EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111, 1994
Making Information
- Assented to 16 September 1994
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - TABLE OF
PROVISIONS
TABLE
TABLE OF PROVISIONS
PART 1-PRELIMINARY Section
1. Short title
2. Commencement
3. Definitions
4. Extended definitions of "court" etc.
5. External Territories
6. Act to bind Crown
PART 2-AUSTRALIAN SUBPOENAS
7. Application of this Part
8. Service of subpoenas in New Zealand
9. Subpoenas not to be served without leave
10. How subpoenas are to be served in New Zealand
11. Expenses
12. Subpoenas not requiring attendance
13. Applications to set subpoenas aside
14. Setting aside subpoenas
15. Entitlement to expenses
16. Non-compliance with subpoenas
17. Courts' other powers unaffected
PART 3-NEW ZEALAND SUBPOENAS
18. Application of this Part
19. Service of subpoenas in Australia
20. Obligation to comply with subpoenas
21. Non-compliance with subpoenas
22. Documents etc. for transmission to a New Zealand court
23. Other powers to serve subpoenas unaffected
PART 4-USE OF VIDEO LINKS OR TELEPHONES IN AUSTRALIAN PROCEEDINGS
24. Application of this Part
25. Australian courts may take evidence etc. from New Zealand
26. Taking evidence by video link
27. Taking evidence by telephone
28. Expenses
29. New Zealand counsel entitled to practise in Australia during
video links etc.
PART 5-USE OF VIDEO LINKS OR TELEPHONES IN NEW ZEALAND PROCEEDINGS
30. New Zealand courts may take evidence etc. from Australia
31. Powers of New Zealand courts
32. Orders made by New Zealand courts
33. Enforcement of orders
34. Privileges, protection and immunity of participants in New
Zealand proceedings
35. New Zealand courts may administer oath in Australia
36. Assistance to New Zealand courts
37. Contempt of New Zealand courts
PART 6-EVIDENCE OF CERTAIN NEW ZEALAND MATTERS
38. Application of this Part
39. Faxes
40. Matters of law
41. Evidence of New Zealand official instruments
42. Evidence of New Zealand acts of state
43. Evidence of public documents admissible in New Zealand under
New Zealand Acts
44. Evidence of other New Zealand public documents
45. Evidence of New Zealand documents of a public nature
46. Part not to derogate from existing Australian laws
PART 7-MISCELLANEOUS
47. Application of the Foreign Judgments Act 1991
48. Rules of Court
49. Regulations Evidence and Procedure (New Zealand) Act 1994
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - LONG TITLE
SECT
An Act about certain matters relating to evidence and procedure
in Australia and New Zealand, and for related purposes
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - PART 1
PART 1-PRELIMINARY
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 1
Short title
SECT
1. This Act may be cited as the Evidence and Procedure (New Zealand) Act
1994.
(Minister's second reading speech made in-
House of Representatives on 25 November 1993
Senate on 23 August 1994)
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 2
Commencement
SECT
2. (1) Sections 1 and 2 commence on the day on which this Act receives the
Royal Assent.
(2) The remaining provisions of this Act commence on a day to be fixed by
Proclamation.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 3
Definitions
SECT
3.
(1) In this Act, unless the contrary intention appears:
"court" includes the extended meaning given in section 4;
"document" means any record of information, and includes:
(a) anything on which there is writing; or
(b) anything on which there are marks, figures, symbols or perforations
having a meaning for persons qualified to interpret them; or
(c) anything from which sounds, images or writings can be reproduced with or
without the aid of anything else; or
(d) a map, plan, drawing or photograph;
"expenses", in relation to a subpoena, include the reasonable costs of:
(a) necessary travel to and from, and accommodation at, the place where
complying with the subpoena is required; or
(b) finding, collating and producing a document or thing; for the purposes
of complying with the subpoena;
"family proceeding" means a proceeding relating to:
(a) guardianship of a child; or
(b) custody of a child; or
(c) access to a child; or
(d) marriage or divorce; or
(e) maintenance of a child; or
(f) maintenance of a spouse or former spouse; or
(g) property arising out of a marital relationship or a de facto
relationship (including a former marital relationship or a former de facto
relationship), being property owned by one of the spouses or both of them; or
(h) paternity; or
(i) adoption; or
(j) protection of persons from domestic violence or domestic molestation;
or
(k) the status or property of a person who is not fully able to manage his
or her own affairs;
"fax", in relation to a document, means a copy of the document that has been
reproduced by facsimile telegraphy;
"federal court" includes the extended meaning given in section 4;
"inferior court" means a court that is not a superior court;
"New Zealand Act" means an Act of the Parliament of New Zealand;
"New Zealand Minister" means a Minister of the Crown of New Zealand;
"official instrument" includes a proclamation, commission, appointment,
warrant or order;
"person named", in relation to a subpoena, means the person to whom the
subpoena is addressed;
"public document" includes:
(a) a record required by New Zealand law to be kept of a public document or
proceeding; or
(b) an entry in a public register or book; or
(c) a certificate issued by a New Zealand officer under New Zealand law;
"spouse" includes de facto spouse;
"subpoena" means a subpoena to give evidence, a subpoena for production or a
subpoena that is both a subpoena to give evidence and a subpoena for
production, but does not include a process that requires a person to produce a
document in connection with discovery and inspection of documents;
"subpoena for production" means a process that requires the person named to
attend as directed by the order and produce a document or thing for the
purpose of evidence;
"subpoena to give evidence" means a process that requires the person named
to attend as directed by the order for the purpose of giving evidence;
"superior court" means:
(a) the High Court; or
(b) the Federal Court of Australia or the Family Court of Australia; or
(c) the Supreme Court of a State or Territory.
(2) A reference in this Act to a subpoena issued by a court is a reference
to a subpoena issued by or out of the court. Extended definitions of "court"
etc.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 4
SECT
4. (1) A tribunal is taken for the purposes of a Part of this Act to be a
court if the regulations so provide.
(2) Regulations made for the purposes of subsection (1) may specify, in
relation to a particular tribunal, any one or more Parts of this Act other
than this Part or Part 6.
(3) A member of a tribunal that, under this section, is taken to be a court
for the purposes of a Part of this Act is, for the purposes of that Part,
taken to be a judge of such a court.
(4) If the tribunal is established under a law of the Commonwealth, any
reference in this Act to a federal court, in addition to the meaning given by
paragraph 26(b) of the Acts Interpretation Act 1901, includes a reference to
that tribunal.
(5) In this section:
"tribunal" means a person or body authorised by or under a law of the
Commonwealth, a State, a Territory or New Zealand to take evidence on oath or
affirmation, but does not include:
(a) a court; or
(b) a person exercising a power conferred on the person as a judge,
magistrate, coroner or officer of a court.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 5
External Territories
SECT
5. This Act extends to each external Territory.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 6
Act to bind Crown
SECT
6. This Act binds the Crown in all its capacities.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - PART 2
PART 2-AUSTRALIAN SUBPOENAS
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 7
Application of this Part
SECT
7. This Part applies to a subpoena that is issued in a proceeding in:
(a) a federal court; or
(b) a court of a State or Territory that is a court specified in regulations
made for the purposes of this paragraph; other than a criminal proceeding or
family proceeding.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 8
Service of subpoenas in New Zealand
SECT
8. (1) Subject to the regulations and any applicable Rules of Court, the
subpoena may be served in New Zealand if leave is given under section 9.
(2) The subpoena may require the person named to attend to give evidence or
produce documents at a place in Australia or a place in New Zealand.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 9
Subpoenas not to be served without leave
SECT
9. (1) If the proceeding is in a superior court, the subpoena must not be
served in New Zealand without the leave of a judge of the court.
(2) If the proceeding is in an inferior court, the subpoena must not be
served in New Zealand without the leave of a judge of:
(a) in any case-the Federal Court of Australia; or
(b) if the inferior court is a court of a particular State or Territory-the
Supreme Court of that State or Territory.
(3) Without limiting the matters that the judge may take into account in
deciding whether to give leave, the judge is to take into account:
(a) the significance of the evidence to be given, or the document or thing
to be produced, by the person named; and
(b) whether the evidence, document or thing could be obtained by other means
without significantly greater expense, and with less inconvenience to the
person named.
(4) In giving leave, the judge:
(a) is to impose a condition that the subpoena not be served after a
specified day; and
(b) may impose other conditions.
(5) The judge must not give leave if the person named is less than 18 years
old.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 10
How subpoenas are to be served in New Zealand
SECT
10. (1) Subject to subsections (2) and (3), service may only be effected in
New Zealand in the same way in which the subpoena would be served in the State
or Territory in which it was issued.
(2) Service must be in accordance with the directions (if any) given by the
judge in giving leave.
(3) Service of the subpoena is effective only if it is accompanied by a copy
of the order giving leave to serve the subpoena in New Zealand and by a notice
in the prescribed form that:
(a) sets out the rights and obligations of the person named in relation to
the subpoena; and
(b) includes information about the way in which an application to have the
subpoena set aside may be made.
(4) If there is no prescribed form for notices accompanying subpoenas issued
by a particular court, notices accompanying those subpoenas must be in the
corresponding form under the Federal Court Rules, with such modifications as
are necessary.
(5) In this section:
"prescribed" means prescribed by the regulations or by the Rules of Court of
the court a judge of which gave leave for the subpoena to be issued.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 11
Expenses
SECT
11. (1) Service of the subpoena is effective only if, at the time of service
or at some other reasonable time before the person named is required to comply
with it, allowances and travelling expenses sufficient to meet the person's
reasonable expenses of complying with the subpoena are paid or tendered to the
person.
(2) The reference in subsection (1) to allowances and travelling expenses
includes a reference to vouchers tendered in substitution for the whole or
part of those allowances and travelling expenses.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 12
Subpoenas not requiring attendance
SECT
12. If the subpoena only requires production of a document or thing, it must
permit the person named to comply by producing the document or thing at any
registry of the High Court of New Zealand not later than 10 days before the
date specified in the subpoena as the date on which the document or thing is
required for production in the court by which the subpoena was issued.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 13
Applications to set subpoenas aside
SECT
13. (1) The person named in the subpoena may apply for the subpoena to be
set aside.
(2) The application must be made to the court a judge of which gave leave
for the subpoena to be served.
(3) The application must contain an address in Australia or New Zealand that
is the applicant's address for service.
(4) Any document in the proceedings may be served on the applicant by:
(a) leaving it at that address; or
(b) faxing it to the applicant at that address; or
(c) sending it by post to the applicant at that address.
(5) The Registrar of the court must cause a copy of the application, and any
affidavit setting out facts on which the applicant wishes to rely in support
of the application, to be served on:
(a) the solicitor on the record for the person who obtained leave to serve
the subpoena in New Zealand; or
(b) if there is no solicitor on the record-that person.
(6) Without limiting the ways in which the application may be made under the
law and rules applicable to the court to which the application is made, it may
be made by transmitting the application to the court by fax.
(7) This section is in addition to, and not in derogation of, any Rules of
Court.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 14
Setting aside subpoenas
SECT
14. (1) The court may set aside the subpoena in whole or in part.
(2) The court must set the subpoena aside if:
(a) the subpoena requires the person named to attend at a place in Australia
and the court is satisfied that:
(i) the person does not have the necessary travel documents and
cannot by the exercise of reasonable diligence obtain them within the time
permitted for compliance with the subpoena; or
(ii) were the person to comply with the subpoena, he or she would
be liable to be detained for the purpose of serving a sentence; or
(iii) the person is liable to a prosecution, or is being
prosecuted for an offence, in Australia; or
(iv) the person is liable to the imposition of a penalty in civil
proceedings in Australia (other than proceedings under the Trade Practices Act
1974); or
(b) the court is satisfied that the person is subject to a restriction on
his or her movements, imposed by law or by order of a court, that is
inconsistent with the person complying with the subpoena.
(3) Without limiting the grounds on which the subpoena may be set aside, the
court may set it aside if the court is satisfied that:
(a) the evidence to be given by the person named could be obtained
satisfactorily by other means without significantly greater expense; or
(b) compliance with the subpoena would cause the person hardship or serious
inconvenience; or
(c) in the case of a subpoena for production:
(i) the document or thing should not be taken out of New Zealand;
and
(ii) satisfactory evidence of the contents of the document, or
satisfactory evidence of the thing, can be given by other means. or the person
(if any) at whose request the subpoena was issued, objects.
(4) The court may determine the application without a hearing unless the applicant, or the person (if any) at whose request the subpoena was issued, objects.
(5) For the purposes of determining the application, the court may hold a
hearing by video link or telephone, as the court directs.
(6) The court must hold a hearing in accordance with subsection (5) if the
applicant requests, in the application or within a reasonable time after
lodging the application, that the court exercise its powers under that
subsection.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 15
Entitlement to expenses
SECT
15. (1) The person named is entitled to payment of an amount equal to the
reasonable expenses incurred by the person in complying with the subpoena.
(2) If the subpoena was issued at the request of a person, the amount must
be paid by that person.
(3) If the subpoena was not issued at the request of a person, the amount
must be paid:
(a) if the subpoena was issued by a federal court-by the Commonwealth; or
(b) in any other case-by the State or Territory in which the subpoena was
issued.
(4) The court out of which the subpoena was issued may make orders to ensure
that the person complying with the subpoena receives the amount of the
person's reasonable expenses in so complying.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 16
Non-compliance with subpoenas
SECT
16. If the person named in the subpoena fails to comply with it, the court
out of which it was issued may issue a certificate under the seal of the court
stating that:
(a) leave to serve the subpoena was given by:
(i) if the court is a superior court-a judge of the court; or
(ii) if the court is an inferior court-a judge of the Federal Court
of Australia, or a judge of the Supreme Court in the State or Territory in
which the application for leave to issue the subpoena was made, as the case
requires; and
(b) the person named failed to comply with the subpoena.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 17
Courts' other powers unaffected
SECT
17. This Part does not limit any powers of a court conferred otherwise than
under this Part.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - PART 3
PART 3-NEW ZEALAND SUBPOENAS
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 18
Application of this Part
SECT
18. This Part (other than section 23) applies to a subpoena:
(a) that was issued in a proceeding in a New Zealand court, other than a
criminal proceeding or a family proceeding; and
(b) in relation to which a Judge of the High Court of New Zealand has given
leave for its service in Australia.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 19
Service of subpoenas in Australia
SECT
19. The subpoena may be served on a person in Australia by serving it on the
person together with:
(a) a copy of the order of the judge of the High Court of New Zealand
granting leave to serve the subpoena in Australia; and
(b) a notice that:
(i) sets out the rights and obligations of the person named in
relation to the subpoena; and
(ii) includes information about the way in which an application
may be made to the High Court of New Zealand to have the subpoena set aside.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 20
Obligation to comply with subpoenas
SECT
20. (1) A person served in Australia with the subpoena must comply with it
if:
(a) the subpoena was served in accordance with section 19; and
(b) the subpoena was served in accordance with the law of New Zealand; and
(c) the person is at least 18 years of age; and
(d) at the time of service or at some other reasonable time before the
person is required to comply, allowances and travelling expenses sufficient to
meet the person's reasonable expenses of complying with the subpoena are paid
or tendered to the person.
(2) This section does not affect any right a person has under the law of New
Zealand to apply to have the subpoena set aside.
(3) The reference in paragraph (1)(d) to allowances and travelling expenses
includes a reference to vouchers tendered in substitution for the whole or
part of those allowances and travelling expenses.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 21
Non-compliance with subpoenas
SECT
21. (1) A person who contravenes section 20:
(a) is taken to be in contempt of the Federal Court of Australia; and
(b) is punishable accordingly; unless the person establishes that the
contravention should be excused.
(2) In determining whether the contravention should be excused, the Federal
Court of Australia may have regard to:
(a) any matters that have not been brought to the attention of the High
Court of New Zealand, if the Federal Court of Australia is satisfied that:
(i) the High Court of New Zealand would have been likely to have
set aside the subpoena if the matters had been brought to its attention; and
(ii) the failure to bring the matters to the attention of the High
Court of New Zealand was not the person's fault, or was the result of an
omission by the person that should be excused; and
(b) any other matters to which the Federal Court of Australia would have had
regard if it had issued the subpoena.
(3) A certificate under a seal of the New Zealand court out of which the
subpoena was issued stating that:
(a) a judge of the High Court of New Zealand granted leave to serve the
subpoena in Australia; and
(b) the person named failed to comply with the subpoena; is evidence of the
person's contravention of section 20 unless the person establishes to the
satisfaction of the Federal Court of Australia that the person did not in fact
contravene that section.
(4) Findings of fact made by the High Court of New Zealand on an application
to that court to set aside the subpoena cannot be challenged by a person
alleged to have contravened section 20 unless that court was deliberately
misled in making those findings of fact.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 22
Documents etc. for transmission to a New Zealand court
SECT
22. (1) Subject to subsection (2), the Federal Court of Australia, and any
court of a State or Territory that is a court specified in regulations made
for the purposes of this subsection, are authorised to receive a document or
thing that is required by a subpoena to be produced.
(2) If, in relation to such a court, the regulations so provide, this
section only applies in relation to specified locations of the court's
registry.
(3) If a document or thing is lodged at the registry of such a court in
compliance with a subpoena, the Registrar of the court must, as soon as
practicable after lodgment, cause:
(a) the Registrar of the court that issued the subpoena to be informed, by
fax or electronic mail, that the document or thing has been so lodged; and
(b) the document or thing to be transmitted to that court.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 23
Other powers to serve subpoenas unaffected
SECT
23. This Part does not affect any right or power, conferred by or under a
law of New Zealand, to serve a subpoena in Australia on a citizen of New
Zealand.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - PART 4
PART 4-USE OF VIDEO LINKS OR TELEPHONES IN AUSTRALIAN PROCEEDINGS
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 24
Application of this Part
SECT
24. This Part applies to a proceeding in:
(a) a federal court; or
(b) a court of a State or Territory that is a court specified in regulations
made for the purposes of this paragraph.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 25
Australian courts may take evidence etc. from New Zealand
SECT
25. (1) The court may, on the application of a party to a proceeding, direct
that evidence be taken or submissions made, by video link or telephone, from
New Zealand.
(2) The court must not make such a direction unless it is satisfied that:
(a) the necessary facilities are available or can reasonably be made
available; and
(b) the evidence or submission can more conveniently be given or made from
New Zealand.
(3) The court may exercise in New Zealand, in connection with taking
evidence the court is permitted, under New Zealand law, to exercise in New
Zealand.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 26
Taking evidence by video link
SECT
26. Evidence must not be given, and a submission must not be made, by video
link unless the courtroom or other place where the court is sitting, and the
place where the evidence would be given or the submission would be made, are
equipped with video facilities that enable:
(a) persons who are at the courtroom or other place to see and hear the
person giving the evidence or making the submission; and
(b) persons who are at the place where the evidence is given or the
submission is made to see and hear persons at the courtroom or other place.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 27
Taking evidence by telephone
SECT
27. Evidence must not be given, and a submission must not be made, by
telephone unless the courtroom or other place where the court is sitting, and
the place where the evidence would be given or the submission would be made,
are equipped with telephone conference facilities that enable:
(a) persons who are at the courtroom or other place to hear the person
giving the evidence or the submission; and
(b) persons who are at the place where the evidence is given or the
submission is made to hear persons at the courtroom or other place.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 28
Expenses
SECT
28. (1) If the court directs evidence to be taken, or submissions to be
received, by video link or telephone from a person in New Zealand, the court
may make such orders as are just for payment of expenses incurred in
connection with taking the evidence or making the submissions.
(2) Regulations made for the purposes of subsection 4(1) that provide that a
particular tribunal (within the meaning of section 4) established by a law of
the Commonwealth is a court for the purposes of this Part may also provide
that the tribunal cannot make an order under this section against a person
other than the Commonwealth.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 29
New Zealand counsel entitled to practise in Australia during video links etc.
SECT
29. A person who is entitled to practise as a barrister, solicitor or both
before the High Court of New Zealand is entitled to practise as a barrister,
solicitor or both:
(a) in relation to the examination-in-chief, cross-examination or
re-examination of a witness in New Zealand whose evidence is being given by
video link or telephone in a proceeding before a court sitting in Australia;
or
(b) in relation to the making of submissions by video link or telephone from
New Zealand in a proceeding before a court sitting in Australia.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - PART 5
PART 5-USE OF VIDEO LINKS OR TELEPHONES IN NEW ZEALAND PROCEEDINGS
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 30
New Zealand courts may take evidence etc. from Australia
SECT
30. A New Zealand court may, for the purposes of a proceeding in New
Zealand, take evidence or receive submissions, by video link or telephone,
from a person in Australia.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 31
Powers of New Zealand courts
SECT
31. (1) The court may, for the purposes of the proceeding, exercise in
Australia, in connection with taking evidence or receiving submissions by
video link or telephone, any of its powers except its powers:
(a) to punish for contempt; and
(b) to enforce or execute its judgments or process.
(2) The laws of New Zealand (including the Rules of Court) that apply to the
proceeding in New Zealand also apply, by force of this subsection, to the
practice and procedure of the court in taking evidence or receiving
submissions, by video link or telephone, from a person in Australia.
(3) For the purposes of the court exercising its powers, the place in
Australia where the evidence is given or submissions are made is taken to be
part of the court.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 32
Orders made by New Zealand courts
SECT
32. Without limiting section 31, the court may, by order:
(a) direct that the proceeding, or a part of the proceeding, be conducted in
private; or
(b) require a person to leave the place in Australia where the giving of
evidence or the making of submissions is taking place or is going to take
place; or
(c) prohibit or restrict the publication of evidence given in the proceeding
or of the name of a party to, or a witness in, the proceeding.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 33
Enforcement of orders
SECT
33. (1) An order under section 32 must be complied with.
(2) Subject to the Federal Court Rules, the order may be enforced by a Judge
of the Federal Court of Australia as if the order were an order of the Federal
Court of Australia.
(3) Without limiting subsection (2), a person who contravenes the order:
(a) is taken to be in contempt of the Federal Court of Australia; and
(b) is punishable accordingly; unless the person establishes that the
contravention should be excused. Privileges, protection and immunity of
participants in
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 34
New Zealand proceedings
SECT
34. (1) A judge or master presiding at or otherwise taking part in the
proceeding has, in connection with evidence being taken or submissions being
received by video link or telephone from a person in Australia, the same
privileges, protection and immunity as a Judge of the Federal Court of
Australia.
(2) A person appearing as a barrister, solicitor or both in the proceeding
has, in connection with evidence being taken or submissions being received by
video link or telephone from a person in Australia, the same protection and
immunity as a barrister has in appearing for a party in a proceeding before
the Federal Court of Australia.
(3) A person appearing as a witness in the proceeding by video link or
telephone from Australia has the same protection as a witness in a proceeding
in the Federal Court of Australia.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 35
New Zealand courts may administer oath in Australia
SECT
35. (1) The court may, for the purpose of obtaining in the proceeding, by
video link or telephone, the testimony of a person in Australia, administer an
oath or affirmation in accordance with the practice and procedure of the
court.
(2) Evidence given by a person on oath or affirmation so administered is,
for the purposes of section 35 of the Crimes Act 1914, testimony given in a
judicial proceeding.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 36
Assistance to New Zealand courts
SECT
36. (1) An officer of an Australian court to which this section applies may,
at the request of the New Zealand court:
(a) attend at the place in Australia where evidence is to be or is being
taken, or submissions are to be or are being made, in the proceeding; and
(b) take such action as the New Zealand court directs to facilitate the
proceeding; and
(c) assist with the administering by the New Zealand court of an oath or
affirmation.
(2) This section applies to:
(a) the Federal Court of Australia or the Family Court of Australia; or
(b) a court of a State or Territory that is a court specified in regulations
made for the purposes of this paragraph.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 37
Contempt of New Zealand courts
SECT
37. A person must not, while evidence is being given or a submission is
being made in Australia, by video link or telephone, in the proceeding:
(a) assault in Australia:
(i) a person appearing in the proceeding as a barrister, a
solicitor or both; or
(ii) a witness in the proceeding; or
(iii) an officer of an Australian court giving assistance under
section 36; or
(b) threaten, intimidate or wilfully insult:
(i) a judge of the New Zealand court who is taking part in the
proceeding; or
(ii) a Master, Registrar, Deputy Registrar or other officer of
that court who is taking part in or assisting in the proceeding; or
(iii) a person appearing in the proceeding as a barrister, a
solicitor or both; or
(iv) a witness in the proceeding; or
(c) wilfully interrupt or obstruct the proceeding; or
(d) wilfully and without lawful excuse disobey an order or direction of the
court.
Penalty: Imprisonment for 3 months.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - PART 6
PART 6-EVIDENCE OF CERTAIN NEW ZEALAND MATTERS
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 38
Application of this Part
SECT
38. (1) This Part applies to all proceedings in a court in Australia,
including such proceedings that:
(a) relate to bail; or
(b) are interlocutory proceedings or proceedings of a similar kind; or
(c) are heard in chambers; or
(d) relate to sentencing.
(2) In this section:
"court" means:
(a) a federal court; or
(b) a court of a State of Territory; or
(c) a person or body authorised by:
(i) a law of the Commonwealth, a State or Territory; or
(ii) consent of parties; to hear, receive or examine evidence.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 39
Faxes
SECT
39. Subject to any Rules of Court, this Part applies to a fax of a document
in the same way as it applies to the original of the document (whether or not
the original is itself a copy or an extract of a document).
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 40
Matters of law
SECT
40. (1) Proof is not required about the provisions and coming into operation
(in whole or in part) of:
(a) a New Zealand Act or an Imperial Act in force in New Zealand; or
(b) a regulation, rule or by-law made, or purporting to be made, under such
an Act; or
(c) a Proclamation or order made, or purporting to be made, by the
Governor-General of New Zealand under such an Act; or
(d) an instrument of a legislative character (for example, a rule of court)
made, or purporting to be made, under such an Act, being an instrument that is
required by or under a law to be published, or the making of which is required
by or under a law to be notified, in the New Zealand Gazette.
(2) A judge, or such other person as is presiding in the proceeding, may
inform himself or herself about those matters in any way that he or she thinks
fit.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 41
Evidence of New Zealand official instruments
SECT
41. Evidence of an official instrument issued by the Governor-General of New
Zealand, or by or under the authority of a New Zealand Minister, may be
adduced by producing:
(a) if the instrument was made by the Governor-General in Council of New
Zealand-a copy of, or an extract from, the instrument purporting to have been
certified as a true copy or extract by the Clerk of the Executive Council of
New Zealand; or
(b) a copy of, or an extract from, the instrument purporting to have been
certified as a true copy or extract by a New Zealand Minister.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 42
Evidence of New Zealand acts of state
SECT
42. Evidence of a treaty or other act of state of New Zealand may be adduced
by producing:
(a) a copy of it that purports to be sealed with the seal of New Zealand;
or
(b) a book or pamphlet, containing the treaty or act of state, that purports
to have been printed by authority of the New Zealand Government; or
(c) a book or other publication, containing the treaty or act of state, that
appears to the court to be a reliable source of information; or
(d) a book or pamphlet that would be admissible in the courts of New Zealand
as evidence of the treaties or acts of state of New Zealand that are contained
in the book or pamphlet; or
(e) a copy of the treaty or act of state that is proved to be an examined
copy; or
(f) a document that:
(i) purports to be a copy of the treaty or act of state; and
(ii) on which is endorsed, or to which is attached, a certificate
by the person who has custody of the original, stating that the document is a
true copy of the original.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 43
Evidence of public documents admissible in New Zealand under New Zealand Acts
SECT
43. (1) If, under a New Zealand Act, a public document is admissible in
evidence, to any extent or for any purpose, the document is, without further
proof, admissible in evidence to the same extent and for the same purpose if
it purports to be sealed, stamped, signed, signed and sealed or signed and
stamped in accordance with the New Zealand Act.
(2) If a document is admissible in evidence under subsection (1), a
certified copy of it, or a certified extract from it, is also admissible in
evidence.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 44
Evidence of other New Zealand public documents
SECT
44. If, under New Zealand law, a public document is admissible in evidence,
to any extent or for any purpose, without proof of:
(a) the seal, stamp or signature that authenticates it; or
(b) the judicial or official character of the person who appears to have
signed it; the document is admissible in evidence to the same extent and for
the same purpose without such proof.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 45
Evidence of New Zealand documents of a public nature
SECT
45. If a document in New Zealand is of such a public nature as to be
admissible in evidence in New Zealand on its mere production from proper
custody, a copy of, or extract from, it is admissible in evidence if the copy
or extract:
(a) is proved to be an examined copy or extract; or
(b) purports to be signed and certified as a true copy or extract by a New
Zealand officer who certifies that he or she has custody of it.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 46
Part not to derogate from existing Australian laws
SECT
46. This Part is in addition to, and not in derogation of, the provisions of
any other law in force in Australia.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - PART 7
PART 7-MISCELLANEOUS
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 47
Application of the Foreign Judgments Act 1991
SECT
47. (1) This section applies to an order made by a New Zealand court under
the Evidence Amendment Act 1994 of New Zealand for the payment of expenses
incurred:
(a) by a witness in complying with a subpoena served on the witness in
Australia under Part 3 of this Act; or
(b) in connection with taking evidence or receiving submissions by video
link or telephone under Part 5 of this Act.
(2) The Foreign Judgments Act 1991 applies to such an order as if it were an
enforceable money judgment within the meaning of that Act.
(3) For the purposes of the application of that Act to such an order:
(a) Part 2 of that Act is taken to apply to the order; and
(b) unless the order was made by the High Court of New Zealand-the court
that made the order is taken to have been an inferior court (within the
meaning of that Act) to which that Part applies; and
(c) the court is taken to have had jurisdiction to make the order; and
(d) subparagraphs 7(2)(a)(iv) and (v), paragraph 7(2)(b) and subsections
7(3) and (4) of that Act do not apply in respect of the order.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 48
Rules of Court
SECT
48. (1) The power to make rules regulating the practice and procedure of a
court extends to making any rules prescribing all matters necessary or
convenient to be prescribed for carrying out or giving effect to this Act.
(2) Rules so made must not be inconsistent with this Act or with regulations
made under section 49.
(3) Subject to any direction that a court makes in a proceeding, if:
(a) in the proceeding, a matter arises in relation to which the court has
not made rules under this section prescribing practice and procedure; and
(b) the Federal Court Rules prescribe practice and procedure in relation to
the matter but the regulations do not so prescribe; the Federal Court Rules
apply in relation to the matter with such modifications as are necessary.
(4) This section does not affect any power to make rules under any other
law.
EVIDENCE AND PROCEDURE (NEW ZEALAND) ACT 1994 No. 111 of 1994 - SECT 49
Regulations
SECT
49. (1) The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
(2) The Governor-General must not make regulations for the purposes of
subsection 22(1) or paragraph 36(2)(b) specifying a court of a State unless
the Governor of the State has requested in writing that the court be so
specified.
(3) The Governor-General must not make regulations for the purposes of
subsection 22(1) or paragraph 36(2)(b) specifying a court of the Australian
Capital Territory unless the Chief Minister of the Australian Capital
Territory has requested in writing that the court be so specified.
(4) The Governor-General must not make regulations for the purposes of
subsection 22(1) or paragraph 36(2)(b) specifying a court of any other
Territory unless the Administrator of the Territory has requested in writing
that the court be so specified.
