{"id":3920,"date":"2025-12-22T20:05:06","date_gmt":"2025-12-22T07:05:06","guid":{"rendered":"https:\/\/blogs.otago.ac.nz\/conflicts\/?p=3920"},"modified":"2025-12-22T20:05:06","modified_gmt":"2025-12-22T07:05:06","slug":"overseas-non-parties-and-contempt","status":"publish","type":"post","link":"https:\/\/blogs.otago.ac.nz\/conflicts\/overseas-non-parties-and-contempt\/","title":{"rendered":"Overseas (non-)parties and contempt"},"content":{"rendered":"

(By Maria Hook)<\/strong><\/p>\n

\u00a0Please click here for a pdf<\/a> version of this post.\u00a0<\/strong><\/p>\n

I\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Introduction<\/strong><\/h4>\n

[1] Can a party who is located overseas be in contempt of the New Zealand court? The purpose of this piece is to sketch out an answer to this question. I use the term \u201coverseas\u201d to refer to parties who do not have a presence in New Zealand (in other words, they are exclusively located overseas).<\/p>\n

[2] In the recent case of Sunnya Pty Ltd v Mega Aqua Ltd\u00a0<\/em>[2025] NZHC 3482, discussed here<\/a> by Jack Wass, the application to enforce an Australian subpoena arose in the context of New South Wales contempt proceedings against a New Zealand-resident, Mr Wu. The contempt proceedings had been served out of the jurisdiction (In the matter of Sunnya Pty Ltd<\/em> [2024] NSWSC 415<\/a>), in circumstances where Mr Wu was not a party to the substantive proceeding but had allegedly provided false information for use in the proceeding. The contempt proceedings could not be served out of Australia under the Trans-Tasman Proceedings Act 2010 (Cth), which excluded \u201ccriminal proceedings\u201d. However, they could be served outside of Australia as an originating process under r 11.5 of the UCPR.<\/p>\n

[3] These or similar circumstances could well arise in New Zealand, which may require the court to consider questions of personal jurisdiction, subject-matter jurisdiction and enforcement jurisdiction.<\/p>\n

[4] Much of the focus of my analysis is on non-parties. I use the term \u201cnon-party\u201d to refer to persons against whom a plaintiff could not assert a cause of action before the New Zealand court.<\/p>\n

 <\/p>\n

II\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Enforcement jurisdiction<\/strong><\/h4>\n

[5] Enforcement of New Zealand court orders is strictly territorial, in the sense that imprisonment is only available for persons physically located in New Zealand, and sequestration is only available in relation to property located in New Zealand. This means that, even if the court has personal jurisdiction and subject-matter jurisdiction to hold a person in contempt, the order may not be practically enforceable in New Zealand where the person is an overseas party without property in New Zealand. The order also probably would not be enforceable by the courts where the person is located (see Part IVA, [26]); and insofar as criminal contempt is concerned, it is unlikely to constitute an extraditable offence (see s 4, Extradition Act, 1999).<\/p>\n

 <\/p>\n

III\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Personal jurisdiction<\/strong><\/h4>\n

[6] The court can only make an order for contempt in a civil proceeding if the contemnor is subject to its personal jurisdiction (see [24]) for criminal proceedings). While the court has jurisdiction as of right over persons who are present in New Zealand, its personal jurisdiction over overseas persons depends on the existence of a rule permitting service outside of the jurisdiction. An application for contempt that is brought against an overseas person must be served outside of New Zealand in accordance with such a rule. However, service out is not necessary where the court already enjoys personal jurisdiction over the person and the order for contempt would be incidental to that jurisdiction: Vik v Deutsche Bank AG <\/em>[2018] EWCA Civ 2011, [2019] 1 WLR 1737 at [55], in relation to the director of company who had breached an order to attend court that had been served on him while he was present in the jurisdiction).<\/p>\n

[7] In In the matter of Sunnya Pty Ltd<\/em> [2024] NSWSC 415, the Court granted leave for service out of Australia under r 11.5 of the UCPR, which applies where the claim has a \u201creal and substantial connection with Australia\u201d. Although the proceedings involved criminal contempt, the Court was satisfied that the contempt motion amounted to an \u201coriginating process\u201d for the purposes of r 11.5, as defined in s 3 of the Civil Procedure Act 2005 (NSW). However, the contempt proceedings could not be served outside of Australia under the Trans-Tasman Proceedings Act 2010 (Cth) because, in substance, they fell within the definition of criminal proceedings as excluded by the Act, that is, \u201ca procedure other than a prosecution that, under an Australian law, may be used to determine liability for an offence\u201d (at [6]). A different conclusion may be available for proceedings involving civil, rather than criminal, contempt (but see Siemer v Solicitor-General<\/em> [2009] NZCA 62, [2009] 2 NZLR 556). If so, New Zealand proceedings for civil contempt could be served on an Australian (non-)party under the Trans-Tasman Proceedings Act (at least if, under Australian law too, the contempt would be civil in nature).<\/p>\n

[8] More generally, rr 6.27 and 6.28 of the High Court Rules apply to the service outside of New Zealand of \u201coriginating documents\u201d. An \u201coriginating document\u201d is a document \u201cthat initiates a civil proceeding\u201d. Applications under s 16(2) of the Contempt of Court Act 2019, which provides for the enforcement of courts orders, must be made by way of originating application under Part 19 (r 19.2), as does \u201can originating proceeding for contempt of court\u201d more generally (r 19.3).<\/p>\n

[9] Section 16 would not be available where a non-party interfered with an order made against another party (by, for example, assisting with the defendant\u2019s breach, or subverting an order by destroying its subject-matter, or obstructing another\u2019s compliance with the order) (but cf r 25.40). This means that such applications for contempt would have to proceed under r 19.3. It is not clear whether s 16(2) was intended to apply to orders contra mundum. The fact that the Act is intended to abolish the common law contempts of disobeying courts orders (s 3(3)(a)(v)) suggests that that it does apply.<\/p>\n

[10] The application must satisfy one of the gateways of rr 6.27 or 6.28, which is not an onerous requirement in this context. If the proceeding relates to contempt under s 16 of the Contempt of Court Act, it might fall within r 6.27(2)(j), which provides for service of claims arising \u201cunder an enactment\u201d if \u201cany [relevant] act or omission\u201d took place in New Zealand (para (i)) or \u201cany [relevant] loss or damage\u201d was sustained in New Zealand (para (ii)). Alternatively, and regardless of whether the application is made under the Act or not (ie under r 19.2 or r 19.3), r 6.27(2)(h) might be available where the non-party is \u201ca necessary or proper party to proceedings properly brought against another defendant [who is subject to the court\u2019s personal jurisdiction]\u201d \u2013 for example, where a director has participated in the breach of an order made against the defendant company (Integral Petroleum SA v Petrogat FZE <\/em>[2018] EWHC 2686, [2019] 1 WLR 574 at [89], [95]; although this decision may be controversial to the extent that the defendant company was not a party to the contempt application: D Foxton \u201cThe Jurisdictional Gateways \u2014 Some (Very) Modest Proposals\u201d [2022] LMCLQ 71 at 90).<\/p>\n

[11] If r 6.27 does not apply, the court may still grant leave for service outside of New Zealand under r 6.28 if the claim has \u201ca real and substantial connection with New Zealand\u201d (the equivalent of r 11.5(5) of the UCPR). In Sunnya<\/em>, the NSW Court considered that the claim \u201cplainly has a real and substantial connection with Australia, where it alleges a contempt committed which would have had a real effect upon the conduct of Australian proceedings\u201d (at [11]). By way of comparison, both Singapore and the United Kingdom have now introduced standalone gateways for contempt proceedings (CPR PD 6B, para 3.1(24) (UK); Rules of Court 2021 (Sing), PD 63(3)(t)).<\/p>\n

[12] The court\u2019s assumption of jurisdiction under rr 6.27 and 6.28 is discretionary and subject to New Zealand being the appropriate forum for the claim. However, in the context of contempt proceedings, there would not usually be another available forum to determine the action. A foreign court would not have jurisdiction to determine a proceeding for contempt of the New Zealand court. In Sunnya<\/em>, the NSW Court considered that \u201cAustralia is an appropriate forum for the trial, where the contempt is a contempt of this Court, and this Court is plainly the appropriate forum to determine whether that contempt was committed\u201d (at [11]).<\/p>\n

[13] In these circumstances, the case for service outside of the jurisdiction may appear to be clear-cut. Thus, the NSW Court concluded that it \u201cshould assume jurisdiction, since only this Court could properly determine whether such a contempt was committed against it\u201d (at [11]). However, there are at least two reasons why New Zealand courts ought to tread cautiously.<\/p>\n

[14] First, contempt applications that are formally classified as a civil proceeding for the purposes of the High Court Rules may, in substance, be concerned with criminal or quasi-criminal conduct that is sanctioned as such (see Young v Zhang <\/em>[2017] NZCA 622, [2018] NZAR 207 at [42]). New Zealand law does not usually allow for service of criminal process to be effected overseas (M-I New Zealand Ltd v Auckland District Court<\/em> [2007] NZAR 222 at [24]), unless it is based on an international agreement to that effect (see s 51, Mutual Assistance in Criminal Matters Act 1992). In a case involving service by the Solicitor-General (s 16(2)(c)), service may be considered contrary to principles of public international law (Marcus Teo Wei Ren \u201cService out for scandalising contempt: an international constitutional jurisdiction?\u201d [2019] Singapore Journal of Legal Studies 477 at 482).<\/p>\n

[15] Second, depending on the facts of the case and the nature of the alleged contempt, the court may lack subject-matter jurisdiction to make the order.<\/p>\n

 <\/p>\n

IV\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Subject-matter jurisdiction<\/strong><\/h4>\n

[16] I use the term subject-matter jurisdiction to describe \u2013 in addition to any personal jurisdiction that is needed \u2013 the court\u2019s adjudicative authority over a matter that is not entirely domestic (see CLNZ <\/em>at ch 2E). Where the court\u2019s adjudicative authority goes hand in hand with the application of the lex fori, because the issue is one that is exclusively governed by the lex fori, the terms subject-matter jurisdiction and prescriptive jurisdiction overlap.<\/p>\n

[17] Basically, the question is whether, assuming there is a basis for service out of New Zealand, the court has jurisdiction to hold the overseas (non-)party in contempt. This question is surprisingly complex, for three reasons.<\/p>\n

[18] The first is the quasi-criminal, or public, nature of contempt proceedings, which involve the court asserting a higher degree of sovereign authority than an ordinary civil dispute. The goal of contempt is not <\/em>to determine the private rights and obligations of the parties (or non-parties); it is to protect the proper administration of justice (see David Rolph Contempt<\/em> (Federation Press, 2023) at 7). This matters because there may be principles of international law that constrain the assertion of this quasi-criminal, public jurisdiction (see generally Campbell McLachlan \u201cOn the interface between public and private international law\u201d (2025) 446 Recueil des Cours 9 at ch X, who makes the point (at 204) that \u201cin determining the extent of jurisdiction, regard must also always be had to the legitimate claims to jurisdiction of the other State\u201d). The question is whether there is a \u201csufficient connection\u201d (Masri v Consolidated Contractors International Company SAL<\/em> [2008] EWCA Civ 303, [2009] QB 450 at [31]), taking account of competing claims to jurisdiction over the relevant person or conduct. In the criminal context, New Zealand law has traditionally relied on the territoriality principle to guide its prescriptive jurisdiction (Crimes Act 1961, s 7), but the contours of this principle depend on the nature of the issue and are best evaluated by reference to relevant state practice (see Alberto Costi (ed) Public International Law: A New Zealand Perspective<\/em> (LexisNexis, 2020) at 386, noting that \u201c[a] challenging issue to the traditional application of the territoriality principle relates to what has been termed \u2018de-territorialized\u2019 crime, such as in cyberspace\u201d).<\/p>\n

[19] The second, and related, reason arises in the context of applications against non-parties, due to the complex nature of non-party jurisdiction (for a US perspective, see Aaron D Simowitz and Linda J Silberman \u201cNonparty Jurisdiction\u201d (2022) 55 Vanderbilt Journal of Transnational Law 433; Hannah Buxbaum \u201cCivil Contempt Orders Against Non-Parties in Parallel Proceedings\u201d (20 November 2025) TLB <https:\/\/tlblog.org\/civil-contempt-orders-against-non-parties-in-parallel-proceedings\/>.<\/p>\n

[20] Where allegations of contempt are made against a party, the court\u2019s subject-matter jurisdiction over the contempt can be justified by reference to the subject-matter jurisdiction over the dispute itself, at least where the contempt relates to the breach of an order (\u201c[i]f you join the game you must play according to the local rules\u201d: MacKinnon v Donaldson Lufkin & Jenrette Securities Corp<\/em> [1986] Ch 482 at 494; Mansour v Mansour<\/em>[1989] 1 FLR 418). In Attorney-General for England and Wales v Tomlinson<\/em> [1999] 3 NZLR 722, the Court concluded that the defendant could be in contempt for breaching a non-publication injunction in relation to actions taken after he had left New Zealand, even if his actions did not result in publication within New Zealand.<\/p>\n

[21] However, where the contempt is that of a non-party, the court\u2019s authority is not ancillary to an existing subject-matter jurisdiction grounded in civil rights and obligations vis-\u00e0-vis the non-party. Again, the nature of non-party jurisdiction tends to be more public or regulatory, which may change the way that public international law views the assertion of this kind of jurisdiction (cf the original hesitation regarding service on overseas non-parties, ie \u201c[a]bsent a claim based on a legal right which the defendant can be called upon to answer: Mercedes-Benz AG v Leiduck\u00a0<\/em>[1996] AC 284 (PC) at 301-302). For example, Campbell McLachlan, in a 1998 article, once described this kind of subject-matter jurisdiction as \u201ca pure enforcement jurisdiction (as distinguished from the original jurisdiction which [the court] may exercise in relation to the parties to the dispute)\u201d, in the context of an analysis of third-party disclosure orders (\u201cThe Jurisdictional Limits of Disclosure Orders in Transnational Fraud Litigation\u201d (1998) 47 ICLQ 3 at 26).<\/p>\n

[22] The third reason why this question is so complex is that there are three distinct issues of subject-matter jurisdiction that may arise, which I will analyse in turn below:<\/p>\n