Preserve the refusal, make it the record

Preserve the refusal

A refusal can take several forms. Each is useful, and each is preserved the same way.

• An express refusal. "Our client declines to produce the documents." The clearest form.
• A refusal with reasons. "The documents are not relevant" or "the request is oppressive". These reasons are now on the record and can be addressed directly. Some refusals are justified: privilege, irrelevance, the documents not being in their possession, or a request that is disproportionate in scope.
• A partial answer. Some documents, or a narrower category, with no explanation of the rest. Note exactly what was and was not provided.
• Silence. The deadline passed. Your own short note of that fact, sent to the other side the next working day, is the record that no response was received. Silence is not an admission and does not entitle you to anything.

Save the reply exactly as it arrived. Do not annotate the original. Use the document safety routine to keep the original untouched and to make a clean copy for any later use. Name the files so the pair sorts together, following the file-naming guide:

Add both to your correspondence log with the date, the label, and a one-line summary of what each says. Record who was copied on each message. A change in who is copied is itself information.

Turn the pair into a record

When you apply to the court, the request and the refusal are usually annexed or exhibited to an affidavit that supports the application. In NSW an annexure is attached to the affidavit; an exhibit is a separate document identified by a certificate and is not filed with the affidavit (UCPR rule 35.6). Your court's practice decides which to use. The affidavit itself is short and factual: on this date I sent this letter (exhibit 1); on this date I received this reply (exhibit 2); the documents have not been provided. It is your account of what happened, in your own words.

Keep the exhibits tidy so the court can follow them without help:

• Each document separately identified, numbered in the order events happened, in whatever form your court uses
• Each exhibit is a complete copy, including the heading, date and signature block
• Exhibit numbering follows your court's rules and practice notes (in NSW, rule 35.6 on annexures and exhibits), and is used consistently everywhere you refer to the document; whether a document is annexed or exhibited on a motion differs between courts
• Where the reply quotes or attaches something, include the whole of it, not the convenient part
• No underlining, highlighting or margin notes on an exhibit

A specific, polite request and a bare refusal let the reader see exactly what happened. Whether the court orders production still depends on relevance, the rules and the refusal's reasons; the letters show you asked properly, no more.

The formal routes sit behind the letter

A request letter is not itself a court process. It is the step before one. In NSW civil proceedings, documents can be obtained by discovery, by a notice to produce to another party (rule 21.10), and from non-parties by subpoena (Part 33). The Uniform Civil Procedure Rules 2005 (NSW), Part 21 deal with discovery and notices to produce between parties; the rules and practice notes for your court say when each is available and what form it takes. Some courts limit discovery in some lists, and orders may require leave. The letter shows the court you tried the simplest route first; the application asks for the formal one. Where the rules provide a notice to produce, a request letter is not a substitute for it.

If you are unsure which formal route applies, that is a good question for a free legal help service or a duty solicitor before you file.

Common mistakes

• Asking for everything. A request for "all documents relating to the contract" invites a refusal on the ground that it is too wide, and the refusal will look reasonable. Narrow the category until it is obviously reasonable.
• Arguing in the request. Every sentence of argument is a sentence the other side can answer instead of answering the request.
• No deadline, or a vague one. "As soon as possible" is not a deadline. "By 4:00pm on 25 September 2026" is.
• Chasing early or filing early without reason. Both undercut the record; a limitation date, an urgent need to preserve evidence, or a court direction is a reason.
• Losing the original reply. A forwarded copy with your annotations is not the same document.
• Mixing open and without-prejudice material. Keep them in separate folders from the start.
• Describing the refusal instead of quoting it. "They stonewalled me" is opinion. "By letter dated 25 September 2026, the plaintiff declined to produce the documents" is a fact the exhibit proves.

From Jordan's case file

Checklist

• Letter labelled OPEN, with the matter reference
• Each item requested described precisely enough for a stranger to identify it
• One or two neutral sentences on relevance
• A deadline with a time and a date
• A plain statement of what you will do if it is not met
• No argument, no adjectives, nothing from a without-prejudice exchange
• Deadline allowed to pass without chasing, unless a limitation date, preservation need or court direction requires earlier action
• Reply saved unaltered, logged, and named so the pair sorts together
• Silence recorded in a short note the next working day
• Exhibits complete, numbered in date order, unmarked
• Formal route checked against the rules and practice notes for your court