Evidence Act 2011

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:

an order directing the party to comply with the request;

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);

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

an order in relation to adjournment or costs that is just.

Fail includes refuse (see Legislation Act, dict, pt 1).

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.

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.

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—

the document or thing to be produced is not available to the party; or

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

the person to be called as a witness is not available.

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—

the importance in the proceeding of the evidence in relation to which the request was made; and

whether there is likely to be a dispute about the matter to which the evidence relates; and

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

whether there is a reasonable doubt as to the authenticity of the document or thing that is sought to be tendered; and

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

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

whether compliance with the request would involve undue expense or delay or would not be reasonably practicable; and

the nature of the proceeding.

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.