Taking foreign evidence (Evidence on Commission Act)

Part 4 of the Evidence on Commission Act 1995 permits the Supreme Court to assist a court or tribunal outside Australia to obtain evidence in NSW. Section 32 provides for an application to be made to the Court where the evidence sought relates to proceedings which have been instituted, or which are contemplated, before the requesting court. Proceedings for criminal offences are excluded unless the requesting court is located in Australia or New Zealand.

Under section 33 the Supreme Court has power to make orders for obtaining evidence including the examination of witnesses, either orally or in writing, and the production of documents.

If the requesting court has not nominated a person to commence the action, Part 58 of the Supreme Court Rules allows the Attorney General to commence proceedings for orders under section 33 of the Evidence on Commission Act 1995.

Australia is a party to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (1970). This Convention provides procedures for the taking of evidence between foreign countries which are parties to the Convention. Note that where the request for the taking of evidence is made under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, Article 14 of the Convention provides that the execution of the letter of request does not give rise to any reimbursements of taxes or costs of any nature. However, costs can be recovered in the following circumstances:

• fees paid to experts and interpreters, and
• costs occasioned by the use of a special procedures.