Obtaining evidence from overseas for use in Australian proceedings

We recently published an article on obtaining evidence in Australia for use in foreign proceedings under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matter (convention) by way of letter of request. This article conversely looks at how a letter of request under the convention can be used to ask a foreign court to take evidence from a witness for use in Australian proceedings.

In all jurisdictions in Australia, there is provision for the court to make an order for the issue of a letter of request to the judicial authorities of another country (provided that country is also a signatory to the convention) to take evidence from a person outside Australia¹. The request is transmitted by the Australian Government to the designated ‘Central Authority’ of the foreign country, which then refers it to the relevant court.

Test – ‘in the interests of justice’

The relevant test set out in the legislation in all jurisdictions (except South Australia) for the court to make an order for the issue of a letter of request is if it appears in the interests of justice to do so.

In determining whether it is in the interests of justice to make such an order, the court must take into account whether:

• the person is willing or able to come to Australia to give evidence in the proceeding
• the person will be able to give evidence material to any issue to be tried in the proceeding, and
• having regard to the interests of the parties to the proceeding, justice will be better served by granting or refusing the order.

The court may include in the order a request as to any matter relating to the taking of that evidence including whether the evidence is given orally or by affidavit, whether there will be examination and cross-examination, and the attendance and roles of legal representatives.

Leading Case

In one of the leading cases on issuing letters of request, Hardie Rubber Co Pty Ltd v General Tire & Rubber Co (1973) 129 CLR 521, the plaintiff sought an order that a letter of request issue ‘directed to the proper tribunal, for the examination in the Empire of Japan of certain witnesses.’

Barwick CJ, as a Justice of the High Court, made the order and a letter of request was transmitted to the Supreme Court of Japan. The defendant then sought an order setting aside the previous order. Ultimately the Full Court of the High Court found that:

• it is not fatal if you have any inability to point specifically to one person as being the person with the requisite knowledge as the circumstances of each case must be considered, however, in many cases if an applicant cannot specify a particular person as one who is likely to be a material witness the court will decline to make an order
• it is sufficient to show that it is probable that the witnesses will give material evidence not that it is certain or almost certain they will
• as a general rule the applicant for an order for the issue of a letter of request should establish that they cannot procure the attendance of the witness, and
• the difficulties in taking the evidence in Japan (including the language barrier and testing the evidence, both as to the scientific matter and credit of witnesses) did not justify refusing to make the order.

Recent case – unsuccessful request by Commissioner of Taxation

More recently these provisions were considered in the case of Rawson Finances Pty Ltd v Commissioner of Taxation [2016] FCAFC 95. In this case, the Full Court of the Federal Court overturned a decision to issue a letter of request to the judicial authorities of Israel to take the evidence of the chairwoman of a bank.

The letter of request was sought by the Commissioner of Taxation in proceedings in which the Commissioner sought to set aside a decision of the Full Federal Court on the ground that it was obtained by fraud. In overturning the primary judge’s decision to issue the letter, the Full Federal Court found:

• there was no evidence the chairwoman had any involvement in the relevant arrangements or that she had familiarity with the bank’s procedures and practices
• her knowledge could not be inferred from her position where there was no evidence on the size of the bank or its particular circumstances, and
• ultimately it was not shown she would be able to give evidence material to an issue to be tried in the proceeding.

More information

As set out above, evidence can be obtained from foreign countries for use in Australian proceedings provided that it appears in the interests of justice to do so. McCullough Robertson is well placed to advise on obtaining evidence from overseas witnesses for use in Australian proceedings.

For more information on how we can assist you, please contact Guy Humble.

¹ _{Foreign Evidence Act 1994 (Cth) s 7(1); Federal Court Rules 2011 (Cth) r 29.11, Sch 1 Form 39; Court Procedures Rules 2006 (ACT) rr 6812-13, 6829; Evidence Act 1939 (NT) s 50; Supreme Court Rules (NT) 1987 r 41.01(b), Sch 1 Form 41C; Evidence on Commission Act 1995 (NSW) s 6; Evidence Act 1977 (QLD) s 22; Uniform Civil Procedure Rules 1999 (QLD) r 408; Evidence on Commission Act 1988 ss4; Evidence Act 1929 (SA) s 59E(1)(c); (TAS) Evidence on Commission Act 2001 (TAS) s 7; Supreme Court Rules 2000 (TAS) r 476; Evidence (Miscellaneous Provisions) Act (VIC) 1958 ss 9B; Supreme Court (General Civil Procedure) Rules 2015 (VIC) r 41.01(1)(b); Evidence Act 1906 (WA) s 110; Rules of the Supreme Court 1971 (WA) O 38A.}

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.