Allianz Australia Insurance Ltd v Australia and New Zealand Banking Group Ltd
[2025] QMC 24
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- Allianz Australia Insurance Ltd v Australia and New Zealand Banking Group Ltd[2025] QMC 24
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Allianz Australia Insurance Ltd v Australia and New Zealand Banking Group Ltd[2025] QMC 24
Allianz Australia Insurance Ltd v Australia and New Zealand Banking Group Ltd[2025] QMC 24
MAGISTRATES COURTS OF QUEENSLAND
CITATION: | Allianz Australia Insurance Ltd v Australia and New Zealand Banking Group Ltd [2025] QMC 24 |
PARTIES: | Allianz Australia Insurance Ltd (Applicant) v Australia and New Zealand Banking Group Ltd (Respondent) |
FILE NO/S: | M 3259/25 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane Magistrates Court |
DELIVERED ON: | 17/09/2025 |
DELIVERED AT: | Brisbane Magistrates Court |
HEARING DATE: | On the papers |
MAGISTRATE: | Pinder |
ORDER: |
For the period 23 April 2024 to the date of these orders;
For the period 23 April 2024 to the date of these orders
|
CATCHWORDS: | CIVIL PROCEDURE – PRELIMINARY DISCLOSURE Uniform Civil Procedure Rules 1999 (Qld) r 208C Blue Dog Group Pty Ltd v Glaucus Research Group California LLC & Ors [2024] QSC 37 |
SOLICITORS: | Applicant – Moray & Agnew Lawyers Respondent – No Appearance |
INTRODUCTION
- [1]The applicant was the insurer of a house property and accepted a claim from its insured to pay damages of $44,502.14.
- [2]Unlike the days of yesteryear when payments of this kind were made by way of promissory note (a cheque) – the like of which the current generation are unlikely to have seen, the applicant’s payment to its insured was to be by way of bank transfer.
- [3]Alas there being ‘many a slip twixt cup and lip,’ the applicant’s staff input the incorrect account number and the monies were paid into the account of an unknown receipt.
- [4]The applicant now seeks to identify and locate the recipient of the funds, a prospective defendant in a claim for unjust enrichment.
THE APPLICATION
- [5]The applicant applies for the following orders:
- Pursuant to rule 208C of the Uniform Civil Procedure Rules 1999 (Qld), within seven days of the date of this Order, the respondent produce to the applicant in relation to BSB number 015-896 and account number 194 096 265 (‘the Account’):
- The document contained in the respondent’s systems which records:
- The name of the holder(s) of the Account; and
- The name of the authorised operator(s) of the Account,
For the period 23 April 2024 to the date of these orders;
- The document contained in the respondent’s system which records:
- The residential address(es) and mailing address(es) for the holder or holders of the Account and the authorised operator(s) of the Account;
- Contact phone number(s) for the holder or holders of the Account and the authorised operator(s) of the Account; and
- Email address(es) for the holder or holders of the Account and the authorised operator(s) of the Account
For the period 23 April 2024 to the date of these orders
- There will be no order as to costs
THE APPLICANT’S MATERIAL
- [6]The applicant relies on the following material
- Originating application (seeking orders pursuant to r 208(c) – UCPR) filed 28 February 2025.
- Affidavit of Mathew Michael Hickey (solicitor) filed 28 February 2025.
- Affidavit of Mathew Michael Hickey (solicitor) service upon the respondent filed by leave 2 May 2025.
- [7]The applicant conveniently also provided:
–Written submissions dated 2 May 2025.
–Draft Orders.
- [8]The respondent did not appear on the hearing of the application and has not filed any material in response.
THE RELEVANT RULE
- [9]The UCPR was relatively recently amended in respect of Chapter 7 – Disclosure, to introduce provisions in relation to ‘preliminary disclosure.’
- [10]Whilst the provisions of ch 7 pt 1 initially only applied to the Supreme Court, that was repealed effective 16 February 2024 such that the District Court and Magistrates Court are now vested with the power to make orders for preliminary disclosure.
- [11]This is one of the first, if not the first, applications for preliminary disclosure in the Magistrates Court.
- [12]Rule 208C – UCPR empowers the court in these terms:
(2)the court may order that the other person– …
- produce to the applicant a document or thing relating to the identity or whereabouts of the prospective defendant as directed by the order.
- [13]The discretion to be exercised in making orders pursuant to r 208C (2) is informed by the prerequisites contained in s 208C (1).
- [14]Ruel 208C (1) provides as follows:
- The court may make an order under subrule (2) if it appears to the court that–
- an applicant may have a right to relief against a prospective defendant; and
- the applicant has made reasonable inquiries, but is unable to sufficiently ascertain the identity or whereabouts of the prospective defendant; and
- another person may have information, or possession or control of a document or thing, that may assist in ascertaining the identity or whereabouts of the prospective defendant.
- [15]The other procedural requirements of r 208C are:
- –The application must be supported by an affidavit stating the facts on which the applicant relies and the information, document, or thing in respect of which the order is sought.[1]
- –If the application is not made in an existing proceeding it must be commenced by originating application.[2]
- –The application and supporting affidavit must be served personally on the other person (the respondent).[3]
- [16]Chapter 7 – Part 1 commences with a number of relevant definitions for the part which are provided by r 208B.
- [17]Rule 208B Provides:
In this part –
“applicant” means a person who applies for an order under this part.
“document” includes a class of documents
“identity”, of a prospective defendant, includes the name and the occupation, if any, of the prospective defendant.
“prospective defendant”, in relation to an applicant, means a person against whom the applicant intends to start and proceeding.
“whereabouts”, of a prospective defendant, includes a place of residence, registered office, place of business or other location of the prospective defendant.
THE RELEVANT LEGAL PRINCIPLES
- [18]Due to the relevant recency of the commencement of the ‘preliminary disclosure’ provisions contained in ch 7 pt 1 UCPR, there are to date limited authorities.
- [19]Decisions analyse similar but differently worded rules in other jurisdictions.
- [20]Brown J (as Her Honour then was) has provided a comprehensive and practically useful decision in respect of r 208C and its application in Blue Dog Group Pty Ltd v Glaucus Research Group California LLC [2024] QSC 37.[4]
- [21]That case involved the applicant Blue Dog Group seeking production of documents pursuant to r 208C and r 208D in respect of a prospective action against an unknown proposed defendant for what was called ‘targeted activist short selling.’ Her Honour noted that the power of the court to make orders as to preliminary discovery was apparently introduced to supplement the power of the court (the Supreme Court with inherent jurisdiction) to order disclosure, in addition to preliminary disclosure available under the principles set out in the House of Lord’s decision of Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133.[5]
- [22]In respect to the definition contained in r 208B of the ‘prospective defendant’ Her Honour accepted that r 208C (1) provided the court must also be satisfied that the applicant intends to start a proceeding against the ‘prospective defendant.’[6]
- [23]After expressing that caution must be exercised when reviewing court’s analysis of similar but differently worded rules in other jurisdictions Her Honour went on to consider a number of decisions in respect of the Uniform Civil Procedure Rules 2005 (NSW) providing for preliminary disclosure.[7]
- [24]After comprehensively considering the New South Wales authorities, Her Honour observed in relation to the requirement that the document and or thing may assist in ascertaining the identify of the prospective defendant that that requirement in the Queensland rule had a slightly lower threshold than the New South Wales Rule.[8]
- [25]The applicant must satisfy the court that:
- –The applicant may have a right of relief against a prospective defendant.
- –The applicant has made reasonable enquiries but is unable to sufficiently ascertain the identity or whereabouts of the prospective defendant; and
- –Another person may have information or possession or control of a document or thing that may assist in ascertaining the identity or whereabouts of the prospective defendant.
THE APPLICANT MAY HAVE A RIGHT OF RELIEVING AGAINST A PROSPECTIVE DEFENDANT
- [26]The applicant’s material provides direct evidence that as a consequence of an error in transcribing the bank account details by a staff member of the applicant, a substantial sum of money ($44,500) was paid in error to an unknown person or persons who hold a bank account with the respondent.[9]
- [27]The right to relief of the applicant is to commence proceedings by way of claim for unjust enrichment.
THE APPLICANT HAS MADE REASONABLE ENQURIES BUT IS UNABLE TO SUFFICIENTLY ASCERTAIN THE IDENTITY OR WHEREABOUTS OF THE PROSPECTIVE DEFENDANT
- [28]The applicant’s material confirms that upon ascertaining the mistake in respect of the payment to the wrong bank account number, the applicant sought to trace payment of the funds but was unsuccessful. The only identity particulars available to the applicant was the BSB number for the account which confirmed that it was associated with the respondent.[10]
ANOTHER PERSON MAY HAVE INFORMATION OR POSSESSION OR CONTROL OF A DOCUMENT THAT MAY ASSIST IN ASCERTAINING THE IDENTITY OR WHEREABOUTS OF THE PROSPECTIVE DEFENDANT.
- [29]The applicant’s evidence confirms that the BSB number for the account to which the payment was made in error, is associated with the respondent. The respondent as a bank would hold in its records details of the account holders for the account identified by number to which the payment was made.
- [30]The applicant sought on a number of occasions to make enquiries of the respondent to identify or require production of the identity of the account holder but received no response.[11]
CONSIDERATION
- [31]The applicant has on its affidavit evidence satisfied all of the requirements of r 208C.
- [32]The applicant having made a payment in error to an unidentified party, who holds a bank account with the respondent, has identified a right to relief against that prospective defendant being a claim for unjust enrichment.
- [33]As Brown J (as Her Honour then was) noted
It is sufficient as in the present case that there is evidence that the applicant intends to commence proceedings against a prospective defendant if:
- They are permitted to inspect the document.
- The contents of the document are such that it is appropriate to commence the proceedings.[12]
- [34]The applicant has made reasonable enquiries, indeed exhausted the enquiries available to it, to endeavour to ascertain the identity of the prospective defendant but has been unable to do so.
- [35]The respondent, who has chosen not to appear on the hearing of this applicant and further chosen not to respond to the written request from the applicant’s lawyers, is clearly a person who may have information that may assist in ascertaining the identity of the account holder. On the applicant’s material the finding that the respondent in fact does possess information or documents which identify the identity of the prospective defendant is appropriate to be made.
- [36]The nature of the documents sought to be disclosed in the application, namely the names of the holders of the account and authorised operators, the residential address, mailing address, contact phone numbers, and email address are all matters that clearly would be held by the respondent.
- [37]Documents disclosing that material ought be properly the subject of the preliminary disclosure order sought by the applicant.
DISPOSITION
- [38]The applicant having satisfied all the requirements of s 208C of the Uniform Civil Procedure Rules 1999 (Qld) is appropriate to make the orders sought, namely:
- Pursuant to rule 208C of the Uniform Civil Procedure Rules 1999 (Qld), within seven days of the date of this Order, the respondent produce to the applicant in relation to BSB number 015-896 and account number 194 096 265 (‘the Account’):
- The document contained in the respondent’s systems which records:
- The name of the holder(s) of the Account; and
- The name of the authorised operator(s) of the Account,
For the period 23 April 2024 to the date of these orders;
- The document contained in the respondent’s system which records:
- The residential address(es) and mailing address(es) for the holder or holders of the Account and the authorised operator(s) of the Account;
- Contact phone number(s) for the holder or holders of the Account and the authorised operator(s) of the Account; and
- Email address(es) for the holder or holders of the Account and the authorised operator(s) of the Account
For the period 23 April 2024 to the date of these orders
- There will be no order as to costs
- [39]I make orders in terms of the draft orders which I initial and place with the papers.
Magistrate JNL Pinder
17/09/2025
Footnotes
[1] Uniform Civil Procedure Rules 1999 (Qld) r 208C(4)(a).
[2] Uniform Civil Procedure Rules 1999 (Qld) r 208C(5)(b).
[3] Uniform Civil Procedure Rules 1999 (Qld) r 208C(4)(b).
[4] Blue Dog Group Pty Ltd v Glaucus Research Group California LLC [2024] QSC 37.
[5] Blue Dog Group Pty Ltd v Glaucus Research Group California LLC [2024] QSC 37 [16].
[6] Blue Dog Group Pty Ltd v Glaucus Research Group California LLC [2024] QSC 37 [18].
[7] Blue Dog Group Pty Ltd v Glaucus Research Group California LLC [2024] QSC 37 [19].
[8] Blue Dog Group Pty Ltd v Glaucus Research Group California LLC [2024] QSC 37 [27].
[9] Affidavit of MM Hickey sworn 27/02/2025 [5].
[10] Affidavit of MM Hickey sworn 27/02/2025 [6]–[8].
[11] Affidavit of MM Hickey sworn 27/02/2025 [9]–[12].
[12] Blue Dog Group Pty Ltd v Glaucus Research Group California LLC [2024] QSC 37 [33].