2 September 2016

Evidence is crucial to success in any dispute, but there can be many hurdles in identifying and collecting the evidence which is necessary to prove a claim. The challenges in this process are compounded in cross-border disputes as key evidence can be located outside of where the proceedings are taking place or can even be located across multiple borders.

There are formal and informal mechanisms available to assist in this process, from a simple request to a person to give evidence in the proceeding, through to the more formal such as Letters of Request under international conventions to compel evidence to be provided where cooperation is not an option. Regardless of the option used, overcoming the challenges of collecting evidence abroad requires careful consideration of the local rules of evidence and proper compliance with any applicable protocols to ensure the evidence you collect can be used in the proceedings.

In this second edition of the Moulis Legal dispute resolution newsletter series on managing cross-border commercial disputes, Moulis Legal senior associate Emily Jennings explains the various options for effectively collecting international evidence in cross border disputes, including the changes to the Australian courts’ approach to issuing Letters of Request.

Uncovering the evidence – a common challenge in cross-border disputes

The rise of cross-border disputes has brought with it many different challenges not usually encountered in domestic disputes. These challenges range from technical legal issues (such as where and how to issue proceedings and where a decision or judgment can be enforced) through to practical issues (such as language barriers and the costs and logistics of running a proceeding across borders). However one of the common challenges in cross-border disputes – which can be overlooked – is the ability to identify and collect evidence which may be located abroad.

Evidence is a necessary part of any legal dispute and can sometimes be the difference between success and failure in a case. Globalisation and increasing levels of trade mean that evidence in cross-border commercial disputes can exist in many different forms and can be located across multiple countries. From pertinent documents held by a foreign related company through to a witness to a key event located abroad and requiring translation, evidence can be difficult to obtain.

Even if the necessary evidence can be easily located overseas, the way in which it is collected and presented to the court is critical to ensure that the evidence is admissible in a proceeding. Often the rules of evidence differ between countries and so the usual considerations which parties are familiar with may not apply. The different approaches to evidence across borders mean that careful consideration must be given as to the best method of collecting and presenting evidence.

Obtaining and using evidence in cross-border disputes – the basics

Depending on whether you require documentary evidence, or testimony from witnesses, there are several ways in which evidence from abroad can be obtained and used in Australian court proceedings. Conversely, there are many options available to obtain evidence in Australia for use in foreign proceedings.

Documentary evidence – discovery of documents under Australian court rules

Typically, documentary evidence in a proceeding in Australia is obtained through the ‘discovery’ process. Discovery, in its basic form, imposes an obligation on parties to a proceeding to provide all relevant documents in their power, control or possession, to the other party, even if the document is detrimental to a party’s own case.

It is sometimes possible for documents which are located abroad to be captured in the discovery process if they are in the power, control or possession of a party through, for example, a foreign related company. However courts can sometimes be reluctant to require foreign related companies of a party to provide documents relevant to a proceeding. In a recent Federal Court case, an application for discovery orders was made by the Australian Competition and Consumer Commission for documents to be produced which were in the possession of a foreign company in France which was related to one of the parties. The application was rejected on the basis that it would involve a

…substantial exception to the doctrine of the separate legal identify of a company because, not only do they seek to equate a holding company and its subsidiary, but they seek to equate all the companies in a particular business unit of a group of companies … in my opinion, the separate corporate personality of the two companies must be recognised and the obligations of the directors … to act in the best interest of the company acknowledged.1

Accordingly, the related company in France was protected from having to produce documents relating to the proceeding.

Where a related third party company is not subject to the discovery obligations of a party, the court may still compel a company to take all reasonable steps to obtain access to documents held by a related third party, including a foreign related party. This is known as a ‘Sabre order’ which requires the discovering party to make reasonable efforts to procure the documents from whatever associated body that holds them.2 Before making such orders, the court must be satisfied that there is a real likelihood that the related party has possession, power or control of the documents and that they would give the party access to those documents upon request.

Where documents cannot be obtained from a foreign related company through the discovery process, it may still be possible to obtain and use relevant documents through the testimony of an overseas witness through various informal and formal channels.

When documents are not enough – voluntary witness testimony

In some circumstances, documents are not enough and key witnesses are required to give testimony. In these situations, it is always preferable that parties first seek to make arrangements with the relevant witnesses for them to attend and give their evidence voluntarily. This evidence can be applied to proceedings in Australia and abroad, provided the evidence is taken in a manner which is consistent with the rules of the court in which the evidence will be used.

Where evidence is to be taken in Australia for use in a foreign proceeding, this is usually done through a Judge making ‘Letters of Request’ to the relevant Australian court pursuant to the International Convention On the Taking of Evidence Abroad In Civil Or Commercial Matters (“Hague Evidence Convention”). This process is explained further below. However, it is possible for evidence to be taken voluntarily by a person other than a judge, such as a foreign judicial personnel, lawyer or diplomatic official. In these cases, the permission of the Secretary of the Australian Attorney-General’s Department is required, which can be obtained through formal Letters of Request.

Voluntary arrangements offer parties a cost effective and straightforward process to obtain necessary evidence. Nevertheless, it is commonplace for foreign parties to be reluctant to give evidence voluntarily, particularly if that evidence is to their detriment. For witnesses residing in Australia, subpoenas may be issued and enforced which compels a witness to attend the court and give evidence. However, subpoenas traditionally cannot be served and enforced abroad – although this position may be changing in Australia, as discussed below.

In situations where cooperation is not an option, the Hague Evidence Convention provides a more formal mechanism to obtain evidence through what is known as ‘Letters of Request’.

Letters of Request – compelling foreign parties to provide evidence

The Hague Evidence Convention provides for the taking of evidence abroad by allowing transmission of Letters of Request from one signatory state to another through judicial authorities rather than consular and diplomatic channels. Many countries are signatories to the Convention including the United States, China, Japan, India and the United Kingdom.

Australia have given effect to the convention through the Foreign Evidence Act 1994 (Cth) (“FE Act”) and equivalent state legislation. The legislation allows Letters of Request to be sent to foreign judicial authorities to obtain evidence for use in Australian proceedings, as well as setting out how Letters of Request will be dealt with by Australian courts for evidence to be obtained within Australia for use in foreign proceedings.

Letters of Request – from Australia to foreign judicial authorities

In Australia, the FE Act and equivalent state legislation3 allows parties to a proceeding to apply to an Australian superior court4 for Letters of Request to be issued to foreign judicial authorities. The Letters of Request will be considered by the foreign judicial authority to determine whether it will make an order requiring a person outside Australia to give oral evidence and be examined.

Australian courts may refuse to issue Letters of Request on the basis that it is not in the interest of justice to grant the order. Australian courts will consider whether the person is willing or able to come to Australia to give evidence in the proceeding; whether the person’s evidence is material to the issues to be tried in the case and other relevant factors relating to the interests of the parties.5 Australian courts will also refuse Letters of Request where the request is not framed in precise language. The High Court of Australia made it clear in the case of Hardie Rubber Co. Pty Ltd v General Tire & Rubber Co6 that this process is not intended to be used for ‘fishing evidence purposes’ and so requests made in Letters of Request must be sufficiently particularised.

Letters of Request – received by Australia from foreign judicial authorities

Parties wishing to obtain evidence in Australia for use in foreign proceedings can use Letters of Request in the same way to obtain evidence within Australia. The Letters of Request from the foreign judicial authority must be sent to the Australian Attorney-General Department who will then refer the request to the relevant state or territory courts for action. The relevant Australia court will then execute the request by court order and obtain the evidence.

There are limitations as to what Australian courts can order a person to produce to a foreign court. For example, Australian courts cannot require a person to identify all the relevant documents they have in their possession, custody or power or require the person to produce documents outside the documents specifically listed in the order.7 The scope of the Australian court’s power to order production of documents cannot require the production of general classes of documents.8 Similarly, Australia will not execute Letters of Request for the purpose of obtaining documents before a proceeding has commenced. This is to prevent the parties from exploiting this process merely to find out what documents are in the other party’s possession.

The Attorney-General also has power under the FE Act to make a written order prohibiting evidence to be given and documents to be produced which would cause prejudice to Australia’s security.9

Australian Courts’ changing approach to issuing Letters of Request

Whilst Australian courts will execute orders from a foreign judicial authority for the purposes of producing documentary evidence, Australian courts have, until recently, not had the power to issue Letters of Request to foreign judicial authorities for documents to be produced from foreign jurisdictions.

This issue has rarely been raised before the Australian courts, despite the heavy reliance on documentary evidence in commercial disputes. The long standing position, until earlier this year, was established in 1987 in Re Elna Australia Pty. Ltd. v. International Computers (Australia) Pty. Ltd10, before the FE Act came into force. In this case, the applicant asked the court to issue Letters of Request to the High Court in England for an order for the production of documents by an English company. The court held that an order for the production of documents was not an order for the taking of evidence of the party ordered to produce the documents and held that Australian courts does not have inherent right or power to cause the issue of Letters of Request to the courts of other countries.

Since this decision, the FE Act has come into force and appeared to exclude the possibility of Letters of Request being issued for documentary evidence. However, this issue was tested earlier this year in the Full Court of the Federal Court of Australia in Rawson Finances Pty Ltd v CMR of Taxation11. The court considered issuing Letters of Request to the judicial authorities of Israel for evidence to be provided by the chairwoman of an Israeli bank. The Letters of Request included a request that in addition to examining the witness, an order be made for a subpoena for certain categories of documents to be provided. In its decision, the court held that the FEA does authorise Australian courts to issue Letters of Request which include an order for documents to be produced where the production of the documents sought is in aid of, or ancillary to, taking the evidence of a person. The court found that this was supported by parts of the FEA which allow the court to include a request about “any matter relating to taking that evidence”.

Based on this recent decision, it appears that Australian courts may become less adverse to issuing Letters of Request which also include orders for the production of documents. However it is important to ensure that any such request is made in aid of or ancillary to the specific questions about the documents to be produced. That is, the documents must be an addition to the testimony, and not a situation whether the testimony is only being sought so that the documents can be produced.

Final word

Obtaining evidence from abroad can be challenging, however it is a necessary part of any cross border dispute. When collecting evidence abroad, be mindful of the laws and requirements of the court where the evidence will be used and ensure that all proper processes are followed.

Whilst voluntary agreements and cooperation from witnesses are always preferred, that option is not available all the time. Where witnesses will not cooperate, the Hague Evidence Convention does offer assistance in compelling evidence to be provided through Letters of Request. Traditionally, Australian courts have been reluctant to include the production of documents in sending Letters of Request to foreign judicial authorities, but this position appears to be changing for the better which will ultimately help parties overcome the challenges of obtaining evidence in cross border disputes.

Moulis Legal’s dispute resolution team guides businesses across Australia and Asia in the management and resolution of cross-border and domestic commercial disputes in a way that is commercially focused and business-centric. We represent Australian and international organisations in various domestic and international jurisdictions on matters including contractual disputes, cross-border intellectual property disputes, competition law issues and managing and responding to regulatory investigations.

This memo presents an overview and commentary of the subject matter. It is not provided in the context of a solicitor-client relationship and no duty of care is assumed or accepted. It does not constitute legal advice.

© Moulis Legal 2016

[1]  Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S R L (No 8) [2014] FCA 376, [22].

[2]  Sabre Corporation Pty Limited v Russ Kalvin’s Hair Care Company & Ors (1993) 46 FCR 428; see also Vringo Infrastructure, Inc v ZTE (Australia) Pty Limited (No 2) [2014] FCA 525.

[3]  For example, Evidence on Commission Act 1995 (NSW).

[4]  Section 3 of the Foreign Evidence Act 1994 defines ‘superior court’ to include High Court, Federal Court, Family Court and state Supreme Courts.

[5]  Section 7(2) Foreign Evidence Act 1994.

[6]  (1973) 129 CLR 521.

[7]  Section 33(6) Evidence on Commission Act 1995 (NSW).

[8]  Application of Monier Inc [2009] NSWSC 986; Fairfax Financial Holdings Limited [2011] NSWSC 223.

[9]  Section 42 Foreign Evidence Act 1994.

[10] [1987] FCA 156.

[11] [2016] FCAFC 95.