Di Ciano v Australia and New Zealand Banking Group Limited - [2022] WASC 155

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   DI CIANO -v- AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED [2022] WASC 155
CORAM:   MASTER SANDERSON
HEARD:   8 FEBRUARY 2022
DELIVERED          :   5 MAY 2022
PUBLISHED           :   5 MAY 2022
FILE NO/S:   CIV 1900 of 2020
BETWEEN:   NATASHA DI CIANO
First Plaintiff
NXT TEC. LTD
Second Plaintiff
NXT GLOBAL PTY LTD
Third Plaintiff
NXT ENTERPRISE PTY LTD
Fourth Plaintiff
EGAMI PTY LTD
Fifth Plaintiff
AND
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
First Defendant
STEVEN TALEVSKI
Second Defendant

Catchwords:

Practice and procedure - Application by second defendant to strike out statement of claim - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Representation:

Counsel:

First Plaintiff	:	E Hensler
Second Plaintiff	:	E Hensler
Third Plaintiff	:	E Hensler
Fourth Plaintiff	:	E Hensler
Fifth Plaintiff	:	E Hensler
First Defendant	:	No appearance
Second Defendant	:	WAS Keane

Solicitors:

First Plaintiff	:	Fairweather Litigation
Second Plaintiff	:	Fairweather Litigation
Third Plaintiff	:	Fairweather Litigation
Fourth Plaintiff	:	Fairweather Litigation
Fifth Plaintiff	:	Fairweather Litigation
First Defendant	:	Norton Rose Fulbright Australia
Second Defendant	:	Tottle Partners

Case(s) referred to in decision(s):

Nil

MASTER SANDERSON:

By chambers summons dated 10 November 2021 the second defendant applies for orders that the entirety of the plaintiffs' statement of claim dated 21 October 2021 against the second defendant, be struck out pursuant to O 20 r 19(1)(a) of the Rules of the Supreme Court 1971 (WA) and that the action against the second defendant be dismissed. The principles in relation to strike out applications are well known and were not in dispute in this application. It is sufficient if I say the pleading must state sufficient material facts that, however the facts be found, there is a basis for the legal conclusion contended for by the claimant.
Turning to the statement of claim, the first plaintiff is a director of each of the second through to fifth plaintiffs. At all material times since 10 August 1995 the plaintiff says she was a customer of the first defendant and held bank accounts with the first defendant. Details of those accounts are provided in sch A of the statement of claim. Each of the remaining defendants are identified in the pleading but these details are not presently relevant.
The plaintiffs plead the first defendant owed certain duties to the plaintiffs. These duties are defined as 'Bank's Duty of Confidentiality' and 'Bank's Fair Dealing Duties'. Apart from noting the first defendant, in its defence, does not admit these duties - or at least does not admit all of the elements pleaded by the plaintiffs - it is unnecessary to detail precisely the scope and ambit of the duties.
The statement of claim identifies the second defendant in par 6. That paragraph reads as follows:
Mr Talevski:
(a)is a registered financial adviser and Australian Financial Services Authorised Representative (AFS Representative No. 001238264);
(b)at all material times between around 1 December 2011 and 31 December 2013, was employed by CPS Capital Group Pty Ltd in the position of Senior Representative/Adviser;
(c)at all material times between around 2014 and until on or around 9 May 2019, was employed by the Bank in the position of Private Wealth Manager in ANZ Private Bank;
(d)in the circumstances pleaded in paragraphs 5(c) & (g) and 6(c) above, at all material times owed a duty to each of the plaintiffs as customers of the Bank to not disclose information:
(i)about the Accounts or the conduct of the Accounts; or
(ii)obtained from viewing or accessing the Accounts, the Plaintiff Information, or the Plaintiff Records,
(Mr Talevski's Duty of Confidentiality).
(e)is or was married to Ms Di Ciano's sister, Taralisa Di Ciano (Tara);
(f)is or was:
(i)a brother in law, friend and business colleague of Roberto Scali (Mr Scali);
(ii)a friend or business colleague of each of Alexander Sasha Nikolic (Mr Nikolic) and Enrico Mattiaccio (Mr E Mattiaccio), both of Gloucester & Portman Capital Pty Ltd (ABN 38 158 365 989) (Gloucester & Portman Capital); and
(iii)a friend or business colleague of Claudio Mattiaccio; and
(g)was a friend or business colleague of Corrado Cusma (Mr Cusma), who was an authorised representative of Get Smart Capital Pty Ltd (ABN 14 142 111 439) (Get Smart Capital).
By pars 7 and 8 of the statement of claim the plaintiffs plead that at no time did they seek financial or wealth management advice from the second defendant and the second defendant therefore had no reason to access, view or disclose information about bank accounts held by the plaintiffs. The plaintiffs allege the second defendant accessed and viewed their accounts. This allegation is found in par 14 of the statement of claim. The particulars to that paragraph read as follows:
Particulars
The dates and times of Mr Talevski's access to the Accounts, information about the conduct of Accounts, Plaintiff Information and Plaintiff Records are set out in Schedule B to this Statement of Claim. Save as set out in paragraph 35 below, the plaintiffs are unable to provide further details about the information accessed and viewed by Mr Talevski as, despite request, the Bank has not provided that information to the plaintiffs.
Paragraphs 16, 17 and 18 of the statement of claim plead what the statement of claim describes as 'Breaches re noteholder dispute'. It is unnecessary to detail precisely the nature of this dispute. Suffice it to say that in December of 2015, statutory demands were issued against the fourth defendant. Subsequently, winding up proceedings were brought against the fourth defendant. The dispute was resolved in the early part of 2016. The plaintiffs allege the second defendant accessed their bank accounts. The particulars to par 16(g) read as follows:
Particulars
The dates and times of Mr Talevski's access to Accounts, information about the conduct of Accounts, Plaintiff Information and Plaintiff Records are set out in Schedule B to this Statement of Claim. Save as set out in paragraph 35 below, the plaintiffs are unable to provide further details about the information accessed and viewed by Mr Talevski as, despite request, the Bank has not provided that information to the plaintiffs.
By par 17 it is alleged the second defendant passed on information in relation to the plaintiffs' bank accounts to certain individuals. It is unnecessary to detail these pleas or the particulars. However, it is worth noting that the pleading reserves to the plaintiffs the right to provide further particulars at par 17 'after discovery, interrogatories and return of subpoenas'.
Paragraphs 19 through to 22 appear under the heading 'Breaches re Goldlink'. This plea is a variation on the theme. Once again it is alleged the second defendant accessed the plaintiffs' bank accounts and passed information on to third parties. Once again the plaintiffs reserve the right to provide further particulars at a later date.
Paragraphs 23 to 31 of the statement of claim appear under the heading '2017 and 2018 breaches'. The plaintiffs plead that the second defendant accessed and viewed their accounts on 11 occasions during this period. Once again it is alleged the second defendant breached his duty of confidentiality. While this plea differs slightly from the earlier pleas it is really the same species of alleged breach.
Paragraphs 32 through to 40 appear under the heading 'Loss or damage'. Although these paragraphs repeat the complaints against the second defendant it is difficult to ascertain precisely what loss and damage the plaintiffs say they have suffered as a consequence of the second defendant accessing their bank accounts. Insofar as any claim is made against the second defendant, it is found in par 42 which appears in the prayer for relief. That paragraph reads as follows:
The plaintiffs claim against the second defendant:
(a)an order restraining the second defendant from disclosing:
(i)information about the Accounts, including the accounts set out in Schedule A or the conduct of the Accounts; or
(ii)Plaintiff Information or Plaintiff Records,
to any person for any purpose;
(b)equitable compensation;
(c)such further or other relief as this Honourable Court deems fit;
(d)interest on compensation from such date and at such rate as this Honourable Court deems fit pursuant to section 32 of the Supreme Court Act 1935 (WA); and
(e)costs.
Before dealing with the second defendant's specific complaints it is worth noting the first defendant in its defence makes certain admissions concerning the second defendant's accessing of the plaintiffs' bank accounts. Paragraph 14 of the first defendant's defence is in the following terms:
As to paragraph 14 of the Statement of Claim the First Defendant:
(a)admits Mr Talevski accessed accounts, information about the conduct of the Accounts, Plaintiff Information and Plaintiff Records 5 times in the period 28 August 2014 and 11 February 2015, as particularised in Schedule B to the Statement of Claim; and
(b)otherwise denies each and every allegation contained therein.
Similar admissions are made in respect of par 16 of the statement of claim (Breaches re noteholder dispute), par 20 (Breaches re Goldlink) and par 23 (2017 and 2018 breaches). It is reasonable to assume the first defendant, when confronted with the plaintiffs' allegations, has checked its information technology systems and ascertained the second defendant has accessed the plaintiffs' bank accounts. Strictly speaking, the admissions by the first defendant cannot bind the second defendant. But it is difficult to see how in the circumstances the second defendant can deny he has accessed the plaintiffs' accounts. Short of alleging the first defendant is misleading the court, the pleas are unanswerable. Moreover, when and if the second defendant pleads to the statement of claim, he will presumably have to admit accessing the bank accounts. In the circumstances it would be extraordinary if he did not do so.
The second defendant makes four complaints in relation to the statement of claim. First, he says that the statement of claim fails to allege that any specific information was confidential. He says that there are four elements to a claim for breach of confidence in equity. They are:
(1)the information in question must be identified with specificity;
(2)it must have the necessary quality of confidence;
(3)it must have been received in circumstances importing an obligation of confidence; and
(4)there must be actual or threatened misuse of the information without consent.
With respect it is clear on the face of the pleading that all of these requirements are satisfied. The plaintiffs have identified the bank accounts which they say were accessed. Bank accounts are confidential - every individual has the right to ensure his or her financial information is not made available to the public at large. Apart from medical records it is difficult to conceive of personal information which is more confidential than an individual's financial position. The information was received by a bank. The relationship between banker and customer has at its heart confidentiality and the protection of financial information provided by the customer to the bank. It seems the second defendant accessed details of the bank accounts without the consent of the plaintiffs. There can be no suggestion the elements of breach of confidence are not properly pleaded.
Second, the second defendant alleges the plaintiffs failed to allege any specific confidential information was accessed. There is no merit in that submission. The plaintiffs allege certain bank accounts were accessed. As I have indicated based upon the first defendant's pleading, it would seem that was the case. That is, the specific confidential information the second defendant is alleged to have accessed and the material facts are properly pleaded.
Third, the second defendant says the plaintiffs do not allege which specific confidential information was disclosed or otherwise misused. The plaintiffs plead, and plead with some clarity, it was the bank account details which were accessed by the second defendant. It may well be some transactions were of particular interest to the second defendant. The plaintiffs are not in a position to identify those particular transactions. If the second defendant accessed the plaintiffs' accounts he would have been able to scroll through all of the entries in those accounts. Some would have been of more interest than others. Which were of particular interest to the second defendant is a matter which only he can know. It is, with respect, disingenuous to call on the plaintiffs to identify particular transactions which might have been of interest to the second defendant. That information is particularly within the second defendant's knowledge.
Finally, the second defendant alleges the statement of claim fails to point to any actionable loss or damage caused by the disclosure or misuse of confidential information. Of all the complaints made by the second defendant this is the only one of any substance. I have indicated by reference to the pleading it is not entirely clear what loss and damage the plaintiffs are said to have suffered. Certainly no loss or damage is quantified either in the prayer for relief or elsewhere in the pleading. That said, part of the prayer for relief seeks an injunction to restrain the second defendant from making any further use of the confidential information. If the plaintiffs are able to establish their case then it is reasonable to assume that relief will be granted. Moreover, the plaintiffs have reserved their rights to give further particulars of loss and damage at a later stage. It may be with the benefit of discovery and interrogatories, the plaintiffs uncover financial loss and damage which was inflicted upon them. I accept to look at the matter in that way is hypothetical. But it remains the case that relief by way of injunction is sought and in my view that is sufficient to allow this action to proceed.
The second defendant's application to strike out the plaintiffs' statement of claim will be dismissed. The second defendant should pay the costs of the application, including the reserved costs, such costs to be taxed and paid forthwith.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AH
Associate to Master Sanderson
5 MAY 2022