Chief Commissioner of Police v The Herald and Weekly Times
[2014] VSC 156
•10 April 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. S CI 2014 1537
| CHIEF COMMISSIONER OF POLICE | Plaintiff |
| v | |
| THE HERALD & WEEKLY TIMES PTY LTD | Defendant |
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 April 2014 | |
DATE OF JUDGMENT: | 10 April 2014 | |
CASE MAY BE CITED AS: | Chief Commissioner of Police v The Herald & Weekly Times | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 156 | |
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PRACTICE AND PROCEDURE – Interlocutory injunction – Confidential information – Public interest – Whether status quo should be preserved pending trial.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Ruskin QC, Mr E Nekvapil and Ms F Batten | Victorian Government Solicitor |
| For the Defendant | Mr D Gilbertson SC and Mr S Mukerjea | Kelly Hazel Quill |
HIS HONOUR:
A generally endorsed writ was filed in this proceeding on 2 April 2014. In it, the plaintiff, the Chief Commissioner of Police, made allegations and claims against the defendant, Herald & Weekly Times Pty Ltd, the publisher of the Herald Sun newspaper, as follows:
1.The Defendant is and was at all relevant times a corporation within the meaning of the Corporations Act 2001 (Cth).
2.In a series of newspaper articles printed and published between 30 March 2014 and 1 April 2014 (the Past Publications), the defendant referred to a person (Lawyer X) as “Lawyer X”.
3. Lawyer X was an informer to members of Victoria Police.
4. The
4.1.information provided by Lawyer X, as an informer, to members of Victoria Police;
4.2.terms of any agreement between Lawyer X and Victoria Police;
4.3.identity of Lawyer X as an informer to Victoria Police;
(the Confidential Information)
was information held by Victoria Police, under an obligation of confidence to Lawyer X.
5.In the Past Publications, the Defendant published information that might enable some members of the public to ascertain the Confidential Information.
6.No person was authorised to impart the Confidential Information to the Defendant.
7. The Confidential Information was imparted to the Defendant.
8.The Defendant obtained the Confidential Information in circumstances where it knew, or ought to have known, that the Confidential Information was confidential.
9.The Defendant was under an equitable obligation to not further impart the Confidential Information.
10. In breach of that obligation, on:
10.1.30 March 2014;
10.2.31 March 2014;
10.3.1 April 2014;
the Defendant published:
10.4.information that might enable some members of the public to ascertain the Confidential Information; or, alternatively
10.5.the Confidential Information.
11.The Defendant has threatened, and in all the circumstances is likely, to publish in the near future:
11.1.information that might further enable some members of the public to ascertain the Confidential Information; and/or
11.2.the Confidential Information.
PARTICULARS
On the evening of 1 April 2014, the Defendant:
(a)sent an email to Victoria Police, requesting the Plaintiff’s comment about matters that indicated its intention to publish information of that kind.
(b)published, through a media monitor feed, information that might further enable some members of the public to ascertain the Confidential Information, notwithstanding that the matter was at that time before the Court on an application by the plaintiff to restrain such publication.
AND THE PLAINTIFF SEEKS
Orders of the following form:
12.The Defendant be permanently restrained, until further order, from publishing:
12.1.information that might further enable some members of the public to ascertain the Confidential Information; and/or
12.2.the Confidential Information.
On the previous evening, Tuesday 1 April 2014, the plaintiff had brought an urgent application for an interim injunction against the defendant in the Practice Court. After hearing the parties to the extent possible in the limited time available, I made an order to the effect, in substance, that until 5.00 pm on Thursday 3 April 2014 or further order, the defendant be restrained from publishing or causing to be published:
(a)the name or image of the person named in articles published by the defendant since 31 March 2014 as Lawyer X; or
(b)any information stating or implying that a particular named person is or was an informer for Victoria Police; or
(c)any information that would tend to identify Lawyer X.
I further ordered that the defendant remove from any internet sites under its control every article published on or since 30 March 2014 that identified or tended to identify Lawyer X. I made a further temporary order restricting publication of any report of the proceeding, any information derived from the proceeding or the terms of the orders made on that evening, subject to a certain exception.
On 3 April 2014, following a further contested hearing between the parties, I reserved my decision on the plaintiff’s application for an interlocutory injunction that would extend until the hearing and determination of the proceeding. To preserve the status quo pending the delivery of my decision on the application for an interlocutory injunction, I made orders which in substance extended the interim restraining orders made on 1 April 2014, together with corresponding suppression orders.
The current interim injunction is expressed to expire at 5.00 pm today.
I am advised that another judge is available to hear the trial of this proceeding on and from Monday 14 April 2014 and to take over the pre-trial management of this proceeding immediately. Both sides have indicated a desire for an early trial. Therefore, any interlocutory injunction I might grant today would operate for only a short period; and it would, of course, be subject to any further order of the Court.
In all the circumstances, I am satisfied that an interlocutory injunction – to operate until the hearing and determination of this proceeding or further order – should be issued. I consider that it should be in substantially the same terms as the current interim order.
It is not appropriate to state fully detailed reasons. It is generally best to say as little as possible about the reasons for granting an interlocutory injunction, so as not to prejudice or embarrass the hearing and determination of the proceeding at trial, especially when the trial is imminent. There are added reasons for caution and brevity in this case. The case is at heart about the identity of a police informer. Nevertheless, I have prepared this judgment with a view to the prospect that at some stage, if not now – depending perhaps on the orders ultimately made at trial – the judgment might be made publicly available either in part or in whole.[1] Accordingly, to include in this judgment the full detail of the evidence and of the arguments of the parties, would be to reduce that prospect, because of the concomitant prejudice to the administration of justice that would be involved in revealing information the protection of which is the very purpose of this proceeding. Further, on the plaintiff’s case, revealing such information would threaten the safety, and even the life, of the person referred to in the proceeding as Lawyer X and would have a chilling effect on the ability of the police and other law enforcement authorities to obtain vital information from informers or potential informers in the future. On the evidence before me, at this interlocutory stage, I accept that there is substance in the plaintiff’s concerns in these respects. Hence I propose in these reasons to do little or no more than refer to the relevant legal principles and explain in broad terms why I consider that the interlocutory injunction should be granted.
[1]See Open Courts Act 2013, especially ss 4,5, 12-18, 20-23.
At trial, the plaintiff proposes to seek protection in equity of allegedly confidential information, being the information described in paragraph 4 of the general endorsement of claim (see above). As the defendant submits, a clear statement of the elements of a breach of confidence claim appears in the judgment of Gummow J (who dissented as to the result) in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic):[2]
[I]n order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria. The plaintiff: (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question; and must also be able to show that (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge); (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence; and (iv) there is actual or threatened misuse of that information.
[2](1987) 14 FCR 434, 443. See also Coco v AN Clark (Engineers) Ltd [1969] RPC 41, 47; Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 8 NSWLR 341.
The defendant has raised no issue about element (i). Hence, for present purposes, it may be assumed that the plaintiff’s identification of the allegedly confidential information is quite clear. There is a debate about whether the plaintiff will be able to satisfy element (ii), that is, whether he will be able to show that the information has the necessary quality of confidentiality. The defendant now contends before me (somewhat inconsistently with the position taken by it on previous occasions[3]) that a major aspect of the information alleged to be confidential, namely the identity of Lawyer X (as an informer to the Victoria Police), is already in the public domain. On the other hand, if the plaintiff were able to establish that the information in question had the necessary quality of confidentiality, the defendant would apparently concede that it received that information in circumstances that would import an obligation of confidence (element (iii)). Likewise, the defendant would apparently concede that, if and to the extent that the information is truly confidential and protectable, the disclosure of it in a public newspaper or on the internet would represent misuse of the information. On the other hand, the defendant does not concede that it is presently intending or threatening to publish information within the first limb of the pleaded definition of “the Confidential Information”, namely information provided by Lawyer X, as an informer, to members of Victoria Police.
[3]At the hearing on 1 April 2014 and in various recent articles and broadcasts, it was said on behalf of the defendant that it had no desire or intention to identify Lawyer X.
The defendant raises two other (interrelated) answers or proposed answers to the plaintiff’s claim for relief. It refers to the principle that there is no confidence as to the disclosure of “iniquity”;[4] and it asserts that this principle applies in the present case. Further or alternatively, the defendant asserts that where the party seeking to rely on the equitable obligation of confidence is a government party, such as the Chief Commissioner of Police, that party must show that disclosure of the information would be inimical to the public interest;[5] and that the Chief Commissioner will not or may not be able to satisfy that requirement at trial.
[4]Gartside v Outram (1856) 26 LJ Ch 113, 114; Allied Mills Industries Pty Ltd v Trade Practices Commission (1981) 34 ALR 105, 141; A v Hayden (1984) 156 CLR 532, 545-6; Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434, 454-6.
[5]Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39, 51-4.
Finally, the defendant submits that any interlocutory or final injunction should be no wider than is necessary for the purpose of protecting the allegedly confidential information.
As the plaintiff submits, on an application for an interlocutory injunction, the Court must consider:[6]
[6]Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-3 (Kitto, Taylor, Menzies and Owen JJ), applied by Gummow and Hayne JJ in ABC v O’Neill (2006) 227 CLR 57 at 81-82 [65], as containing the “relevant principles in Australia” for interlocutory injunctions.
•whether “the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief”; and
•“whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted”. (In a case such as the present, the likelihood of injury or death to a third party is also relevant).
As the plaintiff further submits, the two limbs are related:
It is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.[7]
And this explains why in one case it may be sufficient to show “a serious question to be tried”, whereas another may require a higher hurdle.[8]
[7]ABC v O’Neill (2006) 227 CLR 57, 82 [65] (Gummow and Hayne JJ).
[8]Ibid, 82-84, where Gummow and Hayne JJ resolved the apparent disparity between Beecham and American Cyanamid Co v Ethicon Ltd [1975] AC 396. See also Slater Walker Pty Ltd v Great Boulder Gold Mines Ltd [1979] VR 107, 109-110 (Lush J); Mendonca v Mason [2013] VSCA 280, [37]-[39] (Priest JA, with whom Santamaria JA agreed).
The defendant appears to accept that in a case like the present it is sufficient for the plaintiff to show “a serious question to be tried” and that the “balance of convenience” favours interlocutory restraint.[9] On the other hand, the defendant submits that the effect of granting interlocutory injunctive relief in this case would be to restrain freedom of expression in relation to a matter of public interest. It describes the information which the plaintiff seeks to restrain as “information of extreme public importance”.[10] It submits that, in the defamation context, exceptional caution must be exercised before granting interlocutory injunctive relief in such circumstances.[11] It submits that “[s]imilar principles apply” where a party seeks to restrain the disclosure “in the public interest” of what is alleged to be confidential information.
[9]Defendant’s outline of submissions dated 3 April 2014 (ordered to remain confidential) paragraphs 4(b) and 5(a).
[10]Ibid, paragraph 4.
[11]Citing ABC v O’Neill (2006) 227 CLR 57, especially at [19], [32] (Gleeson CJ and Crennan J), [73]-[83] (Gummow and Hayne JJ).
The defendant cites no authority in support of the proposition that similar principles apply. I doubt very much whether the proposition is correct. In defamation, the plaintiff can seek common law damages and, in effect, restoration of reputation and vindication generally. That largely explains the reluctance of courts to engage in “prior restraint”. And, in any event, even in defamation cases, the courts will sometimes restrain publication of defamatory material in advance. In cases based on the equitable obligation of confidence, common law damages are not available. Moreover, especially where the interests of the community or of the State or the physical safety or life of a person are at stake, neither equitable damages nor any other relief that a court can give, except prior injunctive relief, are any real remedy. In any event, as I will explain in due course, I am far from satisfied that I should, for the purposes of this interlocutory application, proceed on the basis that disclosure of the information in question would be positively in the public interest.
In my view, there are serious questions to be tried in this proceeding and the balance of convenience favours the granting of interlocutory relief.
Confidentiality/public domain
The plaintiff is sufficiently likely to be able to establish at trial that the identity of Lawyer X (as an informer to Victoria Police) has the necessary quality of confidentiality. I take the same view in relation to any information provided by Lawyer X as an informer to Victoria Police and in relation to the terms of any agreement between Lawyer X and Victoria Police.
Unchallenged affidavit evidence filed on behalf of the plaintiff indicates that Lawyer X was a police informer in the past, and that Victoria Police assured Lawyer X that any information provided by Lawyer X, and the identity of Lawyer X, would not be disclosed. The same uncontradicted affidavit material indicates that no person was authorised by the Chief Commissioner (or otherwise) to provide to any person other than Victoria Police or its legal representatives any information provided by Lawyer X, the terms of any agreement with Lawyer X, or the identity of Lawyer X as an informer. As the plaintiff submits, the defendant’s publications between 30 March and 1 April show that the defendant has somehow come by information relating to these matters. The defendant has adduced no evidence as to how it came by the information. I accept the plaintiff’s submission that, for the purposes of the present application, the only available inference is that the information in question has been imparted to the defendant in breach of confidence, and in circumstances where the defendant must have understood that the information was confidential.
In Cain v Glass (No 2),[12] the Court of Appeal of New South Wales was dealing with the circumstances in which in committal proceedings it was open to a magistrate to require the disclosure of the identity of a police informer. Kirby P observed that:[13]
[12](1985) 3 NSWLR 230.
[13]Ibid 233-4. See also at 246-251 (McHugh JA).
… courts seek to protect the confidences of persons who are obliged to give confidential evidence to a court. … In the case of police informers, rules have developed, over many years, to protect the confidential basis upon which police deal with such informers. In part, this is for the defence of the particular witness involved. In part, it is to ensure a continuing
flow of helpful information from such a witness. In part, it is to reassure the
many other persons who, formally and informally, provide useful information to the police. Special care needs to be exhibited by any court approaching an application for the disclosure of the identity of a person said to be entitled to protection as a police informer.
Similarly, in Royal Women’s Hospital v Medical Practitioners Board of Victoria, Charles JA said:[14]
[14](2006) 15 VR 22, 46 [102].
The identity of an informer has been protected against disclosure in order to prevent damage to the administration of criminal justice since Eyre CJ laid down the rule in R v Hardy[15] in 1794. The rule was reaffirmed in 1846 in Attorney-General v Briant.[16] In D v National Society for the Prevention of Cruelty to Children,[17] Lord Diplock said that by the time of Marks v Beyfus[18] this had “hardened into a rule of law”.
In the same case, Maxwell P said:[19]
What explains the successive extensions of the informer immunity is the recognition that the very function which an informer performs means that information about the informer’s identity and whereabouts will almost always need to be immune from disclosure, in order both to protect the individual and to encourage the provision of such information in the future.
[15](1794) 24 State Tr 199 at 816.
[16](1846) 15 M & W 169 at 184-5 per Pollock CB.
[17][1978] AC 171 at 218. (1890) 25 QBD 494 at 498 and 500.
[18](1890) 25 QBD 494 at 498 and 500.
[19](2006) 15 VR 22, 34 [50], citations omitted.
The judicial observations to which I have just referred were made in the context of claims for public interest immunity made by or on behalf of witnesses or potential witnesses in court proceedings. However, the confidentiality of the identity of informers (both police informers and others) and of the information they provide to the authorities has been recognised in cases brought against media defendants to restrain the publication of such information on the basis of the equitable obligation of confidence.[20] In G v Day, Yeldham J said:[21]
[20]See G v Day [1982] 1 NSWLR 24; Falconer v Australian Broadcasting Corporation (1992) 1 VR 662.
[21][1982] 1 NSWLR 24, 35.
Mr Nicholas submitted that there was simply no basis, whether in
principle or on authority, for treating the identity of an informant as
confidential in quality, as distinct from the information which he may
impart to others. As I have already said, if a person is likely to suffer
prejudice from the disclosure of his name, if no sound reasons of public
interest or public policy exist why such disclosure should take place, and
if he has obtained assurances of confidence in relation to his identity
before imparting his information, I find no reason in principle why his
identity should not be treated as confidential information in the same
way as the material which he provides to the authorities.
On an interlocutory application like this, these considerations are relevant not only to the assessment of the “serious question” but also to the discretionary judgment as to the balance of convenience.[22]
[22]Falconer v Australian Broadcasting Corporation (1992) 1 VR 662, 670-671.
As indicated above, the defendant contends that information that may once have had the necessary quality of confidentiality will lose that quality if it has entered “the public domain”, even if the information came to enter the public domain by reason of a wrongful act. For that proposition, the defendant cites the judgment of Kellam J in Australian Football League v The Age Co Ltd[23] and Attorney-General v Guardian Newspapers Ltd (No 2) (the Spycatcher case).[24] In response, the plaintiff submits that, at the interlocutory stage, it is far from clear that such an argument – which would require an assessment of all the evidence – could succeed. The plaintiff submits that it is sufficient on this application to point to the failure of similar arguments by the prospective publishers in G v Day[25] and Falconer v Australian Broadcasting Corporation.[26] The plaintiff submits that those two cases establish that the publication of anything less than the whole of the confidential information, and publication to less than the whole public domain in a lasting form, may not deprive a plaintiff of relief at trial, much less on an application of this kind. He illustrates this proposition by reference to observations made by Lord Keith of Kinkel, in one of the very cases relied upon by the defendant in this regard, namely Attorney-General v Guardian Newspapers Ltd (No 2) (the Spycatcher case).[27] It is also suggested on behalf of the Chief Commissioner that equity should not allow the defendant to plead or rely on its own past breaches of confidentiality as having destroyed that confidentiality. Referring to certain conflicting views expressed by various Law Lords in the Spycatcher case on that point, the plaintiff says that while such a contention would meet with opposition,[28] there are nevertheless compelling arguments in its favour.[29]
[23](2006) 15 VR 419, [37]-[38].
[24][1990] 1 AC 109.
[25][1982] 1 NSWLR 24, 37-41.
[26](1992) 1 VR 662, 667-669.
[27][1990] 1 AC 109, 260F-G.
[28][1990] 1 AC 109, 286G-287 (Lord Goff) and 267 (Lord Brightman).
[29]Ibid, 277-278 (Lord Griffiths), 293-294 (Lord Jauncey).
In Schering Chemicals v Falkman Ltd[30] the plaintiff company manufactured and extensively marked a drug, Primodos, which was used as a pregnancy test. Thereafter, the drug was suspected in medical and scientific circles of causing abnormalities found in new-born children and it was subjected to much adverse publicity in newspapers and television. It was withdrawn from the market. Because of the adverse publicity, the company employed the first defendant firm to train selected executives in presenting the company’s point of view. The firm held a training course for which the company supplied information, which the firm agreed to treat as confidential. The course instructors employed by the firm also accepted that the information was confidential. One of the course instructors, the second defendant Mr Elstein, conceived the idea of making a film with a television company (the third defendant, Thames) concerning the drug and sought the consent of the plaintiff company to the proposed film. The company initially reserved its position. It later refused its consent. The film contained information which had been supplied to Mr Elstein for the purposes of the course but he claimed to have used such information only where it was also available from public sources. The company issued a writ and moved for an injunction to prevent the broadcasting of the film. McNeil LJ granted an injunction against Elstein and Thames on the ground of breach of confidence. On appeal, the appellants asserted that the injunction should not have been granted because all of the relevant facts and opinions were to be found in “the public domain”. They submitted that no principle of confidentiality can apply to matters which had become notorious. Their argument, as described by Shaw LJ[31], continued as follows:
[30][1982] 1 QB 1.
[31]Ibid 28.
Whatever may have been the fiduciary duty on the part of Mr Elstein not to disclose anything of a confidential nature that he had learned on the course, it had been entirely dissipated when the Primodos affair emerged into public view. What obligation of reticence can apply to what has long been an open secret? So the argument ran.
Shaw LJ disposed of the argument in the following terms:
It is an argument which at best is cynical; some might regard it as specious. Even in the commercial field, ethics and good faith are not to be rejected as merely opportunist or expedient. In any case, though facts may be widely known, they are not ever-present in the minds of the public. To extend the knowledge or to revive the recollection of matters which may be detrimental or prejudicial to the interests of some person or organisation is not to be condoned because the facts are already known to some and linger in the memory of others. …
It is not the law that where confidentiality exists it is terminated or eroded by adventitious publicity. Nor is the correlative duty to preserve that confidentiality. The public duty may demand that the duty be gainsaid; but it cannot be arbitrarily cast aside. An order of a court of law may relieve the confidant of the burden of secrecy and may, after due enquiry, require him to reveal the subject matter of the confidence; but it is not to be sloughed at will for self-interest. I therefore come to the same conclusion as McNeil LJ on the issue of confidence.
These observations of Shaw LJ have been referred to with approval in freedom of information cases in Australia.[32]
[32]See, eg, Re Maher and Attorney-General’s Department [1986] AATA 16 (24 January 1986), [55] and [103] (Deputy President Layton, Member Sir Coates and Member Trinick).
I do not accept that the judgment of Kellam J in Australian Football League goes so far as to acknowledge that confidentiality will be lost if the information comes into the public domain by reason of a wrongful act; a fortiori, where the wrongful act is that of the very party sought to be restrained. Kellam J says no such thing in Australian Football League. Further, in view of the observations of Shaw LJ in Schering Chemicals quoted above, and the disagreement between the Law Lords in the Spycatcher case on this point, it cannot be said that it is settled that confidentiality will be lost if the information comes into the public domain by reason of a wrongful act, much less where the wrongful act is that of the relevant defendant.
On the other hand, subject to the qualification just mentioned, I am prepared to accept for the purposes of this application that the defendant has correctly extracted from the judgment of Kellam J the following criteria for determining whether information has passed into the public domain, and that I should apply them:[33]
[33]Defendant’s (confidential) outline of submissions dated 3 April 2014, paragraph 9 and cases there cited, including Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39, 50.
(a) the relevant enquiry is whether the information is so generally accessible that, in all the circumstances, it cannot be regarded as confidential;
(b) the degree of accessibility is an important factor in assessing whether information is in the public domain – a claim should not be defeated merely because there are other people in the world who know the facts in question. It is a question of degree depending on the particular case. If relative secrecy remains the plaintiff can still succeed;
(c) the question of whether even limited publication would become known to an “ever-widening group of people” is an appropriate factor to consider;
(d) prior publication of a limited, transitory or impermanent nature may be insufficient to place material in the public domain;
(e) it has been held that everything which is accessible through resort to the internet is in the public domain because the barriers to internet access (computer, modem, ispvs) are no more challenging in today’s society as those involved in access to a newspaper or TV – both of which should be seen as involving the public domain; and
(f) as a general rule, the publication of confidential information in a widely-circulated print media would place information in the public domain.
Turning to the facts of the present case, the defendant asserts that an affidavit of its solicitor demonstrates that certain matters relating to Lawyer X have entered the public domain, having been published in print newspapers with wide circulation in Victoria and elsewhere.[34] For the reasons indicated above, it is not appropriate for me to include in this judgment any detail as to the contents of the publications here relied upon by the defendant, save to say that, judging by the relevant paragraph (paragraph 10) of the defendant’s written outline of submissions dated 3 April 2014 (to which its counsel spoke at the hearing on 3 April 2014), the defendant does not seem to rely for present purposes on any articles relating to Lawyer X published since the defendant itself ignited the current public controversy on 30 March 2014. It is true that several post-30 March 2014 articles and transcripts of broadcasts are exhibited to an affidavit of the defendant’s solicitor affirmed on 3 April 2014 (being an affidavit referred to in paragraph 10 of the defendant’s written submissions of the same date), but I do not understand therefrom that the defendant would now seek to rely upon those recent articles as affecting what is relevantly in the public domain. Even if I am wrong about that, and even if, despite the above mentioned observations of Shaw LJ in Schering Chemicals, it is necessary or appropriate to take into account the publicity that has been generated by the defendant’s own conduct, yet I would still be of the opinion that, on the evidence as it presently stands, it would be well open to the trial judge to conclude that the actual information sought to be protected by the plaintiff in this proceeding is not relevantly in the “public domain”. Hence, in my view, if the evidence remains as it is, it would be well open to the trial judge to form the view that the information sought to be protected retains the necessary quality of confidentiality.
[34]Ibid paragraph 10.
Iniquity
I turn now to the defendant’s reliance on the “iniquity” principle. In Australian Football League,[35] it had been submitted to Kellam J on behalf of the media defendant that if information “relates to an iniquity being a crime, wrong or misdeed of public importance it will not be recognised by the law as confidential”. His Honour described that submission as “too wide”. Rather, his Honour accepted the submission of the plaintiffs, as follows:
[35](2006) 15 VR 419, 436 [69].
[I]n order to rely upon the so-called iniquity rule so as to eradicate the protection that would otherwise be granted in equity in respect of confidential information, it is necessary for the person relying upon that defence to establish that:
(a)the proposed disclosure will in fact disclose the existence of or the real likelihood of the existence of an iniquity that is a crime, civil wrong or serious misdeed of public importance;[36]
(b)that the iniquity to be disclosed is of a character of public importance, in the sense that what is to be disclosed affects the community as a whole, or affects the public welfare; and
(c)that the person who is seeking to protect the confidence is so doing in order to prevent disclosure to a third party with a real and direct interest in redressing the alleged crime, wrong or misdeed.[37]
It is true that Kellam J allowed that, in a case where the “iniquity” affects the community as a whole, then there may be grounds for justifying a general disclosure through, for example, the media or by the publication of a book.[38]
[36]AG Australia Holdings Ltd v Burton (2002) 58 NSWLR 464 at 523.
[37]Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 456 per Gummow J.
[38](2006) 15 VR 419, 436 [67].
On the other hand, it is clear from the judgment of Kellam J that the onus of establishing iniquity lies upon the party asserting it. It will be a rare case in which a defendant in a confidential information case is able to demonstrate at the interlocutory stage a sufficient likelihood that the plaintiff’s claim would be defeated at trial on the iniquity ground. In my view, the present defendant has certainly not done so. The defendant has not pointed to anything in the allegedly confidential information itself – the identity of Lawyer X, the terms of any agreement between Lawyer X and Victoria Police, and the information (if any) provided by Lawyer X to members of the Victoria Police – the revelation of which would necessarily or even probably reveal a crime, civil wrong or serious misdeed of public importance. The defendant has led no direct evidence, from an expert or otherwise, to support any assertion that any crime, civil wrong or serious misdeed of public importance has taken place. The defendant seems to rely principally on the articles by its own journalists purporting to quote certain named or unnamed commentators as to concerns that may or may not be justified in relation to the use by Victoria Police of Lawyer X. I note that it was stated in one of those same articles that “it is not suggested that Lawyer X divulged information directly involving cases”.[39] I further note that the exhibits to the relevant affidavit of the defendant include material by another journalist, professing to have much relevant experience, who seemed to see nothing particularly remarkable about the use by the police of Lawyer X.[40]
[39]Published in the Herald Sun on 31 March 2014 (part of exhibit DLS-1 to the affidavit of the defendant’s solicitor).
[40]Article by John Silvester in The Age published 2 April 2014 (exhibit DLS-4) and transcript of broadcast of interview with “Sly” re Lawyer X (undated) (part of exhibit DLS-5).
In an affidavit which the defendant filed only yesterday – without leave but with the apparent concurrence of the plaintiff – it is shown that in a media release dated 3 April 2014[41] the Victorian Independent Broad-based Anti-corruption Commission (IBAC) stated that it had requested information from Victoria Police on the “Lawyer X” matter. The press release went on to say that IBAC was “seeking information from Victoria Police to determine whether there has been any potential police misconduct associated with the use and management of the lawyer as a police informant”. The matter was described as “sensitive and complex”. It was said that further information was required to determine whether there has been any inappropriate conduct by police. That language is hardly consistent with the assertion in the written outline of the defendant to the effect that there were “two iniquities disclosed by the impugned articles”.[42] Of course, the “impugned articles” are not the same thing as the allegedly confidential information. In any event, the language of the IBAC press release is far from supportive of the proposition that the defendant has established, or is likely to establish at the trial, that disclosure of the information sought to be protected would definitely reveal any wrongdoing at all, much less a crime, civil wrong, or serious misdeed of public importance. And, given the sensitivities involved with the revelation of information relating to police informers (as confirmed by the IBAC press release itself), it would be well open to the trial judge to take the view that IBAC is the appropriate body to receive any relevant information, not the world at large.
[41]Exhibited to the affidavit filed on behalf of the defendant on 8 April 2014.
[42]Defendant’s (confidential) outline of submissions dated 3 April 2014, paragraph 16.
Public interest
Citing Commonwealth v John Fairfax & Sons Ltd,[43] the defendant submits[44] that in cases involving information confidential to government, equitable relief will only be granted where the plaintiff can demonstrate actual detriment by showing that the alleged unauthorised disclosure of the information “would be inimical to the public interest because either national security, relations with foreign governments, or the ordinary business of government will be prejudiced”; that governments are expected to act in the public interest; that, accordingly, when equity is called on to protect government information, it looks at the matter through different spectacles; and that the fact that disclosure may expose a government to public discussion or criticism is not sufficient to constitute the necessary “detriment”. The defendant points out that the plaintiff is responsible for Victoria Police, which is part of the executive arm of government. Accordingly, the defendant submits that the claim of the plaintiff in this proceeding is subject to the principles just mentioned. Implicit in the defendant’s submissions is the proposition that, at least at trial, the Court should engage in a balancing or weighing exercise, comparing any detriments relied upon by the government party against any countervailing public interest relied upon by the party sought to be restrained.
[43](1980) 147 CLR 39, 51-54.
[44]Defendant’s (confidential) outline of submissions dated 3 April 2014, paragraphs 18-20.
The written outline of submissions filed by the Chief Commissioner of Police was to much the same effect in these respects. That is to say, both sides proceeded on the basis that the present case was subject to the principles stated by Mason J in Commonwealth v John Fairfax & Sons Ltd.[45] However, noting that the John Fairfax case related principally to information about government as distinct from information about identifiable individuals held by government, and that, in any event, the John Fairfax case was not a police informer case, I raised with both counsel whether the John Fairfax principles were in truth applicable and, in particular, the question whether it was appropriate to engage in a process of weighing or balancing competing public interests in a case like the present. In this regard, I referred counsel to passages in the decision of Kellam J in Australian Football League[46] to the effect that in Australia there is no general public interest defence to a claim in equity for the protection of confidential information. Kellam J concluded accordingly that it was inappropriate to engage in a balancing of public interests.[47] Rather, a defendant was compelled to resort to the narrower “iniquity rule” under which the defendant bore the burden of proving the matters referred to above in that connection. I also mentioned to counsel that in British American Tobacco Australia Ltd v Gordon (No 3),[48] Kaye J had followed Kellam J in this regard.[49]
[45](1980) 147 CLR 39, 51-54.
[46](2006) 15 VR 419, 438-440 [72]-[86].
[47]Ibid, 440 [80]-[83].
[48][2009] VSC 619.
[49]Ibid at [103]-[119], especially at [112], [114], [115] and [117].
However, neither party sought to depart from the substantially uniform position reflected in their respective written submissions in relation to the applicability of the John Fairfax principles. Neither sought leave to file further submissions on the point. The parties may very well be correct in this regard. Neither the Australian Football League case nor the British American Tobacco case involved a governmental plaintiff. On the other hand, it is perhaps arguable that where a governmental party brings a claim based on the equitable obligation of confidence owed to a police informer, the government party is, in a sense and to a certain extent, acting on behalf of the police informer personally notwithstanding that the police informer is not a party to the case. In John Fairfax, Mason J had distinguished between the executive government and the citizen in relation to the detriment needed to be shown when the protection of equity was sought. Mason J said:[50]
The equitable principle has been fashioned to protect the personal, private and proprietary interests of the citizen, not to protect the very different interests of the executive government. It acts, or is supposed to act, not according to standards of private interest, but in the public interest. This is not to say that equity will not protect information in the hands of the government, but it is to say that when equity protects government information it will look at the matter through different spectacles.
…
Accordingly, the court will determine the government’s claim to confidentiality by reference to the public interest. Unless disclosure is likely to injury the public interest, it will not be protected.
The court will not prevent the publication of information which merely throws light on the past workings of government, even if it be not public property, so long as it does not prejudice the community in other respects. Then disclosure will itself serve the public interest in keeping the community informed and in promoting discussion of public affairs. If, however, it appears that disclosure will be inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained. There will be cases in which the conflicting considerations will be finely balanced, where it is difficult to decide whether the public’s interest in knowing and in expressing its opinion, outweighs the need to protect confidentiality.
[50](1980) 147 CLR 39, 51.
In G v Day[51], the only plaintiff was the informer himself. The Corporate Affairs Commission, with whom G had communicated as an informer, was not a party. Yeldham J said that, subject to certain questions, the plaintiff was entitled to the benefit of “the equitable principle (which) has been fashioned to protect the personal, private and proprietary interests of the citizen”, thus citing the words of Mason J in John Fairfax. However, in the very next paragraph of his judgment, Yeldham J accepted that a balancing exercise was necessarily involved.
[51][1982] 1 NSWLR 24.
Likewise, in State of Victoria v Nine Network[52] Osborn J (as his Honour then was), in obiter remarks, seemed to accept that, even where the subject matter was the identity of an informer, a balancing of public interests would be involved and that this may involve questions of fact and degree.[53] It seems that, in the view of Osborn J, the onus was upon the party seeking the intervention of equity to satisfy the court that the public interest demanded non-disclosure; and that, therefore, it was not for the defendant to raise a “public interest” defence as such.[54]
[52](2007) 19 VR 476.
[53]Ibid [16]-[42], especially at [23], [27], [35] and [38].
[54]Ibid [25] and see footnote 21 thereto.
In the circumstances, I approach this issue in the way urged by both parties, namely in accordance with the John Fairfax principles, and therefore by way of an assessment of how the competing considerations of public interest might be resolved at trial. Nevertheless, in a police informer case like this one, the personal interest of the police informer in the maintenance of confidentiality is not irrelevant. That view is consistent with the following statement of Osborn J in State of Victoria v Nine Network:[55]
In the present case the plaintiffs assert probable prejudice to the workings of government and probable prejudice to individuals belonging to classes affected by the workings of government, whose interest in confidential material it is in the public interest to protect.
Similarly, in Sinclair v Mining Warden at Maryborough[56] a mining regulation provided that “if the Warden is of opinion that the public interest or right be prejudicially affected by the granting of an application for a mining lease, he shall recommend to the minister that such application be rejected”. Jacobs JA said:[57]
The words “public interest” are so wide that they comprehend the whole field of objection other than objection founded on deficiencies in the application and in the required marking out of the land applied for. For instance the public interest may tell against the grant of a mining lease even though the particular interests of an individual are the only interests primarily affected. It may thus be in the public interest that the interests of that individual be not overborne. However, all the objections can be and should be related to the public interest. But private interests as such are not a relevant consideration.
[55](2007) 19 VR 476, 483 [26].
[56](1975) 132 CLR 473.
[57]Ibid 487.
In a public interest immunity case, Jarvie v Magistrates’ Court of Victoria,[58] Brooking J (with whom Southwell and Teague JJ agreed) said:
There is a public interest in preserving the anonymity of informers, since otherwise these wells of information will dry up and the police will be hindered in preventing and protecting crime; moreover, the public interest on which the need to protect informers rests is based in part on a regard for their personal safety, considered, not as a matter of expediency, but as an object in itself: R v Hennessey (1978) 68 Cr. App. R. 419 at 425; Cain v Glass (No 2) (1985) 3 N.S.W.L.R. 230 at 233-4 per Kirby P. The personal safety of the informer is both a means to an end and an end in itself.
[58][1995] 1 VR 84, 88.
In the present case, the Chief Commissioner submits[59] that the balancing of the public interests is likely to be the most significant issue at trial. He says that this will involve weighing the risk to Lawyer X’s life and the public interest in not deterring future informers against the public’s interest in knowing and discussing the use of Lawyer X as an informer (and whatever other public interests the defendant may identify).
[59]Written outline of plaintiff’s submissions dated 3 April 2013, paragraphs 16 and following.
But, the plaintiff submits, on an interlocutory injunction, the risk to Lawyer X’s life and to the public interest in not identifying informers weigh heavily in favour of maintaining the status quo achieved by the orders made on 1 April 2014 until the trial is heard and determined. It is therefore only necessary to show, he says, that there is a probability that the Court will find, at trial, that the public interests relied on by the Chief Commissioner outweigh those relied upon by the defendant.
The Chief Commissioner relies on the same two public interests relied on by the police officer plaintiff in obtaining an interlocutory injunction in Falconer v Australian Broadcasting Commission[60]: the public interest in not publishing the identity of informers and the public interest in preventing harm to an informer.
[60][1992] 1 VR 662.
The Chief Commissioner points out that these public interests have been expressly recognised by Parliament in the Freedom of Information Act 1982 (Vic) as justifying a departure from the general right of the public to have access to governmental information.[61]
[61]See ss 31(1)(c) and 31(1)(e) of the Freedom of Information Act 1982.
The plaintiff also refers to the above-quoted remarks of Charles JA and Maxwell P in Royal Women’s Hospital v Medical Practitioners Board of Victoria[62]. The plaintiff notes, correctly, that in Falconer v Australian Broadcasting Corporation[63], Ashley J (as his Honour then was) accepted that the public policy considerations identified in D v National Society for the Prevention of Cruelty to Children[64] and Marks v Beyfus[65] were relevant on an application to restrain the publication of an informer’s identity, or information that might enable a person to ascertain an informer’s identity; and that Yeldham J did likewise in G v Day.[66]
[62](2006) 15 VR 22 at 46 [102] and at 34 [50], respectively.
[63][1992] 1 VR 662 at 670-671.
[64][1978] AC 171.
[65](1890) 25 QBE 494.
[66][1982] 1 NSWLR 24 at 35E.
As the plaintiff submits, these principles are consistent with, and supported by, the affidavit evidence of two experienced police officers, Detective Inspector O’Connor and Inspector Trevor Cornwill.
In his affidavit, Inspector O’Connor refers to an article about the well-known deceased criminal Carl Williams that was published in the Herald Sun on 19 April 2010 and that indirectly suggested that Carl Williams was a police informer. Williams was killed in prison very shortly after the publication of that article. Drawing on that prior example, Inspector O’Connor deposes[67]:
If any harm were to come to Lawyer X following the publication of information of the kind already published, or any further information better enabling Lawyer X to be identified, this combination would very significantly inhibit the willingness of persons to act as a human source.
[67]Ibid [16].
The Commissioner the refers to the obvious fact that Lawyer X has a fundamental interest in not being harmed or killed. He continues that, in the case of a police informer, that personal right to life and liberty becomes a public interest where the risk of harm results from the identification of the person as an informer. That is so not only because any harm to an informer would inhibit persons from coming forward in the future, but because there is a moral (and in some cases a legal) obligation on the State to protect persons who have provided valuable information from being harmed as a result.
The Chief Commissioner submits that the evidence of Inspector Trevor Cornwill establishes that:
(a)the risk to Lawyer X as a result of the publications that have occurred to date is “high”, which means “there is a serious likelihood that Lawyer X is in danger of serious injury or death based on the articles and other information available in relation to Lawyer X in the public domain”;
(b)with every piece of information that has already been published about Lawyer X, the risk to Lawyer X of harm or death has increased;
(c)so, in the future, each further piece of information published would heighten that risk;
(d)ultimately, the identification of Lawyer X by name – which would conclusively establish Lawyer X’s identity as an informer – would place Lawyer X at an even greater risk than the clues that have been published so far.
The Chief Commissioner submits that Inspector Cornwill’s affidavit establishes the value in prohibiting any further information being placed in the public domain, including re-publication on the internet of articles taken down by reason of paragraph 2 of the order which I made on 1 April 2014. Inspector Cornwill deposes that:[68]
With each piece of information that has been published about Lawyer X, the risk to Lawyer X has increased. It is like each new piece of information is a piece of a puzzle, and the closer the puzzle gets to completion, the greater the risk to Lawyer X. This results in a higher risk assessment with each piece of information.
[68]Defendant’s (confidential) outline of submissions dated 3 April 2014, paragraph 11.
The uncontradicted affidavit evidence before me shows that since the recent spate of articles began, the Victoria Police have deemed it necessary to take Lawyer X to various locations around the State of Victoria and to maintain a substantial security presence around Lawyer X on a constant basis.
As against the matters thus relied upon – reasonably and appropriately, in my opinion – by the Chief Commissioner, the defendant seeks to rely again on the proposition that the identity of Lawyer X as a police informer is already in the public domain. However, as indicated above, I am not persuaded by that submission. I have already set out, as far as I consider appropriate, the reasons why I am not so persuaded.
The defendant also relies on a very brief affidavit of a journalist who deposes that on the previous evening he spoke to Lawyer X by telephone and was informed by Lawyer X and believed that Lawyer X did not know who it could be that Lawyer X was in danger from.
The journalist’s affidavit is bereft of context or detail. The reported statement of Lawyer X is ambiguous. The cast sought to be put on the statement by the defendant is entirely inconsistent with the otherwise unchallenged evidence of the senior police officers as to the radical security measures that have recently been taken for the protection of Lawyer X. I give the affidavit of the journalist no significant weight for present purposes.
Next, the defendant submits that the risks to the safety of Lawyer X and the risk to other or potential informers is outweighed by the matters already canvassed under the heading “iniquity”. For the reasons already given in that regard, I am not persuaded by that submission.
Accordingly, I take the view that it would be well open to the trial judge, if the evidence remains as it is, to conclude that the matters of public interest favouring protection of the confidential information outweigh the matters of public interest relied upon by the defendant.
Balance of convenience
I accept the submission of the plaintiff that the defendant cannot point to any factor that would outweigh the risk to the life of Lawyer X for the purposes of this application for interlocutory relief. I also agree that the further harm that might be caused to the willingness of persons to provide information in future should be given significant weight. The imminence of the final trial further supports this view. The balance of convenience overwhelmingly favours the making of an interlocutory injunction.
Scope of order
As indicated above, I consider that the interlocutory order should be in substantially the same terms as those of the current interim order. However, I agree with the defendant that it is not appropriate to expand the current order so as to include express reference to any information that may have been revealed by Lawyer X to police. There is no present threat on the part of the defendant to disclose any such information.
Conclusion
For these reasons, I propose to grant an interlocutory injunction substantially in the form of the current interim injunction.
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