Capolingua v Nationwide News Pty Ltd [No 2]
[2019] WASC 23
•7 FEBRUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: CAPOLINGUA -v- NATIONWIDE NEWS PTY LTD [No 2] [2019] WASC 23
CORAM: LE MIERE J
HEARD: 23 JANUARY 2019
DELIVERED : 7 FEBRUARY 2019
FILE NO/S: CIV 1334 of 2015
BETWEEN: ROSANNA CAPOLINGUA
Plaintiff
AND
NATIONWIDE NEWS PTY LTD
Defendant
Catchwords:
Practice and procedure - Discovery - Prohibited disclosure of certain information - Application for declaration
Legislation:
Criminal Code Compilation Act 1913 (WA), s 81, s 81(2)
Public Service Regulations 1988 (WA), reg 8
Tobacco Products Control Act 2006 (WA), s 59, s 123, s 123(1), s 123(1)(b), s 123(1)(c), s 123(2)
Western Australian Health Promotion Foundation Act 2016 (WA), s 5, s 46, s 46(1)(c), s 67
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr M L Bennett |
| Defendant | : | Mr J D Maclaurin |
Solicitors:
| Plaintiff | : | Bennett + Co |
| Defendant | : | M + K Lawyers |
Case(s) referred to in decision(s):
Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438
LE MIERE J:
Summary
The plaintiff was until February 2014, the Chairperson of the Western Australian Health Promotion Foundation trading as Healthway. The plaintiff sues the defendant media organisation alleging that an article published on the defendant's website is defamatory of her. The lede tells what the story is about:
The West Australian Government's controversial anti‑smoking agency Healthway is embroiled in a corporate perks scandal after an investigation found that its Chairwoman and senior executives wrongfully obtained VIP tickets for family and friends to attend sporting and arts events as part of the group's sponsorship deals.
The plaintiff has given discovery pursuant to orders of the court. The plaintiff has objected to producing a number of documents on the ground that disclosure is prohibited by s 123 of the Tobacco Products Control Act 2006 (WA) (TPC Act). Section 123 prohibits a person disclosing or using any information obtained by reason of a function under the Act unless the disclosure falls within the exceptions in s 123(1)(b) or (c) of the Act. The court has made orders for the parties to file and exchange witness statements. The plaintiff and prospective witnesses who are current members, former members or employees of Healthway or persons providing services to Healthway under a contract for services have expressed concern that disclosing information obtained by them by reason of a function they had in administration of the TPC Act may be a breach of numerous statutory provisions and render them liable to prosecution. Specifically, s 123 of the TPC Act, s 46 of its successor the Western Australian Health Promotion Foundation Act 2016 (WA) (WAHPF Act), reg 8 of the Public Service Regulations 1988 (WA) or s 81 of the Criminal Code.
The plaintiff has applied for a declaration that the giving of evidence (including the giving of a witness statement which may or may not be tendered in these proceedings) by board members, current or former employees of Healthway or persons providing services to Healthway under a contract for services is not a breach of any statutory obligation under TPC Act s 123, WAHPF Act s 46, Public Service Regulations reg 8 or Criminal Code s 81, notwithstanding that the evidence discloses or makes use of information obtained by reason of a function that the witness has or has at any time had in the administration of the TPC Act, the WAHPF Act or otherwise public comments on any administrative action or administration of any department or organisation within the Western Australian government.
On 23 January 2019 I made the declaration sought. These are my reasons for making the declaration.
Jurisdiction
The first question is whether the court has jurisdiction to make the declarations sought.
The court has jurisdiction to make declarations to the effect that a proposed course of conduct will not be unlawful. In Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 356 the High Court said of declaratory relief:
The jurisdiction includes the power to declare that conduct which has not yet taken place will not be in breach of a contract or a law and such a declaration will not be hypothetical in the relevant sense.
In Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437 ‑ 438 Gibbs J (with whom the other members of the court agreed on this point) said that the rule summarised by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 should in general be satisfied before a declaration is made. Lord Dunedin there said:
The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought.
The question raised by the plaintiff's application is not abstract or hypothetical; it concerns the lawfulness of making available for inspection documents which the plaintiff is obliged, subject to questions of privilege or public interest immunity, to make available for inspection. Furthermore, the parties have been ordered to file and serve witness statements. Several of the prospective witnesses, including the plaintiff, have raised concerns in respect of their statutory obligations. The question about jurisdiction comes from an apprehension that there was no contradictor.
In the present case, no contradictor appeared at the hearing. The defendant appeared and supported the making of the declarations sought by the plaintiff. But that does not compel a conclusion that there is no proper contradictor in this case, so the court is being asked to advise rather than to adjudicate. In this case the Foundation and the State are proper contradictors.
The requirement for a 'proper contradictor' may be satisfied where there is a party which has 'a true interest in the plaintiff's claim even if that party came to see that interest served by not opposing the relief claimed': Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378 [16].
In the present case, the State and the Foundation have an interest in whether disclosure of the information may be a breach of the relevant Act. Any prosecution is the responsibility of the Foundation CEO, without whose consent a prosecution cannot be brought. The State has an interest in any prosecution which might be brought. The State Solicitor's Office (SSO), on behalf of the State and the Foundation, has been informed of this application and the orders sought by the plaintiff. The SSO has chosen not to oppose or appear on the hearing of the application. By choosing not to oppose the application, that amounts to performance by the State and the Foundation of their role as contradictor in a particular way.
The legislative provisions
The objects of the TPC Act include regulating the sale and promotion of tobacco products and reducing the exposure of people to tobacco smoke from tobacco products and related purposes. Until it was replaced by the WAHPF Act on 1 September 2016, pt 5 of the TPC Act made provision for the establishment and administration of the Foundation. Section 59 established the Foundation. Section 123 prohibited disclosure of certain information.
Section 123 is:
123. Certain information not to be disclosed etc.
(1)A person must not record, disclose or make use of any information obtained by reason of a function that the person has, or at any time had, in the administration of this Act except ‑
(a)for the purpose of performing a function under this Act; or
(b)as required or allowed by this Act or under another written law; or
(c)for the purposes of any legal proceedings arising out of the administration of this Act; or
(d)for the purpose of assisting a person who is performing a function under a corresponding law; or
(e)with the written consent of the person to whom the information relates; or
(f)in prescribed circumstances.
Penalty: a fine of $10 000 and imprisonment for 12 months.
(2)Subsection (1) does not apply to the recording, disclosure or use of statistical or other information that could not reasonably be expected to lead to the identification of any person to whom it relates.
In 2016 the WAHPF Act was enacted. The object of the Act is to promote and facilitate in Western Australia good health and activities which encourage healthy lifestyles. The part of the WAHPF Act which commenced on 1 September 2016 deleted most of pt 5 of the TPC Act, including s 59, which established the Foundation. Section 5 of the WAHPF Act established the Western Australian Health Promotion Foundation. Section 67 of the Act provides that the Foundation is a continuation of, and the same legal entity as, the Foundation established under the TPC Act.
Section 46 of the Act creates an offence concerning the disclosure or use of information in similar, but not identical, terms to s 123 of the TPC Act. Section 46 of the WAHPF Act is:
46. Confidentiality of information
(1)A person must not record, disclose or make use of any information obtained by reason of a function that the person has, or at any time had, in the administration of this Act except ‑
(a)for the purpose of performing a function under this Act; or
(b)as required or allowed by this Act or under another written law; or
(c)for the purposes of proceedings in a court; or
(d)with the written consent of the person to whom the information relates; or
(e)in prescribed circumstances.
Penalty: a fine of $10 000 and imprisonment for 12 months.
(2)Subsection (1) does not apply to the recording, disclosure or use of statistical or other information that could not reasonably be expected to lead to the identification of any person to whom it relates.
The difference between WAHPF Act s 46 and TPC Act s 123 is that the exception under subcl (1)(c) in the WAHPF Act extends to disclosures 'for the purposes of proceedings in a court', whereas the exception in subcl (1)(c) of the TPC Act is confined to disclosures 'for the purposes of any legal proceedings arising out of the administration of this Act'.
Continued application of TPC Act s 123
TPC Act s 123 has not been repealed but the WAHPF Act has repealed those provisions of the TPC Act which provided for the establishment of the Foundation, its functions and powers, and its members and staff. The Foundation established by the WAHPF Act is a continuation of, and the same legal entity as, the Foundation established by the TPC Act. The functions and powers, members and staff are now regulated by the WAHPF Act.
Section 46 of the WAHPF Act applies to information obtained by a person by reason of a function that the person has, or had at any time had, as a member or employee of the Foundation, including as a member or employee of the Foundation when the Foundation was established and regulated by the TPC Act. That is because the Foundation is a continuation of, and the same legal entity as, the Foundation established by the TPC Act. Accordingly, the rights and liabilities in relation to the TPC Act Foundation continue as rights and liabilities in relation to the Foundation established by the WAHPF Act. In this context, liabilities should be read to include and extend to liabilities under or arising from s 123 of the TPC Act.
It follows that s 46 of the WAHPF Act, not s 123 of the TPC Act, applies where a person discloses or uses any information obtained by reason of a function as a member or employee of the Foundation. The exception under subcl (1)(c) applies to the disclosure or use of relevant information for the purposes of proceedings in a court. A person may disclose information obtained by reason of a function as a member or employee of the Foundation, whether before or after the commencement of the WAHPF Act.
TPC Act s 123(c) exception
If I am wrong in that conclusion then it is necessary to consider whether the disclosure of information obtained by a person by reason of a function the person had as a member or employee of the Foundation under the TPC Act, and before the WAHPF Act commenced, falls within the exception under TPC Act s 123(1)(c). That is, whether the disclosure or use of the information is for the purposes of any legal proceedings arising out of the administration of this Act. The question is whether this action is a proceeding arising out of the administration of the TPC Act.
The construction of the phrase 'for the purposes of any legal proceedings arising out of the administration of this Act' depends upon the meaning of the words 'arising out of' and the words 'administration of this Act' in the context of the TPC Act.
The phrase 'arising out of' should be given a broad meaning such as 'originating from', 'growing out of' or 'flowing from'. That is, it requires some causal connection to the administration of the Act but does not require the administration of the Act to be a direct or proximate cause.
The administration of the Act should also be given a broad reading. It should extend at least to matters dealt with in pt 5 of the TPC Act including the functions and powers of the Foundation, the Chairperson and other members of the Foundation and the receipt, use and expenditure of the Foundation's resources.
The meaning of the phrase 'for the purposes of any legal proceedings arising out of the administration of this Act' must take its meaning from its context. The scheme of s 123(1) is to make a blanket prohibition on recording, disclosing or making use of any information obtained by reason of a function the person has in the administration of the Act and then specifying exceptions to that prohibition. The effect is to prohibit a person from disclosing any information obtained by reason of a function the person has in the administration of the Act to a court, except for the purposes of any legal proceedings arising out of the administration of the Act. Section 123(2) shows that the mischief the section addresses is the disclosure of private information obtained by a person executing a function under the Act.
A court should be slow to find that the legislature has prohibited a person from providing evidence that is relevant to, or indeed necessary for, the resolution of proceedings before a court where there is a connection between the legal proceedings and the administration of the Act understood in a broad sense.
There is a connection between these proceedings and the administration of the Act. The proceedings concern a publication in which the defendant made allegations about the Foundation's functions and the use of its resources in relation to sponsorship. The central issues in the proceedings include:
1.whether the plaintiff used her position as Chairperson of the Foundation inconsistently with her obligation to be scrupulous in the use of public resources, and wrongfully obtained VIP tickets to sporting and arts events from the Foundation sponsored organisations for her family and friends;
2.whether the plaintiff had in her position as Chairperson of the Foundation, and inconsistently with her obligation to be scrupulous in the use of public resources, derived a private benefit from a share of $220,000 worth of perks to which she was not legitimately entitled including VIP tickets of which she was the second biggest user; and
3.whether the article is a fair summary of a report by the Public Sector Commission relating to the management of sponsorships by the Foundation.
The use and expenditure of resources of the Commission and the functions of its Chairperson are the subject of the article and the source and origin of these proceedings.
There is a sufficient causal connection between the administration of the Act and these proceedings that they are legal proceedings arising out of the administration of the Act. Accordingly, the exception in s 123(1)(c) applies.
Western Australian Health Promotion Foundation Act
Any disclosure or use of information obtained by reason of a function under the WAHPF Act by giving a witness statement is a disclosure for the purpose of legal proceedings and falls within the exception in WAHPF Act s 46(1)(c).
Section 81(2) of the Criminal Code provides that a person who, without lawful authority, makes an unauthorised disclosure is guilty of a crime. An unauthorised disclosure means a disclosure by a person who is a public servant or government contractor of official information in circumstances where the person is under a duty not to make the disclosure, or the disclosure by a person who has been a public servant or government contractor of official information in circumstances where, were the person still a public servant or government contractor, the person would be under a duty not to make the disclosure. Official information means information that comes to the knowledge of, or into the possession of, a person because the person is a public servant or government contractor.
It is unnecessary to consider whether or not s 81(2) applies to information obtained by members or employees of the Foundation because if it does the disclosure of information obtained by them in performing a function as a member or employee of the Foundation is authorised by s 46 of the WAHPF Act, or alternatively, s 123 of the TPC Act. Further, it would be authorised if done pursuant to an order of the court.
Public Service Regulations
Regulation 8 of the Public Service Regulations provides that an officer shall not publicly comment on any administrative action, or upon the administration of any department or organisation, or use for any purpose, other than for the discharge of official duties as an officer, information gained by or conveyed to that officer through employment in the public service.
It is not necessary to consider whether or not, in the absence of s 46 of the WAHPF Act or s 123 of the TPC Act, reg 8 would apply to the disclosure of relevant information by a member or employee of the Foundation for the purposes of this action because such a disclosure is authorised by TPC Act s 123 or WAHPF Act s 46.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MS
Associate7 FEBRUARY 2019
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