Part 71 – Obtaining Evidence for Foreign Courts

Scope of this Part

 71.1

1. This Part deals with the procedure by which evidence may be obtained from a witness in a State or Territory for the purpose of proceedings in a court or tribunal outside the jurisdiction.
2. Except where the enactment provides otherwise, the power of the High Court to make an order under any relevant enactment may be exer­cised by a judge in chambers, a master or the registrar.

 Application for order

71.2

1. Subject to paragraph (3) and rule 71.3, an application for an order may be made without notice but must be supported by affidavit evidence.
2. There must be exhibited with the affidavit the request in pursuance of which the application is made, and if the request is not in the English language, a translation of the request into English.
3. After an application has been made under paragraph (1) any appli­cation for a further order or directions must be on notice.

Application by Attorney General In certain cases

 71.3

1. If a request is to be received by the –
   1. court in pursuance of a Civil Procedure Convention providing for the taking of the evidence of any person in a State or Territory for the assistance of a court or tribunal in the foreign country, and no person is named in the document as the person who will make the necessary application on behalf of the party; or
   2. minister with responsibility for foreign affairs and sent by the minister to the court office with an intimation that effect should be given to the request without requiring an application for that purpose; the court office must send the document to the Attorney General.

Person to take and manner of taking examination                                              

71.4

1. Any order made in pursuance of this Part for the examination of a witness may direct the examination to be taken before any fit and proper person nominated by the person applying for the order or before an examiner of the court or before any other qualified person as to the court seems fit.
2. Subject to rule 71.6 and to any special directions contained in any order made in pursuance of this Part for the examination of any witness, the examination must be taken in the manner provided by rules 33.8 to 33.12 and an order may be made under rule 33.13 for payment of the fees and expenses due to the examiner.

Dealing with depositions

71.5

1. Unless any order made in pursuance of this Part for the examination of any witness otherwise directs, the examiner before whom the examination is taken must send the deposition of that witness to the court, and the court must –
   1. give a certificate sealed with the seal of the Supreme Court identi­fying the documents annexed thereto, that is to say, the request, the order of the court for examination and the deposition taken in pursuance of the order; and
   2. send the certificate with the documents annexed thereto to the minister with responsibility for foreign affairs, or, if the request was sent to the court office by some other person in accordance with a Civil Procedure Convention, to that other person; for transmission to the court or tribunal out of the jurisdiction request­ing the examination.

Claim

71.6

1. This rule applies where –
   1. a witness claims a right to withhold evidence; and
   2. that claim is contested.
2. The examiner may require the witness to give the evidence to which the claim relates.
3. If the examiner does not do so the person who obtained the order under rule 71.2 may apply to the court to do so.
4. Such an application may be made without notice.
5. If such evidence is taken
   1. it must be recorded in a document separate from that witness’ deposition;
   2. the examiner must send to the court office with the deposition –
      1. that document; and
      2. a statement signed by the examiner setting out the claim and the ground on which it was made;
   3. on receipt of the document the court office must, notwithstanding anything in rule 71.5 –
      1. retain the document containing the evidence to which the claim related; and
      2. send the statement with a request to determine the claim to the foreign court or tribunal with the documents mentioned in rule 71.5.
6. If the claim is rejected by the foreign court or tribunal, the court office must send to that court or tribunal the document containing the evidence to which the claim related.
7. If the claim is upheld the court must send the document to the witness.
8. In either case the court must notify the witness and the person who obtained the order under rule 71.2 of the court’s or tribunal’s determi­nation.