16   Guide to this Part

17   Application to stay Australian proceeding on forum grounds

             (1)  A defendant in a civil proceeding in an Australian court may apply to the court for an order staying the proceeding on the grounds that a New Zealand court is the more appropriate court to determine the matters in dispute.

             (2)  The application must be made within:

                     (a)  30 working days of the Australian court after the day on which the defendant was served with the initiating document for the proceeding; or

                     (b)  if, before or after the end of that period, the plaintiff or defendant applies to the Australian court for a shorter or longer period—any shorter or longer period the Australian court considers appropriate.

18   Hearing on the application

             (1)  The Australian court may determine the defendant’s application under section 17 without a hearing.

             (2)  However, the Australian court must determine the defendant’s application with a hearing if any of the following requests the court to do so:

                     (a)  the plaintiff;

                     (b)  the defendant;

                     (c)  any other person who is required or permitted, by the regulations or the Australian court’s procedural rules, to be served with the defendant’s application.

             (3)  The request must be made within:

                     (a)  10 working days of the Australian court after the day the defendant made the application; or

                     (b)  if, before or after the end of that period, a person referred to in subsection (2) applies to the Australian court for a shorter or longer period—any shorter or longer period the Australian court considers appropriate.

             (4)  The defendant and the defendant’s lawyer may appear remotely in a hearing in the Australian court about the application for an order to stay the proceeding if:

                     (a)  the defendant was served, or purportedly served, with the initiating document for the proceeding in New Zealand under section 9; and

                     (b)  within the period (if any) prescribed by the regulations, the defendant made a request to the Australian court for that remote appearance; and

                     (c)  a remote appearance medium is, or can reasonably be made, available.

This subsection applies despite Subdivisions A and B of Part 6, but is subject to the rest of Part 6.

Note:          Ordinarily, for a person to appear remotely from New Zealand in a proceeding in an Australian court, the person needs the leave of the Australian court (see sections 48 and 50).

19   Order of stay of proceeding

             (1)  On application under section 17, the Australian court may, by order, stay the proceeding if it is satisfied that a New Zealand court:

                     (a)  has jurisdiction to determine all the matters in dispute between the parties to the proceeding; and

                     (b)  is the more appropriate court to determine those matters.

             (2)  In determining whether a New Zealand court is the more appropriate court to determine those matters, the Australian court must take into account the following matters:

                     (a)  the places of residence of the parties or, if a party is not an individual, its principal place of business;

                     (b)  the places of residence of the witnesses likely to be called in the proceeding;

                     (c)  the place where the subject matter of the proceeding is situated;

                     (d)  any agreement between the parties about the court or place in which those matters should be determined or the proceeding should be commenced (other than an exclusive choice of court agreement to which subsection 20(1) applies);

                     (e)  the law that it would be most appropriate to apply in the proceeding;

                      (f)  whether a related or similar proceeding has been commenced against the defendant or another person in a court in New Zealand;

                     (g)  the financial circumstances of the parties, so far as the Australian court is aware of them;

                     (h)  any matter that is prescribed by the regulations;

                      (i)  any other matter that the Australian court considers relevant;

and must not take into account the fact that the proceeding was commenced in Australia.

             (3)  An order under subsection (1) may be made subject to any conditions the Australian court considers are appropriate in order to facilitate, without delay or undue expense, the determination of all matters in dispute between the parties to the proceeding.

20   Exclusive choice of court agreements

             (1)  On application under section 17 (and despite section 19), the Australian court:

                     (a)  must, by order, stay the proceeding, if satisfied that an exclusive choice of court agreement designates a New Zealand court as the court to determine the matters in dispute; and

                     (b)  must not, by order, stay the proceeding, if satisfied that an exclusive choice of court agreement designates an Australian court as the court to determine those matters.

             (2)  However, subsection (1) does not apply to an exclusive choice of court agreement if the Australian court is satisfied that:

                     (a)  it is null and void under New Zealand law (including the rules of private international law); or

                     (b)  a party to it lacked the capacity to conclude it under Australian law; or

                     (c)  giving effect to it would lead to a manifest injustice or would be manifestly contrary to Australian public policy; or

                     (d)  for exceptional reasons beyond the control of the parties to it, it cannot reasonably be performed; or

                     (e)  the court designated by it as the court to determine the matters in dispute between the parties to the proceeding has decided not to determine those matters.

             (3)  Exclusive choice of court agreement , in relation to matters in dispute between parties to a proceeding, means a written agreement between those parties that:

                     (a)  designates the courts, or a specified court or courts, of a specified country, to the exclusion of any other courts, as the court or courts to determine disputes between those parties that are or include those matters; and

                     (b)  is not an agreement the parties to which are or include an individual acting primarily for personal, family, or household purposes; and

                     (c)  is not a contract of employment.

21   How this Part affects powers of the court to stay proceeding

             (1)  An Australian court cannot stay a civil proceeding on forum grounds connected with New Zealand otherwise than in accordance with this Part.

             (2)  However, this Part does not affect any power of the Australian court to stay the proceeding on any other grounds.

22   No restraint of proceedings

             (1)  An Australian court must not restrain a person from commencing a civil proceeding in a New Zealand court on the grounds that the New Zealand court is not the appropriate forum for the proceeding.

             (2)  Also, an Australian court must not restrain a party to a civil proceeding before a New Zealand court from taking a step in that proceeding on the grounds that the New Zealand court is not the appropriate forum for the proceeding.

23   Suspension of limitation periods

             (1)  This section applies if:

                     (a)  a claim is made in a civil proceeding (the NZ proceeding ) in a New Zealand court that is later stayed by an order of the New Zealand court made under the NZ Act on the grounds that an Australian court is the more appropriate court; and

                     (b)  the claim is to be made again in a civil proceeding (the Australian proceeding ) in an Australian court after the staying of (and, if applicable, before any deadline stated in the condition of that order staying) the New Zealand proceeding.

             (2)  For the purposes of every applicable limitation period or defence under Australian law, the Australian proceeding is to be treated as commencing at the time the New Zealand proceeding commenced.