24 May 2012

How to obtain evidence in Australia for use in foreign court proceedings

by Douglas Bishop, Scott Grahame, Luke Hamblen

Orders can be obtained from Australian courts to compel a person to give evidence or produce documents for use in certain foreign proceedings.

In litigation overseas, a situation may arise where a key witness, or a person who is likely to be in possession of critical documents, resides in Australia.

Obviously if the relevant person is willing to co-operate this issue can be easily resolved, but what if they are not, or cannot be readily contacted?

Provided that the proceedings are in a foreign jurisdiction that has acceded to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, which includes the USA and England, a procedure can be followed to extract the required evidence through Australian courts following a request from the foreign court.

However, it is important to remember that any request to obtain evidence, particularly regarding the production of documents, needs to be carefully considered and drafted to ensure that it does not go beyond the scope of what is permitted under Australian law.

When can evidence be obtained for foreign proceedings?

The legislation giving effect to the Convention in New South Wales is the Evidence on Commission Act 1995 (NSW). There is equivalent legislation in each Australian State and Territory.

Under section 32, a person can apply for an order for evidence to be obtained if:

  • the application is made pursuant to a request issued by or on behalf of a foreign court or tribunal (this request is commonly referred to as "letters rogatory"); and
  • the evidence to be obtained is for the purposes of foreign proceedings which have commenced in the requesting court or whose commencement is contemplated.

Who can make the application to an Australian court?

The application can be made to the Supreme Court of New South Wales by either:

  • a person nominated for that purpose by the requesting Court (eg. an Australian lawyer); or
  • the Attorney-General (rule 52.1(1) of the Uniform Civil Procedure Rules 2005).

An equivalent rule applies in other Australian States and Territories.

What orders can an Australian court make?

The Court can make a variety of orders, including:

  • the examination of witnesses, either orally or in writing; or
  • the production of documents.

How broad is the power to obtain evidence?

The Act draws a clear distinction between the gathering of evidence, which is permissible, and discovery, which is not.

Under section 33(6), the Court's order cannot require a person to:

  • state what relevant documents they have in their possession, custody or power; or
  • produce any documents other than the particular documents specified in the order which are likely to be in their person’s possession, custody or power.

This has raised a question regarding the breadth of the court's power to order the production of documents, in particular whether this extends to the power to issue subpoenas calling for the production of general classes of documents.

Consideration by the courts

The breadth of the power to order production of documents was considered by Acting Justice Mathews in Application of Monier Inc [2009] NSWSC 986. She followed British precedent, holding that the Act only permits the production of "individual documents separately described" and not general classes of documents.

Acting Justice Mathews set aside the subpoena, rejecting a submission that it was sufficient for the subpoena to specify an objective criterion by which documents could be identified.

However, provided that a subpoena is drafted carefully to comply with the Act, it will be permitted and can be an effective means of gathering cogent evidence. This is demonstrated by Fairfax Financial Holdings Limited [2011] NSWSC 223, in which Justice Hall gave leave for subpoenas to be issued in order to give effect to a letter of request from a United States court.

Further information

If you would like any further information about the procedure for obtaining evidence in Australia for use in overseas litigation please contact Doug Bishop, Scott Grahame or Luke Hamblen.


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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.