DI CIANO -v- AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD [No 2] [2025] WASC 80 (19 March 2025)

1. Pleadings have two basic functions. The first is to ensure a fair trial by putting the other party on notice of the case to be met. The pleading must state the case that must be met with 'sufficient clarity' or 'reasonable clearness'. The second is to define the issues for decision so that the court can control the preparation of the case and the conduct of the trial. This includes providing the basis for the determination of questions as to discovery before trial and admissibility of evidence at trial.[3] That being said, pleadings are not an end in themselves. Instead they are a means to the ultimate attainment of justice between the parties to the litigation.[4]
2. The determination of this pleadings dispute occurs in the context of the court's approach generally to case management, in particular to objects set out in RSC O 1 r 4A and r 4B. Provided a pleading fulfils its basic functions which I have set out at [5], 'the Court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the Court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment'.[5] Rather, the court should adopt 'an approach to pleading disputes to the effect that only where the criticisms of a pleading significantly impact upon the proper preparation of the case and its presentation at trial should those criticisms be seriously entertained'.[6] Having said that, the objects in RSC O 1 r 4A and r 4B are often promoted by a clear and precise statement of the issues for decision.[7]
3. One practical issue is the level of generality which is permissible. In this regard, in DM Drainage & Constructions Pty Ltd v Karara Mining Ltd Beech J observed:[8]

A statement of claim must not plead allegations at too high a level of generality. A pleading must be sufficiently particular to conform with one of the primary objects of pleadings, to inform the opposing party of the case that it must meet ...Whether it is sufficient to plead simply that one thing caused another, or whether further facts must be pleaded to establish a causal link, will depend on the pleaded facts and circumstances.

1. In Lonsdale Investments v OM (Manganese) Ltd Beech J, after making a similar observation to that in [7], went on to say:[9]

Whether a pleading is sufficiently particular is ... largely a matter of judgment and impression.... There are authorities to the effect that further and better particulars cannot rectify a pleading that is defective on grounds of its generality.... However to my mind, generally speaking, so long as a pleading read with its particulars sufficiently discloses to the opposing party the case that it must meet, the need for specificity in the pleading, as distinct from the particulars, need not always be applied with full vigour. In particular circumstances, however, it may be important that specific matters are pleaded as material facts rather than set out in particulars.

1. And along similar lines, in Rosebridge Nominees Pty Ltd v Commonwealth Bank of Australia [No 5] Le Miere J observed:[10]

The rules and practice of this court do not permit trial by ambush. The plaintiff must lay its cards on the table so that all the true issues are identified and can be fairly tried in due course. The degree of precision required in a pleading, or particulars, will depend upon the particular case. In some cases the delivery of witness statements may obviate the need for greater particularity in a pleading. In other cases a fair trial will require greater clarity, precision and openness in the pleading and particularising of a party's case. In this case it is necessary so that the defendants may know whether and how they are able to resist the plaintiff's damages case. Unless the defendants know how the plaintiff puts its case they will not be able to put on lay or expert evidence in response and will not know how to cross‑examine the plaintiff's witnesses. Furthermore, the court will not be able to assess the relevance, and hence admissibility, of evidence, including expert evidence, adduced by the plaintiff.

1. By RSC O 20 r 19(1)(a) the court may order that a pleading, or part of it, be struck out on the ground that 'it discloses no reasonable cause of action'. The principles by which the court makes this assessment are well settled:[11]

(a) the question to be decided is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action, rather the question is whether it would be open to the party (on its pleadings) to prove facts at the trial which would constitute a cause of action;[12]

(b) the court must proceed on the basis that the facts alleged in the pleading are established;[13]

(c) 'reasonable' means reasonable according to law, so if the facts pleaded conceivably give rise to relief, then the cause of action should be held to be reasonable;[14]

(d) while the court may determine a difficult question of law on such an application, it would usually be appropriate to leave the determination of such questions for trial;[15]

(e) the mere fact that a case appears weak is not of itself sufficient to strike out the action;[16]

(f) a court at first instance should be careful not to risk stifling the development of the law by summarily rejecting a claim where there is a reasonable possibility that, as the law develops, it will be found that a cause of action will lie; and[17]

(g) the court should proceed with caution before striking out a pleading on the ground that it does not disclose a reasonable cause of action.[18]

1. By RSC O 20 r 19(1)(c) the court may order that a pleading, or part of it, be struck out on the ground that 'it may prejudice, embarrass or delay the fair trial of the action'. Again, the principles by which the court makes this assessment are well settled:

(a) the phrase 'is a composite one which imports the notion the character of the pleading is such as to make the fair trial of the action more difficult to achieve, that the trial will be unduly protracted or delayed or the pleading is calculated to prejudice the legal process';[19]

(b) pleadings may be struck out on the ground that they may prejudice, embarrass or delay the fair trial of the action because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general;[20]

(c) irrelevant or unnecessary pleas in a statement of claim can be struck out on this ground where the defendant must traverse the allegations and, thereby, raise false issues;[21] and

(d) a pleading can be struck out on this ground where the opponent is left in doubt about what is alleged.[22]

1. ASOC par 5(g) contains a plea that ANZ at all material times owed two specified duties to each plaintiff as its customers. The first, in sub-par (i) is a duty to:

not access, use or disclose:

(A) information about the plaintiffs' accounts and facilities with the Bank (Accounts) including the accounts set out in Schedule A or the conduct of the Accounts; or

(B) personal and financial information disclosed to or collected by the Bank from the plaintiffs (Plaintiff Information), or records kept and maintained by the Bank in relation to the plaintiffs (Plaintiff Records),

save as necessary for the Bank to provide its services to the Plaintiffs...

No issue is taken with this plea. Issue is, however, taken with the plea of a second duty introduced by amendment in sub-par (ii), being a duty to:

have effective measures in place to protect the Plaintiff Information and Plaintiff Records from unauthorised access, use and disclosure by the Bank's employees (and authorised representatives),

I will refer to this as the 'Effective Measures Duty'.

1. The two duties in [12] are referred to in the ASOC as the 'Bank's Duty of Confidentiality'. The 'Bank's Duty of Confidentiality' is said, in the particulars, to arise under the Codes of Banking Practice and by law.
2. ANZ objects to the plea of the Effective Measures Duty on the basis that the plea:[23]

(a) does not disclose what 'effective measures' ought to have been taken;

(b) fails to state the material facts necessary to reveal the content of the duty;

(c) fails to disclose a reasonable cause of action against ANZ;

(d) is at too high a level of generality;

(e) is ineffective to inform ANZ of the case it has to meet; and

(f) is embarrassing and would unnecessarily cause prejudice and delay to the trial of the matter.

1. The plaintiffs say that there is a contractual obligation on ANZ to have effective measures in place to protect the plaintiffs' confidential information from unauthorised access, use and disclosure by its employees.[24]
2. In my assessment, it is unclear whether the plea in ASOC par 5(g)(ii) purports to plead a contractual obligation. The reference in the particulars to the Effective Measures Duty arising under Codes of Banking Practice and by law is not a plea of a term arising under a contract. The plaintiff must set out the factual basis for its assertion that Effective Measures Duty is a contractual obligation. This would include the precise contract and relevant clause which it relies on. Or if the term is implied by law, the contract into which it is implied, and the basis in law for the implication. Moreover, the plea would need to be in relation to the relevant contract with each individual plaintiff. It is also unclear what the plaintiffs means when they say that the duty arises 'by law'. It is not the case that there is a well established body of common law in relation to a duty to take effective measures as there is for negligence or breach of the equitable duty of confidence.
3. As a matter of law, it conceivable for there to be a contractual obligation between ANZ and each plaintiff in terms of the Effective Measures Duty. So the plea in ASOC par 5(g)(ii) could not be struck out for not disclosing a reasonable cause of action. However, the source of the contractual obligation needs to be identified, and the contractual term needs to be expressed with precision.
4. In my view, the case ANZ has to meet in relation to the Effective Measures Duty is not sufficiently clear for it to be fairly met. As currently expressed, the plea in par 5(g)(ii) is embarrassing as it leaves ANZ in doubt as to what is alleged. The clause should be struck out, with leave to replead.
5. Any repleading of the Effective Measures Duty should be separate to the plea of the duty of confidentiality. This will facilitate ANZ responding to each plea with clarity. Also, if the basis for the plea is contractual, the relevant contract between each plaintiff and ANZ will need to be identified. It is conceivable that an Effective Measures term is in the contract between ANZ and some of the plaintiffs (for example the first plaintiff as an individual), but not others.

1. It is convenient to next consider the challenge to ASOC par 31A in which the plaintiffs plead a breach of the Effective Measures Duty. That paragraph reads:

31A. In breach of the Bank's Duty of Confidentiality and the Duty of Confidence, at all material times since 28 August 2014, the Bank has not had effective measures in place to protect the Plaintiff Information and Plaintiff Records from unauthorised access, use and disclosure by the Bank's employees (and authorised representatives).

Particulars

1. Employees (and authorised representatives) of the Bank were required to complete online training modules on an annual basis relevantly including the Bank's: (a) Restricted Activities Policy; and (b) Systems Use Policy.
2. Mr Talevski accessed and viewed the Accounts, information about the conduct of the Accounts, Plaintiff Information and Plaintiff Records on 56 separate occasions between 28 August 2014 and 27 March 2019 as set out in Schedule B of the Statement of Claim.
3. The Bank did not detect or otherwise identify that Mr Talevski had accessed and viewed the Accounts, information about the conduct of the Accounts, Plaintiff Information and Plaintiff Records in breach of the Restricted Activities Policy and Systems Use Policy.
4. ANZ has two broad challenges to ASOC par 31A. The first is that the breach is an ongoing one. This is in contrast to the plaintiffs' original claim which on its face related only to disclosures between 2014 and 2019. The second challenge is to the adequacy of the plea of an alleged breach, which I will return to at [25].
5. In Schedule B to the ASOC, the plaintiffs identify 56 occasions on which Mr Talevski accessed and viewed accounts relating to the plaintiffs over the period from 28 August 2014 to 27 March 2019. The writ was filed on 27 August 2020.
6. The problem with the pleading of a breach in ongoing terms is that it breaches the 'well established and ... long standing' rule that the cause of action must be complete in all respects at the time at which the writ is issued.[25] So for example, claims for rent or payments which fall due under a contract after the commencement of proceedings have to be regarded as a separate cause of action.[26] So, the plaintiffs cannot plead breaches of a contractual term which occurred after the writ was issued.
7. Moreover, there is no factual basis pleaded for the assertion that at any time after 27 March 2019 (being the last date that Mr Talevski accessed and viewed accounts relating to the plaintiffs) ANZ did not have effective measures in place to protect the plaintiff's information. It is important to reiterate that before a lawyer can proffer a pleading to the court, it is their duty to ensure that there is credible material or a proper factual foundation to support that plea.[27]
8. The second challenge by ANZ is to the adequacy of the plea of an alleged breach. Their submissions reiterate the concern in relation to ASOC par 5(g)(ii) as to the lack of any detail in relation to the phrase 'effective measures'. The submissions go on that the paragraph fails to:[28]

(a) identify how it is said that ANZ has not had effective measures in place to protect the 'Plaintiff Information' and 'Plaintiff Records' from unauthorised access, use and disclosure by its employees and authorised representatives, including by identifying:

(i) how it is said that the systems that ANZ has in place are inadequate; or

(ii) what more ought to have been done, or ought to be done;

(b) adequately identify, or particularise, the conduct or unauthorised access, use and disclosure that the plaintiffs assert constitute a breach of the duties pleaded; or

(c) identify the basis or any material fact that may support the allegation of ongoing breaches, particularly in circumstances where Mr Talevski had his employment with the ANZ suspended and then terminated on and from 12 April 2019.

1. The plaintiffs say that for a breach of contract, they do not accept that the claim must precisely state what the defaulting party ought to have done to meet the contractual promise. This is distinct from the plaintiffs stating what the defaulting party should be ordered to do by way of the relief.[29] And: [30]

At the stage of assessing the adequacy of a pleading, the Court should also take into account the fact that the plaintiffs bear the legal onus on a negative proposition (i.e. ANZ's measures were ineffective), where the detail of those mea sures are peculiarly within the knowledge of ANZ. ANZ can apply that knowledge to plead by way of defence any other relevant measures it says it had in place of which it has not previously made discovery of and of which the plaintiffs are not currently aware.

1. The plaintiffs say their case as to the content of the alleged duty has been set out with reasonable clearness such that ANZ is not embarrassed. The claim is not stated at 'too high a level of generality' and does not raise 'false issues'. To the contrary, in the circumstances, ANZ has been furnished with detailed particulars of the facts relied upon by the plaintiffs.
2. In my assessment, the plea in ASOC par 31A is in a kind of res ipsa loquitur plea. The logical sequence is:

(a) because Mr Talevski accessed the plaintiffs' information on 56 separate occasions when not authorised to do so (particular 2); and

(b) ANZ did not detect the unauthorised access by Mr Talevski (particular 3); therefore

(c) the online training modules which employees and authorised representative of ANZ were required to complete must not have comprised effective measures (particular 1).

1. To illustrate the point, it is instructive to set out summary of the principle of res ipsa loquitur set out by McLure P in Kelly v Bluestone Global Ltd (In liq):[31]

The scope and effect of the principle of res ipsa loquitur have been decisively settled by the High Court: Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121. The principle is not a distinct, substantive rule of law, but an application of an inferential reasoning process, and the plaintiff bears the onus of proof of negligence even when the principle is applicable: Schellenberg [22].

A plaintiff may rely on res ipsa loquitur even though he or she has also pleaded particular acts or omissions of negligence on the part of the defendant provided the tribunal of fact concludes that:

1. there is an absence of explanation of the occurrence that caused the injury;
2. the occurrence was of such a kind that it does not ordinarily occur without negligence; and
3. the instrument or agency that caused the injury was under the control of the defendant: Schellenberg [25].

The principle only applies if it is within the common knowledge and experience of mankind that the occurrence is unlikely to occur without negligence on the part of the party sued. Where the occurrence is outside the experience of the lay person, and the evidence, expert or otherwise, does not establish that such an occurrence ordinarily does not occur without negligence, res ipsa loquitur is inapplicable: Schellenberg [41], [43].

Further, it is not sufficient for the facts merely to speak of negligence: the evidence must point to the defendant's negligence: Schellenberg [48].

1. In other words, the plea in ASOC par 31A is that because there was a breach which was not detected, the occurrence was of such a kind that it does not ordinarily occur without fault, the measures which ANZ had in place must not have been effective.
2. I am not aware of any case law to the effect that the principle of res ipsa loquitur applies to a breach of contract case. In event, as a matter of both logic and common sense, it cannot be said that a breach of the kind in [28](a) does not 'ordinarily occur' unless the training provided in [28](c) was not a sufficient effective measure. It may be that the training provided was industry best practice, and that, for whatever personal reason, Mr Talevski decided to ignore what he had learnt.
3. Be that as it may, the underlying problem with the plea in ASOC par 31A is that the precise scope of the contractual term (or other legal obligation) requiring ANZ to put in place 'effective measures' is not pleaded. It is possible that the effective measures term is one of strict liability - any disclosure at all is a breach of the effective measures term. However, it is much more likely that if there is an effective measures term, it is expressed in terms of taking reasonable steps. The point is that ANZ does not know.
4. Further, the submission at [26] does not reflect the law. The obligation is on the plaintiffs to identify and plead the specific things the 'Effective Measures Duty' required ANZ to do that it did not do. ANZ can then meet this case by arguing that:

(a) the Effective Measures Duty did not, as a matter of law, require it to do the specific thing identified; and /or

(b) as a matter of fact, it did do the specific thing identified.

1. In my assessment, the plea in ASOC par 31A suffers from the same defect as that in ASOC par 5(1)(g)(ii). The case ANZ has to meet in relation to the Effective Measures Duty is not sufficiently clear for it to fairly meet. As currently expressed, the plea in ASOC par 31A is embarrassing as it leaves ANZ in doubt as to what is alleged. The clause should be struck out, with leave to replead.

1. ANZ challenges an amendment to ASOC par 37 in relation to a breach of what is referred to as the 'Bank's Fair Dealing Duties'. Those duties are defined in ASOC par 5(h) in the following terms:

at all material times owed a duty to each of the plaintiffs as customers of the Bank to:

(i) act fairly and reasonably towards each of the plaintiffs in a consistent and ethical manner, including in relation to the resolution of any dispute between the Bank and any of the plaintiffs, and any complaints made by any of the plaintiffs to the Bank;

(ii) communicate with each of the plaintiffs and their representatives in a timely and responsible manner, including in relation to the resolution of any dispute between the Bank and any of the plaintiffs, and any complaints made by any of the plaintiffs to the Bank; and

(Bank's Fair Dealing Duties)

Particulars

Each of the duties pleaded in this paragraph (h) arises under the Codes of. Banking Practice.

1. ANZ challenges the addition of the words ('or taken any such steps') in ASOC par 37(d). It is necessary to place that amendment into context, it is necessary to quote the paragraph in full:

In breach of the Bank's Fair Dealing Duties, the Bank:

(a) deleted

(b) did not inform the plaintiffs about the extent of the information Mr Talevski accessed and viewed or may have accessed and viewed on each occasion he accessed and viewed Accounts, Plaintiff Information or Plaintiff Records (as pleaded in paragraph 35 above);

(c) did not communicate with the plaintiffs in a timely manner in relation to the plaintiffs' complaints but on at least four occasions, purported to finalise its response to the plaintiffs' complaint without prior notice to or consultation with the plaintiffs; Particulars Four of the Bank's purported finalisations of its response to the plaintiffs' complaint were communicated to Ms Di Ciano by emails from the Bank dated 17 May 2019, 8 July 2019, 31 March 2020 and 6 April 2020. Further particulars of this plea may be provided after discovery.

(d) has not informed the plaintiff about any steps the Bank has taken to stop its employees, contractors or agents from accessing Accounts, Plaintiff Information or Plaintiff Records for any purpose other than the purpose of providing products or services requested by the plaintiffs, unless required by law or permitted by the plaintiffs (or taken any such steps).

1. ANZ submits that the amendments to ASOC par 37(d) suffer from the same defects as par 31A in that the plaintiffs seek to change the nature of the existing plea (that ANZ failed to inform the plaintiffs of the steps it has taken) to a plea that ANZ was required to, but has not taken, any such steps. The plea then fails to plead any elucidating material facts or:

(a) identify what steps it is alleged ANZ was required to take to comply with the alleged Fair Dealing Duties; and

(b) identify or particularise the conduct that the plaintiffs assert constitute a breach the Fair Dealing Duties.

Accordingly, it says that the amendment to par 37(d) should be struck out.[32]

(a) ASOC par 37(d) ASOC concerns a different contractual obligation, being that ANZ has contractually promised to act fairly and reasonably towards the plaintiffs in a consistent and ethical manner in the resolution of complaints (ASOC at [5(h)]);

(b) they have always alleged that ANZ breached this contractual obligation because, amongst other matters, ANZ did not inform the plaintiffs of any steps taken to prevent the situation from arising in the future; and

(c) the amendment is by way of clarification to make express that which was already implied, namely that ANZ did not inform the plaintiffs of any steps taken to prevent the situation from arising in the future because it took no such steps.

1. ANZ is correct when it says that the amendment to par 37(d) adds a new allegation of breach. An allegation of a failure to inform of steps taken is very different to an allegation of in fact taking no steps. The proof of the former lies in an analysis of the communication between ANZ and the plaintiffs. The proof of the latter is a much more complex exercise. But the fact that a new allegation is added is not of itself problematic.
2. What is problematic is the manner in which the allegation is pleaded. Two facts are implicit in the amendment:

(a) the Fair Dealing Obligation required ANZ to take particular steps to stop its employees, contractors or agents from accessing the plaintiffs' information for any purpose other than the purpose of providing products or services requested by the plaintiffs, unless required by law or permitted by the plaintiffs; and

(b) ANZ did not take those steps.

1. Again, the amendment should be struck out as the case ANZ has to meet in this regard is not sufficiently clear for it to fairly respond to. As currently expressed the amendment to par 37(d) is embarrassing as it leaves ANZ in doubt as to what is alleged. There should be leave to replead. Any repleading should be in a separate paragraph as the breach by failing to inform is conceptually very different from the breach by not taking steps.

1. ANZ challenges the amendment to ASOC par 17(c). To place this allegation in its context, it is necessary to quote ASOC pars 16 and 17. There were some amendments to ASOC par 16 which are not challenged, so I have not noted them:

(a) 30 September 2014 and 15 September 2015, NXT Enterprise (then named "NXT Enterprise Ltd" and the sole company in what later became the NXT Group) entered into two Corporate Consultancy Mandates with Get Smart Capital in joint venture with Gloucester & Portman Capital (together, "GSCGPC") by which NXT Enterprise engaged GSCGPC as corporate consultant and subsequently also lead manager to NXT Enterprise;
>
> (b) 19 October and 29 October 2014, Gloucester & Portman Capital raised capital by way of convertibles notes which were issued by NXT Enterprise to noteholders introduced by Gloucester & Portman Capital;
>
> (c) September 2015 and May 2016, NXT Enterprise was in dispute with Gloucester & Portman Capital on its own behalf and on behalf of certain convertible noteholders (Noteholders) apparently represented by Gloucester & Portman Capital, namely:

(A) Chancery Holdings Pty Ltd as trustee for McKenzie No. 2 Superannuation Fund (ABN 46 837 996 893) (Chancery Holdings);

(B) Camdowell Investments Pty Ltd as trustee for Claudio Angelo Mattiaccio Super Fund (ABN 99 481 312 238) (Claudio Mattiaccio Super Fund);

(C) Dr Tony Crea as trustee for Crea Superannuation Fund (ABN 23 557 486 937).

(d) 11 and 22 December 2015, Gloucester & Portman Capital, apparently on behalf of the Noteholders, caused statutory demands addressed to NXT Enterprise (Statutory Demands) to be left at the home of Ms Di Ciano;

(da) 12 January 2016, NXT Enterprise informed the Noteholders that the issue of the Statutory Demands was not appropriate because, amongst other defences, it was solvent;

(db) 12 February 2016 and 4 April 2016, NXT Enterprise reiterated to the Noteholders that it was solvent, stated that the issuing of winding up proceedings would not be appropriate and invited the Noteholders to contact NXT Enterprise directly to resolve the matter;

(dc) 20 April 2016, Talevski requested a company searches of the NXT Group and Chancery Holdings;

(e) 7 April 2016 and 17 May 2016, Gloucester & Portman Capital, apparently on behalf of the Noteholders, caused winding up proceedings to be brought by Chancery Holdings against NXT Enterprise in Supreme Court of Western Australia proceeding number COR 70 of 2016 (Winding Up Proceedings);

(f) 11 and 12 May 2016, NXT Enterprise settled all claims in respect of the Statutory Demands and Winding Up Proceedings with the Noteholders and paid in the order of $205,164.22 to resolve the disputes pleaded in paragraphs (c) - (e) above;

(g) 11 January and 18 May 2016, in breach of the Bank's Duty of Confidentiality and the Duty of Confidence, Mr Talevski accessed and viewed Accounts, information about the conduct of Accounts, Plaintiff Information and Plaintiff Records 14 times:

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.

1. In the circumstances pleaded in paragraphs 6(f)(ii) and 16 above, it is open to be inferred that between January and May 2016, Mr Talevski disclosed information about Accounts, information about the conduct of Accounts, Plaintiff Information and Plaintiff Records to Mr Nikolic and / or Mr E Mattiaccio and / or Gloucester & Portman Capital and that as a result:

(a) the Bank breached the Bank's Duty of Confidentiality and the Duty of Confidence; and

(b) Mr Talevski breached Mr Talevski's Duty of Confidentiality and the Duty of Confidence.

(A) The breach of the Bank's Duty of Confidentiality, Mr Talevski's Duty of Confidentiality and the Duty of Confidence can also be inferred from oral statements made by Mr Talevski to Ms Di Ciano on about 16 June 2017 at a family funeral to the effect that Mr Nikolic and Mr E Mattiaccio had initiated discussions with Mr Talevski about, relevantly, statutory demands and that in connection with those discussions, Mr Talevski accessed and viewed Accounts, information about the conduct of Accounts, Plaintiff Information and Plaintiff Records.

(B) Further particulars of this plea may be provided after discovery, interrogatories and return of subpoenas.

(c) NXT Enterprise lost the opportunity to settle all claims in respect of the Statutory Demands and Winding Up Proceedings with the Noteholders for a sum less than $205,164.22, including by having the advances converted into shares.

1. ANZ says that the fourth plaintiff, NXT Enterprise Pty Ltd (NXT Enterprise) does not plead any material facts to support the conclusion that such an opportunity to settle all claims existed, that it was lost, and how it was lost, including (without limitation) any facts:[34]

(a) which would suggest that the amount subject to the Statutory Demands and Winding Up Proceedings was not fully due and payable by it;

(b) as to what information was disclosed and how that information was relevant to the claims the subject of the Statutory Demands and Winding Up Proceedings; or

(c) which would suggest that there was any right to have the advances converted into shares.

1. ANZ submits that it is not sufficient that a pleading simply express a conclusion drawn from facts which are not stated. Not only must all material facts be pleaded (those being all facts necessary for the purpose of formulating a complete cause of action) but they must be pleaded with a sufficient degree of specificity, having regard to the general subject matter of the claim, to convey to the opposite party the case that party has to meet. NXT Enterprises does not do this, so the plea does not disclose a reasonable cause of action against ANZ, is embarrassing and would cause unnecessary prejudice and delay to the trial of the matter. [35]
2. The plaintiffs submit that its claim for damages for loss of opportunity from a breach of contractual and equitable duties of confidence is broadly as follows:[36]

(a) Nikolic and Mattiaccio were friends and business colleagues of Talevski (ASOC at [6(f)(B)]);

(b) in December 2015, G&P, a company associated with Nikolic and Mattiaccio, issued statutory demands against NXT Enterprise on behalf of certain noteholders (ASOC at [16(d)]);

(c) in February and April 2016, NXT Enterprise raised a solvency defence and attempted to negotiate a resolution of the statutory demands (ASOC at [16(da)] and [16(db)]);

(d) Nikolic and Mattiaccio asked Talevski about NXT Enterprise (ASOC at [17]);

(e) at trial, Ms Di Ciano will give evidence that Talevski told her that Nikolic and Mattiaccio had initiated discussions with him about the statutory demands;

(f) from January 2016, Talevski began monitoring Ms Di Ciano's finances and the NXT Group's finances (Schedule B to the ASOC);

(g) on 20 April 2016, Talevski requested a company searches of the NXT Group and one of the noteholders (ASOC at [16(dc)]); and

(h) between January and May 2016, Talevski disclosed financial information to Nikolic and Mattiaccio about NXT Enterprise and the group (ASOC at [17]).

1. The plaintiffs say that they require all three witnesses for cross-examination. I pause here to observe that there is no obligation on Mr Talevski to give evidence nor on either defendant to call Mr Nikolic and Mr Mattiaccio. The former can be interrogated. The latter could be subpoenaed by the Plaintiffs. The submissions continue:[37]

Without wishing to telegraph the questions for cross-examination, it would obviously be advantageous for Nikolic and Mattiaccio to know certain information about the financial position of NXT Enterprise and the NXT Group. With respect, it should be obvious to ANZ, and its experienced legal advisors, what information would be relevant to resolving a dispute about a statutory demand where a solvency defence is raised.

NXT Enterprise was unable to compromise the dispute for less than the full amount of the statutory demands, including by having the advances converted to shares (ASOC at [16(f)] and [17(c)]).

1. On this basis, the plaintiffs says that ANZ's contention that NXT Enterprise has not pleaded any material facts to support the conclusion should be rejected. The argument raised by ANZ can properly be raised at trial and is not a strike out point.
2. In relation to causation, the following observations of the Court of Appeal in English are apposite:[38]

A cause of action should only be struck out as not being reasonable due to the absence of the requisite causal link where the allegation of causation is clearly untenable on the pleading. In this context the term 'reasonable' means reasonable according to law. The question of law stands independently of the facts giving rise to it. The court must proceed on the basis that the facts alleged in the pleading are established. The question is whether, on the facts as pleaded, there is a sufficient causative relationship alleged between the alleged breach (or contravention) and the alleged loss. Any question of causation is quintessentially a question of fact and degree. The question is fact sensitive and will be affected by the evidence. This accentuates the need to take a cautious approach in assessing whether a pleaded claim is untenable. Nevertheless, the basal requirement remains: the material facts as pleaded must be capable of being regarded as sufficient to establish that the required causal connection between a breach (or a contravention) and the loss exists.

1. The point is made more specifically in the decision of Jackson J in Graham & Linda Huddy Nominees Pty Ltd & Anor v Byrne & Ors, a decision drawn to my attention by counsel for ANZ where His Honour observed:[39]

First, it is necessary for a plaintiff who alleges loss of a valuable commercial opportunity to plead that the loss it has suffered is a loss of a valuable commercial opportunity, identifying the opportunity with some particularity. Second, it is also necessary that the plaintiff pleads what it would have done, where what the plaintiff would have done if the defendant had not been in breach of duty is a necessary causal condition to deciding factual causation. Third, it is necessary for a plaintiff who alleges such a loss to plead the percentage or proportion of the opportunity that was lost, in assessing value on the possibilities, in order to plead the amount of the damages claimed, as is specifically required. Fourth, where a plaintiff alleges a loss of a 100 per cent possibility or the certainty that they would have obtained the hoped for or expected benefit under a transaction which did not occur, it is to be expected that the plaintiff will allege with some particularity the facts by which that certain outcome would have been achieved.

There are two additional points. In a number of recent cases, courts have considered the extent of the proof and pleading required by way of causation and loss where a plaintiff alleges that as a result of the defendant's breach of contract, negligence or misleading conduct the plaintiff would not have entered into the actual transaction that was entered into. Where the plaintiff alleges that they would have entered into no transaction on the one hand, or a different transaction on the other hand, the pleading should clearly allege the counterfactual scenario... In a similar vein, in my view, where a plaintiff alleges loss of a valuable commercial opportunity, the plaintiff should in most cases also allege the extent of the loss it says it suffered on the possibilities. It is not sufficient for a plaintiff simply to allege a 100 per cent possibility of obtaining the hoped for or expected benefit, leaving it open to contend that the issue to be decided by the court is the actual degree of likelihood anywhere between 100 per cent and 1 per cent. To require a plaintiff to formulate its case with all reasonable precision does not detract from the power of the court to grant relief generally other than that specified in the pleadings... subject to the application of rules of procedural fairness.

These observations of Jackson J were referred to by Le Miere J in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 13], though did not apply to the claim His Honour was considering.[40]

1. In my assessment, in the amendment to ASOC par 17(c) what is not pleaded is the 'required causal nexus' between the information said to have been disclosed by Mr Talevski and the loss of opportunity to settle the claims for less than the amount stated. In other words, there is no plea as to how the information said to have been disclosed by Mr Talevski caused the loss of opportunity to settle the claims for less than the amount stated. This would include a plea as to what specific information in the accounts of the plaintiffs accessed by Mr Talevski on particular dates of relevance is material to the decision making of Mr Nikolic and Mr Mattiaccio as to the basis on which to settle with NXT Enterprise, and why. The plaintiffs might not be able to ascertain what information Mr Talevksi accessed and what he disclosed, but they can elaborate on what information in the account accessed was material. The corollary makes the point clearer: if there was no information in the relevant account potentially material to the decision making of Mr Nikolic and Mr Mattiaccio as to the basis on which to settle with NXT Enterprise, then whatever Mr Taleveski accessed and disclosed could not have caused the loss asserted by the plaintiffs.
2. Any amendment would also need to respect the principles identified by Jackson J in Huddy, to the extent that they are applicable to the case being advanced by the fourth plaintiff.
3. In summary, again, the amendment to ASOC par 17(c) should be struck out as the case ANZ has to meet in this regard is not sufficiently clear for it to fairly respond to. As currently expressed the amendment is embarrassing as it leaves ANZ in doubt as to what is alleged. There should, however, be leave to replead.
4. I add that at this stage in the life of this action, the plea in particular 37(b)(B) that 'further particulars of this plea may be provided after discovery, interrogatories and return of subpoenas' is not acceptable. Either further particulars should be provided, or this text should be removed.

1. ANZ then challenge the amendments to ASOC pars 15, 18, 22 and 31 to plead additional allegations of breach of the 'Bank's Training Duty'. The tenor of these amendments is illustrated by ASOC par 15:

1. In breach of the Bank's Fair Dealing Duties and the Bank's Training Duty, the Bank did not:

(a) inform the plaintiffs of the breaches of the Bank's Duty of Confidentiality and the Duty of Confidence as pleaded in paragraph 14 above; or
>
> (b) ensure that Mr Talevski did not further breach the Bank's Duty of Confidentiality and the Duty of Confidence through adequate training, supervision and monitoring.

1. Employees (and authorised representatives) of the Bank were required to complete online training modules on an annual basis relevantly including the Bank's:

(a) Prohibited and Restricted Activities Policy (Restricted Activities Policy); and

(b) Use of Systems, Equipment and Information Policy (Systems Use Policy).

1. Mr Talevski accessed and viewed the Accounts, information about the conduct of the Accounts, Plaintiff Information and Plaintiff Records on 5 separate occasions between 28 August 2014 and 11 February 2015 as set out in Schedule B of the Statement of Claim.
2. The Bank did not detect or otherwise identify that Mr Talevski had accessed and viewed the Accounts, information about the conduct of the Accounts, Plaintiff Information and Plaintiff Records in breach of the Restricted Activities Policy and Systems Use Policy.
3. ANZ says that the amended paragraphs are pleaded at too high a level of generality and provide no content as to:

(a) what is alleged to constitute 'adequate training, supervision and monitoring';

(b) the basis upon which the alleged duty is alleged to arise; or

(c) how it is alleged that those measures have not been met and the duty breached.

1. Further, it is said that the allegation in the third paragraph of the particulars that ANZ did not detect or otherwise identify that Mr Taleveski had access and viewed the accounts is equally vague and appears to be directed to a different topic from 'adequate training, supervision and monitoring'. The amendments to these paragraphs also result in rolled up pleas of breaches of two separate duties via two separate allegations in the sub-paragraphs, with one set of particulars. It is unclear to ANZ:

(a) whether it is alleged that the pleadings in the sub-paragraphs comprise breaches of each of the duties pleaded; and

(b) which of the matters set out in the particulars to that paragraph are relied upon for each of the separate allegations.

Consequently, ANZ says that it cannot properly plead to these matters, or be expected to meet this case at trial, where the pleading is too general and unsupported by any material facts.

1. The plaintiffs concede some of these concerns. They submit:[41]

ANZ also makes some criticism that the pleas are rolled together....Leaving aside whether this point was raised during conferral, if necessary, the plaintiffs will amend the claim to clarify that subparagraph (a) of each of the relevant paragraphs relates to the breach of the Bank's Fair Dealing Duties and subparagraph (b) relates to the breach of the Bank's Training Duty. Any want of clearness can be cured by amendment or further particulars.

1. I agree with ANZ's concerns. The amendments to ASOC par 15 in their current rolled up form are embarrassing as they do not allow ANZ to sensibly plead to them. At the very least, there should be separate paragraphs dealing with the alleged breach of the Bank's Fair Dealing Duties and the alleged breach of the Bank's Training Duty. I can readily imagine that ANZ's position in relation to each breach may give rise to different pleaded facts.
2. The same conclusion applies to ASOC pars 18, 22 and 31.
3. The amendments to ASOC pars 15, 18, 22 and 31 should be struck out with leave to replead.
4. Further, the amendments must disclose what is meant by the phrase 'adequate training, supervision and monitoring'. At this level of generality, the phrase is similar to a pleading of a failure to take reasonable care. It is well established that such a pleading must be supported by the plea identifying, in effect, what steps a reasonable person would have taken in the context, which the alleged tortfeasor did not take. The issues at trial become whether the particular step was one which a reasonable person would have taken and, if so whether the tortfeasor took that step. ANZ is entitled to know the precisely what it was required to have done by way of 'adequate training, supervision and monitoring'. ANZ can then meet this case by arguing that:

(a) the Bank's Training Duty did not, as a matter of law, require it to do the specific thing identified; and /or

(b) as a matter of fact, it did do the specific thing identified.

1. Finally, ANZ challenges an amendment to the prayer for relief to add injunctive relief. That amendment is:

an order requiring the Bank to put effective measures in place to protect the Plaintiff Information and Plaintiff Records from unauthorised access, use and disclosure by the Bank's employees (and authorised representatives);

1. ANZ says that there is no justification in the ASOC for a prospective order. This is in the context that Mr Talevski's employment was terminated in May 2019. In any event, the amendment sought is vague and ambiguous, so much so that ANZ could never be certain that it had complied with the order.[42]
2. The plaintiffs make three points in response. The first is that they have always sought an enforcing injunction 'because matters have not been set right for the future'. Although Mr Talevski's employment has been terminated, 'ANZ has not taken any steps to prevent another rogue employee from doing the same thing'.[43]
3. The second is that plaintiffs accept that, at some stage, they will need to provide ANZ with a precise formulation of the enforcing injunction sought. They say that this is not a strike out point. Rather: [44]

Pre-trial directions almost invariably include such steps as the exchange of expert reports well in advance of trial and a direction that those experts confer prior to trial...Written submissions are exchanged before trial. This leads to very little opportunity for surprise or ambush at trial. It should not be overlooked that ANZ is seeking to strike out an amendment in a prayer for relief.

1. The third is that the court is not confined to granting relief which the plaintiffs have specified, a principle reflected in Supreme Court Act 1935 (WA) s 24(7). That subsection empowers the court 'to grant... all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them' in the action.
2. The law in relation to mandatory injunctions is conveniently summarised for present purposes by Master Russell in Brislan v Engelhard Nominees Pty Ltd:[45]

The plaintiff seeks a mandatory injunction, that is an injunction which directly orders the defendant to do something. There are two kinds of mandatory injunctions: restorative and enforcing...

The more common restorative function compels a person to repair the consequences of some wrongful act they have done. An enforcing mandatory injunction instead compels the person to whom it is addressed to do something active which he or she has promised for valuable consideration to do. This second type of mandatory injunction approximates specific performance of a contract. However, while 'specific performance' is usually reserved for an order enforcing the whole of an agreement, a mandatory injunction may be ordered to compel performance of a single positive contractual obligation....

This court has jurisdiction to grant injunctive relief which is analogous to specific performance of a contractual right... The Court of Appeal set out the principles applicable to the grant of final injunctive relief in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 [132] ‑ [134] ... which include, as is well established:

(a) a plaintiff is not entitled in equity to an injunction simply because the plaintiff's legal rights are breached or are in jeopardy;... and

(b) injunctive relief will ordinarily only be granted in equity's auxiliary jurisdiction, if damages are not ascertainable or otherwise not an adequate remedy...

1. In my view, it is open for the plaintiffs to seek an injunction along the lines asserted in ASOC par 41(b). However, not in the vague and general terms currently pleaded. A relevant factor in whether or not to grant an injunction of this kind would be whether any of the plaintiffs still have accounts with ANZ. This goes to the risk and consequences of any future breach. These matters should be pleaded.
2. ANZ is entitled to know with more specificity the case it has to meet. If the plaintiffs are going to adduce expert evidence as to the scope of this injunction, the pleading should reflect that evidence. This in turn will inform ANZ as to the lay and expert evidence it needs to adduce at trial. Moreover, the terms of the proposed injunction will have to set out with specificity what it is that ANZ is going to be compelled to do. In any future contempt proceeding for breach, the plaintiffs would have to establish that the terms of the order were clear, unambiguous and capable of being complied with.[46] The injunction must be sought in those terms.
3. A plea in general terms may have been sufficient at the commencement of proceedings. However, when the action is on the cusp of being listed for trial, as this action is, a more specific plea ought to be provided so that the case that ANZ has to meet is expressed with sufficient clarity for it to fairly do so.
4. The plea in ASOC par 41(b) in its current form is embarrassing and should be struck out with leave to replead.

1. Given what I have said about the intermingled nature of the pleas sought to be advanced by the plaintiffs, and the need to identify the precise contractual basis for the claim brought by each individual plaintiff, I will allow the plaintiffs to file a substituted statement of claim.
2. The appropriate final orders to give effect these reasons are:

1. The following paragraphs of the amended statement of claim filed 28 November 2024 be struck out:

(a) paragraphs 5(g)(ii), 17(c), 31A and 41(b); and
>
> (b) the amendments to paragraphs 15, 18, 22, 31 and 37(d).

1. By [date] the plaintiff file and serve a minute of proposed substituted statement of claim.
2. My expectation is that the parties will confer on the amendments. I will list the action for a directions hearing a fortnight or so after the minute is served to determine whether there are any remaining pleadings issues.
3. I will hear from the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Defence of first defendant filed 23 December 2021 (D1 Defence), par 14.

[2] Amended defence of second defendant filed 9 December 2022 (D2 Defence), par 14.

[3] Banque Commerciale SA (In Liq) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279, 286 (Mason CJ and Gaudron J), 293 (Dawson J) (Banque Commerciale); Gunn v Meiners [2022] WASCA 95 [110] - [112] (judgment of the court); EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78; (2010) 41 WAR 23 [124] (Buss JA, with whom Owen & Newnes JJA agreed).

[4] Banque Commerciale (393) (Dawson J); Smith v McCusker [2000] WASCA 320 [212] (Templeman J, with whom Malcom CJ and Owen J agreed); Murchinson Zinc Pty Ltd v Thiess Contractors Pty Ltd [2000] WASCA 167 [38] (judgment of the court); Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 [13] (reasons of the court).

[5] Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 [7] (Martin CJ) (Barclay Mowlem); Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [60] (Smith J), (Vantage), affirmed in English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [55] - [56] (Murphy and Vaughan JJA) (English).

[6] Barclay Mowlem [8]; Hongkong Xinhe International Investment Company Ltd v Bullseye Mining Ltd [2021] WASC 260 [101] (Hill J).

[7] Blenkinsop v Herbert [2020] WASC 196 [9] (Smith J); Culleton v Permanent Custodians Ltd [2018] WASC 251 [33] (Allanson J).

[8] DM Drainage & Constructions Pty Ltd v Karara Mining Ltd [2014] WASC 170 [32] (Beech J) ( DM Drainage).

[9] Lonsdale Investments v OM (Manganese) Ltd [2009] WASC 188 [6] - [7] (Beech J).

[10] Rosebridge Nominees Pty Ltd v Commonwealth Bank of Australia [No 5] [2014] WASC 76 [50] (Le Miere J).

[11] See generally: Vantage [60], affirmed in English [55] - [56].

[12] Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers - Western Australian Branch v Bell-A-Bike Rottnest Pty Ltd [2005] WASCA 157 [54] (Roberts-Smith JA, with whom Wheeler JA agreed) (Automotive).

[13] English [104]; Neilson v City of Swan [2006] WASCA 94 [18] (Buss JA, with whom Wheeler and Pullin JJA agreed) (Neilson).

[14] Lee v Lawfirst Pty Ltd [No 2] [2023] WASCA 166 [81] (judgment of the court) (Lee [No 2]).

[15] Lee [No 2] [81]; Great Southern Finance Pty Ltd (in liq) v Rhodes [2014] WASC 431 [26] (Beech J) (Great Southern).

[17] Lee [No 2] [82]; Neilson [18].

[18] Lee [No 2] [80], [81]); DM Drainage [33]; Great Southern [26].

[19] Vantage [690]; Bertola v Australia and New Zealand Banking Group Ltd [2016] WASC 165 [21] (Martino J) (Bertola); Insurance Commission of Western Australia v Woodings as Liquidator of the Bell Group Ltd (in liq) [No 2] [2017] WASC 372 [33] (Pritchard J) (Insurance Commission).

[20] Vantage [60]; Insurance Commission [33]; Bertola [21]; David Clarke Air Conditioning Pty Ltd ATF David Clarke Air Conditioning Trust v Quann [2016] WASC 73 [15] (Allanson J) (David Clarke).

[21] Vantage [60]; AAA v BBB [2005] WASC 139 [34] (Hasluck J) (AAA).

[25] Allison Pty Ltd (t/As Pilbara Marine Port Services) v Lumley General Insurance Ltd [No 2] [2004] WASC 98 [20] (Master Newnes).

[26] Water Authority of Western Australia v AIL Holdings Pty Ltd (No 2) (1992) 10 WAR 233, 235 (Acting Master Hawkins); Waco Kwikform Ltd v Q-Con Pty Ltd [2009] WADC 45 [16] (David DCJ).

[27] Trackem Pty Ltd (ACN 168 532 269) v Revenue Partners (A Partnership) [2021] WASC 245 [35] - [36] (Archer J); Hall Chadwick Corp Finance (WA) Pty Ltd v Axiom Properties Ltd [2002] WASC 179 [22], [27] (Pullin J).

[31] Kelly v Bluestone Global Ltd (In liq) [2016] WASCA 90 [16] - [19] (McLure P).

[39] Graham & Linda Huddy Nominees Pty Ltd & Anor v Byrne & Ors [2016] QSC 221 [50] - [51] (Jackson J) (references omitted) (Huddy).

[40] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 13] [2021] WASC 214 [163] (Le Miere J). See also: Berry v CCL Secure Pty Ltd [2020] HCA 27; (2020) 94 ALJR 715; (2020) 271 CLR 151 [72] (Gageler and Edelman JJ).

[45] Brislan v Engelhard Nominees Pty Ltd [2024] WASC 131 [30] - [32] (Russell M) (references omitted).

[46] Mammoth Investments Pty Ltd v Donaldson [2024] WASCA 71 [14], [15] (Quinlan CJ).