Coulthard v South Australia
[1995] SASC 4927
•19 January 1995
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1) PERRY(2) AND DEBELLE(3) JJ
CWDS
Equity - confidence - breach of confidence - dispute between Aboriginal groups - meetings between officers of State and Federal governments concerning dispute - report made by one government officer of one meeting - report filed in appropriate docket - report taken in unauthorized manner by unknown person - copies circulated in Port Augusta - whether breach of confidence - whether report is confidential - whether meeting was confidential in nature - relevant principles - whether State liable for unauthorised leak of the report - State not liable.
Defamation - Report of meeting by officer of State government - report incorrectly described appellants as members of an association - report taken in unauthorized manner by unknown person and published - whether State liable for publication - State not liable.
Coco v AN Clark (Engineers) Ltd (1969) RPC 41; Lord Ashburton v Pape (1913) 2 Ch 469; Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39; Saltman Engineering Co v Campbell Engineering Co (1948) 65 RPC 203; Prince Albert v Strange (1849) l8 LJ Ch 120; Argyll v Argyll (1967) Ch 302; Foster v Mountford and Rigby Ltd (1977) 14 ALR 71; Woodward v Hutchins (1977) 1 WLR 760; Church of Scientology v Kaufman (1973) RPC 635; Hubbard v Vosper (1972) 2 QB 84; Adam v Ward (1972) 2 QB 84; Smith Kline and French Laboratories (Australia) Ltd v Secretary for Health (1990) 95 ALR 87; Mesne v Milenkovic (1973) VR 784; Half Court Tennis Pty Ltd v Seymour (1980) 53 FLR; Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales (1975) 2 NSWLR 104; Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414; Lac Minerals Ltd v International Corona Resources Ltd (1989) 16 IPR 27; Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 75 ALR 353; Weld-Blundell v Stephens (1920) AC 956; Conway v Rimmer (1968) AC 910; D v National Society for the Prevention of Cruelty to Children (1977) 1 All ER 589; Alfred Crompton Amusement Machine Ltd v Customs and Excise Commissioners (No 2) (1974) AC 405; Norwich Pharmacal Co v Commissioners of Customs and Excise (1974) AC 133; R v Birmingham City Council (1982) 1 WLR 679; Castrol Australia Pty Ltd v Emtech Associates Pty Ltd (1980) 33 ALR 31; Morris v CW Martin and Sons Ltd (1966) 1 QB 716; Kooragang Investments Pty Ltd v Richardson and Wrench Ltd (1982) AC
462 at 473; Deatons Pty Ltd v Flew (1949) 79 CLR 370 and Huth v Huth (1915) 3 KS 32, applied. Dunford and Elliot Ltd v Johnstone and Frith Brown Ltd (1978) FSR 143; Attorney- General v Guardian Newspapers Ltd (No 2) (1990) 1 AC 109; G v Day (1982) 1 NSWLR 24; Schering Chemicals Ltd v Falkman Ltd (1981) 2 All ER
321; Abernethy v Hutchinson (1824) 47 ER 1313; Torrington Manufacturing Co Ltd v Smith and Son Ltd (1966) RPC 285; Lloyd v Grace Smith and Co (1912) AC 716 and Pullman v Hill (1891) 1 QB 524, discussed.
HRNG ADELAIDE, 7 September 1994 #DATE 19:1:1995
Counsel for appellants: Mr B M O'Brien
Solicitors for appellants: Womersley and Co
Counsel for respondent: Ms M Panagiotidis
Solicitors for respondent: Crown Solicitor (SA)
ORDER
Appeals dismissed.
JUDGE1 KING CJ This is an appeal against a judgment in the District Court dismissing the plaintiff's action seeking damages for defamation and breach of confidence.
2. The appellants are Aboriginal men of the Kuyani tribe. The Kuyani and another Aboriginal tribe, the Kokotha, have been in dispute for a long period over a site known as Coorlay Lagoon in the north of the State. In August 1990 a Commonwealth Public Servant, Mr Fred Behr, who had a responsibility in relation to the matter came to South Australia to consult with interested groups with a view to resolving the dispute. The Aboriginal Heritage Branch of the South Australian Department of National Parks and Wildlife has a responsibility in relation to Aboriginal sacred sites and it therefore also had a role in endeavouring to resolve the dispute. The manager of this Branch was Ms Rina Cohen. Another officer of the Branch, Dr Draper, had the conduct of the Coorlay Lagoon issue.
3. A meeting was initiated by these officials to enable them to obtain the views of Kuyani representatives in order to assess the situation and relay those views to their respective ministers. The three plaintiffs attended. They expressed themselves freely as to the issues and were forthright and critical as to the Kokotha people and others. One expression used by Mr Coulthard has been interpreted as a curse on Kokotha people visiting the area. The proceedings were recorded by Dr Draper in the form of minutes. These minutes were subsequently incorporated into a report. The original report was placed on the departmental file and Dr Draper retained a copy. The report was removed from the departmental file by some unauthorized member of the Branch's staff and copies were circulated among Aboriginal people at Port Augusta. This is alleged to have caused loss and embarrassment to the plaintiffs and has given rise to this action.
4. The law provides a remedy for the unauthorized disclosure of information communicated in confidence. In the absence of common law rights arising out of contract, copyright or statute, the law founds the remedy upon equitable principles. In the Commonwealth of Australia v John Fairfax and Sons Ltd
(1980) 147 CLR 39 at p50, Mason J quoted as "a fundamental principle of Equity" the dictum of Swinfen Eady LJ in Lord Ashburton v Pape (1913) 2 Ch 469 at p475 that the Court will "restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged." In Moorgate Tobacco Co Ltd v Phillip Morris Ltd (1983-84) 156 CLR 414 at p437-8, Deane J said:
"It is unnecessary, for the purposes of the present appeal,
to attempt to define the precise scope of the equitable
jurisdiction to grant relief against an actual or
threatened abuse of confidential information not involving
any tort or any breach of some express or implied
contractual provision, some wider fiduciary duty or some
copyright or trade mark right. A general equitable
jurisdiction to grant such relief has long been asserted
and should, in my view, now be accepted: see The
Commonwealth v. John Fairfax and Sons Ltd. (1980) 147
CLR 39, at pp 50-52. Like most heads of exclusive
equitable jurisdiction, its rational basis does not lie in
proprietary right. It lies in the notion of an obligation
of conscience arising from the circumstances in or through
which the information was communicated or obtained. Relief
under the jurisdiction is not available, however, unless it
appears that the information in question has 'the necessary
quality of confidence about it' (per Lord Greene M.R.,
Saltman (1947) 65 R.P.C., at p.215) and that it is
significant, not necessarily in the sense of commercially
valuable (see Argyll v. Argyll (1967) Ch 302, at p 329)
but in the sense that the preservation of its
confidentiality or secrecy is of substantial concern to the
plaintiff."
5. The elements of the cause of action for breach of confidence are sufficiently stated, for present purposes, in the well known passage from Megarry J's judgment in Coco v A N Clark (Engineers) Ltd (1969) RPC 41 at p47:
"In my judgment, three elements are normally required if,
apart from contract, a case of breach of confidence is to
succeed. First, the information itself, in the words of
Lord Greene, M.R. in the Saltman case on page 215, must
'have the necessary quality of confidence about it.'
Secondly, that information must have been imparted in
circumstances importing an obligation of confidence.
Thirdly, there must be an unauthorised use of that
information to the detriment of the party communicating
it."
6. The views and sentiments so frankly and forcefully expressed by the plaintiffs were of such a sensitive nature and so likely, as a matter of common sense, to cause embarrassment and problems to the plaintiffs if disclosed, that any reasonable person would appreciate that the plaintiffs would be unlikely to so express themselves unless assured of confidentiality and that confidentiality would be of substantial concern to the plaintiffs. I have no doubt that the statements made by the plaintiffs were of a confidential nature.
7. The second requirement that the circumstances of the communication be such as to impose an obligation of confidence is also, in my opinion, satisfied. The meeting was for the purpose of enabling the officials to hear the views of the plaintiffs and others to assist them in discharging their official duties including the tendering of advice to the Minister. The purpose of the meeting and the exclusion of the media combined to indicate the confidential nature of the proceedings. In communicating their views freely and candidly in such circumstances, the plaintiffs were entitled to assume that their views and sentiments would be used only for those purposes and would not be disseminated to their embarrassment among other sections of the Aboriginal community. I agree with Megarry J that "if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realized that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose upon him the equitable obligation of confidence" Coco (supra) at p48. I think that reasonable persons in the position of Dr Draper and Ms Cohen would have realized that the plaintiffs were communicating their views and sentiments in confidence in the sense that they should not be disclosed except for the purpose of informing other government officials involved in the issue and of informing and advising the Minister. In particular it would be clear that they should not be disclosed generally in the Aboriginal community. There was therefore an obligation on Dr Draper and Ms Cohen and upon the executive government of the State of South Australia or, if one prefers the technical, the Crown in right of the State, to observe the confidence imposed upon them.
8. The circumstances of the disclosure are largely unknown. There is no suggestion that Ms Cohen made any disclosure. Dr Draper was accepted as a witness of truth. He made no disclosure. He kept his copy in a secure place. The original was placed on the departmental file. No decision had been made by the Divisional Director as to whether the report should be circulated even to those present at the meeting. It is clear from the evidence that some person, who must have been a member of the staff, removed the file copy without authority and caused it to be disseminated among Aboriginal people in the Port Augusta area.
9. Clearly there was no disclosure of the confidential information by the State. Whoever made the disclosure did so without any authority from the executive government of the State or from any person having authority to so act on behalf of the government. Was there a disclosure by an employee of the State for which the State is vicariously liable?
10. No authority has come to my attention which establishes that vicarious liability of an employer can exist under the equitable doctrine of breach of confidence. Nevertheless a breach of the equitable obligation of confidence is analogous to a common law tort. It is to be expected that equity would follow the law in such circumstances and that the common law doctrine of the vicarious liability in tort of an employer for the acts of employees in the course of their employment would apply in equity to breaches of confidence. It is to be expected that equity would act upon the conscience of the employer by requiring the employer to accept responsibility for the employee's breach of confidence.
11. The vicarious liability of an employer is for a wrongful act committed by an employee in the course of the employment. The liability will attach even to an unauthorized or prohibited act if the act is performed in the course of the carrying out of the employee's assigned or authorized duties, so as to be merely an unauthorized mode of performing the duties. If, however, the employee's act does not occur in the course of the performance of his duties, but is an unauthorized action outside the scope of the employment, the employer is not liable.
12. The evidence proves that the employee who removed the report from the file and caused it to be circulated in Port Augusta, was acting entirely without authority. That employee was not, so far as the evidence goes, assigned to any duties associated with Coorlay Lagoon or the dispute between the Kuyani and the Kokotha people. While the motivation for the actions is unknown, it is clear that the removal and circulation of the report did not occur in the course of the performance of any duties assigned or authorized by the Heritage Branch or any other department or agency of the State. So far as the evidence goes, what the unknown employee did can truly be described as a "frolic of his own"; Joel v Morrison (1834) 6 C and P 501 per Parke B. at p503, or as acting as "in effect a stranger in relation to his employer with respect to the act he has committed"; Bugge v Brown (1919) 26 CLR 110 per Isaacs J at p118. The only connection with the employment is that it provided the opportunity for the unknown employee to commit the unauthorized act and that is not sufficient to establish vicarious liability; Morris v Martin
(1965) 2 All ER 725 per Lord Denning MR at p731.
13. Counsel for the appellants relied upon Morris v Martin and argued that there was an analogy between possession of confidential information and bailment. Vicarious liability was held to exist in Morris v Martin, however, because the bailee chose to perform its duty as bailee through the agency of the employee who converted the property. The unknown employee in the present case was not entrusted with any duty or responsibility in relation to the report or the confidential information.
14. In my opinion the State, not having itself authorized the disclosure of the confidential matter and not being vicariously liable for the unauthorized act of the unknown employee who did so, is not in breach of the confidence which was reposed in it by the communication of the plaintiffs' views and sentiments at the meeting.
15. The learned trial judge upheld a plea of justification with respect to the cause of action in defamation. He did not, however, dispose of the claim in respect of the erroneous statement in the report that the plaintiffs Coulthard and Champion were members of the Kuyani Association. He refrained from doing so because he considered that this imputation was not pleaded as being of itself defamatory. An examination of the Statement of Claim discloses that the imputation was pleaded and that the judge was mistaken. That allegation must therefore be considered.
16. I must say that I am by no means convinced that the statement was defamatory even in the circumstances and context proved in the evidence. Be that as it may, I consider that the claim must fail for the same reason as the claim for breach of confidence. There was no publication authorized by the government of the State or by anyone authorized to act on its behalf. The State would be liable for any publication by Dr Draper or Ms Cohen. There was no publication, however, intentional or unintentional, by those officers. The matter was published by an unknown person. There may be circumstances in which the composer of defamatory material is liable for foreseeable publication by others; Fleming The Law of Torts 8th ed. p537-8, but there is nothing in the facts of this case which would render the actions of the unknown fellow employee, reasonably foreseeable by Draper or Cohen. For the reasons given in relation to the breach of confidence claim, the State is not vicariously liable for the unauthorized publication by the unknown employee.
17. In my opinion the appeals should be dismissed.
JUDGE2 PERRY J I am in general agreement with the reasons published by Debelle J, which I have had the opportunity of perusing in draft. I am indebted to him for his exposition of the facts and his analysis of authority.
2. I agree that the circumstances of the case imposed a duty of confidentiality upon the respondent. In reaching that view, I accept the distinction drawn by McHugh JA in Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd and Anor (1987) 75 ALR 353, between the protection of confidences between private citizens and the protection of confidential information furnished by citizens to governments or their agencies.
3. In particular I would stress the added requirement present in the latter situation but not in the former, that maintenance of the confidentiality of the communication must be in the public interest; see 75 ALR at 454:
"In the absence of a claim based on a contractual or
statutory obligation, equity will not protect the
disclosure or use of what I shall call government
information unless, at the time when the information was
acquired, it was or would have been regarded by the
government and the confidant as confidential, that it was
imparted in circumstances which imposed an obligation of
confidence, that it retains its confidentiality, and that
it is in the public interest to treat it as confidential."
4. Here, given the existence of circumstances giving rise to a duty of confidentiality, it was clearly in the public interest that the confidentiality be afforded the protection of the law. The investigation of the competing claims by the Aboriginal groups concerned with Coorlay Lagoon, and the need to treat the information coming into the hands of the government officials concerned in that investigation with the degree of confidence necessary to avoid either inflaming the dispute or damaging the sensitivities of those involved, gave rise to a public interest in maintaining confidentiality.
5. But the claims both in defamation and for breach of confidence fail by reason of the circumstances in which disclosure was made.
6. The liability of the defendant with respect to the acts of its servants is no different in the relevant sense from the liability of any other employer. In many subsequent cases both in the United Kingdom and in Australia the authority of Lloyd v Grace, Smith and Co (1912) AC 716 has never been doubted. Having regard to the principles which find expression in that case, it was incumbent upon the appellants to prove that the conduct of the servant of the respondent responsible for the leak, was committed in the course of his or her employment. This required a finding that at the very least the person concerned had a responsibility to deal with the report or the file in which it was retained in the course of his or her employment.
7. Dr Draper's evidence was to the effect that the original report was placed in a departmental docket, and that he kept a copy in his own personal file which was in turn kept in a locked cabinet.
8. When complaints were received from people outside the department as to the publication of the report, Dr Draper was asked to check on the "possible source of the copy of the report that was the basis" for the complaints. A search revealed that the original report was missing from the departmental docket.
9. When asked whether the docket had been stored in the "usual storage area", Dr Draper's evidence was- "If the docket was booked out to a particular officer of the department for action on a particular matter, then it would be with that officer."
10. It is reasonable to infer from Dr Draper's evidence that he was unable to establish that the docket had been "booked out" to a particular officer, and that the fact that the report was no longer in the docket was unexplained. It is also a reasonable inference from his evidence that no permission had been given to anyone to make the report public.
11. The finding made by the learned trial Judge (T 810): "4. That the circulation of copies of the report exhibit P1 was attributable to an unknown servant of the Aboriginal Heritage Branch who 'leaked' the report without authority", was not expressly challenged in the notice of appeal.
12. However, in the appellants' supplementary outline of argument, the following submissions were advanced:
"7. It is submitted that it was open to the learned trial
judge to find that it was more likely than not that the
person who leaked the Report was a person who had authority
to handle or deal with the Report and who was expected to
know something of its contents. This conclusion, in any
event, would follow from an application of the presumption
of regularity.
8. Furthermore, given that the leaking of the Report was
the subject of an internal investigation, the failure of
the defendant to lead any evidence about what information
was gleaned from that investigation as to the likely
identity of the person responsible for the leak, suggests
that that evidence did not assist the case of the
defendant, and therefore the rule in Jones v Dunkel could
be relied on by the learned trial judge in concluding that
on the balance of probabilities, the person responsible for
the leaking of the Report was a person who had authority to
handle or deal with the Report, and was expected by his or
her employer to know something of its contents."
13. The learned trial Judge commented on the fact that Mr Bob Ware, the manager of the Aboriginal Heritage Branch, was not called by the defendant as a witness at the trial (T 812). I note, however, that the acting manager of the Aboriginal Heritage Branch, Ms Rina Cohen, was called. However, she was led only as to her evidence of her attendance at the meeting on 23 August 1990 at Port Augusta and not as to the circumstances of the leak.
14. I have already referred to the relevant evidence of Dr Draper.
15. Having regard to the evidence which was called, I do not think that either the "presumption of regularity" or the principle expressed in Jones v Dunkel were of application so as to enable the plaintiff to succeed on this issue.
16. It was proved that there had been an irregularity, in that there was an unexplained disappearance of the report from the departmental docket. Dr Draper was called to say what he could about it. I would not be prepared to draw the inference that there was other evidence available to the respondent which one might have expected the respondent to call on that topic.
17. It seems to me that there was sufficient evidence to justify the finding by the learned trial Judge that the publication of the report was "attributable to an unknown servant of the Aboriginal Heritage Branch who leaked the report without authority". I can see no ground for interfering with that finding.
18. Furthermore, on the whole of the evidence, an inference that the person who leaked the report was somebody who had authority to handle or deal with it, was no more probable than an inference that a person who did not have that authority had, somehow or other, gained access to it.
19. The onus was on the appellants to prove vicarious liability in accordance with the test laid down in Lloyd v Grace Smith and Co (supra). In my opinion, the appellants failed to satisfy that onus. That conclusion is, in my opinion, fatal to the appellants' causes of action in both breach of confidence and in defamation.
20. However, the learned trial Judge dealt with the question of the alleged libel in a different way. He said in his reasons (T813):
"It was argued on behalf of the defendant that the
circulation of the Report amongst aboriginal people in Port
Augusta by the unauthorised act or acts of an unknown staff
member of the defendant did not amount to publication by
the defendant. In the circumstances, I refer to the
following extract from Gatley on Libel and Slander (8th ed)
at page 107:
'234. Unintentional publication : want of care.
The defendant is liable for unintentional publication of
defamatory matter to a third person unless he can show that
it was not due to any want of care on his part.'
The defendant has failed to satisfy me that the circulation
of the Report amongst aboriginal people in Port Augusta was
not due to any want of care on its part. In reaching this
conclusion, I have had particular regard to the comments of
Viscount Finlay in Weld-Blundell v Stephens (1920) AC 956
at 972 and 973.
In the circumstances of the case, I am satisfied that the
circulation of the Report within the aboriginal community
in Port Augusta as a result of the unauthorised act or acts
of an unknown staff member of the defendant constituted
publication of the Report by the defendant. I so hold."
21. Notwithstanding the learned trial Judge's finding that the respondent was responsible for the publication of the report, he went on to dismiss the appellants' claim for damages for libel on the ground that the report was not defamatory.
22. In my opinion, the finding that the respondent was responsible for the publication of the report was erroneous.
23. I have referred to the passage in Gatley relied upon by the learned trial Judge in reaching that finding. To much the same effect is the passage in Fleming, The Law of Torts (8th ed) at 543: "The unintentional publisher escapes responsibility only if he can clear himself of negligence."
24. Apart from some difficulty I have with the use of the word "only", the proposition is certainly true of criminal proceedings for libel. The Libel Act 1843 (UK) s.7 provides a special defence in criminal proceedings exonerating the defendant if he or she can prove that the publication was made without the defendant's "authority, consent or knowledge" and that the publication did not "arise from want of due care or caution" on his or her part.
25. But here we are not dealing with criminal libel. In circumstances where the court is dealing with a civil case involving publication unintended by the defendant but apparently effected by someone in his or her employ, the statement of principle to be found in Duncan and Neal "Defamation" (2nd Ed, Butterworths, 1983) para 20.14 page 150-151 is more pertinent:
"In civil actions for libel published by an employee or
agent, the general rule of tort applies whereby the
employer or principal is jointly and severally liable with
the employee or agent for torts committed with the former's
consent or express or implied authority."
26. Whatever may be the circumstances, if any, in which in a civil action for libel the passages cited from Gatley and Fleming are of application, in the particular circumstances of this case, there was no onus upon the respondent to prove that the circulation of the report was not due to any want of care on its part.
27. On the contrary, it was incumbent upon the appellants to prove that the State of South Australia was vicariously liable for the actions of the unknown employee who wrongfully leaked the report.
28. I should say that Weld Blundell v Stephens (supra) cited by the learned trial Judge involved a claim for damages for breach of an implied term of a contract of employment by the plaintiff of the defendant, an agent, to keep confidential a letter libellous of a third party. The case does not throw any light on the approach to be adopted in a defamation action, to the liability of the defendant for an unauthorised publication by a person in his or her employ.
29. For the reasons which I have already given, the plaintiff failed to prove vicarious liability. As a result, the action in defamation fell to be dismissed for the same reason as the action for breach of confidence.
30. I would dismiss the appeals.
JUDGE3 DEBELLE J This is an appeal from a decision of a District Court Judge dismissing claims in three separate actions in which each of the three appellants made like claims for damages for defamation, negligence and breach of confidence.
2. The appellants' claims arise out of the publication and circulation in the township of Port Augusta of a report of a meeting between members of the Kuyani Association, officers of the governments of the Commonwealth and of the State of South Australia, and other persons. The meeting had been held at Port Augusta on 23 August 1990. It concerned Coorlay Lagoon. The report had been prepared by Dr Neil Draper, a senior archaeologist and anthropologist employed by the Aboriginal Heritage Branch, a division of the Department of Environment and Planning in the Government of South Australia ("the Aboriginal Heritage Branch").
A DISPUTE ABOUT COORLAY LAGOON
3. Coorlay Lagoon is near Roxby Downs. In 1987 disputes had arisen between Western Mining Corporation and an Aboriginal tribe called Kokota concerning Coorlay Lagoon and activities associated with mining by Western Mining Corporation at Roxby Downs. The Aboriginal Heritage Branch had consulted with representatives of the Kokota and Western Mining Corporation. The Kokota people claimed they were traditional owners of the Coorlay Lagoon. An unincorporated association called the Kuyani Association which represented the Kuyani Aboriginal tribe disputed the claim of the Kokota People's Committee to be traditional owners of Coorlay Lagoon according to Aboriginal law and tradition. The Kuyani Association claimed that the Kuyani people also had an interest in the lagoon. The negotiations concerning these issues extended over some years. In mid 1990 the Kuyani had requested the intervention of the Aboriginal and Torres Strait Islanders Commission ("ATSIC"). In late August 1990 three meetings were organised by Mr Manfred Behr, an officer of ATSIC. One meeting was held with the Kokota People's Committee on 22 August 1990, a second meeting was held on 23 August 1990 with Kuyani Association, and a third meeting was held a day or two later with Western Mining Corporation. The second meeting is the meeting out of which the appellants' claims arise. ATSIC had asked officers of the Aboriginal Heritage Branch to attend the meetings, expressing the hope that the Government of South Australia could resolve the dispute. TWO MEETINGS WITH GOVERNMENT OFFICERS
4. The first meeting on 22nd August 1990 was held at Coorlay Lagoon. Those invited to attend were the Kokota People's Committee and people of Kokota descent, the Kuyani Association and people of Kuyani affiliation, officers of ATSIC and of the Aboriginal Heritage Branch. However, neither representatives of the Kuyani Association nor people of Kuyani affiliation attended that meeting. In the result, it was essentially a meeting between the officers of government and the Kokota people.
5. The second meeting on 23 August 1990 was attended by representatives of the Kuyani Association and people of Kuyani affiliation. The meeting lasted about one and a half hours. Four officers of government were present, Ms Cohen and Dr Draper from the Aboriginal Heritage Branch and Messrs Behr and Baker from ATSIC. Also present were nine Aboriginals, who included three women and the three appellants, and a Mr John Bannon, who was an adviser to the Kuyani Association. The Aboriginals present at the meeting supported the Kuyani cause.
6. As the trial judge found, the meeting on 23 August 1990 had been organised so that the officers of State and Federal Governments could convey the views of the Kuyani Association to their respective departments and Ministers. After the meeting had closed, Mr Davies, the chairman of the meeting, who was also chairman of the Kuyani Association, expressly requested the government officers present to convey the views expressed at the meeting to their respective Ministers. The trial judge also found that the matters discussed at the meeting were sensitive to all of the Aboriginals present at the meeting and that Dr Draper fully appreciated the sensitivity of those matters.
7. Before the meeting was held, Ms Kriven, a reporter from "The Advertiser" newspaper, had requested permission to attend with a photographer and to report what transpired. Those present decided that she should not be permitted to attend the meeting. However, the photographer with Ms Kriven was permitted to take photographs of those present. The photographs were taken after the meeting had started and depict the appellant Coulthard who had arrived late. Ms Kriven was informed that a representative of the Kuyani Association would make a statement to her after the meeting. However, the only statement made at the end of the meeting was a brief "No comment". A report about the meeting was published in "The Advertiser" but there was no evidence whether it was published before or after the publication in Port Augusta of Dr Draper's report.
DR DRAPER'S REPORT OF THE MEETING
8. Dr Draper took handwritten notes of the meeting on 23 August. They were quite detailed. It was obvious to those present at the meeting that Dr Draper was taking notes. He was sitting at a table with pen and paper and writing in full view of all those present. The photographs taken by the press photographer clearly show him taking notes. On his return to Adelaide, Dr Draper arranged for his notes to be typed as a report. Dr Draper intended his report to be a record of what had transpired at the meeting for use by senior management in the Aboriginal Heritage Branch. As some of the references in his report might not be understood by all members of senior management, Dr Draper had added some explanatory footnotes. Dr Draper gave a copy of his report to Ms Cohen asking her to check its accuracy. Ms Cohen made a few comments but was satisfied that the report was accurate.
9. The typewritten report made by Dr Draper occupies ten pages of A4 size paper. The footnotes extend over a further four and half pages. Nothing now turns on the content of the footnotes. Is it unnecessary to recite all of the report. It records those present and opens with a note of the decision to exclude Ms Kriven from the meeting. The topics dealt with at the meeting and noted in the report were -
- Grievances expressed by the Aboriginals present at the
meeting concerning the Kokota People's Committee and their
claims for traditional ownership of sites
- A complaint that ATSIC had not provided funds to enable
members of the Kuyani Association to attend the meeting on
the previous day at Coorlay Lagoon.
- Other complaints of the Kuyani Association concerning
ATSIC
- Claims made by the Aboriginals present at the meeting to
traditional ownership of Coorlay Lagoon and the basis of
those claims
- Discussion concerning the boundaries of tribal groups
- Complaints as to the manner in which some claims for
traditional land were being advanced and submissions that
they were being wrongly advanced
- Complaints about Commonwealth and State legislation and
the administration of that legislation
- Explanation by the government officers present of how
Government seeks to administer the protection of sacred
sites and deal with claims for them
10. Dr Draper's report noted statements made at the meeting by each of the appellants. At times he was able to take down an almost verbatim account of what was said. The trial judge held that the record made by Dr Draper was accurate. There is no appeal from that finding.
THE REPORT IS UNLAWFULLY TAKEN
11. The original typewritten report was placed in the docket kept by the Aboriginal Heritage Branch concerning the disputes relating to Coorlay Lagoon. Dr Draper kept a copy in a locked cabinet for his own use. The docket containing the original report was placed in a storeroom within the Aboriginal Heritage Branch. It was the storeroom used by the Branch for filing dockets. If a docket was required from the store, a note would be made of the officer to whom it had been given. Members of the public do not have access to the storeroom. In late September 1990, the Aboriginal Heritage Branch received complaints that copies of Dr Draper's report were being circulated in Port Augusta. Dr Draper examined his own file and ascertained that he still had his duplicate copy of the report. However, the original was missing from the docket.
12. The Aboriginal Heritage Branch caused an investigation to be made concerning the disappearance of the original report. The investigation was conducted by an officer of the Attorney-General's Department. He was unable to ascertain how the report had disappeared or how it had transpired that copies were circulated in Port Augusta. The trial judge found that the circulation of the report resulted from an unauthorised leak by an unknown employee of the Aboriginal Heritage Branch. That finding was not challenged.
THE WORDS COMPLAINED OF
13. Before referring to the grounds of each claim, I note the remarks of which each appellant complains on this appeal. In the course of the meeting some views concerning the Kokota People were strongly expressed by Messrs Coulthard and MacKenzie. The report of what Coulthard said is in these terms:
"Gordon Coulthard said that he had been invited to go to
the Roxby Downs Mine - Graham Baker knows - Public
Relations. He was told by Bill Clifton on Saturday that he
couldn't go. Bill advised him not to go. So he reported
him (Bill) to the Aboriginal Legal Rights. Mark MacKenzie
said : 'Why?' 'Because a couple of elders said so?' (At
this point he passed a letter to Fred Behr). We want to
leave the past and start new. Bill Clifton is just a white
bloke. Gordon Coulthard said: 'We'll charge Bill Clifton
for trespass. He can get legal rights, but we can't. The
Kokota can go and die in Nepabuna if they like. They get
ATSIC money."
14. It is common ground that according to Aboriginal law and tradition, the expression "The Kokota can go and die in Nepabuna if they like" was a curse or tantamount to a curse.
15. The appellant McKenzie also criticised the Kokota in the course of the meeting, in his case on two occasions. The first occasion was in the following context:
"Mark McKenzie said: My language is Kuyani. We are Kuyani
people - what do Coolie, Andamooka, Pimba mean? Our elders
buried our culture. The Kokota are claiming sacred things
that are not there most of the time."
16. Mr McKenzie then continued with some other remarks. The second criticism was made later in the meeting in the context of the accuracy of information concerning sacred sites:
"John Bannon asked: Who authenticates the sites?
Fred Behr replied that, in the case of the report of a
drilling rig on a site north of Coorlay Lagoon, the first
job was to identify the threat and stop it. At this stage
both the Stage government and Western Mining were
consulted. The drilling was almost complete, so that the
immediate threat was over, but the issue was still
unresolved. It was painful that two groups of Aborigines
were unable to resolve it with one another. The State
government was now responsible for further site protection.
John Bannon asked: How do you confirm whether the
information is accurate?
Fred Behr answered: We consult with the State. The
registered sites certainly are there - who owns them is
another matter.
Mark MacKenzie said: They are archaeologists' sites - old
camps and bedtime stories. We don't go with dreams, but
facts and reality - trespassers will be killed. At
Wilpena, archaeologists found 22 sites. I took the elder
there, and he found nothing."
17. The fault in the above remarks was said to lie in the fact that Mr MacKenzie was not a member of the Kokota tribe or group and had no authority to speak in respect of claims by that group to a sacred site. Having spoken in the way he did, he had seriously infringed Aboriginal law and custom by suggesting that spurious claims had been made in respect to sacred sites.
18. The remarks made by the appellant Champion were of a different kind. They were made in the following context:
"There was further discussion between Fred Behr and Graham
Baker and Kuyani Association members about incorporation of
organisations.
Mark MacKenzie asked John Bannon to speak. John Bannon
proceeded to attack A.T.S.I.C. further concerning the
incorporation and declaration of organisations (details not
recorded).
Eddie Champion then said that this was an example of
discrimination against urban Aboriginal communities, and
that the government showed no consideration - for example,
that Fred Behr had been to look at Coorlay Lagoon without
seeing the Kuyani first."
19. (Mr Fred Behr of whom Mr Champion spoke is Mr Manfred Behr, the officer in ATSIC who had organised the meeting.) The fault in those remarks was said to be that Mr Champion had come from Western Australia and from the Pitjantjatjara tribe and was thus an outsider. He therefore had no right or authority to express a view as to a dispute between the Kuyani and the Kokota or to take sides in the dispute. Given the position he held, he was expected to be entirely impartial in such matters. His contribution to the meeting was, therefore, totally unacceptable in the Aboriginal community.
20. Although at the trial the appellants had complained of the publication of other parts of their remarks, on appeal, the appellants did not complain of any part of Dr Draper's report other than the passages already mentioned.
21. In addition to noting the remarks made by each of the appellants, Dr Draper had recorded in his list of those present at the meeting that the appellants Coulthard and Champion were members of the Kuyani Association. The trial judge found that neither was then a member of the Association although Mr Champion had subsequently become a member. The trial judge added that Dr Draper's assumption that Messrs Coulthard and Champion were members of the Kuyani Association at the time of the meeting was understandable though erroneous.
22. The claims of each of the appellants for damages for defamation, negligence, and breach of confidence were all dismissed. At the trial, the appellants had also claimed that Dr Draper had inaccurately recorded what they had said. The trial judge dismissed the claim, holding that each of the appellants had said what Dr Draper had attributed to him. There is no challenge to that finding.
23. The appellant MacKenzie does not appeal against the decision dismissing his claim for defamation. The appellants Coulthard and Champion appeal against the decision dismissing their claims for defamation to the extent only that the trial judge dismissed their claim for defamation on the ground that Dr Draper's report had described them as members of the Kuyani Association. I will return to that issue.
24. None of the appellants' appeal against the decision dismissing their claim that the respondent had been negligent in failing to ensure that Dr Draper's report was not published outside the Aboriginal Heritage Branch. All of the appellants appeal against the dismissal of the claim for breach of confidence.
THE CLAIMS FOR BREACH OF CONFIDENCE
25. The claim for confidentiality was pleaded in this way.
"5 The said meeting was held on the basis that anything
said would be totally confidential and that no Minutes of
the meeting would be taken, giving rise to an obligation of
confidentiality.
5A By reason of the facts stated in paragraph 5 hereof,
each participant at the said meeting owed a duty to every
other participant to preserve the confidentiality of each
and every statement made at the meeting. Further and in
particular the defendant owed a duty to the plaintiff to
preserve and maintain the confidentiality of all the
statements made by the plaintiff at the meeting."
26. When considering the appellants' claim for breach of confidence, the trial judge applied the test in Coco v AN Clark (Engineers) Ltd (1969) RPC 41 which requires a plaintiff to establish, inter alia, that the information was of a confidential nature and that the information was communicated in circumstances importing an obligation of confidence. The trial judge found that there was no resolution or agreement, either before, during, or after the meeting, that anything said at the meeting would be confidential or "totally confidential" as pleaded; that, since the press are excluded from meetings for any number of reasons, the exclusion of Ms Kriven from the meeting did not necessarily mean that what transpired at the meeting would be confidential; and that there was absolutely no foundation for an allegation by the appellants that the meeting was held on the basis that no minutes of the meeting would be made. In respect of the last finding, it should be noted that there was evidence that two Aboriginals present at the meeting also made brief notes, one of them being the appellant Champion. The trial Judge concluded that the meeting was not conducted on the basis that anything said at the meeting would be confidential or totally confidential. The trial Judge also held in respect of each appellant
(1) that the information itself did not have the necessary
quality of confidence, and
(2) that the information had not been imparted in
circumstances purporting an obligation of confidence.
27. The appellants did not question that the trial judge was correct in applying the test in Coco v AN Clark (Engineers) but submitted that he had erred in making the last two findings. Nor did they challenge the findings that there was no resolution or agreement, either before, during, or after the meeting, that anything said at the meeting would be confidential or totally confidential. Their submission was that the views expressed were not in the public domain and that the circumstances in which their views were communicated imported a duty of confidentiality.
28. It is a well established principle of equity that the court will "restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged: Lord Ashburton v Pape (1913) 2 Ch 469, 475; Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39, 50. The essence of the duty which equity enforces is using the information without the consent of the plaintiff: see Saltman Engineering Co v Campbell Engineering Co (1948) 65 RPC
203 where Lord Greene M.R. said at 213:
"If a defendant is proved to have used confidential
information, directly or indirectly obtained from a
plaintiff, without the consent, expressed or implied, of
the plaintiff, he will be guilty of an infringement of the
plaintiff's rights."
29. The court will restrain the publication not only of confidential information in the form of trade secrets but also of an individual's private secrets: Prince Albert v Strange (1849) 18 LJ Ch 120, Argyll v Argyll (1967) Ch 302, and has restrained the publication of tribal secrets of Pitjantjatjara Aboriginals communicated in confidence to an anthropologist: Foster v Mountford and Rigby Ltd (1977) 14 ALR 71. As Mason J noted in Commonwealth v John Fairfax and Sons Ltd (supra) at 51, the equitable principle has been fashioned to protect the personal private and proprietary interests of the citizen.
30. The three elements to be proved by a plaintiff seeking to restrain the publication of confidential information as stated by Megarry J in Coco v AN Clark (Engineers) Ltd (supra) at 47 and approved by Mason J in Commonwealth v John Fairfax and Sons Ltd (supra) at 51 are:
1. that the information was of a confidential nature;
2. that the information was communicated in circumstances
importing an obligation of confidence; and
3. that there has been an unauthorised use of the
information to the detriment of the person who communicated
the information.
31. It has been questioned, both in judicial and academic writing, whether the third requirement of detriment is essential: Dunford and Elliot Ltd v Johnstone and Frith Brown Ltd (1978) FSR 143, 148; Meagher et al, Equity - Doctrines and Remedies (3rd ed) para 4110; Finn, Fiduciary Obligations, pp.159-160; Gurry, Breach of Confidence in Finn (ed), Essays on Equity, p.112; Professor Peter Birks, A Lifelong Obligation of Confidence (1989) 105 LQR 501; Smith Kline and French Laboratories (Australia) Ltd v Secretary for Health
(1990) 95 ALR 87 at 126. It has been held that there is sufficient detriment to a citizen where disclosure of information relating to his affairs has exposed him to public discussion and criticism: Commonwealth v John Fairfax and Sons Ltd (supra) at 52; Prince Albert v Strange (supra). More recently, some members of the House of Lords have suggested that in the case of private citizens there may be no requirement to show material harm or loss beyond the fact of unwanted disclosure: Attorney-General v Guardian Newspapers Ltd (No 2)
(1990) 1 AC 109, 256, 281-2. The authorities are reviewed and discussed in Dean, Law of Trade Secrets (1990) at 177-178, where it suggested that the question is still open. As equity is concerned to uphold the obligation of confidence, the question of damage might go only to the discretion to grant the remedy. But it is not necessary to resolve those issues in this case. Even if a plaintiff must show detriment, the appellants have done so. The public dissemination of this report in Port Augusta has caused damage to the individual reputations of the plaintiffs. The Aboriginal community in Port Augusta was outraged by the remarks made by each appellant and each has suffered public criticism and rebuke.
32. I respectfully adopt a formulation by Gummow J in Smith Kline (supra) at 102 which refines the broader statement in Coco's Case and identifies four elements in the equitable obligation of confidence:
(1) The plaintiff must be able to identify with
specificity, on not merely in global terms, that which is
said to be the information in question;
(2) the plaintiff must be able to show that the information
is confidential;
(3) the information was received by the defendant in such
circumstances as to impart an obligation of confidence; and
(4) there is actual or threatened misuse of that
information without the consent of the plaintiff.
33. The central issues in this appeal concern the first two elements in Coco's Case and issues (2) and (3) in Smith Kline.
WAS THE INFORMATION CONFIDENTIAL? 34. The first question is whether the information conveyed in the statements was confidential. There can be no breach of confidence in revealing to others something which is already common knowledge: Coco v AN Clark (Engineers) Ltd (supra) at 47. Confidential information is that which is not public property or public knowledge or otherwise in the public domain: Saltman Engineering Co v Campbell Engineering Co (supra) at 215; Woodward v Hutchins (1977) 1 WLR
760. It is a question of degree whether information previously disclosed to a limited public has been made generally available: Attorney-General v Guardian Newspapers Ltd (No 2) (supra) per Sir John Donaldson M.R. at 177. Equity will intervene only to protect a confidence if the circumstances are of sufficient gravity; it will not intervene merely to protect trivial tittle-tattle, however confidential: Coco v AN Clark (Engineers) Ltd (supra) at 48; nor "pernicious nonsense": Church of Scientology of California v Kaufman (1973) RPC 635, at 638. In other words, a duty of confidence will only be imposed where the information is "a proper subject for protection": Hubbard v Vosper
(1972) 2 QB 84, at 95.
35. The appellants do not claim that there was anything confidential about the identify of those who attended the meeting - nor could they. The fact of the meeting was well-known in the Aboriginal community at Port Augusta. Its purpose was well-known. Those attending would in all likelihood be identified with the cause of the Kuyani Association. Photographs were taken showing those present. The photographs included Coulthard although he arrived late for the meeting. There was, therefore, no breach of confidence in naming Messrs Coulthard and Champion as being present or incorrectly identifying them as members of the Kuyani Association. If a wrong was done to them, the remedy, if any, was in defamation. The only issue is whether there is any confidence in the remarks made by the appellants in voicing their criticism of the Kokota People's Committee or of the Kokota people generally.
36. Each statement was an expression of views concerning the Kokota people held by each appellant. What was said was the expression of a private opinion which had not been publicly expressed on a prior occasion. In other words, they were views, beliefs or opinions which were not public property or public knowledge or otherwise in the public domain. While Aboriginals in Port Augusta would, in all likelihood, have known both who attended the meeting and the purpose of the meeting, what was not in the public domain was any knowledge of who had expressed a view at the meeting or the nature of the views expressed, which could be confidential information. To that extent, each statement was confidential: see G v Day (1982) 1 NSWLR 24; Schering Chemicals Ltd v Falkham Ltd (1981) 2 All ER 321. Each appellant expressed his view forcefully, if not with a degree of vehemence, particularly in the case of Mr MacKenzie who uttered what amounted to a curse according to Aboriginal law and custom. Does the forcefulness with which each expressed his view deprive the statements of their confidentiality? I do not think so. The fact that a confidence is expressed in derogatory or abusive terms makes it no less confidential since the quality of confidentiality stems from the fact that it is a disclosure of an individual's private opinion which has not been publicly expressed.
37. A person making a communication on a privileged occasion is not restricted to the use of such language as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege. He will be protected, even though his language should be violent or excessively strong: Adam v Ward (1917) AC 309 at 339. The same principle should, I think, apply in relation to confidential information. Opinions are expressed with varying degrees of tact and propriety and, not infrequently, with a complete absence of either. The question whether information is confidential should not be affected by the terms in which the information is imparted. It would be quite impracticable to determine whether information was deprived of the quality of confidence by the manner in which it was expressed. The statements made by each appellant were, therefore, of a confidential nature despite the manner in which they were expressed.
AN OBLIGATION OF CONFIDENCE? 38. I turn to the question whether each of the statements was made in circumstances which imported an obligation of confidence. That question is to be determined objectively: Coco v AN Clark (Engineers) Ltd (supra) at 48; Mesne v Milenkovic (1973) VR 784, at 801; Half Court Tennis Pty Ltd v Seymour
(1980) 53 FLR 240 at 255. The obligation to keep information confidential will be imposed on the defendant having regard not only to what the defendant knew but also to what he ought to have known in all the relevant circumstances: Smith Kline (supra) at 111.
39. In many cases, the obligation of confidentiality will be expressly stated but it can also be implied from the circumstances in which the information was imparted. The obligation can also be implied where the information is disclosed for a limited purpose. Both of these factors were noted by Bowen CJ in Equity Eq in Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales (1975) 2 NSWLR 104, where the question was whether results of a survey of solicitors were confidential. Two extracts from Bowen CJ's reasons deal with the implied obligation of confidentiality in the two instances just mentioned. His Honour observed (at 108):
"No express mention was made of the confidentiality or
otherwise of the discussions. The sole reference to
confidentiality related to information supplied by
participants in the survey, a different universe of
discourse. However, it was the kind of discussion which
would generally be assumed by those taking part would be
treated as confidential, in the sense that use would be
made of what had been said for purposes consistent with the
holding of the meeting, but not otherwise. For example,
the Law Society would, in my view, have been justified in
complaining of breach of confidence had (a representative
of the plaintiff company) given his account of the meeting
with the committee to the press."
40. Later (at 117) His Honour added:
"In my opinion, having regard to the amount of skill,
judgment and labour involved in the preparation of the
proposal and the 1972 questionnaire and to the limited
purpose of the negotiation between the plaintiff and the
defendant in furtherance of which the material was
supplied, both documents were confidential, in the sense
that they could be used by the Law Society only for the
purpose for which they had been given to it, that is to
say, for the purpose of considering and deciding whether it
would engage the services of the plaintiff for its own
survey and interfirm comparison: they could not, without
the plaintiff's consent, be used for other unrelated
purposes, for example, for the purpose of publishing a book
of precedents or writing an article in the Law Society's
journal."
41. Confidential information is frequently disclosed in circumstances where the confidant is authorised to use the information in a limited way. An obvious example from the field of intellectual property is where a trade secret is disclosed to enable manufacture but no other purpose: Abernethy v Hutchinson (1824) 47 ER 1313; Torrington Manufacturing Co Ltd v Smith and Sons (England) Ltd (1966) RPC 285, 301. The fact that information is disclosed for a limited purpose will not of itself necessarily render the information confidential to bind the conscience of the confidant: Smith Kline at 110. The confidant will be bound to treat the information as confidential if, by reason of the combined effect of the confidential nature of the relevant information and the circumstances in which it was communicated, there appears an equity which answers the description of an obligation of confidence: Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 at 437-438; Smith Kline (supra) at 110.
42. Where confidential information is disclosed for a limited purpose, the confidant must not use that information for any other purpose. In establishing a breach of a duty of confidence, the relevant question to be asked is what is the confidant entitled to do with the information: Lac Minerals Ltd v International Corona Resources Ltd (1989) 16 IPR 27, 36.
43. The same principles apply in relation to information disclosed by citizens to government. Government frequently in the public interest seeks information from private citizens or corporations. In other circumstances, information is voluntarily supplied to Government either in the public interest or to advance the private interests of the confider. Such information might, according to the nature of the information and the circumstances in which it was disclosed, attract an obligation of confidence which equity will protect. As McHugh JA observed in Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 75 ALR 353 at 454:
"Courts of Equity will also protect the confidentiality of
information given by citizens to governments and their
departments and agencies: Castrol Australia Pty Ltd v Em
Tech Associates Pty Ltd (1980) 33 ALR 31; Norwich Pharmacal
Co v Commissioners of Customs and Excise (1974) AC 133 at
189 per Viscount Dilhorne. But the relationship between
the modern State and its citizens is so different in kind
from that which exists between private citizens that rules
worked out to govern the contractual, property, commercial
and private confidences of citizens are not fully
applicable where the plaintiff is a government or one of
its agencies. Private citizens are entitled to protect or
further their own interests, no matter how selfish they are
in doing so. Consequently, the publication of confidential
information which is detrimental to the private interest of
a citizen is a legitimate concern of a Court of Equity.
But governments act, or at all events are constitutionally
required to act, in the public interest. Information is
held, received and imparted by governments, their
departments and agencies to further the public interest.
Public and not private interest, therefore, must be the
criterion by which equity determines whether it will
protect information which a government or governmental body
claims is confidential."
44. While the public interest will determine whether equity will protect information claimed by government to be confidential, the protection of confidential information concerning private or proprietary interests of citizens will be protected according to the equitable principles already mentioned.
45. An obligation of confidence might attach to information compulsorily acquired by government or its agencies. In Conway v Rimmer (1968) AC 910 at 946, Lord Reid expressed the principle in these terms:
"If the state insists on a man disclosing his private
affairs for a particular purpose it requires a very strong
case to justify that disclosure being used for other
purposes."
46. See also D v National Society for the Prevention of Cruelty to Children
(1977) 1 All ER 589, 609; Alfred Crompton Amusement Machine Ltd v Customs and Excise Commissioners (No 2) (1974) AC 405, where the duty of confidentiality was accepted though the documents were not privileged form production. The width of Lord Reid's proposition was slightly qualified by Lord Dilhorne in Norwich Pharmacal Co v Commissioners of Customs and Excise (1974) AC 133 at 189, although in terms which expressly recognise that information given for a limited purpose cannot be used for another purpose:
"I do not accept the proposition that all information given
to a government department is to be treated as confidential
and protected from disclosure, but I agree that information
of a personal character obtained in the exercise of
statutory powers, information of such a character that the
giver of it would not expect it to be used for any purpose
other than that for which it is given, or disclosed to any
person not concerned with that person, is to be regarded as
protected from disclosure, even though there is no
statutory prohibition of its disclosure."
47. Instances where an obligation of confidence has been found to exist in the case of information voluntarily given for a limited purpose are R v Birmingham City Council (1982) 1 WLR 679 and Castrol Australia Pty Ltd v Emtech Associates Pty Ltd (1980) 33 ALR 31. In the latter case, the plaintiff restrained the Trade Practices Commission from using for the purposes of preparing a prosecution case against the plaintiff confidential information which had been disclosed to the Commission for the purpose only of justifying certain advertising claims. In the Smith Kline Case it was held that in the particular circumstances of that case the information disclosed could be used for another purpose, a purpose which fell within the exercise of the statutory powers of the defendant.
48. In some cases there is express statutory protection of the confidence, for example, information disclosed in answer to a census or in an income tax return: see Census and Statistics Act, 1905 (Cth) s19 and Income Tax Assessment Act, 1936 (Cth) s16. In the absence of express provision, it is necessary to examine factors such as the circumstances in which the information was disclosed, the nature of the information disclosed, and the purpose for which the information was disclosed. In the absence of express agreement as to the use to be made of the information voluntarily disclosed, a court will be slow to restrict or inhibit the proper exercise of statutory powers by a regulatory authority: Smith Kline (supra) at 110-115. In this case there was no express statutory obligation of confidence. The obligations as to confidential information under the Aboriginal Heritage Act, 1988 do not apply. If the statements made were to be protected the appellants must rely on the principles of equity already mentioned.
49. The circumstances of this meeting, as found by the trial judge or as established by the undisputed evidence, might be summarised in this way:-
1. The dispute between the Kokota People's Committee and
the Kuyani Association concerning Coorlay Lagoon had
existed for some years and was well-known in the Aboriginal
community at Port Augusta, where members of both the Kokota
people and Kuyani people reside. The appellant Champion
described the dispute as "the biggest topic in Port Augusta
for a number of years".
2. The main purpose of the meeting was to enable the public
servants present to consult with the Kuyani Association and
report back to their respective Departments and Ministers.
3. The fact of the meeting and its purpose was well-known
among Aboriginals in Port Augusta.
4. The matters discussed at the meeting were sensitive to
all of the Aboriginals present.
5. Dr Draper fully appreciated the sensitivity of the
matters under discussion.
6. There was no prohibition against any person taking
notes. Dr Draper was seen taking notes at the meeting and
no-one objected to him doing so. Indeed, his taking of
notes would be quite consistent with the expressed desire
of those attending the meeting that the government officers
should report to their respective Departments and
Ministers.
7. Photographs were taken of those present by a press
photographer. There was no prohibition on the use of the
photographs.
8. The press was excluded from the meeting. The journalist
was informed that a statement would be made at the end of
the meeting.
9. There was no resolution or statement at the meetings
that anything said at the meeting should be confidential.
50. While the trial judge dealt with those facts, he failed, however, to address the question whether what was said at the meeting would be disclosed for the limited purpose of providing information to the Government officers and to enable them to seek to resolve the dispute concerning Coorlay Lagoon. His reasons suggest that he attached considerable weight to the absence of a resolution or statement to the effect that what was said at the meeting should be treated in confidence. However, the absence of such a resolution is not necessarily fatal. All relevant circumstances must be considered.
51. The meeting was not a public meeting but a private meeting attended by nine Aboriginals, who supported the Kuyani cause. It would be unlikely that the dispute between the Kokota and the Kuyani would be resolved if the views expressed at either the meetings on 22 and 23 August 1990 were made public. Publication of the views expressed at either of those meetings would have the potential to inflame the dispute. It can, therefore, be fairly inferred from the purpose of the meeting and the longstanding dispute between the Kokota and the Kuyani people that those present at the meeting were entitled to expect that what was said would be treated in confidence and used only for the purpose of enabling the respective governments to seek to resolve the dispute concerning the Coorlay Lagoon. Consistently with that limited purpose, the government officers would be at liberty to disclose to other officers in the relevant department and to Ministers what had been said; the government officers would be at liberty to convey to the Kokota People's Committee the general thrust of what had been said at the meeting and even specific topics which had been discussed at the meeting but those topics could be mentioned only if the speaker was not identified. Given the long running dispute between the Kokota and Kuyani people, there was a real likelihood that, if the speaker were identified, he or she might be subjected to personal attack either physical or verbal, and the dispute thereby inflamed. It is also clear from the fact that the press was excluded from the meeting that no-one present would have expected that a detailed report of what had transpired at the meeting would be released in a way in which it could be circulated to the public. Widespread circulation of the report was, therefore, quite inconsistent with the limited purpose for which the statements were made at the meeting.
52. For these reasons, the trial judge erred in holding that the circumstances in which the meeting was held did not import an obligation of confidence. While the statements made at the meeting could be used for the limited purpose already mentioned, they could not be made public or made generally known.
53. I do not think it likely that equity will often intervene to protect a person who has made abusive remarks even at a private meeting of this kind. Although the circumstances of the meeting on 23 August 1990 enabled the cloak of confidentiality to be extended over what was said, there must be a real question whether those who choose to use such an occasion to vilify or attack others unjustly are entitled to restrain publication of what they have said. The maxim "He who comes to equity must come with clean hands" comes to mind, though it probably has no immediate application. Care must be taken to ensure that the court is not simply being asked to protect a person who has said publicly something he later regrets. In this case, the statements were an expression of private views stated in circumstances importing confidentiality for the purpose of seeking the assistance of government.
IS THE STATE LIABLE? 54. The question then remains whether, given that the report was published in consequence of an unauthorised leak by an unidentified person employed by the Aboriginal Heritage Branch, the State of South Australia is vicariously liable to the appellants.
55. Neither my own research nor that of counsel has found any authority on the question of the liability of an employer for unauthorised leaks of this kind. The appellants submit that in the absence of direct authority, it is appropriate to draw an analogy from the law of bailment, calling in aid, the decision of the Court of Appeal in Morris v CW Martin and Sons Ltd (1966) 1 QB
716, where, the appellants contend, it was held that an employer is liable to the owner of goods if those goods are entrusted to the employer in circumstances which give rise to a duty to take reasonable care of the goods, the goods are then entrusted to an employee, and that employee negligently or dishonestly converts those goods to his own use. So then, the appellants submitted, the State is liable for the consequences of the dishonest appropriation of Dr Draper's report. That decision does not have the force for which the appellants contend. The reasoning of the majority in that case establishes a narrower proposition.
56. In the case of bailment, an employer is liable for the act of his dishonest employee in stealing goods, only if the duty of handling or dealing with those goods has been deputed to that employee. The employer is not liable for the dishonest conduct of an employee who would not in the ordinary course of his employment handle the goods but who, by reason of his employment, had an opportunity of stealing the goods. The distinction was explained in Morris v CW Martin and Sons Ltd by Diplock LJ in these terms at 737:
"Nor are we concerned with what would have been the
liability of the defendants if the fur had been stolen by
another servant of theirs who was not employed by them to
clean the fur or to have the care or custody of it. The
mere fact that his employment by the defendants gave him
the opportunity to steal it would not suffice. The crucial
distinction between Lloyd v. Grace, Smith and Co. (1912) AC
716 and Ruben v. Great Fingall Consolidated (1906) AC 439
is that in the latter case the dishonest servant was
neither actually nor ostensibly employed to warrant the
genuineness of certificates for shares in the company which
employed him. His fraudulent conduct was facilitated by
the access which he had to the company's seal and documents
in the course of his employment for another purpose: but
the fraud itself which was the only tort giving rise to a
civil liability to the plaintiffs was not committed in the
course of doing that class of acts which the company had
put the servant in its place to do."
57. Salmon LJ expressed the same view in these terms (at 740-741):
"I am anxious, however, to make it plain that the
conclusion which I have reached depends upon Morrissey
being the servant through whom the defendants chose to
discharge their duty to take reasonable care of the
plaintiff's fur. The words of Willes J. in Barwick's case
(1867) LR 2 Exch 259 are entirely applicable to these
facts. The defendants `put the agent (Morrissey) in (the
defendants') place to do that class of acts and ... must be
answerable for the manner in which that agent has conducted
himself in doing the business which it was the act of his
master to put him in.' A bailee for reward is not
answerable for a theft by any of his servants but only for
a theft by such of them as are deputed by him to discharge
some part of his duty of taking reasonable care. A theft
by any servant who is not employed to do anything in
relation to the goods bailed is entirely outside the scope
of his employment and cannot make the master liable. So in
this case, if someone employed by the defendants in another
depot had broken in and stolen the fur, the defendants
would not have been liable. Similarly in my view if a
clerk employed in the same depot had seized the opportunity
of entering the room where the fur was kept and had stolen
it, the defendants would not have been liable. The mere
fact that the master, by employing a rogue, gives him the
opportunity to steal or defraud does not make the master
liable for his depredations: Ruben v. Great Fingall
Consolidated (1906) AC 439. It might be otherwise if the
master knew or ought to have known that his servant was
dishonest, because then the master could be liable in
negligence for employing him."
58. Thus, the employer is liable only if the employee is acting in the course of doing what he is employed to do.
59. While there are cases such as Lloyd v Grace Smith and Co (1912) AC 716 where an employer is liable even though the employee has wrongfully acted solely for his own benefit, generally speaking, an employer is not liable where the employee has acted outside the scope of his employment or has engaged in a frolic of his own. As the House of Lords noted in Kooragang Investments Pty Ltd v Richardson and Wrench Ltd (1982) AC 462 at 473:
"It remains true to say that, whatever exceptions or
qualifications may be introduced, the underlying principle
remains that a servant, even while performing acts of the
class for which he was authorised, or employed, to do, may
so clearly depart from the scope of his employment that his
master will not be liable for his wrongful acts."
60. The employer is vicariously liable, therefore, for the acts of the employee only when the acts of the employee are done in the ostensible performance of his employer's work or which are committed under cover of the authority the employee is held out as possessing or of the position in which he is placed as a representative of his employer: Deatons Pty Ltd v Flew
(1949) 79 CLR 370, 381.
61. The report was not leaked by either Dr Draper or Ms Cohen. There is no evidence to suggest that the person who wrongfully removed the report from the file was an officer in the employ of the Aboriginal Heritage Branch who ordinarily dealt with the file. The State of South Australia is not, therefore, vicariously liable for the act of the employee who wrongfully removed the report from the docket.
THE CLAIMS FOR DEFAMATION
62. The appellants Coulthard and Champion limited their appeals against the dismissal of their claims for defamation to the ground that they were defamed in that part of the report which described them as members of the Kuyani Association. It was alleged that the statements were defamatory in that neither was a member of the Kuyani Association and each held a position which required that they be independent of tribal groups. The trial judge had held that the statements were not true but did not deal with the question whether the statements were defamatory stating that neither appellant had pleaded in his statement of claim that the statement was defamatory. In this respect the trial judge was wrong. Both had pleaded that fact in an amended statement of claim.
63. Mr Champion was a consultant employed by the Aboriginal Community Affairs Panel at Port Augusta. He was employed on contract for a term of twelve months. His duties included liaison between Aboriginal communities and government, local authorities, private developers, and others. One of his tasks was to create employment and development projects for the Andymathna people in the Flinders Ranges. His position as a consultant required him to be unbiased and not to take sides in any dispute between Aboriginal communities.
64. Mr Coulthard was employed as a community liaison officer by the Aboriginal Community Affairs Panel in Port Augusta. He was a member of the Andymathna people. His duties included mediation of disputes. Membership of an association of Aboriginal people other than the Andymathna would be seen to be inconsistent with his duties.
65. There was little dispute about the effect of this evidence. I think that the statement that each was a member of the Kuyani Association was defamatory since it would adversely affect the reputation of each as an unbiased and independent consultant or mediator. In the case of Mr Coulthard, the claim is not so strong. Dr Draper's report records that he was introduced to the meeting as a member of the Kuyani Association. Mr Coulthard disputed that the report accurately recorded what had occurred but the trial judge accepted the accuracy of the note. But it is unnecessary to determine whether Mr Coulthard's conduct led Dr Draper into believing he was a member of the Kuyani Association as there are other grounds on which the claims for defamation must fail.
66. The trial judge held that the respondent had failed to satisfy him that the publication of the report was not due to any want of care on its part. That conclusion does not sit happily with his finding in the very next paragraph of his reasons that the circulation of the report in Port Augusta resulted from the unauthorised act or acts of an unknown employee of the respondent. That question aside, there is another reason why he erred in reaching that conclusion, namely, that he failed to give effect to the fact that the publication was due to a wrongful act.
67. The writer of defamatory material is liable only if publication is intended or results from his negligence. A defendant is liable if he negligently allows another person to read the defamatory material: Weld-Blundell v Stephens (supra). As Professor Fleming expresses it, the unintentional publisher escapes responsibility only if he can clear himself of negligence: Law of Torts (8th ed) p.543. If the publication results from the acts of a third person, the defendant is liable only if he could reasonably have anticipated the action of the third party: Weld-Blundell v Stephens
(1920) AC 956. Although, generally speaking, it is not actionable to send a libellous letter directly to the person defamed, the writer will incur liability if he should reasonably have anticipated that it might well be open by someone else such as the addressee's husband: Theaker v Richardson (1962) 1 WLR 151 or the addressee's secretarial staff: Pullman v Hill and Co Ltd
(1891) 1 QB 524.
68. But the law does not go so far as to require that a defendant should reasonably anticipate a wrongful act by a third party. If a person writes a letter defamatory of an employer and sends it to the employer but an employee, in breach of his duty, opens the letter, the writer of the letter is not liable: Huth v Huth (1915) 3 KB 32, at 38 where Lord Reading CJ stated the principle in these terms:
"It would be impossible successfully to contend - and it is
not contended, as I understand - that if a person, in
breach of his duty, were to open a letter, and there was no
reason to expect that he would commit that breach of duty,
the fact that he had opened it and read it would amount to
publication by the person who sent it."
69. Bray J expressed the same proposition (at 46):
"In my opinion it is quite clear that, in the absence of
some special circumstances, a defendant cannot be
responsible for a publication which was the wrongful act of
the third person. He cannot be said, except in special
circumstances, to have contemplated it. It was not the
natural consequence of his sending the letter, or writing,
in the way in which he did."
70. In Pullman v Hill (1891) 1 QB 524 at 527 Lord Esher M.R. expressed the same principle stating that, if the writer of defamatory material locks it up in his desk and a thief comes and breaks open the desk and takes away the material and makes its contents known, that would not constitute publication of the material for which the writer was liable. I do not think that it is necessary that defamatory material should be under lock and key for a defendant to escape liability. In Huth v Huth, the letter which was opened was sent in an unsealed envelope. If the defamatory material is stored in a safe place to which access may be gained only for authorised purposes, the writer of the material should not be liable if the material is wrongfully taken for an unauthorised purpose. In other words, the writer of defamatory material and the employer of the writer are entitled to act on the footing that people will not act unlawfully.
71. Dr Draper put his copy of the report in a locked filing cabinet. The original report was stored by Aboriginal Heritage Branch in the appropriate docket in a store-room to which the public did not have access. Although Dr Draper's report dealt with sensitive matters, the subject matter of the report was not so sensitive nor was the report of a kind which required such a high degree of security that the report should be kept under lock and key. The report was wrongfully removed from the docket. The respondent is entitled to assume that its officers will not act wrongfully, that they will not steal documents from a file, and that they will not make unauthorised use of material which has been appropriately filed. I do not think that there was any want of care on the part of the Aboriginal Heritage Branch in the manner in which it stored the docket. The respondent is not, therefore, liable for the publication of the report at Port Augusta.
72. The appeals in respect of the claims for defamation, therefore, fail.
73. I would, therefore, dismiss each of the appeals.
Key Legal Topics
Areas of Law
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Administrative Law
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Privacy Law
Legal Concepts
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Breach of Confidence
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Vicarious Liability
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Standing
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Judicial Review
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