169Failure to comply with requests

169 Failure to comply with requests (1) If a party has, without reasonable cause, failed to comply with a request mentioned in section 168, the court may, on application, make 1 or more of the following orders: (a) an order directing the party to comply with the request; (b) an order that the party produce a stated document or thing, or call as a witness a stated person, as mentioned in section 166 (Meaning of request—div 4.6.1); (c) an order that the evidence in relation to which the request was made is not to be admitted in evidence; (d) an order in relation to adjournment or costs that is just. (2) If the party had, within a reasonable time after receiving the request, told the other party that it refuses to comply with the request, any application under subsection (1) by the other party must be made within a reasonable time after being told about the refusal. (3) The court may, on application, direct that evidence in relation to which a request was made must not be admitted in evidence if an order made by it under subsection (1) (a) or (b) is not complied with. (4) Without limiting the circumstances that may constitute reasonable cause for a party to fail to comply with a request, it is reasonable cause to fail to comply with a request if— (a) the document or thing to be produced is not available to the party; or (b) the existence and contents of the document are not in issue in the proceeding in which evidence of the document is proposed to be presented; or (c) the person to be called as a witness is not available. (5) Without limiting the matters that the court may take into account in relation to the exercise of a power under subsection (1), it must take into account— (a) the importance in the proceeding of the evidence in relation to which the request was made; and (b) whether there is likely to be a dispute about the matter to which the evidence relates; and (c) whether there is a reasonable doubt as to the authenticity or accuracy of the evidence that is, or the document the contents of which are, sought to be proved; and (d) whether there is a reasonable doubt as to the authenticity of the document or thing that is sought to be tendered; and (e) if the request relates to evidence of a previous representation— whether there is a reasonable doubt as to the accuracy of the representation or of the evidence on which it was based; and (f) for a request mentioned in section 166, definition of request, paragraph (g)—whether someone else is available to give evidence about the conviction or the facts that were in issue in the proceeding in which the conviction was obtained; and (g) whether compliance with the request would involve undue expense or delay or would not be reasonably practicable; and (h) the nature of the proceeding. Note The dictionary, pt 2, s 5 is about the availability of documents and things and pt 2, s 4 is about the availability of people. Division 4.6.2 Proof of certain matters by affidavits or written statements Division 4.6.2 Proof of certain matters by affidavits or written statements 170 Evidence relating to certain matters (1) Evidence of a fact that is, because of a provision of this Act mentioned in table 170, to be proved in relation to a document or thing may be given by a person permitted under section 171 to give the evidence. Table 170 column 1 item column 2 provisions of this Act column 3 subject matter 1 section 48 proof of contents of documents 2 section 63, section 64 and section 65 hearsay exceptions for first-hand hearsay 3 section 69 hearsay exception for business records 4 section 70 hearsay exception for tags, labels and other writing 5 section 71 hearsay exception for electronic communications 6 the provisions of part 4.3 facilitation of proof Note The Commonwealth Act, s 170, table includes a reference to the Commonwealth Act, s 182 (Commonwealth records). (2) Evidence may be given by affidavit or, if the evidence relates to a public document, by a written statement. Proof of certain matters by affidavits or written statements Division 4.6.2