JUDICIAL ASSISTANCE - NEW ZEALAND

Applicable Treaties or Other Agreements:

The Vienna Convention on Consular Relations, 21 UST 77; 596 UNTS 261; TIAS 6820 (Article 5);

U.S.-U.K Convention to Regulate Commerce (Article IV) of July 3, 181S, 12 Bevans 49 (very general)

U.S.-New Zealand Extradition Treaty of 1/12/70, 22 UST 1.

Note: New Zealand is not a party to the multilateral Hague Conventions on Service of Documents, Obtaining Evidence or Legalization of Documents, or the Council of Europe Prisoner Transfer Treaty.

The taking of depositions of willing witnesses in New Zealand is governed by:

Article 5(f) and 5( j) of the Vienna Convention on Consular Relations (to which New Zealand and the U.S. are parties.)

22 U.S.C. 4215; 22 U.S.C. 4221; 18 U.S.C. App. Fed. R. Crm. P., Rules 15 and 17; 28 U.S.C. Fed. R. Civ P., Rules 28-31; 22 C.F.R. 92-55-92-66 (general authority of consular officers)

New Zealand Code of Civil Procedure and the Evidence Act of 1908

U.K. Foreign Tribunals Evidence Act of 1856 and Act of Imperial Parliament Extradition Act of 1870

Voluntary Depositions: Depositions of willing witnesses may be conducted in New Zealand. Such depositions may be taken by U.S. consular officers at the U.S. Consulate General in Auckland or by private attorneys from the U.S. or New Zealand and either on notice or pursuant to a commission. Telephone depositions are permitted. Depositions may be taken on U.S. consular premises or at other locations such as offices or hotels. If the services of a U.S. consular officer are required to administer an oath to the witness, interpreter and stenographer, arrangements for the services of a consular officer must be made in advance with the U.S. Consulate General in Auckland directly. Contact the U.S. Consulate General in Auckland to schedule a deposition of a willing witness directly on U.S. consular premises, to arrange for participation of a consular officer to administer oaths off-site or to obtain information about stenographers or interpreters or video-operators. The Office of American Citizens Services information flyer entitled Obtaining Evidence Abroad includes step-by-step instructions for what information you should fax to the U.S. Consulate General in Auckland to arrange for voluntary depositions.

Participation by Local, State or U.S. Government Officials: Local, State or U.S. Government officials must have formal U.S. Embassy/Consulate General and Host Country clearance before traveling to a foreign country to conduct informal interviews related to international judicial assistance or depositions. If participation of such officials is envisioned, they should contact the East Asia and Pacific Division of the Office of American Citizens Services which will transmit a request for host country clearance to the U.S. Embassy in Wellington for transmitted to the New Zealand Ministry of Foreign Affairs. Police or other law enforcement clearance does not constitute formal host country clearance.

Compulsion of Evidence (Testimony, Documents, Other): As noted above, New Zealand is not a party to the Hague Evidence Convention. If compulsion of evidence is required, evidence may be requested in the form of a letter rogatory. Information about preparation and transmittal of letters rogatory is available in the Office of American Citizens Services flyer Preparation of Letters Rogatory. In addition, it is our understanding that it may be possible to request compulsion of evidence by contacting a New Zealand attorney directly who may be in a position to file a motion with the appropriate New Zealand court to order compulsion of the witness to appear in the New Zealand solicitor's chambers. A similar method is utilized in the U.K. and by other members of the British Commonwealth such as the Foreign Tribunals Evidence Act of 1856. A New Zealand solicitor/attorney would be in the best position to advise regarding the availability of such an expedited method of compulsion of evidence in New Zealand and procedures to be followed.

Authority

22 CFR 92.85 prohibits U.S. consular officers from serving process abroad.

28 U.S.C. 1783 authorizes U.S. consular officers to serve subpoenas on U.S. citizens and permanent resident aliens abroad. See also 22 C.F.R. 92.86.

28 U.S.C. 1696; 28 U.S.C. 1781 (transmittal of letters rogatory)

New Zealand Code of Civil Procedure, Rule 5lj-n.

Service of process can be effected in New Zealand in a variety of ways. As noted above, New Zealand is not a party to the Hague Service Convention.

Methods of Service

1. International registered/certified mail, return receipt requested;

2. Personal service by an agent can be accomplished by retaining a New Zealand attorney who will serve or arrange for service of the documents and execute an affidavit of service at the U.S. Consulate General in Auckland. Effective June 1, 2002, there is a $30.00 fee for the first notarial service requested, and a $20 fee for each additional seal provided at the same time in connection with the same transaction. See Federal Register, May 16, 2002, Volume 67, Number 95, Rules and Regulations, Page 34831-34838; 22 CFR 22.1, Item No. 41(a) and 41(b). Attorneys fees vary. Lists of New Zealand attorneys are available from the Office of American Citizens Services, see Questions below.

3. Letters Rogatory: Letters rogatory are not required for service in New Zealand and are not recommended given the fact that they generally take 6 months to a year to execute. If letters rogatory are desired, see our flyer on Preparation of Letters Rogatory.

Lists of Foreign Attorneys: Lists of foreign attorneys willing to represent U.S. citizens have been prepared by the American Consulate General in Auckland. Copies may be obtained from the Department of State, Office of American Citizens Services. See also, the New Zealand Law Society, Law Society Building, 26 Waring Taylor Street, Wellington 1, New Zealand, P.O. Box 5041, Wellington, Tel: 727-837. In addition, there are 14 district law societies under the Law Practitioners Act.

U.S. Embassy/Consulate General Location: Effective May 15, 1996, the consular section of the U.S. Embassy in Wellington closed. All consular matters, including the taking of depositions and consular notarial services are handled by the U.S. Consulate in Auckland. Letters rogatory and extradition requests, which require communication through the formal diplomatic channel with the New Zealand Foreign Ministry continue to be handled by the U.S. Embassy in Wellington. The U.S. Embassy is located at 29 Fitzherbert Terrace, Thorndon, Wellington, Tel: 011-64-4-472-2068; fax: 011-64-2-471-2380. The U.S. Consulate General in Auckland is located on the 4th floor, Yorkshire General Building, Corner of Shortland and O'Connell Streets, Tel: 011-64-9-303-2724; fax: 011-64-9-366-0870.

Additional Information: The Office of American Citizens Services has available general information flyers on international judicial assistance. These topics include:

• Obtaining Evidence Abroad
• Service of Process Abroad
• Preparation of Letters Rogatory
• General Authentication Flyer

Also Available:

• Retaining a Foreign Attorney
• Consular Information Sheet - New Zealand (Travel Info)

Using the Internet: The Bureau of Consular Affairs home page URL is http://travel.state.gov. Look for Judicial Assistance.

Questions: If you have additional questions, contact the East Asia and Pacific Division of the Office of American Citizens Services at (202) 647-6769 or (202) 647-5225.

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