Protests to jurisdiction by New Zealand defendants

(By Jack Wass, Stout Street Chambers)

The Employment Court has recently clarified a short but important point about the appropriate procedure to be followed by a defendant who is served within New Zealand but contends that there is another more appropriate jurisdiction overseas. A defendant in that position is not entitled to file a notice of appearance under protest to jurisdiction under rule 5.49, but must file an application to stay the proceedings under rule 15.1: Locke v Rishworth Aviation Asia Pacific Ltd [2025] NZEmpC 74.

The point is not merely technical and is often overlooked. It reflects the principle that the Court has jurisdiction as of right over defendants who are served within New Zealand, so they cannot say that the Court lacks jurisdiction, but must ask the Court to exercise its discretion not to exercise it. By contrast, the Court has no jurisdiction as of right over a foreign-served defendant, but only where the rules of court permit service of the proceedings out of New Zealand and subject to the Court’s discretion to assume jurisdiction under rule 6.29.

The distinction has practical implications: an appearance under protest is filed instead of a statement of defence, and the defendant is generally not required to engage in interlocutory steps until the question of jurisdiction is resolved; an application to stay has no such effect, so the defendant must  also file a statement of defence or run the risk of judgment by default, and is otherwise subject to the Court’s interlocutory processes unless and until a stay is granted.

The proper course for a defendant who has been served in New Zealand who does not wish to file a defence is to seek arrangements by consent with the plaintiff, or otherwise seek directions from the Court. That will often be appropriate where there is a combination of local and foreign defendants, so that the resolution of jurisdiction can proceed on the same timetable for all defendants.