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DISCLAIMER: THE INFORMATION IN THIS CIRCULAR RELATING TO THE LEGAL REQUIREMENTS OF SPECIFIC FOREIGN COUNTRIES IS PROVIDED FOR GENERAL INFORMATION ONLY AND MAY NOT BE TOTALLY ACCURATE IN A PARTICULAR CASE. QUESTIONS INVOLVING INTERPRETATION OF SPECIFIC FOREIGN LAWS SHOULD BE ADDRESSED TO FOREIGN COUNSEL.
The Australian Government maintains a web site with information on judicial assistance , which includes service of documents, taking evidence, enforcement of judgments, adoption and child abduction. The URL is http://law.gov.au/aghome/legalpol/cld/int_judicial_asst/Welcome.html.
APPLICABLE TREATIES OR OTHER AGREEMENTS
The Vienna Convention on Consular Relations, 21 UST 77; 596 UNTS 261; TIAS 6820 (Article 5);
The United States-United Kingdom Convention to Regulate Commerce (Article IV) of July 3, 1815, 8 Stat 228; TS 110; 12 Bevans 49;
The Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters, 28 USCA 1781 (1980 Cumulative Suppl) and 23 UST 2555; TIAS 7444. See also the law digest volume of the Martindale-Hubbell Law Directory under selected international conventions.
The Hague Evidence Convention entered into force for Australia December 22, 1992. The United States notified the depositary government, the Netherlands, on July 6, 1993 that the United States had no objection to Australia''s accession to the Convention. The Convention will therefore enter into force between the United States and Australia 60 days after the U.S. notification to the Netherlands, September 6, 1993. The Convention provides a mechanism for the taking of voluntary depositions and compulsion of evidence. The Office of Citizens Consular Services has available a separate information flyer which explains the Convention in greater detail.
Australia Central Authority: The Australia Central Authority for requests under the Hague Evidence Convention is the Secretary to the Attorney-General''s Department of the Commonwealth of Australia. Pursuant to Article 24, it designates the Registrars of the State and Territory Supreme Courts as additional authorities.
Australia Reservation and Declarations Re the Convention: On depositing its instruments of accession to the Hague Evidence Convention, Australia made the following reservation and declarations:
- Pursuant to Article 33, it excludes the operation of paragraph 2 of Article 4 regarding acceptance of a letter of request in either English or French, or a translation into one of these languages. Australia will only accept a letter of request in English.
- Pursuant to Article 8, members of the judicial personnel of the requesting authority of another Contracting State may be present at the execution of a Letter of Request, subject to prior authorization by the judicial authority executing the Letter of Request;
- Pursuant to Article 15, evidence may be taken by a diplomatic officer or consular agent only if permission to that effect is given upon application to the Secretary of the Attorney-General''s Department of the Commonwealth of Australia. (The United States is seeking clarification from the Government of Australia as to whether permission will be given by Australia to this action generally or whether permission must be sought on a case by case basis.)
- Pursuant to Article 23, it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries;
VOLUNTARY DEPOSITIONS OF WILLING WITNESSES: Depositions of willing witnesses (without compulsion) may be conducted in Australia either before U.S. consular officers or before any other person (including an American attorney) who has been issued a commission for the taking of the deposition by a court in the United States.
I. Depositions Before U.S. Consular Officers: Articles 15-16 of the Hague Evidence Convention provide for the taking of evidence of willing witnesses by diplomatic and consular officers. Pursuant to Australia''s declaration on acceding to the Convention, permission must be obtained from the Australian Central Authority in order to conduct a deposition before a diplomatic or consular officer. (The U.S. is seeking clarification of this point from Australia as to whether such permission will be granted generally, or whether permission must be obtained on a case by case basis.) U.S. law provides that depositions of willing witnesses abroad may be taken on notice or pursuant to a commission before any consul or vice consul of the United States (22 U.S.C. 4215; 4221; 18 U.S.C., Appendix, Rules of Criminal Procedure, Rules 15 and 17; 28 U.S.C., Appendix, Rules of Civil Procedure, Rules 28-31, 22 CFR 92.49 et seq.) It is also possible to arrange for the taking of the deposition of a willing witness on written interrogatories by any consul or vice consul of the United States (22 CFR 58).
II. Depositions Before Commissioners: Article 17 provides that a person duly appointed as a commissioner for the purpose may, without compulsion, take evidence in aid of proceedings commenced in the courts of another Contracting state if a competent authority in the State where the evidence is to be taken has given its permission either generally or in the particular case for the taking of voluntary depositions by a commissioner (22 CFR 92.53). This would provide for a person named in a commission issued by a court in the United States to conduct depositions in Australia. Australia did not make any specific declaration on its accession to the Convention as to whether evidence may be taken under this Article without prior permission of the Australia Central Authority. However, in a letter dated November 29, 1983, the Embassy of Australia advised the Department of State that Australia does permit the taking of voluntary depositions of witnesses for use in the United States. The United States is seeking clarification from Australia as to whether this interpretation continues to apply.
SCHEDULING A DEPOSITION AT THE U.S. EMBASSY OR CONSULATES GENERAL: To schedule a deposition of willing witnesses directly or to obtain information about court reporters, stenographers or interpreters, contact the Consular Section, American Citizens Services Section at any of the U.S. Foreign Service posts in Australia. You must make your own arrangements to retain the services of a court reporter or stenographer, although lists of such services may be available from the U.S. consular officer. The Office of American Citizens Services has a separate information flyer entitled "Obtaining Evidence Abroad" which includes detailed information about making arrangements for U.S. consular services for a deposition. When contacting the U.S. consular officer, be sure to use the following instructions: 1. Read 22 CFR 92.49 through 92.71;
2. Furnish the following information by letter, telegram, telefax or telex to the American Services Section of the Consular Section of the American embassy or consulate:
a. Requesting counsel''s full name, address, telex, fax and telephone number;
b. A brief description of the nature of the case and the purpose of the deposition;
c. Full name and address of the persons to be deposed as well as their citizenship and a statement that the witnesses'' appearance is voluntary;
d. Suggested dates for taking the deposition or a period within which the deposition should be taken;
e. Whether the deposition will be viva voce or on written interrogatories;
f. Whether a qualified court reporter and/or a translator/interpreter will be necessary; if so, whether the requesting party will make the arrangements for them or wishes the consular officer to do so.
g. Who will attend the taking of the deposition (e.g., requesting counsel, opposing counsel, et al.);
h. Whether the consular officer will be required to preside at the entire proceedings or may administer the appropriate oath(s) and withdraw subject to recall.
3. Include in the letter, telegram, or telex authorization for a return collect cable from the consular officer to confirm arrangements.
4. Attach to the letter or forward separately (if telegram, fax, or telex has been sent):
a. Fees: Effective June 1, 2002, consular fees related to taking depositions or executing commissions to take testimony changed. See Federal Register, May 16, 2002, Volume 67, Number 95, Rules and Regulations, Page 34831-34838; 22 CFR 22.1. A deposit for fees is payable in advance prior to taking of deposition based on consular officer''s estimate of time required. Make certified or corporate check payable to "The American Embassy (Consulate General, Consulate) at (City)." (For Example, American Embassy Consulate General Sydney).
The new fees are:
Item No. 52(a) - Scheduling/arranging appointments for depositions, including depositions by video teleconference (per daily appointment) - $475 (If an appointment is changed and a new appointment must be scheduled and new arrangements made, a new $475 fee will be charged each time.)
Item No. 52(b) - Attending or taking depositions, or executing commissions to take testimony (per hour or part thereof) - $235 per hour plus expenses
Item No. 52(c) - Swearing in witnesses for telephone (teleconference) depositions - $235
Item No. 52(d) - Supervising telephone (teleconference) depositions (per hour or part thereof over the first hour) - $235 per hour plus expenses
Item No. 52(e) - Providing seal and certification of depositions - $60.00
Postage for Return of Transcript - Actual Costs
b. List of interrogatories and any special instructions;
c. Commission of the consular officer or notice of the taking of deposition. (See 22 CFR 92.52, 92.53).
5. Make separate arrangements with the witness to insure his or her appearance for the deposition (travel fees, witness fees, etc.) NOTE: This is counsel''s responsibility.
6. If counsel intends to utilize video-tape equipment for the purpose of recording the deposition, please note that special customs clearances must be obtained from the foreign country before such video equipment is transported into the foreign country. Absent such clearances, the equipment may be confiscated by the foreign authorities. Also, American equipment may need special adapters to function on different foreign electrical currents. Counsel should also be aware that video-taping is not permitted in many foreign countries.
7. Deposition Procedures Involving Little Or No Participation By Consular Officers: Counsel may wish to consider stipulating that the consular officer merely administer the oath and withdraw subject to recall.
When this arrangement is desired, the notice or commission should so state incorporating the stipulation of the parties. Some
countries permit depositions to be taken before local attorneys, notaries, etc. In such countries, counsel may find this method
less expensive as well as simpler and quicker since consular officers have many other duties and sometimes must schedule depositions
well in advance. Effective June 1, 2002, the consular fees for a deposition involving little participation by consular officers
is $235.00, representing one hour or part thereof of consular officer time. See Federal Register, May 16, 2002, Volume 67,
Number 95, Rules and Regulations, Page 34831-34838; 22 CFR 22.1, Item No. 52(b). In addition, there is a $475.00 fee for scheduling/arranging
appointments for depositions, including video teleconference depositions (per daily appointment); Item No. 52(a).
LIST OF U.S. CONSULAR OFFICES IN AUSTRALIA
AMERICAN EMBASSY CANBERRA
Consular Section
American Citizens Services
Moonah Pl.
Canberra, A.C.T. 2600
or
AMERICAN EMBASSY CANBERRA
Consular Section
American Citizens Services
APO AP 96549
Tel: 011-61-62-705-000
FAX: 011-61-62-7005-970
AMERICAN CONSULATE GENERAL MELBOURNE
Consular Section
American Citizens Services
553 Kilda Road
Melbourne, Victoria 3004
or
AMERICAN CONSULATE GENERAL MELBOURNE
Consular Section
American Citizens Services
Unit 11011
APO AP 96551-0002
Tel: 011-61-3-526-5900
FAX: 011-61-3-699-2608
AMERICAN CONSULATE GENERAL SYDNEY
Consular Section
American Citizen Services
36th Fl., Electricity House, Corner of Park and Elizabeth
Sts., Sydney, N.S.W. 2000
or
AMERICAN CONSULATE GENERAL SYDNEY
Consular Section
American Citizens Services
Unit 11026
APO AP 96554-0002
Tel: 011-61-2-261-9200
FAX: 011-61-2-264-1719
AMERICAN CONSULATE GENERAL PERTH
Consular Section
American Citizen Services
13th Fl.
6th St., Georges Terr.
Perth, WA 6800
or
AMERICAN CONSULATE GENERAL PERTH
Consular Section
American Citizen Services
Unit 11021
APO AP 96554-0002
Tel: 011-61-9-231-9400
FAX: 011-61-9-324-1107
COMPULSION OF TESTIMONY, DOCUMENTARY OR PHYSICAL EVIDENCE: If compulsion of evidence is required, in civil, commercial and some administrative cases (decided by foreign Central Authority on a case by case basis) the Hague Evidence Convention provides a "Model Letter of Request" which should be transmitted, in duplicate, directly from the court in the United States seeking assistance to the Australia Central Authority. You may include in the request a request for permission for American counsel to participate in the proceeding before the Australian court. You may also wish to include the option of requesting that your local Australian counsel participate in the proceeding. Written interrogatories and cross interrogatories should be attached to the letter of request.
In criminal cases, and other cases not governed by the Hague Convention, compulsion of evidence is accomplished pursuant to a letter rogatory transmitted through the diplomatic and consular channel. The United States and Australia are in the process of negotiating a Mutual Legal Assistance in Criminal Matters treaty. In the meantime, requests for judicial assistance in criminal matters emanating from the U.S. Department of Justice may be transmitted directly to the Australian Attorney General''s Department. This procedure is only available to the U.S. Government and not to private parties. The Office of American Citizens Services has available a separate information flyer on the preparation of letters rogatory for transmittal through the diplomatic channel.
The Hague Evidence Convention may be considered applicable in administrative cases on a case-by-case basis. For information about the use of the Hague Convention in administrative cases or the use of the "All Writs Act" to obtain a letter rogatory in an administrative case when no action is currently pending in court, contact the Office of American Citizens Services.
The Office of American Citizens Services has available a separate information flyer on Service of Process abroad in general.
PROHIBITION: Foreign Service officers are prohibited by Federal Regulation (22 C.F.R. 92.85) from serving process on behalf of private litigants or appointing others to do so, state law notwithstanding.
SERVICE PURSUANT TO INTERNATIONAL AGREEMENT: Australia is not a party to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
SERVICE BY MAIL: Service may be accomplished by international registered mail, return receipt requested.
SERVICE BY AGENT: It is possible to retain the services of a private process server in Australia to effect service of process. The process server can execute an affidavit of service before a U.S. consular officer at the U.S. embassy or one of the U.S. consulates in Australia which can be submitted as proof of service in the United States. There is a $10.00 fee for the notarial service of the U.S. consular officer. Australia process servers'' fees vary. There follows a list of Australian process servers prepared by the U.S. embassy and consulates.
DISCLAIMER: Both the U.S. embassy and consulates in Australia and the Department of State assume no responsibility for the professional ability or integrity of the persons or firms whose names appear in the list given below. The names listed are arranged alphabetically, and the order in which they appear has no other significance.
AUSTRALIAN CAPITAL TERRITORY (ACT)
AND THE CITY OF QUEANBEYAN, NEW SOUTH WALES
J.D. Bell & Associates
40 Dumas Street
MacKellar, ACT 2617
Canberra Commercial Investigations
81 McKenzie Street
Hackett, ACT 2602
Crozier Administrative Consultants
153 Newcastle Street
Fyshwick, ACT 2609
Ken Fox & Associates
59 Carbeen Street
Rivett, ACT 2611
NORTHERN TERRITORY, STATES OF SOUTH AUSTRALIA,
TASMANIA AND VICTORIA
Northern Territory: Process serving in the Northern Territory is handled by private organizations at all levels. Costs in Darwin range from 30.00 AUS dollars and 45.00 AUS dollars for family law matters. Process serving for Northern Territory country areas is 30.00 AUS dollars with an additional charge of 45 cents per kilometer travel charge.
Don Malouf, Pinkertons NT
G.P.O. Box 779
Darwin, Northern Territory 0801
Tel: 1-61-89-81-7355
N.T. Baliff Services
P.O. Box 204
Darwin, Northern Territory 0801
Tel: 1-61-89-451-311
Pintertons NT
P.O. Box 1016
Alice Springs, Northern Territory 0871
Tel: 1-61-89-522-459
State of South Australia: Service of process in the state of South Australia for private individuals is largely handled by private organizations. Cost is approximately 15.00 AUS dollars with an additional charge of 65 cents per kilometer travel charge.
Adelaide Collections Pty Ltd
2/204 Halifax Street
Adelaide, South Australia, 5000
Tel: 1-61-8-223-2599
Granite Solicitors Service
78 Hutt Street
Adelaide, South Australia, 5000
Tel: 1-61-8-232-1344
KMA Legal and Professional Services
196 North Terrace
Adelaide, South Australia, 5000
Tel: 1-61-8-223-6200
State of Tasmania: Process serving in the state of Tasmania can only be done by a licensed baliff of the Supreme and Federal Courts if the document is issued by those courts. All other matters are handled by private organizations. A flat rate of 20.00 AUS dollars is charged for process serving in Hobart and 28.00 AUS dollars for Tasmanian country areas.
Combined Mercantile Collections
152 Collins Street
Hobart, Tasmania, 7000
Tel: 1-61-02-349-400
Legal Process Service
G.P.O. Box 450E
Hobart, Tasmania 7001
Tel: 1-61-02-347-888
Moore and Moore Investigations
P.O. Box 579
Glenorchy, Tasmania, 7010
Tel: 1-61-02-681-178
State of Victoria: Service of process in the state of Victoria is handled by private organizations. Costs for personal service for Melbourne and suburbs are 25.00 AUS dollars and an additional 13.00 AUS dollars for each subsequent call. Process serving personal service for Victorian country areas is 25.00 AUS dollars with an additional charge of 50 cents per kilometer travel charge.
Fast Process Service
6th Floor
258 Flinders Lane
Melbourne, Victoria 3001
Tel: 1-61-3-650-4041
JJR Process Service Pty Ltd
422 Albion Street
Brunswick West, Victoria 3055
Tel: 1-61-3-383-4324
FAX: 1-61-3-386-9175
M.C. Quartermain
3rd Floor
419 Lonsdale Street
Melbourne, Victoria, 3000
Tel: 1-61-3-670-5134
FAX: 1-61-3-602-3762
WESTERN AUSTRALIA
A.A.C. Process Service
10 Pier Street
Perth 6000
Tel: 09-325-3855
Alberts Philip and Associates Pty Ltd
524 Hay Street
Perth 6000
Tel: 09-325-2899
FAX: 09-325-5274
Combined Protection Agency
P.O. Box 190
Leederville 6007
Tel: 09-321-6146
FAX: 09-322-2252
Holcroft Process Servers
P.O. Box 141
Morley 6062
Tel: 09-276-8198
NEW SOUTH WALES
Service of process in the state of New South Wales is handled by the sheriff of New South Wales (NSW), Law Courts Building, Sydney. The postal address is: Sheriff of N.S.W., G.P.O. Box 3, Sydney, N.S.W., 2001, Australia. Costs are as follows: 15.00 AUS dollars to serve process on any matter other than "collection of property" (e.g. estates) which is 100.00 AUS dollars. Checks should be made payable to the sheriff of N.S.W.
QUEENSLAND
Brisbane
Advanced Process Services
Turbot Street
Brisbane, Qld. 4000
Tel: 07-229-4244
AustWide Investigations and Collections
233 Lutwyche Road
Windsor, Qld. 4030
Tel: 07-357-7033
Barric Investigations
7 Doyle Street
Silkstone, Qld. 4305
Tel: 07-812-2929
Brisbane Summons Service
277 Old Cleveland Road
Coorparoo, Qld. 4151
Tel: 07-394-1211
Coastwide Investigation
Bridges Road
Morayfield, Qld. 4506
Tel: 071-98-5655
Cobe Investigations Pty Ltd
98 Bunya Road
Everton Hills, Qld. 4053
Tel: 07-353-1196
Commercial Collection Services Pty Ltd
244 St. Pauls Terrace
Fortitude Valley, Qld. 4006
Tel: 07-852-1800
Commercial Investigations Service
57 Granadilla Street
MacGregor, Qld. 4109
Tel: 07-349-6578
Consolidated Process Serving
220 Bondary Road
Spring Hill, Qld. 4004
Tel: 07-832-1120
Denner Process Servers
255 Adelaide Street
Brisbane, Qld. 4000
Tel: 07-221-5799
Devon Consultants
146 Bundall Road
Bundall, Gold Coast, Qld. 4217
Tel: 075- 92-0007
Doc-Search
144 Adelaide Street
Brisbane, Qld. 4000
Tel: 07-221-5586
Earlwend Collections Pty Ltd
Station Road
Bethania, Qld. 4205
Tel: 07-200-7196
Express Process Service
20 French Road
Paddington, Qld. 4064
External Credit Management
11 Prospect Street
Fortitude Valley, Qld. 4006
Tel: 07-252-1488
Family Law Document Servers
158 Whites Road
Manly West, Qld. 4179
Fox A.C. and Associates
157 Ann Street
Brisbane, Qld. 4000
Tel: 07-221-1266
Grey Green Associates
Corner. Wharf and Ann Streets
Brisbane, Qld. 4000
Tel: 07-832-5339
Independent Process Services
500 Seventeen Mile Rocks Road
Jindalee, Qld. 4074
Tel: 07-376-7533
International Detection Services
George Street
Brisbane, Qld. 4000
Tel: 07-229-7450
Logan City Commercial Agency
Knight Street
Rochedale, Qld. 4123
Tel: 07-341-2689
Nationwide Investigation Group Brisbane Pty Ltd
101 Wickham Terrace
Brisbane, Qld. 4000
Tel: 07-832-2886
Oz Collections and Investigation Services
Chesterfield Road
Park Ridge, Qld. 4125
Tel: 07-802-1131
P.J. Arnold and Associates
62 Trulson Drive
Marsden, Qld. 4123
Tel: 07-805-2402
Pinkertons Investigations
34 Berwick Street
Fortitude Valley, Qld. 4006
Tel: 07-854-1533
Professional Process
35 Hynes Street
Fortitude Valley, Qld. 4006
Tel: 07-252-4318
Queensland Commercial Investigators
30 Estate Road
Jamboree Heights, Qld. 4074
Tel: 07-376-8633
Rumpole''s Commercial Agency
18 Thompson Street
Mayne, Qld. 4006
Tel: 07-252-4581
Scales Collections Pty Limited
3rd Floor
308 Edward Street
Brisbane, Qld. 4000
Tel: 07-221-2722
Shaft Collections and Investigations Services
8 Octavius Drive
Kallangur, Qld. 4503
Tel: 07-204-5722
Sungate Collections
10 Ferguson Road
Underwood, Qld. 4119
Tel: 07-841-1800
Tanner, W.P.
4 Tarcutta Road
Cleveland, Qld. 4163
Tel: 07-286-4589
Tiffin, R.J. and Associates
243 Edward Street
Brisbane, Qld. 4000
Tel: 07-229-2649
Watts, B.K. and Company Pty Ltd
40 Queen Street
Brisbane, Qld. 4000
Tel: 07-229-2867
Cairns, North Queensland
Cairns Collection Services
Alfio Street
Cairns, Qld. 4870
Tel: 070-54-4425
I.P.G. Investigations
Debbie Street
Trinity Beach, Qld. 4879
Tel: 070-55-6684
Marlin Coast Mercantile
4 Debbie Street
Trinity Beach, Qld. 4879
Tel: 070-55-6684
Gold Coast, Queensland
Discreet Investigations
8 Cluthero Court
Nerang, Qld. 4211
Tel: 075-58-2399
Harpar Commercial and Private Inquiry Agency
Mugga Way
Tweed Heads, N.S.W. 2485
Tel: 36-5875
International Detection Services
18 Glenmore Drive
Bonogin, Qld. 4213
Tel: 075-39-9777
Queensland Commercial Investigators
23 Federation Avenue
Broadbeach, Qld. 4218
Tel: 075-39-9777
Swan Commercial Agency
9 Upton Road
Bundall, Qld. 4217
Tel: 075-38-0174
Twin Towns Commercial Agency Pty Ltd
30 Bay Heads, N.S.W. 2485
Tel: 36-7558
Maryborough District
Bundaberg Commercial Agency
Ritchie Street
Bundaberg, Qld. 4670
Tel: 071-72-1547
Suncoast Collections Agency Pty Ltd
51D Woongarra Street
Bundaberg, Qld. 4670
Tel: 070-72-6433
Mooloolaba and North Coast Queensland
All State Investigations
23 Oxleigh Crescent
Nambour, 4560
Old Australia
Tel: 61-71-416018
Australian Commercial Investigators
71 Weyba Street
Sunshine Beach 4567
Old Australia
Tel: 61-71-474911
Suncoast Collection Agency
77 Esplanade
Mooloolaba, 4557
Old Australia
Tel: 61-71-446555
Rockhampton, Mackay, North Queensland
Kamian Mercantile Pty Ltd
120 Goondoon Street
Gladstone, Qld. 4680
Tel: 61-71-446555
Queensland Commercial Investigators
Suite 5, 77 East Street
Rockhampton, Qld. 4700
Tel: 079-27-9899
Toowoomba District
Downs Credit Control
Rowland Court
Gowrie Mountain
Kingsthorpe, Qld. 4400
Tel: 076-30-0570
LISTS OF FOREIGN ATTORNEYS: Lists of foreign attorneys willing to represent U.S. citizens have been prepared by the American Embassy and Consulates General in Australia. Copies may be obtained from the Department of State, Office of American Citizens Services.
REFERENCES:
McLean, David and McLachlan, Campbell, "The Hague Convention on the Taking of Evidence Abroad. Explanatory Documentation prepared for Commonwealth Jurisdictions", Commonwealth Secretariat, Revised September 1985.
Sunderland, The Use of the Letter of Request (or Letter Rogatory) for the Purpose of Obtaining Evidence for Proceedings in England and Abroad", 31 Intl and Comp L. Q. 784 (1982).
ADDITIONAL QUESTIONS: If you have further questions, contact the East Asia and Pacific Division, CA/OCS/ACS, Department of State, Washington, D.C. 20520, tel: (202) 647-5226.
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