Notices to Produce: Strategic uses in New South Wales

A Notice to Produce is a tool for litigants to obtain documents, governed by the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). A Notice to Produce allows one party to court proceedings, to serve on another party involved in the same court proceedings, a notice requiring the production of specified documents, or things, as a way of obtaining evidence for use in those proceedings. Unlike a Subpoena to Produce, a Notice to Produce cannot be served on third parties.

A Notice to Produce can take one of two forms in New South Wales:

1. Notice to Produce for Inspection: rule 21.10 UCPR; and
2. Notice to Produce to Court: rule 34.1 UCPR.

It is important to understand the differences between the two notices, to ensure the appropriate notice is used and that the documents and things identified in the notice are produced. This can reduce the risk of objection and delays, and a notice being set aside.

An obvious procedural difference between the notices, is that a Notice to Produce for Inspection requires that a document or thing be made available for inspection directly to the issuing party within a ‘reasonable time’, presumed to be 14 days unless one party establishes the contrary: rule 21.11(2) UCPR. A Notice to Produce to Court, however, can require production to the Court or examiner at any hearing in the proceeding or before any examiner, at any time fixed by the Court for the return of subpoenas or by leave of the Court at some other specified time, in a similar manner to a Subpoena for Production: rule 34.1(1) UCPR.

An important distinction between the two notices, is that a Notice to Produce for Inspection is much narrower in its application than a Notice to Produce to Court. Whilst a Notice to Produce to Court is akin to a Subpoena for Production to a non-party,[1] a Notice to Produce for Inspection can only require production of:

• documents or things referred to in an originating process, pleading, affidavit or witness statement filed or served by the party issued with the notice: rule 21.10(1)(a) UCPR; and
• any other “specific document or thing” that is “clearly identified” in the notice and is “relevant to a fact in issue”: rule 21.10(1)(b) UCPR.

It should also be noted that a Notice to Produce for Inspection is further limited in personal injury proceedings under rule 21.12 UCPR. The limitation provides that a party does not need to comply with a Notice to Produce for Inspection in personal injury proceedings (other than in relation to documents referred to in any originating process, pleading, affidavit or witness statement filed or served by that party), unless the court orders compliance for ‘special reasons’.

Therefore, a Notice to Produce for Inspection has the intention of giving the issuing party the same advantage as if the documents referred to in the notice had been fully set out in the pleadings or documents. It must also be very specific about what is being sought, and cannot ask for documents which fall into a broad category or that were created within a specified period of dates, notwithstanding that those documents might be relevant to a fact in issue. Is The advantage of a Notice to Produce to Court, is that it is permissible to describe documents more broadly.

The narrow scope of a Notice to Produce for Inspection was described by Barrett J in Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869, at [11] in the following terms:

“It is thus clear that, in rule 21.10, the combination of “specific document” and “clearly identified” means that a notice can relate only to a document describe by means of characteristics peculiar to itself, such as a letter of a given date written by X to Y, or the minutes of a meeting of directors of Z Limited 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 Limited held in 2008 would not be permitted because referring to a class of document as distinct from what Harrison AsJ in Douglas Corporation v Currico Nominees [2007] NSWSC 113 termed “the individual document sought” is not a permissible course.”

[1] Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 at 12.