IBAC v The Age
[2022] VSC 678
•4 November 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
GENERAL LIST
S ECI 2022 04446
| INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION | Plaintiff |
| v | |
| THE AGE COMPANY LTD (ACN 004 262 702) | Defendant |
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JUDGE: | GARDE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 – 3 November 2022 |
DATE OF RULING: | 4 November 2022 |
CASE MAY BE CITED AS: | IBAC v The Age |
MEDIUM NEUTRAL CITATION: | [2022] VSC 678 |
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INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION - Application to restrain publication of information derived from a draft report sent to named persons – Claim for breach of confidence - Serious issue to be tried – Balance of convenience – Interlocutory injunction granted - Independent Broad-based Anti-corruption Commission Act2011 (Vic) ss 162(2)–(4), 166(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr E Nekvapil SC | Independent Broad-based Anti-corruption Commission |
| For the Defendant | Mr J Quill - Thomson Geer |
HIS HONOUR:
Introduction
Following the grant of an interim injunction on 2 November 2022, the plaintiff (‘IBAC’) seeks an interlocutory injunction that until the hearing and determination of this proceeding the defendant be restrained from publishing any information that may have been derived from a proposed report or a draft or part of a proposed report provided by IBAC to any person pursuant to ss 162(2), (3) and (4) of the Independent Broad-based Anti-corruption Commission Act2011 (Vic) (‘IBAC Act’), being information that should not have been disclosed under s 166(1) of that Act.
The issues
It is well-established that to obtain an interlocutory injunction, a plaintiff needs to show that:
(1)there is a serious issue to be tried; and
(2)the balance of convenience favours the grant of an injunction.
In Bradto Pty Ltd v State of Victoria, the Court of Appeal decided that the Court should take whichever course appears to carry the lower risk of injustice if the order made should turn out to have been wrong in the sense of granting an injunction to a party who fails to succeed at trial or failing to grant an injunction to a party who would succeed at trial.[1]
[1][2006] 15 VR 65, 73.
Serious issue to be tried
In an originating motion filed 3 November 2022, IBAC claims against the defendant for breach of an obligation of confidence. This is said to arise in the following manner.
Sub-sections 162(2) and (3) of the IBAC Act require IBAC, if it intends to include in a report adverse findings about a public body or person, to first provide an opportunity (or under s 162(3), a reasonable opportunity), to respond to the adverse findings and to fairly set out each element of the response in its report.
Likewise, under s 162(4), if IBAC intends to include in a report a comment or opinion about a person which is not adverse to the person, IBAC must first provide that person with the relevant material in relation to which IBAC intends to name the person.
Under s 166(1) of the IBAC Act, a person who receives a proposed report or a draft or a part of a proposed report before the report is published by IBAC must not disclose any information contained in the proposed report or draft or part of the proposed report unless various conditions not here relevant are met.
The clear purpose of ss 162(2), (3) and (4) and s 166(1) is to provide procedural fairness to persons who may be named in a proposed report or draft or part of a proposed report by giving them an opportunity of addressing the matters put against them or said about them before the IBAC report is published. This is an important safeguard to ensure fairness and accuracy in what IBAC publishes about public bodies and individual persons.
Relevant facts
[Redacted]
Relevant principles
Both parties relied on authority as to the law relating to claims for breach of confidence. I was referred to Johns v Australian Securities Commission,[2] the foundational case of Commonwealth v John Fairfax & Sons Limited,[3] and the decision of Osborn J in State of Victoria v Nine Network.[4]
[2][1992-1993] 178 CLR 408.
[3][1980] 147 CLR 39 (‘Fairfax’).
[4](2007) 19 VR 476.
In the Fairfax decision, Mason J referred to the fundamental principle of equity which will ‘restrain the publication of confidential information imparted improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged’.[5]
[5]Fairfax (n 3), 50.
To establish a claim for breach of confidence a plaintiff must ordinarily establish four elements. They are:
(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 without consent.[6]
[6]Optus Networks Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281, 290.
Application of the relevant principles
As to the first element, s 166(1) of the IBAC Act seeks to define and protect only a narrow class of information, namely information contained in a proposed report or draft or part of a proposed report. It does not restrict the publication of information that does not fall within this class.
It follows that the claim for breach of confidence can only relate to information derived from the proposed report or draft or part of a proposed report and not to information not found in such a document.
As to the second element, I am satisfied for present purposes that the class of information that I have described has the necessary quality of confidence as s 166(1) prohibits the recipient of a proposed report, draft or part of a proposed report from disclosing the information contained in such a document under pain of serious criminal sanctions.
As to the third element, I am satisfied to the necessary extent that the defendant either was aware on 2 November 2022 of the confidentiality of the draft report or subsequently became aware that the draft report was provided in confidence under ss 162 and 166 of the IBAC Act.
[Redacted]
Conclusion
I am satisfied that there is a serious issue to be tried that there has been or might be a breach of confidence as claimed by IBAC.
Submissions on balance of convenience
The parties advanced competing submissions as to the balance of convenience and as to the public interest. IBAC submitted that:
(1)the confidential information includes information obtained from individuals under compulsion as provided in the IBAC Act;
(2)the information provided is confidential to those individuals and is obtained by IBAC only for the purposes of performing its functions;
(3)Parliament has enacted ss 162(2), (3) and (4) to ensure that procedural fairness is afforded in the preparation of IBAC reports;
(4)ss 166(1) and (2) evince Parliament's intention that draft reports disclosed to individuals for the purposes of affording procedural fairness must not be disclosed;
(5)s 166(1) protects the confidentiality of information and the reputational and other interests of persons to whom a draft report is provided; and
(6)it is only when IBAC reports are completed that their disclosure is in the public interest.
The defendant submitted:
(1)The IBAC Act was different from other legislation in that it does not specifically prohibit publication by media of materials supplied under ss 162(2),(3) and (4);
(2)the subject matter of the IBAC report was of the highest public interest and dealt with the operation of government, in circumstances where a State election was underway.
(3)the application did not concern a vulnerable private citizen but the government of the day; and
(4)the public should be provided with full information.
Finding as to the balance of convenience
I find that the balance of convenience favours the grant of an interlocutory injunction for the following reasons:
(1)The interlocutory injunction that is sought is limited to information contained in the draft report, which should not have been disclosed by the recipient. It is not sought that there be any restriction on the publication of information outside of that narrow category.
(2)Under ss 162(2), (3) and (4) and s 166(1) of the IBAC Act, a draft report is provided to named organisations and individuals to give them the opportunity of correcting errors or omissions before a final report is published.
(3)This is an important safeguard to protect individual persons from unjust damage to their reputations and other interests that might follow if an unfair or inaccurate report was published.
(4)Breach of s 166(1) gives rise to a serious criminal offence and imposes the strictest consequences on the premature publication of information contained in the draft report. If such a safeguard is to operate effectively, it is important that confidential information derived from a draft report is not published.
Because the class of information that cannot be published is narrow, I do not accept the defendant’s submission that the public interest is adversely affected to any significant degree or that there is a public imperative to make available information derived from a draft IBAC report before the report is complete and fit for publication.
While it is the case that the provisions of the IBAC Act may not specifically prohibit the publication by media organisations of information provided under s 166(1) and wrongly disclosed by a recipient, this does not mean that the obligations ordinarily imposed by the common law or by equity do not apply.
In considering the balance of convenience, it is significant that individual persons who could be directly affected by the disclosure of information contained in the draft report have made complaint to IBAC about the possible publication of confidential information. They may suffer reputational damage or other adverse consequences without having had the opportunity of correcting statements made about them in the draft report.
I accept that their position is invidious, in the sense that they remain the subject of the restrictions in s 166(1), even if damaging or adverse material derived from a draft report is published in the media. They are still at risk of committing a criminal offence if they do not comply with s 166(1). This materially affects their ability to respond to possible adverse or damaging media comment about them.
For these reasons, I accept IBAC’s submissions as to the balance of convenience, and am satisfied that the balance of convenience favours the grant of an interlocutory injunction.
Lower risk of injustice
I am also satisfied that the grant of an interlocutory injunction is the course which leads to the lower risk of injustice in the circumstances, not only to the parties but also importantly to persons who are named in the draft report.
I will make orders granting an interlocutory injunction.
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