7: Court appearance by video link or telephone Proposed solution An applicant for a stay of 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 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. Existing position 7.1 Although the Federal of Australia and the New Zealand High Court have jurisdiction to take evidence from any overseas country by video link or 44 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. Practical problems 7.3 The 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 44 Sections 47A and 47B of the Federal Court of Australia Act 1976 (Cth) and Rule 496 of the High Court Rules (NZ).
7: Court appearance by video link or telephone Proposed solution An applicant for a stay of 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 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. Existing position 7.1 Although the Federal of Australia and the New Zealand High Court have jurisdiction to take evidence from any overseas country by video link or 44 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. Practical problems 7.3 The 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 44 Sections 47A and 47B of the Federal Court of Australia Act 1976 (Cth) and Rule 496 of the High Court Rules (NZ).
Trans-Tasman%20Working%20Group%20on%20Court%20Proceedings%20and%20Regulatory%20Enforcement%20-%20Discussion%20Paper%202005.docx