Part III: Trans-Tasman evidence regime and use of technology
Introduction to trans-Tasman
The trans-Tasman evidence regime is found in the Evidence and Procedure (New Zealand) Act 1994 (Cth) and the Evidence Amendment Act 1994 (NZ). It has two components:
- subpoenas issued by a court in one country can be served on a witness in the other. (A subpoena is a document that requires a person to give evidence, or produce a document or thing, or both.) The witness can be required to travel to give the evidence in the other country, or to give the evidence from their own country by video link or telephone.
- evidence can be taken, or submissions made, from the other country by video link or telephone.
The regime applies to a range of courts in each country.  It can also be extended to certain tribunals as if they were courts. However, to date, no tribunals have been included.
A subpoena can be issued in any proceeding other than criminal or family proceedings.  However, it can only be served in the other country with the leave of a judge of a higher court.  Factors taken into account in granting leave include the importance of the evidence and whether it could be obtained in another way without significantly greater cost and with less inconvenience to the witness.
A witness on whom a trans-Tasman subpoena has been served can apply to set it aside. The application is made to the court which granted leave to serve the subpoena. The subpoena can be set aside if, for example, complying with it would cause hardship or serious inconvenience. If the witness must give evidence in person in the other country, a subpoena can be set aside where the witness does not have travel documents or may be prosecuted for a criminal offence in that country or could be detained there to serve a sentence.
If the person giving evidence agrees, evidence can be taken or submissions heard by video link or telephone in any proceeding (including criminal proceedings).
Keep the leave requirement for issuing subpoenas under the trans-Tasman evidence regime to protect against inappropriate use of the regime.
Allow a judge of the relevant lower court to grant leave to issue a trans-Tasman subpoena in civil proceedings before that lower court (or tribunal).
6.1 Subpoenas cannot be served under the trans-Tasman evidence regime without the leave of a judge of a higher court.
6.2 The existing position requires a separate leave application to a higher court for proceedings before a lower court. This increases cost and complexity, as well as potential delay.
6.3 Ten years after the evidence regime began, it is timely to reconsider if
there is still a need for a higher court judge to grant leave before a subpoena
issued by a lower court can be served in the other
6.4 The leave requirement protects against the inappropriate use of a subpoena against a witness in the other country. It was considered an important safeguard when the regime was originally introduced and the idea of serving a subpoena in another country was relatively new. The Working Group agrees that leave of a judge should be required but questions the need for a higher court judge to grant leave for all subpoenas.
6.5 The requirement for a witness to answer an overseas subpoena and appear in person before an overseas court (or at least appear by video or telephone link) is more burdensome than a requirement to appear before a domestic court. There is also potential for misuse to harass or deliberately inconvenience a witness. This may be more likely in family proceedings or criminal proceedings (see Part IV below). However, the possibility exists in any kind of litigation. The Working Group proposes that the leave requirement for issuing a subpoena under the trans-Tasman evidence regime be kept to protect against inappropriate use of the regime.
6.6 However, the Working Group considers that something should be done to address the cost, inconvenience and delay that may occur by having to apply to a higher court. It therefore proposes that leave to serve a trans-Tasman subpoena in civil proceedings should be able to be granted by a judge of a lower court in proceedings before that lower court, or before a tribunal.
Q25. Do you agree that the leave requirement should be kept?
Q26. Do you agree that the leave of a lower court judge, rather than a higher court judge, should be required for proceedings before a lower court?
Q27. Do you agree that the leave of a lower court judge, rather than a higher court judge, should be required for proceedings before a tribunal (assuming some tribunals are included under the trans-Tasman subpoena regime)?
An applicant for a stay of civil proceedings under the proposed trans-Tasman regime, and their counsel, should have the right to appear remotely, with the court deciding whether this is done by telephone or video link.
For other court appearances in civil proceedings, a party residing in the other country should be allowed to appear by telephone or video link with leave of the court. Their counsel would also be able to appear remotely with leave, provided they have the right to appear before that court.
7.1 Although the Federal Court of Australia and the New Zealand High Court have jurisdiction to take evidence from any overseas country by video link or other technology,  between Australia and New Zealand the taking of evidence and making of submissions in this way is governed by the trans-Tasman evidence regime.
7.2 The trans-Tasman evidence regime provides that counsel in the place from which evidence is to be given or submissions made, are entitled to examine, cross-examine or re-examine a witness whose evidence is being given by video link or telephone. Counsel can also make submissions by video link or telephone. Participants in those proceedings (judge, barrister, solicitor and witnesses) are given the same privileges, protection and immunity in connection with evidence taken or submissions received by video link or telephone as would be available in the country from which the evidence is being taken, or the submissions received.
7.3 The trans-Tasman evidence regime uses technology to reduce the need for witnesses to travel to the other country to give evidence. However, the extent to which this option is available for other appearances is not clear. Although the trans-Tasman evidence regime applies to the taking of evidence and the making of submissions, the Working Group is only aware of it being used where witnesses are giving evidence.
7.4 More widespread use could be made of technology to enable remote court appearances in civil proceedings by parties and counsel. This would be a practical way of reducing the cost and inconvenience of physical attendance at court in trans-Tasman litigation. This has already been proposed in Issue 1 as a way of dealing with applications for a stay of proceedings where proceedings are served in the other country.
7.5 The Working Group sees benefits in a regime specifically allowing parties and counsel to appear by video link or telephone, as well as witnesses.  The existing trans-Tasman evidence regime would then be confined to proceedings in which the technology is used for witnesses giving evidence.
7.6 The Working Group proposes that parties applying for a stay of proceedings under the proposed trans-Tasman regime should be able to appear from the other country using video link or telephone. However, it considers that the court should decide the particular technology on a case by case basis, taking into account matters such as the nature of the appearance and the relative availability of different technologies.
7.7 The Working Group would also like the proposed regime to facilitate greater use of technology for other court appearances in trans-Tasman civil litigation. However, the court should approve the use of technology in each particular situation to make sure it is appropriate. A range of factors would need to be taken into account, including convenience and cost, the nature of the appearance and the availability of the technology.
7.8 Where a party wishes to appear in person, the Working Group proposes that they be able to do so remotely, using video or audio technology, with leave of the court. However, the more likely situation is that a party will not want to appear remotely in person but by counsel. If counsel are to appear more regularly by video link or telephone, there may be potential to cut across current arrangements for regulating the legal profession, and the operation of the trans-Tasman mutual recognition regime. The current trans-Tasman evidence regime was implemented prior to the trans-Tasman mutual recognition arrangement.
7.9 Mutual recognition enables counsel registered in one place to obtain registration in another without having to satisfy additional local requirements. Without registration under the mutual recognition regime, counsel appearing by telephone or video link might not be subject to effective professional supervision. This issue could be addressed by requiring counsel to have the right to appear before the court hearing the proceeding before they can seek leave to appear remotely.
7.10 Statutory provision would be needed to confirm that participants who appear remotely under this regime have the same privileges, protection and immunities as they have in court proceedings in their own country.
Q28. Do you agree that parties and counsel should be able to appear as of right by telephone or video link, subject to court approval of the method, when applying for a stay of civil proceedings following service under the proposed trans-Tasman regime?
Q29. Do you agree that, in other situations in civil proceedings, parties and counsel who have the right to appear before the court should be able to appear by telephone or video link with leave of the court?
Q30. Do you think that a party or counsel should be able to appear as of right in other civil proceedings? Please indicate in what circumstances you consider this should happen and your reasons.
Q31. Do you agree counsel should be required to have the right to appear before the court hearing the civil proceedings (through registration under the trans-Tasman mutual recognition arrangement) before they can seek leave to appear remotely before that court?
41 Under the Australian legislation, the Australian courts to which the regime applies are a federal court or a prescribed State or Territory court. Different State or Territory courts are prescribed for different purposes. The New Zealand legislation applies to any New Zealand court.
42 New Zealand has amended the Evidence Amendment Act 1994 to remove the exclusion of family proceedings. This amendment will only come into force if Australia makes a mirror amendment. Australia is currently considering the possibility of a mirror amendment.
43 In Australia, if the proceeding is in a higher court, the leave of a judge of that court is required. If the proceeding is in a lower court, then the leave of the Federal Court, or the Supreme Court of the relevant State or Territory is required. In New Zealand, leave of the High Court is required.
45 The Working Group proposal is confined to judicial proceedings and not alternative dispute resolution. These concerns do not arise for arbitration or other forms of alternative dispute resolution as the parties can agree on appropriate arrangements to deal with these matters.