Documents held by someone who is not a party cannot be obtained by discovery, which operates only between parties. Order 11 Division 1 of the National Court Rules 1983 supplies the answer.
Rules 1 and 2
“summons for production” means an order in writing requiring the person named to attend as directed by the order and produce a document or thing for the purpose of evidence.
Rule 2 — the Court may issue a summons for production, or a summons both to give evidence and for production, in Form 42, 43, 44, 45 or 46, or in such other form as the Court may direct.
The Rule is not confined to paper. A thing — a damaged component, a sample, a device — may be summoned for production just as a document may.
Note also Order 1 Rule 6, which defines “document” as including any record of information, whether legible by a person or not. Electronic records are within it.
Rule 4 — the important concession
(1) Where the person named in a summons for production, being a summons requiring attendance before the Court or an officer of the Court, is not a party, the summons shall, unless the Court otherwise orders, permit him to produce the document or thing to the Registrar or his delegate at his office at the place stated in the summons not later than the day before the first date on which his attendance is required, instead of attending and producing as required.
(2) Where a document or thing is so produced, the officer shall (a) give a receipt to the person producing it; and (b) produce the document or thing as the nature of the case requires or as the Court may direct.
(3) This Rule does not apply to so much of a summons as requires the person named to attend to give evidence.
Sub-rule (1) says the summons shall permit delivery to the Registrar — unless the Court orders otherwise. A summons to a non-party drafted without that permission does not comply with the Rule.
This matters practically. A bank, hospital or government department served with a summons for production should not have to send an officer to sit in Court all day holding a file. They deliver the documents to the Registry the day before and get a receipt.
Sub-rule (3) marks the limit: the concession applies to production only. Where the same summons also requires the person to give evidence, they must still attend for that purpose.
Identify the documents
- Describe the documents so they can be found. “All statements for account number 1234567 for the period 1 January 2024 to 31 December 2024” can be complied with; “all documents relating to the plaintiff” cannot.
- Address it to the right person. For a corporation, to the proper officer, and check the register.
- Include the Rule 4 permission where the person is not a party, naming the Registry and the place.
- State the date of attendance clearly, since the production date is the day before it.
- Pay conduct money. Under Rule 3, a summons shall not require production on any day unless a sum sufficient to meet the person’s reasonable expenses of complying is paid or tendered at the time of service or a reasonable time before.
Where the documents are held by a party, the proper routes are a notice for discovery, an order under Order 9 Rule 5 or 7, or a notice to produce under Order 9 Rule 9.
Using a summons against a party to obtain what discovery would not give — or to avoid the protections in Order 9 Rule 3 against unnecessary discovery and the Rule 14 requirement of necessity — invites an application under Rule 7 to set the summons aside.
Rule 7 and privilege
(1) The Court may, on motion by the person named in a summons, set aside the summons wholly or in part.
(2) Notice of the motion must be filed and served on the party on whose request the summons was issued.
The application belongs to the person named. A third party who considers the documents privileged, confidential, or the summons oppressive may move to set it aside — wholly or in part.
Where privilege is asserted over documents produced to the Registry, the Court has the machinery to resolve it: under Order 9 Rule 13, where a claim of privilege or an objection on any other ground is made, the Court may inspect the document for the purpose of deciding the validity of the claim or objection.
Order 9 Rule 16 separately preserves any rule of law requiring a document to be withheld as injurious to the public interest — relevant where a government department is summoned.
Custody and inspection
The officer to whom documents are produced shall produce the document or thing as the nature of the case requires or as the Court may direct.
Documents delivered to the Registry are produced to the Court, not to the party who issued the summons. Whether, and on what terms, the parties may inspect them is a matter for the Court — particularly where the producing party has raised confidentiality or privilege.
So do not assume that issuing a summons will put the documents in your hands before trial. Ask the Court for leave to inspect, and be prepared to deal with any objection under Order 9 Rule 13.
Once a document is properly produced and admitted, Order 9 Rule 11 reflects the general position that a party to whom a document is produced for inspection may make copies of it.
Issue of witness summonses is a checklist item at the mention, and the Court may issue summonses for witnesses at the pre-trial conference. Where documents must come from a bank, a hospital or a department, allow time: the summons must be issued, served with conduct money, and complied with by the day before the hearing.
Sources
- National Court Rules 1983 — O 1 r 6; O 9 rr 3, 5, 7, 9, 11, 13, 14, 16; O 10 r 9A (Listings Rules 2005); O 11 rr 1–7; Forms 42–46
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.