Orders can be obtained from Australian courts to compel
a person to give evidence or produce documents for use in certain
In litigation overseas, a situation may arise where a key
witness, or a person who is likely to be in possession of critical
documents, resides in Australia.
Obviously if the relevant person is willing to co-operate this
issue can be easily resolved, but what if they are not, or cannot
be readily contacted?
Provided that the proceedings are in a foreign jurisdiction that
has acceded to the Hague Convention on the Taking of Evidence
Abroad in Civil or Commercial Matters, which includes the USA and
England, a procedure can be followed to extract the required
evidence through Australian courts following a request from the
However, it is important to remember that any request to obtain
evidence, particularly regarding the production of documents, needs
to be carefully considered and drafted to ensure that it does not
go beyond the scope of what is permitted under Australian law.
When can evidence be obtained for foreign proceedings?
The legislation giving effect to the Convention in New South
Wales is the Evidence on Commission Act 1995 (NSW). There is
equivalent legislation in each Australian State and Territory.
Under section 32, a person can apply for an order for evidence
to be obtained if:
the application is made pursuant to a request issued by or on
behalf of a foreign court or tribunal (this request is commonly
referred to as "letters rogatory"); and
the evidence to be obtained is for the purposes of foreign
proceedings which have commenced in the requesting court or whose
commencement is contemplated.
Who can make the application to an Australian court?
The application can be made to the Supreme Court of New South
Wales by either:
a person nominated for that purpose by the requesting Court
(eg. an Australian lawyer); or
the Attorney-General (rule 52.1(1) of the Uniform Civil
Procedure Rules 2005).
An equivalent rule applies in other Australian States and
What orders can an Australian court make?
The Court can make a variety of orders, including:
the examination of witnesses, either orally or in writing;
the production of documents.
How broad is the power to obtain evidence?
The Act draws a clear distinction between the gathering of
evidence, which is permissible, and discovery, which is not.
Under section 33(6), the Court's order cannot require a
state what relevant documents they have in their possession,
custody or power; or
produce any documents other than the particular documents
specified in the order which are likely to be in their person's
possession, custody or power.
This has raised a question regarding the breadth of the
court's power to order the production of documents, in
particular whether this extends to the power to issue subpoenas
calling for the production of general classes of documents.
Consideration by the courts
The breadth of the power to order production of documents was
considered by Acting Justice Mathews in Application of Monier Inc
 NSWSC 986. She followed British precedent, holding that the
Act only permits the production of "individual documents
separately described" and not general classes of
Acting Justice Mathews set aside the subpoena, rejecting a
submission that it was sufficient for the subpoena to specify an
objective criterion by which documents could be identified.
However, provided that a subpoena is drafted carefully to comply
with the Act, it will be permitted and can be an effective means of
gathering cogent evidence. This is demonstrated by Fairfax
Financial Holdings Limited  NSWSC 223, in which Justice Hall
gave leave for subpoenas to be issued in order to give effect to a
letter of request from a United States court.
If you would like any further information about the procedure
for obtaining evidence in Australia for use in overseas litigation
please contact Doug Bishop, Scott Grahame or Luke Hamblen.
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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