Coulthard v South Australia

The appeals were brought against a judgment dismissing claims for damages for breach of confidence, defamation and negligence. The respondents were Aboriginal men of the Kuyani tribe. The appellants alleged that their confidential statements made at a meeting were published in breach of confidence and defamed them. The respondents were government officials responsible for Aboriginal sacred sites. The meeting was attended by representatives of the Kuyani Association, officers of the government and others. The meeting was for the purpose of enabling the officials to obtain the views of Kuyani representatives in order to assess the situation and relay those views to their respective ministers. 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 appellants and has given rise to this action. The appeals were dismissed. The claims both in defamation and for breach of confidence fail by reason of the circumstances in which disclosure was made. The appellants failed 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. It was proved 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. 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 appellants' views and sentiments at the meeting. The claims for defamation and breach of confidence both failed.