Supreme Court (Chapters I and II Amendment) Rules 2017FILE/17-09… · Web view · 2017-09-22Supreme Court (Chapters I and II Amendment) Rules 2017. S.R. No. 97/2017. ... Part

Supreme Court (Chapters I and II Amendment) Rules 2017

S.R. No. 97/2017

TABLE OF PROVISIONSRule Page

Part 1—Preliminary 1

1 Objects 12 Authorising provisions 13 Commencement 1

Part 2—Amendment of Chapter I 2

4 Order 7A substituted 25 Statute law revision 12

Part 3—Amendment of Chapter II 13

6 Rule 16.05 revoked 13═════════════

Endnotes 15

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STATUTORY RULES 2017

S.R. No. 97/2017

Supreme Court Act 1986

Supreme Court (Chapters I and II Amendment) Rules 2017

The Judges of the Supreme Court make the following Rules:

Part 1—Preliminary1 Objects

The objects of these Rules are—

(a) to substitute Order 7A of Chapter I of the Rules of the Supreme Court to clarify the process for the registration under the Trans-Tasman Proceedings Act 2010 of the Commonwealth of New Zealand judgments and to alter certain related procedures; and

(b) to amend Order 16 of Chapter II of the Rules of the Supreme Court to abolish the requirement that, in a family provision proceeding, no step be taken after appearance until directions have been given.

2 Authorising provisions

These Rules are made under section 25 of the Supreme Court Act 1986 and all other enabling powers.

3 Commencement

These Rules come into operation on 1 October 2017.

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Part 2—Amendment of Chapter I4 Order 7A substituted

For Order 7A of the Supreme Court (General Civil Procedure) Rules 20151 substitute—

"Order 7A—Trans-Tasman proceedings

7A.01 Definitions

(1) In this Order—

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

(2) An expression used in the Trans-Tasman Proceedings Act has the same meaning in this Order as it has in that Act.Note

The following expressions used in this Order are defined in section 4 of the Trans-Tasman Proceedings Act—

audio link

audiovisual link

Australian court

document

enforcement

entitled person

given

inferior Australian court

liable person

NZ judgment

party

Supreme Court (Chapters I and II Amendment) Rules 2017S.R. No. 97/2017

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person named

procedural rules

proceeding

subpoena.

7A.02 Application of Order

This Order applies in relation to any proceeding or matter under the Trans-Tasman Proceedings Act.

7A.03 Commencement of proceeding for order under Trans-Tasman Proceedings Act

(1) Except as otherwise provided by or under the Trans-Tasman Proceedings Act or by this Order, a proceeding for an order under the Trans-Tasman Proceedings Act shall be commenced by originating motion.

(2) The originating motion shall be supported by an affidavit that states the material facts on which the applicant relies that are necessary to give the respondent fair notice of the case to be made against the respondent at the hearing.

7A.04 Interlocutory application under Trans-Tasman Proceedings Act

An interlocutory application of which notice is to be given to any person in a proceeding for an order under the Trans-Tasman Proceedings Act shall be made by summons.

7A.05 Application for interim relief

(1) An application for an order for interim relief under section 25 of the Trans-Tasman Proceedings Act shall be made by filing a summons.


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(2) The summons shall be supported by an affidavit stating—

(a) if the applicant has commenced a proceeding in a New Zealand court—

(i) that the person has commenced a proceeding in a New Zealand court; and

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

(iii) the steps taken in the New Zealand proceeding;

(b) if the applicant intends to commence a proceeding in the New Zealand court—

(i) when the intended proceeding will be commenced; and

(ii) the court in which the intended proceeding is to be commenced; and

(iii) the relief to be sought in the intended proceeding;

(c) the interim relief sought;

(d) why the interim relief should be given.

7A.06 Application for leave to serve subpoena in New Zealand

(1) An application under section 31(1) of the Trans-Tasman Proceedings Act for leave to serve a subpoena in New Zealand may be made—

(a) orally to the Court; and

(b) without summons or notice to any person.


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(2) The application shall be supported by an affidavit—

(a) stating briefly, but specifically, the following—

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

(ii) whether 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 to ascertain whether the evidence, document or thing could 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 given to the addressee to meet the addressee's reasonable expenses of complying with the subpoena;

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

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


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(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; and

(b) exhibiting a copy of the subpoena in relation to which leave is sought.

Note

Pursuant to section 37(4) of the Trans-Tasman Proceedings Act, the Court may make orders to ensure that the person complying with the subpoena receives the amount of the person's reasonable expenses in so complying.

7A.07 Form of subpoena

A subpoena to which this Order applies shall be in accordance with—

(a) Form 7AA, for a subpoena to give evidence;

(b) Form 7AB, for a subpoena to produce documents;

(c) Form 7AC, for a subpoena to give evidence and produce documents.

7A.08 Application to set aside subpoena

(1) An application under section 35 of the Trans-Tasman Proceedings Act to set aside a subpoena served in New Zealand shall be made by filing a summons in the proceeding in which the subpoena was issued.

(2) The summons shall be supported by an affidavit—

(a) stating the material facts on which the application is based;


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(b) stating whether the applicant requests that any hearing be held by audio link or audiovisual link; and

(c) exhibiting a copy of the subpoena.

7A.09 Application for issue of certificate of non-compliance with subpoena

(1) A party 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.

(2) An application may be made—

(a) orally to the Court; and


(3) The application shall be supported by—

(a) an affidavit of service of the subpoena; and

(b) a further affidavit stating the following—

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

(ii) the material in support of any application to set aside the subpoena;

(iii) any order that disposed of any application to set aside the subpoena;

(iv) the material facts relied on for the issue of a certificate of non-compliance.


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(4) The affidavit referred to in paragraph (3)(b) shall exhibit—

(a) a copy of the subpoena; and

(b) a copy of the order giving leave to serve the subpoena.

7A.10 Form of certificate of non-compliance

(1) A certificate of non-compliance with a subpoena shall be in Form 7AD.

(2) The certificate of non-compliance may be signed and sealed by the Judge of the Court, the Associate Judge or the judicial registrar who issued the certificate or by the Prothonotary.

7A.11 Application for registration of NZ judgment

(1) An application under section 67 of the Trans-Tasman Proceedings Act for registration under section 68 of that Act of an NZ judgment shall be made to the Prothonotary.Note

See Regulation 17 and Form 5 of the Trans-Tasman Proceedings Regulation 2012 of the Commonwealth made under the Trans-Tasman Proceedings Act.

(2) Where the Prothonotary registers an NZ judgment, the matter in which the judgment is registered shall, for the purposes of Rules 7A.12, 7A.13(1), 7A.14(1), 7A.15(1) and 7A.16(1), be taken to be a proceeding.


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7A.12 Notice of registration of NZ judgment

An entitled person shall not take any step to enforce a registered NZ judgment unless the entitled person has filed an affidavit stating that notice of the registration of the NZ judgment has been given in accordance with—

(a) section 73 of the Trans-Tasman Proceedings Act; and

(b) any regulations made under that Act.

7A.13 Application for extension of time to give notice of registration of NZ judgment

(1) An application by an entitled person for an extension of the time within which to give notice of the registration of an NZ judgment under section 73(3) of the Trans-Tasman Proceedings Act may be made—

(a) orally to the Court in the proceeding in which the judgment is registered; and


(2) An application under paragraph (1) shall be supported by an affidavit stating—

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

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

(c) why notice was not given within time.

7A.14 Application to set aside registration of NZ judgment

(1) An application by a liable person to set aside the registration of an NZ judgment under section 72(1) of the Trans-Tasman


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Proceedings Act shall be made by filing a summons in the proceeding in which the judgment is registered.


(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.

Note

An application to set aside the registration of an NZ judgment must be made within 30 working days of the Court after the day on which the liable person was served with notice of the registration, or within any shorter or longer period that the Court considers appropriate—see section 72(2) of the Trans-Tasman Proceedings Act.

7A.15 Application for stay of enforcement of registered NZ judgment to enable liable person to appeal

(1) An application by a liable person for a stay of the enforcement of a registered NZ judgment under section 76(1) of the Trans-Tasman Proceedings Act to enable the person to appeal against the judgment shall be made by filing a summons in the proceeding in which the judgment is registered.


(a) the order sought;

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


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

7A.16 Application for extension of time to apply for stay of enforcement of registered NZ judgment to enable liable person to appeal

(1) An application by a liable person for an extension of the time within which to apply for the stay of enforcement of a registered NZ judgment under section 76(3) of the Trans-Tasman Proceedings Act to enable the person to appeal against the judgment shall be made by filing a summons in the proceeding in which the judgment is registered.


(a) the order sought;

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

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

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

7A.17 Application for order for use of audio link or audiovisual link

(1) A party may apply for an order that evidence be taken, or submissions be made, by audio link or audiovisual link from New Zealand by filing an application in accordance with Order 41A.

(2) Paragraph (1) does not apply to a request referred to in Rule 7A.08(2)(b).".


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5 Statute law revision

In Rule 8.06(1.1) of the Supreme Court (General Civil Procedure) Rules 2015, for "subparagraph" (where twice occurring) substitute "paragraph".


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Part 3—Amendment of Chapter II6 Rule 16.05 revoked

Rule 16.05 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 20082 is revoked.

Dated: 21 September 2017

M. L. WARREN, C.J.

CHRISTOPHER MAXWELL, P.

PAMELA TATE, J.A.

R. S. OSBORN, J.A.

J. G. SANTAMARIA, J.A.

DAVID F. R. BEACH, J.A.

ANNE FERGUSON, J.A.

S. G. E. McLEISH, J.A.

KIM HARGRAVE, J.

ANTHONY CAVANOUGH, J.

JACK FORREST, J.

LEX LASRY, J.

JAMES JUDD, J.

PETER VICKERY, J.

CLYDE CROFT, J.

PETER ALMOND, J.

JOHN R. DIXON, J.

C. MACAULAY, J.

GREG GARDE, J.

G. J. DIGBY, J.

T. J. GINNANE, J.


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MELANIE SLOSS, J.

CHRISTOPHER W. BEALE, J.

RITA ZAMMIT, J.

P. J. RIORDAN, J.

JANE A. DIXON, J.

A. J. KEOGH, J.

MAREE KENNEDY, J.

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Endnotes

Endnotes


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1 Rule 4: S.R. No. 103/2015. Reprint No. 1 as at 1 October 2016. Reprinted to S.R. No. 109/2016. Subsequently amended by S.R. Nos 138/2016, 139/2016, 14/2017, 15/2017, 32/2017 and 33/2017.

2 Rule 6: S.R. No. 94/2008. Reprint No. 2 as at 26 March 2015. Reprinted to S.R. No. 209/2014. Subsequently amended by S.R. Nos 142/2015, 14/2016 and 15/2017.

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Supreme Court (Chapters I and II Amendment) Rules 2017FILE/17-09… · Web view · 2017-09-22Supreme Court (Chapters I and II Amendment) Rules 2017. S.R. No. 97/2017. ... Part