Judicature Act 1908

6.29 Court's discretion whether to assume jurisdiction

• (1) If service of process has been effected out of New Zealand without leave, and the court's jurisdiction is protested under rule 5.49, the court must dismiss the proceeding unless the party effecting service establishes—

  • (a) that there is—

    • (i) a good arguable case that the claim falls wholly within 1 or more of the paragraphs of rule 6.27; and

    • (ii) the court should assume jurisdiction by reason of the matters set out in rule 6.28(5)(b) to (d); or

  • (b) that, had the party applied for leave under rule 6.28,—

    • (i) leave would have been granted; and

    • (ii) it is in the interests of justice that the failure to apply for leave should be excused.

  (2) If service of process has been effected out of New Zealand under rule 6.28, and the court’s jurisdiction is protested under rule 5.49, and it is claimed that leave was wrongly granted under rule 6.28, the court must dismiss the proceeding unless the party effecting service establishes that in the light of the evidence now before the court leave was correctly granted.

  (3) When service of process has been validly effected within New Zealand, but New Zealand is not the appropriate forum for trial of the action, the defendant may apply for a stay, or for a dismissal of the proceeding under rule 15.1.

  Compare: 1908 No 89 Schedule 2 r 220