Australia: Obtaining evidence from overseas for use in Australian proceedings

We recently published an article on obtaining evidence in Australia for use in foreign proceedings under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matter (convention) by way of letter of request. This article conversely looks at how a letter of request under the convention can be used to ask a foreign court to take evidence from a witness for use in Australian proceedings.

In all jurisdictions in Australia, there is provision for the court to make an order for the issue of a letter of request to the judicial authorities of another country (provided that country is also a signatory to the convention) to take evidence from a person outside Australia1.1 The request is transmitted by the Australian Government to the designated 'Central Authority' of the foreign country, which then refers it to the relevant court.

Test – 'in the interests of justice'

The relevant test set out in the legislation in all jurisdictions (except South Australia) for the court to make an order for the issue of a letter of request is if it appears in the interests of justice to do so.

In determining whether it is in the interests of justice to make such an order, the court must take into account whether:

  • the person is willing or able to come to Australia to give evidence in the proceeding
  • the person will be able to give evidence material to any issue to be tried in the proceeding, and
  • having regard to the interests of the parties to the proceeding, justice will be better served by granting or refusing the order.

The court may include in the order a request as to any matter relating to the taking of that evidence including whether the evidence is given orally or by affidavit, whether there will be examination and cross-examination, and the attendance and roles of legal representatives.

Leading Case

In one of the leading cases on issuing letters of request, Hardie Rubber Co Pty Ltd v General Tire & Rubber Co (1973) 129 CLR 521, the plaintiff sought an order that a letter of request issue 'directed to the proper tribunal, for the examination in the Empire of Japan of certain witnesses.'

Barwick CJ, as a Justice of the High Court, made the order and a letter of request was transmitted to the Supreme Court of Japan. The defendant then sought an order setting aside the previous order. Ultimately the Full Court of the High Court found that:

  • it is not fatal if you have any inability to point specifically to one person as being the person with the requisite knowledge as the circumstances of each case must be considered, however, in many cases if an applicant cannot specify a particular person as one who is likely to be a material witness the court will decline to make an order
  • it is sufficient to show that it is probable that the witnesses will give material evidence not that it is certain or almost certain they will
  • as a general rule the applicant for an order for the issue of a letter of request should establish that they cannot procure the attendance of the witness, and
  • the difficulties in taking the evidence in Japan (including the language barrier and testing the evidence, both as to the scientific matter and credit of witnesses) did not justify refusing to make the order.

Recent case – unsuccessful request by Commissioner of Taxation

More recently these provisions were considered in the case of Rawson Finances Pty Ltd v Commissioner of Taxation [2016] FCAFC 95. In this case, the Full Court of the Federal Court overturned a decision to issue a letter of request to the judicial authorities of Israel to take the evidence of the chairwoman of a bank.

The letter of request was sought by the Commissioner of Taxation in proceedings in which the Commissioner sought to set aside a decision of the Full Federal Court on the ground that it was obtained by fraud. In overturning the primary judge's decision to issue the letter, the Full Federal Court found:

  • there was no evidence the chairwoman had any involvement in the relevant arrangements or that she had familiarity with the bank's procedures and practices
  • her knowledge could not be inferred from her position where there was no evidence on the size of the bank or its particular circumstances, and
  • ultimately it was not shown she would be able to give evidence material to an issue to be tried in the proceeding.


1 Foreign Evidence Act 1994 (Cth) s 7(1); Federal Court Rules 2011 (Cth) r 29.11, Sch 1 Form 39; Court Procedures Rules 2006 (ACT) rr 6812-13, 6829; Evidence Act 1939 (NT) s 50; Supreme Court Rules (NT) 1987 r 41.01(b), Sch 1 Form 41C; Evidence on Commission Act 1995 (NSW) s 6; Evidence Act 1977 (QLD) s 22; Uniform Civil Procedure Rules 1999 (QLD) r 408; Evidence on Commission Act 1988 ss4; Evidence Act 1929 (SA) s 59E(1)(c); (TAS) Evidence on Commission Act 2001 (TAS) s 7; Supreme Court Rules 2000 (TAS) r 476; Evidence (Miscellaneous Provisions) Act (VIC) 1958 ss 9B; Supreme Court (General Civil Procedure) Rules 2015 (VIC) r 41.01(1)(b); Evidence Act 1906 (WA) s 110; Rules of the Supreme Court 1971 (WA) O 38A.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions