Notice to produce a document in a pleading or affidavit (Form 39)

Rule 20.31 of the Federal Court Rules 2011 lets a party serve on another party a notice to produce, in accordance with Form 39, for inspection of any document mentioned in a pleading or affidavit that the other party has filed. The party served must, within 4 days after service, serve a notice that either gives a time (within 7 days after service) and a place for inspection, says the document is not in its control and, as far as it knows, where it is and who controls it, or claims privilege and states the grounds (r 20.31(2)). If it does not do one of the first two things, or claims privilege, the party who served the notice may apply to the Court for an order for production for inspection (r 20.31(3)).

When you need it

• The other side's statement of claim, defence or affidavit refers to a document (a contract, letter, report or email) and you want to inspect it.
• You want to see the document before discovery, or in a case where discovery has not been ordered.
• Not for documents in the other side's list of documents: for those, rule 20.32 lets you apply for an order for production.
• Not for producing documents at trial: that is the notice to produce in Form 61 (r 30.28).

1. 1

   Copy the heading of the proceeding

   Use the file number, District Registry, Division and party names from the originating application, adding 'and another' or 'and others' where there are several parties on a side.

2. 2

   Address it to the party who filed the document

   After 'To the', insert that party's role, such as the Applicant. After 'The', insert your own role, such as the Respondent.

3. 3

   Identify the pleading or affidavit

   Name the filed document that mentions what you want to inspect, for example the statement of claim filed on a given date, or the affidavit of a named deponent sworn on a given date, with a paragraph reference if you can.

4. 4

   Describe each document

   Describe each document clearly enough that there is no doubt which one you mean, using the words used in the pleading or affidavit where possible.

5. 5

   Date and sign

   Insert the date and the name and capacity of the signer, such as Respondent or Lawyer for the Respondent.

• Rule 20.31 provides for the notice to be served on the other party. Serve it at that party's address for service and keep proof of the date of service.
• The party served has 4 days after service to serve its response notice, and any inspection time it offers must be within 7 days after service (r 20.31(2)).
• If the response says the document is not in its control, it must also say, to the best of its knowledge, where the document is and who controls it. Control means possession, custody or power (Dictionary).
• If the party does not comply or claims privilege, you may apply to the Court for an order for production for inspection (r 20.31(3)). That is done by interlocutory application.

• Diary the 4-day and 7-day periods as soon as you serve the notice, so a failure to respond can be raised promptly.
• A privilege claim must state its grounds (r 20.31(2)(c)). If the grounds are not given, that is a point to raise when applying for an order.
• Rule 20.34 deals with copying documents produced for inspection, so ask about copies when you arrange the inspection.