Trans-Tasman litigation – a case to bear in mind

Last month we offered an update on the Trans-Tasman Court Proceedings and Regulatory Enforcement Treaty signed in July 2008 (Trans-Tasman Treaty). In Article 8, this Treaty sets out an open-textured approach for New Zealand and Australian Courts to use in determining whether or not to accept jurisdiction over a dispute with Trans-Tasman elements.

In considering how this test may be applied, it is interesting to revisit the High Court of Australia’s November 2008 decision in Puttick v Tenon Ltd (formerly Fletcher Challenge Forests Ltd) [2008] HCA 54, which considered the question of forum non conveniens under Australian law. That case involved a claim by Mr Puttick’s estate against his former employer (a subsidiary of Tenon) for alleged negligence leading to Mr Puttick contracting malignant mesothelioma. The injury likely arose in visits Mr Puttick made from New Zealand to Belgium and Malaysia whilst working for his former employer. The case was complicated by confused findings below, but the essential conclusion of the majority was that the geographical proximity and essential similarities between New Zealand’s and Australia’s legal systems – which will be pulled even closer by the Trans-Tasman Treaty – meant that even if New Zealand law (and the ACC scheme) were applicable, this would not mean that an Australian court was a clearly inappropriate forum to try a dispute.

New Zealand’s High Court Rules on litigation involving foreign parties were revised and modernised in September 2008 (see Rules 6.27-6.29), though it remains to be seen whether New Zealand courts will take the same approach to accepting jurisdiction.

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