Originating application for order for interim relief under section 25 of the Trans-Tasman Proceedings Act (Form 96)

Section 25 of the Trans-Tasman Proceedings Act 2010 allows a party or intended party to a civil proceeding commenced, or to be commenced, in a New Zealand court to apply to an Australian court, including the Federal Court, for interim relief (other than a warrant for the arrest of property) in support of that New Zealand proceeding. Under section 26 the court may give interim relief if it considers it appropriate and if it would have had power to give, and would have given, that relief in a similar proceeding commenced before it. Rule 34.65 of the Federal Court Rules 2011 requires an originating application in Form 96 with a supporting affidavit covering the New Zealand proceeding, the interim relief sought and why it should be given.

When you need it

• You have started, or intend to start, a civil proceeding in a New Zealand court and need interim relief in Australia, such as a freezing order over assets here.
• The relief is something the Federal Court could give in a similar proceeding commenced before it (s 26(1)(b)).
• Not for arrest of property: s 25 excludes warrants for arrest of property.
• Not for registering a New Zealand judgment: that is a separate process under Part 7 of the Act.

1. 1

   Heading

   Insert the District Registry, Division and the applicant and respondent names. Delete the 'To the Respondent' section if there is no respondent.

2. 2

   Leave the hearing details to the Registry

   The Registry inserts the hearing time and place and any order shortening time for service.

3. 3

   Details of claim

   The form states the application is for interim relief under s 25. Add any interlocutory relief in numbered paragraphs, or delete that section.

4. 4

   Prepare the affidavit

   If the New Zealand proceeding has started, state that, the relief sought in it and the steps taken. If not, state when and in which court it will be started and the relief to be sought. In either case state the interim relief sought and why it should be given (r 34.65(2)).

5. 5

   Representative action

   If you sue in a representative capacity, give the details; otherwise delete the section.

6. 6

   Address, service and signature

   Give the address for service, email and residential or business address, choose the service option, and sign as the Applicant or lawyer.

• File the application and affidavit. eLodgment is the Court's electronic filing system. A filing fee applies - check the Court's current fee schedule.
• The Federal Court's own procedural rules apply as if the New Zealand proceeding were a similar proceeding commenced in the Court (s 27).
• Where notice is given, serve the application and affidavit personally on each respondent at least 5 days before the first hearing unless the Court shortens time (r 8.06).

• Tie the interim relief to the New Zealand proceeding. Section 26 asks whether relief is appropriate in support of that proceeding.
• Draft the interim orders you want as precisely as you would in an Australian proceeding, because the Court asks whether it would have made the same orders in a similar case brought before it (s 26(1)(b)).
• If the New Zealand proceeding is not yet on foot, be specific about the court and the timing, because the affidavit must state them.