In December 2025, a Circuit Court in Illinois, United States, issued “letters of request” to the Supreme Courts in Queensland, Western Australia, New South Wales, and Victoria under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Evidence Convention), seeking US-style depositions of various witnesses resident in Australia. The letters of request arose out of litigation before the Illinois court between Orica and CF Industries involving claims and counterclaims in the hundreds of millions of US dollars. CF Industries made urgent applications in the relevant Supreme Courts for orders giving effect to the requests.  MinterEllison acted for two ex-Orica witnesses, who were the subject of applications in Queensland and Western Australia.

In a first for both Queensland and Western Australia, the Supreme Courts in each State dismissed CF Industries' applications. Both Supreme Courts accepted the witnesses’ arguments that the requests did not comply with Australian legislation implementing the Hague Evidence Convention, effectively because the requests sought broad, US-style pre-trial discovery by way of oral depositions.  While requests from US courts are routinely allowed in Australia under the Hague Evidence Conventions, including for oral depositions, Australian law only permits oral depositions which seek evidence for trial, not discovery.  These decisions are the first instances of courts in Queensland or Western Australia refusing to give effect to requests from US courts for oral depositions under the Hague Evidence Convention in Australia.  The judgments also confirm a number of important legal principles and practical implications for parties seeking to execute, or resist, such requests in future.

The judgments are also significant for practitioners in other States and in the United Kingdom, given the uniform State legislation in Australia and similar statutory regime in the UK.

The judgments are:

• in Queensland: Re CF Industries Sales LLC [2026] QSC 17 (substance) and In the matter of CF Industries Sales LLC (No 2) [2026] QSC 44 (costs)
• in Western Australia: CF Industries Nitrogen v Wijaya [2026] WASC 69

The MinterEllison team was led by Tom Fletcher, partner, and Joshua McKersey, Senior Associate, from MinterEllison's Dispute Resolution practice.  MinterEllison was ably assisted by Latham & Watkins, counsel for Orica in the Illinois proceedings.

MinterEllison briefed John McKenna KC and Laura Heit in Queensland and Rachael Young SC in Western Australia.