Commonwealth Numbered Acts

TRADE PRACTICES (MISUSE OF TRANS-TASMAN MARKET POWER) ACT 1990 No. 70 of 1990 - SECT 28

28. After Part III of the Principal Act the following Part is inserted:
            "PART IIIA-TRANS-TASMAN MARKET PROCEEDINGS


"Division 1-PreliminaryInterpretation

"32B. In this Part, unless the contrary intention appears:
'Australian injunction' means an injunction, whether final or interlocutory,
made in an Australian proceeding;
'Australian judgment' means a judgment made or given in an Australian
proceeding;
'Australian proceeding' means a proceeding in which a matter for determination
arises under:

   (a)  section 46A, 155A or 155B of the Trade Practices Act 1974; or

   (b)  a provision of Part VI or XII of the Trade Practices Act 1974 so far
        as the provision relates to section 46A, 155A or 155B of that Act; or

   (c)  this Part; and includes a part of such a proceeding;
'Australian subpoena' means a subpoena issued in an Australian proceeding;
'High Court' means the High Court of New Zealand;
'judgment creditor', in relation to a New Zealand judgment, means the person
in whose favour the judgment was made or given, and includes a person in whom
the rights under the judgment have become vested by succession, assignment or
otherwise;
'judgment debtor', in relation to a New Zealand judgment, means the person
against whom the judgment was made or given, and includes a person against
whom the judgment is enforceable under New Zealand law;
'New Zealand injunction' means an injunction, whether final or interlocutory,
made in a New Zealand proceeding;
'New Zealand judgment' means a judgment made or given in a New Zealand
proceeding;
'New Zealand proceeding' means a proceeding in which a matter for
determination arises under section 36A, 98H or 99A of the Commerce Act 1986 of
New Zealand, and includes a part of such a proceeding;
'New Zealand subpoena' means a subpoena issued in a New Zealand proceeding;
'person named', in relation to a subpoena, means the person to whom the
subpoena is addressed;
'registered', in relation to a New Zealand judgment, means registered under
Division 5;
'subpoena' means a subpoena to give evidence, a subpoena for production or a
subpoena for both evidence and production;
'subpoena for production' means an order requiring the person named to attend
directed by the order and produce a document or thing for the purpose of
evidence;
'subpoena to give evidence' means an order requiring the person named to
attend as directed by the order for the purpose of giving evidence.

"Division 2-Exercise in New Zealand of jurisdiction by Federal Court Federal
Court sittings in New Zealand etc.

"32C. (1) If the Federal Court is satisfied, at any stage of an Australian
proceeding, that the proceeding could be more conveniently or fairly conducted
or continued in New Zealand, the Federal Court may direct that the proceeding
be conducted or continued at a place in New Zealand specified in the order.

"(2) A direction may be subject to such conditions (if any) as are specified
in the order.

"(3) Without limiting subsection (1), judgment may be given in New Zealand in
an Australian proceeding.

"(4) The Federal Court may, for the purposes of an Australian proceeding, take
evidence or receive submissions, by video link or telephone, from a person in
New Zealand.

"(5) The Federal Court may, for the purposes of an Australian proceeding,
exercise in New Zealand any of the powers that the Federal Court is permitted,
under New Zealand law, to exercise in New Zealand. New Zealand counsel
entitled to practise in Federal Court in New Zealand etc.

"32D. 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 an Australian proceeding before the Federal Court sitting in New
        Zealand; or

   (b)  in relation to the examination, cross-examination or re-examination of
        a witness in New Zealand whose evidence is taken by video link or
        telephone in an Australian proceeding before the Federal Court sitting
        in Australia; or

   (c)  in relation to the making of submissions by video link or telephone
        from New Zealand in an Australian proceeding before the Federal Court
        sitting in Australia. Australian injunction may be made in relation to
        New Zealand conduct etc.

"32E. (1) The Federal Court may, in an Australian proceeding, make an order or
grant an injunction restraining a person from engaging in conduct, or
requiring a person to do an act or thing, in New Zealand.

"(2) A subpoena may be issued in an Australian proceeding requiring a person
in New Zealand to attend before the Federal Court sitting in Australia or New
Zealand.

"(3) This section does not limit by implication any power that the Federal
Court has apart from this section to make an order, grant an injunction or
issue a subpoena. Service of injunction in New Zealand etc.

"32F. Subject to the Rules of Court, an Australian injunction or other
Australian judgment, and an Australian subpoena, may be served in New Zealand.
Subpoena for service in New Zealand not to be issued without leave of Judge

"32G. A subpoena in an Australian proceeding for service in New Zealand must
not be issued without the leave of a Judge of the Federal Court. Subpoena for
production must permit production at certain registries of High Court of New
Zealand

"32H. An Australian subpoena issued for service in New Zealand that is a
subpoena for production, and is not also a subpoena to give evidence, must
permit the person named to comply with the subpoena by producing the document
or thing concerned to the High Court of New Zealand at a registry of the High
Court prescribed by the Rules of Court. Effective service of subpoena

"32J. An Australian subpoena issued for service in New Zealand is of no effect
unless:

   (a)  it is accompanied by a statement in the form prescribed by the Rules
        of Court setting out the rights and obligations in relation to the
        subpoena of the person named, and including information about the way
        in which an application to have the subpoena set aside may be made to
        the Federal Court; and

   (b)  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 or vouchers sufficient to meet the person's reasonable
        expenses of complying with the subpoena are paid or tendered to the
        person. Application to set subpoena aside

"32K. (1) The person named in an Australian subpoena issued for service in New
Zealand may apply to the Federal Court for the subpoena to be set aside.

"(2) An application may be made ex parte.

"(3) An application must be made by affidavit.

"(4) An affidavit must:

   (a)  be sworn or affirmed by the applicant; and

   (b)  set out the facts on which the applicant relies; and

   (c)  be lodged with the Registrar.

"(5) The Registrar must cause a copy of the affidavit to be served on the
solicitor on the record for the party to the proceedings who applied for the
subpoena to be issued or, if there is no solicitor on the record, on the
party.

"(6) This section is in addition to, and not in derogation of, any Rules of
Court. Grounds for setting aside subpoena

"32L. (1) The Federal Court may set aside, in whole or part, an Australian
subpoena issued for service in New Zealand.

"(2) Without limiting the grounds on which a subpoena may be set aside, the
Federal Court may set it aside on any of the following grounds:

   (a)  that the person named does not have and cannot reasonably be expected
        to obtain necessary travel documents;

   (b)  that the person named is liable to be detained for the purpose of
        serving a sentence;

   (c)  that the person named is liable to prosecution or is being prosecuted
        for an offence;

   (d)  that the person named is liable to the imposition of a penalty in
        civil proceedings (other than proceedings under the
        Trade Practices Act 1974);

   (e)  that the evidence to be given by the person named could be obtained by
        other means without significantly greater expense;

   (f)  that compliance with the subpoena would cause the person named
        hardship or serious inconvenience;

   (g)  in the case of a subpoena for production-that the Federal Court is
        satisfied:

        (i)    that the document or thing should not be taken out of New
               Zealand; and

        (ii)   that evidence of the contents of the document, or that evidence
               of the thing, can be given by other means.

"Division 3-Exercise in Australia of jurisdiction by High
Court of New Zealand High Court of New Zealand sittings in Australia etc.

"32M. (1) The High Court of New Zealand may conduct or continue a New Zealand
proceeding in Australia.

"(2) Without limiting subsection (1), judgment may be given in Australia in a
New Zealand proceeding.

"(3) The High Court of New Zealand may, for the purposes of a New Zealand
proceeding, take evidence or receive submissions, by video link or telephone,
from a person in Australia.

"(4) The High Court of New Zealand may, for the purposes of a New Zealand
proceeding, exercise in Australia all of the powers it has when sitting in New
Zealand, except its powers:

   (a)  to punish for contempt; and

   (b)  to enforce or execute its judgments or process.

"(5) Without limiting subsection (4), the High Court of New Zealand may in a
New Zealand proceeding, by order:

   (a)  direct that the proceeding be conducted or continued in private; or

   (b)  require a person to leave the court; 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.

"(6) Without limiting subsection (4), the High Court of New Zealand may, for
the purposes of a New Zealand proceeding, exercise any of its powers in
relation to a person in Australia who is taking part in the proceeding by
video link or telephone, except its powers:

   (a)  to punish for contempt; and

   (b)  to enforce or execute its judgments or process.

"(7) Without limiting subsections (1) to (6) (inclusive), the Judicature Act
1908 of New Zealand and the High Court Rules made by or under that Act that
apply to New Zealand proceedings generally also apply, by force of this
subsection, to the practice and procedure of the High Court of New Zealand in
a proceeding that is a New Zealand proceeding for the purposes of this Part so
far as:

   (a)  the proceeding is conducted or continued in Australia; or

   (b)  the High Court takes evidence or receives submissions in New Zealand
        for the purposes of the proceeding, by video link or telephone, from a
        person in Australia.

"(8) An order under subsection (5) must be complied with.

"(9) Subject to the Rules of Court, an order under subsection (5) may be
enforced by a Judge of the Federal Court who, for that purpose, may exercise
the powers that a Judge may exercise to enforce like orders made by the
Federal Court.

"(10) Without limiting subsection (9), a person who contravenes an order under
subsection (5) is in contempt of the Federal Court, and is punishable
accordingly, unless the person establishes that the contravention should be
excused. Privileges, protection and immunity of participants in New Zealand
proceedings

"32N. (1) A Judge of the High Court of New Zealand has:

   (a)  at a sitting in Australia of the High Court in a New Zealand
        proceeding; or

   (b)  in taking evidence or receiving submissions in a New Zealand
        proceeding, by video link or telephone, from a person in Australia;
        the same privileges, protection and immunity as a Judge of the Federal
        Court.

"(2) A person appearing as a barrister, solicitor or both in a New Zealand
proceeding:

   (a)  at a sitting in Australia of the High Court of New Zealand; or

   (b)  by video link or telephone from Australia at a sitting in New Zealand
        of the High Court of New Zealand; has the same protection and immunity
        as a barrister has in appearing for a party in a proceeding before the
        Federal Court.

"(3) A person appearing as a witness in a New Zealand proceeding:

   (a)  at a sitting in Australia of the High Court of New Zealand; or

   (b)  by video link or telephone from Australia at a sitting in New Zealand
        of the High Court of New Zealand; has the same protection as a witness
        in a proceeding in the Federal Court. High Court of New Zealand may
        administer oath in Australia etc.

"32P. (1) The High Court of New Zealand may:

   (a)  at a sitting in Australia of the High Court in a New Zealand
        proceeding; or

   (b)  for the purpose of obtaining the testimony in a New Zealand
        proceeding, by video link or telephone, of a person in Australia;
        administer an oath or affirmation in accordance with the practice and
        procedure of the High Court.

"(2) Evidence given by a person on oath or affirmation administered by the
High Court of New Zealand under subsection (1) is, for the purposes of
section  35 of the Crimes Act 1914, testimony given in a judicial proceeding.
Service of New Zealand injunctions in Australia etc.

"32Q. A New Zealand injunction or other New Zealand judgment, and a New
Zealand subpoena, may be served in Australia. Service of New Zealand subpoena
in Australia

"32R. (1) A New Zealand subpoena issued with the leave of a Judge of the High
Court of New Zealand may be served on the person named by leaving a sealed
copy of the subpoena with the person personally together with a statement
setting out the person's rights and obligations in relation to the subpoena,
and including information about the way in which an application may be made to
the High Court to have the subpoena set aside.

"(2) The person named is not bound to comply with the subpoena unless, 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 or vouchers
sufficient to meet the person's reasonable expenses of complying with the
subpoena are paid or tendered to the person. Documents to be transmitted to
High Court of New Zealand etc.

"32S. If a document or thing is lodged with the Federal Court under a New
Zealand subpoena served in Australia, the Registrar of the Federal Court must
transmit it to the High Court of New Zealand.

"Division 4-Taking of evidence by Federal Court for High Court of
New Zealand Taking of evidence by Federal Court

"32T. (1) The High Court of New Zealand may request the Federal Court to
obtain evidence in Australia for the High Court for the purposes of a New
Zealand proceeding.

"(2) The Federal Court may, by order, make any provision it considers
appropriate for the purpose of obtaining the evidence.

"(3) An order may require a specified person to take any steps the Federal
Court considers appropriate for that purpose.

"(4) Without limiting subsections (2) and (3), an order may, in particular,
make provision:

   (a)  for the examination of witnesses, either orally or in writing; or

   (b)  for the production of documents or things; or

   (c)  for the inspection, photographing, preservation, custody or detention
        of any property; or

   (d)  for taking samples of any property and carrying out any experiments on
        or with any property.

"(5) Subsection (4) does not prevent the Federal Court from making an order
requiring a person to give testimony (either orally or in writing) otherwise
than on oath or affirmation if the High Court of New Zealand requests it to do
so.

"(6) A person who is required by an order to attend at any place is entitled
to the same amount of conduct money and payment for expenses and loss of time
as the person would be entitled on attendance as a witness before the Federal
Court. Privilege of witnesses

"32U. (1) An order under section 32T must not compel a person to give evidence
that the person could not be compelled to give in the New Zealand proceeding
concerned.

"(2) In subsection (1):
'give evidence' includes:

   (a)  answer a question; and

   (b)  produce a document or thing. Division not to derogate from existing
        Australian laws

"32V. This Division is in addition to, and not in derogation of, any other law
in force in Australia.

"Division 5-Enforcement of judgments of High Court of New Zealand Registration
of judgment in Federal Court

"32W. (1) A judgment creditor under a New Zealand judgment may apply to the
Federal Court to have the judgment registered in the Federal Court.

"(2) Subject to this section, the Federal Court must order the judgment to be
registered.

"(3) A New Zealand judgment must not be registered if on the day on which the
application is made:

   (a)  the judgment has been wholly satisfied; or

   (b)  the judgment could not be enforced in New Zealand.

"(4) Subject to sections 32X, 32Y and 32Z:

   (a)  a registered judgment is, for the purposes of enforcement, of the same
        force and effect; and

   (b)  proceedings may be brought on the judgment; and

   (c)  the amount (if any) for which the judgment is registered carries
        interest; and

   (d)  the Federal Court has the same control over the enforcement in
        Australia of the judgment; as if the judgment had been a judgment
        originally made or given by the Federal Court acting within its
        jurisdiction and entered on the day of registration.

"(5) If the amount payable under a New Zealand judgment that is to be
registered is expressed in New Zealand currency, the judgment is to be
registered as if it were a judgment for such an amount in Australian currency
as, on the basis of the exchange rate prevailing on the day of the judgment,
is equivalent to the amount payable under the judgment.

"(6) If, on the day of application for registration of a New Zealand judgment
under which an amount is payable, the judgment has been partly satisfied, the
judgment must not be registered for the whole amount payable under the
judgment, but only for the balance remaining payable on that day.

"(7) In addition to any amount payable under a New Zealand judgment (including
any interest that under New Zealand law is due under the judgment up to the
time of registration), the judgment is to be registered for the reasonable
costs of and incidental to registration, including the costs of obtaining a
certified copy of the judgment from the High Court of New Zealand. Variation
of registered judgment

"32X. (1) Every judgment of the High Court of New Zealand that varies a
registered New Zealand judgment must be registered in the Federal Court and,
on registration, this Division applies to the judgment as varied.

"(2) A registered New Zealand judgment that has been varied by a judgment of
the High Court of New Zealand may not be executed, and proceedings may not be
taken to enforce such a registered judgment, without the leave of the Federal
Court until the varying judgment is registered in the Federal Court. Cases in
which registration must be set aside

"32Y. The Federal Court must set aside the registration of a judgment, on the
application of the judgment debtor, if the Federal Court is satisfied:

   (a)  that the judgment has been discharged or can no longer be enforced in
        New Zealand; or

   (b)  that the judgment has been wholly satisfied; or

   (c)  that the judgment was not registrable under this Division or was not
        properly registered; or

   (d)  that the judgment has been reversed on appeal or otherwise set aside;
        or

   (e)  that the judgment relates to a claim for relief for a contravention,
        or 2 or more contraventions, of section 36A of the Commerce Act 1986
        of New Zealand (whether or not it also relates to other claims for
        relief) and the claim for relief for the contravention has been, or
        all of those contraventions have been, finally dismissed. Stay of
        enforcement of registered judgment

"32Z. (1) If the Federal Court is satisfied that a judgment debtor under a
registered New Zealand judgment:

   (a)  has applied, or intends to apply, to have the judgment set aside; or

   (b)  has appealed, or intends to appeal, against the judgment the Federal
        Court may order that enforcement of the judgment in Australia be
        stayed pending the final determination of the application or appeal,
        until a specified day or for a specified period.

"(2) If the Federal Court makes an order on the ground:

   (a)  that a person intends to apply to have a judgment set aside; or

   (b)  that a person intends to appeal against a judgment; the Federal Court
        must require the person, as a condition of the order, to make the
        application or bring the appeal by a specified day or within a
        specified period.

"(3) Every order is to be made on the condition that the judgment debtor
pursues the application or appeal in an expeditious manner.

"(4) An order may be made on such other conditions, including conditions
relating to giving security, as the Federal Court thinks fit. New Zealand
judgment not enforceable otherwise than under Division

"32ZA. A New Zealand judgment may not be enforced in Australia otherwise than
under this Division. Application of rules of private international law

"32ZB. This Division has effect in relation to the execution and enforcement
of judgments despite any rule of law relating to the jurisdiction of the
courts of foreign countries or to public policy.

"Division 6-Miscellaneous Jurisdiction of Federal Court
under Part

"32ZC. (1) Jurisdiction is conferred on the Federal Court in any matter
arising under this Part.

"(2) Without limiting subsection (1), jurisdiction is conferred on the Federal
Court to hear and determine prosecutions for offences against this Part.

"(3) The jurisdiction conferred on the Federal Court by this section is
exclusive of the jurisdiction of any other court.

"(4) Without limiting subsection (3), prosecutions for offences against this
Part may be brought only in the Federal Court.

"(5) This section has effect subject to section 75 of the Constitution.

"(6) This section has effect despite anything in any other law of the
Commonwealth. Non-compliance with New Zealand subpoena

"32ZD. (1) A person served in Australia with a New Zealand subpoena must
comply with the subpoena.

"(2) A person who contravenes a New Zealand subpoena is in contempt of the
Federal Court, and is punishable accordingly, unless the person establishes
that the contravention should be excused.

"(3) In determining whether a person's contravention of a New Zealand subpoena
should be excused, the Federal Court 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 is satisfied that:

        (i)    the High Court 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 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, being matters to which the Federal Court would have
        regard if it had issued the subpoena.

"(4) A certificate under a seal of the High Court of New Zealand to the effect
that a person named in the certificate has contravened a New Zealand subpoena
is evidence of the person's contravention of the subpoena unless the person
establishes to the satisfaction of the Federal Court that the person did not
in fact contravene the subpoena.

"(5) Findings of fact made by the High Court of New Zealand on an application
to the High Court to set aside the subpoena cannot be challenged by a person
alleged to have contravened it unless the High Court was deliberately misled
in making those findings of fact. Contempt of High Court of New Zealand

"32ZE. A person must not, at a sitting of the High Court of New Zealand in
Australia:

   (a)  assault, threaten, intimidate or wilfully insult:

        (i)    a Judge of the High Court; or

        (ii)   a Master, Registrar, Deputy Registrar or another officer of the
               High Court; or

        (iii)  a person appearing as a barrister, a solicitor or both; or

        (iv)   a witness in the proceedings; or

   (b)  wilfully interrupt or obstruct the proceedings; or

   (c)  wilfully and without lawful excuse disobey an order or direction of
        the High Court.
Penalty: Imprisonment for 3 months. Reciprocal arrangements for use of court
facilities

"32ZF. (1) The Chief Judge of the Federal Court may make arrangements with the
Chief Justice of New Zealand for the purposes of giving effect to this Part.

"(2) Without limiting subsection (1), arrangements may be made:

   (a)  to enable the Federal Court to sit in New Zealand, for the purposes of
        Australian proceedings, in court rooms of the High Court of New
        Zealand or in other places in New Zealand; or

   (b)  to enable the High Court of New Zealand to sit in Australia, for the
        purposes of New Zealand proceedings, in court rooms of the Federal
        Court or in other places in Australia; or

   (c)  to enable evidence to be taken and submissions received, by video link
        or telephone, in Australian proceedings or New Zealand proceedings; or

   (d)  to provide registry facilities and court staff for the purposes of
        Australian proceedings or New Zealand proceedings.".