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Trans-Tasman Proceedings Act 2010

Authoritative Version
Act No. 35 of 2010 as amended, taking into account amendments up to Federal Circuit Court of Australia (Consequential Amendments) Act 2013
An Act relating to proceedings in Australian and New Zealand courts and tribunals, and for related purposes
Administered by: Attorney-General's
Registered 11 Oct 2013
Start Date 11 Oct 2013

Commonwealth Coat of Arms

Trans‑Tasman Proceedings Act 2010

No. 35, 2010 as amended

Compilation start date:                     11 October 2013

Includes amendments up to:            Act No. 13, 2013

 

About this compilation

This compilation

This is a compilation of the Trans-Tasman Proceedings Act 2010 as in force on 11 October 2013. It includes any commenced amendment affecting the legislation to that date.

This compilation was prepared on 11 October 2013.

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of each amended provision.

Uncommenced amendments

The effect of uncommenced amendments is not reflected in the text of the compiled law but the text of the amendments is included in the endnotes.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Modifications

If a provision of the compiled law is affected by a modification that is in force, details are included in the endnotes.

Provisions ceasing to have effect

If a provision of the compiled law has expired or otherwise ceased to have effect in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

Part 1—Preliminary                                                                                                             1

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Purpose of, and guide to, this Act....................................................... 2

4............ Definitions.......................................................................................... 4

5............ This Act binds the Crown................................................................. 10

6............ This Act extends to the external Territories....................................... 11

Part 2—Service in New Zealand of initiating documents issued by Australian courts and tribunals    12

Division 1—Introduction                                                                                          12

7............ Guide to this Part.............................................................................. 12

Division 2—Service in New Zealand of initiating documents issued by Australian courts and tribunals                                                                                                                      13

8............ Application of this Part..................................................................... 13

9............ Service of initiating documents in New Zealand............................... 13

10.......... Effect of service under section 9....................................................... 14

11.......... Information that must be given to the defendant................................ 14

12.......... Consequences of not giving the information to the defendant........... 14

13.......... When the defendant must file an appearance..................................... 15

14.......... Defendant’s address for service........................................................ 16

15.......... Security for costs.............................................................................. 16

Part 3—Australian courts declining jurisdiction on the grounds that a New Zealand court is a more appropriate forum                                                                                           17

Division 1—Introduction                                                                                          17

16.......... Guide to this Part.............................................................................. 17

Division 2—Australian courts declining jurisdiction on the grounds that a New Zealand court is a more appropriate forum                                                                             18

17.......... Application to stay Australian proceeding on forum grounds........... 18

18.......... Hearing on the application................................................................. 18

19.......... Order of stay of proceeding.............................................................. 19

20.......... Exclusive choice of court agreements................................................ 20

21.......... How this Part affects powers of the court to stay proceeding........... 21

22.......... No restraint of proceedings............................................................... 22

23.......... Suspension of limitation periods....................................................... 22

Part 4—Australian courts granting interim relief in support of civil proceedings in New Zealand courts                                                                                                                                      23

Division 1—Introduction                                                                                          23

24.......... Guide to this Part.............................................................................. 23

Division 2—Australian courts granting interim relief in support of civil proceedings in New Zealand courts                                                                                                        24

25.......... Application to an Australian court for interim relief.......................... 24

26.......... Giving of interim relief in support of a New Zealand proceeding..... 24

27.......... Application of Australian court procedural rules in an interim relief proceeding      25

Part 5—Subpoenas                                                                                                              26

Division 1—Introduction                                                                                          26

28.......... Guide to this Part.............................................................................. 26

Division 2—Australian subpoenas                                                                       27

29.......... Application of this Division.............................................................. 27

30.......... Service of Australian subpoenas in New Zealand............................. 27

31.......... Subpoenas not to be served in New Zealand without leave............... 27

32.......... How Australian subpoenas must be served in New Zealand............ 28

33.......... Expenses of complying with Australian subpoenas.......................... 29

34.......... Australian subpoenas that require production................................... 29

35.......... Applications to set Australian subpoenas aside................................. 29

36.......... Setting aside Australian subpoenas................................................... 30

37.......... Payment of expenses for complying with Australian subpoenas...... 31

38.......... Contravening Australian subpoenas.................................................. 32

39.......... This Division does not affect other court or tribunal powers............ 32

Division 3—New Zealand subpoenas                                                                 33

40.......... Application of this Division.............................................................. 33

41.......... Service of New Zealand subpoenas in Australia............................... 33

42.......... Obligation to comply with New Zealand subpoenas......................... 33

43.......... Contravening New Zealand subpoenas............................................. 33

44.......... Documents etc. for transmission to a New Zealand court................. 34

45.......... This Part does not affect other powers to serve subpoenas............... 35

Part 6—Remote appearances                                                                                       36

Division 1—Introduction                                                                                          36

46.......... Guide to this Part.............................................................................. 36

Division 2—Remote appearances from New Zealand in Australian proceedings            37

Subdivision A—Remote appearances unrelated to remote evidence          37

47.......... Application of this Subdivision......................................................... 37

48.......... Remote appearances unrelated to remote evidence............................ 37

Subdivision B—Remote appearances related to remote evidence               38

49.......... Application of this Subdivision......................................................... 38

50.......... Remote appearances related to remote evidence................................ 38

Subdivision C—General provisions about remote appearances                  40

51.......... Remote appearances by audiovisual link........................................... 40

52.......... Remote appearances by audio link.................................................... 40

53.......... Costs of remote appearances from New Zealand.............................. 40

54.......... Powers of Australian courts in New Zealand.................................... 40

Division 3—Remote appearances from Australia in New Zealand proceedings              41

55.......... People in Australia appearing remotely in New Zealand proceedings 41

56.......... Powers of New Zealand courts and tribunals in Australia................ 41

57.......... Orders of New Zealand courts and tribunals..................................... 41

58.......... Enforcement of orders of New Zealand courts and tribunals............ 41

59.......... Remote appearance place in Australia is part of the New Zealand court or tribunal  42

60.......... Privileges, protections and immunities of participants in New Zealand proceedings                42

61.......... Contempt of New Zealand courts or tribunals................................... 43

62.......... New Zealand courts and tribunals may administer oath or affirmation in Australia  44

63.......... Assistance to New Zealand courts and tribunals............................... 44

Part 7—Recognition and enforcement in Australia of specified judgments of New Zealand courts and tribunals                                                                                                                  46

Division 1—Introduction                                                                                          46

64.......... Guide to this Part.............................................................................. 46

Division 2—Recognition and enforcement in Australia of specified judgments of New Zealand courts and tribunals                                                                                                   47

65.......... When registrable NZ judgments are enforceable in Australia............ 47

66.......... Meaning of registrable NZ judgment................................................ 47

67.......... Application to register NZ judgments............................................... 49

68.......... Registration of NZ judgments........................................................... 50

69.......... Currency in which NZ judgments are registered............................... 51

70.......... Money judgments partly satisfied when entitled person applies for registration       51

71.......... Judgments only some provisions of which are registrable................ 52

72.......... Setting aside registration................................................................... 52

73.......... Notice of registration......................................................................... 53

74.......... Effect of registration and notice of registration.................................. 53

75.......... Restriction on enforcing registered NZ judgments............................ 54

76.......... Stay of enforcement of registered NZ judgment so that the liable person can appeal it             54

77.......... Costs and expenses of enforcement of registered NZ judgments...... 55

78.......... Interest on registered NZ judgments................................................. 56

79.......... Private international law does not affect enforcement of registered NZ judgments   56

Part 8—Trans‑Tasman market proceedings                                                       57

Division 1—Introduction                                                                                          57

80.......... Guide to this Part.............................................................................. 57

Division 2—Federal Court exercising jurisdiction in New Zealand  58

81.......... Federal Court sitting etc. in New Zealand......................................... 58

82.......... New Zealand lawyers entitled to practise in the Federal Court in New Zealand       59

83.......... Injunctions in relation to New Zealand conduct................................ 59

84.......... Service of injunctions and other judgments in New Zealand............. 59

Division 3—High Court of New Zealand exercising jurisdiction in Australia   60

85.......... High Court of New Zealand sitting in Australia etc.......................... 60

86.......... Privileges, protections and immunities of participants in NZ market proceedings    61

87.......... New Zealand High Court may administer oath etc. in Australia........ 62

88.......... Service of injunctions and other judgments in Australia................... 62

Division 4—Taking of evidence by the Federal Court for the High Court of New Zealand      63

89.......... Taking of evidence by the Federal Court........................................... 63

90.......... Privilege of witnesses....................................................................... 63

91.......... This Division does not affect other Australian laws.......................... 64

Division 5—Miscellaneous                                                                                       65

92.......... Jurisdiction of the Federal Court under this Part............................... 65

93.......... Contempt of the High Court of New Zealand................................... 65

94.......... Reciprocal arrangements for use of court facilities............................ 66

Part 9—Evidence of certain New Zealand matters                                         67

Division 1—Introduction                                                                                          67

95.......... Guide to this Part.............................................................................. 67

Division 2—Evidence of certain New Zealand matters                            68

96.......... Application of this Part..................................................................... 68

97.......... Matters of law................................................................................... 68

98.......... Evidence of New Zealand official instruments.................................. 68

99.......... Evidence of New Zealand acts of state.............................................. 69

100........ Evidence of public documents admissible in New Zealand under New Zealand Acts              69

101........ Evidence of other New Zealand public documents............................ 70

102........ Evidence of New Zealand documents of a public nature................... 70

103........ This Part does not affect other Australian laws................................. 70

Part 10—Miscellaneous                                                                                                    71

Division 1—Introduction                                                                                          71

104........ Guide to this Part.............................................................................. 71

Division 2—Miscellaneous                                                                                       72

105........ Jurisdiction of federal courts............................................................. 72

106........ References to repealed New Zealand Acts........................................ 72

107........ Interaction with the Foreign States Immunities Act 1985.................. 72

108........ Interaction with the Mutual Assistance in Criminal Matters Act 1987 72

109........ Court rules........................................................................................ 72

110........ Regulations....................................................................................... 73

Endnotes                                                                                                                                    74

Endnote 1—About the endnotes                                                                            74

Endnote 2—Abbreviation key                                                                                76

Endnote 3—Legislation history                                                                             77

Endnote 4—Amendment history                                                                           80

Endnote 5—Uncommenced amendments [none]                                          82

Endnote 6—Modifications [none]                                                                         82

Endnote 7—Misdescribed amendments [none]                                             82

Endnote 8—Miscellaneous [none]                                                                        82


An Act relating to proceedings in Australian and New Zealand courts and tribunals, and for related purposes

Part 1Preliminary

  

1  Short title

                   This Act may be cited as the Trans‑Tasman Proceedings Act 2010.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 and 2 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

13 April 2010

2.  Sections 3 to 110

A single day to be fixed by Proclamation.

A Proclamation must not specify a day that occurs before the day the Agreement between the Government of Australia and the Government of New Zealand on Trans‑Tasman Court Proceedings and Regulatory Enforcement, done at Christchurch on 24 July 2008, enters into force for Australia.

However, if the provision(s) do not commence within the period of 6 months beginning on the day the Agreement enters into force for Australia, they commence on the first day after the end of that period. If the provision(s) commence in this way, the Minister must announce by notice in the Gazette the day the provision(s) commenced.

The notice is not a legislative instrument.

11 October 2013

(see F2013L01445)

Note:          This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

             (2)  Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3  Purpose of, and guide to, this Act

The purpose of this Act is to:

(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 NZ judgments and regulatory sanctions; and

(c)   implement the Trans‑Tasman Agreement in Australian law.

                   Note:             Provisions to implement the Trans‑Tasman Agreement in New Zealand law are in the NZ Act.

This Part has a list of the terms that are defined in this Act (see section 4). The terms are either defined in section 4 or in another provision of this Act. If another provision defines the term, section 4 will have a signpost to that definition.

Part 2 is about serving defendants in New Zealand with initiating documents for certain civil proceedings in Australian courts or tribunals.

Part 3 is about when an Australian court may stay a proceeding on the grounds that a New Zealand court is the more appropriate forum to determine the matters in issue.

Part 4 provides for certain Australian courts to give interim relief in support of civil proceedings in New Zealand courts.

Part 5 is about subpoenas issued by certain Australian and New Zealand courts and tribunals. It allows for those subpoenas to be served in the other country and provides for how that service must be done.

Part 6 is about people appearing remotely from New Zealand in Australian proceedings and people appearing remotely from Australia in New Zealand proceedings.

Part 7 is about the enforcement in Australia of specified judgments of New Zealand courts and tribunals.

Part 8 has some special rules about particular Australian and New Zealand proceedings that relate to the trans‑Tasman market.

Part 9 has a number of evidential rules relating to New Zealand that apply in proceedings in Australian courts and certain other bodies.

Part 10 deals with miscellaneous matters.

4  Definitions

                   In this Act:

adjudicative function, in relation to a tribunal, means the function of determining the rights or liabilities of a person in a proceeding in which there are 2 or more parties (including determining that those rights or liabilities are altered).

appearance: see subsection 13(2).

appears remotely: a person appears remotely in a hearing related to a proceeding in a court or tribunal in the territory of a party to the Trans‑Tasman Agreement if the person participates in the hearing, from the territory of the other party to the Agreement, by remote appearance medium.

audio link means facilities (for example, telephone facilities) that enable audio communication between persons in different places.

audiovisual link means facilities that enable audio and visual communication between persons in different places.

Australian court means:

                     (a)  a federal court; or

                     (b)  a court of a State or Territory.

Australian law means a law of the Commonwealth, a State or a Territory.

Australian market proceeding: see subsection 81(2).

Australian market proceeding judgment means a judgment given in an Australian market proceeding.

civil pecuniary penalty means a pecuniary penalty imposed by a court or tribunal in a civil proceeding in relation to a contravention of legislation.

civil proceeding means a proceeding that is not a criminal proceeding.

criminal proceeding means:

                     (a)  a prosecution for an offence; or

                     (b)  a procedure, other than a prosecution, that, under an Australian law or a New Zealand law, may be used:

                              (i)  to determine liability for an offence; or

                             (ii)  to impose a penalty for an offence; or

                     (c)  a proceeding that is related to or associated with a prosecution for an offence or a procedure mentioned in paragraph (b);

but does not include:

                     (d)  a proceeding for compensation, damages or reparation; or

                     (e)  a proceeding under proceeds of crime legislation.

defendant, in relation to a proceeding, means a person served or intended to be served with an initiating document for the proceeding.

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.

enforcement of a judgment means the enforcement or execution of the judgment.

entitled person, in relation to a judgment:

                     (a)  means a person:

                              (i)  in whose favour the judgment was given; or

                             (ii)  in whom rights under the judgment have (by assignment, succession, or otherwise) become vested; and

                     (b)  for an NZ judgment in a proceeding for compensation, damages or reparation relating to an offence against New Zealand law—includes the Crown in right of New Zealand acting on behalf of a person referred to in paragraph (a).

examination of a person giving evidence means the examination‑in‑chief, cross‑examination or re‑examination of the person.

excluded family proceeding means:

                     (a)  a proceeding in respect of an application made under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980; or

                     (b)  a proceeding relating to the status or property of a person who is not fully able to manage his or her own affairs.

Note:          The text of the Convention referred to in paragraph (a) is set out in Australian Treaty Series 1987 No. 2 ([1987] ATS 2). In 2009, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

excluded matter means:

                     (a)  the dissolution of a marriage; or

                     (b)  the enforcement of:

                              (i)  an obligation under Australian law to maintain a spouse or a de facto partner (within the meaning of the Acts Interpretation Act 1901); or

                             (ii)  an obligation under New Zealand law to maintain a spouse, a civil union partner (within the meaning of the Civil Union Act 2004 of New Zealand) or a de facto partner (within the meaning of the Property (Relationships) Act 1976 of New Zealand); or

                     (c)  the enforcement of a child support obligation.

exclusive choice of court agreement: see subsection 20(3).

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.

Federal Court means the Federal Court of Australia.

given, in relation to a judgment, includes entered, made or granted.

inferior Australian court means an Australian court that is not:

                     (a)  the High Court of Australia; or

                     (b)  a superior Australian court.

initiating document means a document:

                     (a)  by which a civil proceeding is commenced in an Australian court or tribunal; or

                     (b)  by reference to which a person becomes a party to a civil proceeding in an Australian court or tribunal.

issuing Australian court or tribunal, in relation to a document, means the Australian court or tribunal that issued the document.

judgment of a court or tribunal means a judgment, award, decree or order of the court or tribunal, whether or not it:

                     (a)  is given in a primary proceeding or an interlocutory proceeding; or

                     (b)  is a money judgment or a non‑money judgment.

liable person, in relation to a judgment, means a person against whom the judgment:

                     (a)  was given; or

                     (b)  is enforceable under a New Zealand law.

money judgment means a judgment under which a sum of money is payable.

non‑money judgment means a judgment that is not a money judgment (including a judgment that does not involve the payment of money but requires a person do, or refrain from doing, other things).

NZ Act means the Trans‑Tasman Proceedings Act 2010 of New Zealand.

NZ Evidence Act means the Evidence Act 2006 of New Zealand.

NZ judgment means a judgment given by a New Zealand court or tribunal.

NZ market proceeding: see subsection 85(2).

NZ market proceeding judgment means a judgment given in an NZ market proceeding.

original court or tribunal, in relation to a judgment, means the court or tribunal that gave the judgment.

party, in relation to a proceeding, means a plaintiff or defendant.

person named, in relation to a subpoena, means the person to whom the subpoena is addressed.

place of issue, in relation to an initiating document or subpoena issued by an Australian court or tribunal, means the State or Territory in which the court or tribunal issued the document.

plaintiff, in relation to a proceeding, means the person by whom or on whose behalf the proceeding is brought.

procedural rules, in relation to a court or tribunal, means rules, or any other laws (other than this Act or any regulations made under it) that:

                     (a)  define or govern the exercise of the jurisdiction of the court or tribunal; or

                     (b)  regulate the practice and procedure of the court or tribunal.

proceeding in a court or tribunal includes:

                     (a)  an interlocutory proceeding in the court or tribunal; and

                     (b)  a proceeding that relates to an application made to the court or tribunal (including an application for interim relief under Part 4).

proceeds of crime legislation means:

                     (a)  the Proceeds of Crime Act 1987; or

                     (b)  the Proceeds of Crime Act 2002; or

                     (c)  a law of a State or Territory that is a corresponding law (within the meaning of the Proceeds of Crime Act 2002); or

                     (d)  the Criminal Proceeds (Recovery) Act 2009 of New Zealand; or

                     (e)  the Proceeds of Crime Act 1991 of New Zealand; or

                      (f)  sections 142A to 142Q of the Sentencing Act 2002 of New Zealand; or

                     (g)  any other law of Australia or New Zealand that is prescribed by the regulations.

qualified NZ lawyer means a lawyer within the meaning of section 6 of the Lawyers and Conveyancers Act 2006 of New Zealand.

registered NZ judgment means an NZ judgment to the extent that it is registered in an Australian court under section 68.

regulatory regime criminal fine means a fine for a criminal offence under a provision of New Zealand legislation, being a provision of a kind prescribed by the regulations.

remote appearance: see appears remotely.

remote appearance medium means:

                     (a)  audio link; or

                     (b)  audiovisual link.

submissions, in relation to evidence, means:

                     (a)  submissions on whether and, if so, in what way the evidence may or must be given; and

                     (b)  submissions on whether the evidence is admitted or admissible; and

                     (c)  other submissions in relation to the evidence.

subpoena means:

                     (a)  a subpoena to give evidence; or

                     (b)  a subpoena for production; or

                     (c)  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 Australian court means:

                     (a)  the Federal Court; or

                     (b)  the Family Court of Australia; or

                     (c)  the Supreme Court of:

                              (i)  a State; or

                             (ii)  the Australian Capital Territory; or

                            (iii)  the Northern Territory; or

                            (iv)  Norfolk Island.

Trans‑Tasman Agreement means the Agreement between the Government of Australia and the Government of New Zealand on Trans‑Tasman Court Proceedings and Regulatory Enforcement done at Christchurch on 24 July 2008.

Note:          The text of the Agreement is set out in Australian Treaty Series [2008] ATNIF 12. In 2009, the text of an Agreement in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

working day, of an Australian court or tribunal in relation to a proceeding in the court or tribunal, means a day on which documents may be filed in the registry of the court or tribunal for the proceeding.

5  This Act binds the Crown

             (1)  This Act binds the Crown in each of its capacities.

             (2)  This Act does not make the Crown liable to be prosecuted for an offence.

6  This Act extends to the external Territories

                   This Act extends to every external Territory.

Part 2Service in New Zealand of initiating documents issued by Australian courts and tribunals

Division 1Introduction

7  Guide to this Part

This Part is about serving defendants in New Zealand with initiating documents for certain civil proceedings in Australian courts or tribunals.

This Part allows defendants to be served with the initiating document in New Zealand and provides for how that service must be done.

Defendants must be given certain information when served with the initiating document. The Australian court or tribunal may set aside the proceeding or any step taken in it if defendants are not given that information.

Defendants must file an appearance in the Australian court or tribunal within a particular period after being served with the initiating document in New Zealand. In the appearance defendants must state an address for service in Australia or New Zealand for the proceeding.

Division 2Service in New Zealand of initiating documents issued by Australian courts and tribunals

8  Application of this Part

             (1)  This Part applies to:

                     (a)  a civil proceeding commenced in an Australian court; and

                     (b)  a civil proceeding commenced in an Australian tribunal, but only if:

                              (i)  the tribunal’s procedural rules permit an initiating document relating to the proceeding to be served outside Australia; and

                             (ii)  the tribunal is prescribed by the regulations.

             (2)  However, this Part does not apply to:

                     (a)  a civil proceeding that relates wholly or partly to an excluded matter; or

                     (b)  a civil proceeding that relates wholly or partly to an action in rem; or

                     (c)  a civil proceeding in an Australian tribunal, being a civil proceeding of a kind prescribed by the regulations; or

                     (d)  a civil proceeding that relates to a matter of a kind prescribed by the regulations.

             (3)  For the purposes of subparagraph (1)(b)(ii), the regulations must not prescribe a tribunal unless, at the time of making the regulations, the tribunal is declared under section 55 of the NZ Act to be a tribunal to which subpart 5 of Part 2 of that Act applies.

9  Service of initiating documents in New Zealand

             (1)  An initiating document issued by an Australian court or tribunal that relates to the proceeding may be served in New Zealand under this Part.

             (2)  However, the document must be served in New Zealand in the same way that the document is required or permitted, under the procedural rules of the Australian court or tribunal, to be served in the place of issue.

Note:          For service of the initiating document in New Zealand under this Part, it is not necessary for the Australian court or tribunal:

(a)    to give leave for the service; or

(b)    to be satisfied that there is a connection between the proceeding and Australia.

10  Effect of service under section 9

                   Service of an initiating document in New Zealand under section 9:

                     (a)  has the same effect; and

                     (b)  gives rise to the same proceeding;

as if the initiating document had been served in the place of issue.

Note:          For initiating documents issued by an Australian court, the defendant may apply to the Australian court to stay the proceeding on the grounds that a New Zealand court is the more appropriate court: see Part 3. In some cases, the defendant and the defendant’s lawyer may appear remotely in that stay proceeding without the court’s leave: see subsection 18(4).

11  Information that must be given to the defendant

             (1)  An initiating document served under section 9 must contain or be accompanied by information for the defendant that is prescribed by the regulations.

             (2)  For the purposes of subsection (1), the regulations must prescribe general information for the defendant about:

                     (a)  the steps that the defendant must or may take in relation to the proceeding; and

                     (b)  the consequences of the document being served on the defendant in New Zealand under section 9.

12  Consequences of not giving the information to the defendant

             (1)  Failure to comply with section 11 does not invalidate:

                     (a)  the proceeding; or

                     (b)  any step taken in relation to the proceeding.

             (2)  However, the issuing Australian court or tribunal may, on application by the defendant under subsection (3), make an order in the terms it considers appropriate setting aside:

                     (a)  the proceeding; or

                     (b)  any step taken in relation to the proceeding.

             (3)  The defendant’s application can only be made:

                     (a)  within a reasonable time; and

                     (b)  before the defendant has commenced taking any step in the proceeding;

after the defendant becomes aware of the failure.

13  When the defendant must file an appearance

Period within which defendant must file appearance

             (1)  A defendant who is served with an initiating document in New Zealand under section 9 and who wishes to file an appearance in the issuing Australian court or tribunal must do so within:

                     (a)  the period (the default period) which is the longer of the following periods:

                              (i)  30 working days of the issuing Australian court or tribunal after the day on which the initiating document was served on the defendant;

                             (ii)  the period within which the procedural rules of the issuing Australian court or tribunal would have required or permitted the defendant to file an appearance if the initiating document had been served in the place of issue; or

                     (b)  if, before or after the end of the default period, the plaintiff or defendant applies to the issuing Australian court or tribunal for a shorter or longer period—any shorter or longer period the court or tribunal considers appropriate.

Meaning of appearance

             (2)  Appearance means a document that:

                     (a)  a defendant who has been served under section 9 with an initiating document files in the issuing Australian court or tribunal in response to the initiating document; and

                     (b)  states an address for service in Australia or New Zealand (despite paragraph (c)); and

                     (c)  either:

                              (i)  complies with any requirements which the document must comply with under the procedural rules of the issuing Australian court or tribunal; or

                             (ii)  the issuing Australian court or tribunal determines to be acceptable despite any non‑compliance with such requirements.

14  Defendant’s address for service

                   The defendant’s address for service for the proceeding is:

                     (a)  the address that is stated in the defendant’s appearance; or

                     (b)  if, on application by the defendant, the court or tribunal directs that another address in Australia or New Zealand is to be the defendant’s address for service for the proceeding—that other address.

15  Security for costs

             (1)  An issuing Australian court or tribunal may, on application by a defendant that was served, or purportedly served, under section 9, order that:

                     (a)  the plaintiff in the proceeding give such security as the court or tribunal specifies for the defendant’s costs of, and incidental to, the proceeding; and

                     (b)  the proceeding be stayed until that security is given.

             (2)  Subsection (1) does not affect the power of the court or tribunal to make an order requiring security for costs.

Part 3Australian courts declining jurisdiction on the grounds that a New Zealand court is a more appropriate forum

Division 1Introduction

16  Guide to this Part

This Part is about when an Australian court may stay a proceeding on the grounds that a New Zealand court is the more appropriate court to determine the matters in issue.

The Australian court may only stay the proceeding if the defendant applies for the proceeding to be stayed. The defendant must make the application within 30 working days after being served with the initiating document for the proceeding, or such shorter or longer period that the court considers appropriate.

The Australian court may only stay the proceeding if it is satisfied that a New Zealand court has jurisdiction to determine the matters in issue and that it is the more appropriate court to determine those matters. In determining whether the New Zealand court is the more appropriate court, the Australian court must take certain matters into account. They are set out in section 19.

However, if the parties have made an exclusive choice of court agreement that designates either an Australian court or a New Zealand court as the court to determine the matters in issue, the Australian court’s order as to whether or not to stay the proceeding must be consistent with that agreement (see section 20).

Division 2Australian courts declining jurisdiction on the grounds that a New Zealand court is a more appropriate forum

17  Application to stay Australian proceeding on forum grounds

             (1)  A defendant in a civil proceeding in an Australian court may apply to the court for an order staying the proceeding on the grounds that a New Zealand court is the more appropriate court to determine the matters in issue.

             (2)  The application must be made within:

                     (a)  30 working days of the Australian court after the day on which the defendant was served with the initiating document for the proceeding; or

                     (b)  if, before or after the end of that period, the plaintiff or defendant applies to the Australian court for a shorter or longer period—any shorter or longer period the Australian court considers appropriate.

18  Hearing on the application

             (1)  The Australian court may determine the defendant’s application under section 17 without a hearing.

             (2)  However, the Australian court must determine the defendant’s application with a hearing if any of the following requests the court to do so:

                     (a)  the plaintiff;

                     (b)  the defendant;

                     (c)  any other person who is required or permitted, by the regulations or the Australian court’s procedural rules, to be served with the defendant’s application.

             (3)  The request must be made within:

                     (a)  10 working days of the Australian court after the day the defendant made the application; or

                     (b)  if, before or after the end of that period, a person referred to in subsection (2) applies to the Australian court for a shorter or longer period—any shorter or longer period the Australian court considers appropriate.

             (4)  The defendant and the defendant’s lawyer may appear remotely in a hearing in the Australian court about the application for an order to stay the proceeding if:

                     (a)  the defendant was served, or purportedly served, with the initiating document for the proceeding in New Zealand under section 9; and

                     (b)  within the period (if any) prescribed by the regulations, the defendant made a request to the Australian court for that remote appearance; and

                     (c)  a remote appearance medium is, or can reasonably be made, available.

This subsection applies despite Subdivisions A and B of Part 6, but is subject to the rest of Part 6.

Note:          Ordinarily, for a person to appear remotely from New Zealand in a proceeding in an Australian court, the person needs the leave of the Australian court (see sections 48 and 50).

19  Order of stay of proceeding

             (1)  On application under section 17, the Australian court may, by order, stay the proceeding if it is satisfied that a New Zealand court:

                     (a)  has jurisdiction to determine the matters in issue between the parties to the proceeding; and

                     (b)  is the more appropriate court to determine those matters.

             (2)  In determining whether a New Zealand court is the more appropriate court to determine those matters, the Australian court must take into account the following matters:

                     (a)  the places of residence of the parties or, if a party is not an individual, its principal place of business;

                     (b)  the places of residence of the witnesses likely to be called in the proceeding;

                     (c)  the place where the subject matter of the proceeding is situated;

                     (d)  any agreement between the parties about the court or place in which those matters should be determined or the proceeding should be commenced (other than an exclusive choice of court agreement to which subsection 20(1) applies);

                     (e)  the law that it would be most appropriate to apply in the proceeding;

                      (f)  whether a related or similar proceeding has been commenced against the defendant or another person in a court in New Zealand;

                     (g)  the financial circumstances of the parties, so far as the Australian court is aware of them;

                     (h)  any matter that is prescribed by the regulations;

                      (i)  any other matter that the Australian court considers relevant;

and must not take into account the fact that the proceeding was commenced in Australia.

             (3)  An order under subsection (1) may be made subject to any conditions the Australian court considers are appropriate in order to facilitate, without delay or undue expense, the determination of the matters in issue between the parties to the proceeding.

20  Exclusive choice of court agreements

             (1)  On application under section 17 (and despite section 19), the Australian court:

                     (a)  must, by order, stay the proceeding, if satisfied that an exclusive choice of court agreement designates a New Zealand court as the court to determine the matters in issue; and

                     (b)  must not, by order, stay the proceeding, if satisfied that an exclusive choice of court agreement designates an Australian court as the court to determine those matters.

             (2)  Paragraph (1)(a) does not apply to an exclusive choice of court agreement if the Australian court is satisfied that:

                     (a)  it is null and void under New Zealand law (including the rules of private international law); or

                     (b)  a party to it lacked the capacity to conclude it under Australian law; or

                     (c)  giving effect to it would lead to a manifest injustice or would be manifestly contrary to Australian public policy; or

                     (d)  for exceptional reasons beyond the control of the parties to it, it cannot reasonably be performed; or

                     (e)  the court designated by it as the court to determine the matters in issue between the parties to the proceeding has decided not to determine those matters.

             (2A)   Paragraph (1)(b) does not apply to an exclusive choice of court agreement if the Australian court is satisfied that it is null and void under Australian law (including the rules of private international law).

             (3)  Exclusive choice of court agreement, in relation to matters in issue between parties to a proceeding, means a written agreement between those parties that:

                     (a)  designates the courts, or a specified court or courts, of a specified country, to the exclusion of any other courts, as the court or courts to determine disputes between those parties that are or include those matters; and

                     (b)  is not an agreement the parties to which are or include an individual acting primarily for personal, family, or household purposes; and

                     (c)  is not a contract of employment.

21  How this Part affects powers of the court to stay proceeding

             (1)  An Australian court cannot stay a civil proceeding on forum grounds connected with New Zealand otherwise than in accordance with this Part.

             (2)  However, this Part does not affect any power of the Australian court to stay the proceeding on any other grounds.

22  No restraint of proceedings

             (1)  An Australian court must not restrain a person from commencing a civil proceeding in a New Zealand court on the grounds that the New Zealand court is not the appropriate forum for the proceeding.

             (2)  Also, an Australian court must not restrain a party to a civil proceeding before a New Zealand court from taking a step in that proceeding on the grounds that the New Zealand court is not the appropriate forum for the proceeding.

23  Suspension of limitation periods

             (1)  This section applies if:

                     (a)  a claim is made in a civil proceeding (the NZ proceeding) in a New Zealand court that is later stayed by an order of the New Zealand court made under the NZ Act on the grounds that an Australian court is the more appropriate court; and

                     (b)  the claim is to be made again in a civil proceeding (the Australian proceeding) in an Australian court after the staying of (and, if applicable, before any deadline stated in the condition of that order staying) the New Zealand proceeding.

             (2)  For the purposes of every applicable limitation period or defence under Australian law, the Australian proceeding is to be treated as commencing at the time the New Zealand proceeding commenced.

Part 4Australian courts granting interim relief in support of civil proceedings in New Zealand courts

Division 1Introduction

24  Guide to this Part

This Part provides for certain Australian courts to give interim relief in support of civil proceedings in New Zealand courts.

For the Australian court to give interim relief, a party to the New Zealand proceeding must apply for it.

The Australian court may give interim relief if it considers it appropriate and, if a similar proceeding had been commenced in the Australian court, it would have given interim relief in that similar proceeding.

Division 2Australian courts granting interim relief in support of civil proceedings in New Zealand courts

25  Application to an Australian court for interim relief

                   A party or intended party to a civil proceeding commenced or to be commenced in a New Zealand court may apply to any of the following Australian courts for interim relief (other than a warrant for the arrest of property) in support of the New Zealand proceeding:

                     (a)  the Federal Court;

                     (b)  the Family Court of Australia;

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

                     (d)  another Australian court prescribed by the regulations.

26  Giving of interim relief in support of a New Zealand proceeding

             (1)  On application under section 25, the Australian court may give interim relief (other than a warrant for the arrest of property) in the terms it considers appropriate if:

                     (a)  the court considers it appropriate to give the interim relief in support of the New Zealand proceeding; and

                     (b)  if a proceeding similar to the New Zealand proceeding had been commenced in the court, the court:

                              (i)  would have had power to give the interim relief in that similar proceeding; and

                             (ii)  would have given the interim relief in that similar proceeding.

             (3)  This section does not affect any other powers of the Australian court to give interim relief in support of the New Zealand proceeding.

27  Application of Australian court procedural rules in an interim relief proceeding

                   The procedural rules of the Australian court apply to the proceeding for interim relief under this Part as if the New Zealand proceeding were a similar proceeding commenced in the Australian court.

Part 5Subpoenas

Division 1Introduction

28  Guide to this Part

This Part is about subpoenas issued by certain Australian and New Zealand courts and tribunals.

Division 2 is about subpoenas issued by certain Australian courts and tribunals. It allows for those subpoenas to be served on a person in New Zealand with leave of an Australian court and provides for how the service is to be done. It also allows the person named in the subpoena to apply for the subpoena to be set aside.

Division 3 is about subpoenas issued by New Zealand courts and tribunals. It allows for those subpoenas to be served on a person in Australia in accordance with the NZ Evidence Act. It requires the person served with the subpoena in Australia to comply with it.

Division 2Australian subpoenas

29  Application of this Division

             (1)  This Division applies to a subpoena that is issued in a proceeding (other than an excluded family proceeding) in:

                     (a)  a federal court; or

                     (b)  a State or Territory court prescribed by the regulations; or

                     (c)  an Australian tribunal prescribed by the regulations.

             (2)  Regulations made for the purposes of paragraph (1)(c) must not prescribe a tribunal unless the tribunal is a person or body authorised by or under an Australian law to take evidence on oath or affirmation.

30  Service of Australian subpoenas in New Zealand

             (1)  The subpoena may be served on a person in New Zealand in accordance with this Division.

             (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.

31  Subpoenas not to be served in New Zealand without leave

             (1)  If the proceeding is in an Australian court, the subpoena must not be served in New Zealand without the leave of the court.

             (2)  If the proceeding is in an Australian tribunal, the subpoena must not be served in New Zealand without the leave of an inferior Australian court.

             (3)  Without limiting the matters that the court may take into account in deciding whether to give leave under subsection (1) or (2), the court must 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 court:

                     (a)  must impose a condition that the subpoena not be served after a specified day; and

                     (b)  may impose other conditions.

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

32  How Australian subpoenas must be served in New Zealand

             (1)  The subpoena must be served in New Zealand:

                     (a)  in the same way that the subpoena is required or permitted, under the procedural rules of the issuing Australian court or tribunal, to be served in the place of issue; and

                     (b)  in accordance with any directions given by the Australian court that gave leave for the subpoena to be served.

             (2)  The subpoena must be accompanied by:

                     (a)  a copy of the order giving leave for the subpoena to be served in New Zealand; and

                     (b)  a notice in the form prescribed by the regulations or the procedural rules of the issuing Australian court or tribunal 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 to have the subpoena set aside may be made.

             (3)  If there is no form prescribed by the regulations or the procedural rules for the purposes of paragraph (2)(b), the subpoena must be accompanied by the corresponding form under the Federal Court Rules, with such modifications as are necessary.

33  Expenses of complying with Australian subpoenas

             (1)  Allowances and travelling expenses sufficient to meet the person’s reasonable expenses of complying with the subpoena must be paid to the person at:

                     (a)  the time of service of the subpoena; or

                     (b)  some other reasonable time before the person named is required to comply with it.

             (2)  The allowances or travelling expenses may be paid by giving a voucher in substitution for the whole or part of those allowances and travelling expenses.

34  Australian subpoenas that require production

                   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 or tribunal that issued the subpoena.

35  Applications to set Australian subpoenas aside

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

             (2)  The application must be made to the Australian court that 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. That address is to be treated as the applicant’s address for service for the proceeding.

             (4)  The Registrar of the Australian 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 lawyer for the person who obtained leave to serve the subpoena in New Zealand; or

                     (b)  if there is no lawyer for that person—that person.

             (5)  This section does not affect the procedural rules of the Australian court in relation to the application.

36  Setting aside Australian subpoenas

             (1)  On application under section 35, the Australian 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 a civil proceeding in Australia (other than a proceeding under the Competition and Consumer Act 2010); 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.

             (4)  The court may determine the application without a hearing.

             (5)  However, the court must determine the application with a hearing if any of the following requests the court to determine it with a hearing:

                     (a)  the applicant;

                     (b)  any person at whose request the subpoena was issued.

             (6)  The applicant and the applicant’s lawyer may appear remotely in a hearing to set aside the subpoena if:

                     (a)  the applicant was served, or purportedly served, with the subpoena in New Zealand under this Division; and

                     (b)  within the period (if any) prescribed by the regulations, the applicant made a request to the Australian court or tribunal for that remote appearance; and

                     (c)  a remote appearance medium is, or can reasonably be made, available.

This subsection applies despite Subdivisions A and B of Part 6, but is subject to the rest of Part 6.

Note:          Ordinarily, for a person to appear remotely from New Zealand in a proceeding in an Australian court, the person needs the leave of the Australian court or tribunal (see sections 48 and 50).

37  Payment of expenses for complying with Australian subpoenas

             (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)  otherwise—by the State or Territory in which the subpoena was issued.

             (4)  The Australian court or tribunal that issued the subpoena may make orders to ensure that the person complying with the subpoena receives the amount of the person’s reasonable expenses in so complying.

38  Contravening Australian subpoenas

                   If the person named in the subpoena fails to comply with it, the Australian court or tribunal that issued the subpoena may issue a certificate under the seal of the court or tribunal stating that:

                     (a)  leave to serve the subpoena was given by an Australian court; and

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

39  This Division does not affect other court or tribunal powers

                   This Division does not affect any other powers of an Australian court or tribunal.

Division 3New Zealand subpoenas

40  Application of this Division

                   This Division applies to a subpoena that:

                     (a)  is issued in a proceeding (other than an excluded family proceeding) in a New Zealand court or tribunal; and

                     (b)  may be served in Australia under the NZ Evidence Act.

41  Service of New Zealand subpoenas in Australia

                   The subpoena may be served on a person in Australia in accordance with the NZ Evidence Act.

42  Obligation to comply with New Zealand subpoenas

             (1)  A person served in Australia with the subpoena must comply with it if:

                     (a)  the subpoena was served under section 41; and

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

                     (c)  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 to the person.

             (2)  This section does not affect any right a person has under New Zealand law to apply to have the subpoena set aside.

             (3)  For the purposes of paragraph (1)(c), allowances and travelling expenses may be paid by giving a voucher in substitution for the whole or part of those allowances and travelling expenses.

43  Contravening New Zealand subpoenas

             (1)  A person who contravenes section 42:

                     (a)  is in contempt of the Federal Court; 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 may take into account:

                     (a)  any matters that have not been brought to the attention of the New Zealand court that gave leave for the subpoena to be served in Australia, if the Federal Court is satisfied that:

                              (i)  the New Zealand court 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 New Zealand court 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 would have had regard if it had issued the subpoena.

             (3)  A certificate under a seal of the New Zealand court or tribunal that issued the subpoena stating that:

                     (a)  a New Zealand court 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 42 unless the person establishes to the satisfaction of the Federal Court that the person did not in fact contravene that section.

             (4)  Findings of fact made by a New Zealand court on an application to that court to set aside the subpoena cannot be challenged by a person alleged to have contravened section 42 unless that court was deliberately misled in making those findings of fact.

44  Documents etc. for transmission to a New Zealand court

             (1)  Subject to subsection (2), the following are authorised to receive a document or thing that is required by a subpoena to be produced:

                     (a)  the Federal Court;

                     (b)  a State or Territory court prescribed by the regulations;

                     (c)  an Australian tribunal prescribed by the regulations.

             (2)  If the regulations so provide in relation to such a court or tribunal, this section only applies in relation to specified locations of the registry of the court or tribunal.

             (3)  If a document or thing is filed at the registry of such a court or tribunal in compliance with a subpoena, the Registrar of the court or tribunal must, as soon as practicable after filing, cause:

                     (a)  the Registrar of the court or tribunal that issued the subpoena to be informed in writing that the document or thing has been so filed; and

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

             (4)  Regulations made for the purposes of subsection (1):

                     (a)  must not prescribe a court or tribunal of a State unless the Governor of that State has requested in writing that the court or tribunal be so prescribed; and

                     (b)  must not prescribe a court or tribunal of the Australian Capital Territory unless the Chief Minister of the Australian Capital Territory has requested in writing that the court or tribunal be so prescribed; and

                     (c)  must not prescribe a court or tribunal of any other Territory unless the Administrator of the Territory has requested in writing that the court or tribunal be so prescribed.

             (5)  Regulations made for the purposes of subsection (1) must not prescribe a tribunal unless the tribunal is a person or body authorised by or under an Australian law to take evidence on oath or affirmation.

45  This Part does not affect other powers to serve subpoenas

                   This Part does not affect any right or power, conferred by or under New Zealand law, to serve a subpoena in Australia on a citizen of New Zealand.

Part 6Remote appearances

Division 1Introduction

46  Guide to this Part

This Part is about people appearing remotely from New Zealand in Australian proceedings and people appearing remotely from Australia in New Zealand proceedings.

Division 2 is about remote appearances from New Zealand in a proceeding in an Australian court or a prescribed Australian tribunal. Subdivision A deals with remote appearances by a party or a party’s lawyer where the appearance is not related to evidence in the proceeding. Subdivision B deals with remote appearances by any person (including a party or a party’s lawyer) where the appearance relates to evidence. Subdivision C has general provisions that relate to all remote appearances from New Zealand.

Division 3 is about remote appearances from Australia in a proceeding in a New Zealand court or tribunal where those remote appearances are made in accordance with the NZ Act or the NZ Evidence Act. It allows the New Zealand court or tribunal to exercise certain powers in Australia for the purpose of the remote appearances. It also gives certain privileges, protections and immunities to participants in the remote appearances and has offences that apply for particular conduct engaged in (for example, obstructing the proceeding) at the place in Australia from where the remote appearances are being made.

Division 2Remote appearances from New Zealand in Australian proceedings

Subdivision ARemote appearances unrelated to remote evidence

47  Application of this Subdivision

             (1)  This Subdivision applies to a civil proceeding in:

                     (a)  an Australian court; or

                     (b)  an Australian tribunal prescribed by the regulations.

             (2)  This Subdivision does not apply in relation to remote appearances covered by subsection 50(1).

Note:          Section 50 allows the court to give leave for remote appearances related to the giving of evidence remotely from New Zealand.

48  Remote appearances unrelated to remote evidence

             (1)  The Australian court or tribunal may, on application by a party, give the party, the party’s lawyer, or both, leave to appear remotely from New Zealand in one or more hearings related to the proceeding by:

                     (a)  the remote appearance medium specified by the court or tribunal; or

                     (b)  if the court or tribunal does not specify a remote appearance medium—either remote appearance medium.

Note:          In some cases, a defendant and a defendant’s lawyer may appear remotely without the leave of the court or tribunal: see subsections 18(4) and 36(6) (which deal with applications to stay proceedings or set aside subpoenas).

             (2)  The Australian court or tribunal must not give leave to the party or the party’s lawyer unless it is satisfied that:

                     (a)  the party or the party’s lawyer can more conveniently participate in the hearing from New Zealand; and

                     (b)  if the court or tribunal intends to specify a remote appearance medium—that remote appearance medium is, or can reasonably be made, available; and

                     (c)  if the court or tribunal does not intend to specify a remote appearance medium—both remote appearance mediums are, or can reasonably be made, available; and

                     (d)  it is appropriate to give the leave.

             (3)  If the party’s lawyer is not entitled to appear before the court or tribunal, the court or tribunal must not give leave to the party’s lawyer unless it is satisfied that:

                     (a)  the lawyer is a qualified NZ lawyer; and

                     (b)  the party ordinarily resides or, if the party is not an individual, has its principal place of business, in New Zealand.

             (4)  If the court or tribunal gives leave, then a qualified NZ lawyer who is not otherwise entitled to appear before the court or tribunal is entitled to practise as a barrister, a solicitor, or both, in relation to that leave.

Subdivision BRemote appearances related to remote evidence

49  Application of this Subdivision

             (1)  This Subdivision applies to a civil or criminal proceeding in:

                     (a)  a federal court; or

                     (b)  a State or Territory court prescribed by the regulations; or

                     (c)  an Australian tribunal prescribed by the regulations.

             (2)  Regulations made for the purposes of paragraph (1)(c) must not prescribe a tribunal unless the tribunal is a person or body authorised by or under an Australian law to take evidence on oath or affirmation.

50  Remote appearances related to remote evidence

             (1)  The Australian court or tribunal may, on application by a party, give leave for:

                     (a)  the giving of evidence; or

                     (b)  the examination of a person giving evidence under paragraph (a); or

                     (c)  the making of submissions relating to the giving of evidence under paragraph (a);

from New Zealand in one or more hearings related to the proceeding by:

                     (d)  the remote appearance medium specified by the court or tribunal; or

                     (e)  if the court or tribunal does not specify a remote appearance medium—either remote appearance medium.

Note 1:       For remote appearances other than those related to giving evidence remotely from New Zealand, see section 48.

Note 2:       In some cases, a defendant and a defendant’s lawyer may appear remotely without the leave of the court or tribunal: see subsections 18(4) and 36(6) (which deal with applications to stay proceedings or set aside subpoenas).

             (2)  The Australian court or tribunal must not give leave unless it is satisfied that:

                     (a)  the evidence, examination or submission can more conveniently be given or made from New Zealand; and

                     (b)  if the court or tribunal intends to specify a remote appearance medium—that remote appearance medium is, or can reasonably be made, available; and

                     (c)  if the court or tribunal does not intend to specify a remote appearance medium—both remote appearance mediums are, or can reasonably be made, available; and

                     (d)  it is appropriate to give the leave.

             (3)  If the Australian court or tribunal gives leave, then a qualified NZ lawyer who is not otherwise entitled to appear before the court or tribunal is entitled to practise as a barrister, a solicitor, or both, in relation to that leave.

Subdivision CGeneral provisions about remote appearances

51  Remote appearances by audiovisual link

                   A person must not appear remotely from New Zealand by audiovisual link, unless the courtroom or other place in Australia where the court or tribunal is sitting (the Australian place), and the place in New Zealand where the remote appearance would be made (the New Zealand place), are equipped with facilities that enable:

                     (a)  persons who are at the Australian place to see and hear the person appearing remotely from the New Zealand place; and

                     (b)  persons who are at the New Zealand place to see and hear persons at the Australian place.

52  Remote appearances by audio link

                   A person must not appear remotely from New Zealand by audio link, unless the courtroom or other place in Australia where the court or tribunal is sitting (the Australian place), and the place in New Zealand where the remote appearance would be made (the New Zealand place), are equipped with facilities that enable:

                     (a)  persons who are at the Australian place to hear the person appearing remotely from the New Zealand place; and

                     (b)  persons who are at the New Zealand place to hear persons at the Australian place.

53  Costs of remote appearances from New Zealand

                   If a person appears remotely from New Zealand under this Act, the court may make such orders as the court considers appropriate for the payment of expenses incurred in connection with the remote appearance.

54  Powers of Australian courts in New Zealand

                   For the purposes of a remote appearance from New Zealand in accordance with this Act, the Australian court or tribunal may exercise in New Zealand all its powers that it is permitted to exercise in New Zealand under New Zealand law.

Division 3Remote appearances from Australia in New Zealand proceedings

55  People in Australia appearing remotely in New Zealand proceedings

                   A remote appearance by a person from Australia in a proceeding in a New Zealand court or tribunal is authorised if it is in accordance with the NZ Act or the NZ Evidence Act.

56  Powers of New Zealand courts and tribunals in Australia

             (1)  For the purposes of a remote appearance by a person in Australia under section 55, a New Zealand court or tribunal may exercise in Australia any of its powers, except its powers to:

                     (a)  punish for contempt; and

                     (b)  enforce or execute its judgments or process.

             (2)  The New Zealand law that applies to the proceeding in New Zealand also applies, subject to subsection (1), to the practice and procedure of the New Zealand court or tribunal in relation to a remote appearance by a person in Australia under section 55.

57  Orders of New Zealand courts and tribunals

                   Without limiting section 56, the New Zealand court or tribunal may, by order:

                     (a)  direct that the hearing or any part of the hearing be held in private; or

                     (b)  require any person to leave the place in Australia from which the appearance is being or is to be made; or

                     (c)  prohibit or restrict the publication of submissions or the name of any party or of any witness.

58  Enforcement of orders of New Zealand courts and tribunals

             (1)  An order under section 57 must be complied with.

             (2)  Subject to the Federal Court Rules, the order may be enforced by the Federal Court as if the order were an order of the Federal Court.

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

                     (a)  is in contempt of the Federal Court; and

                     (b)  is punishable accordingly;

unless the person establishes that the contravention should be excused.

59  Remote appearance place in Australia is part of the New Zealand court or tribunal

                   For the purposes of sections 56 and 57, the place in Australia from which a remote appearance is made in a hearing related to a proceeding before a New Zealand court or tribunal is taken to be part of that court or tribunal.

60  Privileges, protections and immunities of participants in New Zealand proceedings

             (1)  A Judge or an Associate Judge of a New Zealand court or a member of a New Zealand tribunal has, in relation to a remote appearance by a person in Australia under section 55, the same privileges, protections and immunities as a Judge of the Federal Court.

             (2)  A person in Australia appearing remotely under section 55 as a barrister, a solicitor, or both, has, in relation to the remote appearance, the same protections and immunities as a barrister appearing for a party in a proceeding in the Federal Court.

             (3)  A person in Australia appearing remotely under section 55 as a party has, in relation to the remote appearance, the same protections and immunities as a party in a proceeding in the Federal Court.

             (4)  A person in Australia appearing remotely as a witness under section 55 has the same protection as a witness in a proceeding in the Federal Court.

61  Contempt of New Zealand courts or tribunals

             (1)  A person commits an offence if the person:

                     (a)  is at a place in Australia from which a remote appearance is being made in a proceeding in a New Zealand court or tribunal; and

                     (b)  assaults:

                                     (ia)   a party to the proceeding; or

                              (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 or tribunal giving assistance under section 63.

Penalty:  2 years imprisonment or 120 penalty units, or both.

             (2)  A person commits an offence if the person:

                     (a)  is at a place in Australia from which a remote appearance is being made in a proceeding in a New Zealand court or tribunal; and

                     (b)  intentionally threatens, intimidates or insults:

                              (i)  a Judge, Associate Judge or member of the New Zealand court or tribunal who is taking part in the proceeding; or

                             (ii)  a Registrar, Deputy Registrar or other officer of the New Zealand court or tribunal who is taking part in or assisting in the proceeding; or

                                    (iia)   a party to the proceeding; or

                            (iii)  a person appearing in the proceeding as a barrister, a solicitor, or both; or

                            (iv)  a witness in the proceeding.

Penalty:  2 years imprisonment or 120 penalty units, or both.

             (3)  A person commits an offence if the person:

                     (a)  is at a place in Australia from which a remote appearance is being made in a proceeding in a New Zealand court or tribunal; and

                     (b)  intentionally interrupts or obstructs the proceeding.

Penalty:  2 years imprisonment or 120 penalty units, or both.

             (4)  A person commits an offence if the person:

                     (a)  is at a place in Australia from which a remote appearance is being made in a proceeding in a New Zealand court or tribunal; and

                     (b)  intentionally disobeys an order or direction of the New Zealand court or tribunal.

Penalty:  2 years imprisonment or 120 penalty units, or both.

62  New Zealand courts and tribunals may administer oath or affirmation in Australia

             (1)  A New Zealand court or tribunal may, for the purpose of obtaining the testimony of a person in Australia by remote appearance medium, administer an oath or affirmation in accordance with the practice and procedure of the court or tribunal.

             (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 federal judicial proceeding.

63  Assistance to New Zealand courts and tribunals

             (1)  An officer of an Australian court or tribunal to which subsection (2) applies may, at the request of a New Zealand court or tribunal:

                     (a)  attend at the place in Australia from which a remote appearance is made in a hearing related to a proceeding before the New Zealand court or tribunal; and

                     (b)  take any action that the New Zealand court or tribunal directs to facilitate the proceeding; and

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

             (2)  This subsection applies to the following:

                     (a)  the Federal Court;

                     (b)  the Family Court of Australia;

                     (c)  a State or Territory court prescribed by the regulations;

                     (d)  an Australian tribunal prescribed by the regulations.

             (3)  Regulations made for the purposes of paragraph (2)(c) or (d):

                     (a)  must not prescribe a court or tribunal of a State unless the Governor of that State has requested in writing that the court or tribunal be so prescribed; and

                     (b)  must not prescribe a court or tribunal of the Australian Capital Territory unless the Chief Minister of the Australian Capital Territory has requested in writing that the court or tribunal be so prescribed; and

                     (c)  must not prescribe a court or tribunal of any other Territory unless the Administrator of the Territory has requested in writing that the court or tribunal be so prescribed.

             (4)  Regulations made for the purposes of paragraph (2)(d) must not prescribe a tribunal unless the tribunal is a person or body authorised by or under an Australian law to take evidence on oath or affirmation.

Part 7Recognition and enforcement in Australia of specified judgments of New Zealand courts and tribunals

Division 1Introduction

64  Guide to this Part

This Part is about the enforcement in Australia of specified judgments of New Zealand courts and tribunals.

To be enforceable, the judgment has to be registered in an Australian court. To be registered, the judgment must be a registrable NZ judgment (which is defined in section 66) and an application for its registration must be made.

Once registered in an Australian court, the judgment has the same force, and may be enforced in the Australian court, as if the judgment had been given by the Australian court. There are some exceptions to this—see, for example:

(a)   subsection 74(2) (which provides that the judgment cannot be enforced during a particular period if notice of the registration has not been given to each liable person); and

(b)   section 75 (which provides that the judgment cannot be enforced if the judgment could not be enforced in New Zealand); and

(c)   section 76 (which provides grounds for when the Australian court may stay a proceeding to enforce the judgment).

Division 2Recognition and enforcement in Australia of specified judgments of New Zealand courts and tribunals

65  When registrable NZ judgments are enforceable in Australia

             (1)  A registrable NZ judgment cannot be enforced in Australia if it is not registered in an Australian court under section 68.

Note:          A registrable NZ judgment cannot be enforced in Australia otherwise than in accordance with this Part.

             (2)  Provisions of an NZ judgment that, because of section 71, could be registered in an Australian court under section 68 cannot be enforced in Australia if they are not so registered.

66  Meaning of registrable NZ judgment

             (1)  A judgment is a registrable NZ judgment if:

                     (a)  the judgment is a final and conclusive judgment that is given in a civil proceeding by a New Zealand court; or

                     (b)  the judgment is a final and conclusive judgment that:

                              (i)  is given in a civil proceeding by a New Zealand tribunal that is prescribed by the regulations; and

                             (ii)  is of a kind prescribed by the regulations; or

                     (c)  the judgment is a final and conclusive judgment that:

                              (i)  is given in a criminal proceeding by a New Zealand court; and

                             (ii)  consists wholly of a requirement to pay an injured party a sum of money by way of compensation, damages or reparation; or

                     (d)  the judgment is a final and conclusive judgment that:

                              (i)  is given in a criminal proceeding by a New Zealand court; and

                             (ii)  consists wholly of an imposition of a regulatory regime criminal fine; and

                            (iii)  meets the conditions (if any) of a kind prescribed by the regulations; or

                     (e)  the judgment is a final and conclusive order made under the NZ Act or the NZ Evidence Act by a New Zealand court or tribunal, being an order for the payment of expenses incurred:

                              (i)  by a witness in complying with a subpoena served on the witness in Australia under Division 3 of Part 5 of this Act; or

                             (ii)  in connection with appearing remotely from Australia in a New Zealand proceeding under Division 3 of Part 6 of this Act; or

                      (f)  the judgment is an NZ market proceeding judgment; or

                     (g)  the judgment is registered in a New Zealand court under the Reciprocal Enforcement of Judgments Act 1934 of New Zealand.

             (2)  However, a judgment is not a registrable NZ judgment if it wholly or partly:

                     (a)  relates to an excluded matter; or

                     (b)  is a non‑money judgment of a kind prescribed by the regulations; or

                     (c)  is an order under proceeds of crime legislation; or

                     (d)  is an order relating to the granting of probate or letters of administration or the administration of the estate of a deceased person; or

                     (e)  is an order relating to the guardianship or care of a person who is incapable of managing his or her personal affairs; or

                      (f)  is an order relating to the management of the property of a person who is incapable of managing that property; or

                     (g)  is an order relating to the care, control, or welfare of a child; or

                     (h)  imposes a civil pecuniary penalty of a kind prescribed by the regulations; or

                      (i)  is an order that, if contravened by a person to whom it is directed, will make the person liable to conviction for an offence in the place where it was made; or

                      (j)  relates to a matter of a kind prescribed by the regulations.

             (3)  For the purposes of subsection (1), a judgment is to be treated as final and conclusive even if:

                     (a)  a person may appeal against it in a New Zealand court or tribunal; or

                     (b)  an appeal against it in a New Zealand court or tribunal has not been finally determined.

             (4)  For the purposes of subparagraph (1)(b)(ii) if the judgment:

                            (a)   is not made in connection with the performance of an adjudicative function; or

                            (b)   is not enforceable without an order of a court; or

                            (c)   imposes a civil pecuniary penalty.

67  Application to register NZ judgments

Judgments (other than civil pecuniary penalties, criminal fines or NZ market proceeding judgments)

             (1)  An entitled person may apply to register an NZ judgment (other than one that imposes a civil pecuniary penalty or a regulatory regime criminal fine, or is an NZ market proceeding judgment) in any of the following courts:

                     (a)  a superior Australian court;

                     (b)  an inferior Australian court that has power to give the relief that is in the judgment.

Civil pecuniary penalties

             (2)  An entitled person may apply to register an NZ judgment that imposes a civil pecuniary penalty (other than an NZ market proceeding judgment) in:

                     (a)  a superior Australian court; or

                     (b)  an inferior Australian court that has power to impose a civil pecuniary penalty of the same value as the penalty imposed by the judgment.

Criminal fines

             (3)  An entitled person may apply to register an NZ judgment (other than an NZ market proceeding judgment) in a superior Australian court if the judgment imposes a regulatory regime criminal fine.

NZ market proceeding judgments

             (4)  An entitled person may apply to register an NZ market proceeding judgment in the Federal Court.

Application requirements

             (5)  An application under this section must be made:

                     (a)  in the form (if any) prescribed by the regulations; and

                     (b)  in accordance with the requirements (if any) prescribed by the regulations; and

                     (c)  within:

                              (i)  6 years after the day on which the judgment is given; or

                             (ii)  if there have been proceedings by way of appeal against the judgment—6 years after the day of the last judgment in those proceedings; or

                            (iii)  if, before or after the period referred to in subparagraph (i) or (ii), the entitled person applies to the Australian court for a longer period—any longer period the Australian court considers appropriate.

             (6)  Without limiting paragraph (5)(b), regulations made for the purposes of that paragraph may prescribe that specified documents be filed:

                     (a)  in a specified way; and

                     (b)  with, or within a specified time after the filing of, the application.

68  Registration of NZ judgments

             (1)  An Australian court must, on application under section 67, register a registrable NZ judgment in that court in accordance with this Part.

             (2)  Once registered, the judgment remains registered unless the registration is set aside under section 72.

69  Currency in which NZ judgments are registered

             (1)  If a sum of money payable under an NZ judgment is expressed in a currency other than Australian currency, the judgment must be registered in the Australian court under section 68:

                     (a)  if an entitled person has requested in the application for registration that the judgment be registered in a particular currency—in that currency; and

                     (b)  otherwise—as if it were for an equivalent amount in Australian currency, calculated in accordance with the rate of exchange on the working day (the conversion day) of the Australian court before the working day of that court on which the entitled person made the application for registration.

             (2)  The rate of exchange on the conversion day is that determined in the manner prescribed by the regulations.

             (3)  This section is subject to section 70 (which deals with money judgments that are partly satisfied).

70  Money judgments partly satisfied when entitled person applies for registration

                   If:

                     (a)  an entitled person applies for registration of a money judgment; and

                     (b)  at the time of application, the judgment has been partly satisfied;

then the Australian court may only register the balance remaining payable under that judgment at that time under section 68.

71  Judgments only some provisions of which are registrable

             (1)  This section applies to an NZ judgment if an Australian court to which an application for registration of the judgment is made considers that:

                     (a)  the judgment is one in relation to different matters (for example, because it is a judgment in relation to different subject matters, or granting different kinds of relief); and

                     (b)  some of the provisions of the judgment (the registrable provisions) would, if contained in a separate judgment, make that separate judgment a registrable NZ judgment.

             (2)  The judgment may be registered in the Australian court under section 68 in relation to the registrable provisions, but no other provisions, as if the registrable provisions were a separate registrable NZ judgment.

72  Setting aside registration

             (1)  An Australian court in which an NZ judgment is registered must, on application by a liable person under subsection (2), set aside the registration of the judgment if:

                     (a)  the court is satisfied that enforcement of the judgment would be contrary to public policy in Australia; or

                     (b)  the judgment was registered in contravention of this Act; or

                     (c)  both of the following subparagraphs apply:

                              (i)  the judgment was given in a proceeding the subject matter of which was immovable property, or was given in a proceeding in rem the subject matter of which was movable property;

                             (ii)  that property was, at the time of the proceeding in the original court or tribunal, not situated in New Zealand.

             (2)  The liable person’s application must be made within:

                     (a)  30 working days of the Australian court after the day the liable person was given notice of registration under section 73; or

                     (b)  if, before or after that period, the liable person applies to the Australian court for a longer period—any longer period the Australian court considers appropriate.

             (3)  The Australian court must not set aside the registration otherwise than in accordance with this section.

73  Notice of registration

             (1)  If an Australian court registers an NZ judgment, the entitled person must give a notice of the registration to every liable person.

Note:          If the notice is not given, the entitled person will not be able to enforce the NZ judgment for 45 working days of the Australian court after the registration day: see section 74.

             (2)  The notice must:

                     (a)  be in the form prescribed by the regulations; and

                     (b)  be given in the manner prescribed by the regulations.

             (3)  The notice must be given within:

                     (a)  15 working days of the Australian court after the day of registration; or

                     (b)  if, before or after that period, the entitled person applies to the Australian court for a longer period—any longer period the Australian court considers appropriate.

74  Effect of registration and notice of registration

             (1)  A registered NZ judgment:

                     (a)  has the same force and effect; and

                     (b)  may give rise to the same proceedings for enforcement;

as if the judgment had been given by the Australian court in which it is registered.

Note:          An NZ judgment can be enforced in Australia as soon as it is registered and notification of it is given. The entitled person does not need to wait until the expiry of the period in which the liable person could make an application to set aside the registration or to stay enforcement of the judgment under section 72 or 76. Nor does the entitled person need to wait until such an application is finally determined.

             (2)  However, if notice of the registration of the judgment has not been given to every liable person under section 73, then subsection (1) does not apply during the period that is 45 working days of the Australian court after the day of registration.

             (3)  Subsection (1) is subject to:

                     (a)  section 75 (which deals with restrictions on the enforceability of registered NZ judgments); and

                     (b)  an order of the Australian court staying the enforcement of the judgment (whether the order is made under section 76 or otherwise); and

                     (c)  section 78 (which deals with interest on registered NZ judgments).

75  Restriction on enforcing registered NZ judgments

                   A registered NZ judgment is capable of being enforced in Australia only if, and to the extent that, at the time it is being or is to be enforced, the judgment is capable of being enforced in the original court or tribunal or in another New Zealand court or tribunal.

76  Stay of enforcement of registered NZ judgment so that the liable person can appeal it

             (1)  An Australian court in which an NZ judgment has been registered may, on an application by a liable person under subsection (3), order that a proceeding in that court for enforcement of the judgment:

                     (a)  not be commenced until a specified time or event; or

                     (b)  be stayed for a specified period.

             (2)  The order:

                     (a)  must be made subject to the following conditions:

                              (i)  that the liable person make an application to set aside, vary or appeal against the judgment to a New Zealand court or tribunal that has power to grant the application by the end of a period specified in the order;

                             (ii)  that the liable person prosecute that application expeditiously; and

                     (b)  may be made subject to any other conditions that the Australian court considers appropriate (including conditions as to the giving of security).

             (3)  The liable person’s application must be made within:

                     (a)  30 working days of the Australian court after the day the liable person was given notice of the registration under section 73; or

                     (b)  if, before or after that period, the liable person applies to the Australian court for a longer period—any longer period the Australian court considers appropriate.

             (4)  This section does not affect any other powers of the Australian court to stay the enforcement of the registered NZ judgment on any grounds on which the court could stay the enforcement of a judgment of an Australian court or tribunal.

77  Costs and expenses of enforcement of registered NZ judgments

             (1)  If a proceeding for enforcement of a registered NZ judgment is commenced in an Australian court, the following are recoverable in that proceeding:

                     (a)  costs and expenses reasonably incurred by, or on behalf of, the entitled person in, or incidental to, registration of the judgment;

                     (b)  costs and expenses reasonably incurred by, or on behalf of, the entitled person in attempting to enforce the judgment in the original court or tribunal.

             (2)  However, an entitled person’s entitlement to recover, and a liable person’s liability to pay, the costs and expenses specified in paragraph (1)(b) are the same as they would be in a proceeding in that Australian court for enforcement of:

                     (a)  a judgment given by the Australian court that is similar to the registered NZ judgment; or

                     (b)  if there is no such similar judgment, a judgment given by the Australian court that is most analogous to the registered NZ judgment.

78  Interest on registered NZ judgments

                   Interest on a sum of money payable under a registered NZ judgment:

                     (a)  is payable at the same rate or rates and in respect of the same period or periods as would be applicable in the original court or tribunal; and

                     (b)  is recoverable to the extent that an entitled person satisfies the Australian court of the amount of interest that is payable under paragraph (a).

79  Private international law does not affect enforcement of registered NZ judgments

             (1)  Enforcement in Australia of a registered NZ judgment is not affected by the operation of any rule of private international law (other than any rule in this Part) in operation in Australia.

             (2)  Without limiting subsection (1), an Australian court may not refuse to enforce, or delay, limit or prohibit the enforcement of, a registered NZ judgment on any of the following grounds:

                     (a)  enforcing the judgment would involve the direct or indirect enforcement in Australia of a New Zealand public law;

                     (b)  New Zealand tax is payable under the judgment;

                     (c)  the judgment imposes a civil pecuniary penalty or a regulatory regime criminal fine.

Part 8Trans‑Tasman market proceedings

Division 1Introduction

80  Guide to this Part

This Part has some special rules about particular Australian and New Zealand proceedings that relate to the trans‑Tasman market.

Division 2 is about the Australian proceedings. It allows the Federal Court to conduct or continue the proceedings in New Zealand if it is satisfied that the proceedings could be more conveniently or fairly conducted or continued there.

Division 3 is about the New Zealand proceedings. It allows the High Court of New Zealand to conduct or continue the proceedings in Australia and exercise certain powers in Australia for those purposes. It also gives participants in the proceedings in Australia certain privileges, protections and immunities.

Division 4 allows the Federal Court to obtain evidence in Australia for the purposes of the New Zealand proceedings.

Division 5 deals with miscellaneous matters, such as the jurisdiction of the Federal Court and offences that apply for particular conduct engaged in (for example, obstructing the New Zealand proceedings) at the places in Australia from where the New Zealand proceedings are being conducted.

Division 2Federal Court exercising jurisdiction in New Zealand

81  Federal Court sitting etc. in New Zealand

             (1)  If the Federal Court is satisfied, at any stage of an Australian market proceeding, that the proceeding could be more conveniently or fairly conducted or continued in New Zealand, the Federal Court may order that the proceeding be conducted or continued at a place in New Zealand specified in the order.

             (2)  An Australian market proceeding is a proceeding in the Federal Court in which:

                     (a)  a matter for determination arises under:

                              (i)  section 46A, 155A or 155B of the Competition and Consumer Act 2010; or

                             (ii)  a provision of Part VI or XII of the Competition and Consumer Act 2010 so far as the provision relates to section 46A, 155A or 155B of that Act; or

                            (iii)  this Part; or

                     (b)  any other kind of relief prescribed by the regulations is sought; or

                     (c)  an interlocutory order is sought in relation to a proceeding covered by paragraph (a) or (b); or

                     (d)  enforcement is sought of a judgment given in a proceeding covered by paragraph (a) or (b).

             (3)  The order may be subject to such conditions (if any) as are specified in the order.

             (4)  Without limiting subsection (1), judgment may be given in New Zealand in an Australian market proceeding.

             (5)  The Federal Court may, for the purposes of an Australian market proceeding, exercise in New Zealand any of the powers that the Federal Court is permitted, under New Zealand law, to exercise in New Zealand.

82  New Zealand lawyers entitled to practise in the Federal Court in New Zealand

                   A qualified NZ lawyer is entitled to practise as a barrister, solicitor, or both, in an Australian market proceeding before the Federal Court sitting in New Zealand.

83  Injunctions in relation to New Zealand conduct

             (1)  The Federal Court may, in an Australian market proceeding, make an order or grant an injunction (whether final or interlocutory) restraining a person from engaging in conduct, or requiring a person to do an act or thing, in New Zealand.

             (2)  This section does not affect any other power that the Federal Court has to make an order or grant an injunction.

84  Service of injunctions and other judgments in New Zealand

             (1)  An order or injunction under section 83, or other Australian market proceeding judgment, may be served in New Zealand.

             (2)  Subsection (1) is subject to the procedural rules of the Federal Court.

Division 3High Court of New Zealand exercising jurisdiction in Australia

85  High Court of New Zealand sitting in Australia etc.

             (1)  The High Court of New Zealand may conduct or continue an NZ market proceeding in Australia.

             (2)  An NZ market proceeding is a proceeding in the High Court of New Zealand in which:

                     (a)  a matter for determination arises under section 36A, 98H or 99A of the Commerce Act 1986 of New Zealand; or

                     (b)  any other kind of relief prescribed by the regulations is sought; or

                     (c)  an interlocutory order is sought in relation to a proceeding covered by paragraph (a) or (b); or

                     (d)  enforcement is sought of a judgment given in a proceeding covered by paragraph (a) or (b).

             (3)  Without limiting subsection (1), judgment may be given in Australia in an NZ market proceeding.

             (4)  The High Court of New Zealand may, for the purposes of an NZ market proceeding, exercise in Australia all of the powers it has when sitting in New Zealand, except its powers:

                     (a)  to punish for contempt; and

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

             (5)  Without limiting subsection (4), the High Court of New Zealand may in an NZ market proceeding, by order:

                     (a)  direct that the proceeding be conducted or continued in private; or

                     (b)  require a person to leave the court; 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.

             (6)  Without limiting subsections (1) to (5):

                     (a)  the Judicature Act 1908 of New Zealand; and

                     (b)  the High Court Rules made by or under that Act that apply to New Zealand proceedings generally;

also apply to the practice and procedure of the High Court of New Zealand in a proceeding that is an NZ market proceeding so far as the proceeding is conducted or continued in Australia.

             (7)  An order under subsection (5) must be complied with.

             (8)  Subject to the procedural rules of the Federal Court, an order under subsection (5) may be enforced by the Federal Court.

             (9)  Without limiting subsection (8), a person who contravenes an order under subsection (5):

                     (a)  is in contempt of the Federal Court; and

                     (b)  is punishable accordingly;

unless the person establishes that the contravention should be excused.

86  Privileges, protections and immunities of participants in NZ market proceedings

             (1)  A Judge of the High Court of New Zealand has, at a sitting in Australia of the High Court in an NZ market proceeding, the same privileges, protections and immunities as a Judge of the Federal Court.

             (2)  A person appearing as a barrister, solicitor, or both, in an NZ market proceeding has, at a sitting in Australia of the High Court of New Zealand, the same protections and immunities as a barrister appearing for a party in a proceeding in the Federal Court.

             (3)  A party to an NZ market proceeding has, at a sitting in Australia of the High Court of New Zealand, the same protections and immunities as a party in a proceeding in the Federal Court.

             (4)  A person appearing as a witness in an NZ market proceeding has, at a sitting in Australia of the High Court of New Zealand, the same protection as a witness in a proceeding in the Federal Court.

87  New Zealand High Court may administer oath etc. in Australia

             (1)  The High Court of New Zealand may, at a sitting in Australia of the High Court in an NZ market proceeding, administer an oath or affirmation in accordance with the practice and procedure of the High Court of New Zealand.

             (2)  Evidence given by a person on oath or affirmation administered by the High Court of New Zealand under subsection (1) is, for the purposes of section 35 of the Crimes Act 1914, testimony given in a federal judicial proceeding.

88  Service of injunctions and other judgments in Australia

                   An injunction (whether final or interlocutory) given in an NZ market proceeding, or other NZ market proceeding judgment, may be served in Australia.

Division 4Taking of evidence by the Federal Court for the High Court of New Zealand

89  Taking of evidence by the Federal Court

             (1)  The High Court of New Zealand may request the Federal Court to obtain evidence in Australia for the High Court of New Zealand for the purposes of an NZ market proceeding.

             (2)  The Federal Court may, by order, make any provision it considers appropriate for the purpose of obtaining the evidence.

             (3)  An order may require a specified person to take any steps the Federal Court considers appropriate for that purpose.

             (4)  Without limiting subsections (2) and (3), an order may, in particular, make provision:

                     (a)  for the examination of witnesses, either orally or in writing; or

                     (b)  for the production of documents or things; or

                     (c)  for the inspection, photographing, preservation, custody or detention of any property; or

                     (d)  for taking samples of any property and carrying out any experiments on or with any property.

             (5)  Subsection (4) does not prevent the Federal Court from making an order requiring a person to give testimony (either orally or in writing) otherwise than on oath or affirmation if the High Court of New Zealand requests it to do so.

             (6)  A person who is required by an order to attend at any place is entitled to the same amount of conduct money and payment for expenses and loss of time as the person would be entitled on attendance as a witness before the Federal Court.

90  Privilege of witnesses

                   An order under section 89 must not compel a person to give evidence (including by answering a question, or producing a document or thing) that the person could not be compelled to give in the NZ market proceeding concerned.

91  This Division does not affect other Australian laws

                   This Division does not affect any other Australian law.

Division 5Miscellaneous

92  Jurisdiction of the Federal Court under this Part

             (1)  Jurisdiction is conferred on the Federal Court in any matter arising under this Part.

             (2)  Without limiting subsection (1), jurisdiction is conferred on the Federal Court to hear and determine prosecutions for offences against this Part.

             (3)  The jurisdiction conferred on the Federal Court by this section is exclusive of the jurisdiction of any other court.

             (4)  Without limiting subsection (3), prosecutions for offences against this Part may be brought only in the Federal Court.

             (5)  This section has effect subject to section 75 of the Constitution.

             (6)  This section has effect despite anything in any other Commonwealth law.

93  Contempt of the High Court of New Zealand

             (1)  A person commits an offence if the person:

                     (a)  is at a sitting of the High Court of New Zealand in Australia in an NZ market proceeding; and

                     (b)  assaults or intentionally threatens, intimidates or insults:

                              (i)  a Judge of the High Court of New Zealand; or

                             (ii)  a Master, Registrar, Deputy Registrar or another officer of the High Court of the New Zealand; or

                            (iii)  a person appearing as a barrister, a solicitor, or both, in the proceeding; or

                            (iv)  a witness in the proceeding.

Penalty:  2 years imprisonment or 120 penalty units, or both.

             (2)  A person commits an offence if the person:

                     (a)  is at a sitting of the High Court of New Zealand in Australia in an NZ market proceeding; and

                     (b)  intentionally interrupts or obstructs the proceeding.

Penalty:  2 years imprisonment or 120 penalty units, or both.

             (3)  A person commits an offence if the person:

                     (a)  is at a sitting of the High Court of New Zealand in Australia in an NZ market proceeding; and

                     (b)  intentionally disobeys an order or direction of the High Court of New Zealand.

Penalty:  2 years imprisonment or 120 penalty units, or both.

94  Reciprocal arrangements for use of court facilities

             (1)  The Chief Justice of the Federal Court may make arrangements with the Chief Justice of the High Court of New Zealand for the purposes of giving effect to this Part.

             (2)  Without limiting subsection (1), arrangements may be made:

                     (a)  to enable the Federal Court to sit in New Zealand, for the purposes of an Australian market proceeding, in courtrooms of the High Court of New Zealand or in other places in New Zealand; or

                     (b)  to enable the High Court of New Zealand to sit in Australia, for the purposes of an NZ market proceeding, in courtrooms of the Federal Court or in other places in Australia; or

                     (c)  to provide registry facilities and court staff for the purposes of an Australian market proceedings or an NZ market proceeding.

Part 9Evidence of certain New Zealand matters

Division 1Introduction

95  Guide to this Part

This Part has a number of evidential rules relating to New Zealand (for example, about how to give evidence of an official instrument issued by the Governor‑General of New Zealand) that apply in proceedings in Australian courts and certain other bodies.

Division 2Evidence of certain New Zealand matters

96  Application of this Part

                   This Part applies to a proceeding:

                     (a)  in an Australian court; or

                     (b)  before a person or body authorised by:

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

                             (ii)  the consent of the parties to the proceeding;

                            to hear, receive or examine evidence.

97  Matters of law

             (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)  The Australian court, or the person or body, may inform itself about those matters in any way that it considers appropriate.

98  Evidence of New Zealand official instruments

                   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)  otherwise—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.

99  Evidence of New Zealand acts of state

                   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.

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

             (1)  If, under a New Zealand Act, a public document is admissible in evidence to any extent or for any purpose, then the document is, without further proof, admissible in evidence to the same extent and for the same purpose if it purports to be:

                     (a)  sealed, signed and stamped; or

                     (b)  signed and sealed; or

                     (c)  signed and stamped;

in accordance with that 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.

101  Evidence of other New Zealand public documents

                   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.

102  Evidence of New Zealand documents of a public nature

                   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.

103  This Part does not affect other Australian laws

                   This Part does not affect any other Australian law.

Part 10Miscellaneous

Division 1Introduction

104  Guide to this Part

This Part deals with miscellaneous matters (such as the conferral of jurisdiction on the federal courts, the making of court rules relating to this Act, the interaction of this Act with some other Acts and the making of regulations under this Act).

Division 2Miscellaneous

105  Jurisdiction of federal courts

             (1)  Jurisdiction is conferred on a federal court in relation to any matter arising under this Act (other than Part 8).

Note:          See section 92 for the jurisdiction of the Federal Court in relation to matters arising under Part 8 (which deals with trans‑Tasman market proceedings).

             (2)  Without limiting subsection (1), jurisdiction is conferred on a federal court to hear and determine prosecutions for offences against this Act (other than Part 8).

106  References to repealed New Zealand Acts

                   A reference in this Act or the regulations to a repealed New Zealand Act is a reference to a New Zealand Act that, with or without modification, replaces, or corresponds to, the repealed New Zealand Act.

107  Interaction with the Foreign States Immunities Act 1985

                   This Act is subject to the Foreign States Immunities Act 1985.

108  Interaction with the Mutual Assistance in Criminal Matters Act 1987

                   This Act is not subject to, and does not override, the Mutual Assistance in Criminal Matters Act 1987.

Note:          The Mutual Assistance in Criminal Matters Act 1987 operates in parallel with this Act.

109  Court rules

             (1)  The power to make rules regulating the practice and procedure of a federal court extends to making any rules prescribing 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 the regulations.

             (3)  If, in a proceeding in the Family Court of Australia or the Federal Circuit Court of Australia:

                     (a)  a matter arises in relation to which the court has not made rules under this section prescribing practice and procedure; and

                     (b)  the regulations have not prescribed practice and procedure in relation to the matter; and

                     (c)  the Federal Court Rules have prescribed practice and procedure in relation to the matter;

then, subject to any direction that the court makes in that proceeding, 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.

110  Regulations

                   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.


Endnotes

Endnote 1—About the endnotes

The endnotes provide details of the history of this legislation and its provisions. The following endnotes are included in each compilation:

 

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Endnote 5—Uncommenced amendments

Endnote 6—Modifications

Endnote 7—Misdescribed amendments

Endnote 8—Miscellaneous

 

If there is no information under a particular endnote, the word “none” will appear in square brackets after the endnote heading.

 

Abbreviation key—Endnote 2

The abbreviation key in this endnote sets out abbreviations that may be used in the endnotes.

 

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

 

The legislation history in endnote 3 provides information about each law that has amended the compiled law. The information includes commencement information for amending laws and details of application, saving or transitional provisions that are not included in this compilation.

 

The amendment history in endnote 4 provides information about amendments at the provision level. It also includes information about any provisions that have expired or otherwise ceased to have effect in accordance with a provision of the compiled law.

 

Uncommenced amendments—Endnote 5

The effect of uncommenced amendments is not reflected in the text of the compiled law but the text of the amendments is included in endnote 5.

Modifications—Endnote 6

If the compiled law is affected by a modification that is in force, details of the modification are included in endnote 6.

 

Misdescribed amendments—Endnote 7

An amendment is a misdescribed amendment if the effect of the amendment cannot be incorporated into the text of the compilation. Any misdescribed amendment is included in endnote 7.

 

Miscellaneous—Endnote 8

Endnote 8 includes any additional information that may be helpful for a reader of the compilation.

 

Endnote 2—Abbreviation key

 

ad = added or inserted

pres = present

am = amended

prev = previous

c = clause(s)

(prev) = previously

Ch = Chapter(s)

Pt = Part(s)

def = definition(s)

r = regulation(s)/rule(s)

Dict = Dictionary

Reg = Regulation/Regulations

disallowed = disallowed by Parliament

reloc = relocated

Div = Division(s)

renum = renumbered

exp = expired or ceased to have effect

rep = repealed

hdg = heading(s)

rs = repealed and substituted

LI = Legislative Instrument

s = section(s)

LIA = Legislative Instruments Act 2003

Sch = Schedule(s)

mod = modified/modification

Sdiv = Subdivision(s)

No = Number(s)

SLI = Select Legislative Instrument

o = order(s)

SR = Statutory Rules

Ord = Ordinance

Sub‑Ch = Sub‑Chapter(s)

orig = original

SubPt = Subpart(s)

par = paragraph(s)/subparagraph(s)

/sub‑subparagraph(s)

 

 

Endnote 3—Legislation history

 

Act

Number and year

Assent

Commencement

Application, saving and transitional provisions

Trans‑Tasman Proceedings Act 2010

35, 2010

13 Apr 2010

ss 3–110: 11 Oct 2013 (see F2013L01445)
Remainder: Royal Assent

 

Trans‑Tasman Proceedings (Transitional and Consequential Provisions) Act 2010

36, 2010

13 Apr 2010

Sch 2 (items 27, 28): (a)

s 2(1) (item 6) (am by 136, 2012, Sch 2 [item 44])

as amended by

 

 

 

 

Statute Law Revision Act 2012

136, 2012

22 Sept 2012

Sch 2 (item 44): 2 Mar 2011 (see s 2(1))

Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010

103, 2010

13 July 2010

Sche 6 (item 1): 1 Jan 2011
Sch 6 (item 142): (b)

Trans‑Tasman Proceedings Amendment and Other Measures Act 2011

64, 2011

29 June 2011

Sch 1 and Sch 2 (items 1–11): (c)
Sch 3: 30 June 2011

Sch 3

Federal Circuit Court of Australia (Consequential Amendments) Act 2013

13, 2013

14 Mar 2013

Sch 1 (item 556): 12 Apr 2013 (see s 2(1))

 

(a)             Subsection 2(1) (items 3 and 6) of the Trans‑Tasman Proceedings (Transitional and Consequential Provisions) Act 2010 provides as follows:

                   (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

3.  Schedule 2, items 1 to 23

At the same time as section 3 of the Trans‑Tasman Proceedings Act 2010 commences.

11 October 2013

6.  Schedule 2, items 27 and 28

The later of:

(a) immediately after the commencement of the provision(s) covered by table item 3; and

(b) immediately after the commencement of item 22 of Schedule 2 to the Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Act 2011.

However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.

11 October 2013

(paragraph (a) applies)

(b)             Subsection 2(1) (item 6) of the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 provides as follows:

                   (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Provision(s)

Commencement

Date/Details

6.  Schedule 6, item 142

The later of:

(a) the same time as the provision(s) covered by table item 2; and

(b) immediately after the commencement of section 3 of the Trans‑Tasman Proceedings Act 2010.

However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.

11 October 2013

(paragraph (b) applies)

(c)              Subsection 2(1) (item 2) of the Trans‑Tasman Proceedings Amendment and Other Measures Act 2011 provides as follows:

                   (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Provision(s)

Commencement

Date/Details

2.  Schedules 1 and 2

Immediately after the commencement of section 3 of the Trans‑Tasman Proceedings Act 2010.

11 October 2013

 

Endnote 4—Amendment history

 

Provision affected

How affected

Pt 1

 

s 3........................................

am No 64, 2011

s 4........................................

am No 64, 2011

Pt 2

 

Div 2

 

s 8........................................

am No 64, 2011

Pt 3

 

Div 1

 

s 16......................................

am No 64, 2011

Div 2

 

s 17......................................

am No 64, 2011

s 19......................................

am No 64, 2011

s 20......................................

am No 64, 2011

Pt 4

 

Div 2

 

s 26......................................

am No 64, 2011

Pt 5

 

Div 2

 

s 36......................................

am No 103, 2010

Pt 6

 

Div 3

 

s 56......................................

am No 64, 2011

s 61......................................

am No 64, 2011

s 62......................................

am No 36, 2010

Pt 7

 

Div 2

 

s 66......................................

am No 64, 2011

Pt 8

 

Div 2

 

s 81......................................

am No 103, 2010

Div 3

 

s 87......................................

am No 36, 2010

Pt 10

 

Div 2

 

s 109....................................

am No 13, 2013

 

Endnote 5—Uncommenced amendments [none]

Endnote 6—Modifications [none]

Endnote 7—Misdescribed amendments [none]

Endnote 8—Miscellaneous [none]