Overseas Service and Evidence Practice Note (GPN-OSE)

J L B Allsop, Chief Justice 25 October 2016

General Practice Note

1. Introduction

1.1 This practice note provides guidance on service of originating process and other documents outside Australia, as well as on evidence taken abroad. Subject to paragraph 2.3 below, this practice note applies to all proceedings in the Federal Court.

1.2 This practice note takes effect from the date it is issued and, to the extent practicable, applies to proceedings whether filed before, or after, the date of issuing.

2. Service of Process Overseas

2.1 The kinds of proceedings in which an originating application may be served outside Australia are described in r 10.42 of the Federal Court Rules 2011 (Cth) ("Federal Court Rules"), and include proceedings that are based on a cause of action arising in Australia and proceedings in which the person to be served has submitted to the jurisdiction of the Court.

2.2 Leave of the Court should ordinarily be obtained prior to serving an originating application or other court document outside Australia, although if there is a sufficient explanation for the failure to seek leave beforehand, the Court can subsequently confirm service made without leave (see rr 10.43 and 10.44 of the Federal Court Rules). Leave to serve an originating application outside Australia will only be granted if the Court has jurisdiction in the proceeding and the party has a prima facie case for the relief that is claimed (see r 10.43(4) of the Federal Court Rules).

2.3 The Trans-Tasman Proceedings Act 2010 (Cth) provides for service in New Zealand of initiating documents in civil proceedings started in Australian courts. An applicant in a proceeding in this Court may proceed under that Act rather than under Division 10.4 of the Federal Court Rules.

2.4 A party applying for leave to serve an originating process or other court documents on a person in a country other than Australia under Division 10.4 of the Federal Court Rules, or for an order confirming service already undertaken, should support the application with an affidavit (as required by rr 10.43(3) and 10.44(2) of the Federal Court Rules) and include information obtained from the Australian Government Attorney-General's Department in relation to the appropriate method of transmitting documents for service in that country, including whether documents:

(a) should be transmitted in accordance with an international agreement or arrangement, and the details of that agreement or arrangement (see Division 10.6 of the Federal Court Rules with respect to service under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters;

(b) should be transmitted for service via the diplomatic channel (see Division 10.5 of the Federal Court Rules); or

(c) may be transmitted for service by a private agent within the territory of that country.

Such information may be obtained from the Private International Law Section of the website of the Attorney-General's Department.

3. Taking of Evidence Overseas

3.1 Parties and their legal representatives should be aware of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. There are two fundamental methods of taking evidence abroad under the Convention: Chapter 1 – Letters of Request; and Chapter 2 – Taking of evidence by Diplomatic Officers, Consular Agents and Commissioners. The Convention and useful working and explanatory documents can be found on the website of the Hague Conference on Private International Law.[1]

Applying for an Order to Examine a Witness outside Australia

3.2 A party may apply under Division 29.2 of the Federal Court Rules for an order for the examination of a witness before a Judge[2] outside Australia. A draft of the order sought must be lodged with the application (see r 29.11(2) of the Federal Court Rules). The application should also be accompanied by an affidavit or other evidence relied on in support.

3.3 In deciding whether to make the order, the Court will consider whether the examinee is willing or able to come to Australia to give evidence, whether the evidence is expected to be material and whether, having regard to the interests of the parties to the proceeding, justice will be better served by granting or refusing the order.[3]

3.4 If an order is made parties should expect that, in the ordinary course, the order will:

(a) provide that the examination will be conducted before a Judge in a specified place outside Australia;

(b) provide for witnesses (usually named) to be examined on oath or affirmation; and

(c) be expressly conditional upon the payment into Court of an amount, to be subsequently determined, as provision for expenses of the Judge and Court staff in relation to the examination.

3.5 The parties (if appropriate) should arrange suitable accommodation for the conduct of each examination and for transcription facilities.

3.6 The costs and expenses of, and incidental to, the examinations will be borne in the first instance equally by the parties to the proceedings and, subject to any order to the contrary, be treated as part of the general costs of the proceeding.

3.7 Evidence should be adduced of whether or not each witness proposed to be examined is an Australian citizen and whether or not each witness is expected to give evidence voluntarily.

3.8 Under Government policy, all official overseas travel by judges of the Court must be approved by the Chief Justice. The hearing of any application should be timed to allow the judge hearing it to consult with the Chief Justice and ascertain whether, should an order to appoint a judge to take evidence outside Australia be made in the proceeding, approval to travel will be given.

Notification

3.9 Following the making of any order appointing a judge to take evidence outside Australia, the following letters are sent by the Court. Further letters may be necessary to confirm dates and other arrangements.

Sender

Recipient

Reason

Chief Justice

Counterpart in overseas jurisdiction

Attorney-General

To obtain permission for the judicial officer to examine witnesses in that jurisdiction

To comply with Government policy requiring notification, at least three weeks in advance, of any proposed official overseas travel by federal judges

District Registrar of relevant registry

Department of Foreign Affairs and Trade

To ensure that the relevant government authorities are informed and all approvals are sought, including approval for the examiner to administer an oath or affirmation

District Registrar of relevant registry

Relevant court administrator in overseas jurisdiction

To obtain courtroom or chambers accommodation, if required.

Calculation of Travel Expenses

3.10 Travel expenses of a judge are determined according to the determination in force from time to time of the Remuneration Tribunal under the Remuneration Tribunal Act 1973 (Cth). Further information is available on the Remuneration Tribunal website.

3.11 Travel expenses for Court staff are determined by the Chief Executive Officer and Principal Registrar of the Court or delegate. This normally includes accommodation at a standard reasonably equivalent to that provided to Court staff in Australia and meal and incidental allowances at the rates determined annually by the Australian Taxation Office in its taxation ruling dealing with reasonable travelling allowance amounts. Further information is available from the District Registrar of the relevant registry.

Travel Proposal and Projection of Costs

3.12 As soon as possible after any order is made for the taking of evidence outside Australia, the parties should prepare and lodge with the District Registrar of the relevant registry a travel proposal for the Judge and any Court staff, together with a projection of costs including:

(a) proposed dates, route, flights, class, carrier and ticketing (fully flexible return tickets must be provided) for travel;

(b) proposed arrangements for ground travel;

(c) three options (if possible) for hotel accommodation;

(d) daily allowance for meals and incidentals; and

(e) any other anticipated expenses.

3.13 The parties will also provide to the District Registrar details of what arrangements are proposed for accommodation for the conduct of each examination and for transcription.

Payment into Court

3.14 On receiving the travel proposal and the projection of costs, the District Registrar will liaise with the Judge to identify whether the proposal is satisfactory and consider whether the cost projection made is sufficient to provide for the likely expenses of the examination. The District Registrar will, if necessary, liaise with the parties about any possible modifications. If required the District Registrar may seek directions from a judge. Once the amount for the provision for the Court's expenses of the examination is determined and before the commencement of the examination, the parties will pay that amount in equal shares into Court.

Reconciling Expenses

3.15 As soon as possible after the examination, the District Registrar will reconcile and account to the parties for the costs actually incurred by the Court of and incidental to the examination. If the amount paid as a provision for those expenses exceeds those costs, the excess will be refunded to the parties in equal shares. If there is a shortfall in the amount paid as a provision for those expenses against those costs, the parties will pay the amount of the shortfall into Court in equal shares within 7 days of receiving written notification.

Evidence from Overseas by Video Link

3.16 Refer to the Technology and the Court Practice Note (GPN-TECH) and the Court's website for further information on arrangements for the use of a video link in a hearing.

JLB ALLSOP
Chief Justice
25 October 2016



[1] See: www.hcch.net/en/home. A Practice Handbook on the operation of the Convention can be purchased from this website.

[2] Although the examiner will usually be a judge, a registrar of the Court or other person may also be appointed for the purpose of an examination (see r 29.11 and the definition of "Examiner" in Schedule 1 of the Federal Court Rules).

[3] See s 7(2) of the Foreign Evidence Act 1994 (Cth).