Earl v Nationwide News Pty Ltd

[2013] NSWSC 839

Supreme Court

New South Wales

Medium Neutral Citation:	Earl v Nationwide News Pty Ltd [2013] NSWSC 839
Hearing dates:	20 June 2013
Decision date:	20 June 2013
Jurisdiction:	Equity Division - Duty List
Before:	White J
Decision:	Refer to para [36]-[39], [48] and [50]-[52] of judgment.
Catchwords:	EQUITY - breach of confidential information - records produced from plaintiff's attendance at medical practitioner - whether information has the necessary quality of confidence - whether in the public domain - interlocutory injunctions - balance of convenience - non-publication order under Court Suppression and Non-Publication Orders Act 2010 - importance of open justice to the administration of justice
Legislation Cited:	Court Suppression and Non-Publication Orders Act 2010
Cases Cited:	Breen v Williams (1996) 186 CLR 71 Campbell v MGN Limited [2004] 2 AC 457 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Wheatley v Bell [1982] 2 NSWLR 544 Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772 Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 Bunn v BBC [1999] FSR 70 David Syme & Co Limited v General Motors - Holden's Limited [1984] 2 NSWLR 294 John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 Rinehart v Welkar [2011] NSWCA 403 Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651
Texts Cited:	R P Meagher, J D Heydon and M Leeming, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies, 4th ed
Category:	Interlocutory applications
Parties:	Sandor Earl (Plaintiff) Nationwide News Pty Ltd (Defendant)
Representation:	Counsel: TS Hale SC with D Robertson (Plaintiff) D Sibtain (Defendant) Solicitors: Unsworth Legal (Plaintiff) Ashurst (Defendant)
File Number(s):	2013/184969

Judgment

1. HIS HONOUR: This is an application for the continuation of an interlocutory injunction granted by Lindsay J on 14 June 2013.

1. The plaintiff is a professional rugby league football player. I am told that in late 2011 and early 2012 he was contracted to the Penrith Panthers team in the NRL. The defendant is a news publisher.

1. On 13 June 2013 a journalist, a Mr Weidler, reported on the Channel Nine News (a channel not connected with the defendant) that:

"Raiders star Sandor Earl is a subject of claims and it relates to his time at Panthers, when he had two major shoulder injuries in 2011. His activities are under investigation. Nine News has learned of the allegations that Earl was treated with peptides at the private clinic at Cabramatta without knowledge of his club. There is ongoing debate as to whether the peptides were banned by ASADA at that time ...".

1. There is evidence from the plaintiffs' solicitor on information and belief that after the broadcast on Channel Nine, a Mr Josh Massoud of the Daily Telegraph (a publication of the defendant's) told the plaintiff that he had copies of accounts relating to medical treatment provided to the plaintiff by a Dr Kahn during late 2011 and early 2012. On 14 June 2013 the plaintiff's solicitor sent an email to Dr Kahn asking whether he had spoken with Mr Weidler or any other person about Mr Earl and whether he had provided any documents to Mr Weidler or any other person about Mr Earl. He did not receive a response.

1. On 14 June 2013, the Daily Telegraph published a report that stated:

"Sandor Earl has become the first NRL player named in the ASADA investigation, following a report alleging a Raiders winger was injected with peptides at a private medical clinic. The Nine Network last night claimed Earl received the peptide treatments while playing for Penrith in 2011. It was alleged he visited a practice in Cabramatta, but there was no suggestion the peptides in question constituted banned substances at the time. ...".

1. An ex parte application was made to Lindsay J on 14 June 2013. His Honour ordered that:

"Upon the plaintiff by its counsel giving to the Court the usual undertakings as to damages, order that the defendant by itself, its servants and agents be restrained until 5.00 pm on Monday, 17 June 2013 or other order from:

a) using or disclosing information relating to treatment of the plaintiff by any medical practitioner registered in New South Wales.

b) using or disclosing the fact of treatment of the plaintiff by any medical practitioners registered in New South Wales.

c) using or disclosing the existence of any document related to treatment of the plaintiff by any medical practitioner registered in New South Wales."

1. Those orders have been extended without opposition and without admissions until today. His Honour also made an order that on the plaintiff giving the usual undertakings as to damages, subject to further order, the defendant be restrained from publishing the fact of the institution of these proceedings and from disclosure of the terms of relief sought in the summons or in the affidavit of the plaintiff's solicitor sworn in support of the summons otherwise than for the purposes of obtaining legal advice or defending these proceedings.

1. The second issue is whether that order should be continued, modified or discharged.

1. As well as the publications on Channel Nine News and in the Daily Telegraph referred to earlier in these reasons, there was considerable further publicity of the same matter in other publications on 14 June. There was also considerable further publicity of the same matter in publications, other than those of the defendant, after 14 June.

1. The defendant places particular reliance on the publication in the Sun Herald on 16 June 2013, which is also available on the internet, in which a reporter stated:

"Dr Ijaz Khan has emerged as the mystery medico who treated Sandor Earl following the winger's shoulder surgeries. The Canberra flyer was the subject of claims he took peptides to aid his recovery following injuries he suffered while at Penrith in 2011.

Sin Bin can reveal Earl, who recently signed to play rugby union in France, was referred to Injury Care, a private clinic at Cabramatta. It's understood he was treated by Khan. It is unclear whether he has treated any other NRL players and attempts to contact the doctor were unsuccessful. There is no suggestion of any wrongdoing by Earl or Khan. In a statement released on Friday, Earl said he was 'shocked' by revelations on the Nine Network he had taken peptides at a clinic without the knowledge of the club. News Ltd reported last month that Cronulla was sent a bill for $2764.80 from Injury Care for blood tests allegedly arranged at the clinic."

1. The plaintiff served a notice to produce on the defendant. It required the production of any documents or copies of documents relating to treatment of the plaintiff by [xx or yy] between 1 July 2011 and 20 June 2012 including any accounts for such treatment or any documents under cover of which the defendant received such documents. In response to that call the defendant produced a number of documents. These were tendered and admitted. I have made a confidentiality order with respect to the documents produced lest the publication of the exhibit destroy the confidence the plaintiff seeks to protect. It suffices to say that the documents contain confidential information that would reveal to a reader who understood the items of service referred to what treatment was provided to the plaintiff on a number of different days. I infer that a knowledgeable reader could infer the condition, or a range of possible medical conditions, for which the treatment was given.

1. The defendant has not disclosed how it came into possession of the documents it produced.

1. The defendant, without the consent of the plaintiff, has obtained, either from the doctor, or the medical practice, or a third party, documents and information that the defendant should know and that either the doctor, medical practice or a third party ought to know, contains information that the plaintiff is entitled to have kept confidential.

1. The plaintiff contends that information possessed by any doctor of his, or any medical practice he attended, concerning his medical condition or his treatment, and information concerning the identity of his treating doctor, is information that the doctor and the medical practice would be required to treat as confidential and not to be disclosed without his consent. There is support for this submission in Breen v Williams (1996) 186 CLR 71. Gummow J said with reference to authority, that:

" A medical practitioner has been said to be under an obligation in equity not to disclose confidential information concerning a patient which is learned in the course of professional practice, an obligation from which the medical practitioner may be released only with the express or implied consent of the patient."

1. That obligation can extend to the fact that the patient is seeing a particular doctor. (See Campbell v MGN Limited [2004] 2 AC 457 at [13]-[14]).

1. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, Gleeson CJ referred with apparent approval to a submission that:

"A person who comes into possession of information, which that person knows to be confidential, may come under a duty not to publish it. The usual elements for an equitable remedy are, first, that the information is confidential, secondly, that it was originally imparted in circumstances importing an obligation of confidence, and thirdly, that there has been, or is threatened, an unauthorised use of the information to the detriment of the party communicating it."

1. An injunction may lie not only against the party originally owing the obligation of confidence who breaches it or threatens to breach it, but against a third party who knowingly obtained the confidential information in breach of confidence or who obtains the information innocently but comes to learn it was originally given in confidence. (See for example Wheatley v Bell [1982] 2 NSWLR 544 at 550).

1. This is an application for an interlocutory injunction. Hence the issues are whether there is a serious question to be tried that the plaintiff will be entitled to final injunctive relief, and if so, in what form, and if so, where the balance of convenience lies. The balance of convenience includes an assessment of the risk of injustice arising from the granting or the withholding of interlocutory relief (Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772 at 780-781). A refusal of an interlocutory injunction would substantially determine the plaintiff's claim for final injunctive relief. The apparent strength of the plaintiff's claim for an injunction must be considered in determining where the balance of convenience lies (Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 536).

1. I am satisfied for the reasons I have given that there is a serious question to be tried as to the plaintiff's entitlement to final relief. Subject to the matter which I address next, I also think the plaintiff has a strong prima facie case to restrain the use of confidential information about his medical treatment.

1. The defendant's principal argument is that the plaintiff's confidential information has passed into the public domain. Counsel for the defendant submitted that:

"7. Given the wide publication of the allegations concerning the plaintiff's treatment with peptides, the interim injunction should be discharged. No further harm could be occasioned by the plaintiff such as to warrant the intervention of equity: see, for example, Bunn v BBC [1999] FSR 70 at 76.

8. The nature and timing of the plaintiff's alleged treatment, and the consequences that have flowed from such conduct, have been widely published in various States and Territories of Australia via mainstream media. All of that publicity has occurred within a few days immediately preceding and immediately following the grant of the interim injunction."

1. In support of the submission, counsel particularly relied on the publication in the Sun Herald on 16 June 2013 to which I have referred above. Counsel submitted that this publication was a publication not merely of allegations but of facts, and hence the facts concerning the plaintiff's condition and treatment were in the public domain.

1. In fact, the publication in the Sun Herald on 16 June 2013 was an amalgam of asserted facts and repetition of claims, that is, allegations, that the plaintiff took peptides to aid his recovery following injuries. However, even if everything that was there stated, or was stated in other publications, was to be considered as reports of asserted facts, it is at least seriously arguable that this does not mean that information concerning the plaintiff's medical condition and medical treatment has lost its confidentiality. Even to the extent that matters have been reported as matters of fact, the publications would all be understood as journalists' assertions as to what the facts were. Neither the Sun Herald journalist nor any other publication to which I was referred, purported to publish the contents of any medical report or statement of account from a medical practice.

1. If publication of the contents of confidential exhibit A, or of information about the plaintiff's medical condition or treatment from his treating doctor or medical practice could either confirm or contradict, wholly or partly, the allegations and assertions thus far published, in either case, whether such publications were confirmatory of what has hitherto been asserted or contradictory of it, there would be a further breach of the plaintiff's confidential information. At least that position would be strongly arguable.

1. This does not appear to me to be a case like Bunn v BBC [1999] FSR 70, referred to by counsel for the defendant where Lightman J found that wide publication of the contents of a confidential statement meant that the contents were already in the public domain. That case could be directly applicable if there had been a publication of the contents of the confidential exhibit or another medical report. But that is not this case.

1. The following paragraphs will be suppressed in the public reasons and I order that there be no publication of it except to the parties or their legal advisors until further order.

CONFIDENTIAL SECTION

[Suppressed]

1. In any event, it appears from the discussion, in R P Meagher, J D Heydon and M Leeming, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies, 4th ed at [41-065], that the principles concerning the deprivation of a plaintiff of an equitable remedy because the confidential information has passed into the public domain are not settled. I do not think that the "defence" if I can call it that, that the information has passed into the public domain means that there is not a serious question to be tried that the plaintiff is entitled to final injunctive relief, provided that the injunction is framed so as to protect the plaintiff against the consequences of a breach of an obligation of confidence.

1. There were no submissions concerning the balance of convenience. I think counsel for both parties, not unreasonably, took the position that the decision would turn on an assessment of the strength of the plaintiff's case.

1. But the balance of convenience is relevant. I have to take into account on the one hand the public interest in the freedom of the press to provide fair and accurate reports of matters of public interest (or those that are of interest to the public). I also have to take into account the plaintiff's interest in protecting his confidences. That interest, and his claim for final relief, will be wholly lost if the injunction is not continued, at least in a modified form.

1. In my view the balance of convenience favours continuation of the injunction appropriately modified.

1. The present form of the orders is too wide and senior counsel for the plaintiff did not, I think, press, or at least not strongly press, for a continuation of the orders in the form in which they have been made to date. The defendant's counsel pointed out that as presently framed, the defendant would be prevented from reporting on a sporting injury which the plaintiff might sustain on the football field, even though the injury and the treatment of it by a medical practitioner on the field might be the subject of a live television broadcast. Clearly that is not appropriate, nor I think intended by the orders.

1. The plaintiff is entitled to an order to prevent the disclosure by the defendant of information about his medical condition or medical treatment, or the identity of his treating doctor, that is information derived directly or indirectly from his medical practitioner or the relevant medical practice. That includes the information in confidential exhibit A. It would include the information that came originally from the medical practitioner or the medical practice that was provided to a third party and then communicated without the plaintiff's consent by the third party to the defendant.

1. Counsel for the defendant submitted that there should be some provisos to an injunction, if an injunction were continued, to make it clear that the order would not prevent the defendant from disclosing a number of matters. These included the allegation that the plaintiff had been treated with peptides in 2011 by Dr Kahn and Injury Care to aid his recovery from shoulder surgery, including without limitation that the treatment involved injecting peptides. I do not think that such a proviso would be appropriate. The question of whether the publication of an allegation involves the publication of information obtained directly or indirectly from a doctor or medical practice could depend on the circumstances of the publication and the details of the publication. Whether or not the publication of an allegation, or the repetition of publications about allegations, would be a breach of the order should be a matter for the defendant in the first instance.

1. Other carve-outs suggested by the defendant would be either unnecessary or inappropriate. There is one exception to this. The defendant seeks an order that the injunction should not prevent it from disclosing any statement or information published by or to the Australian Sports Anti-Doping Authority ("ASADA") concerning any medical treatment received by the plaintiff.

1. I do not think that the injunction should contain a carve-out permitting the publication of information published to ASADA concerning medical treatment received by the plaintiff. The plaintiff may be required to provide such information to ASADA. That is not a matter which has been investigated on this application.

1. Whilst the information remains confidential, the injunction should apply. However, if ASADA publishes a statement that reveals otherwise confidential information about the medical treatment received by the plaintiff, there is a public interest in the defendant's being as free to publish ASADA's statement as any other news organisation. Clause 4.22 of Schedule 1 of the Australian Sports Anti-Doping Authority Regulations 2006 provides authority for ASADA to publish information on and related to a register that is to be kept of its findings if conditions in that clause are met. There is a possibility that there could be such a publication by ASADA, even without the consent of the plaintiff, if the conditions are satisfied. I think there should be such a carve-out in the orders.

1. For these reasons I order that the injunction contained in the second order, numbered 1, made by Lindsay J on 14 June 2013 and extended to today, be discharged.

1. Upon the plaintiff, by his counsel giving the usual undertaking as to damages, I will order that, until further order, the defendant, by itself, its servants and agents, be restrained from disclosing information about the medical condition or the treatment given to the plaintiff by any medical practitioner, or the identity of the plaintiff's treating doctor, being information derived directly or indirectly from any such medical practitioner or medical practice, including the information and documents in confidential exhibit A.

1. I will further order that the preceding order does not prevent the defendant from disclosing any statement or information published by the Australian Sports Anti-Doping Authority concerning any medical treatment received by the plaintiff.

[Counsel addressed]

1. I note the plaintiff gives the usual undertaking as to damages, and I make those orders.

1. The second question concerns the non-publication order that presently prohibits the defendant from publishing the fact of these proceedings, or the relief claimed or the orders made against it.

1. It is not clear whether the non-publication order was made pursuant to ss 8 and 10 of the Court Suppression and Non-Publication Orders Act 2010, or whether it was made in the court's inherent jurisdiction preserved by s 4 of that Act. Sections 6, 8 and 10 provide:

"6 Safeguarding public interest in open justice

In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

...

8 Grounds for making an order

(1) A court may make a suppression order or non-publication order on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper administration of justice,

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c) the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency),

(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.

...

10 Interim orders

(1) If an application is made to a court for a suppression order or non-publication order, the court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the court, until the application is determined.

(2) If an order is made as an interim order, the court must determine the application as a matter of urgency."

1. Counsel for the plaintiff submitted that to allow disclosure of the fact of the institution of this proceeding or the terms of the relief sought and granted would undermine the utility of the injunction. Counsel pointed to the fact that there had already been publicity about the plaintiff and the ASADA investigation, and assertions made about the medical treatment provided to the plaintiff. This was against the background of an ASADA investigation into the use of banned drugs in professional sport. Counsel submitted that any reporting of the fact that the plaintiff has instituted this proceeding, or the terms of the relief sought by him, would be likely to be misinterpreted by the public and the press as the plaintiff having something to hide from seeking to keep his health and medical records confidential.

1. It may be that some people would infer something adverse to the plaintiff from the fact that he is seeking to do what prima facie he is entitled to do, just as every other person is entitled to do, namely, to keep his medical information confidential. Nonetheless, even if readers or listeners of any report of this litigation drew adverse inferences against the plaintiff from the fact that he has brought this proceeding to prevent disclosure of confidential information about his medical treatment, that does not warrant, in my view, a continuation of the non-publication order.

1. Such an order was sought to be justified on the ground in s 8(1)(a): that it is necessary to prevent prejudice to the proper administration of justice.

1. Pursuant to s 6, and in accordance with common law, the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. That principle is of longstanding and of fundamental importance. (See, for example, David Syme & Co Limited v General Motors - Holden's Limited [1984] 2 NSWLR 294; John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-477; and Rinehart v Welkar [2011] NSWCA 403 at [100] and following.)

1. As was held in Rinehart v Welkar, following Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at 664, [30]-[31], the word "necessary" is a strong word in the context of s 8(1)(a). This is not a case like Australian Broadcasting Commission v Parish (1980) 43 FLR 129 where, had the evidence in that case been published, it would have meant that the applicant could not proceed with its suit. The fact, if it be a fact, that some or many people might form adverse views about the plaintiff as a result of these proceedings does not prejudice the administration of justice. It will not affect the operation of the orders that I have made, which should succeed in preventing the defendant from putting the confidential information that the plaintiff is prima facie entitled to protect into the public arena prior to a final hearing.

1. In my view, neither pursuant to s 8, nor as part of the court's inherent jurisdiction, should the current non-publication order be continued. There is an overwhelming public interest in the public's being entitled to know of the court hearing, and the orders sought and made.

1. I order that the order number 4 made by Lindsay J on 14 June 2013 be discharged. The discharge of that order will not affect the orders as to confidentiality that I have made from time to time during the course of the hearing, which are intended to protect the information whose confidence the plaintiff is entitled to maintain. That includes the confidentiality order made in respect of confidential exhibit A.

1. From time to time during the course of the hearing I made orders for parts of submissions and exchanges between bench and counsel to be confidential. I wish to review the transcript. Subject to hearing from counsel, I am minded to order that there be a confidentiality order in relation to what passed orally in court during the course of the hearing until I have had the opportunity to review the transcript for that purpose.

[Counsel addressed]

1. I order that until further order the transcript of the hearing of the proceedings to date also be kept confidential and not be disclosed to any person except the parties or their legal representatives.

[The parties addressed on costs.]

1. I order that the plaintiff's costs of the hearing today be the plaintiff's costs in the cause. The earlier costs can be costs in the cause, but the plaintiffs' costs of today will be the plaintiffs' costs in the cause.

1. I stand over the proceedings to the Registrar's list at 9am on 28 June 2013.

Decision last updated: 25 June 2013