A. Introduction
Australian law does not prohibit a witness from being deposed in
Australia by agreement or prohibit documents from being voluntarily
provided for use in foreign proceedings. Where the potential witness or
person holding the documents required is uncooperative, however, there
is little that a party to the proceedings can do to compel that person to give
evidence without the assistance of the Australian courts. While Australian
courts will act in accordance with international comity in providing
assistance to foreign courts, they will do so only so far as Australian law
permits. Australian legislation and case law is clear that Australian courts
will not give effect to requests for pretrial discovery from foreign
A number of mechanisms outside the discovery context exist to
address the difficulty of obtaining documents and evidence including
testimony located in Australia for use in foreign proceedings. This chapter
provides an overview of the mechanisms available under Australian law
in addition to practical considerations that parties to proceedings should
be aware of when attempting to obtain evidence or documents from a party
located in Australia.
B. Australian Legislative Framework
The task of obtaining documents located in Australia for foreign
proceedings is assisted by the 1970 Hague Convention on the Taking of
Evidence Abroad in Civil or Commercial Matters (the Hague Evidence
Convention).1 This convention provides a medium for the execution of
international letters of request (also known as letters rogatory) in civil and
commercial matters whereby a judicial authority in one signatory country
1. Convention on the Taking of Evidence Abroad in Civil and Commercial
Matters, 23 U.S.T. 2555, T.I.A.S. No. 7444, 847 U.N.T.S. 231, reprinted
in 8 I.L.M. 37 (1969) (entered into force in Australia on October 23, 1992)
[hereinafter Hague Evidence Convention].
Obtaining Discovery Abroad
requests evidence located in another. Australia’s state and federal
legislation gives effect to Australia’s obligations under this convention. 2
Except in South Australia, where an application is made to the
Supreme Court for an order for evidence to be obtained, the Supreme
Court may give effect to the application if it is satisfied that (1) the
application is made pursuant to a request issued by or on behalf of a foreign
court or tribunal; and (2) the evidence to be obtained is for the purposes of
foreign proceedings that have commenced in the requesting court or whose
commencement is contemplated.3
In South Australia, the Supreme Court of South Australia may
summon any person to appear before it for the purpose of giving evidence
or producing documents.4 The power of the Australian courts to make
orders for the purpose of foreign proceedings is subject to the power of the
Commonwealth Attorney-General to prohibit the production of Australian
documents for the purposes of foreign proceedings in certain situations.5
This power exists to prevent the production of documents that could
prejudice Australia’s national security or interest.6
C. Procedure
A party to U.S. litigation may make an application pursuant to the
2. Foreign Evidence Act 1994 (Cth) (Austl.); Evidence Act 2011 (ACT)
(Austl.); Evidence on Commission Act 1995 (NSW) (Austl.); Evidence Act
1958 (Vic) (Austl.); Evidence Act 1939 (NT) (Austl.); Evidence on
Commission Act 1988 (Qld) (Austl.); Evidence Act 1977 (Qld) (Austl.);
Evidence Act 1929 (SA) (Austl.); Evidence on Commission Act 2001 (Tas);
Supreme Court Rules 2000 (Tas) (Austl.); Rules of the Supreme Court (WA)
(Austl.); Evidence Act 1906 (WA) (Austl.).
3. Court Procedure Rules 2006 (ACT) reg 6843; Evidence on Commission
Act 1995 (NSW) s 32, 34; Evidence Act 1939 (NT) s 52-53; Evidence Act
1977 (Qld) s 36-37; Evidence on Commission Act 2001 (Tas) s 4; Supreme
Court Rules 2000 (Tas) pt 39; Evidence Act 1958 (Vic) s 9M; Rules of the
Supreme Court 1971 (WA) O 39; Evidence Act 1906 (WA) s 116-17.
4. Evidence Act 1929 (SA) s 59F.
5. Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth) s 7; Foreign
Evidence Act 1994 (Cth) s 42.
6. HCCH, Response of Australia to the Questionnaire of May 2008 relating
to the Hague Convention of 18 March 1970 on the Taking of Evidence
Abroad in Civil or Commercial Matters (2008), available at
3 [hereinafter Australian 2008 Questionnaire Response].

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