Kuhnert v Williams - [2004] QDC 231

DISTRICT COURT OF QUEENSLAND

CITATION:

Kuhnert v Williams & Ors [2004] QDC 231

PARTIES:

NORMAN NEVILLE KUHNERT
(plaintiff)
v
ROSS WILLIAMS
(first defendant)
and
PALMER GROUP PTY LTD
ACN 0100 588 637
(second defendant)
and
QMB HOMES PTY LTD
ACN 010 668 710
(third defendant)
and
LINKWISE (AUST) PTY LTD
ACN 010 947 552
(fourth defendant)
and
WESTPAC BANKING CORPORATION
ACN 007 457 141 (fifth defendant)
and
WINDSOR CRAIG SOLICITORS
(sixth defendant)

FILE NO:

D 4707 of 2002

PROCEEDING:

Application to mask disclosed documents

DELIVERED ON:

10 August 2004

DELIVERED AT:

Brisbane

HEARING DATE:

3 August 2004

JUDGE:

Judge Brabazon QC

ORDER:

Masking not allowed

CATCHWORDS:

PRACTICE AND PROCEDURE – discovery – discretionary power of Court – whether disclosure necessary in the interests of a fair trial – masking of parts of documents – claim of irrelevance with respect to those parts of the documents – whether a bank’s duty of confidentiality sufficient to prevent disclosure.

Bank – Bank/ Client relationship – Duty of Bank – Duty of Confidentiality – Disclosure – Masking of disclosed documents.

Uniform Civil Procedure Rules 214, 217, 223, 224.

Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353

Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd [1987] 2 Qd R 335

Gray v Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045

Index Group of Companies Pty Ltd v Nolan [2002] FCA 608

Robson v REB Engineering Pty Ltd [1997] 2 QD R 102

Stephen v NRMA Insurance Ltd [2001] QDC 2

Telstra Corp v Australis Media Holdings (unreported) 10 February 1997

Tournier v National Provincial and Union Bank of England [1924] 1 KB 461

Westfield Management Ltd v Brisbane Airport Corporation Ltd [2004] FCA 611

COUNSEL:

Ms D Skennar for the applicant
Mr D Kelly for the respondent, fifth defendant

SOLICITORS:

Slater and Gordon for the applicant
Mallesons Stephen Jacques for the fifth respondent

There is a contest between the plaintiff and Westpac, about the extent of Westpac’s disclosure of documents.

The plaintiff was a Westpac customer. Westpac has disclosed it files relating to 21 other customers, because of their connection with this litigation. However, it has masked those parts of the other customers’ files which would disclose their identity. The plaintiff wishes to see all of the documents, and objects to the masking. Westpac says that it is justified. The court has to decide between those contentions.

The Claims against Westpac

In 1997 Mr Kuhnert purchased two investment properties in south-east Queensland. He alleges that he was the victim of a marketing scheme designed to defraud property investors. The marketing company, Hanna Corporation Pty Ltd, has been deregistered.

The amended statement of claim asserts that the scheme was unlawful, as its purpose was to persuade investors (usually from interstate) to purchase investment properties at prices substantially in excess of their fair market value, in the belief that the sale price was their fair market value.

The nature of that scheme is alleged in para 21 of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] QDC 231
Decision Date: 10 August 2004

CaseChat Overview and Summary

In the case of Kuhnert v Williams, the parties were engaged in litigation regarding a dispute that involved a bank's duty of confidentiality and the discretionary power of the court concerning the disclosure of documents in a discovery process. The defendant, Williams, who was a client of a bank, argued that certain parts of the documents disclosed should be masked as they were irrelevant to the proceedings and that the bank's duty of confidentiality should prevent such disclosure. The case was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the court's discretionary power to order the disclosure of documents should be exercised in a manner that allowed masking of certain parts of the documents, despite the claim of irrelevance and the assertion of a bank’s duty of confidentiality. The court had to balance the need for a fair trial against the duty of confidentiality owed by the bank to its client.

The court held that while the duty of confidentiality was important, it was not sufficient to override the necessity for a fair trial. The court emphasised that the discretionary power to order disclosure was intended to ensure that the trial was conducted fairly and that any masking of documents could impede this objective. Consequently, the court ruled against the masking of parts of the documents, finding that such action was not in the interests of a fair trial. The court's decision underscored the principle that the duty of confidentiality did not provide an absolute barrier to the disclosure of documents necessary for the administration of justice.

The final orders of the court were that the masking of parts of the disclosed documents was not permitted, thereby ensuring that the entirety of the relevant documents would be available for the trial to proceed in a manner that was fair and just.

Orders

Orders of the court

Masking not allowed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Kuhnert v Williams & Ors [2004] QDC 231
PARTIES:	NORMAN NEVILLE KUHNERT (plaintiff) v ROSS WILLIAMS (first defendant) and PALMER GROUP PTY LTD ACN 0100 588 637 (second defendant) and QMB HOMES PTY LTD ACN 010 668 710 (third defendant) and LINKWISE (AUST) PTY LTD ACN 010 947 552 (fourth defendant) and WESTPAC BANKING CORPORATION ACN 007 457 141 (fifth defendant) and WINDSOR CRAIG SOLICITORS (sixth defendant)
FILE NO:	D 4707 of 2002
PROCEEDING:	Application to mask disclosed documents
DELIVERED ON:	10 August 2004
DELIVERED AT:	Brisbane
HEARING DATE:	3 August 2004
JUDGE:	Judge Brabazon QC
ORDER:	Masking not allowed
CATCHWORDS:	PRACTICE AND PROCEDURE – discovery – discretionary power of Court – whether disclosure necessary in the interests of a fair trial – masking of parts of documents – claim of irrelevance with respect to those parts of the documents – whether a bank’s duty of confidentiality sufficient to prevent disclosure. Bank – Bank/ Client relationship – Duty of Bank – Duty of Confidentiality – Disclosure – Masking of disclosed documents. Uniform Civil Procedure Rules 214, 217, 223, 224. Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd [1987] 2 Qd R 335 Gray v Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045 Index Group of Companies Pty Ltd v Nolan [2002] FCA 608 Robson v REB Engineering Pty Ltd [1997] 2 QD R 102 Stephen v NRMA Insurance Ltd [2001] QDC 2 Telstra Corp v Australis Media Holdings (unreported) 10 February 1997 Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 Westfield Management Ltd v Brisbane Airport Corporation Ltd [2004] FCA 611
COUNSEL:	Ms D Skennar for the applicant Mr D Kelly for the respondent, fifth defendant
SOLICITORS:	Slater and Gordon for the applicant Mallesons Stephen Jacques for the fifth respondent