A-Ward Limited v Raw Metal Coro Pty Limited

[2024] NZHC 736

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2773

[2024] NZHC 736

BETWEEN

A-WARD LIMITED

Applicant

AND

RAW METAL CORP PTY LIMITED

Respondent

Hearing:

11 March 2024

Appearances:

S D Campbell for Applicant

C Jiang and M K Brady for Respondent

Judgment:

9 April 2024

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 9 April 2024 at 3 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors:

Wynn Williams, Christchurch Tompkins Wake, Auckland

A-WARD LIMITED v RAW METAL CORP PTY LIMITED [2024] NZHC 736 [9 April 2024]

Overview

[1] This is an application by a New Zealand company, A-Ward Ltd (A-Ward), seeking an anti-suit injunction to prevent the continuation of a claim against it by an Australian company, Raw Metal Corp Pty Ltd (Raw Metal). The claim is in the Federal Court of Australia, Queensland Registry. In that proceeding, Raw Metal (as the purchaser of goods) seeks damages from A-Ward (as the vendor) for misleading and deceptive conduct in breach of the Competition and Consumer Act 2010 (Cth) (CCA), relating to the supply of shipping container tilters.

[2]    A-Ward contends that it is entitled to an interim anti-suit injunction to enforce an in personam contractual bargain under its Terms and Conditions of Trade (Trade Terms). Those terms included cl 16.6 which provides as follows:

16.6 Jurisdiction. These Trade Terms shall be governed in accordance with the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Trade Terms or any other contract between A-Ward and the Customer.

[3]    The applicant says an anti-suit injunction is not precluded by s 28 of the Trans-Tasman Proceedings Act 2010 (NZ) (TTPA), because enforcement of a choice of forum clause is different in nature from a stay on traditional forum non conveniens grounds.

[4]    For the reasons set out in this judgment, I decline the application. The TTPA is a part of the trans-Tasman legislative regime with mirror provisions in both jurisdictions (TTPA regime), designed to replace earlier uncertainties and inefficiencies for determining conflict of laws issues between the two countries. Under the TTPA regime, the New Zealand and Australian courts apply mirror provisions to determine forum disputes, based on confidence in each other’s judicial institutions. In that context, there is no place for anti-suit injunctions.

Factual background

[5]    A-Ward is a New Zealand company that carries on the business of manufacturing and supplying machinery and systems for loading and unloading

shipping containers. Raw Metal is a company incorporated in Australia that carries on the business of scrap metal trading.

[6]    In 2017, A-Ward made various statements to Raw Metal representatives about the capability of its shipping container tilters, and their suitability for Raw Metal’s scrap metal business.

[7]    In July 2018, Raw Metal signed a quotation to purchase three Mi-Tilt tilters. The quotation had the following printed above the signature section “this order is based on the terms and conditions of trade located at website Trade Terms included the following:

(a)Clause 6.1:

This clause 6 applies to Customers based in New Zealand or any other jurisdiction which has a personal property securities registration system similar to that described in this clause (including, without limitation, Australia and Canada) and, if applicable, this clause will to the extent required be read in such a way so as to comply with and come under the personal property securities registration system in that jurisdiction.

(b)Clause 9.1:

Subject to the terms of any express written warranties provided by A-Ward to the Customer, A-Ward warrants that the Goods sold to the Customer shall comply with A-Ward’s published specifications in respect of the Goods from time to time. Except as provided in this clause 9.1 or the terms of any express written warranties provided by A-Ward to the Customer, A-Ward gives no warranty or undertaking and makes no representation regarding the Goods.

(c)Clause 9.2:

The Customer warrants that it has used its own skill and judgement in deciding to enter into the agreement with A-Ward for the acquisition of goods or services, and that the Customer has not relied on any representation made by A-Ward which has not been stated expressly in these Trade Terms, or upon any descriptions, illustrations or specifications of Goods contained in any document (including catalogues or publicity material) produced by A-Ward.

(d)Clause 10.1:

The Customer acknowledges that it is acquiring Goods for business purposes and that the provisions of the [Consumer Guarantees Act 1993] and sections 9, 12A, 13 and 14(1) of the [Fair Trading Act 1986] are excluded.

(e)Clause 10.3:

Apart from the warranties contained in clause 9, to the maximum extent permitted by law, all warranties and guarantees expressed or implied by statute, the common law, equity, trade, custom or usage or otherwise, in relation to the supply of the Goods are expressly excluded.

(f)Clause 12.1:

Subject to clause 11 [Defects and Returns], the liability of A-Ward, whether in contract, tort or otherwise, shall be excluded to the fullest extent permitted under the law. If:

12.1.1any condition or warranty is implied into these Trade Terms under any trade practices, sale of goods, fair trading or other applicable legislation and cannot be excluded; or

12.1.2notwithstanding the other provisions of clauses 9, 10, 11 or this clause 12 A-Ward has any liability to the Customer,

then to the fullest extent permitted by law the liability of A-Ward for claims by the Customer for breach of the condition or warranty so implied or otherwise will be limited at the option of A-Ward to replacement of such defective or non-compliant Goods or payment of direct costs and losses not exceeding the invoice value of the Goods in relation to which the claim relates.

(g)Clause 16.5:

Entire Agreement: The provisions of these Trade Terms, any relevant Order and any relevant credit application constitute the entire agreement between the parties with respect to its subject matter and supersede all previous understandings, arrangements, agreements and communications, whether verbal or written, between the parties or their advisers with respect to that subject matter. Any verbal agreement which does not conform with such provisions shall not be binding on A-Ward unless it has been confirmed by A-Ward in writing.

(h)Clause 16.6, set out again for convenience:

Jurisdiction: These Trade Terms shall be governed in accordance with the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Trade Terms or any other contract between A-Ward and the Customer.

[9]    In November and December 2018, A-Ward delivered the tilters to Raw Metal in Australia and installed them. A dispute then arose between the two parties, with Raw Metal saying that the tilters were defective and unsuitable for its business. A-Ward takes the position that any issues were caused by Raw Metal’s misuse of the tilters.

[10]   In January 2023, Raw Metal filed  its  proceedings  in  Queensland.  In  March 2023, A-Ward applied to stay the Australian proceeding. In July 2023, it abandoned that application for a stay, and subsequently filed a substantive defence.

[11]   On  16  November  2023,  A-Ward  commenced   these   proceedings   in New Zealand seeking damages for breach of the “no reliance” clause and the exclusive jurisdiction clause. At the same time, A-Ward also filed its interim anti-suit injunction application seeking to restrain Raw Metal from continuing to pursue the Australian proceeding.

Private international law principles

[12]   Two essential prerequisites to the High Court exercising jurisdiction in a civil proceeding are personal jurisdiction and subject matter jurisdiction.1 The fact that a court has personal jurisdiction over a defendant does not mean that it also has subject-matter jurisdiction to hear the claim.2 Unlike personal jurisdiction, parties are unable to submit to or contract out of the ordinary rules of subject-matter jurisdiction.3

1      Ludgater Holdings Ltd v Gerling Australia Insurance Co Pty Ltd [2010] NZSC 49, [2010] 3 NZLR 713 at [21] and [21], n 31; Brown and New Zealand Basing Ltd [2017] NZSC 139, [2018] 1 NZLR 245 at [9]; and Maria Hook and Jack Wass (eds) The Conflict of Laws in New Zealand (online ed, LexisNexis) at [2.329].

2      The Conflict of Laws in New Zealand, above n 1, at [2.329].

3      At [2.336].

[13]   A starting step of “characterisation” is used to address questions of subject-matter jurisdiction, and to identify the applicable law when there is a potential conflict of laws.4

[14]   For issues (as opposed to causes of action5) that are characterised as contractual in nature, the courts of most countries will normally give effect to a provision in a contract selecting the law to govern that contract (known as a “choice of law” clause). The proper law will determine most issues in relation to the contractual obligations and rights of the parties (such as the existence, validity, performance, and interpretation of contracts).6 However, there are limits on the extent to which choice of law clauses will be effective. A court will apply mandatory rules of the forum,7 and there may be related or incidental questions on issues that would be characterised as having a different choice of law rule.8 For example, contractually granted security interests (such as under cl 6 of the Terms of Trade) for goods destined for overseas may be subject to foreign law once there,9 and enforcement of any security interest would necessarily have to take place in that jurisdiction. Also, not all claims that relate to contractual relationships are necessarily characterised as contractual, such as employment or consumer relationships.10

[15]   A forum (or “choice of court”) clause performs a different function of selecting where a dispute may be determined. Such a clause can constitute a submission to jurisdiction.11 Although there are many permutations, such clauses are commonly either non-exclusive or exclusive:

(a)If non-exclusive, the parties may also be sued wherever jurisdiction arises in the normal way (such as their country of residence or

4      At [2.341].

5      At [4.27].

6      At [6.28].

7      At [6.45]

8      At [4.18]–[4.37].

9      Craig Wappett, Bruce Whittaker and Steve Edwards (eds) Personal Property Securities in Australia (online looseleaf ed, LexisNexis) at [PPSA.238] and [5.650].

10 The Conflict of Laws in New Zealand, above n 1, at [6.46].

11 Described as having a “prorogation effect” in Michelle Ong “Rethinking Jurisdiction Clauses in New Zealand: The Hague Convention and Beyond” 2013 (19) Auckland U L Rev 219 at 226; and as having a “positive” effect in Mary Keyes “Jurisdiction Clauses in New Zealand Law” (2019) 50 VUWLR 631 at 633.

registration, or where the defendant has assets against which enforcement is sought).

(b)If exclusive, the parties purport to restrict any dispute resolution to the nominated forum.12 However, this does not always prevent the courts from another country from exercising jurisdiction, particularly if the remedy sought is only available in those courts.13

[16]   When parties seek to commence claims in competing jurisdictions, or inconsistently with a forum clause, this can be addressed by an application to the court to stay its own proceedings in preference to a foreign court. At common law, the test to be applied depends on the type of forum clause involved (if any):

(a)A test based on Spiliada Maritime Corp v Cansulex Ltd applies to non-exclusive forum clauses, or when there is no forum clause.14 Traditionally known as the doctrine of forum non conveniens, this requires the court to engage in a balancing exercise to determine which is the more appropriate forum to hear and determine the dispute in the interests of the parties and the ends of justice, taking into account a range of factors.15

(b)A test based on The Eleftheria applies to exclusive jurisdiction clauses.16 In New Zealand, the general principles are:17

12 Described as having a “derogation effect” in Michelle Ong “Rethinking Jurisdiction Clauses in  New Zealand: The Hague Convention and Beyond”, above n 11, at 226; and as having a “negative” effect in Mary Keyes “Jurisdiction Clauses in New Zealand Law”, above n 11, at 634.

13 The Conflict of Laws in New Zealand, above n 1, at [2.399]–[2.400].

14 Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (HL), as discussed in Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR6.29.05].

15 The Conflict of Laws in New Zealand, above n 1, at [2.249]. Relevant factors may include where relief can be granted, the relevant cost and convenience of proceeding in each jurisdiction, the location and availability of documents and witnesses, the governing law, the strength of the plaintiff’s case, where any judgment will be enforced, whether one party is seeking a tactical advantage, and any procedural advantages. See Schumacher v Summergrove Estates Ltd [2014] NZCA 412, [2014] 3 NZLR 599 at [30].

16 The Eleftheria [1970] P 94 (QB).

17 Kea Investments Ltd v Wikeley Family Trustee Ltd [2023] NZHC 466 at [72].

(i)The court must first consider whether the claim made falls within the scope of the exclusive jurisdiction clause. It is the substance, rather than the form of the claim, that must be covered by the clause.

(ii)If the claim falls within the scope of the clause, strong reasons are required to displace the prima facie entitlement to enforce the contractual exclusive jurisdiction clause.

[17]   The alternative is to seek an order to prevent a party from commencing or pursuing proceedings before a foreign court (an “anti-suit” injunction). The three-step test for whether to grant an anti-suit injunction includes assessing whether the conduct of the proceedings overseas is vexatious, oppressive or otherwise unconscionable.18 Anti-suit injunctions are a controversial tool, because of a concern that they interfere unduly with a foreign court controlling its own processes.19 They are generally regarded as having “no role to play where countries have agreed on judicial cooperation in the allocation and exercise of jurisdiction”.20 As discussed below, this is exactly what has happened between Australia and New Zealand.

TTPA regime

[18]   Under the TTPA regime, complementary legislation has been  enacted  in New Zealand21 and Australia22 with the following purpose (s 3 in both Acts):

(a)to streamline the process for resolving civil proceedings with a trans-Tasman element in order to reduce costs and improve efficiency;

18  Lu v Industrial and Commercial Bank of China (New Zealand) Ltd  [2020] NZHC 402 at [103]; and Maritime Mutual Insurance Association (NZ) Ltd v Silica Sandport Inc [2023] NZHC 793 at [37].

19 The Conflict of Laws in New Zealand, above n 1, at [2.420]; and Maritime Mutual Insurance Association (NZ) Ltd v Silica Sandport Inc, above n 18, at [36].

20 The Conflict of Laws in New Zealand, above n 1, at [2.420], referencing (among others) Commissioner of Inland Revenue (CIR) v Compudigm International Ltd (in rec, in liq) [2011] NZCCLR 6 (HC) at [24].

21     Trans-Tasman Proceedings Act 2010 (NZ).

22 Trans-Tasman Proceedings Act 2010 (Cth).

(b)to minimise existing impediments to enforcing certain New Zealand and Australian judgments and regulatory sanctions; and

(c)to implement the trans-Tasman agreement (discussed below at [22]) in New Zealand and Australian law.

[19]   The key provisions for present purposes are as follows (with the Australian text set out in the Appendix):

Australia	New Zealand
Application to stay on grounds of “more appropriate forum”	Section 17	Section 22
Order of stay of proceeding (setting out a Spiliada type of test)	Section 19	Section 24
Exclusive choice of court agreements (requiring strict enforcement of exclusive choice of court clauses with very limited exceptions)	Section 20	Section 25
No restraint of proceedings (a prohibition on anti-suit injunctions)	Section 22	Section 28

[20]   The planning for this regime began in 2003, when the Prime Ministers of Australia and New Zealand23 established a Working Group to look at the potential for adoption of a trans-Tasman regime for allocating forum and providing for the enforcement of judgments based on the Australian inter-state arrangements.24 In a final report published on 1 December 2006, the Working Group recommended a trans-Tasman regime, including that:25

A common statutory test should be adopted between Australia and New Zealand to allow a person to seek a stay of proceedings in one country on the grounds that a court in the other country is the more appropriate forum for the proceeding.

23 The Hon John Howard MP and the Rt Hon Helen Clark MP.

24     David Goddard QC and Prof Campbell McLaughlin QC “Private International Law – Litigating  in the Trans-Tasman Context and Beyond” (New Zealand Law Society seminar, August 2012) at [1.3]. In particular, it was modelled on the Service and Execution of Process Act 1992 (Cth): see Reid Mortensen “A Trans-Tasman Challenge: The Zurich Insurance Litigation Reviewed” [2023] UQLawJl 16, (2023) 42(3) University of Queensland Law Journal 371 at 372.

25 Trans-Tasman Working Group Trans-Tasman Court Proceedings and Regulatory Enforcement

(December 2006) at 18, recommendation 5.

[21]   On that recommendation, the Working Group discussed how exclusive forum clauses and anti-suit injunctions should be dealt with:26

Another of the factors to be taken into account should be whether there is agreement between the parties about the court or place where proceedings should be heard. Where that agreement is exclusive (i.e. only the chosen court, and no other, has jurisdiction to decide the dispute) a court would be required to decline jurisdiction in favour of the chosen court. There would be an exception where the agreement is null and void, or inoperative (as determined by the law of the jurisdiction of the chosen court) or incapable of being performed. This approach is consistent with the 2005 Hague Convention on Choice of Court Agreements, a consideration that will be important if either Australia or New Zealand ultimately decide to become a Party to this Convention.

We also recommend that anti-suit injunctions should not be granted, as between Australia and New Zealand, on the grounds that the court of the other country is not the appropriate forum. This will prevent such injunctions being used to circumvent the proposed trans-Tasman regime, including the provisions on staying proceedings on the grounds that another court is the more appropriate forum.

[22]   On 24 July 2008, the two governments signed the agreement recording their acceptance of the Working Group’s recommendations.27 The preamble to the agreement included the parties’ acknowledgement of their confidence in each other’s judicial and regulatory institutions and their desire to establish a new trans-Tasman regime to further streamline civil court proceedings. Article 8 addressed the topic of declining jurisdiction, and para 5 described the intended provision restricting anti-suit injunctions.28

[23]   The explanatory note to the Trans-Tasman Proceeding Bill also discussed the intended purposes of the provisions that became ss 24 and 25 in the New Zealand Act:29

26 At 20.

27 Agreement between the Government of New Zealand and the Government of Australia on Trans-Tasman Proceedings and Regulatory Enforcement., set out in sch 1 to the Trans-Tasman Proceedings Act 2010 (NZ).

28 This became s 22 in the Trans-Tasman Proceedings Act 2010 (Cth) and s 28 in the Trans-Tasman Proceedings Act 2010 (NZ).

29 Trans-Tasman Proceedings Bill 2009 (105-1).

Declining jurisdiction

A common test will be adopted, as between Australia and New Zealand, to determine when a court in the other country should decide a dispute. The Bill therefore provides that a person can seek a stay of proceedings in New Zealand on the grounds that a court in Australia is more appropriate to determine the proceeding.

Associated with the common test are additional provisions to give effect to exclusive choice of court agreements. An exclusive choice of court agreement is an agreement between parties that designates the courts of one country, or a specific court in one country, to decide particular disputes to the exclusion of any other courts. The provisions are consistent with the 2005 Hague Convention on Choice of Court Agreements. This will assist in the event that either New Zealand or Australia becomes a party to the Convention.

Trade practices legislation

[24]   In New Zealand, the Fair Trading Act 1986 (FTA) applies to misleading and deceptive conduct in trade. It applies not only to domestic transactions, but also trans-Tasman conduct.

(a)Section 3(1) of the FTA extends the application of the Act to conduct that occurs overseas, in circumstances where the defendant carries on business in New Zealand and the conduct relates to the supply of products in New Zealand.30

(b)Importantly, the FTA also applies to false and misleading conduct in New Zealand, regardless of where the defendant is incorporated and where it carries on business.31 Accordingly, communications made from outside New Zealand to recipients in New Zealand constitute conduct in New Zealand for the purpose of ss 9 and 13 of the FTA.32

30 Body Corporate Number DPS 91,535 v 3A Composites GMBH [2023] NZCA 647 at [102], referencing Wing Hung Printing Co Ltd v Saito Offshore Pty Ltd [2010] NZCA 502, [2011] 1 NZLR 754 at [102]–[110].

31 Wing Hung Printing Co Ltd v Saito Offshore Pty Ltd, above n 30, at [102]–[110].

32 Body Corporate Number DPS 91,535 v 3A Composites GMBH, above n 30, at [102], referencing

Wing Hung Printing Co Ltd v Saito Offshore Pty Ltd, above n 30, at [106].

[25] In Australia, misleading and deceptive conduct in trade is addressed by provisions in the CCA, under its Australian Consumer Law (ACL) contained in sch 2.33 The CCA also broadly applies to trans-Tasman conduct.

(a)Among other things, s 5(1A) extends to the engaging in conduct outside Australia by bodies corporate carrying on business within New Zealand.

(b)In addition, s 5(2) extends to the engaging in conduct outside of Australia by any persons in relation to the supply by those persons of goods or services to persons within Australia.

[26]   As a result, both the FTA and CCA will often apply in their own terms to trans-Tasman conduct.34 In those circumstances, there  seems  little  doubt  that a New Zealand court would naturally default to applying the New Zealand legislation, and an Australian court would apply the Australian legislation. The more difficult issue is whether overseas legislation could be applied concurrently or instead.

[27]   The common law has not developed a dedicated choice of law rule relating to consumer or fair trading claims.35 Those claims could perhaps be characterised as contractual, or tortious,36 or the European approach could be influential where they apply law of the consumer’s place of habitual residence.37

[28]   In Wing Hung Printing Co Ltd v Saito Offshore Pty Ltd, the Court of Appeal assumed that a foreign court would not have jurisdiction to determine a claim under the FTA.38 Similarly, in Chief Executive of the Department of Corrections v Fujitsu New Zealand Ltd, Cooke J decided that s 138 of the CCA conferred exclusive

33 Competition and Consumer Act 2010 (Cth), sch 2, s 18 provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. For any breach of that section, sch 2, s 236 provides for an action for damages as a remedy.

34    Chief Executive of the Department of Corrections v Fujitsu New Zealand Ltd [2023] NZHC 3598 at [247]. See also Murren v Schaeffer [2018] NZHC 3176, in which both the FTA and the Nevada Deceptive Trade Practices Act applied to the conduct.

35 The Conflict of Laws in New Zealand, above n 1, at [6.88].

36  In which case the starting point would be the Private International Law (Choice of Law in Tort)  Act 2017, s 8(2)(c): the law of the country in which the most significant element or elements of the events constituting the tort occurred.

37 The Conflict of Laws in New Zealand, above n 1, at [6.89].

38 Wing Hung Printing Co Ltd v Saito Offshore Pty Ltd, above n 30, at [141].

jurisdiction on the Federal Court in relation to any matter arising under ACL,39 so that cause of action was not actionable before the New Zealand courts.40

[29]   In Fujitsu, Cooke J took the view that the enforceability of the CCA by    New Zealand courts was a matter of statutory interpretation, rather than something determined by a choice  of  law  rule.41  Questioning  that,  one  of  the  authors of The Conflict of Laws in New Zealand suggests that, unlike the public policy nature of competition laws, there might be scope for taking a choice of law approach for fair trading issues if the court has subject-matter jurisdiction.42

[30]   A choice of law approach is designed to select which law to apply if there is a conflict, and only one or the other should apply. Associate Professor Hook suggests that New Zealand courts only apply a foreign statute if a choice of law rule requires this.43 In combination, this could arguably prevent two statutes from applying concurrently or cumulatively, whereas in my view this might be possible if the laws are not directly in conflict. Legislation designed to address cross-border trade is one such circumstance where this may arise.44 Therefore, I agree with Cooke J that this is a matter of statutory interpretation, and choice of law if there is a conflict that must be resolved.

39 Chief Executive of the Department of Corrections v Fujitsu New Zealand Limited, above n 34, at [251], referencing Home Ice Cream Pty Ltd v McNabb Technologies LLC [2018] FCA 1033 at [19]; and Faxtech Pty Ltd v ITL Optronics Ltd [2011] FCA 1320 at [18].

40 At [252]. Cf The Conflict of Laws in New Zealand, above n 1, at [4.129][4.130], where the authors discuss either treating the statute as self-limiting and therefore inapplicable overseas, or otherwise disregarding such restrictions on the basis that the New Zealand court does not usually give effect to foreign rules on the conflict of laws (renvoi) – see for example Rimini Ltd v Manning Management and Marketing Pty Ltd [2003] 3 NZLR 22 (HC); Amaca Pty Ltd v Frost [2006] NSWCA 173, (2006) 67 NSWLR 635; and Thomas v A2 Milk Company Ltd (No 2) [2022] VSC 725, (2022) 68 CR 283.

41 At [246]–[247], referencing Brown v New Zealand Basing Ltd [2017] NZSC 139, [2018] 1 NZLR 245, especially at [4]–[9]. See The Conflict of Laws in New Zealand, above n 1, at [4.118] for a discussion of the debate between the “statutist” premise and the “conflicts” premise.

42  The Conflict of Laws in New Zealand, above n 1, at [6.91].  Associate Professor Hook questions  the reasoning but not the result of Fujitsu in a blog post: Maria Hook “Department of Corrections v Fujitsu: is the Australian CCA (potentially) applicable in a New Zealand court?” (12 December 2023) University of Otago <blogs.otago.ac.nz>.

43 At [4.127].

44   For example, in Kabushiki Kaisha Sony Computer Entertainment v van Veen (2007) 71 IPR 179 the High Court granted relief against infringement of English and Hong Kong copyright legislation, as well as under the New Zealand Copyright Act. KK Sony was cited by the United Kingdom Supreme Court in Lucasfilm v Ainsworth [2011] UKSC 39, [2012] 1 AC 208 at [100]; and applied in Jedis Ltd v Vodafone  New Zealand  Ltd  HC Auckland  CIV-2010-404-006270, 17 September 2012 at [37]–[39].

[31]   As in Fujitsu, it matters in this case because of the difference between the two statutes about whether parties may contract out. Contracting out is not permitted under the CCA, whether directly or by selecting another proper law.45 In New Zealand, the courts had long held that it was not possible to contract out of the FTA.46 However, since 17 June 2014, s 5D of the FTA has permitted contracting out of identified provisions in limited specified circumstances,47 with s 5D(4) setting out various mandatory considerations for determining whether such terms are fair and reasonable.48

Application to facts

[32]   In arguing that an anti-suit injunction is not precluded by s 28 of the TTPA, A-Ward relies on the following comments in an article by Professor Keyes:49

Whether New Zealand (and Australian) courts can award anti-suit injunctions to protect exclusive choice of court agreements within the scope of the Trans-Tasman legislation is an interesting question which has not yet considered by the courts in either country. The Trans-Tasman Proceedings Act provides that:50

A New Zealand court must not restrain a person from commencing a civil proceeding and an Australian court on the grounds that the Australian court is not the appropriate forum for the proceeding.

This provision might have been intended to apply in all cases, including where there is an exclusive choice of court agreement in favour of the New Zealand courts. But on its clear wording, it does not apply in such a case because the ground on which the injunction would be sought is not that the Australian court is inappropriate, but rather that the exclusive choice of court agreement should be enforced; the appropriateness of the Australian forum is not explicitly relevant to that question under the Act. It would be consistent with the strong present protection of exclusive choice of court agreements under the Act, with the express words of s 28(1), and with the relevant Australian authority,51 for the remedy of an anti-suit injunction to be available to enjoin a party from commencing or continuing Australian proceedings brought in

45 Competition and Consumer Act, sch 2, ss 64 and 67. See Valve Corporation v Australian Competition and Consumer Commission [2017] FCAFC 224, (2017) 351 ALR 584 at [108].

46     David v TFAC Ltd [2009] NZCA 44, [2009] 3 NZLR 239 at [60].

47 Section 5D was inserted on 17 June 2014 by s 8 of the Fair Trading Amendment Act 2013.

48     Chief Executive of the Department of Corrections v Fujitsu New Zealand Ltd, above n 34, at [281]; and Williams v Tellen Systems NZ (2013) Ltd [2021] NZHC 1199 at [117].

49     Mary Keyes “Jurisdiction Clauses in New Zealand Law”, above n 11, at 647.

50     Trans-Tasman Proceedings Act 2010 (NZ), s 28(1) (emphasis added).

51 See Great Southern Loans v Locator Group [2005] NSWSC 438 at [75]–[77]; and Reid Mortenson “A Trans-Tasman Judicial Area: Civil Jurisdiction and Judgments in the Single Economic Market” (2010) 16 Canta L R 61 at 85.

breach of an exclusive choice of court agreement in favour of the New Zealand courts.

[33]   To the opposite effect, the authors of The Conflict of Laws in New Zealand do not consider that there is any continuing power to award an anti-suit injunction to uphold a jurisdiction agreement in the TTPA context, because such a power “would run roughshod over s 25, which sets out the circumstances in which such an agreement may be enforceable”.52

[34]   In my view, the latter position must be correct — s 28 of the TTPA precludes an anti-suit injunction in respect of an Australian proceeding:

(a)The suggestion by Professor Keyes would interpret “appropriate forum” within s 22 (Aus)/s 28 (NZ) as a term of art precisely equivalent to forum non conveniens, as provided for in s 19 (Aus) / s 24 (NZ).     I simply do not accept, as a matter of reasonable interpretation, that the term is restricted in that way. The court is required to make a decision about the appropriate forum when considering whether to enforce an exclusive choice of forum clause, even if the legal test is different in the two scenarios.53 A modern approach of avoiding Latin terms does not change the ordinary meaning of “appropriate forum”.

(b)This is reinforced by the structure of the TTPA regime. Any application for a stay must be made under s 17 (Aus)/s 22 (NZ) to determine whether the overseas court is “the more appropriate court” to determine the matters in issue. The title of s 22 (NZ) expressly uses the term “more appropriate forum”. The two respective tests are then incorporated as applicable for that purpose by their introductory words, which cross-refer back to s 17 (Aus)/s 22 (NZ). This makes it clear that, whichever test applies, the court is still determining which forum is more appropriate.

52     The Conflict of Laws in New Zealand, above n 1, at [2.445].

53 See [16] and [19] above.

(c)The strong protection of exclusive choice of court agreements is already contained in s 20 (Aus)/s 25 (NZ). Introducing a second means of arguing the issue in another jurisdiction would only create uncertainty, inefficiency, and the risk of inconsistency, all of which the TTPA regime was designed to avoid.

(d)Given that specific provision has been made for remote appearances in trans-Tasman hearings,54 the rationale for such duplication must rest on an assumption that the courts in each jurisdiction might reach a different result, giving a parochial advantage. That is inconsistent with the entire basis for the TTPA regime — that the courts apply the same codified tests and place confidence in each other’s judicial institutions.

(e)Great Southern Loans v Locator Group, relied on by Professor Keyes, concerned domestic Australian inter-state issues, in circumstances where there was no equivalent of s 20 (Aus)/s 25 (NZ).55 It is the express provision for exclusive choice of court agreements that makes a potentially conflicting common law test unpalatable. The TTPA regime was designed with “a deeper ban on anti-suit injunctions between the courts of the two countries than exists between Australian courts”.56

(f)It is illogical for s 22 (Aus)/s 28 (NZ) to ban anti-suit injunctions as a collateral way to evade s 19 (Aus)/s 24 (NZ), and yet not intend the same for s 20 (Aus)/s 25 (NZ). The concern expressed by the  Working Group was about someone trying to circumvent the trans-Tasman regime as a whole.57

(g)The structure of the stay provisions is that any forum issues must be dealt with by the court first seised of the matter. This is designed to

54 Trans-Tasman Proceedings Act 2010 (Cth), pt 6.

55     Great Southern Loans v Locator Group, above n 51.

56     Reid Mortensen “A Trans-Tasman Challenge: The Zurich Insurance Litigation Reviewed”, above n 24, at 373 and fn 13.

57 See [21] above.

prevent deliberate duplication of proceedings. That objective would be defeated by an ability to bring parallel anti-suit injunctions.

(h)Anti-suit injunctions have no role to play where countries have agreed on judicial cooperation in the allocation and exercise of jurisdiction.58

[35]   Even if there were scope to order an anti-suit  injunction in  some situations,  I do not see any basis for considering the commencement of a CCA claim in Australia to be vexatious, oppressive, or otherwise unconscionable, or creating an injustice that must be redressed.

(a)Although New Zealand has a different policy now about allowing limited contracting out of FTA obligations, New Zealand had a long history of not allowing it, so there is nothing invalid or unconscionable about Australia’s policy choice on that issue for its own legislation.59

(b)As reflected in s 20 (Aus)/s 25 (NZ) of the TTPA regime, both countries recognise and respect policy exceptions to the enforcement of choice of forum clauses. The applicant commenced a stay application in Australia seeking to enforce the exclusive choice of court agreement under s 20. It withdrew that application before it was determined, so I do not have the benefit of the Australian court’s decision on that issue. Presumably, the applicant made the assessment that one or more of the exceptions in s 20 might apply, namely that giving effect to an exclusive choice of court agreement would lead to a manifest injustice or would be manifestly contrary to Australian public policy, or that the choice of court clause in respect of the CCA claim would be null and void under Australian law (including the rules of private international law).60 This would be consistent other Australian decisions in non-TTPA contexts,61

58 As discussed at [17] above.

59 See [31] above.

60 Trans-Tasman Proceedings Act 2010 (Cth), s 20(2)(c) and 20(2)(A).

61     Home Ice Cream Pty Ltd v McNabb Technologies LLC (No 2) [2018] FCA 1093 at [19]; and Valve Corporation v Australian Competition and Consumer Commission, above n 45, at [96]–[116].

and with the High Court of Australia’s observations in Karpik v Carnival plc:62

There is nothing irrational in that norm extending to foreign corporations that choose to carry on business in Australia so that they cannot seek to enforce unfair terms within a standard form consumer or small business contract, irrespective of whether that occurs inside or outside Australia. Parliament is prescribing that a corporation that does business in Australia should be required, if it uses standard terms in a consumer or small business contract, to meet Australian norms of fairness, irrespective of whether the standard terms are in a contract made in Australia or one made overseas.

(c)To the extent that New Zealand courts have considered the issue of concurrent liability under both the FTA and CCA, it seems to be an entirely orthodox position that the Federal Court in Australia would regard itself as having jurisdiction to determine the CCA claim, unconstrained by the choice of law and court for the Trade Terms.63 This would be the outcome using the statutory analysis by Cooke J in Fujitsu, or by taking a choice of law approach that recognises a jurisdiction’s right to regulate the supply of goods into their own country.64 For those reasons, in my view mandatory legislation of that type should not be characterised as contractual for conflict of laws purposes. It also means that the conduct of commencing the claim in Australia is not unconscionable or unjust in the sense required for an anti-suit injunction.

[36]   Given the above position on both issues, it is unnecessary to determine whether the Trade Terms purport to exclude CCA liability as a matter of contract, or nominate

62 Karpik v Carnival plc [2023] HCA 39, (2023) 98 ALJR 45 at [40].

63 See [28] above.

64 Which the New Zealand FTA reflects, as referred to in [24] above. This could also apply under a tort characterisation, if the most significant element constituting the tort is the recipient being misled. This is also consistent with the rule described in Belhaj v Straw [2017] UKSC 3; [2017] 2 WLR 456 at [121] that a court will recognise, and will not question, the effect of a foreign state’s legislation or other laws in relation to any acts which take place or take effect within the territory of that state. See The Conflict of Laws in New Zealand, above n 1, at [6.91] discussing that the New Zealand courts would generally apply New Zealand law, if both statutes purport to apply in their own terms. Conversely, an Australian court would be expected to apply its own statute in those circumstances.

New Zealand courts as the exclusive jurisdiction for determining CCA claims. There are various difficulties with that argument, which may need to be determined if the substantive claim in this proceeding continues. Among other things, the CCA is not referred to (whereas Australian personal property security legislation and enforcement is contemplated65), entire agreement/no reliance clauses are only effective as a matter of New Zealand law to the extent they are fair and reasonable,66 and the contractual exclusions are limited “to the extent permitted by law”.67

Result

[37]   In accordance with s 28(2) of the TTPA, I decline the application to restrain the respondent from continuing its claim currently before the Federal Court of Australia, Queensland Registry.

[38]   The respondent is entitled to costs. If the parties cannot agree, I direct the respondent’s memorandum on costs to be filed and served within 10 working days of this judgment, and the applicant’s to be filed and served 10 working days later.

O’Gorman J

65 See [8(a)] above.

66 Contract and Commercial Law Act 2017, s 50; and Fair Trading Act 1986, s 5D(2).

67 See also Mary Keyes “Jurisdiction Clauses in New Zealand Law”, above n 11, at 648 for a discussion of some difficulties that might arise from a foreign court’s decision on the issues, referencing Albert Dinelli “The Limits on the Remedy of Damages for Breach of Jurisdiction Agreements: The Law of Contract Meets Private International Law” (2015) 38 MULR 1023.

Appendix

Trans-Tasman Proceedings Act 2010 (Cth)

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 issue.

(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.

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 the matters in issue 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 the matters in issue 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 issue; 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)   Paragraph (1)(a) 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 issue between the parties to the proceeding has decided not to determine those matters.

(2A)Paragraph (1)(b) does not apply to an exclusive choice of court agreement if the Australian court is satisfied that it is null and void under Australian law (including the rules of private international law).

(3)   Exclusive choice of court agreement, in relation to matters in issue 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.

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.

Trans-Tasman Proceedings Act 2010 (NZ)

28 No restraint of proceedings

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

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