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Taking evidence across international borders

Taking evidence in Australia for foreign court proceedings

The primary method for taking evidence in Australia for a foreign proceeding is through the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Evidence Convention).

Australia has made several reservations and declarations with respect to the Convention. These reservations and declarations can be accessed via the Hague Evidence Convention Status table.

For more information on the operation of the Hague Evidence Convention and other international agreements is included in the following fact sheet:

Taking evidence overseas for Australian proceedings

Generally, the taking of evidence must comply with the procedural and evidentiary rules of both the relevant Australian court and the overseas jurisdiction.

In complex cases we recommend that advice from a local lawyer in the relevant foreign country be obtained.

Information about overseas jurisdictions

Whether a particular method of taking evidence will be available and how a request for the taking of evidence should be transmitted will depend on the country in which you wish to take evidence in to.

There are various methods by which information about your destination country can be found. The following links may assist in identifying which methods of transmission and service are available in your destination country:

The taking of evidence overseas for an Australian court proceeding is governed by the procedural rules and laws of the relevant Australian court. There may also be additional rules and laws in the relevant foreign country that will apply. In complex cases we recommend that advice from a local lawyer in the relevant foreign country be obtained.

Subpoenas

Whether an Australian subpoena can be served overseas varies between Australia’s jurisdictions. There is currently no uniform principle between federal, state and territory jurisdictions on what constitutes an Australian court document that can be served overseas.

In circumstances where a subpoena cannot be served overseas, it may be possible to obtain the required evidence using an evidence request.