NEW ZEALAND Law and Practice Contributed by: Fionnghuala Cuncannon and Kate Muirhead, Cuncannon
5.6 Rules Disallowing Disclosure of a Document
6.2 Arrangements for Obtaining Urgent Injunctive Relief Interim injunctive relief can be sought on an urgent basis. The applicant should advise the court of the urgent status of the application when it is filed (and ideally in advance of filing), and explain the basis for urgency in the application itself. If grounds for urgency are made out, the court may determine the application without notice. In exceptional circumstances, a judg- ment may be delivered within 24 hours. 6.3 Availability of Injunctive Relief on an Ex Parte Basis Injunctive relief can be obtained without notice to the respondent. The applicant must establish a need to bring the application without notice, including urgency or a likelihood that the respondent will dissipate funds upon receiving notice of the application. The applicant’s lawyer must certify that the applica- tion grounds are made out, and that all reasonable enquiries and steps have been made or taken to ensure that the application contains all relevant infor- mation, including any opposition, defence or facts that another party might rely on (Lawyers practising in New Zealand owe a professional obligation not to certify the truth of any matter unless they believe on rea - sonable grounds that the matter certified is true, after having taken appropriate steps to ensure the accuracy of the certification.) Injunctions brought without notice are determined on an interim basis, following which the respondent has an opportunity to be heard. 6.4 Liability for Damages for the Applicant A party seeking an injunction is typically required to give a signed undertaking to pay damages to com- pensate the other party for any damage sustained through the injunction. There is no general require- ment to pay security for these damages, although a court may grant an injunction on the condition that the applicant pays security. 6.5 Respondent’s Worldwide Assets and Injunctive Relief Injunctive relief may be granted against the worldwide assets of the respondent, with or without notice to the
Documents that meet the test for discovery (or, under the New Rules, for disclosure) and are not privileged must be disclosed. Discovery can be made subject to confidentiality restrictions in certain cases. Under the New Rules, the default position is that parties are not required to disclose confidential documents. In addition, documents may be withheld to protect the identity of a journalist’s source, confidential infor- mation or information that might reveal a confidential source of information, or a communication or informa- tion relating to matters of state. 6. Injunctive Relief 6.1 Circumstances of Injunctive Relief A party can apply for an interim or permanent injunc- tion requiring the counterparty to take certain action, or preventing the counterparty from taking certain action. An interim injunction may be granted if: • there is a serious question to be tried in the sub- stantive claim; and • the balance of convenience and overall justice favours the granting of the injunction. At this stage of the test, the court may consider whether damages are an adequate remedy for the impugned act or omission. Parties may apply for freezing orders, which prevent the respondent from dealing with certain property. Freezing orders may be granted where the applicant has a good arguable case on the substantive claim, and can demonstrate a risk that the respondent will dispose of assets so as to defeat the claim (for exam- ple, by moving them to another jurisdiction). Anti-suit injunctions may be available where: • New Zealand is the natural forum for the dispute; • there is a strong reason to refuse relief, despite the applicant’s legitimate interest; and • the ends of justice require an injunction to be granted.
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