Collecting evidence overseas for Australian proceedings
Collecting evidence overseas by audio-visual link or videoconference
Australian law allows certain Australian courts to authorise people who are located overseas to give evidence in Australian proceedings. This includes by appearing in court remotely by video or audio link.
However, some countries do not allow people to appear remotely from within their territory for use in overseas court proceedings or may only allow it if certain conditions are met.
Other countries may require foreign parties or courts to first obtain permission from a specific local authority.
If you wish to have a person located overseas appear in court to give evidence by video or audio link, first contact the relevant authorities of the foreign country to confirm whether there are any restrictions or requirements imposed by that country.
If the foreign country is a party to the Hague Evidence Convention or another international agreement with Australia, that country may require that the Convention or agreement is used. These agreements generally enable Australian courts to collect evidence from people overseas by video or audio link, provided the foreign country does not object or the specific permission of the relevant overseas authorities has been requested and granted. For more information, see the specific section for the relevant framework below.
Collecting evidence overseas under the Hague Convention
The Hague Evidence Convention is an international agreement that allows courts in one country to ask courts in another country to help collect evidence for use in civil or commercial cases.
Under the Convention, there are several options available for Australian courts to collect evidence overseas for use in Australian proceedings. These include:
- a Letter of Request asking the foreign authorities to collect evidence under the foreign country’s local law (Article 1)
- a request for permission for evidence to be collected directly by an Australian diplomatic officer or consular agent (Articles 15 and 16)
- a request for permission for evidence to be collected directly by a person appointed by an Australian court (Article 17).
Not every country that is party to the Hague Evidence Convention permits all these options to be used to collect evidence in their territory. Some countries only allow Letters of Request to be sent to their local courts asking for evidence to be collected under local law.
Find out more about the methods for collecting evidence that different countries allow in their territory on the Evidence Section of the Hague Conference on Private International Law website.
Note: the Hague Evidence Convention does not automatically apply between all countries that are party to it. The Convention has formal process for countries to ‘accept’ each other before the Convention can be used by courts and parties to legal proceedings in their respective territories.
If you wish to collect evidence overseas for Australian court proceedings under the Convention, confirm that the relevant country has either accepted Australia’s accession to the Convention or that Australia has accepted the accession of that country.
Find out more about the acceptances of accession under the Hague Evidence Convention on the Evidence Section of the Hague Conference on Private International Law website.
Australian Letters of Request to foreign courts
Australian law allows certain Australian courts to send Letters of Request to the courts of foreign countries, giving effect to Chapter I of the Convention.
Australian applicants who wish to obtain evidence located overseas using a Letter of Request should first approach the relevant Australian court for details on applying to the court for a Letter of Request to be issued and on the process for sending the Letter of Request to the overseas authority. We are not involved in this process.
To prepare a Letter of Request, use the recommended Model Form under the Convention. Australian applicants should confirm any specific requirements imposed by the foreign country, including form and translation requirements.
If relevant, you should confirm whether the foreign country has made a declaration about Letters of Request seeking the pre-trial discovery of documents under Article 23 of the Convention.
For comparison, you can find more about how Australia treats incoming requests for pre-trial discovery of documents on our Collecting evidence in Australia for foreign proceedings page.
If an application to issue a Letter of Request is granted, the Australian court will then send the Letter of Request directly to the designated Central Authority in the foreign country.
Find out more, including the recommended Model Form, specific country requirements and practical details, on the Evidence Section of the Hague Conference on Private International Law website.
Collecting evidence directly in foreign countries
Australian law also allows certain Australian courts to appoint a person (by commission) to take evidence overseas on behalf of the court, giving effect to Articles 15, 16 and 17 of the Convention.
Not every country that is party to the Convention allows this method of collecting evidence to be used in their territory. Some countries only allow Letters of Request to be sent to their local courts, asking for evidence to be collected under local law.
Under Articles 15 and 16 of the Convention, diplomatic officers or consular agents can collect evidence directly in foreign countries in some circumstances.
The Australian Department of Foreign Affairs and Trade’s position is that Australian diplomatic officers or consular agents can only collect evidence overseas in exceptional circumstances.
Under Article 17 of the Convention, a court from one country may request permission from the authorities of another Convention country to appoint a person (a ‘commissioner’) to collect evidence directly in the foreign country.
Australian parties seeking to have evidence collected overseas directly in this way should also confirm whether they need permission from a local authority in the country where the witness is located and whether there are any other conditions imposed by the foreign country.
Although originally intended to facilitate the collection of evidence by Australian commissioners physically in the territory of the foreign country, Article 17 is now also often relied upon to facilitate the collection of evidence by an Australian commissioner from a person located overseas by video or audio link.
Find out more, including the availability of Articles 15, 16, and 17, as well as specific country requirements and practical details, on the Evidence Section of the Hague Conference on Private International Law website.
Collecting evidence in Thailand or Korea
Australia has specific treaties in place with the Kingdom of Thailand and the Republic of Korea. that deal with collecting evidence for legal proceedings. If you need to collect evidence located in Thailand or Korea for a civil or commercial case in Australia, these international agreements provide similar methods for collecting evidence to those under the Hague Evidence Convention, mentioned above. These include:
- a Letter of Request asking the foreign authorities to collect evidence under the foreign country’s local law
- a request for permission for evidence to be collected directly by an Australian diplomatic officer or consular agent
- a request for permission for evidence to be collected directly by a person appointed by an Australian court.
Consider whether the Australian court may be able to collect the evidence directly by video or audio link. The treaty frameworks expressly provide for this possibility, with the permission of the Thai or Korean authorities.
For details on how to apply for the relevant orders and liaise with the Thai or Korean authorities, consult the court in which your matter is being heard. If needed, the court will coordinate with us.
Collecting evidence in New Zealand
Australia and New Zealand have an international agreement to streamline the process for managing and resolving civil and criminal cases, where elements of the legal proceedings span both countries.
This is sometimes called the ‘Trans-Tasman Proceedings Regime’ and is implemented in Australia under the Trans-Tasman Proceedings Act 2010 (Cth). New Zealand has almost identical provisions included in its equivalent piece of legislation and in other related laws.
Remote appearances
Applicants can ask certain Australian courts and tribunals for permission to have people provide evidence, examine witnesses or make submissions relating to evidence from New Zealand remotely by audio-visual link or videoconference for Australian hearings.
Subpoenas
Applicants can also ask certain Australian courts and tribunals for permission to require a person in New Zealand to give evidence by issuing a subpoena.
Subpoenas cannot be issued in relation to certain family matters, such as application made under the Hague Convention on the Civil Aspects of International Child Abduction, or a proceeding in relation to the status or property of a person who is not fully able to manage their own affairs.
An applicant in Australia may ask certain Australian courts (approved by the Regulations to the Act) for permission to serve a subpoena in New Zealand. If the proceeding is before an Australian tribunal, the subpoena must not be served without the permission of an Australian court.
A person who has a subpoena to give evidence in Australia served on them in New Zealand can ask the Australian court to hear the evidence remotely, by telephone conference or audio-visual link.
Other types of evidence
The Trans-Tasman Proceedings regime also facilitates the use, in Australian legal proceedings, of several other types of evidence from New Zealand (and vice versa). This includes evidence of provisions of New Zealand laws and official or public New Zealand documents.
Collecting evidence overseas other than by international agreement
Sometimes, evidence that is needed for use Australian court proceedings may be located in a country that is not party to the Hague Evidence Convention (or where the Convention is not yet in force between Australia and that country) or that is not party to another international agreement with Australia.
In these situations, Australian law allows certain Australian courts to:
- send a letter of request asking the foreign authorities to collect evidence on behalf of the Australian court
- appoint a person to taken evidence overseas directly.
Parties who wish to apply to an Australian court for either of these mechanisms should confirm any requirements of the Australian court, as well as any restrictions or requirements imposed by the foreign country where the evidence is located. For example, some countries do not allow witnesses in their territory to appear in foreign court proceedings remotely by audio-visual link or may only allow it if certain conditions are met. Other countries may require the Australian parties or court to seek permission from a specific local authority.
Once an application is made to the Australian court, the court may liaise with us and the Department of Foreign Affairs and Trade to transmit the request to the foreign country.
Costs and timeframes
Requests for the taking of evidence overseas made under the treaty frameworks Australia is a party to generally do not allow for fees or reimbursement for the direct costs associated with collecting that evidence.
However, an overseas authority has the right to require reimbursement for any fees paid for the use of a special method or procedure. This might include the costs of:
- providing a translator or interpreter
- obtaining the services of an expert
- appointing a specific person to collect the evidence.
The time to collect evidence overseas can vary depending on the type of evidence being requested and the country in which the evidence is located.
For more on costs and timeframes, if the country is a party to the Hague Evidence Convention, refer to the relevant country page on the Evidence Section of the Hague Conference on Private International Law website.