Notices to produce in New South Wales: Some thoughts and considerations

In New South Wales, Notices to Produce are governed by the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). A Notice to Produce is a procedure through which a party to proceedings may serve on another party a notice requiring the production of specified documents, or things (such as a computer).¹ A Notice to Produce generally has the same coercive effect as a Subpoena to Produce for Inspection.

Legislative Context

Parts 21 and 34 of the UCPR govern Notices to Produce in New South Wales.

Part 21.10 relates to Notices to Produce for Inspection and has two limbs:

21.10 Notice to produce for inspection by parties

1. 1. Party A may, by notice served on party B, require party B to produce for inspection by party A:

a)    any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and

b)    any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue.

Part 34.1 relates to Notices to Produce to Court, and provides as follows:

34.1 Notice to produce to court

1. 1.  A party may, by notice served on another party, require the other party to produce to the court, or to any examiner:

a)    at any hearing in the proceedings or before any such examiner, or

(a1)  at any time fixed by the court for the return of subpoenas, or

b)    by leave of the court, at some other specified time,

any specified document or thing.

Case Law

One of the critical differences is that a Notice to Produce under Rule 21.10 is under Part 21 of the UCPR and is, accordingly, a process of discovery where the concept of relevance to a fact in issue in the proceedings is a key touchstone, and a Notice to Produce under Rule 34.1 is a process akin to a Subpoena for Production.²

Rule 21.10(1)(a)

When considering Notices to Produce under Rule 21.10, the following matters are relevant:

1. A Notice to Produce served under the first limb of Rule 21.10, that is, under Rule 21.10(1)(a), is intended to give the issuing party the same advantage as if the documents referred to in the notice had been fully set out in the pleadings.³
2. A Notice to Produce under Rule 21.10(1)(a) requires the production of a document or thing “referred to” in an affidavit or pleading. Thus, if it is described or referred to in a general manner or as part of an identified class of documents then this rule is satisfied.⁴ This is, however, subject to there being a direct allusion to the document (or thing) being sought in the affidavit or relevant pleading itself, as distinct from its effect or the information it contains.⁵
3. A reference to a document by inference is insufficient (as it would require the court to enter into a process of conjecture and inference as to whether the document or class of documents ever existed).⁶
4. By way of example, a reference to the receipt of “legal and financial advice” in a Defence, without more, does not mean that the advice was necessarily in writing, and therefore, does not means that the reference is to a document that can be produced.⁷ In similar fashion, a reference to being “advised” by solicitors in an Affidavit is not sufficient for the purposes of requiring production under Rule 21.10(1)(a) and is liable to be set aside.⁸

Rule 21.10(1)(b)

1. A Notice to Produce under Rule 21.10(1)(b) requires the production of a “specific document or thing” that is “clearly identified”. The references to these two requirements mean the document or thing sought must be “identified, and not merely identifiable”, and cannot call for classes of documents. Accordingly, a valid Notice to Produce served under this limb would include “a letter of a given date written by X to Y, or the minutes of a meeting of directors of Z held on a given date. A notice relating to all letters written by X to Y in 2008 or the minutes of all meetings of the directors of Z Ltd held in 2008 would not be permitted.”⁹
2. This is, of course, subject to the documents or things sought being relevant to a fact in issue.¹⁰

Rule 34.1

1. A Notice to Produce under Rule 34.1 is similar to subpoena under Rule 33 in relation to a non-party.¹¹
2. Rule 34.1 does not contain the words “clearly identified”, so it is sufficient to identify the document or things if one can “cut the document out from the universe of documents by some description or specification.”¹²
3. A Notice under Rule 34.1 seeking any documents relating to a particular subject matter in a person’s possession or power is not permissible.¹³
4. The recipient of a Notice under Rule 34.1 must not be put into a position to have to judge the legal effect of a document or its capacity to prove something (such as requiring a document that provides that X was in Sydney at any time on 1 January 2009).¹⁴
5. The description used in the Notice under Rule 34.1 (and likewise for any subpoena), is not to be read down or construed in the context of the case but as the recipient of the Notice finds it, complying faithfully with it regardless of views as to its intended scope and capacity.¹⁵

Given the above, in addition to complying with the other rules in relation to Notices to Produce, careful and due consideration should be given to which instrument to use to gather the information sought and achieve the purposes of the issuing party.