Facilitating the Taking of Evidence from Overseas Witnesses via Video – Issues for Consideration

Introduction

As the world adjusts to the changes brought about by the COVID-19 pandemic, we have seen an increase in hybrid workplace arrangements, retaining flexibility while returning to the benefits of in-person interaction. In legal practice this has been reflected by an increase in the use of video conferencing to attend court and tribunal hearings. Attendance by way of video conference has always been an option in Australian tribunals. However, prior to the interruption of Covid-19 this option had been used only infrequently.  Now, hearings by way of video conference have become quite routine, and the increased use of this format in practice makes it necessary for representatives to be more routinely aware of appropriate procedures and safeguards, particularly in circumstances where evidence is being taken via video conference from overseas.

The Attorney-General’s Department states that the reception of evidence from overseas for Australian court proceedings is to be determined by the relevant Australian state’s civil procedure rules and the laws of the relevant overseas jurisdiction in which the evidence is being taken. The Department refers to the Hague Convention on the taking of Evidence Abroad in Civil or Commercial Matters 1970 (‘Hague Evidence Convention’) as to contracting states and their specific requirements and procedures.[1] The Department is silent as to the extent to which these procedures apply to hearings before administrative tribunals. However, the practice of obtaining evidence from witnesses located abroad via video conferencing, without progression through slow and expensive diplomatic channels, has become commonplace.

This article addresses the requirements for taking evidence from overseas as set out in the Hague Evidence Convention. It then considers the issues raised in the recent decision of the UK’s Upper Tribunal in Agbabiaka v (evidence from abroad; Nare guidance) (‘Agbabiaka’)[2] in relation to the Hague Evidence Convention requirements. Finally, this article concludes that, even where diplomatic channels are utilised to secure evidence from unwilling overseas witnesses, the end result of that diplomacy may well involve video conferencing.

Procedure under the Hague Evidence Convention

The Hague Evidence Convention sets out a uniform framework to streamline the procedure for making a request to take evidence from overseas. Article 1 provides that “in civil or commercial matters, a judicial authority of a Contracting State may request the competent authority of another Contracting State, by means of a ‘letter of request’ to obtain evidence or to perform some other judicial act”.

Process for Letters of Request under the Hague Convention

A request made pursuant to the Hague Evidence Convention therefore requires:

1. the establishment of a central authority in each State to receive Letters of Request and transmit them to a competent authority to execute them;[3] and
2. the Letter of Request itself.

Pursuant to Article 3, a Letter of Request must:

• specify the name of the requesting judicial authority (the applicant);
• provide an email address, contact name and phone number for the Requesting Authority to facilitate communication;
• be addressed to the ‘Competent Authority of Australia’ (the receiving authority);
• state the nature of the proceeding for which the evidence is required; and
• set out the names and addresses of the parties to the proceeding, and their representatives;

Where relevant, the Letter of Request should also:

• set out the names and addresses of the witnesses or persons to be examined;
• include a list of questions to be put to the witness or a statement of the subject matter examined;
• include a description of the documents or other property to be inspected;
• identify any special method or procedure to be followed under Article 9.[4]

Per Article 1, the Hague Evidence Convention only applies to ‘civil or commercial matters’. While ‘civil and commercial matters’ is not defined, the Explanatory Report on the Convention states that “any potential disagreement on the meaning of these words is to be settled through diplomatic channels”[5]. 

It appears that relevant authorities may therefore take their own position as to the extension of the Convention to administrative proceedings.  As noted above, the Attorney-General’s Department does not clarify on this point.  Despite this ambiguity, the decision in Agbabiaka, heard on 13 October 2021,flags interesting considerations for parties to UK Tribunal proceedings where it becomes necessary to secure witness attendance through diplomatic channels.

The decision in Agbabiaka

In Agbabiaka, Mr Agbabiaka applied for entry clearance to the UK. His request was denied in the first instance by the Secretary of State and Mr Agbabiaka appealed to the first tier of the Tribunal (First Tier Tribunal). In the appeal hearing, after Mr Agbabiaka provided evidence by video link from Nigeria, the Home Office objected to the appeal because it had not been established that the Nigerian authorities had acquiesced to the taking of evidence from Nigeria. The First Tier Tribunal subsequently received communication indicating that Nigeria had no objection to the taking of evidence by video by a court in the United Kingdom in a civil or commercial matter. The First Tier Tribunal, therefore, concluded that this disposed of the Home Office’s objection and allowed the appeal. [6] The Home Office appealed to the Upper Tribunal on the basis that the information relied upon by the First Tier Tribunal did not meet the Home Office’s objection. As a result, the matter came before the Upper Tier Tribunal.[7]  

In considering the issue of evidence and submissions given from abroad,  the Upper Tribunal in Agbabiaka emphasised the diplomatic role that the Hague Evidence Convention plays, noting that “there has long been an understanding among Nation States that one State should not seek to exercise the powers of its courts within the territory of another, without having the permission of that other State to do so” and “any breach of that understanding…risks damaging this country’s relations with other States”.[8]  Thus, even though the UK Secretary of State took the view that the Hague Evidence Convention did not apply to administrative proceedings, the Tribunal concluded that whenever the issue arises in a tribunal about the taking of evidence from overseas, the question of whether it would be lawful to do so is a question of law for that country, regardless of whether they are signatories to the Hague Evidence Convention. Therefore, even though the Hague Evidence Convention may not necessarily apply to proceedings before an administrative tribunal, it is important to consider and undertake the request process where relevant.[9]

The impact of Agbabiaka on UK Tribunals

In its decision, the Tribunal sets out a recommended process for the UK Tribunals.[10] Bearing this process in mind, the Agbabiaka decision (citing the guidance in Nare (evidence by electronic means) Zimbabwe)[11] provides several key takeaways applicable to the UK jurisdiction:

1. Although the Hague Evidence Convention process only applies to the taking of evidence, rather than the giving of submissions, the line between submissions and evidence is not always an easy one, particularly when the person is not a legal professional. As such, a tribunal may need to consider the request process where submissions are being given from overseas.[12]
2. The decision whether to grant an application to take evidence from overseas is a judicial one. Accordingly, the party seeking to call the evidence must notify all other parties and the Tribunal at the earliest possible stage, indicating the content of the proposed evidence
3. As in civil proceedings before the courts, it is the responsibility of the party making the request to take evidence from overseas to go through the necessary process. For example, under the proposed UK tribunal process, the relevant party would begin by sending a request to the Foreign, Commonwealth and Development Office (FCDO) to confirm whether the relevant country has any diplomatic or other objection to the provision of evidence by means of video-conference to a tribunal in the UK.
4. The party seeking to call the evidence from overseas must be in a position to inform the Tribunal that the relevant country raises no objection to evidence being given from within its jurisdiction to the tribunal.
5. Where there is a delay in the response from the other country, equal consideration may need to be given to the position of the appellant and the objective of avoiding undue delay in hearing matters against waiting to receive an unequivocal response from the other country, to avoid potential damage to diplomatic relationship and to ensure the best possible evidence is provided to the tribunal.
6. Requests made to a foreign country should proceed on a general basis, such that the individual appellant or witness is not identified in the request.
7. Since the onset of the COVID-19 pandemic and the increased use of video-conferencing in court and tribunal settings, it is no longer necessary that the location from which evidence is given be a court or tribunal hearing centre, or that the giving of evidence be subject to on-site supervision by court or tribunal staff. While this would certainly be the ‘gold standard’, it is for the tribunal to have regard to the risks to the quality and weight of evidence given from a location where this standard of supervision is not available.[13]

Practical considerations moving forward

Some scholars have taken the view that the Hague Evidence Convention was drafted at a point in time when “video conferencing was only a theoretical possibility,” and that advancements in audio-video technology now allow “countries to skip the slow and cumbersome process of sending formal letters through diplomatic channels to achieve the Hague Evidence Convention’s requirements”.[14]

Further, given the readily apparent benefits of video conferencing, it may be that the issues flagged in Agbabiaka will be reserved for only those cases where genuine diplomatic concerns are raised at an international relations level between countries. The continued elimination of logistical burdens in tribunal proceedings – such as the need for international witnesses to obtain visas for travel – is in the shared interests of the legal profession and individual litigants. Video conferencing reduces costs, and the reduction in international travel mitigates harm to the environment caused by flight-related carbon dioxide emissions.[15]

Arguably, allowing willing overseas witnesses to appear remotely also reduces forum shopping as litigants are less readily able to choose a jurisdiction that would be inconvenient to their opposing party, simply on the basis of witness location by means of invoking the doctrine of forum non conveniens.[16]

Finally, there is authority supporting the proposition that even where an overseas witness does not consent to appear, and diplomatic channels are followed to secure attendance, the end result may well be that the successfully subpoenaed witness is ordered to appear remotely.

The Trans-Tasman Proceedings Act 2010 (NZ) covers all New Zealand criminal court cases, and most civil court cases. It facilitates the process of asking a New Zealand court for permission to serve a subpoena in Australia to require a witness located in Australia to give evidence in New Zealand court proceedings. Although the New Zealand court may order that the Australian witness travel to New Zealand, it is also possible that the New Zealand court will give permission for the evidence to be taken remotely where it is satisfied that the facilities are available, it is more convenient for the evidence to be given from Australia, and it is appropriate in the circumstances of the matter.[17]

Conclusion

As the world becomes increasingly interconnected due to developments in technology and the need to adapt to the COVID-19 pandemic, the practice of securing evidence from witnesses overseas in Australian Tribunals has become less cumbersome. Practitioners have moved past the Hague Evidence Convention – silent on the issue of Tribunals – to embrace the benefits afforded by video conferencing.

[1] Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970 (‘Hague Evidence Convention’).

[2] [2021] UKUT 00286 (IAC).

[3] Hague Evidence Convention, Article 2.

[4] Article 9 provides that the receiving authority executing the Letter of Request shall apply its own law as to the methods and procedures to be followed. However, it will also follow a request of the requesting authority that a special method or procedure be followed unless this is incompatible with the internal law of the State of the receiving authority or is otherwise impossible of performance.

[5] Explanatory Report to the Hague Evidentiary Convention at [22].

[6] Agbabiaka at [2] – [8].

[7] Although the Home Office subsequently withdrew its challenge to the decision of the First-Tier Tribunal and granted Mr Agbabiaka entry clearance to the UK, the Upper Tier refused the consent to the withdrawal as it provided an opportunity to consider the issue of evidence and submissions given from abroad.

[8] Agbabiaka at [12].

[9] Agbabiaka at [19] (citing Interdigital Technology Corporation & Ors v Lenovo Group Ltd & Ors [2021] EWHC 255 (Pat).

[10] This procedure is set out at [31] of the decision.

[11] [2011] UKUT 00443 (IAC) at [21]; Agbabiaka at [3].

[12] Agbabiaka at [24].

[13] Agbabiaka, [55].

[14] The Courts, the Remote Hearing and the Pandemic: From Action to Reflection, M. Legg and A. Song, [2021] UNSWLawJl 6; (2021) 44(1) UNSW Law Journal 126.

[15] Rule 43(A): Remote witness testimony and a judiciary resistant to change; C. Forbes, [2020] Vol.24:1 Lewis & Clark Law Review 299 at 317.

[16] Ibid.

[17] Make a person in Australia give evidence in certain New Zealand proceedings | New Zealand Ministry of Justice; accessed 25 January 2023.