Dealing with conduct, people, and things outside New Zealand
This is a single section from Chapter 10. Read the full chapter here.
Are special procedural rules required for civil claims with a cross-border element?
Generally, the existing rules of court procedure for commencing proceedings against someone overseas should apply.
The High Court Rules and the District Court Rules contain standard rules about when civil proceedings can be commenced against someone overseas. There must be good reason for departing from these rules, particularly if the proceedings will be commenced in the High Court or the District Court. If a new judicial body, such as a tribunal, is created and may need to hear claims against someone overseas, the legislation should expressly provide for analogous procedural rules.
The Trans-Tasman Proceedings Act 2010 sets out a framework to facilitate the commencement and resolution of civil disputes if there is a trans-Tasman element, such as an Australian party. Further guidance on trans-Tasman proceedings can be found on the Ministry of Justice website.
If legislation creates substantive rights to redress, such as the right to recover damages, the likelihood of the legislation being applied in proceedings before overseas courts should be considered. If that is likely, provisions conferring jurisdiction to award redress should not be linked to a specifically New Zealand-based court or tribunal (for example, by defining reference to court as being to the New Zealand High Court). This ensures that the power to award redress can be exercised by a foreign court. Provisions should also avoid broad remedial discretions if possible, as foreign courts are generally unwilling to exercise discretions of this kind when applying another country’s laws.