A Trans-Tasman judicial area: civil jurisdiction and judgments in the Single Economic Market

Australia and New Zealand concluded the Agreement on Trans-Tasman Court Proceedings and Regulatory Enforcement in 2008, and have now implemented the Agreement by passing the Trans-Tasman Proceedings Acts. The Acts aim, with some significant adjustments, to bring New Zealand into the scheme for sorting cross-border jurisdiction and the cross-border enforcement of judgments that is currently in place for the Australian federation. Accordingly, they provide that litigation in the trans-Tasman market area is to be heard in the court that is the forum conveniens (or ‘the more appropriate court’) or that the parties to a contract have designated as the exclusive forum for the proceedings. Any Australian or New Zealand judgment will be enforceable by registration anywhere in the market area unless contrary to the public policy of the enforcing country or State. As a result, when in force, the Trans Tasman Proceedings Acts should realise the worthy, longstanding objective of securing a ‘uniform writ stretching from the Cocos (Keeling) Islands to the Chathams’. However, in their qualified reliance on the cross-border jurisdiction and judgments model used in the Australian federation, the Acts ignore some strengths of the Australian model and perpetuate some weaknesses. This article considers and critiques the new trans-Tasman scheme for jurisdiction and judgments. The scheme is overwhelming an improvement in trans-Tasman legal relations and cooperation. However, it has a number of flaws, including (1) removing Australian and New Zealand courts’ ability to deal with the possible problem of parallel and related litigation (‘lis pendens’) in trans-Tasman litigation, and the consequences of lis pendens (ie, possibly conflicting judgments); and (2) retaining public policy as a ground for refusing to enforce a judgment from the other country