From time to time, companies and individuals may receive
requests from lawyers to provide copies of confidential documents
they hold. In Queensland, this can be done in several ways: by a
solicitor's letter, by Notice of Non-Party Disclosure or by
A request for copies of documents made in correspondence from a
solicitor may not be enforceable against you, so you should
consider the circumstances before responding. For example, it might
be the correspondence suggests the lawyers are trying to find
documents which might help their client in an action against you.
As there is unlikely to be any penalty against you if you refuse to
provide your documents in these circumstances, you may choose to
decline the request on the basis of confidentiality. However, where
the request for documents is stated to be based on an entitlement
under legislation, such as workers' compensation legislation,
then you should seek independent legal advice about the request
A common procedure, which is permitted by the Queensland Court
rules (the Uniform Civil Procedure Rules), for lawyers to obtain
documents on behalf of their client from someone who is not a party
to current litigation is to serve a Notice of Non-Party Disclosure.
The Rules do not permit the party requesting the documents (called
the Applicant) to general disclosure from the non-party named in
the notice (called the Respondent), so the Notice should only
require disclosure of specific documents or a specified class of
documents, and these must be directly relevant to an allegation in
issue on the pleadings of the litigation. The Notice must provide
the Respondent with enough information to make an informed decision
whether to produce the documents or make an objection.
Unless the Respondent objects, the documents specified in the
Notice of Non-Party Disclosure which are in the Respondent's
possession or control must be produced to the Applicant within 14
days after service. It is important to keep in mind that you are
not obliged to provide documents in your possession or control that
are not specified in the Notice, and nor are you obliged to respond
to questions which might also be put to you by the person
requesting the documents. After complying with the Notice, the
Respondent is under no continuing obligation to disclose.
An objection to the Notice must be made in writing, must state
the reasons for the objection and must be served on the Applicant.
The reasons for an objection may include:
the expense or inconvenience of complying with the Notice;
the lack of relevance of the documents;
the lack of particularity with which the documents are
described in the Notice;
a claim of privilege; and
the confidential nature of the documents.
Serving an objection has the effect of staying the Notice, and
the Applicant may apply to the Court for a decision about the
objection within 7 days after it is served.
Another example of a formal request for documents is a subpoena
or witness summons, which – if valid – is a Court order
to give evidence or produce documents. A valid subpoena must be
dated, have the name of the Court that issued it and be
authenticated by the Court, either by Court seal or by signature of
a Court officer.
Despite the legal status of a subpoena, you are still entitled
to express your concerns about release of the documents and to
request the basis or the purpose of the subpoena. Although this
does not excuse you from complying with the subpoena, once you have
received a response, you may ask the Court to review the documents
you have produced to the Court, and for the judge to determine
whether certain documents can be assessed as not relevant to the
proceeding and excluded from the documentation released to the
parties to the litigation. Taking this course will result in the
Court allocating a hearing date for the objection to be heard,
which will put you to expense and inconvenience. However, depending
on the circumstances, you might consider that maintaining the
objection is worthwhile.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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