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Taking evidence across international borders

Impacts of the coronavirus (COVID-19) pandemic

Taking of evidence across international borders will likely be subject to delays or restrictions in all Australian states and territories. The length of the delay will depend on the state or territory in which you are seeking to have evidence taken.

Taking evidence in Australia for foreign court proceedings

Victoria

The taking of evidence has been suspended in Victoria. While requests can still be received, they will not be actioned until the COVID-19 pandemic passes.

Queensland

Requests for the taking of evidence will still be actioned. However, Queensland anticipates that the taking of evidence will be subject to delays. Courts are equipped to take evidence via telephone and, in some courtrooms, by audio-visual link.

New South Wales

Requests for the taking of evidence will still be actioned. However, New South Wales anticipates that the taking of evidence will be subject to delays as the court will generally only action urgent requests.

New South Wales is currently able to take evidence via audio-visual link, provided that:

  • it is in the interests of justice
  • it is not inconsistent with advice given by the Chief Health Officer relating to COVID-19
  • the necessary audio visual facilities are available or can be reasonably made available.

New South Wales is currently also able to take evidence in a virtual court. However, the witnesses will need to have access to either a telephone or a device with a camera that can access the virtual court.

New South Wales is currently also able to take evidence in the form of an affidavit in lieu of oral evidence.

Taking evidence overseas for Australian proceedings

For taking of evidence overseas for Australian proceedings, the length of the delay will depend on the country in which you are seeking to have evidence taken.

Email pil@ag.gov.au for more information.

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.

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

The destination country will determine the method of taking evidence and how a request for the taking of evidence should be transmitted.

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 seeking advice from a local lawyer in the relevant foreign country.

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.​​​