Obtaining evidence in Australia for the use in foreign proceedings

Parties to a dispute in one country may require the production of evidence from persons that reside in a foreign country. For example:

• party A commences civil proceedings against party B in the United States, and
• party A requires evidence and documents from party C, a person who lives in Australia.

If party C will not willingly assist party A, how does party A go about obtaining the required evidence and documents? This article summarises one means by which party A may be able to obtain that evidence.

Provided that both countries are a signatory, the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matter (Convention) is one mechanism that can be used to obtain evidence from a person located in a foreign country.

The Convention

The Convention applies only to ‘civil or commercial matters’ before a judicial authority. Evidence cannot be obtained under the Convention for use in criminal proceedings.

Provided that the matter involves a civil or commercial dispute, then in our example above, party A may approach a court in the United States to issue a ‘Letter of Request’ under the Convention for a court in Australia (or another contracting state) to obtain evidence or perform a judicial act.

A letter of request can be issued to either:

• the central authority of a contracting state (in Australia this is the Private International Law Unit of the Attorney-General’s Department in Canberra) (Article 2)
• an additional authority if authorised by the contracting state (Article 24), or
• directly through judicial authorities provided that it is authorised by a contracting state (Article 27).

Each state in Australia has passed legislation which prescribes domestic rules regulating the taking of evidence. The letter of request must comply with the domestic rules for taking evidence.

The guidance note published by the Private International Law Section of the Attorney-General’s Department states that ‘it is not unusual for requests to take up to six months to execute’. Where documents are required urgently, there is a line of judicial authority in New South Wales indicating that, at least in that State, it is open for a foreign court to nominate a local practitioner to commence proceedings for orders giving effect to the request.

Taking evidence

Upon receipt of a letter of request a state court may make an order for:

• the examination of a witness, either orally or in writing, and/or
• the production of specific documents from a witness.

Much like a deposition, or the examination or a witness at trial, questions and documents may be put to a witness during the examination.

Importantly, a court in Australia will not make unrestrained orders for the production of documents by categories or with reference to specified issues in controversy between the parties. A Court will only make an order for specific identified documents to be produced.

Form of the request

A letter of request, generally should:

• state that it is made under the Convention
• state the name of the requesting judicial 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 any representatives)
• 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 areas of subject-matter about which they are to be examined
• identify any documents required to be produced (if any), and
• set out any special procedure which the party wishes the Australian authorities to follow.

When the application is made to the court for orders giving effect to the request, it should be accompanied by a supporting affidavit giving an explanation of the nature of the proceedings in the foreign court.

For the asking?

The New South Wales Court of Appeal has indicated that principles of comity require a court in Australia to view a letter of request for the purpose of civil proceedings benevolently. However, that does not mean that an order giving effect to a letter of request is ‘for the asking’. A court will need to be satisfied that the procedural requirements prescribed by domestic law have been followed and that the request is made for a legitimate investigation.

More information

As set out above, evidence can be obtained from witnesses in Australia for use in foreign proceedings provided that Convention and domestic rules are complied with. McCullough Robertson is well placed to advise on obtaining evidence from witnesses based in Australia for use in foreign proceedings.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.