Taking evidence in Australia for Foreign Court Proceedings

There are several ways for a foreign court to obtain evidence in Australia for use in proceedings.

1. Applicable International Agreements

Australia is a party to the following international agreements:

• Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters 1970
• bilateral treaties with Korea and Thailand, available at on the AustLii website
• bilateral treaties between the United Kingdom and other European countries that have been extended to Australia by the UK. These bilateral treaties were concluded in the 1920s and 1930s and many of the countries extended the treaty to their external territories at the time. Even though those territories are now independent states, in many instances the treaty continues to operate. The relevant treaties are available on the Austlii website.

1a. Process to follow

All requests to take evidence under international agreements must use a Letter of Request.

Download a model letter of Request from the Hague Conference on Private International Law website. This can be used as a template for requests made under international agreements.

The Letter of Request must comply with the requirements of the relevant agreement. Generally, it should:

• state the relevant agreement under which the request is made
• state the name of the requesting judicial authority (as the applicant)
• include an email address, contact name and phone number for the Requesting Authority to facilitate communication due to current COVID-19 delays
• be addressed to the ‘Competent Authority of Australia' (as the receiving authority)
• state the nature of the proceeding for which the evidence is required
• set out the names and addresses of the parties to the proceeding and their representatives (if any)
• set out the names and addresses of the witnesses or persons to be examined
• include a list of questions to be put to the witness or a statement of the subject-matter being examined
• include a description of the documents or other property to be inspected
• set out any special procedure that the party wishes the Australian authorities to follow
• include an undertaking for payment of fees and expenses incurred (for Korean bilateral requests only).

The request may also ask that the parties be notified of the time and place that the evidence will be taken.

To satisfy Australian state and territory court procedure rules, the Letter of Request must be:

• certified by the requesting judicial authority (usually by bearing the seal, stamp or signature of the authority)
• accompanied by 2 certified copies.

1b. Where to send a request

Hague Evidence Convention and the Korean and Thai bilateral treaties

Send requests made under the Hague Evidence Convention, or the Korean or Thai bilateral treaties to the Australian Government Attorney-General's Department as the designated Central Authority.

We will then refer the request to the relevant Australian state or territory authority for action. Once the relevant authority receives the request, proceedings will commence in the relevant state or territory Supreme Court for an order to take the evidence.

An overseas party may retain their own lawyer in Australia to commence proceedings to take the evidence.

Send requests for evidence taking to:

Private International and Commercial Law Section
Australian Government
Attorney-General's Department
3-5 National Circuit
BARTON ACT 2600
Australia

UK bilateral treaties

The designated authority of the requesting country should send requests to take evidence that are made under UK bilateral treaties the to the Australian Government Department of Foreign Affairs and Trade. Their address is:

Paralegal Unit, Corporate Law Branch
Department of Foreign Affairs and Trade
R G Casey Building
John McEwen Crescent
BARTON ACT 0221
Australia

The Department of Foreign Affairs and Trade will then refer the request to the relevant Australian state or territory authority for action.

2. What to do where no international agreement applies

The diplomatic channel is used to transmit requests where there is no agreement or treaty in place between Australia and the foreign country. Requests for assistance in such cases will be considered and executed on the basis of comity.

2a. Process to follow

A Letter of Request is required whenever the diplomatic channel is used. The Letter of Request should be prepared in the same manner and include the same general information as a request made under an international agreement.

2b. Where to send a request

Where no treaty arrangements apply between Australia and the foreign country, transmit Letters of Request via the diplomatic channels to Australia's Department of Foreign Affairs and Trade at the above address.

3. Fees and Charges

Fees may be charged for executing a request to take evidence in Australia.

This depends on the provisions of the relevant agreement, and which Australian state or territory the evidence is being taken in.

Some agreements allow for fees to be charged in certain circumstances (for example, if an interpreter is used).

Contact the relevant Australian state or territory authority directly for more information on fees to execute evidence requests.

Requests made via the diplomatic channel may also attract a fee. Contact the Australian Government Department of Foreign Affairs and Trade to find out more.

4. Important information

Translations

Requests from countries where English is not an official language must be accompanied by a certified English translation of the Letter of Request and any other documents.

The translations provided must comply with the requirements of the relevant agreement. Generally, translations should include a certification by the translator attesting to the authenticity of the translation.

The translator's certification and any certificates of authenticity should also be translated into English.

Delays

The time to process a request to take evidence will vary in each case. However, it is not unusual for requests to take 6 months to execute.

Requests that do not comply with procedural requirements, or do not include properly certified translations, may be sent back to the requesting authority for amendment.

Pre-trial discovery

Australia has made a declaration under Article 23 of the Hague Evidence Convention about pre‑trial discovery of documents.

This means that Australian authorities will not accept Letters of Request that require a person to:

• state what documents relevant to the proceedings are or have been in their possession
• produce any documents, other than particular documents specified in the Letter of Request, which the requested Court believes are, or are likely to be, in their possession.

A party preparing a Letter of Request should seek further information from the Australian Central Authority about this declaration if the evidence sought could be characterised as pre-trial discovery.

Socio-economic status

A range of privacy laws in Australia provide a legislative bar that forbids the release of certain private information without the consent and knowledge of the person whose information is being sought.

This includes information relating to income and the socio-economic status of the party in Australia.

It may be possible for a foreign court to obtain some information relating to income by requesting the assistance of the Australian authorities in issuing a subpoena for the party in Australia to appear before an Australian court and have a judicial officer seek the information.

To do this, a Letter of Request must be provided by the foreign court.

Taking evidence on commission (without compulsion)

Where a witness is willing to give evidence and is located in Australia, parties can make private arrangements for the evidence to be taken. Parties should ensure that evidence is taken in a manner which is consistent with the rules of both the Australian jurisdiction and the foreign court that requires the evidence.

If evidence is to be taken from a witness in Australia by a person other than a judge (including by foreign judicial personnel, lawyers or diplomatic officials), or on oath, the Australian state or territory government minister's permission may be required under the relevant state or territory legislation.

A party who wishes to obtain evidence through this procedure without the assistance of Australian authorities should ensure the law of the relevant jurisdiction is not breached.

The Hague Evidence Convention also provides for the taking of evidence without compulsion. Articles 15 and 16 provide for evidence to be taken by a diplomatic officer or consular agent. However, the permission of the Secretary of the Australian Government Attorney-General's Department is required.

The Secretary may impose conditions on permission granted under Article 16. A Letter of Request seeking permission for evidence to be taken in this manner should be sent to the Australian Government Attorney-General's Department.

Taking evidence by video or audio link

A foreign court can take evidence from a witness in Australia using video or audio link.

Australia does not consider this to be an incursion on its territorial sovereignty.

Generally, Australian jurisdictions will not prevent a person from voluntarily appearing in a foreign court via video link without the involvement of Australian authorities. However, the party seeking to obtain the evidence must comply with relevant laws.

If in doubt, seek information from the relevant state or territory authority.

Where evidence is to be taken by a person other than a judge the permission of the state or territory government Minister may be required under the relevant state or territory legislation.

5. Taking of Evidence for New Zealand courts

Legislation in Australia and New Zealand provides for subpoenas issued by certain New Zealand courts to have effect in Australia, and for evidence to be taken by New Zealand courts from persons in Australia by video link or telephone.

Refer to the Trans-Tasman Proceedings Act 2010 and corresponding New Zealand legislation for more information.

6. Further information

For more information on private international law matters, contact:

Private International and Commercial Law Section
Australian Government
Attorney-General's Department
3-5 National Circuit
BARTON ACT 2600
Australia
Telephone: +61 02 6141 6111(switchboard)
Email: pil@ag.gov.au

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