At stake: whether NZ courts hold jurisdiction over Australian Consumer Law claims
A cross-border IT dispute between Dassault Systèmes Australia and Fujitsu New Zealand put a critical question before New Zealand's appellate court: can NZ courts hear claims under Australian Consumer Law?
New Zealand's Court of Appeal on 18 February 2026 rejected expert evidence in Dassault Systèmes Australia Pty Ltd v Fujitsu New Zealand Limited, a dispute testing whether NZ courts could apply Australian Consumer Law.
The case arose from Dassault Systèmes Australia Pty Ltd supplying IT services to assist Fujitsu New Zealand Ltd to deliver workforce management software to the New Zealand Department of Corrections. The Department sued Fujitsu, which joined Dassault in the proceedings.
Following a four-week trial, High Court judge Cooke J delivered a reserved judgment in which Fujitsu succeeded in part against Dassault. Dassault appealed and Fujitsu cross-appealed.
The first ground of Fujitsu's cross-appeal concerned its claims against Dassault under the Australian Consumer Law (ACL), which forms part of the Competition and Consumer Act 2010 (Cth) (CCA). The High Court dismissed those claims. The judge held that s 138 of the CCA, which confers jurisdiction upon the Federal Court of Australia to hear any civil matter arising under the ACL, meant that nobody could bring proceedings under the ACL or the CCA in any other court, including the High Court of New Zealand.
Fujitsu challenged that ruling, arguing that s 138 only limits domestic jurisdiction in Australia and does not preclude the New Zealand High Court's jurisdiction.
The Court of Appeal considered Fujitsu's application to introduce an expert affidavit by Victorian barrister Dr Warwick Rothnie on whether, under Australian law, s 138 prohibits foreign courts from hearing ACL claims. The court declined the application on three grounds.
First, the court held the evidence was not as fresh as Fujitsu contended. The s 138 issue arose in Dassault's closing. Fujitsu had already, after the trial began, briefed Dr Rothnie and obtained expert evidence from him in short order. The court found Fujitsu could have produced the proposed evidence at trial with reasonable diligence, though it excluded from this finding the portion of the affidavit addressing case law decided since the judgment under appeal.
Second, the court found the evidence to be of limited cogency. The parties could address the meaning and effect of s 138 by reference to the statute itself and to Australian judgments construing it.
Third, and most significantly, the court found Fujitsu's application to be much delayed. Fujitsu filed it on 5 February 2026, just five working days before primary submissions fell due. The court had scheduled the substantive hearing for 11 and 12 March 2026, which are dates set almost a year ago. The court found that Fujitsu's delay caused prejudice to Dassault, which faced the distraction of the evidence application while needing to address the s 138 issue in its submissions in response to the cross-appeal.
The court ordered Fujitsu to pay Dassault costs for a standard application on a band B basis together with usual disbursements.
