85 Degrees Coffee Australia Pty Ltd v Ji [2020] NSWDC 708

85 Degrees Coffee Australia Pty Ltd v Ji [2020] NSWDC 708

Compliance with categories 3 and 4 was excused because those categories sought to use r 21.10 to investigate or disprove the merits of an apparently bona fide and reasonably arguable proposed defence, which was unnecessary for the application to set aside default judgment; category 4 was also vague and amounted to an impermissible demand for discovery. Compliance with category 8 was excused because it was also an impermissible form of discovery and was not shown to be materially relevant to whether Ms Ji's delay in filing a defence was satisfactorily explained. Because the production requirements were invalid or compliance was excused, it was unnecessary to determine privilege or issue...

Jurisdiction
Australia
Judgment Date
13 November 2020
Procedural Posture
Civil Proceeding Concerning Default Judgment and Notices to Produce / Determination of 85 Degrees' Motion to Compel Production and Ms Ji's Motion to Be Excused From Producing Documents in Categories 3, 4 and 8 of a Notice to Produce, Before Hearing of Ms Ji's Application to Set Aside Default Judgment
Outcome
Ms Ji was excused from producing documents in categories 3, 4 and 8 of the Notice to Produce; 85 Degrees' motion was dismissed; Ms Ji's application to set aside default judgment was adjourned with directions; 85 Degrees was ordered to pay Ms Ji's costs of the two motions.
Legal Topics
['default Judgment' 'notice to Produce' 'production of Documents' 'client Legal Privilege' 'issue Waiver' 'application to Set Aside Default Judgment']
['practice and Procedure' 'civil Procedure' 'evidence'] ['default Judgment' 'notice to Produce' 'production of Documents' 'client Legal Privilege' 'issue Waiver' 'application to Set Aside Default Judgment']

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Procedural Posture

Civil Proceeding Concerning Default Judgment and Notices to Produce / Determination of 85 Degrees' Motion to Compel Production and Ms Ji's Motion to Be Excused From Producing Documents in Categories 3, 4 and 8 of a Notice to Produce, Before Hearing of Ms Ji's Application to Set Aside Default Judgment

Legal Issues

  1. 1 ["Whether categories 3, 4 and 8 of 85 Degrees' Notice to Produce were valid compulsory production requirements under r 21.10 of the Uniform Civil Procedure Rules 2005 (NSW)." 'Whether Ms Ji should be excused under r 21.11(1) from producing documents responsive to categories 3, 4 and 8.' "Whether the documents sought were necessary or relevant to the determination of Ms Ji's application to set aside the default judgment." 'Whether it was necessary to determine claims of client legal privilege or issue waiver.']

Ratio Decidendi

Compliance with categories 3 and 4 was excused because those categories sought to use r 21.10 to investigate or disprove the merits of an apparently bona fide and reasonably arguable proposed defence, which was unnecessary for the application to set aside default judgment; category 4 was also vague and amounted to an impermissible demand for discovery. Compliance with category 8 was excused because it was also an impermissible form of discovery and was not shown to be materially relevant to whether Ms Ji's delay in filing a defence was satisfactorily explained. Because the production requirements were invalid or compliance was excused, it was unnecessary to determine privilege or issue...

Court Disposition

Ms Ji was excused from producing documents in categories 3, 4 and 8 of the Notice to Produce; 85 Degrees' motion was dismissed; Ms Ji's application to set aside default judgment was adjourned with directions; 85 Degrees was ordered to pay Ms Ji's costs of the two motions.

Orders

  • ["Pursuant to r 21.11(1)(a), and to the extent necessary, Ms Ji is excused from producing documents in response to categories 3, 4 & 8 of 85 Degrees' Notice to Produce dated 21 August 2020." "85 Degrees' Notice of Motion dated 9 September 2020 is dismissed." 'The Court will hear the parties on further directions in...