Have you been issued with a Notice to Produce or a Notice to Produce to Court?

A Notice to Produce is a procedure by which a party to proceedings may serve another party with a notice requiring the production of specified documents, or things. These notices generally have the same effect as a Subpoena to Produce for Inspection but is only issued to a party in the proceedings as opposed to a non-party (not a plaintiff or defendant in the proceedings).

In NSW, there are two types of Notices of Produce – a Notice to Produce for inspection by the parties, and a Notice to Produce to Court. Both are governed by the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). In light of the differences between the Notices, detailed below, parties should carefully consider which Notice to Produce is appropriate in the circumstances (and comply with the UCPR) to ensure that the Notice to Produce is not set aside and that the particular information sought is what is produced.

21.10 Notice to produce for inspection by parties

(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.

(2) A notice to produce may specify a time for production of all or any of the documents or things required to be produced.

34.1 Notice to produce to court

(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.

(2) The other party must comply with a notice to produce--

(a) by producing the notice or a copy of it, and the document or thing, to the court, or to the examiner authorised to take evidence in the proceeding as permitted by the court, at the date, time and place specified for production, or

(b) by delivering or sending the notice or a copy of it, and the document or thing, to the registrar at the address specified for the purpose in the notice, so that they are received not less than 2 clear days before the date specified in the notice for production.

The obvious difference between the notices is that Notice to Produce for inspection by parties requires that the document/s be made available for inspection (although it is often the case that copies of the document/s are provided to the issuing party as a matter of convenience), whereas a Notice to Produce to Court requires that the documents be produced to the Court directly in a similar manner to a Subpoena for Production.

The more subtle difference between the two however is that a Notice to Produce for inspection requires production of a document that is specified in the pleadings or evidence, and “any other specific document or thing that is clearly identified and is relevant to a fact in issue.” That is to say there is a requirement that the document be clearly identified (i.e with some degree of specificity rather than just general description of a class of documents or merely infer the existence of a document) and is also relevant to a fact in issue. The same criteria is not specified in relation to a Notice to Produce to Court.

For instance, it would be appropriate for a Notice to Produce for inspection to seek “Minutes of Meeting of Building Company Pty Ltd dated 12 June 2021” rather than “All Minutes of Meeting of Building Company Pty Ltd.” This is provided that the Minutes of Meeting of Building Company Pty Ltd on 12 June 2021 was relevant to a fact in issue in the proceedings. However, for the purpose of a Notice to Produce to Court it is permissible to describe documents sought more broadly.

For further information on Notices to Produce, please contact our team.

Authors: Nicholas Kallipolitis & Mario Rashid-Ring