Collecting evidence in Australia for foreign proceedings

Collecting evidence in Australia by audio-visual link or videoconference

Sometimes, a person in Australia who is involved in civil or commercial court proceedings overseas may be asked to give evidence to a foreign court by video or audio link.

Australia does not object to people in its territory giving evidence voluntarily to a foreign court by video or audio link. If the person is doing so entirely voluntarily (that is, they will not face any penalty or legal consequences if they choose not to appear), no permission or involvement from Australian authorities is needed. In these cases, the foreign court can make videoconferencing or audio-visual link arrangements directly with the person concerned.

If the person is required to give evidence under the authority of a foreign court (for example, if they could be penalised or found in contempt of court for not appearing), the foreign court must make a formal request. This can be done either under an applicable treaty framework through us or directly to an Australian court. For more information, see the specific section for the relevant framework below.

Collecting evidence in Australia under the Hague Evidence Convention

The Hague Evidence Convention is an international agreement that makes it easier for courts in one country to ask courts in another country to help collect evidence for use in civil or commercial cases.

We are one of the officially designated authorities for Australia, acting as what is called the ‘Central Authority’ for the Hague Evidence Convention.

This means we receive and process requests from foreign courts to take evidence in Australia.

If a request meets the requirements of the Convention and Australian law, we will typically forward it to the relevant Australian authority. After their own review, they will then make an application seeking appropriate orders from the appropriate Court.

Under the Convention, there are different options available for a foreign court to collect evidence in Australia for use in foreign proceedings. These include:

a Letter of Request asking the Australian authorities to collect evidence under Australian law (Article 1)
a request for permission for evidence to be collected directly by a diplomatic officer or consular agent of a foreign country (Articles 15 and 16)
a request for permission for evidence to be collected directly by a person appointed by a foreign court (Article 17).

These types of requests can all be sent to us by post or email using the following contact details:

Private International and International Copyright Law Section
Attorney-General’s Department
3-5 National Circuit
BARTON ACT 2600
AUSTRALIA
pil@ag.gov.au

For Letters of Request under Article 1 only, if you know the Australian state or territory where the evidence is located, you can also send requests directly to the registry of the Supreme Court of that State or Territory. It can sometimes be faster to send a request under the Hague Evidence Convention directly to the State or Territory in which the relevant person or company is located.

Note: the Hague Evidence Convention does not automatically apply between all countries that are party to it. The Convention has a 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 in Australia for foreign 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.

Preparing a request under the Hague Evidence Convention

Australia strongly encourages the use of the recommended model form for all Letters of Request under the Hague Evidence Convention. To minimise delays, the requesting foreign court should provide the following information on the Letter of Request:

contact name
phone number
email address.

We strongly encourage applicants to provide an email address for correspondence.

If your request does not meet the requirements of the Convention or Australian law or further clarifications are required, Australian authorities will try to contact the requesting authority by email to fix the issue.

If no email address is provided, you may not receive important correspondence, and the request might not be able to be executed.

The request must also include:

the names of the parties involved in the foreign court case
a clear description of the case
an explanation of what evidence is required and why the evidence is needed
the name and address of the specific person or organisation from whom/which the evidence is being sought.

Australian authorities cannot generally assist with finding the address of a person in civil or commercial cases.

If you need to find someone in Australia, you may use publicly available information.

Some law firms and private companies also offer investigative services to help locate a person for legal purposes. This process is sometimes known as ‘skip-tracing’.

We cannot help with obtaining these services or provide information about services providers or the costs involved.

To minimise delays where further clarification about a witness examination is required, we strongly recommended you include a list of the questions that will be asked under oath. If the request is for documents, it must describe the specific documents being requested with sufficient certainty to allow a court to identify those documents.

Find out more, including the recommended Model Form, specific requirements and practical details, on the Evidence Section of the Hague Conference on Private International Law website.

Translations

Australia has excluded the application of Article 4(2) under the Convention. This means that all evidence requests must be either prepared in English or accompanied by an English translation.

Timeframe to execute requests

The time to collect evidence under the Hague Evidence Convention in Australia can vary depending on the type of evidence being requested and the state or territory where the request is to be carried out. In most cases, it can take between 6 and 12 months to complete and return a Letter of Request.

To help minimise delays, include a contact email address when sending a request for the collection of evidence Australia. This helps us process your request more efficiently, because if we need further information from you, we can obtain this more quickly than regular mail.

If any point during the process the taking of evidence is no longer needed, email us or inform the relevant Australian state or territory authority as soon as possible.

If the matter is urgent, it may sometimes be quicker to engage a local lawyer in Australia to apply directly to the relevant court for the evidence.

Requesting an update on the progress of collecting evidence

For an update on the progress of a request for evidence that was sent to us, email us.

We strongly recommend sending update requests by email. We may not be able to respond to status updates requested by post if no email address is provided.

Before contacting us, check whether you have received any correspondence from the state or territory where the evidence is being collected. Delays are often caused by unanswered requests for further information or clarification.

Costs

The Evidence Convention generally does not allow reimbursement for taxes or the costs of collecting evidence. This means that Australia does not generally charge fees for the collection of evidence in Australia.

There are some limited exceptions to this.

If the foreign court requests the use of a special method or procedure that falls outside of the normal procedures of how an Australian court would collect evidence (and provided the method or procedure requested is not incompatible with Australian law), an Australian court may follow the method or procedure but require reimbursement for any costs associated with it.

This might include the costs of:

providing a translator or interpreter
obtaining the services of an expert to assist with the procedure
appointing a specific person to collect the evidence.

Situations where the Evidence Convention may not be appropriate

Before making a Letter of Request under the Evidence Convention, consider the type of evidence you need and whether another method might be more suitable for collecting it in Australia.

In some cases, depending on the circumstances and the type of evidence, it can be quicker and more straightforward to use other processes under Australian law to collect evidence for use in a foreign court.

Australia does not consider the use of the Hague Evidence Convention to be mandatory. Parties to foreign proceedings are free to use other, direct procedures to gather evidence under Australian law if they wish to.

There are also some situations where Australian courts have limits on their ability to carry out Letters of Request. These are outlined below.

Requests to conduct investigations or locate evidence

Unlike in some legal systems, Australian courts do not act as investigators. They cannot help parties or foreign courts to look into a person’s circumstances or find where evidence may be located.

This includes requests to find out a person’s:

address
employer
assets
holdings
health
marital status
social or economic situation.

In these cases, the foreign court or applicant must clearly identify the person or organisation that has the evidence and specify exactly what is being requested.

This could include:

a list of questions for a witness
documents to be produced
another specific judicial act.

For example, instead of asking an Australian court to investigate a person’s income or assets, a Letter of Request could ask that the person be examined as a witness and that specific questions about their income or assets be asked.

Requests for the pre-trial discovery of documents

Australian courts will generally not assist foreign courts to acquire pre-trial ‘discovery’ for use in foreign proceedings.

Discovery is a legal process, sometimes also referred to as disclosure, under which a party must identify and produce any relevant documents or other evidence in their possession or custody to the other party or to the court. It is most frequently used in countries with common law legal systems, like Australia.

Australia has made a declaration under Article 23 of the Evidence Convention that it will not execute Letters of Request for the purpose of obtaining pre-trial discovery.

This means that Australian authorities may refuse to execute Letters of Request that direct a person to state what documents are in their possession or produce any documents other than those specifically requested.

Requests for publicly available information

In Australia, some types of information can be obtained directly without going through a court. This includes information that is publicly available or can be requested from a government authority. Examples include:

information about births, deaths and marriages
information about a company, such as proof of registration or its place of business
real property records
information about the address of a person
patent information.

In these cases, a foreign court or party should collect the evidence directly from the relevant registry rather than asking an Australian court to assist.

For more information about collecting different types of evidence, see the ‘Types of evidence frequently requested in Australia’ section below.

Requests for evidence accessible by the applicant

The Evidence Convention is generally used only when the person seeking evidence cannot obtain it themselves, or when the person or organisation holding the evidence will not provide it voluntarily.

If a person could request the information themselves, such as certain information held by a government authority or other organisation, an Australian court will usually not assist in collecting it. Examples of this type of information include:

information about a person’s own income or assets
information about a person’s own tax affairs
information about a person’s own welfare payments or other government payments
information about a person’s own bank details or financial information
information about a person’s own educational history
information about a person’s own medical history or health records
court judgments or records relating to a person
other information held by public authorities or other entities that a person is entitled to request themselves.

In some cases, and subject to other laws and procedures, an Australian court may still assist to collect this type of evidence if a person cannot obtain it themselves.

You should consider whether it is more appropriate to request that a court require the person to provide evidence about their own information or situation, rather than requesting it from a government or public authority. For example, if you are seeking information about government payments a person receives for the purpose of establishing their income, rather than requesting this information from a government agency, it may be preferable to require the person to appear in court and disclose these payments as part of information about their income.

For more information about collecting specific kinds of evidence in Australia, see the ‘Types of evidence frequently requested in Australia’ section below.

Requests for evidence from willing witnesses (including by audio-visual link or videoconference)

If a person is willing to give evidence in foreign proceedings, such as by voluntarily giving testimony, providing documents, or answering written questions, Australian courts usually do not need to be involved.

This includes evidence given by video or audio link. Australia does not object to people in its territory giving evidence voluntarily to a foreign court by video or audio link. If the person is doing so entirely voluntarily (that is, they will not face any penalty or legal consequences if they choose not to appear) then no permission or involvement from Australian authorities is needed. In these cases, the foreign court can make videoconferencing or audio-visual link arrangements directly with the person concerned.

Requests for evidence to be collected by parties’ representatives

When Australian authorities execute Letters of Request, the usual process is for a state or territory government solicitor to apply to the relevant Australian court to have the evidence collected on behalf of the foreign court.

If a party to foreign proceedings wants their lawyer or representative to take part in collecting the evidence (for example by examining or cross-examining a witness), it can sometimes be difficult to facilitate these requests. This may delay the collection of evidence.

If a party to a foreign proceeding wishes to be directly involved in collecting evidence, they may consider applying directly to the relevant Australian court under the local court rules and evidence legislation laws. In some cases, this approach may be faster than sending a Letter of Request under the Evidence Convention.

Requests for expert reports

Australian courts may not be able to help appoint unspecified experts to carry out examinations or prepare reports. This includes requests for:

reports on a person’s medical condition
reports on a person’s living arrangements
reports on a financial or social situation
reports on relationships between parents and children
other types of expert reports.

If an expert report is needed, an Australian court may be able to order one on a case-by-case basis. In such a case, the court will usually require the Letter of Request to include specific details, such as the expert who will prepare the report and the procedure to be followed.

Applicants are encouraged to identify local Australian experts who could provide a report before sending a Letter of Request.

Collecting evidence in Australia for proceedings 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 Australia for a civil or commercial case in Thailand or Korea, 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 Australian authorities to collect evidence under Australian law
a request for permission for evidence to be collected directly by a foreign diplomatic officer or consular agent
a request for permission for evidence to be collected directly by a person appointed by a foreign court.

Consider whether the foreign court may be able to collect the evidence directly by video or audio link. The treaty frameworks expressly provide for this possibility, but the permission of the Australian authorities is required if the person giving the evidence is not doing so voluntarily. For more information, see the ‘Collecting evidence in Australia by audio-visual link or videoconference’ section above.

For details on how to apply for the relevant orders and liaise with the Australian authorities, consult the Thai or Korean court in which your matter is being heard. If needed, the court will coordinate with us.

Collecting evidence in Australia for proceedings 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 many almost identical provisions included in its equivalent piece of legislation and in related laws.

Remote appearances

Applicants can ask New Zealand courts and tribunals for permission to have people provide evidence, examine witnesses or make submissions relating to evidence from Australia remotely by audio-visual link or videoconference for New Zealand hearings.

Subpoenas

Applicants can also ask New Zealand courts and tribunals for permission to require a person in Australia to give evidence by issuing a subpoena.

Subpoenas cannot be issued in relation to certain family matters, such as applications 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 New Zealand may ask the New Zealand court or tribunal for permission to serve a subpoena in Australia.

A person who has a subpoena to give evidence in New Zealand served on them in Australia can ask the New Zealand 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 New Zealand legal proceedings, of several other types of evidence from Australia (and vice versa). This includes evidence of provisions of Australian laws and official or public Australian documents.

Collecting evidence in Australia other than by international agreement

Australian law enables certain Australian courts to collect evidence for use in foreign court proceedings. This includes court proceedings in countries that are not party to the Hague Evidence Convention (or where the Hague Convention is not yet in force between Australia and that country) or where there is no other applicable international agreement between Australia and that country.

In these situations, authorities in the foreign country can forward these requests by diplomatic or official channels to the Australian Department of Foreign Affairs and Trade.

Foreign missions in Australia may transmit request for the collection of evidence in Australia to the Australian Department of Foreign Affairs and Trade, under the cover of a Third-Party Note. Requests should be sent to:

Litigation Support Unit
Department of Foreign Affairs and Trade
RG Casey Building
John McEwen Crescent
BARTON ACT 2600
AUSTRALIA
litigationsupportunit@dfat.gov.au

Requests sent to Australia through diplomatic or official channels must be translated into English.

The timeframes and costs associated with collecting evidence in Australia can vary depending on the type of evidence being requested and the state or territory where the request is to be carried out.

In most cases, it can take between 6 and 12 months to collect evidence in Australia. If at any point during the process the collection of evidence is no longer needed, email the Department of Foreign Affairs and Trade or inform the relevant Australian state or territory authority as soon as possible.

If the matter is urgent, it may sometimes be quicker to engage a local lawyer in Australia to apply directly to the relevant court for the evidence.

Collecting evidence in Australia by direct application to the court

Each state and territory in Australia has legislation that allows parties to apply to a relevant court to have evidence collected for use in legal proceedings in another country. This includes evidence needed for foreign court cases.

In some situations, applying directly to the relevant state or territory court can be quicker and more convenient than sending a Letter of Request under the Evidence Convention.

You may wish to contact a local lawyer in the area where the evidence is located to help with making this request.

As collecting evidence is primarily a matter for the parties in the Australian legal system, Australia does not consider it mandatory to use the Hague Evidence Convention to collect evidence in Australia for use in civil or commercial proceedings taking place in another Convention country.

Types of evidence frequently requested in Australia

Addresses

Australian law requires the parties involved in a legal matter to find the addresses of the people they need to contact themselves. Australian authorities cannot generally assist with finding someone’s address for civil or commercial cases.

If you need to find someone in Australia, you can use publicly available information. Some law firms and private companies also offer investigative services to help locate a person for legal purposes. This process is sometimes known as ‘skip-tracing’.

We cannot help you obtain these services or provide information about service providers or the costs involved.

Taxation information

Under Australian law, Australian tax authorities generally cannot disclose information related to a person’s tax affairs. This includes tax returns for the purpose of establishing a person’s income.

If information about a person’s income is needed, applicants may wish to consider formulating their Letter of Request to request that person to provide evidence about their income directly. For more information, see the ‘Requests for evidence accessible by the applicant’ section.

Bank records

Australian courts will consider Letters of Request which seek to obtain information from a bank or financial institution about a third-party’s financial or banking information on a case-by-case basis.

If information about a person’s financial affairs is needed, you could also consider formulating your Letter of Request to request that person to provide evidence about their financial affairs directly. For more information, see the ‘Requests for evidence accessible by the applicant’ section.

Welfare or government payments information

Australian courts will consider Letters of Request that seek to obtain information from public authorities about welfare or government payments a person has received, on a case-by-case basis.

In some circumstances, Australian law may prohibit public authorities from disclosing information about welfare or other government payments a person has received.

If you need information about a person’s income, you can also consider formulating your Letter of Request to request a court to require that person to provide evidence about their income directly. For more information, see the ‘Requests for evidence accessible by the applicant’ section.

Medical records

Australian law sets strict limits on when a person, medical provider, or record holder can be required to disclose information about a person’s medical history or status without their consent.

If information about a person’s medical status, history or diagnosis is relevant to an overseas proceeding, first consider asking the person to disclose that information voluntarily.

Otherwise, you should review the applicable Australian law to determine whether a person or record holder can be required to disclose this information.

Immigration and movement records

Individuals can apply directly to the Australian Department of Home Affairs to obtain copies of their own immigration information, including their own international movement history.

If information about another person’s immigration or movement records is needed, in some circumstances you can also apply to the Department of Home Affairs, if that person gives their consent.

If the person to whom the information relates does not give their consent, it may be possible, in limited circumstances, to obtain some information from the Department of Home Affairs. Access in these circumstances depends on Australian law and the specific facts of the request.

Births, deaths and marriages

Each state and territory in Australia maintains its own registry of births, deaths and marriages, and has procedures in place to allow parties with a legitimate interest to request access to certain documents.

To request such documents, contact the relevant state or territory registry in which the birth, death or marriage is believed to have taken place.

Court documents and judgments

Australian courts will typically have procedures that permit parties with a legitimate interest in certain court documents or judgments to request access to those documents. Contact the relevant Australian court directly to inquire about obtaining those documents.