35. Effect of calling for production of documents

35. Effect of calling for production of documents

(1) A party is not to be required to tender a document only because the party, whether under this Act or otherwise-

(a) called for the document to be produced to the party; or

(b) inspected it when it was so produced.

(2) The party who produces a document so called for is not entitled to tender it only because the party to whom it was produced, or who inspected it, fails to tender it.

The Explanatory Memorandum explains the purpose of s 35,

[The section] provides that a party who calls for another party's document is not automatically required to tender it. Similarly, the party who produces the document is not automatically entitled to tender it if the calling party does not tender it.

This clause abolishes the rule in Walker v Walker (1937) 57 CLR 630. Under that rule, the party called on to produce a document may require the party who called for and inspected the document to then tender the document. This means that a document that may otherwise be inadmissible could be admitted under this rule. This clause removes the automatic right of either party to tender a document or require the other party to tender a document.

The clause does not, however, preclude the tendering and admission of such a document if it is otherwise relevant and admissible.

It should be noted that while s 35 is intended to abolish the principle in Walker v Walker, it refers only to the calling for documents. This section may not overturn the common law position of cross-examination on an otherwise inadmissible document described in R v Vella [2006] VSCA 248.