Taking evidence abroad: Pathway to obtaining witness evidence in Australia for use in foreign courts

The process of gathering evidence (both oral and documentary) in Australia for use in a foreign court proceeding is governed by rules and laws that are specific to the relevant Australian jurisdiction.

We outline below the key matters an overseas litigant should be aware of when seeking evidence from a witness in Australia. We've separately addressed more closely pathways for obtaining documentary evidence in Australia.

Selecting an available pathway

Typically, two pathways are available.

The most common, is the formal route in which the foreign court issues a Letter of Request that is given effect by orders of an Australian court. This mechanism relies on treaty obligations and domestic legislation. Under the Hague Evidence Convention, Australia operates a Central Authority model. The Commonwealth Attorney General Department's, as Central Authority, receives a compliant request and refers it to the appropriate state or territory where proceedings are commenced in the Supreme Court of that jurisdiction to obtain orders for the collection of evidence. In New South Wales, the Evidence on Commission Act 1995 (NSW) (EOC Act) implements the Convention.

Alternatively, a voluntary route is also available. Where a witness, located in Australia, is willing to cooperate and provide evidence without compulsion, parties can privately arrange for the evidence to be taken without the need to commence any Court process. However, it is crucial the evidence is collected in a manner which compiles with the legal requirements of the Australian jurisdiction.

Utilising the Court or formal pathway

The specific procedure for obtaining orders in Australia that give effect to the Letter of Request from a foreign court varies depending on the relevant state, but is broadly consistent with the following NSW approach.

Step 1: Identify the Governing regime and Central Authority

The first practical and threshold task is to confirm the foreign proceedings falls within the scope of either the Hague Evidence Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, or an equivalent bilateral basis.

Step 2: Prepare a compliant Letter of request

Once confirmed, a Letter of Request should be prepared that complies with the various requirements set out in the EOC Act, including being certified by the requesting judicial authority.

Where oral testimony is requested, the Letter of Request should set out the questions to be asked or delineate the subject matter for examination into clear topics.

Where documents are sought, the request should identify the documents specifically, rather than by category. This precision avoids contravention of domestic limits on compelled disclosure and mitigates any impression of a fishing expedition.

Where the foreign court expects a particular examination format or privilege procedure, the Letter of Request should specify those special processes, which will be subject to acceptance from the Australian court.

Step 3: Applying to the Supreme Court

The next step is to elect whether to commence proceedings to give effect to the Letter of Request, or send the Letter of Request to the Australian Government Attorney-General’s Department for the Attorney General to commence such proceedings.

While there are costs associated with engaging an Australian law firm (and counsel) to commence proceedings, appear at the hearing and ultimately oversee the process of taking evidence, it is typically faster to obtain the relevant orders that way without going via the Attorney General's Department.

At the first Court date, the Court will usually seek to understand whether the application is opposed, with a view to setting a timetable, including a date for the examination of the witness.