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Setting Aside a Notice to Produce – Patonga Beach Holdings


Most notices to produce served on one party by another in litigation are issued pursuant to rule 21.10 of the NSW Uniform Civil Procedure Rules. This distinction is important, as that rule is much narrower in its application than the rule that applies to a notice requiring production to court, which should be issued under rule 34.1.


If you are in the common situation of an opponent fishing around for information to which you say they are not entitled, you always have the standard avenues of resistance at your disposal: relevance, fishing, oppression and privilege. However, these arguments often have grey areas on which your opponent can rely in pressing for your client to either provide access to the documents or put on an application to set the notice aside. Often, the expense and inconvenience of the latter course is one your client would prefer to avoid.


An examination of the words of rule 21.10 show that in fact, a notice to produce issued under it should be quite specific about what is being sought. It isn’t permissible to ask for documents which fall into a broad category or that were created within a specified period or range of dates, even if those documents might otherwise appear relevant.


The test is considerably narrower than that, as Barrett J’s decision in Patonga confirms:


“[11] 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 described 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.


Next time you’re served with a notice to produce that your client wishes to resist, you might well be able to have your opponent abandon it with a firm letter inclusive of a reference to Patonga in support of your position.


Of course, this doesn’t stop them from having it re-issued under rule 34.1 but at least you can argue against it on the return date, rather than having to file a notice of motion and supporting affidavit to set it aside as you would have to do in response to a rule 21.10 notice.


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