JKB Holdings Pty Limited v Alejandro De La Vega & Anor [2011] NSWSC 1635

JKB Holdings Pty Limited v Alejandro De La Vega & Anor [2011] NSWSC 1635

The objections to the notice to produce were substantially without merit. Paragraph 1 sought documents relevant to a fact in issue and was supportable under UCPR r 21.10(1)(b). Paragraphs 2 and 3 were permissible because the notice effectively allowed production of hard and electronic copies instead of requiring inspection of the computers themselves. The privilege objection to paragraph 4 failed because the privilege had been waived by forensic deployment of the existence and substance of the advice. Further computer inspection orders were not warranted on the evidence, but the existing orders were varied and continued.

Jurisdiction
Australia
Judgment Date
21 December 2011
Procedural Posture
Notice of Motion in Equity Division Proceedings / Application for Joinder, Leave to Amend, Production Under Notice to Produce, and Computer Inspection Orders
Outcome
Order for production made; joinder and leave to amend granted by consent; computer inspection orders varied; no order as to the costs of the day and motion; plaintiff ordered to pay defendants' costs occasioned and thrown away by the amendment of the statement of claim.
Legal Topics
['notices to Produce' 'production of Documents' 'ucpr R 21.10' 'privilege Waiver' 'joinder of Parties' 'amendment of Pleadings' 'computer Forensic Inspection' 'costs']
['practice and Procedure' 'civil Procedure' 'evidence'] ['notices to Produce' 'production of Documents' 'ucpr R 21.10' 'privilege Waiver' 'joinder of Parties' 'amendment of Pleadings' 'computer Forensic Inspection' 'costs']

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Procedural Posture

Notice of Motion in Equity Division Proceedings / Application for Joinder, Leave to Amend, Production Under Notice to Produce, and Computer Inspection Orders

Legal Issues

  1. 1 ['Whether the plaintiffs should have leave to join Jason Mark Schwede and Karen Elizabeth Schwede and further amend the statement of claim.' 'Whether documents sought in paragraphs 1, 2, 3 and 4 of the notice to produce dated 29 November 2011 should be produced.' 'Whether UCPR r 21.10 requires a document specified in a notice to produce to be referred to in an originating process, pleading, affidavit or statement.' 'Whether privilege over the advice referred to in paragraph 5 of the affidavit of the defendants sworn 18 March 2011 had been waived.' 'Whether further orders should be made concerning computer inspection beyond variation of the existing orders.' 'What costs orders should be made on the motion.']

Ratio Decidendi

The objections to the notice to produce were substantially without merit. Paragraph 1 sought documents relevant to a fact in issue and was supportable under UCPR r 21.10(1)(b). Paragraphs 2 and 3 were permissible because the notice effectively allowed production of hard and electronic copies instead of requiring inspection of the computers themselves. The privilege objection to paragraph 4 failed because the privilege had been waived by forensic deployment of the existence and substance of the advice. Further computer inspection orders were not warranted on the evidence, but the existing orders were varied and continued.

Court Disposition

Order for production made; joinder and leave to amend granted by consent; computer inspection orders varied; no order as to the costs of the day and motion; plaintiff ordered to pay defendants' costs occasioned and thrown away by the amendment of the statement of claim.

Orders

  • ['Jason Mark Schwede and Karen Elizabeth Schwede be joined as second and third plaintiff respectively.' 'The plaintiffs have leave to further amend their statement of claim by filing and serving a further amended statement of claim in the form of exhibit KES-1 to the affidavit of Karen Elizabeth Schwede sworn 23...