Supreme Court Amendment (Trans-Tasman Proceedings) Rules 2012

Supreme Court Amendment (Trans-Tasman Proceedings) Rules 2012

6 August 2012

We, the Honourable Ewan Charles Crawford, Chief Justice, and the Honourable Peter Ethrington Evans, the Honourable Alan Michael Blow, OAM, the Honourable Shan Eve Tennent, the Honourable David James Porter and the Honourable Helen Marie Wood, Puisne Judges of the Supreme Court of Tasmania, on the recommendation of the Rule Committee, make the following Rules of Court under the Supreme Court Civil Procedure Act 1932 .

1.   Short title

These Rules of Court may be cited as the Supreme Court Amendment (Trans-Tasman Proceedings) Rules 2012 .

2.   Commencement

These Rules of Court take effect on whichever of the following is the later:

(a) the day on which section 3 of the Trans-Tasman Proceedings Act 2010 of the Commonwealth commences;

(b) the day on which the making of these Rules of Court is notified in the Gazette.

3.   Principal Rules

In these Rules of Court, the Supreme Court Rules 2000 are referred to as the Principal Rules.

4.    Rule 5 amended (Interpretation)

Rule 5 of the Principal Rules is amended by inserting after the definition of taxing officer the following definition:

Trans-Tasman Proceedings Act means the Trans-Tasman Proceedings Act 2010 of the Commonwealth;

5.    Rule 99 amended (Appearing if served out of jurisdiction)

Rule 99 of the Principal Rules is amended as follows:

(a) by omitting from paragraph (b) "New Zealand,";

(b) by inserting the following paragraph after paragraph (b) :

(ba) the time allowed under the Trans-Tasman Proceedings Act, if the originating process is served in New Zealand; or

6.    Rule 147 amended (Application of rules)

Rule 147 of the Principal Rules is amended by inserting after subrule (2) the following subrule:

(3)  This Division does not apply to proceedings to which Part 2 of the Trans-Tasman Proceedings Act applies.

7.    Part 32, Division 7 inserted

After rule 803A of the Principal Rules , the following Division is inserted in Part 32:

Division 7 - Proceedings under the Trans-Tasman Proceedings Act 2010 (Commonwealth)

Subdivision 1 - Preliminary

803B.   Interpretation of Division 7 of Part 32

Unless the contrary intention appears, an expression used in this Division has the same meaning as it has in the Trans-Tasman Proceedings Act.

803C.   Application of Division 7 of Part 32

This Division applies to civil proceedings in which the Trans-Tasman Proceedings Act applies.

803D.   Proceedings under the Trans-Tasman Proceedings Act

A party to a proceeding to which this Division applies must comply with –

(a) this Division; and

(b) any other of these rules that is relevant to, and consistent with, this Division.

Subdivision 2 - Commencement of proceeding under Trans-Tasman Proceedings Act

803E.   Interlocutory application under Trans-Tasman Proceedings Act

In any proceedings that have already commenced, a party to the proceeding may apply for an order under the Trans-Tasman Proceedings Act by filing –

(a) an interlocutory application; and

(b) an affidavit to accompany the interlocutory application.

803F.   Application for interim relief

(1)  A person may apply to the Court for an order for interim relief, under section 25 of the Trans-Tasman Proceedings Act, by filing an originating application to a judge in chambers.

(2)  An application under subrule (1) must be accompanied by an affidavit stating –

(a) if the person –

(i) has started a proceeding in a New Zealand court –

(A) that the person has started a proceeding in a New Zealand Court; and

(B) the relief sought in the New Zealand proceeding; and

(C) the steps taken in the New Zealand proceeding; or

(ii) intends to start a proceeding in a New Zealand court –

(A) when the person intends to start the proceeding; and

(B) the court in which the intended proceeding is to be started; and

(C) the relief to be sought in the intended proceeding; and

(b) the interim relief sought; and

(c) the material facts on which the application is based; and

(d) why the interim relief should be given.

803G.   Application for leave to serve subpoena in New Zealand

(1)  A person may apply for leave to serve a subpoena in New Zealand by filing an interlocutory application.

(2)  An application under subrule (1) must be accompanied by –

(a) a copy of the subpoena in relation to which leave is sought; and

(b) an affidavit stating, briefly but specifically, the following matters:

(i) the name, occupation and address of the addressee;

(ii) whether or not the addressee has attained the age of 18 years;

(iii) the nature and significance of the evidence to be given, or the document or thing to be produced, by the addressee;

(iv) details of the steps taken by the applicant to ascertain whether the evidence, document or thing is able to be obtained by other means without significantly greater expense, and with less inconvenience to the addressee;

(v) the date by which it is intended to serve the subpoena in New Zealand;

(vi) details of the amounts to be tendered to the addressee to meet the addressee's reasonable expenses of complying with the subpoena;

(vii) details of the way in which the amounts mentioned in subparagraph (vi) are to be given to the addressee;

(viii) if the subpoena requires the addressee to give evidence, an estimate of the time that the addressee will be required to attend Court to give the evidence;

(ix) any facts or matters known to the applicant that may be grounds for an application by the addressee to have the subpoena set aside under section 36(2) or (3) of the Trans-Tasman Proceedings Act.

(3)  Before granting leave to serve a subpoena under the Trans-Tasman Proceedings Act, the Court may require the applicant to make an undertaking that he or she will meet the reasonable expenses incurred by the addressee in complying with the subpoena if the expenses are likely to exceed the amounts to be tendered to the addressee as specified in the affidavit accompanying the subpoena.

(4)  In this rule –

addressee means the person named in a subpoena that is the subject of the application for leave under this rule.

803H.   Application to set aside subpoena

(1)  A person may apply to set aside a subpoena that was applied for under this Division and served in New Zealand.

(2)  An application under subrule (1)  –

(a) must be by an interlocutory application in the proceeding in which the subpoena, to which the application relates, was issued; and

(b) must be accompanied by –

(i) a copy of the subpoena; and

(ii) an affidavit stating –

(A) the material facts on which the application is based; and

(B) whether the person making the application requests that any hearing be held by audio link or audio visual link.

803I.   Application for issue of certificate of non-compliance with subpoena

(1)  A party to a proceeding may apply to the Court for the issue, under section 38 of the Trans-Tasman Proceedings Act, of a certificate of non-compliance with a subpoena, to which that Act applies, issued in respect of the proceeding.

(2)  An application under subrule (1) may be made –

(a) if the proceeding in which the subpoena was issued is before the Court, orally to the Court; or

(b) by filing an interlocutory application in the proceeding.

(3)  An application under subrule (1) must be accompanied by –

(a) a copy of the subpoena; and

(b) a copy of the order, under section 31 of the Trans-Tasman Proceedings Act, of a certificate of non-compliance with a subpoena, giving leave to serve the subpoena; and

(c) an affidavit of service for the subpoena; and

(d) a further affidavit stating the following:

(i) whether any application was made to set aside the subpoena;

(ii) if such an application referred to in subparagraph (i) is made –

(A) the material provided in support of the application; and

(B) any order that disposed of the application;

(iii) the material facts relied on for the application for the certificate of non-compliance.

803J.   Documents relating to application

A person must not, without the leave of a judge, search in a registry for, or inspect or copy, a document in an application under the Trans-Tasman Proceedings Act for use in relation to the serving of a subpoena in New Zealand.

Subdivision 3 - Recognition and enforcement of NZ judgment

803K.   Notice of registration of NZ judgment

(1)  A registered NZ judgment is not enforceable in this State before the expiry of the period mentioned in section 74(2) of the Trans-Tasman Proceedings Act, unless the entitled person has filed an affidavit with the Court that states that the entitled person has complied with section 73 of the Trans-Tasman Proceedings Act.

(2)  An affidavit under subrule (1) is to include proof of service of the notices of registration of the judgement required to be given under section 73 of the Trans-Tasman Proceedings Act.

(3)  If a respondent against whom a registered NZ judgment is enforceable is out of Australia, the notice of the registration of judgement, specified in section 73 of the Trans-Tasman Proceedings Act, may be served without leave of the Court.

803L.   Application for extension of time to give notice of registration of NZ judgment

(1)  An entitled person who wants to apply for an extension of the time within which to give notice of the registration of NZ judgment, under section 73(3) of the Trans-Tasman Proceedings Act, must file an originating application to a judge in chambers.

(2)  An application under subrule (1) must be accompanied by an affidavit stating –

(a) briefly, but specifically, the grounds relied on in support of the application; and

(b) the material facts relied on in support of the application; and

(c) why notice was not, or will not be, given within time.

803M.   Application to set aside registration of NZ judgment

(1)  An application under section 72(1) of the Trans-Tasman Proceedings Act may only be made by filing an originating application, in the proceeding in which the judgement was registered, to a judge in chambers.

(2)  An application under subrule (1) must be accompanied by an affidavit stating –

(a) briefly, but specifically, the grounds on which the registration of the judgment should be set aside; and

(b) the material facts relied on in support of the application.

803N.   Application for stay of enforcement of registered NZ judgment so that liable person can appeal judgment

(1)  A liable person who wants to apply for a stay of the enforcement of a registered NZ judgment under section 76(1) of the Trans-Tasman Proceedings Act, must file an originating application to a judge in chambers.

(2)  An application under subrule (1) must be accompanied by an affidavit stating –

(a) the order sought; and

(b) briefly, but specifically, the grounds relied on in support of the order sought; and

(c) the material facts relied on in support of the application.

803O.   Application for extension of time to apply for stay of enforcement of registered NZ judgment so that liable person can appeal judgment

(1)  A liable person who wants to apply for an extension of time within which to apply for the stay of enforcement of a registered NZ judgment under section 76(1) of the Trans-Tasman Proceedings Act, must file an originating application to a judge in chambers.

(2)  An application under subrule (1) must be accompanied by an affidavit stating –

(a) the order sought; and

(b) briefly, but specifically, the grounds relied on in support of the application; and

(c) the material facts relied on in support of the application; and

(d) why the application was not made within time.

Subdivision 4 - Miscellaneous

803P.   Application for order for use of audio link or audio visual link

(1)  A party who wants to apply for an order that evidence be taken, or submissions be made, by audio link or audio visual link, from New Zealand must file –

(a) an interlocutory application; and

(b) an accompanying affidavit.

(2)  Subrule (1) does not apply to a request mentioned in rule 803H(2)(b)(ii)(B) .

E. C. CRAWFORD

Chief Justice

P. E. EVANS

Puisne Judge

A. M. BLOW

Puisne Judge

S. E. TENNENT

Puisne Judge

D. J. PORTER

Puisne Judge

H. M. WOOD

Puisne Judge

Countersigned,

J. A. CONNOLLY

Registrar

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 15 August 2012

These Rules of Court are administered in the Department of Justice.

EXPLANATORY NOTE

(This note is not part of the rule)

These Rules of Court amend the Supreme Court Rules 2000 by specifying procedures in relation to –

(a) subpoenas, issued in civil proceedings, to which the Trans-Tasman Proceedings Act 2010 of the Commonwealth applies; and

(b) the recognition and enforcement of New Zealand judgments registered under that Act.