EVIDENCE ACT 1995 - SECT 169 Failure or refusal to comply with requests

EVIDENCE ACT 1995 - SECT 169

  (1)   If the party has, without reasonable cause, failed or refused to comply with a request, the court may, on application, make one 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 specified document or thing, or call as a witness a specified person, as mentioned in section   166;

  (c)   an order that the evidence in relation to which the request was made is not to be admitted in evidence;

  (d)   such order with respect to adjournment or costs as is just.              

  (2)   If the party had, within a reasonable time after receiving the request, informed 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 so informed.

  (3)   The court may, on application, direct that evidence in relation to which a request was made is not to be admitted in evidence if an order made by it under paragraph   ( 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 adduced; 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 is to 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)   in the case of a request referred to in paragraph   ( g) of the definition of request in section   166--whether another person 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:   Clause   5 of Part   2 of the Dictionary is about the availability of documents and things, and clause   4 of Part   2 of the Dictionary is about the availability of persons.

Note:   Section   182 gives this Division a wider application in relation to Commonwealth records and certain Commonwealth documents.