Huo Raymond: Trans-Tasman Proceedings Bill — Second Reading In Committee 
Huo Raymond: Trans-Tasman Proceedings Bill — Second Reading In Committee 
[Volume:666;Page:13421] 
RAYMOND HUO (Labour) 
: 
 I will follow the Leader of the House’s spirit and say: “Let’s dig it up.” 
Hon Member 
: What? 
RAYMOND HUO 
: Let us dig it up. The Trans-Tasman Proceedings Bill together with the equivalent Australian legislation will integrate the New Zealand and Australian civil justice systems and simplify the resolution of legal disputes with a trans-Tasman aspect. The bill simplifies the trans-Tasman service of court proceedings and the enforcement of judgments. It expands the range of enforceable judgments and improves regulatory enforcement of civil pecuniary penalties and certain criminal regulatory fines. 
The Hon Lianne Dalziel when signing the treaty in July 2008 on which this bill is based called it “an unprecedented level of cooperation between Australia and New Zealand in civil court proceedings.” Indeed without those initiatives the civil pecuniary penalties that are imposed on one country are not enforceable on the other. Nor are criminal fines imposed in one country enforceable in the other due to obvious sovereignty concerns. Interim relief such as freezing assets can be obtained in one country in support of proceedings in the other. 
This bill results from a work programme started by the Rt Hon Helen Clark in 2003. The Trans-Tasman Working Group on Court Proceedings and Regulatory Enforcement was established to examine the relevant issues. It recommended that a simpler more efficient trans-Tasman regime would significantly benefit both countries. As a result both the Trans-Tasman Proceedings Bill and the Australian Trans-Tasman Proceedings Bill were introduced in November 2009. The measures introduced were to enhance the efficiency and efficacy of commercial litigation in respect of parties services of proceedings witnesses assets and events concerning both jurisdictions. The regime is modelled on Australian law namely the Commonwealth Service and Execution of Process Act 1992 which regulates legal proceedings between Australian states and territories. 
There has been a significant increase in the movement of people assets and services between New Zealand and Australia. Consequently there is naturally an increasing number of disputes involving individuals or businesses with cross-border elements. In the year to June 2010 nearly 1.2 million Australians visited New Zealand and the number of New Zealanders who visited Australia was well in excess of that. Australia has remained our largest trading partner. 
The main features of the bill are reflected in five aspects. Firstly the bill allows initiating documents to be served in Australia in the same form as is required in New Zealand. Therefore service of civil proceedings between trans-Tasman parties is more efficient under the bill. However a party served in Australia will be able to make an application to stay the New Zealand proceedings if the party considers it more appropriate for an Australian court to hear the dispute. It is proposed that New Zealand and Australian courts apply a common test when considering whether they have jurisdiction to hear a dispute. 
Secondly the bill encourages greater use of video and audio facilities allowing parties and counsel to appear remotely in proceedings with the leave of the court. Thirdly the bill enables parties to seek interim relief from a New Zealand court in support of an Australian proceeding with the leave of the court. Fourthly trans-Tasman subpoenas will be able to be issued by judges of lower courts and similar subpoenas may be issued for some tribunals by the District Court. Subpoenas in criminal proceedings will also be able to be served with the leave of the court. 
Lastly—and this is perhaps the most important feature of the bill—a broader range of Australian judgments are able to be enforced in New Zealand if registered in a New Zealand court. Currently final money judgments are enforceable. This bill will extend the coverage to include final non-money judgments. The provision will only be applicable where the Australian judgment is final and conclusive. Some types of Australian judgment will not be enforceable—for example if the judgment involves a civil pecuniary penalty if it is an order under the proceeds of crime legislation or if it relates to a guardianship or property protection order. In a similar vein the regime will also make it easier for Australian parties to commence proceedings against New Zealand parties in Australia and allow Australian parties to enforce a large range of Australian judgments against New Zealand parties. 
An interesting point is worth noting. Chapman Tripp lawyers questioned in their witty opinion the wisdom of the difference between the two approaches. Under the bill sanctions framed as civil pecuniary penalties will be directly enforceable unless specifically excluded by Order in Council—namely a negative list approach. Sanctions framed as regulatory regime criminal fines will be directly enforceable only if declared to be so by Order in Council—namely a positive-list approach. “The net effect”—according to Mr Daniel Kalderimis—“is that regulatory regimes based around civil penalties will achieve instant cross-border reach unless expressly excluded whereas regulatory regimes based around criminal penalties will retain a domestic ambit unless expressly included.” Mr Kalderimis concludes by stating: “It is not obvious that this difference in treatment is warranted … civil penalties are penalties nonetheless and in many commercial cases the distinction between civil and criminal penalties may be little more than nomenclature.” He cites as an example the fact that a fine under section 40 of the Fair Trading Act 1986 is a criminal penalty but a fine under section 80 of the Commerce Act 1986 is a civil penalty. 
To conclude this bill seeks to streamline the process for resolving civil proceedings with a trans-Tasman element in order to reduce costs improve efficiency and minimise existing impediments to enforcing certain judgments and regulatory sanctions. I commend the bill to the House. 
Bill read a second time.