Taking evidence abroad: Pathway to obtaining documentary evidence in Australia

By Nicholas Mavrakis, Lindsey Cregan, Dilip Ramaswamy and Martin Carter
30 Apr 2020

Obtaining evidence to use at trial can be challenging at the best of times, but the degree of difficulty increases when foreign jurisdictions are involved. Overseas litigants seeking documentary or oral evidence in Australia need to be alert to the procedural rules and laws specific to Australian jurisdictions.

Drawing on our experience acting for overseas-based clients seeking Australian evidence for use in foreign proceedings (Requesting Parties), most often from the United Kingdom and the United States, we outline how overseas litigants can obtain documentary evidence in New South Wales.

The regime

Although Australia is a party to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, it has made several reservations and declarations with respect to the Convention. A right to compel an Australian party to produce documents or give testimony is therefore governed by the statutory regime of the relevant Australian jurisdiction

In New South Wales, the Evidence on Commission Act 1995 (NSW) (EOC Act) enacts the Convention's provisions. Equivalent provisions exist in the other States and Territories. The EOC Act provides for applications to be made to the NSW Supreme Court to give effect to requests for evidence received from foreign courts.

The request

An application to obtain evidence in NSW for use in foreign proceedings is typically initiated by way of a letter of request issued by or on behalf of the relevant foreign court (Request).[1]Relevantly, proceedings of this kind may be commenced in the NSW Court by the person nominated for that purpose by the requesting court. At least for Requests from foreign courts with adversarial justice systems, the Requesting Party will generally be the nominated person (if no person is nominated, then the Attorney General must bring the application).

The Request should be addressed to the Commonwealth Attorney-General's Department (Australia's "Central Authority" for the purposes of the Convention), and include the name and address of the third party controlling or in possession or custody of the sought-after evidence (Receiving Party).

The scope and contents of the Request will seriously affect the prospects of the Request application being granted by the NSW Court, so it is critical to get this step right. The NSW Court will not approve a Request merely because it has been issued by the foreign court, as the Request must comply with the EOC Act. 

The Request need not satisfy a prescribed form, but in the context of seeking documentary evidence parties need to be aware of the requirements prescribed by section 33(6)(b) of the EOC Act, which reflects Australia's declaration under the Convention to exclude discovery (consistent with the UK's position). Under it, orders made to give effect to a Request must not require the Receiving Party to produce any documents other than:

  • particular documents specified in the order; and
  • which appear to be, or likely to be, in the Receiving Party's possession, custody or power.

    The key takeaway from judicial consideration of this requirement is that the Request must not be drafted as a means to conduct discovery, or in a way that would amount to requiring the Receiving Party to conduct a discovery-like exercise. The NSW Court will need to be satisfied that the Requesting Party is not conducting a fishing expedition. Specific documents must be identified and described wherever possible, as describing categories of documents will generally – but not always – fall short of the section 33(5)(b) requirement. This can be particularly relevant to US-based litigants, as the US has not made a declaration under the Convention to exclude Requests issued for pre-trial discovery purposes.

    More broadly, Requesting Parties must remember that the objective is to obtain evidence. The drafting of the Request should be directed to material which would tend to prove or disprove facts in issue in the foreign proceedings (this will need to be established by the evidence in the application), rather than seeking generally relevant documents which may be useful or interesting, as that leans into discovery territory.

    The application

    Once a foreign court has approved and issued the Request, the Requesting Party can commence an ex parte proceeding in the NSW Court by a Summons, generally in the Common Law Division's General List, for orders giving effect to the Request.The orders sought by the Summons should attach a proposed form of the Subpoena to Produce, seeking the documents described in the Request. A supporting affidavit should also be prepared to explain the proceedings in the Foreign Court and the relevance of the documents sought to the evidence that will be required in those proceedings.

    Once the Summons and supporting evidence has been filed, it will often be informally served on the Receiving Party.

    The Court will provide a return date for the Summons, at which it will then be quickly referred to the duty judge if the application is ready for substantive hearing. If the Requesting Party and the Receiving Party materially disagree over the orders sought or the scope of the proposed Subpoena to Produce, the NSW Court can fix a later date for hearing of the application, and the parties can obtain a timetable to file further evidence and submissions in advance, if required.

    When considering the Request and determining the application, the NSW Court may delete objectionable parts of a letter of request, but cannot substitute a different request. Practically, this means that if the certain aspects of the Request are too broad, it will not infect the Request as a whole. For example, a Request could call for all the documents that evidence a fact in issue in the foreign proceedings. This would likely be regarded this as akin to discovery and the NSW Court would likely give the Requesting Party the opportunity to propose an alternative order for production with more refined descriptions of documents (implicitly, those refined descriptions will still give effect to the letter of request). This reinforces why careful attention must be paid to drafting the Request at the outset, as discussed above. If the documents sought are capable of more specific description, that description should be included in the Request to maximise an application's prospects.

    The orders

    Once satisfied that the requirements of sections 32 and 33 of the EOC Act have been met, the NSW Court may order the production of documents by giving the Requesting Party leave to file and serve the proposed subpoena on the Receiving Party.

    If the Request involves documents which the Target Party asserts are confidentiality or commercially sensitive, then it would be sensible for the Requesting Party to seek to accommodate those concerns (if meritorious) by seeking to agree an appropriate confidentiality regime. The NSW Court has power to fashion orders to preserve confidentiality. The form of such orders will depend on the circumstances. One option could be for the Requesting Party to obtain appropriate orders in the foreign proceedings, and the Requesting Party could then give an undertaking to the NSW Court that it will comply with the orders in the foreign proceedings regarding the treatment of confidential documents. Ultimately, addressing confidentiality will depend on what is workable in the particular circumstances. The Requesting Party should bear in mind the impact any orders obtained from the NSW Court may have on its practical ability to conduct the foreign proceedings.

    The duration

    EOC applications usually have some element of time sensitivity. Based on our experience and recent decisions, we would generally expect such applications will be dealt with by the NSW Court relatively quickly, generally within weeks rather than months, even if they are opposed or challenged.  However, if the matter contains particular complexities, it may take somewhat longer to complete the process, although this time may largely be required for the parties to explore resolution of the issues between them.

    Tips and tricks

    Some key practical tips for parties to litigation outside of Australia, when preparing to seek documentary evidence located in NSW for use in your proceedings are:

  • draft the Request with a careful eye to the requirements in section 33(6)(b) of the EOC Act – include the most specific description of the documents at the outset (if the exact documents, or at least a clearly and objectively defined category of documents, are not known, this may signal potential issues with later obtaining orders from the NSW Court;
  • after the Request is issued by the overseas court in which you are litigating, provide the NSW Court with a proposed form of subpoena giving effect to the Request – this can be annexed to the Summons when it is filed;
  • the evidence supporting your EOC Act application should clearly explain the foreign proceedings and relevance of the documents sought to the evidence the Requesting Party needs or wishes to lead in those foreign proceedings;
  • if relevant, be prepared to address issues pertaining to the confidentiality of the documents sought before the Judge and how that may impact on the intended use of the documents in the foreign proceedings – preferably, engage with the Receiving Party in advance and seek to agree a regime for addressing confidentiality; and
  • bear in mind that Requesting Parties may be able to avoid some or all of the cost of an EOC Act Application by negotiating with the Receiving Party for the voluntary production of documents. These negotiations can precede, or even run parallel to, an application in the NSW Court.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.