Evidence Act 1939

(1) This section applies to any proceeding before the Supreme Court or the Local Court, other than a proceeding in which the court in question is exercising jurisdiction conferred on or vested in it by an Act of the Commonwealth.

(2) Where on the application of a party to any proceeding to which this section applies it appears to the court that it is in the interests of justice to do so, the court may in its discretion make in relation to a person outside the Territory an order:

(a) for the examination of the person on oath at any place outside the Territory before a judge or justice of the peace, an officer of the court, or such other person as the court may appoint; or

(b) for the issue of a commission for the examination of the person on oath at any place outside the Territory; or

(c) for the issue to an appropriate judicial authority of a place outside the Territory of a letter of request to take, or cause to be taken, the person's evidence.

appropriate judicial authority means:

(a) in relation to a place in Australia (including a place in any external Territory of the Commonwealth for the government of which as a Territory provision is made by any Act of the Commonwealth) – a court or authority prescribed as such for that place; and

(b) in relation to any other place – an authority appearing to the court to be appropriate having regard to the law of that place.

(4) In determining whether it is in the interests of justice to make an order under subsection (2) in relation to the taking of evidence of a person, the matters to which the court shall have regard include:

(a) whether the person is willing or able to come to the Territory to give evidence in the proceeding; and

(b) whether the person will be able to give evidence material to any issue to be tried in the proceeding; and

(c) whether, having regard to the interests of the parties to the proceeding, justice will be better served by granting the order or refusing it.

(5) Where a court makes an order within subsection (2)(a) or (b), it may in its discretion (at the time of making the order or at a subsequent time) give such directions as it thinks just relating to the procedure to be followed in and in relation to the examination, including directions as to the time, place and manner of the examination and any other matter that the court thinks relevant.

(6) Where a court makes an order within subsection (2)(c), it may in its discretion include in the order a request as to any matter relating to the taking of the person's evidence, including:

(a) the examination, cross-examination or re-examination of the person, whether his or her evidence is given orally, upon affidavit or otherwise; and

(b) the attendance of the legal representative of each party to the proceeding in which the order is made, and the participation of those persons in the examination in appropriate circumstances; and