Australian Football League v Age Company Ltd (No 2)
[2006] VSC 326
•11 September 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5184 of 2006
| AUSTRALIAN FOOTBALL LEAGUE AND AUSTRALIAN FOOTBALL LEAGUE PLAYERS’ ASSOCIATION INCORPORATED | Plaintiffs |
| v | |
| THE AGE COMPANY LTD AND ORS | Defendants |
| - and - | |
| No. 5237 of 2006 | |
| AUSTRALIAN FOOTBALL LEAGUE AND AUSTRALIAN FOOTBALL LEAGUE PLAYERS’ ASSOCIATION INCORPORATED | Plaintiffs |
| v | |
| NATIONWIDE NEWS PTY LIMITED | Defendant |
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JUDGE: | KELLAM J |
WHERE HELD: | Melbourne |
DATE OF JUDGMENT: | 11 September 2006 |
CASE MAY BE CITED AS: | AFL and Anor v The Age Company Limited and Ors (No. 2) |
MEDIUM NEUTRAL CITATION: | [2006] VSC 326 |
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PRACTICE – Declaratory and Injunctive relief – Width of terms of injunction – Evidence as to threatened abuse of confidential information.
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APPEARANCES: | Counsel | Solicitors |
| In matter No. 5184 of 2006 | ||
| For the Plaintiffs | Mr W. Houghton QC with Mr M. Connock | Browne & Co |
| For the Defendants | Mr S. Marks SC with Dr T. McEvoy | Minter Ellison |
| In matter No. 5237 of 2006 | ||
| For the Plaintiffs | Mr M. Connock | Browne & Co |
| For the Defendants | Mr S Marks SC with Dr T. McEvoy | Minter Ellison |
HIS HONOUR:
By judgment dated 30 August 2006 I determined that the defendants had no defence in these two proceedings to claims made by the plaintiffs that certain information was confidential under the AFL Illicit Drugs Policy.
The question now to be determined is the precise extent of the relief that should be granted in consequence of that determination.
On the basis of the pleadings, and my decision, it is apparent that the plaintiffs are entitled to a declaration that the identity of any AFL player who has tested positive on one or two occasions under the AFL Illicit Drugs Policy is private information that is confidential in nature. The defendants do not argue otherwise.
However, the defendants seek to add a rider to the proposed declaration to the effect that the policy is confidential “unless in the particular circumstances of the case the information loses its confidential character”.
Dr McEvoy, who appears for the defendants, argues that circumstances could arise in the future whereby the confidential information, the subject of the declaration, loses its confidential character.
However, who is to determine the “loss of confidential character” if such circumstances do arise? In my view, if there is an argument that circumstances have arisen which mean that the identity of any AFL player who has tested positive on less than three occasions is no longer confidential, that is a matter which should be determined by the Court and not by a reporter, editor or television program producer. However, to make that clear, no harm will be served by the addition of the words “until further order” to the draft declarations submitted to me by the plaintiffs. Otherwise than that amendment, I propose to make the declaration in the same terms as proposed by the plaintiffs.
The second issue which has arisen is in relation to the terms of the injunctive relief which should be granted. There is no argument put by the defendants as to the entitlement of the plaintiffs to injunctive relief but Dr McEvoy seeks that the injunction be limited. The plaintiffs seek injunctive relief in these terms:
“The first, second and third defendants, whether by their servants agents or how so ever otherwise, be permanently restrained from publishing or otherwise disseminating any material tending to identify any AFL player who has tested positive or who is deemed to have tested positive on one or two occasions under the AFL Illicit Drugs Policy.”
The defendants submit that the injunctive relief proposed by the plaintiffs is too wide and that the injunctive relief should be provided in the following terms:
“The first, second and third defendants, whether by their servants, agents or how so ever otherwise, be permanently restrained from publishing or otherwise disseminating any material tending to identify any of the three AFL players who are the subject of the confidential information pleaded in paragraph 13 of the statement of claim and who are identified by the Australian Sports Drug Agency in the documents comprising confidential exhibits 4, 5, 6 and 7 unless in accordance with the AFL Illicit Drugs Policy.”
In regards to the plaintiffs’ assertion that they are entitled to relief in the terms expressed by them, Dr McEvoy submits that the injunctive relief sought “goes far beyond the matters” which were the subject of the litigation. He contends that the pleadings and the evidence in the proceedings relate to the potential publication of the names of three AFL players who it was alleged had tested positive under the IDP and not beyond that.
Dr McEvoy relies upon the words of Lord Keith in AG v Guardian Newspapers (No. 2)[1] whereby in dealing with the width of the injunction proposed in the Spycatcher case he said:
“Injunctions are normally aimed at the prevention of some specific wrong, not at the prevention of wrong doing in general. It would hardly be appropriate to subject a person to an injunction on the ground that he is the sort of person who is likely to commit some kind of wrong, or that he has an interest in doing so. Then the injunction sought would not leave room for the possibility that a defence might be available in a particular case. … It would not be satisfactory to have the availability of any defence tested in contempt proceedings.”
[1][1990] 1 AC 109 at 264.
Dr McEvoy relies further upon Coflexip S.A. and anor v Stolt Comex Seaway MS and ors, a decision of Laddie J in the Patents Court.[2] There, dealing with the infringement of a patent, Laddie J said:
“It seems to me that whenever a court at the end of a trial grants permanent injunctive relief, the purpose should be to give effect to its judgment on liability. It has made certain findings of fact and applied them to its understanding of the law. Subject to questions of appeal, those findings bind the parties. The injunction granted should protect the plaintiff from a continuation of the infringement of his rights by the threatened activities of the defendant. But the injunction must also be fair to the defendant.”
[2][1999] 2 All ER 593.
In addition, Dr McEvoy referred me to Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc[3], a decision of the Full Court of the Federal Court of Australia where Sheppard J said:[4]
“ … A court asked to grant an injunction should be careful to see that it does not go further than the circumstances of the instant case requires. Usually there will be no reason to grant the injunction unless there is the threat of future conduct which itself will amount to a breach of the Act.”
[3](1992) 38 FCR 1.
[4]At p.18.
Dr McEvoy submits that the width of the injunctive relief proposed by the plaintiffs would mean that in circumstances where information could in the future come to the attention of the media defendants in a way “that was perfectly proper” they would be required to come back to court before such information could be published.
Mr Houghton, however, submits that the permanent injunction should be in the broad terms suggested by him. First, he submits that the concern of the defendants that they may have to return to court in the event that they have proper reason to publish the name of any player who had tested positive under the IDP, is of no consequence. In this regard he refers to Spry on Equitable Remedies[5] where the learned author, under the heading “Perpetual Injunctions: General” said:
“Both perpetual and also interlocutory and interim injunctions made any time be dissolved by the court by which they were granted, should it subsequently become appropriate to do so.”
[5]I.C.F. Spry, Equitable Remedies. LBC 6th ed. 2001.
Mr Houghton contends that it would at all times be open to the defendants to come back to the Court seeking variation of the injunction. In so far as the defendants rely upon the Spycatcher case, Mr Houghton submits that there are significant distinguishing features between that case and the relief sought by the plaintiffs. It is true that the injunction sought in that case was, to use the words of Mr Houghton, “impossibly wide” and differed significantly from the circumstances now before me.
Furthermore, Mr Houghton argues that the injunctive relief which the defendants contend should be granted causes uncertainty and ambiguity, which that proposed by the plaintiffs does not. Mr Houghton asks how are the media defendants to know to which three players the injunction refers? More particularly, he argues the publishers of other newspapers around Australia do not have the benefit of having access to the confidential exhibits tendered in the course of this case and will not know with any certainty the identities of the players to whom the injunction refers. He submits that the ratio of my judgment is that the identity of any player who has tested positive on one or two occasions under the IDP ought remain confidential for the reasons set out in the judgment and that the injunctive relief should reflect that fact.
It is necessary to examine both the background and the pleadings in the two proceedings to establish what was the actual threat of abuse of confidential information.
The evidence before me was that on 13 March 2006 the Herald-Sun, which is not a party to any proceedings in this Court, published an article stating that a player had been “caught twice using drugs”.[6] The article went on to say that “two more players … are believed to have tested positive to illegal drugs”. The Herald-Sun article stated that the newspaper “had chosen not to name the players”. This was no doubt a responsible approach to the possibility, if not the likelihood, of the information being, prima facie at least, confidential.
[6]See paragraph 9 of the affidavit of Adrian Anderson sworn 16 March 2006.
On 15 March 2006 the AFL was informed that the Sydney Morning Herald was proposing to publish an article on 16 March 2006 “identifying AFL players who had tested positive to drug tests under the AFL Illicit Drugs Policy”.[7] On the same evening, the AFL was advised by the Players’ Association that an Age journalist, Ms Carolyn Wilson, had informed them that The Age intended to publish an article “identifying AFL players who had tested twice positive to drug tests under the AFL Illicit Drugs Policy”.[8] Once again this advice to the AFL appears to me to have been responsible conduct, acknowledging at least the possibility of an argument about confidentiality.
[7]See paragraph 12 of the affidavit of Adrian Anderson sworn 16 March 2006.
[8]See paragraph 13 of the affidavit of Adrian Anderson sworn 16 March 2006.
That evening, Hollingworth J made an ex parte order that the media defendants in proceeding 5184 of 2006 (“the first proceeding”) being The Age, John Fairfax Publications Pty Ltd and West Australian Newspaper Holdings Limited be restrained from “disseminating any material tending to identify any AFL player who has tested positive or who is deemed to have tested positive under the AFL Anti Doping Code or the AFL Illicit Drugs Policy”. The interim restraining order granted on 22 March 2006 by Hollingworth J was in the same terms.
Following the ex parte orders made by Hollingworth J and on 16 March 2006, the AFL was informed that the Australian proposed to print the names of three players who it asserted had tested positive on two occasions under the AFL Illicit Drugs Policy. On the evening of 16 March 2006 the solicitor for the plaintiffs spoke to a Mr Lunn, the National Chief of Staff of the Australian Newspaper.[9] Mr Lunn was asked for an undertaking that the Australian would not publish “the three names” until the outcome of the proceedings which had been issued against The Age and others until such time as the ex parte orders made by Hollingworth J were determined. Mr Lunn refused to give such an undertaking and stated that the order made by Hollingworth J “has no bearing on us”. In those circumstances, the plaintiffs commenced the second proceeding, No. 5237 of 2006, against Nationwide News (“the second proceeding”). Ex parte orders were made on 16 March 2006 restraining the Australian from publishing “any material tending to identify any AFL player who has tested positive … under the … AFL Illicit Drugs Policy”.
[9]See the affidavit of “John” Arthur Edgar sworn 17 March 2006.
I turn now to the pleadings in the first proceeding brought against The Age and others. Paragraph 12 of the amended statement of claim provides as follows:
“The identity and other details tending to identify any AFL player who violated any anti-doping rule, committed any doping offence, tested positive or is deemed to have tested positive pursuant to the AFL’s Illicit Drugs Policy is sensitive and private information of a confidential nature.”
It should be observed that paragraph 12 does not refer to any number of players.
Furthermore, the amended defence, although admitting that the information contained in paragraph 12 would be information of a confidential nature were it not for the “illegal, iniquitous and/or anti-social conduct by AFL players” did not refer to any number of players.
Paragraph 13 of the Amended Statement of Claim however provides that:
“The first and second and third defendants each received information regarding the identity of AFL players who tested positive or were deemed to have tested positive pursuant to the AFL Illicit Drugs Policy (‘the confidential information’).
PARTICULARS
On 15 March 2006 the plaintiffs became aware that on 16 March 2006 the first, second and third defendants proposed to publish (in The Age, the Sydney Morning Herald and the West Australian newspapers respectively) the names of three AFL players who it was said had tested positive or were deemed to have tested positive pursuant to the AFL Illicit Drugs Policy … “.
The defence of the defendants to paragraph 13 stated that each of the first, second and thirds defendants had received information as to the “identity of three offending AFL players” in early March.
Paragraph 14 of the amended statement of claim alleged that the confidential information was received by each of the first, second and third defendants in circumstances whereby each defendant ought to have known that the information was private information of a confidential nature and/or that it was imparted in breach of an obligation of confidence. In response the amended defence contended that there was a public interest in the information being disclosed to the public and furthermore pleaded that “the identity of the three offending AFL players should not be kept secret or held from passing further into the public domain merely because it was disclosed in confidence”. The defence then set out a number of particulars of public interest. The particulars of public interest were not confined to any stated number of players.
Accordingly the plaintiffs defined the “confidential information” as being the names of “three AFL players who it was said had rested positive or were deemed to have tested positive to the AFL Illicit Drugs Policy.”
The amended defence admitted having received information as to the identity of “three offending AFL players who had engaged in prohibited conduct” but denied that the information as to their identity was confidential.
By paragraph 15 of the amended statement of claim the plaintiff alleged that the defendants had “threatened” to publish the “confidential information”. By their defence the defendants did not admit that allegation, although I accept that the evidence is clear that they intended to publish such information, being the names of the three players who were asserted by them to be in breach of the AFL Illicit Drugs Policy.
Thus it is apparent that the confidential information upon which the parties joined issue before me was the identity of three players who it was said had tested positive or were deemed to have tested positive pursuant to the AFL Illicit Drugs Policy. It should be observed that although the pleadings did not refer to the matter, the hearing of the application for permanent injunction in fact proceeded on the basis that the confidential information related to three players who it was said had breached the AFL Illicit Drugs Policy on two occasions. The evidence before me related to the issue of the intended publication of the names of three players who were said to have each breached the policy twice.
The pleadings in the second proceeding are in similar terms to the pleadings in the first proceeding.
It is beyond argument that the Court has jurisdiction to grant relief against “an action of threatened abuse of confidential information not involving any tort or any breach of some … contractual provision, some wider fiduciary duty or some copyright or a trade mark right.”[10]
[10]Moorgate Tobacco Co Ltd v Philip Morris Ltd (No. 2) [1983-84] 156 CLR 414 at 438 per Deane J.
The evidence of the threatened abuse of confidential material before me related to the identity of three persons who were said to have tested positive under the policy in question on two occasions. No evidence was put before me of any threatened abuse of confidential information the subject of the AFL Illicit Drugs Policy beyond that. Accordingly, I accept the general thrust of the submission made by Dr McEvoy that the terms of the injunctive relief should not be wider than that. However, Mr Houghton contends that to follow such a course will lead to uncertainty. There is some weight in that argument in that the terms of the order proposed by Dr McEvoy may be seen as somewhat opaque. There would of course, be no uncertainty if the confidential information was directly referred to in the order, but that, of course, would defeat the object of the whole exercise that has been undertaken before me. The alternative, in Mr Houghton’s submission, is that I should make an order that is wider than that, which in my view, is necessary to restrain the threatened abuse.
In my view there is no uncertainty in so far as the knowledge of the defendants as to what is meant by “confidential information”, in the context of the pleadings and the evidence in these proceedings, is concerned. They, and/or their legal advisers, are well aware of the issues which were before the Court and the evidence given and can be expected not to take any precipitous action by way of future publication without appropriate legal advice. In this regard I am comforted by the fact that the media defendants, in the first proceeding at least, have in my view acted with total propriety to date in relation to this matter, and can be expected to do so in the future. Likewise, I might add, have other media organisations who are not defendants to these proceedings. In that regard the article published by the Herald‑Sun on 13 March 2006 is an admirable example. Accordingly, I do not consider that an order referring to “the confidential information pleaded in paragraph 13 of the statement of claim” will be in any way ambiguous, uncertain or misleading to the named defendants. Mr Houghton goes further however, and asks: “How are the publishers of other newspapers around Australia to know with certainty to whom the injunction refers?” Notwithstanding that the injunction applies to the defendants in these proceedings only, that is a legitimate question in my view, and one that has caused me some concern. However, the answer to that question does not dictate the granting of injunctive relief which goes beyond the evidence of the threatened abuse of confidential information put before me. Rather, the answer is that media organisations in Australia will be well aware of the fact of the declaration made in these proceedings, to the effect that any AFL player who has tested positive or who is deemed to have tested positive on a first or second occasion under the AFL Illicit Drugs Policy, is confidential information. That declaration can be read in the context of my reasons for judgment and in the context of the permanent injunction granted to restrain the threatened abuse of confidential information by the named defendants in each of these proceedings. I do not believe in such circumstances, that any appropriately advised media organisation will suffer any uncertainty as to its responsibilities, or as to the possibilities which may follow any ill advised publication in all of the circumstances.
In such circumstances I propose that judgment in each proceeding be in the following terms.
1.Until further Order, the Court declares that the identity of any AFL player who has tested positive or who is deemed to have tested positive on the first or second occasion under the AFL Illicit Drugs Policy is private information that is confidential in nature.
2.The defendants (“defendant” in the second proceeding) whether by their (“its”) servants, agents or howsoever otherwise, be permanently restrained from publishing or otherwise disseminating any material tending to identify any of the three AFL players who are the subject of the “Confidential Information” pleaded in paragraph 13 (14) of the Statement of Claim.
3.The defendants pay the plaintiffs’ costs of the proceeding, including reserved costs.
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