Menkens v Wintour - [2006] QSC 342

SUPREME COURT OF QUEENSLAND

CITATION:

Menkens v Wintour [2006] QSC 342

PARTIES:

LEO IGNATIUS GEORGE MENKENS
(first applicant)
REID MATTHEW MENKENS
(second applicant)
v
ROBERT DESMOND PETER WINTOUR
(first respondent)
NORTH COAST WOOD PANELS PTY LTD ACN 071 968 771 t/a STANTIUM
(second respondent)

FILE NO/S:

BS1975/06

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

20 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

31 October 2006

JUDGES:

Mackenzie J

ORDER:

That the Defendants within 7 days of the date of this order disclose to the Plaintiffs:1.

The documents, including in native format, being the attachments to the email, letters and faxes identified in the Defendants’ List of Documents dated 13 June 2006 at numbers 21, 22, 24, 28, 29, 30, 33, 48, 49, 50, 54, 55, 56, 57, 58, 59, 74, 75, 76, 77, 78, 79, 88, 89, 90, 91, 93, 94, 96, 101, 106, 107, 108, 109, 120, 121, 123, 127, 128, 133, 143, 153, 159, 166, 181, 206, 228, 232, 314.(a)

The documents described as the ‘Authorised Representative Statement’, by producing a copy of those documents to the Plaintiffs.(b)

That the Defendants within 7 days of the date of this order disclose to the Plaintiffs in the manner set out in paragraph 5 hereof the data base (“Data Base”) maintained by the Respondents in conducting the Stantium Business as pleaded in paragraph 23(d) of the Statement of Claim;2.

That the Defendants be at liberty to exclude from that Data Base any information or documents from the Data Base for which there is claim for legal professional privilege and serve on the Plaintiffs a list describing the documents for which there is a claim for legal profession privilege.3.

That the Defendants within 7 days of this order disclose to the Plaintiffs in the manner set out in paragraph 5 hereof the hard drives partitions and backups (“Hard Drives”) which have been maintained by the Respondents in conducting the Stantium Business as pleaded in paragraph 23(d) of the Statement of Claim.4.

That the Defendants make disclosure of the Data Base and Hard Drives by:5.

Producing within seven (7) days of the date of the order such Data Base and those parts of the Hard Drive directly relevant to the issues in the proceeding during business hours and that a nominated person of the Plaintiffs be at liberty to inspect them and take copies of them on behalf of the Plaintiffs;(a)

Providing in writing, within seven (7) days of the date of the order, to the Plaintiffs solicitors the password(s) to access any data or files on such data base, hard drive partitions or backups.(b)

6.         Liberty to apply on two days’ notice.

The Defendants pay the costs of the Plaintiffs of the Application.7.

CATCHWORDS:

PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION – GENERALLY – where applicants claim restraint of information or knowledge gained by respondent during course of trusteeship –…

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.

Continue reading Menkens v Wintour

Details

AGLC: Menkens v Wintour [2006] QSC 342
Case: [2006] QSC 342
Decision Date: 20 November 2006

CaseChat Overview and Summary

The case of Menkens v Wintour involves the applicants, Menkens, seeking discovery and inspection of documents from the respondents, Wintour, in relation to their role as trustees. The applicants allege that the respondents have knowledge or information that is pertinent to the proceedings and are requesting disclosure of specific electronic documents, including computer files and databases, in their original electronic format. The applicants claim that the respondents have not fully complied with their obligations under the trusteeship and seek to compel disclosure of the requested documents.

The legal issues before the court were whether the respondents were required to disclose the entirety of the requested documents, including those in their original electronic form, and whether there were any grounds for relief from such disclosure. The court had to consider the scope of the discovery order, the relevance of the documents to the proceedings, and any potential claims of legal professional privilege that might apply to certain documents.

In its decision, the court found that the respondents were indeed required to disclose the entirety of the documents specified in the applicants' request. The court determined that the relevance of the documents to the proceedings was sufficiently established by the applicants and that there were no grounds to grant relief from the disclosure of the whole document. The court also allowed the respondents to exclude from the disclosure any information or documents for which there was a claim for legal professional privilege, provided they served a list of such documents on the applicants. The court ordered the respondents to produce the requested documents and provide the necessary passwords to access them within a specified timeframe.

The final orders of the court required the respondents to disclose specific documents and databases within seven days, excluding any documents for which there was a claim for legal professional privilege. The respondents were also required to provide the necessary passwords to access the disclosed documents. The court further ordered that the respondents pay the applicants' costs of the application and granted liberty to apply for further orders on two days' notice.

Orders

Orders of the court

That the Defendants within 7 days of the date of this order disclose to the Plaintiffs:1.

The documents, including in native format, being the attachments to the email, letters and faxes identified in the Defendants’ List of Documents dated 13 June 2006 at numbers 21, 22, 24, 28, 29, 30, 33, 48, 49, 50, 54, 55, 56, 57, 58, 59, 74, 75, 76, 77, 78, 79, 88, 89, 90, 91, 93, 94, 96, 101, 106, 107, 108, 109, 120, 121, 123, 127, 128, 133, 143, 153, 159, 166, 181, 206, 228, 232, 314.(a)

The documents described as the ‘Authorised Representative Statement’, by producing a copy of those documents to the Plaintiffs.(b)

That the Defendants within 7 days of the date of this order disclose to the Plaintiffs in the manner set out in paragraph 5 hereof the data base (“Data Base”) maintained by the Respondents in conducting the Stantium Business as pleaded in paragraph 23(d) of the Statement of Claim;2.

That the Defendants be at liberty to exclude from that Data Base any information or documents from the Data Base for which there is claim for legal professional privilege and serve on the Plaintiffs a list describing the documents for which there is a claim for legal profession privilege.3.

That the Defendants within 7 days of this order disclose to the Plaintiffs in the manner set out in paragraph 5 hereof the hard drives partitions and backups (“Hard Drives”) which have been maintained by the Respondents in conducting the Stantium Business as pleaded in paragraph 23(d) of the Statement of Claim.4.

That the Defendants make disclosure of the Data Base and Hard Drives by:5.

Producing within seven (7) days of the date of the order such Data Base and those parts of the Hard Drive directly relevant to the issues in the proceeding during business hours and that a nominated person of the Plaintiffs be at liberty to inspect them and take copies of them on behalf of the Plaintiffs;(a)

Providing in writing, within seven (7) days of the date of the order, to the Plaintiffs solicitors the password(s) to access any data or files on such data base, hard drive partitions or backups.(b)

6. Liberty to apply on two days’ notice.

The Defendants pay the costs of the Plaintiffs of the Application.7.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Menkens v Wintour [2006] QSC 342
PARTIES:	LEO IGNATIUS GEORGE MENKENS (first applicant) REID MATTHEW MENKENS (second applicant) v ROBERT DESMOND PETER WINTOUR (first respondent) NORTH COAST WOOD PANELS PTY LTD ACN 071 968 771 t/a STANTIUM (second respondent)
FILE NO/S:	BS1975/06
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	20 November 2006
DELIVERED AT:	Brisbane
HEARING DATE:	31 October 2006
JUDGES:	Mackenzie J
ORDER:	That the Defendants within 7 days of the date of this order disclose to the Plaintiffs:1. The documents, including in native format, being the attachments to the email, letters and faxes identified in the Defendants’ List of Documents dated 13 June 2006 at numbers 21, 22, 24, 28, 29, 30, 33, 48, 49, 50, 54, 55, 56, 57, 58, 59, 74, 75, 76, 77, 78, 79, 88, 89, 90, 91, 93, 94, 96, 101, 106, 107, 108, 109, 120, 121, 123, 127, 128, 133, 143, 153, 159, 166, 181, 206, 228, 232, 314.(a) The documents described as the ‘Authorised Representative Statement’, by producing a copy of those documents to the Plaintiffs.(b) That the Defendants within 7 days of the date of this order disclose to the Plaintiffs in the manner set out in paragraph 5 hereof the data base (“Data Base”) maintained by the Respondents in conducting the Stantium Business as pleaded in paragraph 23(d) of the Statement of Claim;2. That the Defendants be at liberty to exclude from that Data Base any information or documents from the Data Base for which there is claim for legal professional privilege and serve on the Plaintiffs a list describing the documents for which there is a claim for legal profession privilege.3. That the Defendants within 7 days of this order disclose to the Plaintiffs in the manner set out in paragraph 5 hereof the hard drives partitions and backups (“Hard Drives”) which have been maintained by the Respondents in conducting the Stantium Business as pleaded in paragraph 23(d) of the Statement of Claim.4. That the Defendants make disclosure of the Data Base and Hard Drives by:5. Producing within seven (7) days of the date of the order such Data Base and those parts of the Hard Drive directly relevant to the issues in the proceeding during business hours and that a nominated person of the Plaintiffs be at liberty to inspect them and take copies of them on behalf of the Plaintiffs;(a) Providing in writing, within seven (7) days of the date of the order, to the Plaintiffs solicitors the password(s) to access any data or files on such data base, hard drive partitions or backups.(b) 6. Liberty to apply on two days’ notice. The Defendants pay the costs of the Plaintiffs of the Application.7.
CATCHWORDS:	PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION – GENERALLY – where applicants claim restraint of information or knowledge gained by respondent during course of trusteeship –…