Australia

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CHAPTER V

AUSTRALIA

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

jurisdictions.

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

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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

www.hcch.net/index_en.php?act=publications.details&pid=4457&dtid=3

3 [hereinafter Australian 2008 Questionnaire Response].