Notice to produce (Form 61)

Rule 30.28 of the Federal Court Rules 2011 lets a party serve on another party a notice, in accordance with Form 61, requiring that party to produce any document or thing in its control at a trial or hearing in the proceeding, or at a hearing before a Registrar, examiner or other person with authority to take evidence. If the notice specifies a date for production and is served 5 days or more before that date, the party served must produce the document or thing without the need for a subpoena (r 30.28(3)). If it is not produced, the party who served the notice may lead secondary evidence of its contents or nature (r 30.28(2)), and the defaulting party may be liable for costs caused by the failure.

When you need it

• You want the other party to bring original documents or physical things to the trial or a hearing, for use in evidence or cross-examination.
• You want a basis to lead secondary evidence (such as a copy) if the other party does not produce the original.
• Not for non-parties: to compel a person who is not a party, use a subpoena.
• Not for pre-trial inspection of documents mentioned in a pleading or affidavit: that is Form 39 (r 20.31).

1. 1

   Copy the heading of the proceeding

   Use the file number, District Registry, Division and party names from the originating application.

2. 2

   Address the notice

   After 'To the', insert the role of the party who must produce, and after 'The', your own role.

3. 3

   Say when and where production is required

   Specify the occasion, such as at the trial or hearing in the proceeding, or before the Court, a Registrar or an examiner. If you want production on a set date, state it, because the 5-day rule in r 30.28(3) depends on a date being specified.

4. 4

   Describe the documents or things

   List each document or thing precisely, by type, date, author, parties or other identifying details, so the other party knows exactly what to bring.

5. 5

   Date, sign and keep the note

   Insert the date and the signer's name and capacity. Leave the printed Note, which explains the 5-day rule, secondary evidence and costs.

• Rule 30.28 provides for the notice to be served on the other party. Serve it at the party's address for service.
• Serve it at least 5 days before the date specified for production. Served in time, it obliges production without a subpoena (r 30.28(3)).
• Keep proof of the date and method of service. You may need it if the documents are not produced and you seek to lead secondary evidence or costs.

• Count the 5 days carefully and serve early, particularly where the hearing date is close.
• A notice to produce only reaches documents and things in the other party's control. For anything held by someone else, issue a subpoena.
• Be specific. A vague description makes it harder to show the party failed to produce what was asked for.