20.01  New Zealand has a ‘distinct national legal identity’.¹ Although New Zealand law has a close relationship with English law,² the New Zealand courts depart from English case law where conditions in New Zealand are different or where case law in other common law countries is a better guide.³

20.02  However, New Zealand law on anti-suit injunctions, as it has so far developed, is much the same as English law,⁴ and has generally followed the English decisions, while also paying particular regard to the judgments of the Privy Council on the subject.

20.03  In contrast, Australian anti-suit decisions have not been influential in New Zealand. Australian law on jurisdictional matters is in key respects marked off from other Commonwealth systems, due to the effect of the rejection of the doctrine of forum non conveniens in Australia.⁵ In contrast, New Zealand, like most of the close common law countries⁶ has followed the doctrine of forum non conveniens developed in Spiliada.⁷

(p. 444) 20.04  However, New Zealand jurisprudence on the subject is limited, as there have been few applications for anti-suit injunctions in New Zealand.⁸ It appears that the New Zealand courts have granted only one anti-suit injunction and directly considered the possibility of an anti-suit injunction in one other case.⁹

20.05  The New Zealand judiciary appears to accept that anti-suit injunctions are a justifiable tool in principle. Hugh Williams J, writing extra-judicially, has said: ‘although the anti-suit injunction must be contained within proper national limits informed by proper regard for international comity and notions of sovereignty, such injunctions may nonetheless have a valuable part to play and, perhaps, have an as yet unrealised potential in maritime law’.¹⁰

20.06  We address the case law as it has developed so far in New Zealand. References are to the courts of New Zealand, and references to statutes are to New Zealand statutes, unless specified.

20.07  The New Zealand courts have confirmed that they have the power to grant anti-suit injunctions without addressing the source of the power. In Jonmer v Maltexo, the court stated that there was ‘… no question that the [New Zealand] Court has the jurisdiction to make such an order’.¹¹ In addition, in Compudigm, the possible anti-suit injunction was discussed and rejected on the facts without any question that the power to grant it exists.¹²

20.08  This jurisprudence has not discussed the source of the power, but the answer appears to be clear. In New Zealand, injunctions are not granted under an express statutory power specifically conferring or confirming the power to grant injunctions, in contrast to section 37(1) of the English Senior Courts Act 1981. Instead, sections IV, V, and XVI of the Supreme Court Act 1860 conferred on the New Zealand High Court all the jurisdiction possessed by the superior courts of England in 1860. That jurisdiction included the power to grant injunctions, including anti-suit injunctions to restrain domestic or foreign proceedings.¹³ All such powers were continued in section 16 of the Supreme Courts Act 1882, section 16 of the Judicature Act 1908, and now in section 12(a) of the Senior Courts Act 2016, which also provides in section 12(b)¹⁴ that the High Court has ‘the judicial jurisdiction that may (p. 445) be necessary to administer the laws of New Zealand.’¹⁵ In TV3 v Everready, the Court of Appeal confirmed that ‘the remedy of injunction should be available whenever required by justice’.¹⁶

20.09  As in English law, the power to grant injunctions, and specifically anti-suit injunctions, is an ‘equitable jurisdiction’.¹⁷ New Zealand law has followed the general principles of injunctions under English law.¹⁸

20.10  It appears, therefore, that the power of the New Zealand courts to grant permanent and interim anti-suit injunctions is derived from equity, and is based upon the donation to the New Zealand courts of the pre-1860 powers of the English courts by the chain of statutes leading to section 12 of the 2016 Act; if necessary, the power could also be based on section 12(b) of the 2016 Act.

20.11  It might also be suggested that the anti-suit injunction could also be founded in the inherent jurisdiction of the court, as it is in part in Australia¹⁹ although not in England.²⁰ In Carter v Holt,²¹ the High Court was considering whether it could ‘stay’, that is restrain the pursuit of, an arbitration in New Zealand, and discussed the issues under the rubric of the court’s ‘inherent jurisdiction to order a stay of arbitration proceedings’.²² However, en passant references like this to the ‘inherent jurisdiction’ are sometimes best understood as referring to the court’s general jurisdiction or power to grant injunctions rather than the inherent jurisdiction properly so called. The court’s supervisory jurisdiction over domestic arbitrations is generally viewed as a separate matter to its power to grant anti-suit injunctions.²³ There does not appear to have been argument directed to whether grounding the power in the ‘inherent jurisdiction’ was indeed appropriate; still less was there any consideration of the basis of the power to grant anti-suit injunctions in general; and the English authorities referred to by the court in Carter v Holt were themselves injunction authorities that made no reference to the inherent jurisdiction.²⁴ In the circumstances, it is submitted that this decision does not appear to be persuasive authority to treat anti-suit injunctions as founded in the High Court’s inherent jurisdiction, at least not in general, and there is no apparent need to do so.

20.12  There is no reason to assume that understanding the High Court’s power as derived from the pre-1860 powers of the English courts will create any material difference to the modern approach to the grant of injunctions in England under the statutory power in section 37 of the English Senior Courts Act 1981. While English law on anti-suit injunctions has developed (p. 446) since 1860 in terms of the principles as to when an injunction should be granted, the essence of the power has not changed.

20.13  The New Zealand court has held that section 248(1)(c)(i) of the Companies Act, preventing the commencement or continuance of legal proceedings against a company in liquidation does not apply to foreign legal proceedings.²⁵ In turn, the power to grant injunctions to restrain litigation against the company in liquidation in section 247 of the act will also only apply to proceedings in New Zealand.²⁶

20.14  However, the general equitable power to grant anti-suit injunctions permits the grant of anti-suit injunctions to restrain foreign proceedings in order to protect the insolvency jurisdiction of the New Zealand court.²⁷

20.15  But where both countries are party to the UNCITRAL Model Law on Cross-Border Insolvency, the exercise of this power may be limited by considerations of comity. This point is discussed at paras 20.25–20.26.

20.16  It seems clear that the New Zealand courts will have power to grant permanent and interim anti-suit injunctions in support of arbitration, including the power to restrain competing court and arbitration proceedings abroad.²⁸ The statutory basis of the power has not yet been addressed.

20.17  It is submitted that permanent anti-suit injunctions in support of arbitration would be founded on the court’s general powers to grant injunctions, discussed above.²⁹ Such a power would not be inconsistent with the presumption of non-intervention derived from Article 5³⁰ of the UNCITRAL Model Law on International Commercial Arbitration,³¹ because the court would not be interfering in, but instead protecting, the arbitration.³²

20.18  So far as concerns interim anti-suit injunctions in support of arbitration, the exact basis of the power is somewhat less clear, although it is clear that some basis will exist. Possibilities (p. 447) include the general powers inherited from the English courts,³³ as discussed above; or Article 9(2) of Schedule 1 of the New Zealand Arbitration Act 1996, combined together with Articles 17 and 17A of the Schedule, or perhaps with section 12 of the Act.

20.19  The New Zealand courts appear likely to continue to follow the basic principles in respect of the grant of non-contractual anti-suit injunctions derived from Lord Goff’s judgment in Aérospatiale,³⁴ and the English cases that have developed Aérospatiale. Those principles are summarized in Chapter 4 of this work. In short and incomplete summary, their central features are that (a) an anti-suit injunction can be granted where the ends of justice so require; (b) generally the foreign proceedings must be vexatious and oppressive, and it is not sufficient merely that in the eyes of the New Zealand court it is the more appropriate forum; (c) the foreign proceedings must not give the injunction defendant a legitimate advantage of which it would be unjust to deprive him; (d) the New Zealand court must have a sufficient interest in the matter; (e) comity must be taken into consideration; and (f) the injunction will only be granted with caution. A fuller summary is found at Ch 4, para 4.05. It seems likely that New Zealand law, like English law, will also accept the legitimacy of anti-suit injunctions to protect the processes of the New Zealand court from interference.

20.20  Aérospatiale and the English case law developing it has been applied in the two New Zealand cases that have directly considered anti-suit injunctions, Jonmer v Maltexo,³⁵ and Compudigm,³⁶ which we discuss below. The logic of Aérospatiale has been applied by other Commonwealth courts in the Pacific.³⁷ Other leading English decisions on anti-suit injunctions have also been treated as representing New Zealand law in other cases on other topics.³⁸

20.21  In Jonmer v Maltexo,³⁹ a claim was brought in Texas by Maltexo, a New Zealand company, against Jonmer, a Texas company, to recover a debt owed under the agreement concluded between them for the distribution of Maltexo’s traditional New Zealand product. Jonmer, on the other hand, brought proceedings against Maltexo in New Zealand for breach of the distribution agreement. Following Maltexo’s failed attempt to resist jurisdiction in New Zealand on grounds of forum non conveniens, Jonmer applied to the High Court in New Zealand to restrain Maltexo from its pursuit of its debt claim in Texas. In considering this application, Robertson J cited and applied the Aérospatiale test, as summarized above, and (p. 448) the English cases developing it.⁴⁰ He found that New Zealand was the natural forum for the dispute, as it was where the parties’ bargain was struck and where the most relevant witnesses were likely to reside. Robertson J also held that it was ‘an exceptional case’ that was likely to ‘create oppression and abuse’ if the smaller debt claim was allowed to be heard in Texas, in circumstances where there was ‘no demonstrable benefit or advantage’ to proceeding in that jurisdiction. Ultimately, the court granted an order restraining Maltexo from continuing the Texas proceedings, but on the condition that Jonmer consented to judgment in Texas if the debt was found to be due.

20.22  A significant feature of Robertson J’s decision is that he correctly recognized that the mere existence of parallel proceedings does not constitute vexation and oppression (see 122). This reflects the key doctrinal developments in English law and the Privy Council in the 1980s, rejecting the Castanho heresy (under which it had been temporarily but wrongly accepted that an anti-suit injunction could be granted solely on the basis that the English court had concluded that it and not the forum court was the convenient forum).⁴¹

20.23  In Commissioner of Inland Revenue v Compudigm,⁴² a claim was brought in Nevada against an insolvent New Zealand company. The Nevada court requested the consent of the New Zealand court before the Nevada proceedings continued. The liquidator did not oppose the application for consent, but the High Court concluded that its consent was not necessary. However, as part of its reasoning, the High Court considered the analogous question of whether it would have granted an anti-suit injunction had such been sought (it had not). In doing so, the High Court applied the basic principles derived from the English cases, following Aérospatiale, of Barclays Bank v Homan and Bloom v Harms.⁴³ The central tests deployed were whether the Nevada proceedings were vexatious or oppressive or unconscionable (see at [19]–[23]). The High Court also considered it was necessary to satisfy itself that ‘there must be good reason why the decision to stop foreign proceedings should be made here rather than there’ (cf [18]),⁴⁴ an element of the English requirement of a ‘sufficient interest’ that has been developed since Barclays Bank v Homan. On the facts, the High Court concluded that since the Nevada proceedings were not a ‘blatant attempt’ to undermine the New Zealand liquidation, no anti-suit injunction would have been granted (at [34]).

20.24  However, the High Court then went further and considered the implications of the UNCITRAL Model Law on Cross-Border Insolvency 1997, which has been implemented in both the United States and New Zealand, but which neither party had cited. The Model Law on Cross-Border Insolvency contains provisions as to the mutual recognition of insolvency decisions, and for stays pending determination of the foreign insolvency proceeding, in appropriate cases. In the light of this, although without reaching any decision, the court (p. 449) suggested that the grant of an anti-suit injunction to restrain foreign insolvency proceedings would in general be inappropriate where both countries implemented the Model Law,⁴⁵ absent unusual circumstances such as urgency.⁴⁶ This approach has some resemblance to the approach of the European Court of Justice (ECJ) to anti-suit injunctions within the closed jurisdictional system of the Brussels–Lugano regime.⁴⁷

20.25  It is respectfully submitted that the approach in Compudigm is too absolute a policy, as contested argument might have revealed. The operation of the Model Law’s regime between the two states in question may well affect and limit the grant of anti-suit injunctions in various ways. For example, its provisions on which state should have jurisdiction in insolvency may shape which court is the natural forum. Its provisions on mutual recognition and stays may shape whether the foreign proceedings are indeed vexatious, or whether an injunction is appropriate as a matter of discretion, or whether the appropriate course is in general to seek a stay in the foreign proceedings. All these points will need to be considered, taking into account the particular way in which the Model Law is implemented in any particular state. The framework of the Model Law may also be influential in assessing the restraining influence of comity. But it is submitted that it would be too rigid to suggest that the Model Law will mean, in general, that an anti-suit injunction will be inappropriate outside cases of urgency. Even within the framework of the Model Law, parties could seek to use the other countries’ insolvency proceedings in a vexatious fashion, and its implementation may vary. Thus, in principle, there can be situations where even requiring recourse to be made to the foreign court would in itself be oppressive, or where the centre of gravity of the issues is located in the domestic court in a way that makes it consistent with comity for the domestic court itself first to assess the question of vexation. One example of this may be where the claimant abroad has already participated in, and submitted to, the domestic insolvency regime and then, disliking the results, seeks to have another spin of the wheel elsewhere.⁴⁸

20.26  Where the foreign litigation is in breach of a contractual exclusive forum clause, the English case law adopts a stronger and distinct set of principles, derived from cases such as The Angelic Grace and Donohue v Armco. In short, where the foreign proceedings are in breach of contract, the anti-suit injunction will ordinarily be granted unless there are a strong reasons not to do so.⁴⁹

20.27  The sole New Zealand case which has addressed this question, Product Development Solutions v Parametric Technology Corporation, indicates that the same basic principles will be adopted in New Zealand. The High Court was considering an application to stay proceedings before it, notwithstanding that there was an exclusive jurisdiction clause in favour of Auckland. It observed that the party arguing for New Zealand jurisdiction ‘could also rely (p. 450) on that same clause to seek an anti-suit injunction to prevent [the other party] bringing proceedings against it in Australia. The approach of the courts is to enforce exclusive jurisdiction clauses unless there are very strong reasons why they should not be.’⁵⁰ This is a strong indication that the essence of the approach in The Angelic Grace would be applied in New Zealand.⁵¹ It does not seem that the use of ‘very strong’ as opposed to ‘strong’ is intended to create any departure from the English jurisprudence.

20.28  It will, however, be a matter for the New Zealand courts to consider whether they wish to apply the more controversial aspects of the rigorous English approach.⁵²

20.29  The existence of a power to grant anti-suit injunctions in support of arbitration and to protect an arbitration clause has already been discussed.⁵³ Where the foreign proceedings are in breach of the arbitration clause, it seems likely that the same or similar principles will be applied as in respect of foreign proceedings in breach of exclusive jurisdiction clauses.⁵⁴ The New Zealand courts are also likely to have power to grant anti-suit injunctions to prevent collateral attacks on arbitrations.

20.30  The Agreement between Australia and New Zealand on Trans-Tasman proceedings (the ‘Trans-Tasman Agreement’) provides for the mutual enforcement of judgments and judicial cooperation between New Zealand and Australia.⁵⁵ It is implemented in New Zealand by the Trans-Tasman Proceedings Act 2010.⁵⁶ The regime contains provisions for the courts of each country to stay proceedings if the courts of the other country are the more (p. 451) appropriate forum.⁵⁷ So, forum non conveniens does operate by statute between Australian and New Zealand.

20.31  In turn, it was thought appropriate to restrict the scope of anti-suit injunctions between New Zealand and Australia. Section 28 of the Trans-Tasman Proceedings Act 2010 provides that a New Zealand court must not restrain a person from commencing, or taking steps in, a civil proceeding in an Australian court ‘on the grounds that the Australian court is not the appropriate forum for the proceeding’. The Australian implementing legislation has an identical provision.⁵⁸ Both implement Article 8(5) of the Trans-Tasman Agreement, which uses the same central language.

20.32  The scope of Article 8(5), section 28 of the New Zealand Act, and the corresponding provision in the Australian implementing legislation, is consciously limited. They are not intended to preclude all anti-suit injunctions between New Zealand and Australia, but only those based on considerations of appropriate forum.

20.33  A significant part of their background was, it seems, the Australian experience of anti-suit injunctions between the states and territories of Australia and within the Australian federal structure. The Australian courts had concluded that (within their respective scopes) neither the Service and Execution of Process Act 1992 (Cth) (‘SEPA’),⁵⁹ nor the Australian cross-vesting legislation⁶⁰ which enables the transfer of litigation to the more appropriate Australian forum,⁶¹ should preclude anti-suit injunctions within Australia. In particular, section 21 of SEPA provides, in terms similar to Article 8(5) of the Trans-Tasman Agreement, that anti-suit injunctions may not be granted to restrain proceedings served under SEPA on the ground that the place of issue is not the appropriate forum. But, in Great Southern Loans, the New South Wales court concluded that it did not preclude contractual injunctions, nor it seems injunctions based on vexation or oppression.⁶²

20.34  Further, considerations of comity between Australian courts have not prevented intra-Australia anti-suit injunctions from being a thriving and vigorous jurisdiction. While significant decisions in some Australian courts have taken the approach that on grounds of comity considerable caution should be exercised before an anti-suit injunction could be granted to restrain proceedings in another Australian court,⁶³ others have displayed (p. 452) lesser⁶⁴ or no such hesitation,⁶⁵ and it has even been suggested by Brereton J in the New South Wales court that ‘anti-suit injunctions are more readily granted within the confines of the federal system, than where proceedings have been issued in a foreign court and a local court’.⁶⁶ Further, in any event, such comity-induced self-restraint does not apply in contractual cases, where one Australian court is enforcing an exclusive forum clause prohibiting litigation in another Australian forum.⁶⁷ In the round, there are numerous cases of intra-Australian anti-suit injunctions.

20.35  During the preparatory work for the Trans-Tasman Agreement, in the initial Trans-Tasman Working Group Discussion Paper of 2005, there was express reference to the possibility of anti-suit injunctions on other grounds, such as vexation, or protection of the processes of the court, and ‘not the appropriate forum’ was treated as a more narrow concept (also described as an anti-suit injunction ‘on forum grounds’). The Discussion Paper asked consultees whether anti-suit injunctions on grounds other than not being the appropriate forum should also be excluded,⁶⁸ but the Working Group Report of 2006 did not make any such recommendation. Instead, the Report explained the proposed restriction solely on the basis that it was necessary to prevent circumvention of the power to stay on grounds of forum non conveniens.⁶⁹ This discussion seems to have had in mind the prior Australian experience. Against this background, it seems clear that the narrow wording of Article 8(5) of the Treaty is a consciously limited preclusion, which does not preclude anti-suit injunctions generally.⁷⁰

20.36  The linguistic result is somewhat inapposite in relation to New Zealand law, and indeed Australian law, under both of which non-contractual anti-suit injunctions are not based directly on the inappropriateness of the foreign forum.⁷¹ Indeed, the essence of the principles in Aérospatiale is that mere inappropriateness of the foreign forum is not a sufficient (p. 453) ground for an anti-suit injunction, and instead anti-suit injunctions are based on higher thresholds and wider considerations such as the interests of justice, vexation, or oppression. The Australian Great Southern Loans decision refers to this mismatch, and one possible reading of the New South Wales court’s reasoning is that section 21 of SEPA—and by analogy Article 8(5) of the Agreement and section 28 of the New Zealand Act—may simply miss the point, and do not affect the actual bases on which anti-suit injunctions are granted. But this would appear to be an overreading of the case, whose reasoning was focused on the situation before it, namely, an injunction based on a contractual clause.⁷²

20.37  It is suggested that this accidental linguistic dead end should not render section 28 meaningless. The better view is that where the underlying grounds of a non-contractual anti-suit injunction are in reality based on the alleged inappropriateness of the Australian forum, but formulated in different terms, such as vexation or oppression, then either an anti-suit injunction based on such concepts should be precluded by section 28; or the circumvention of section 28 should be a strong discretionary factor against an injunction. On the other hand, if the grounds of the injunction are independent of the posited inappropriateness of the Australian forum, section 28 should not directly preclude an anti-suit injunction. Thus, for example, the decision in Great Southern Loans suggests that injunctions based on the protection of the jurisdiction and judgments of the New Zealand courts would be outside the sphere of influence of section 28. The exact boundaries of the distinction will need to be worked out over time.

20.38  However, even where section 28 does not apply directly to preclude anti-suit injunctions, the question arises as whether, and if so how far, the context of the Trans-Tasman Agreement and considerations of comity between the Australian and New Zealand courts, will operate as a restraining factor in principle or as a matter of discretion to the grant of an anti-suit injunction, with an application for a stay to the other court being regarded as a preferred remedy. The Australian case law suggests that, at least where considerations of vexation and oppression overlap with questions of appropriate forum, then section 28 may well serve as a significant if flexible discouraging factor.⁷³ It is perhaps striking that there appear to have been no examples of Trans-Tasman anti-suit injunctions since the Trans-Tasman Agreement. But it seems that neither the New Zealand nor the Australian courts have yet had to rule on Article 8(5) of the Treaty and their respective implementing legislation.

20.39  Separately, it is clear that section 28 will not preclude anti-suit injunctions granted to enforce exclusive jurisdiction clauses or arbitration clauses. Such injunctions are not based on the inappropriateness of the Australian court as a forum, but instead on the contractual right not to be sued there.⁷⁴ In turn, the Australian case law suggests that where the injunction enforces a direct breach of an exclusive forum clause, the Trans-Tasman regime will not amount to a significant discretionary constraint.⁷⁵(p. 454)