IBAC v Nationwide News
[2025] VSC 632
•6 October 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
S ECI 2025 05791
| INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION | Plaintiff |
| v | |
| NATIONWIDE NEWS PTY LTD | Defendant |
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JUDGE: | Forbes J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 October 2025 |
DATE OF RULING: | 6 October 2025 |
CASE MAY BE CITED AS: | IBAC v Nationwide News |
MEDIUM NEUTRAL CITATION: | [2025] VSC 632 |
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PRACTICE COURT — INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION — Application to restrain publication of information derived from or contained in a draft report — Claim for breach of confidence —Serious issue to be tried—Balance of convenience —Interlocutory injunction granted — Independent Broad-based Anti-corruption Commission Act 2011 (Vic) ss 162, 166.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J Brereton with C Thorpe | IBAC Solicitors |
| For the Defendant | M J Hoyne | Thomson Geer |
HER HONOUR:
Following an investigation titled ‘Operation Richmond’, conducted as part of its function to inquire into allegations of corruption, the Independent Broad-based Anti-corruption (‘IBAC’) prepared a draft special report as part of its statutory process that would eventually culminate in the tabling of a special report to Parliament.[1]
[1]In accordance with s 162 of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (‘the IBAC Act’).
A draft special report is provided confidentially to affected persons for comment and an opportunity to respond before the special report is finalised. This is generally described as ‘the natural justice process’ and is provided for by the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (‘IBAC Act’), in particular s 162.
IBAC became aware that the draft report for Operation Richmond had been obtained by a journalist from The Australian who had contacted at least two affected persons seeking their comment on various matters that the report is described to ‘detail’, ‘conclude’, or ‘describe’.
As a result, IBAC has sought interlocutory injunctive relief to restrain publication by Nationwide News of information derived from or contained in the draft special report that had been provided by IBAC to persons under s 162 of its Act.
Underlying proceeding
The IBAC proceeding seeks injunctive relief on a final basis grounded in an action for breach of confidence.
Although the content of any final report is put in the public domain once tabled in Parliament, until that time the IBAC statutory regime provides an opportunity for IBAC to take particular actions in confidential circumstances. These include hearings as well as provision of any draft special report. A draft special report is prepared in order to meet the statutory obligations imposed upon IBAC by s 162 of the IBAC Act to provide any person or public body with an opportunity to respond about the comment or opinion or adverse findings to be made.
Section 166 of the IBAC Act provides that the persons who receive a draft, proposed or advance copy of the draft special report before it is published by IBAC, must not disclose it.[2] A breach of s 166 carries a penalty of 120 penalty units or 12 months of imprisonment or both. Either individuals or bodies corporate and their officers can breach section 166.
[2]Other than in specific circumstances set out in the legislation which are not relevant here.
For IBAC to establish a breach of the obligation of confidence by Nationwide News, its employees or agents it must establish four elements concerning the information. They are as summarised by Justice Garde in IBAC v The Age[3] and referencing Optus Network Pty Ltd v Telstra Corporation.[4] Those four matters to be established are:
[3][2022] VSC 678.
[4](2010) 265 ALR 281, 290.
(1) the information in question must be identified with specificity;
(2) it must have the necessary quality of confidence;
(3) it must have been received in circumstances importing an obligation of confidence; and
(4) there must be an actual or threatened misuse of the information about consent.
Principles for interlocutory injunction
It is not in dispute that in order to obtain an interlocutory injunction IBAC must establish that the proceeding raises a serious question to be tried and that the balance of convenience favours an injunction on an interlocutory basis.
Circumstances
On 30 September 2025, IBAC was contacted separately by two lawyers each acting for an affected person. Both affected persons had been contacted by the journalist for comment concerning specific information in the draft special report. In one communication the affected person was invited to comment ‘off the record’. In each circumstance the lawyers informed IBAC of the approach via text message made to their client.
On 1 October, the following occurred:
(i)A lawyer for Nationwide News wrote to the solicitors for one affected party indicating their instructions that their client ‘will not publish any information derived from the draft report to which the journalist’s text refers’. The letter also advised that the solicitors did not hold instructions for the broader News Corp entities.
(ii)IBAC wrote to Nationwide News lawyers seeking, amongst other information, whether Nationwide News would provide an undertaking to the Court not to publish information contained in or derived from the draft special report. By response Nationwide News indicated that their client ‘did not presently intend’ to publish and did not answer other questions posed in the correspondence.
On 2 October, Nationwide News lawyers responded by a letter headed ‘Correspondence to D J Johnson’. Relevantly the letter said:
Our clients are aware of provisions of the IBAC Act, including section 166. They have not, by their conduct to date, done anything that could amount to a breach of that provision. Nor do they intend to do so.
The letter continued with confirmation of their ‘instructions that our clients will not publish any information they have obtained, either in print or on online, which is derived from a draft report in relation to ‘Operation Richmond’.
Then late on 2 October, The Australian newspaper published online, and additionally on the front page of its print media on 3 October, an article concerning IBAC’s proposed application to the Supreme Court. The article described IBAC’s action as seeking ‘to block The Australian from publishing details’ and ‘from revealing key details of a draft report into Operation Richmond’.
Submissions
The plaintiff submitted that there is a serious question to be tried in that there is a strong case that the elements of a breach of confidence would be established in the claim for final relief. They submit that the proposed application to the Court, and the article published on 3 October, amplifies the risk of misuse of the information. In particular, the plaintiff was concerned that the article undercuts assurances that had been provided by the solicitors not to publish information obtained from a draft report.
The defendant submits that there is no serious question to be tried. Accepting that at least some of the material contained in the draft report is likely to meet the requirement of the first three elements of a breach of confidence giving rise to a serious question to be tried, there is no risk nor threat of publication. The defendant, aware of the confidentiality regime surrounding IBAC’s draft report and of s 166, has provided assurances that it has not does not intend to conduct itself in a way that could amount to a breach of this provision. In its submissions, the defendant relies on the comment of Cooper J in Trade Practices Commission v Gold Coast Property Sales Pty Ltd and Ors,[5] where interlocutory injunctive relief under s 80 of the Trade Practices Act 1974 (Cth) (‘Trade Practices Act’) was refused as the Court accepted the assurance that had been proffered by the media organisation that it would not republish matters. It could therefore be said that there was no threat of future conduct that warranted injunctive relief.
[5][1994] 49 FCR 442.
Consideration
There was no dispute between the parties that three of the four elements of an action for breach of confidence were met and gave rise to a serious question to be tried. The issue primarily turned on the risk of actual or threatened misuse of information without consent. The defendant’s submission rests upon acceptance that its assurances provided in correspondence mean that IBAC has not established the relevant element, namely the risk of actual or threatened misuse of the information.
In my view, the reliance on Trade Practices Commission v Gold Coast Property Sales, whilst relevant on points of principle, is limited in its application in the present circumstances by the following factors. First, the injunctive relief turned at least in part upon the specific provisions of s 80 of the Trade Practices Act. Second, it concerned advertising of a commercial arrangement and was sought in an application where the underlying proceeding was one for relief from misleading or deceptive conduct. It was not concerned with a breach of an obligation of confidence arising because of a statutory regime of confidentiality. Third, the factual matters relevant to the consideration of the Court in Trade Practices Commission v Gold Coast Property Sales P/L (‘Trade Practices Commission’)[6] concerned a matter that was in the past. The absence of ongoing risk was assessed in light of the undertakings given by those involved in the actual marketing activity being advertised, supported by the media outlet assurance. By contrast, the factual substratum of this case is one in which the issue of the eventual tabling of any report into Operation Richmond is one that is likely to remain a matter of public interest until such time as that report is tabled, and therefore the regime of confidentiality surrounding the process remains ongoing. Fourth, the assurance that had been offered by the media outlet in Trade Practices Commission had been specifically accepted by the plaintiff, and, in those circumstances, it was held to be sufficient to dispose of any concerns. By contrast, the assurance given to one of the affected persons in this matter has not allayed concerns with that affected persons seeking leave to intervene or to be joined as a party to the IBAC proceeding. Nor has the assurance been accepted as sufficient by IBAC who sought that that assurance be given as an undertaking to the Court. This request has not been responded to.
[6][1994] FCA 213.
Further, in my view despite the earlier assurance, which on its face may have afforded a level of confidence, the subsequent article that was published, at least on one reading, suggested an intention to publish key details of the draft report unless prevented from doing so by Court order.
In the circumstances, despite the assurance given by the defendant, I am not persuaded that there is no risk of misuse of confidential information. As such, I conclude that the applicant has shown that there is a serious question to be tried.
I turn to the risk of misuse of confidential information. I accept that there may very well be matters set out in the draft report that are already in the public domain and so do not have the quality of confidence. Other matters that may be reported as ‘suspected’ to have occurred, or that ‘have not been denied’, may be questions in the public domain. However, the answers to those questions may not. Key findings or conclusions, and the reasons for them outlined in a draft report, are unlikely to be matters already in the public domain. The difficulty at present is where to draw a bright line between those matters.
As to the balance of convenience, I accept that this factor favours a grant of relief. The defendant fairly accepted that the statutory regime is one that protects disclosure. The nature of investigations by IBAC, and the importance of providing those persons and public bodies mentioned and who may be adversely affected with an opportunity to respond, is an important part of the statutory process of tabling a final report that requires confidentiality. This exercise of statutory powers to investigate and report on the performance of public officers and bodies in the proper discharge of their duties is a process integral to the administration of justice and should be guarded as such.
In these circumstances, where an obvious breach of s 166 by an unknown person has occurred, I order injunctive relief to protect the legal rights of those entitled to respond to matters proposed in the draft report, thereby protecting the statutory regime of confidentiality.
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