Giving evidence from overseas via audio-visual link

In the aftermath of the COVID-19 pandemic, Australian courts and tribunals have shown a greater, though still limited, willingness to allow witnesses to give evidence remotely via audio-visual link (AVL). For witnesses located overseas and unable to travel to Australia, AVL offers a practical way to ensure their evidence is heard in civil proceedings. However, while the technology is relatively straightforward, the legal framework becomes significantly more complex when the witness is outside Australia. 

The question of whether the Hague Evidence Convention applies to the taking of evidence by AVL remains unsettled. Some jurisdictions take the view that the Convention does apply, requiring prior authorisation from the foreign state before evidence can be taken remotely. Others consider that AVL testimony does not constitute the formal taking of evidence abroad and therefore falls outside the Convention’s scope. In some cases, domestic legislation expressly permits the use of AVL for overseas witnesses, effectively bypassing the Convention. This divergence creates uncertainty for practitioners and highlights the importance of confirming the position in the relevant jurisdiction.

Although many jurisdictions, including the Australian Commonwealth and several states and territories, have adopted more flexible domestic procedures that allow voluntary remote testimony without invoking the Convention, others maintain stricter requirements. For example, Switzerland continues to require formal compliance with the Convention, including prior approval for cross-border evidence collection, even where AVL is proposed.

Within Australia, the approach to overseas witnesses giving evidence by AVL varies across jurisdictions. This article outlines the current position in New South Wales and the Commonwealth courts and highlights key considerations for practitioners planning to call a witness remotely from abroad.

New Zealand, United Kingdom and the United States

Irrespective of the differing interpretations between NSW and Federal courts regarding the need for foreign state consent, some jurisdictions present no practical difficulty for taking evidence by AVL in civil matters. In particular, New Zealand, the United Kingdom and the United States have legislative frameworks that permit voluntary evidence to be given for use in foreign proceedings.

• United Kingdom: Under the Oaths and Evidence (Overseas Authorities and Countries) Act 1963 (UK), any person appointed by a foreign court or judicial authority has power in the UK to administer oaths for the purpose of taking evidence for use in non-criminal proceedings abroad.

• United States: 28 U.S.C. §1782(b) of the United States Code provides that nothing in that chapter precludes a person within the United States from voluntarily giving testimony, statements, or producing documents for use in a foreign or international tribunal, in any manner acceptable to them.

• New Zealand: Reciprocal arrangements under the Trans-Tasman Proceedings Act 2010 (Cth) and complementary New Zealand legislation facilitate the taking of evidence by video link between Australian and New Zealand courts. These provisions allow Australian courts to administer oaths or affirmations in accordance with their own practice and procedure when taking evidence from a person in New Zealand.

Federal courts

The Federal Court of Australia (Federal Court)

The Federal Court of Australia has broad discretion to allow evidence to be given by audio-visual link (AVL) under sections 47A to 47F of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act). Section 47A(1) provides that the Court may, in any proceeding, direct or permit a person to give testimony by AVL or other appropriate means.

When deciding whether to grant such an application, the Court must consider whether the use of AVL is in the interests of justice. Common factors include:

• whether the witness is genuinely unavailable or unable to travel to Australia

• the nature of the evidence, particularly where credibility is in issue or cross-examination will be extensive

• practical considerations such as time zones, technology reliability, and cost.

Importantly, the Federal Court has held that section 47A of the Federal Court Act does not require the consent of a foreign state before evidence can be taken by AVL from a witness located overseas. The Court has found that voluntary testimony given via AVL does not infringe the sovereignty of the foreign state, even if that state objects, unless its domestic law expressly prohibits such participation. In this context, section 47A is understood to override any obligation of comity.

By contrast, where evidence is to be taken in person overseas, the consent of the foreign state is required. In such cases, the Court encourages consultation with the Department of Foreign Affairs and Trade. While diplomatic involvement is generally unnecessary for AVL evidence, it may be appropriate in certain circumstances.

Federal Circuit and Family Court of Australia (FCFCOA)

The FCFCOA has similar powers under sections 201–204 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The Court may impose conditions to ensure procedural fairness and the integrity of the process.

The Family Law Rules 2021 (Cth) provide further guidance:

• Rule 15.16 requires a written application at least 28 days before the hearing, specifying the location, facilities, and costs, and

• Rule 15.17 applies where the witness is in a country other than Canada, New Zealand, the UK, or the US. In such cases, the applicant must confirm whether the foreign government requires permission for AVL evidence and, if so, whether that permission has been obtained. If permission is refused, reasons must be provided.

Where foreign law prohibits participation, the Court may instead issue a Letter of Request under the Hague Evidence Convention or pursue other diplomatic arrangements.

New South Wales Courts

The use of AVL for overseas witnesses in New South Wales is governed by the Evidence (Audio and Audio Visual Links) Act 1998 (NSW). Section 5B empowers a New South Wales court to direct that evidence be given by AVL from a place within or outside the State. However, this discretion is qualified. Under section 5B(2), the Court must not make such a direction if it is satisfied that the evidence can more conveniently be given in the courtroom or another location where the Court is sitting.

Section 5C deems the remote location to be part of the Court for the purposes of evidence, procedure, contempt, and perjury. While this deeming provision facilitates procedural consistency, it also raises sovereignty concerns when the witness is located overseas.

In Re Sunnya Pty Ltd [2023] NSWSC 1286, the Supreme Court held that, absent a law in the foreign jurisdiction permitting foreign courts to take evidence by AVL, or express permission from the relevant authorities, directing a witness overseas to give evidence by AVL would impinge on that country’s sovereignty. This position contrasts with the more permissive approach adopted by the Federal Court. The Supreme Court expects parties to either obtain permission from the foreign jurisdiction or use formal mechanisms such as the Hague Evidence Convention. DFAT involvement may be necessary in some cases.

Applications will generally fail if the party cannot demonstrate that the witness is genuinely unable to travel and that sovereignty concerns have been adequately addressed.

District Court of NSW

The District Court also applies the AVL Act, supplemented by Practice Note DC (Civil) 1C. Parties seeking to call an overseas witness by AVL must:

• apply under section 5B of the AVL Act

• make the application as early as possible; generally, at least four (4) business days before the hearing

• provide reasons why the witness cannot attend in person, and

• confirm that appropriate AVL facilities are available and that the application complies with the Court’s AVL protocols.

The Court will assess whether the use of AVL is in the interests of justice, taking into account fairness to other parties and practical issues such as technology reliability and time zone differences.

Local Court of NSW

The Local Court also operates under the AVL Act. Applications must be made using the prescribed form (Attachment D) and filed at least 10 days before the hearing. The application must:

• explain why AVL is necessary

• confirm that suitable facilities are available, and

• address any foreign law or permission issues if the witness is overseas.

Applications may be determined in chambers unless a listing is required.

Land and Environment Court

The Land and Environment Court follows the AVL Act and its own AVL Protocol and Guidelines. Parties must:

• obtain a court order for AVL

• ensure compliance with technical requirements and address foreign law issues, including the administration of oaths or affirmations

• make arrangements for time zones and interpreters where necessary, and

• consider whether a court official or other authorised person should attend the remote location to assist and ensure the integrity of the process. 

Jurisdictional Overview

The table below summarises whether permission is required for witnesses to give evidence via AVL from overseas in key jurisdictions.

Table 1 – AVL permissible in Australian civil proceedings under domestic law

Nation State / Entity	Hague Evidence Status	Notes
Canada	Non-member	Voluntary testimony generally permitted; compulsion via letters rogatory under Canada Evidence Act / provincial rules.
New Zealand	Non-member	Voluntary testimony generally permitted under Evidence Act 2006 ss 184–187; Trans-Tasman regime facilitates AVL with Australia.
United Kingdom	Contracting Party	Oaths and Evidence (Overseas Authorities and Countries) Act 1963 s 1 enables foreign-appointed persons to administer oaths for foreign civil proceedings.
United States	Contracting Party	28 U.S.C. §1782(b) permits voluntary evidence for foreign tribunals.

 

 

Table 2 – AVL not permissible in Australian civil proceedings (voluntary AVL generally prohibited)

Nation State / Entity	Hague Evidence Status	Notes
China	Contracting Party	Member; unauthorised depositions/AVL prohibited; proceed only via PRC Central Authority.
France (including overseas territories)	Contracting Party	Blocking statute; foreign evidence-taking requires formal request (Hague) and court oversight.
Germany	Contracting Party	No private depositions by foreign attorneys; use Hague letters of request / consular channels.
India	Contracting Party	Hague Evidence Convention member; evidence via formal request; voluntary AVL generally prohibited.
Japan	Non-member	Not a Hague Evidence member; depositions tightly controlled; U.S. consular officer presides with special deposition visa.
Mexico	Contracting Party	Member; voluntary AVL of nationals generally prohibited; prior permission of Mexican Central Authority required.
Republic of Korea	Contracting Party	Member; voluntary depositions of Korean/third-country nationals prohibited; formal request required.
Russian Federation	Contracting Party	Member; voluntary AVL not permitted; use formal channels.
Switzerland	Contracting Party	Member; Art. 271 SCC criminalises unauthorised evidence-taking; formal authorisation required.

 

Table 3 – AVL permissible in Australian civil proceedings, in NSW via formal request

 

Authors: Adam Cutri and Zach Bentley 

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.