3 There are important and fundamental distinctions between a notice to produce under r 21.10 and a notice to produce under r 34.1. Rule 21.10, appearing as it does in Pt 21 of the Rules, is a process of discovery. A notice under r 34.1, appearing in Pt 34 entitled Notice to Produce to Court and following notices to produce at the hearing including opinions is a process akin to a subpoena for production. I endeavoured to explain the differences between the process of discovery and that of a subpoena for production in A Pty Ltd v Z [2007] NSWSC 899. One of the critical differences is that the touchstone of discovery is the concept of relevance to a fact in issue in the proceedings, whereas subpoenas for production are not necessarily limited to documents relevant to a fact in issue, but may extend to documents relevant to credit.
4 Part 21 r 10 authorises service of a notice to produce, in respect of documents referred to in originating processes, pleadings, affidavits and witness statements, and "any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue". The limitations with the requirement that there be a "specific document" and that it be "clearly identified" were explained by Young CJ in Eq in Penrith Rugby League Club Ltd v Brown [2004] NSWSC 1182. As his Honour explained, the rule was not intended to subject a recipient to any kind of general discovery obligation. The words "clearly identified" mean that there must be something more specific than a matter which can be ascertained by the ordinary processes of construction and employing extrinsic evidence; it must be pointed out in a manner distinct and free from confusion. The requirement for specificity connotes something that is identified, and not merely identifiable. His Honour upheld a submission that it would be insufficient to identify a box containing a number of unspecified documents, or a lever arch folder containing a number of unspecified documents; identification of the specific documents was required.
5 In my view, this notice does not clearly identify specific documents, but calls for classes of documents. It was not the intent of this rule to enable notices to be given requiring production of classes of identifiable documents, as distinct from specific identified documents. Accordingly, in my view, this notice is not a valid exercise of the power to serve a notice to produce under r 21.10, and I would set it aside on that basis.
6 However, counsel for the defendant has indicated that, if I were to reach that view, he would seek an order for discovery of documents in the same classes. Counsel for the plaintiff has submitted that the notice should be set aside on the alternative basis that the documents for which it calls do not relate to a fact in issue in the proceedings, and that submission, if sustained, would be an answer to any such application for discovery.
7 Where the sustainability on grounds of relevance of a notice to produce is called into question, the issuer bears at least a forensic onus of identifying how the documents called for by the notice are said to relate to a fact in issue in the case. A document relates to a fact in issue if it bears on the probability of that fact.
8 It was first submitted on behalf of the defendant that the documents were relevant to credit, in that they showed that the defendant had not been full and frank with the plaintiff about his financial position. Documents which relate to credit do not, for the purposes of discovery - including for the purposes of r 21.10 - relate to a fact in issue in the proceedings. Accordingly, that is not a basis on which the notice could be sustained.
9 It is next said that the documents are relevant to show that the plaintiff had no other option but to enter into an agreement with the defendant of the type for which the defendant contends. In particular, it is said that the documents relate to the fact alleged in paragraph 19 of the amended cross-claim, which is denied by the plaintiff/cross-defendant, that:
19. At the request of the cross-defendant the cross-claimant agreed to proceed with the purchase of the property at Kangaroo Point.
10 However, when one examines the evidence on this topic, there is not a large difference between the parties' position (except as to certain of the words used, some of which may be important). However, what does not appear substantially to be in issue is that the plaintiff was encountering enormous financial pressures, which were deteriorating, and had explored other options, none of which could be brought to fruition. It does not seem to be a fact in issue, in light of the pleadings and the affidavit evidence, that the plaintiff was in a desperate financial position. I do not see how the material called for by the Notice to Produce - which comprises, in substance, four years of his financial records, intended to show what was his financial position throughout those four years - will increase or reduce the likelihood of the allegation in paragraph 19 of the cross-claim.
11 The defendant has also referred to a conversation asserted by the defendant in paragraph 21 of the defendant's affidavit of 15 August 2007 in which the plaintiff is said to have made disclosures to the defendant of his financial position. Although it is correct that the plaintiff does not admit that conversation took place on the day when the defendant says it did, the plaintiff does admit that a conversation to substantially the effect alleged by the defendant took place. In those circumstances, I do not see how the plaintiff's financial material for four years is going to influence resolution of the only remaining issue on that point, which is when the conversation took place, as distinct from the content of the conversation.
12 I would not exclude the possibility that the plaintiff's financial circumstances on a particular date and at a particular time might somehow relate to a fact in issue in the proceedings, but I am quite satisfied that his financial position over a period of four years as called for in this notice does not.
13 I order that the Notice to Produce dated 12 October 2007 be set aside. I order that the defendant pay the plaintiff's costs of the motion.
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