

  "expenses", in relation to a subpoena, include the reasonable costs of:

  (a) necessary travel to and from, and accommodation at, the place where

complying with the subpoena is required; or

  (b) finding, collating and producing a document or thing; for the purposes

of complying with the subpoena;

  "family proceeding" means a proceeding relating to:

  (a) guardianship of a child; or

  (b) custody of a child; or

  (c) access to a child; or

  (d) marriage or divorce; or

  (e) maintenance of a child; or

  (f) maintenance of a spouse or former spouse; or

  (g) property arising out of a marital relationship or a de facto

relationship (including a former marital relationship or a former de facto

relationship), being property owned by one of the spouses or both of them; or

  (h) paternity; or

  (i) adoption; or

  (j) protection of persons from domestic violence or domestic molestation;

or

  (k) the status or property of a person who is not fully able to manage his

or her own affairs;

  "fax", in relation to a document, means a copy of the document that has been

reproduced by facsimile telegraphy;

  "federal court" includes the extended meaning given in section 4;

  "inferior court" means a court that is not a superior court;

  "New Zealand Act" means an Act of the Parliament of New Zealand;

  "New Zealand Minister" means a Minister of the Crown of New Zealand;

  "official instrument" includes a proclamation, commission, appointment,

warrant or order;

  "person named", in relation to a subpoena, means the person to whom the

subpoena is addressed;

  "public document" includes:

  (a) a record required by New Zealand law to be kept of a public document or

proceeding; or

  (b) an entry in a public register or book; or

  (c) a certificate issued by a New Zealand officer under New Zealand law;

  "spouse" includes de facto spouse;

  "subpoena" means a subpoena to give evidence, a subpoena for production or a

subpoena that is both a subpoena to give evidence and a subpoena for

production, but does not include a process that requires a person to produce a

document in connection with discovery and inspection of documents;

  "subpoena for production" means a process that requires the person named to

attend as directed by the order and produce a document or thing for the

purpose of evidence;

  "subpoena to give evidence" means a process that requires the person named

to attend as directed by the order for the purpose of giving evidence;

  "superior court" means:

  (a) the High Court; or

  (b) the Federal Court of Australia or the Family Court of Australia; or

  (c) the Supreme Court of a State or Territory.

  (2) A reference in this Act to a subpoena issued by a court is a reference

to a subpoena issued by or out of the court. Extended definitions of "court"

etc.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 4

SECT

  4. (1) A tribunal is taken for the purposes of a Part of this Act to be a

court if the regulations so provide.

  (2) Regulations made for the purposes of subsection (1) may specify, in

relation to a particular tribunal, any one or more Parts of this Act other

than this Part or Part 6.

  (3) A member of a tribunal that, under this section, is taken to be a court

for the purposes of a Part of this Act is, for the purposes of that Part,

taken to be a judge of such a court.

  (4) If the tribunal is established under a law of the Commonwealth, any

reference in this Act to a federal court, in addition to the meaning given by

paragraph 26(b) of the Acts Interpretation Act 1901, includes a reference to

that tribunal.

  (5) In this section:

  "tribunal" means a person or body authorised by or under a law of the

Commonwealth, a State, a Territory or New Zealand to take evidence on oath or

affirmation, but does not include:

  (a) a court; or

  (b) a person exercising a power conferred on the person as a judge,

magistrate, coroner or officer of a court.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 5

External Territories

SECT

  5. This Act extends to each external Territory.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 6

Act to bind Crown

SECT

  6. This Act binds the Crown in all its capacities.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - PART 2

                        PART 2-AUSTRALIAN SUBPOENAS

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 7

Application of this Part

SECT

  7. This Part applies to a subpoena that is issued in a proceeding in:

  (a) a federal court; or

  (b) a court of a State or Territory that is a court specified in regulations

made for the purposes of this paragraph; other than a criminal proceeding or

family proceeding.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 8

Service of subpoenas in New Zealand

SECT

  8. (1) Subject to the regulations and any applicable Rules of Court, the

subpoena may be served in New Zealand if leave is given under section 9.

  (2) The subpoena may require the person named to attend to give evidence or

produce documents at a place in Australia or a place in New Zealand.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 9

Subpoenas not to be served without leave

SECT

  9. (1) If the proceeding is in a superior court, the subpoena must not be

served in New Zealand without the leave of a judge of the court.

  (2) If the proceeding is in an inferior court, the subpoena must not be

served in New Zealand without the leave of a judge of:

  (a) in any case-the Federal Court of Australia; or

  (b) if the inferior court is a court of a particular State or Territory-the

Supreme Court of that State or Territory.

  (3) Without limiting the matters that the judge may take into account in

deciding whether to give leave, the judge is to take into account:

  (a) the significance of the evidence to be given, or the document or thing

to be produced, by the person named; and

  (b) whether the evidence, document or thing could be obtained by other means

without significantly greater expense, and with less inconvenience to the

person named.

  (4) In giving leave, the judge:

  (a) is to impose a condition that the subpoena not be served after a

specified day; and

  (b) may impose other conditions.

  (5) The judge must not give leave if the person named is less than 18 years

old.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 10

How subpoenas are to be served in New Zealand

SECT

  10. (1) Subject to subsections (2) and (3), service may only be effected in

New Zealand in the same way in which the subpoena would be served in the State

or Territory in which it was issued.

  (2) Service must be in accordance with the directions (if any) given by the

judge in giving leave.

  (3) Service of the subpoena is effective only if it is accompanied by a copy

of the order giving leave to serve the subpoena in New Zealand and by a notice

in the prescribed form that:

  (a) sets out the rights and obligations of the person named in relation to

the subpoena; and

  (b) includes information about the way in which an application to have the

subpoena set aside may be made.

  (4) If there is no prescribed form for notices accompanying subpoenas issued

by a particular court, notices accompanying those subpoenas must be in the

corresponding form under the Federal Court Rules, with such modifications as

are necessary.

  (5) In this section:

  "prescribed" means prescribed by the regulations or by the Rules of Court of

the court a judge of which gave leave for the subpoena to be issued.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 11

Expenses

SECT

  11. (1) Service of the subpoena is effective only if, at the time of service

or at some other reasonable time before the person named is required to comply

with it, allowances and travelling expenses sufficient to meet the person's

reasonable expenses of complying with the subpoena are paid or tendered to the

person.

  (2) The reference in subsection (1) to allowances and travelling expenses

includes a reference to vouchers tendered in substitution for the whole or

part of those allowances and travelling expenses.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 12

Subpoenas not requiring attendance

SECT

  12. If the subpoena only requires production of a document or thing, it must

permit the person named to comply by producing the document or thing at any

registry of the High Court of New Zealand not later than 10 days before the

date specified in the subpoena as the date on which the document or thing is

required for production in the court by which the subpoena was issued.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 13

Applications to set subpoenas aside

SECT

  13. (1) The person named in the subpoena may apply for the subpoena to be

set aside.

  (2) The application must be made to the court a judge of which gave leave

for the subpoena to be served.

  (3) The application must contain an address in Australia or New Zealand that

is the applicant's address for service.

  (4) Any document in the proceedings may be served on the applicant by:

  (a) leaving it at that address; or

  (b) faxing it to the applicant at that address; or

  (c) sending it by post to the applicant at that address.

  (5) The Registrar of the court must cause a copy of the application, and any

affidavit setting out facts on which the applicant wishes to rely in support

of the application, to be served on:

  (a) the solicitor on the record for the person who obtained leave to serve

the subpoena in New Zealand; or

  (b) if there is no solicitor on the record-that person.

  (6) Without limiting the ways in which the application may be made under the

law and rules applicable to the court to which the application is made, it may

be made by transmitting the application to the court by fax.

  (7) This section is in addition to, and not in derogation of, any Rules of

Court.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 14

Setting aside subpoenas

SECT

  14. (1) The court may set aside the subpoena in whole or in part.

  (2) The court must set the subpoena aside if:

  (a) the subpoena requires the person named to attend at a place in Australia

and the court is satisfied that:

    (i) the person does not have the necessary travel documents and

cannot by the exercise of reasonable diligence obtain them within the time

permitted for compliance with the subpoena; or

    (ii) were the person to comply with the subpoena, he or she would

be liable to be detained for the purpose of serving a sentence; or

    (iii) the person is liable to a prosecution, or is being

prosecuted for an offence, in Australia; or

    (iv) the person is liable to the imposition of a penalty in civil

proceedings in Australia (other than proceedings under the Trade Practices Act

1974); or

  (b) the court is satisfied that the person is subject to a restriction on

his or her movements, imposed by law or by order of a court, that is

inconsistent with the person complying with the subpoena.

  (3) Without limiting the grounds on which the subpoena may be set aside, the

court may set it aside if the court is satisfied that:

  (a) the evidence to be given by the person named could be obtained

satisfactorily by other means without significantly greater expense; or

  (b) compliance with the subpoena would cause the person hardship or serious

inconvenience; or

  (c) in the case of a subpoena for production:

    (i) the document or thing should not be taken out of New Zealand;

and

    (ii) satisfactory evidence of the contents of the document, or

satisfactory evidence of the thing, can be given by other means. or the person

(if any) at whose request the subpoena was issued, objects.

 

  (4)  The court may determine the application without a hearing unless the applicant, or the person (if any) at whose request the subpoena was issued, objects.

  (5) For the purposes of determining the application, the court may hold a

hearing by video link or telephone, as the court directs.

  (6) The court must hold a hearing in accordance with subsection (5) if the

applicant requests, in the application or within a reasonable time after

lodging the application, that the court exercise its powers under that

subsection.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 15

Entitlement to expenses

SECT

  15. (1) The person named is entitled to payment of an amount equal to the

reasonable expenses incurred by the person in complying with the subpoena.

  (2) If the subpoena was issued at the request of a person, the amount must

be paid by that person.

  (3) If the subpoena was not issued at the request of a person, the amount

must be paid:

  (a) if the subpoena was issued by a federal court-by the Commonwealth; or

  (b) in any other case-by the State or Territory in which the subpoena was

issued.

  (4) The court out of which the subpoena was issued may make orders to ensure

that the person complying with the subpoena receives the amount of the

person's reasonable expenses in so complying.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 16

Non-compliance with subpoenas

SECT

  16. If the person named in the subpoena fails to comply with it, the court

out of which it was issued may issue a certificate under the seal of the court

stating that:

  (a) leave to serve the subpoena was given by:

    (i) if the court is a superior court-a judge of the court; or

    (ii) if the court is an inferior court-a judge of the Federal Court

of Australia, or a judge of the Supreme Court in the State or Territory in

which the application for leave to issue the subpoena was made, as the case

requires; and

  (b) the person named failed to comply with the subpoena.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 17

Courts' other powers unaffected

SECT

  17. This Part does not limit any powers of a court conferred otherwise than

under this Part.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - PART 3

                    PART 3-NEW ZEALAND SUBPOENAS

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 18

Application of this Part

SECT

  18. This Part (other than section 23) applies to a subpoena:

  (a) that was issued in a proceeding in a New Zealand court, other than a

criminal proceeding or a family proceeding; and

  (b) in relation to which a Judge of the High Court of New Zealand has given

leave for its service in Australia.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 19

Service of subpoenas in Australia

SECT

  19. The subpoena may be served on a person in Australia by serving it on the

person together with:

  (a) a copy of the order of the judge of the High Court of New Zealand

granting leave to serve the subpoena in Australia; and

  (b) a notice that:

    (i) sets out the rights and obligations of the person named in

relation to the subpoena; and

    (ii) includes information about the way in which an application

may be made to the High Court of New Zealand to have the subpoena set aside.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 20

Obligation to comply with subpoenas

SECT

  20. (1) A person served in Australia with the subpoena must comply with it

if:

  (a) the subpoena was served in accordance with section 19; and

  (b) the subpoena was served in accordance with the law of New Zealand; and

  (c) the person is at least 18 years of age; and

  (d) at the time of service or at some other reasonable time before the

person is required to comply, allowances and travelling expenses sufficient to

meet the person's reasonable expenses of complying with the subpoena are paid

or tendered to the person.

  (2) This section does not affect any right a person has under the law of New

Zealand to apply to have the subpoena set aside.

  (3) The reference in paragraph (1)(d) to allowances and travelling expenses

includes a reference to vouchers tendered in substitution for the whole or

part of those allowances and travelling expenses.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 21

Non-compliance with subpoenas

SECT

  21. (1) A person who contravenes section 20:

  (a) is taken to be in contempt of the Federal Court of Australia; and

  (b) is punishable accordingly; unless the person establishes that the

contravention should be excused.

  (2) In determining whether the contravention should be excused, the Federal

Court of Australia may have regard to:

  (a) any matters that have not been brought to the attention of the High

Court of New Zealand, if the Federal Court of Australia is satisfied that:

    (i) the High Court of New Zealand would have been likely to have

set aside the subpoena if the matters had been brought to its attention; and

    (ii) the failure to bring the matters to the attention of the High

Court of New Zealand was not the person's fault, or was the result of an

omission by the person that should be excused; and

  (b) any other matters to which the Federal Court of Australia would have had

regard if it had issued the subpoena.

  (3) A certificate under a seal of the New Zealand court out of which the

subpoena was issued stating that:

  (a) a judge of the High Court of New Zealand granted leave to serve the

subpoena in Australia; and

  (b) the person named failed to comply with the subpoena; is evidence of the

person's contravention of section 20 unless the person establishes to the

satisfaction of the Federal Court of Australia that the person did not in fact

contravene that section.

  (4) Findings of fact made by the High Court of New Zealand on an application

to that court to set aside the subpoena cannot be challenged by a person

alleged to have contravened section 20 unless that court was deliberately

misled in making those findings of fact.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 22

Documents etc. for transmission to a New Zealand court

SECT

  22. (1) Subject to subsection (2), the Federal Court of Australia, and any

court of a State or Territory that is a court specified in regulations made

for the purposes of this subsection, are authorised to receive a document or

thing that is required by a subpoena to be produced.

  (2) If, in relation to such a court, the regulations so provide, this

section only applies in relation to specified locations of the court's

registry.

  (3) If a document or thing is lodged at the registry of such a court in

compliance with a subpoena, the Registrar of the court must, as soon as

practicable after lodgment, cause:

  (a) the Registrar of the court that issued the subpoena to be informed, by

fax or electronic mail, that the document or thing has been so lodged; and

  (b) the document or thing to be transmitted to that court.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 23

Other powers to serve subpoenas unaffected

SECT

  23. This Part does not affect any right or power, conferred by or under a

law of New Zealand, to serve a subpoena in Australia on a citizen of New

Zealand.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - PART 4

  PART 4-USE OF VIDEO LINKS OR TELEPHONES IN AUSTRALIAN PROCEEDINGS

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 24

Application of this Part

SECT

  24. This Part applies to a proceeding in:

  (a) a federal court; or

  (b) a court of a State or Territory that is a court specified in regulations

made for the purposes of this paragraph.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 25

Australian courts may take evidence etc. from New Zealand

SECT

  25. (1) The court may, on the application of a party to a proceeding, direct

that evidence be taken or submissions made, by video link or telephone, from

New Zealand.

  (2) The court must not make such a direction unless it is satisfied that:

  (a) the necessary facilities are available or can reasonably be made

available; and

  (b) the evidence or submission can more conveniently be given or made from

New Zealand.

  (3) The court may exercise in New Zealand, in connection with taking

evidence the court is permitted, under New Zealand law, to exercise in New

Zealand.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 26

Taking evidence by video link

SECT

  26. Evidence must not be given, and a submission must not be made, by video

link unless the courtroom or other place where the court is sitting, and the

place where the evidence would be given or the submission would be made, are

equipped with video facilities that enable:

  (a) persons who are at the courtroom or other place to see and hear the

person giving the evidence or making the submission; and

  (b) persons who are at the place where the evidence is given or the

submission is made to see and hear persons at the courtroom or other place.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 27

Taking evidence by telephone

SECT

  27. Evidence must not be given, and a submission must not be made, by

telephone unless the courtroom or other place where the court is sitting, and

the place where the evidence would be given or the submission would be made,

are equipped with telephone conference facilities that enable:

  (a) persons who are at the courtroom or other place to hear the person

giving the evidence or the submission; and

  (b) persons who are at the place where the evidence is given or the

submission is made to hear persons at the courtroom or other place.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 28

Expenses

SECT

  28. (1) If the court directs evidence to be taken, or submissions to be

received, by video link or telephone from a person in New Zealand, the court

may make such orders as are just for payment of expenses incurred in

connection with taking the evidence or making the submissions.

  (2) Regulations made for the purposes of subsection 4(1) that provide that a

particular tribunal (within the meaning of section 4) established by a law of

the Commonwealth is a court for the purposes of this Part may also provide

that the tribunal cannot make an order under this section against a person

other than the Commonwealth.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 29

New Zealand counsel entitled to practise in Australia during video links etc.

SECT

  29. A person who is entitled to practise as a barrister, solicitor or both

before the High Court of New Zealand is entitled to practise as a barrister,

solicitor or both:

  (a) in relation to the examination-in-chief, cross-examination or

re-examination of a witness in New Zealand whose evidence is being given by

video link or telephone in a proceeding before a court sitting in Australia;

or

  (b) in relation to the making of submissions by video link or telephone from

New Zealand in a proceeding before a court sitting in Australia.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - PART 5

   PART 5-USE OF VIDEO LINKS OR TELEPHONES IN NEW ZEALAND PROCEEDINGS

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 30

New Zealand courts may take evidence etc. from Australia

SECT

  30. A New Zealand court may, for the purposes of a proceeding in New

Zealand, take evidence or receive submissions, by video link or telephone,

from a person in Australia.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 31

Powers of New Zealand courts

SECT

  31. (1) The court may, for the purposes of the proceeding, exercise in

Australia, in connection with taking evidence or receiving submissions by

video link or telephone, any of its powers except its powers:

  (a) to punish for contempt; and

  (b) to enforce or execute its judgments or process.

  (2) The laws of New Zealand (including the Rules of Court) that apply to the

proceeding in New Zealand also apply, by force of this subsection, to the

practice and procedure of the court in taking evidence or receiving

submissions, by video link or telephone, from a person in Australia.

  (3) For the purposes of the court exercising its powers, the place in

Australia where the evidence is given or submissions are made is taken to be

part of the court.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 32

Orders made by New Zealand courts

SECT

  32. Without limiting section 31, the court may, by order:

  (a) direct that the proceeding, or a part of the proceeding, be conducted in

private; or

  (b) require a person to leave the place in Australia where the giving of

evidence or the making of submissions is taking place or is going to take

place; or

  (c) prohibit or restrict the publication of evidence given in the proceeding

or of the name of a party to, or a witness in, the proceeding.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 33

Enforcement of orders

SECT

  33. (1) An order under section 32 must be complied with.

  (2) Subject to the Federal Court Rules, the order may be enforced by a Judge

of the Federal Court of Australia as if the order were an order of the Federal

Court of Australia.

  (3) Without limiting subsection (2), a person who contravenes the order:

  (a) is taken to be in contempt of the Federal Court of Australia; and

  (b) is punishable accordingly; unless the person establishes that the

contravention should be excused. Privileges, protection and immunity of

participants in

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 34

New Zealand proceedings

SECT

  34. (1) A judge or master presiding at or otherwise taking part in the

proceeding has, in connection with evidence being taken or submissions being

received by video link or telephone from a person in Australia, the same

privileges, protection and immunity as a Judge of the Federal Court of

Australia.

  (2) A person appearing as a barrister, solicitor or both in the proceeding

has, in connection with evidence being taken or submissions being received by

video link or telephone from a person in Australia, the same protection and

immunity as a barrister has in appearing for a party in a proceeding before

the Federal Court of Australia.

  (3) A person appearing as a witness in the proceeding by video link or

telephone from Australia has the same protection as a witness in a proceeding

in the Federal Court of Australia.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 35

New Zealand courts may administer oath in Australia

SECT

  35. (1) The court may, for the purpose of obtaining in the proceeding, by

video link or telephone, the testimony of a person in Australia, administer an

oath or affirmation in accordance with the practice and procedure of the

court.

  (2) Evidence given by a person on oath or affirmation so administered is,

for the purposes of section 35 of the Crimes Act 1914, testimony given in a

judicial proceeding.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 36

Assistance to New Zealand courts

SECT

  36. (1) An officer of an Australian court to which this section applies may,

at the request of the New Zealand court:

  (a) attend at the place in Australia where evidence is to be or is being

taken, or submissions are to be or are being made, in the proceeding; and

  (b) take such action as the New Zealand court directs to facilitate the

proceeding; and

  (c) assist with the administering by the New Zealand court of an oath or

affirmation.

  (2) This section applies to:

  (a) the Federal Court of Australia or the Family Court of Australia; or

  (b) a court of a State or Territory that is a court specified in regulations

made for the purposes of this paragraph.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 37

Contempt of New Zealand courts

SECT

  37. A person must not, while evidence is being given or a submission is

being made in Australia, by video link or telephone, in the proceeding:

  (a) assault in Australia:

    (i) a person appearing in the proceeding as a barrister, a

solicitor or both; or

    (ii) a witness in the proceeding; or

    (iii) an officer of an Australian court giving assistance under

section 36; or

  (b) threaten, intimidate or wilfully insult:

    (i) a judge of the New Zealand court who is taking part in the

proceeding; or

    (ii) a Master, Registrar, Deputy Registrar or other officer of

that court who is taking part in or assisting in the proceeding; or

    (iii) a person appearing in the proceeding as a barrister, a

solicitor or both; or

    (iv) a witness in the proceeding; or

  (c) wilfully interrupt or obstruct the proceeding; or

  (d) wilfully and without lawful excuse disobey an order or direction of the

court.

Penalty: Imprisonment for 3 months.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - PART 6

              PART 6-EVIDENCE OF CERTAIN NEW ZEALAND MATTERS

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 38

Application of this Part

SECT

  38. (1) This Part applies to all proceedings in a court in Australia,

including such proceedings that:

  (a) relate to bail; or

  (b) are interlocutory proceedings or proceedings of a similar kind; or

  (c) are heard in chambers; or

  (d) relate to sentencing.

  (2) In this section:

  "court" means:

  (a) a federal court; or

  (b) a court of a State of Territory; or

  (c) a person or body authorised by:

    (i) a law of the Commonwealth, a State or Territory; or

    (ii) consent of parties; to hear, receive or examine evidence.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 39

Faxes

SECT

  39. Subject to any Rules of Court, this Part applies to a fax of a document

in the same way as it applies to the original of the document (whether or not

the original is itself a copy or an extract of a document).

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 40

Matters of law

SECT

  40. (1) Proof is not required about the provisions and coming into operation

(in whole or in part) of:

  (a) a New Zealand Act or an Imperial Act in force in New Zealand; or

  (b) a regulation, rule or by-law made, or purporting to be made, under such

an Act; or

  (c) a Proclamation or order made, or purporting to be made, by the

Governor-General of New Zealand under such an Act; or

  (d) an instrument of a legislative character (for example, a rule of court)

made, or purporting to be made, under such an Act, being an instrument that is

required by or under a law to be published, or the making of which is required

by or under a law to be notified, in the New Zealand Gazette.

  (2) A judge, or such other person as is presiding in the proceeding, may

inform himself or herself about those matters in any way that he or she thinks

fit.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 41

Evidence of New Zealand official instruments

SECT

  41. Evidence of an official instrument issued by the Governor-General of New

Zealand, or by or under the authority of a New Zealand Minister, may be

adduced by producing:

  (a) if the instrument was made by the Governor-General in Council of New

Zealand-a copy of, or an extract from, the instrument purporting to have been

certified as a true copy or extract by the Clerk of the Executive Council of

New Zealand; or

  (b) a copy of, or an extract from, the instrument purporting to have been

certified as a true copy or extract by a New Zealand Minister.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 42

Evidence of New Zealand acts of state

SECT

  42. Evidence of a treaty or other act of state of New Zealand may be adduced

by producing:

  (a) a copy of it that purports to be sealed with the seal of New Zealand;

or

  (b) a book or pamphlet, containing the treaty or act of state, that purports

to have been printed by authority of the New Zealand Government; or

  (c) a book or other publication, containing the treaty or act of state, that

appears to the court to be a reliable source of information; or

  (d) a book or pamphlet that would be admissible in the courts of New Zealand

as evidence of the treaties or acts of state of New Zealand that are contained

in the book or pamphlet; or

  (e) a copy of the treaty or act of state that is proved to be an examined

copy; or

  (f) a document that:

    (i) purports to be a copy of the treaty or act of state; and

    (ii) on which is endorsed, or to which is attached, a certificate

by the person who has custody of the original, stating that the document is a

true copy of the original.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 43

Evidence of public documents admissible in New Zealand under New Zealand Acts

SECT

  43. (1) If, under a New Zealand Act, a public document is admissible in

evidence, to any extent or for any purpose, the document is, without further

proof, admissible in evidence to the same extent and for the same purpose if

it purports to be sealed, stamped, signed, signed and sealed or signed and

stamped in accordance with the New Zealand Act.

  (2) If a document is admissible in evidence under subsection (1), a

certified copy of it, or a certified extract from it, is also admissible in

evidence.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 44

Evidence of other New Zealand public documents

SECT

  44. If, under New Zealand law, a public document is admissible in evidence,

to any extent or for any purpose, without proof of:

  (a) the seal, stamp or signature that authenticates it; or

  (b) the judicial or official character of the person who appears to have

signed it; the document is admissible in evidence to the same extent and for

the same purpose without such proof.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 45

Evidence of New Zealand documents of a public nature

SECT

  45. If a document in New Zealand is of such a public nature as to be

admissible in evidence in New Zealand on its mere production from proper

custody, a copy of, or extract from, it is admissible in evidence if the copy

or extract:

  (a) is proved to be an examined copy or extract; or

  (b) purports to be signed and certified as a true copy or extract by a New

Zealand officer who certifies that he or she has custody of it.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 46

Part not to derogate from existing Australian laws

SECT

  46. This Part is in addition to, and not in derogation of, the provisions of

any other law in force in Australia.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - PART 7

                             PART 7-MISCELLANEOUS

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 47

Application of the Foreign Judgments Act 1991

SECT

  47. (1) This section applies to an order made by a New Zealand court under

the Evidence Amendment Act 1994 of New Zealand for the payment of expenses

incurred:

  (a) by a witness in complying with a subpoena served on the witness in

Australia under Part 3 of this Act; or

  (b) in connection with taking evidence or receiving submissions by video

link or telephone under Part 5 of this Act.

  (2) The Foreign Judgments Act 1991 applies to such an order as if it were an

enforceable money judgment within the meaning of that Act.

  (3) For the purposes of the application of that Act to such an order:

  (a) Part 2 of that Act is taken to apply to the order; and

  (b) unless the order was made by the High Court of New Zealand-the court

that made the order is taken to have been an inferior court (within the

meaning of that Act) to which that Part applies; and

  (c) the court is taken to have had jurisdiction to make the order; and

  (d) subparagraphs 7(2)(a)(iv) and (v), paragraph 7(2)(b) and subsections

7(3) and (4) of that Act do not apply in respect of the order.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 48

Rules of Court

SECT

  48. (1) The power to make rules regulating the practice and procedure of a

court extends to making any rules prescribing all matters necessary or

convenient to be prescribed for carrying out or giving effect to this Act.

  (2) Rules so made must not be inconsistent with this Act or with regulations

made under section 49.

  (3) Subject to any direction that a court makes in a proceeding, if:

  (a) in the proceeding, a matter arises in relation to which the court has

not made rules under this section prescribing practice and procedure; and

  (b) the Federal Court Rules prescribe practice and procedure in relation to

the matter but the regulations do not so prescribe; the Federal Court Rules

apply in relation to the matter with such modifications as are necessary.

  (4) This section does not affect any power to make rules under any other

law.

EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 49

Regulations

SECT

  49. (1) The Governor-General may make regulations prescribing matters:

  (a) required or permitted by this Act to be prescribed; or

  (b) necessary or convenient to be prescribed for carrying out or giving

effect to this Act.

  (2) The Governor-General must not make regulations for the purposes of

subsection 22(1) or paragraph 36(2)(b) specifying a court of a State unless

the Governor of the State has requested in writing that the court be so

specified.

  (3) The Governor-General must not make regulations for the purposes of

subsection 22(1) or paragraph 36(2)(b) specifying a court of the Australian

Capital Territory unless the Chief Minister of the Australian Capital

Territory has requested in writing that the court be so specified.

  (4) The Governor-General must not make regulations for the purposes of

subsection 22(1) or paragraph 36(2)(b) specifying a court of any other

Territory unless the Administrator of the Territory has requested in writing

that the court be so specified.