Police Association of New South Wales v Higgins, Jeannie

[1997] FCA 408

CATCHWORDS

CONTRACT ‑ whether the parties to a contract intended the word “findings” to cover raw data

WORDS & PHRASES ‑ whether in the context of research, “findings” ordinarily covers raw data

Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310
Spunwill Pty Ltd v BAB Pty Ltd (1994) 36 NSWLR 290

Ryan v Textile Clothing & Footwear Union of Australia [1996] 2 VR 235

POLICE ASSOCIATION OF NEW SOUTH WALES v JEANNIE HIGGINS

No. NG 216 of 1996

CORAM:  Lehane J
PLACE:    Sydney
DATE:     22 May 1997

IN THE FEDERAL COURT OF AUSTRALIA      )
NEW SOUTH WALES DISTRICT REGISTRY     )              No. NG 216 of 1996
GENERAL DIVISION  )

BETWEEN:POLICE ASSOCIATION OF NEW SOUTH WALES

Applicant

AND:  JEANNIE HIGGINS
  Respondent

CORAM:  Lehane J
PLACE:    Sydney
DATE:     22 May 1997

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The application is dismissed.

NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA      )
NEW SOUTH WALES DISTRICT REGISTRY     )              No. NG 216 of 1996
GENERAL DIVISION  )

BETWEEN:POLICE ASSOCIATION OF NEW SOUTH WALES

Applicant

AND:  JEANNIE HIGGINS
  Respondent

CORAM:  Lehane J
PLACE:    Sydney

DATE:     22 May 1997

REASONS FOR JUDGMENT

LEHANE J:

Outline facts; Association’s claims

The respondent, Dr Higgins, is a clinical psychologist.  Between 1991 and 1995 she was engaged in a research project concerning the effects of stress on members of the New South Wales Police Service.  Some funding for the project was provided, from October 1991, by the applicant Association, which is a trade union for non commissioned members of the police service.  At least from May 1992 there was a contractual relationship between the Association and Dr Higgins, the terms of which changed from time to time until the relationship was brought to an end in March 1995.  A term of the contract throughout, however, was that the Association would have unqualified access to Dr Higgins’ reports and findings.  For the purposes of her research, Dr Higgins prepared a number of lengthy and detailed questionnaires which were distributed to, and completed by, a large number of recruits to the service in the early stages of their training.  Many of the questions elicited information of a confidential and in some cases personal and sensitive nature.  The answers were entered, in tabular form, on computer discs.  In March 1995 Dr Higgins completed, as a result of her research (including the information she had obtained from the recruits) two reports, a detailed academic report and a briefer “lay” report.  Copies of each of those reports were given to the Association.  The Association claims, however, that it is entitled, under its contract with Dr Higgins, to the material stored on computer discs, subject to the deletion of certain information which might permit the identification of individuals who completed the questionnaires.  Dr Higgins denies that the Association is entitled to that material.  The contractual entitlement which it alleges is the sole substantive claim pursued by the Association in these proceedings.  On the basis of that claim, it seeks two orders: first, a declaration as to its rights, including a right to license other researchers to use the material for further research; and, if necessary, for the publication of the results of that research; and, secondly, an order for delivery up of the material.

Facts in greater detail

By 1990 Dr Higgins had had considerable experience in working, as a clinical psychologist, with traumatised people.  She wished to conduct a prospective study on a group of people likely to experience, in the course of their work, potentially traumatising events.  The police, obviously, were such a group; and the Police Academy of New South Wales, at which recruits receive much of their training, is in Goulburn, reasonably close to Canberra, where Dr Higgins lives.  Approaches to the Police Department elicited at first a discouraging response but, ultimately, agreement (confirmed in a letter dated 25 November 1991) that the research might proceed subject to certain conditions, including that the police service would not bear any of the cost.  Apparently the project actually commenced during September 1991, and in October of that year the Association agreed to provide $3,000 to meet certain costs of the initial stages of the research, including the costs of printing questionnaires and of buying tapes for recording interviews with recruits.

Phase 1 of the project involved the collection of data.  That took place between October 1991 and September 1993.  It involved the completion of questionnaires by a number of groups of trainees at the Police Academy and interviews with some members of each group.  The first two groups comprised probationary constables who had completed one year of service and had returned to the Academy for the final stage of their initial training.  Members of two other groups completed questionnaires, and some of them were interviewed, on two occasions, first at the commencement of the initial stage of their training and, secondly, one year later.  The detail of the information obtained in interviews is of no present concern.  The questionnaires, however, are important.  I have already mentioned that the questionnaires, when answered, included the trainee’s identifying registration number and also answers to a number of personal and sensitive questions.  Not only could a person who had completed a questionnaire be identified by reference to the registration number; the Association conceded that it might be possible even without the registration number to identify a particular respondent by reference to a combination of his or her answers to a number of questions: those, for example, relating to educational qualifications, marital status, number of children, ethnic background and religion.  Hence, because the Association accepts that it is not entitled to information which would enable it to associate particular information with particular trainees, the Association’s concession that the entitlement which it claims to data collected by Dr Higgins is subject to the qualification that an editing process should first be performed to ensure that it will not be possible to identify particular information as emanating from particular trainees.

It was made very clear to members of the groups who were asked to complete the questionnaires that the information which they would give would be treated as confidential.  Each respondent to the questionnaires signed an “information and consent sheet”.  Among other things, that sheet said this:

All individual information is ABSOLUTELY CONFIDENTIAL.  Neither the Academy nor the Department will have access to ANY of the questionnaires.

We ask you to provide your written consent to participate in this research project by signing your name in the space provided below on the understanding that:

1.     This research study will be carried out in a manner conforming with the guidelines set out by the National Health and Medical Research Council.

. . .

Dr Higgins’ evidence was that the questionnaires were handed out to members of each group when they were all present in a meeting room or auditorium.  On each occasion the meeting was addressed by a team leader and supervisor of the Police Recruit Education Program, Sergeant  (now Inspector) Peter Connor.  On each occasion, Dr Higgins deposed, Inspector Connor, in the course of introductory remarks, made it clear that the information was to be kept confidential and answered specific questions about confidentiality by saying that the Police Service, the Academy and the Association would not have access to the questionnaires or the information contained in them: only group information would be reported from the research study.  Dr Higgins says that she also took each group through the information and consent sheet in detail and said, in substance:

All information that you provide to me either in answering these questionnaires or if you are asked to participate in an interview will be kept absolutely and strictly confidential.  The Academy, the Police Service and the Association will not have access to any of the questionnaires.

Inspector Connor also gave evidence substantially to the same effect.  Dr Higgins gave evidence that Mr Tony Day, then the President of the Association and Mr Lloyd Taylor, then its secretary, were present at at least one of those introductory sessions.  Both she and Inspector Connor gave evidence of conversations with Messrs Day and Taylor in which they agreed that the information given to Dr Higgins should be kept strictly confidential.

I have mentioned that the information and consent sheet stated that the research study would be carried out in accordance with the guidelines of the National Health and Medical Research Council (NH & MRC).  A statement on scientific practice issued by that Council includes the following among a number of “general considerations”:

(d)If data of a confidential nature are obtained, for example from individual patient records or from certain questionnaires, confidentiality must be observed and research workers must not use such information for their own personal advantage or that of a third party.  In general, however, research results and methods should be open to scrutiny by colleagues within the institution and, through appropriate publication, by the profession at large.

There was some concentration in argument also on what the statement has to say about data gathering, storage and retention:

1.Data must be recorded in a durable, and appropriately referenced form.

2.Sound research procedures entail the discussion of data and research methods with colleagues.  Discussion may also occur well after the research is complete, often because of interest following publication.  If at all possible, it is in the interests of all research workers to ensure that original data are safely held for periods of at least five years.

3.Wherever possible, original data should be retained in the department or research unit in which they were generated ... Individual researchers should be able to hold copies of the data for their own use.  Retention solely by the individual research worker provides little protection to the research worker or the institution in the event of an allegation of falsification of data.

Dr Higgins gave evidence that, as a member of the Australian Psychological Society Ltd, she was obliged to observe its code of professional conduct.  That code includes the following requirement:

Test results or other confidential data obtained in a research study must never be disclosed in situations or circumstances which might lead to identification of the subjects unless their permission has been obtained.  Steps should also be taken, wherever possible, to ensure that the procedures for establishing confidentiality are explained to subjects at the outset of the research.

During the course of the project Dr Higgins enrolled as a candidate for the degree of Doctor of Philosophy at the University of Wollongong, on the basis that her report resulting from the research project would also be her doctoral dissertation.  For that purpose she applied to the University’s Human Experimentation Ethics Committee for approval of her research (particularly the gathering of data from trainees).  A condition of the approval of a project such as this, involving human subjects, was that it be conducted in accordance with the NH & MRC guidelines.

By a letter of 6 May 1992 the Association informed Dr Higgins that it had resolved to provide funds of up to $5,000 to engage a person or company “for the purpose of data input of the results of your questionnaire”.  Dr Higgins was asked to obtain three quotations for that purpose.  The letter continued:

Jeannie, I have been asked to inform you that, given our support to you in respect to this process, the Police Association would request that unqualified access to your reports and findings be given to our Association.

Dr Higgins replied by a letter dated 25 May 1992, which included the following paragraphs:

During the last nine months, I have collected data from over 700 recruits, interviewed twenty per cent of these and have over 9000 questionnaires to score and interpret.

This information, once analysed, will allow us to identify psychological and social changes in police recruits who have completed 12 months of field work compared to novice recruits.  It will also allow us to isolate the factors that either protect or make recruits more vulnerable to traumatic stress.

We expect these findings to have immediate occupational health and safety implications and to form the basis of an even larger study with more experienced police.  This data will then inform the design of comprehensive, individualised and suitable intervention programs to assist police and their families.

I have absolutely no hesitation in stating that the Police Association of N.S.W. will have unqualified access to all my reports and findings.  In fact, I am hoping that the Association will widely disseminate this information to its membership since this was my rationale for undertaking the study in the first instance.

There is in evidence an extract of the minutes of the meeting of the Executive of the Association at which the decision was made to provide funds of up to $5,000.  The discussion recorded was to the effect that the research should produce results which would be useful to the Association in pursuing various of its aims and that Dr Higgins might more usefully spend the time “preparing interim reports etc [than] inputting data that is able to be completed by data process workers”.  The decision, as recorded in the minutes, was that:

funding be made available to input data in respect to this issue, and such funding shall not exceed $5000.00 and shall payable to a firm acceptable to the Association.  Further that Mrs Higgins be advised that the Police Association expect unqualified access to her reports in respect to this subject.

Curiously, though the correspondence took place in May, the minutes are dated 7 July 1992.  No explanation of the apparent discrepancy was offered, but I do not think it is of any importance.  In due course Dr Higgins recommended, and by a letter dated 22 April 1993 the Association agreed, that an organisation called Datacol be appointed to enter the data in the answers to the questionnaires.  That organisation proceeded to enter the data on discs.

Meantime, Dr Higgins was unsuccessful in application for a scholarship which would have enabled her to give up part time employment that she might concentrate all of her “occupational time” on the study.  By a letter of 28 January 1993 she suggested three options, the last of which was as follows:

That the Association appoint me as Research Associate.  This would mean that for the first time since the project began I would be able to spend my occupational time working exclusively on the study.

If this were possible, I would be suggesting the following time-frame:

. . .

·March ‘93 - September ‘93 Analysis and interpretation of cross-sectional data

·October ‘93 Collection of follow-up longitudinal data

·Oct ‘93 - Dec ‘93 Ongoing data analysis and interpretation

·Jan ‘94 - March ‘95 Development of theoretical model, collection of qualitative data

·Final data analysis and interpretation and report completion.

The Association, by a letter dated 5 February 1993, adopted the third alternative in precisely the terms suggested by Dr Higgins.  The Association offered a fee of $25,000 payable in four instalments.  The offer was “on the understanding that the study is completed in the time frame outlined, and that the Police Association maintain unqualified access to your reports and findings”.  Finally, the Association sought a progress report.

Dr Higgins agreed to the proposal (subject to a variation of the quarterly dates for payment of the fee).  She wrote “I am absolutely delighted by the commitment of the Association in supporting applied research of this kind and you will naturally maintain unqualified access to all my reports and findings”.  She agreed to furnish regular progress reports.  Dr Higgins in fact provided a series of progress reports, the first in March 1993.  They comprised reasonably detailed accounts of what she had been doing, and proposed to do, in relation to the project and did not provide any specific information as to results or likely results.  There is no evidence, however, that the Association regarded the progress reports as failing to meet its requirements or in any other sense unsatisfactory.  In his letter of 22 April 1993, written on behalf of the Association (the letter which approved the appointment of Datacol) Mr Dunne the Assistant Secretary Administration, wrote:

Jeannie, once again I and the Executive feel confident that the results of your project will assist us greatly and look forward to receiving the final report in the future.

Dr Higgins’ appointment as Research Associate was renewed for a further year commencing on 1 March 1994.  The annual fee was increased to $37,500.  A progress report submitted by Dr Higgins on 2 May 1994 is interesting for two reasons.  First, it spelt out to the Association what, in Dr Higgins view, it was supporting:

1.The first controlled epidemiological study of traumatic stress reactions in emergency workers in the world!  The objectives are:

·to develop and empirically test a theoretical model traumatic [sic] stress reactions in police

·to empirically demonstrate, both cross‑sectionally and longitudinally, psychological and social changes in police recruits who have completed 12 months of police field work compared to novice recruits not yet exposed to work‑related traumatic stressors.

·to develop a series of recommendations to guide primary, secondary and tertiary interventions designed to assist traumatised police

2.Furthermore, you have had the intestinal fortitude to support the development of a theoretical model of traumatic stress reactions which does a number of things not possible within any other theoretical conceptualisation.  I am able to explain the interrelationships between personal factors dimensions of the traumatic event and conditions of the recovery environment.  The model accounts for the intrusive, avoidance and physiological symptoms of Post‑Traumatic Stress Disorder and individual differences in their onset, severity and duration.  It clarifies the presence and absence of PTSD in people experiencing the same traumatic event.  The model sheds lights on recent empirical research, yields testable hypotheses and guides primary, secondary and tertiary levels of intervention with traumatised police.  Aspects of the theoretical model are being tested both cross‑sectionally and longitudinally with our sample.

Secondly, the report is interesting for the way in which it uses the word “findings”, clearly enough in the context of completion of the final report.  The letter says this:

Media coverage of the research findings when they become available.  I don’t want everyone and their brother/or sister for that matter ringing me up about police stress.  My telephone number should not be handed to journalists.  This has happened before today.  Nor do I want the research findings misrepresented by well‑meaning members.  Either way, such an unsystematic approach could only be dangerous, not only industrially but in respect of the credibility of the research programme itself.  I suggest planned and printed media releases.  Publication of every document for the print media should be seen after editing.  I can’t stress the importance of this issue enough.

Until this time, relations between Dr Higgins and the Association seem to have been entirely satisfactory.  Dr Higgins had dealt principally with Mr Terry O’Connell, then Deputy President of the Association (now its Vice President) with whom she was, and remained, on cordial terms.  In September 1994, however, difficulties began to emerge.  Mr Gregory Chilvers, who had been appointed the Association’s Director of Research, had a conversation with Dr Higgins in which he asked, among other things, for a draft of her academic report.  There is no direct evidence of her response, but it may confluently be inferred that she refused to supply a draft.  The conversation was followed by a letter from Mr Chilvers dated 14 September 1994 in which Mr Chilvers asked a number of questions directed, in part, to eliciting Dr Higgins’ views as to the “ownership” of her report and the data she had collected.  Though Dr Higgins prepared a draft reply to the letter, she was not sure that she sent it and I find that she did not.  She gave evidence that it was unnecessary to do so, because matters had previously been adequately covered in discussions which she had had with Mr O’Connell.

At all events, on 2 January 1995 Dr Higgins wrote to Mr O’Connell informing him that the final reports would be delivered on 1 March 1995 and suggesting a basis on which her “employment on a contract basis” might be renewed for a further year.  By a letter of 2 March 1995, Mr O’Connell agreed to that proposal; shortly thereafter Dr Higgins delivered to Mr O’Connell, for the Association, a number of copies of her final academic and “lay” reports.  Dr Higgins’ evidence was that a week letter Mr O’Connell telephoned her and said that the Association was in trouble with its auditors and wanted to propose a draft written agreement covering the year which it commenced on 1 March 1995.  That was followed, on 30 March 1995, by a fax from Mr Chilvers accompanying a draft agreement.  That agreement was characterised as an agreement for services rather than a contract of service, but it would have imposed upon Dr Higgins a number of specific obligations and a regime for detailed review of her work.  Additionally, the draft provided for “ownership”:

Any issues, findings, results, conclusions or similar, including any data, working papers, draft or final reports, arising from any research, inquiries, discussions or similar, as a result of this agreement, will be regarded as, and will remain at all times the property of THE POLICE ASSOCIATION OF NSW.  Copyright will lay [sic] with the POLICE ASSOCIATION OF NSW ... any resource material, including texts, tapes, journals, conference papers, notes or similar purchased by JEANNIE HIGGINS where the costs of that resource material has [sic] been reimbursed as incidental expenditure or otherwise by the POLICE ASSOCIATION OF NSW, will remain the property of the POLICE ASSOCIATION OF NSW and is to be returned to the POLICE ASSOCIATION OF NSW in good order and condition at the expiration or termination of this agreement.

Dr Higgins rejected the draft.  She wrote a vigorous letter of protest to the President of the Association, Mr P Tunchon.  She also submitted a counter‑draft cast, curiously, in the form of a “fixed term employment contract”.  Mr Tunchon, however, responded by a letter of 6 April 1995 by which he “[terminated] the working relationship” between Dr Higgins and the Association.  The letter included the following two paragraphs:

Some further matters remain to be clarified.  The Association owns both the academic and lay reports entitled “Traumatic Stress Reactions in Police” and is able to use, quote, refer to and publish any part of those documents in any way that it sees fit.  The Association further owns the data that was collected for the study reported in chapters 6, 7 and 8 of the above academic report.  We see this data as essential to the validation of the overall report and formally request that it be forwarded in full to reach the Association within fourteen days.  The failure to comply with this request will leave us with no option other than to instigate formal process to recover same.

It is our understanding that on prior occasions you have made it clear that the ownership of the documents entitled “Traumatic Stress Reactions in Police” would always remain with the Police Association.  This view is in fact reinforced by the level of funding provided by the Association to complete the reports.  We can only presume that the University of Wollongong is also aware of this arrangement having in mind the guidelines of the Australian Vice Chancellors’ Committee concerning Responsible Practice In Research.

It may be said in passing that there was no evidence that on any prior occasions Dr Higgins had made any such thing clear.  Mr Tunchon’s communication was followed by a letter from the Association’s solicitors dated 1 June 1995.  That letter repeated the “requirement” that Dr Higgins forward the data and “any other research material, however described, which was created by you during your term of employment with the Police Association which, was as a result of the research you were undertaking in accordance with the terms of your employment with our client.  The letter included the following “assurance”:

We understand that you are of the view that ownership of the material in question lies with you.  We assure you, that on any view of the matter, the ownership lies not with you but, with our client.  If you are still of a view that you own the property then, we suggest that you should seek urgent legal advice.

It was common ground that Dr Higgins had not been an employee of the Association.  Dr Higgins sent a response which denied that she was an employee, claimed that her only relevant obligation was to provide unqualified access to her reports and findings and asserted her “sole ownership of ... data, research findings and reports”.  In due course the Association began these proceedings.

The issue in the case; contentions, reasoning and conclusion

The issue to be decided is by no means complicated.  It is, is the Association entitled, as a matter of contract, to the material stored on discs by Datacol, subject only to certain deletions and other editing designed to eliminate the possibility that the Association could attribute particular responses to particular members of the police service?  The Association contends that it is so entitled; it puts its claimed entitlement on one basis only, the contract between itself and Dr Higgins, and on one contractual term only: that the Association was to have unqualified access to Dr Higgins reports and findings.  The Association contends that the data stored on the discs are “findings”.

As counsel for the Association put his submissions, “findings” are the findings from the research and in that sense the “raw responses from the questionnaires” are findings.  If an obligation of confidentiality means that the Association cannot have the “findings” in that form, then they are entitled to a “compilation” of them.  Counsel referred to evidence given by Mr Malcolm Mearns, the principal of Datacol, to the effect that the information stored on the discs comprised all the responses to the questionnaires, set out in tabular form, and that it would be possible and relatively easy to produce from the discs an edited version of the table: edited, for example, by omitting or merging columns.  Such an editing process would, it was said, eliminate the possibility of linking particular responses to particular respondents because, for example, the column of registration numbers could be omitted and, where a question or a group of questions attracted only a small number of positive responses, those could be merged into a more general category so as to minimise the possibility of identification.  Thus, for instance, responses to questions about ethnic background or religious affiliation, where the likelihood might be that there would be a very large number of positives in one category and relatively few in a number of others, could be reduced to two categories, comprising the dominant category and “other”.

On the question of construction, it was submitted by the Association that the use of the expression “reports and findings” necessarily suggested that “findings” were something additional to “reports”; otherwise, “findings” is otiose.  The next step in the argument may be summarised by reference to Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310, to which I was referred, particularly the judgment of Kirby P at 313, 314:

Whoever may be the parties to the agreement, it is the fundamental rule, that a Court should give the words of a written agreement the natural meaning that they bear.  Subject to that rule, giving meaning to the words of an agreement between commercial parties, courts will endeavour to avoid a construction which makes commercial nonsense or is shown to be commercially inconvenient.  This is because courts will infer that commercial parties would not themselves normally agree in such a way.

The essence of the argument was that the project and the research were, as the correspondence and other documents indicate, intended to be a first, if crucial, step: both parties contemplated that there would be further research which would indicate with greater specificity the practical steps which might be taken, in implementation of the recommendations in Dr Higgins’ reports, to deal with the very significant problems which they identified.  For example, Dr Higgins’ letter of 28 January 1993 to the Association, in which she set out three options for the continuation of the project, included the following paragraph:

This is the first research project of its kind nationally or internationally and it has implications for:

·guiding the development of multiple preventative and treatment interventions for police and trauma survivors in general;

·the design of training programmes for health professionals in the prevention and treatment of the negative effects of stress; the selection, initial and on‑going training of personnel exposed to traumatic stress as part of their occupational responsibilities eg police and other emergency workers, medical and allied health personnel, chaplaincy staff;

·the design of a larger epidemiological study with more experienced police and/or other emergency workers and other research; and,

·designing effective programmes for reducing the individual and organisational costs associated with exposure to traumatic incidents and other forms of stress eg invalidity and medical discharge, resignations, absenteeism, occupational mistakes and suicides, lost productivity, alcohol abuse, individual, marital and family distress.

The further work contemplated could not, it was said, effectively be done (except by starting again) unless those who did it had access to Dr Higgins’ data.  To adopt a construction which denied access to the data for that purpose was, therefore, to make commercial nonsense of the agreement.

Much of the argument of counsel for the Association (and much of his cross‑examination of Dr Higgins) was directed to a proposition that the academic report was, as its name suggests, an academic document, the form of which was to be explained largely by its concurrent role as a doctoral dissertation and by the University’s requirements for such a dissertation.  Because (the suggestion ran) the report was written principally for an academic purpose, it did not specifically deal with a number of matters which the Association expected to be covered.  Particularly, it did not contain a series of tables or appendices tabulating or summarising the information contained in the answers to the questionnaires.  If there had been tables or summaries of that kind, the Association might have had no need to require the delivery of the actual answers, or an edited version of them.  As there were no tables or summaries, however, the Association did need (principally for the purpose of further research) the information from the answers to the questionnaires.  It was not suggested that the report is inadequate, in the sense that Dr Higgins had breached any obligation relating to the preparation of, or giving access to, a report.  Nor was it actually suggested that the report does not deal with the matters which, in her correspondence, Dr Higgins indicated that it would cover.  The point, as I understand it, is that because (it is said) the report does not give the Association what it needs for the purpose of conducting further research, and further research was always in contemplation, the word “findings” must be taken as intended to cover material additional to the contents of the report; and the only relevant other material is that recorded in the questionnaire sheets and on the discs.

Counsel relied also on Spunwill Pty Ltd v BAB Pty Ltd (1994) 36 NSWLR 290 at 309‑312 for a proposition that, if there is ambiguity, one may look to the subsequent conduct of the parties for the purpose of construing the contract, including by reference to actual (subjective) common intention if the conduct shows, sufficiently unambiguously, such an intention. In that context, counsel relied particularly on Mr Chilvers’ letter of 14 September 1994, the lack of the response to it and the fact that the response drafted by Dr Higgins, but not sent, did not contain an express assertion that the Association was not entitled to the data collected or compiled by Dr Higgins.

It is convenient to deal with that argument immediately.  First, assuming the correctness of Spunwill in this respect, the principle there stated applies only when a written contract is ambiguous and subsequent conduct unambiguous.  I do not think I could possibly conclude in this case that the conduct of the parties, as revealed by the evidence, unambiguously indicates that the Association was to be entitled to the data emanating from questionnaires, or an edited version of those data.  It is sufficient to mention that the Association never unambiguously sought such access until after the relationship between the parties came to an end and there are indications in the documentary evidence ‑ particularly, perhaps, in the letter of 22 April 1993 from Mr Dunn to Dr Higgins ‑ that all the Association was expecting to see was the “final report”.  In the second place, that aspect of the decision in Spunwill may be of questionable authority: Ryan v Textile Clothing & Footwear Union of Australia [1996] 2 VR 235 at 261, 262.

In the end, of course, the question is not what the Association expected to get or what it would find useful but rather, what are the parties to be taken to have meant when they used the expressions “my findings” and “your findings”?  I was referred to dictionary definitions.  The definition of “finding” given by the Concise Macquarie Dictionary includes “that which is found or ascertained” and “a decision or verdict after judicial inquiry”; the Shorter Oxford English Dictionary includes “that which is found” and “the result of a judicial inquiry”.  Professor D I McCloskey, the Director of the Prince of Wales Medical Research Institute, gave evidence.  Professor McCloskey is eminently qualified to speak of the meaning of the word “findings” as used in relation to scientific research; his affidavit includes the following statement:

In my experience, the term “findings” is invariably used in the fields of medical, scientific and related research to refer to grouped or collated data, analysed statistically or otherwise, on which conclusions are drawn or for which explanations are proposed.  Only where a research study is concentrated on a single (probably rare or unusual) individual case, is the term “finding” applied to data from an individual subject or patient.

Professor McCloskey gave the following answers in cross‑examination:

... Assume that we are simply dealing with the information in its original form whether the word “collected” is simply used to refer to the collection of the data from the individuals where the answers or scores, “Yes”, “No”, are recorded and given usually a numerical reference on a table, or [a notional] table in electronic form? ‑ Yes.

I put it to you that the data in that sense can be described as the findings of the research? ‑ That goes outside my understanding and I believe it goes outside common understanding.  ...  The findings of an opinion poll would not be the answers given by a single respondent.  The findings of an opinion poll are the percentages of male or female, Liberal or Labor voters, religious affiliations, and so on, behaving in a particular way.  They are collated, not individual, responses.

So if the data that is collected ‑ and again I use the word “collected” in its initial sense ‑ by responses to these surveys was collated in that way so that within each response you were given the numbers, that is, the numbers of particular responses to a given question, you would accept that as a finding? ‑ Yes.  If you said to questionnaire 1, number 3, “Is your wife or husband a member of the Police Service?” and the answer was that ‑ there [are] 90 noes and 10 yeses, I would take that to be a finding of the survey.

It may be accepted that the word “all my (your) reports and findings” are capable of including matters other than the final reports.  Professor McCloskey’s evidence indicates, I think, what some of those matters might be, if they existed.  The issue is not, however, one which requires exhaustive definition.  It is the more limited question, is what the Association seeks within the ambit of “my (your) findings”?

The starting point is the answers to the questionnaires, or “raw data” as they were called during argument.  In a sense, no doubt, each answer to a question in the questionnaires is something which Dr Higgins discovered during her research.  But I do not think that such answers are within the ordinary understanding of the term “finding” as applied to a research project such as the one in which Dr Higgins was engaged, any more than what Dr Higgins discovered in the course of her search of the literature or stress and trauma is to be regarded as a “finding”.  If that is true of an individual answer to a particular question, it is equally true of all the answers contained in all the completed questionnaires.  Although on that basis it is not necessary to resort to surrounding circumstances as an aid to construction, it may be noted that the surrounding circumstances reinforce that view of the matter.  When the first contractual correspondence was exchanged in May 1992 all the questionnaires, other than those later completed for the longitudinal data analysis, had been completed and collected.  It is clear, in my view, on the evidence that both parties knew that assurances had been given to those completing the questionnaires that the answers would be kept confidential and that no one ‑ including the Association ‑ other than Dr Higgins would have access to them.  The evidence of Dr Higgins and Inspector Connor on that point was not challenged.  That circumstance must reinforce, if reinforcement were needed, the conclusion that the “findings” to which access was to be available to the Association should be taken not to include the completed questionnaires.  Where both parties knew the confidential basis on which the answers were obtained, the common intention to be imputed to them is that the answers were not to be “findings” to which the contractual term applied.

There are two final matters to mention in relation to the “raw data”.  First, counsel for Dr Higgins placed some reliance on the fact that the minute of the executive of the Association, recording its decision to provide funding, referred only to access to “reports”, not to “findings”.  I think it is inappropriate to place any reliance on that; if it indicates anything, it indicates, it seems to me, only the subjective intention of one of the parties.  Secondly, both parties made submissions in relation to Dr Higgins’ letter of 25 May 1992 in which she accepted the offer in the Association’s letter of 8 May and confirmed that the Association would have “unqualified access” to all her “reports and findings”.  Counsel for Dr Higgins stressed the use of the “findings”, in the letter of 25 May 1992, as referring to the outcome of the research (“We expect these findings to have immediate occupational health and safety implications and to form the basis of an even larger study with more experienced police”).  Counsel for the Association, on the other hand, drew my attention to the use of the word “data” to refer to the information obtained through the questionnaires and then the use of the word “data” in the sentence immediately following that which I have just quoted.  (“This data will then inform the design of comprehensive, individualised and suitable intervention programs to assist police and their families”).  There, counsel suggested, the word “data”, earlier used to refer to the answers to questionnaires, was used as a synonym of “findings”.  But that is all, in my view, excessively subtle.  Certainly I do not think that the letter should be construed as reflecting a common understanding that the “findings” to which the Association was to have access should include the raw answers to the questionnaires: both the ordinary meaning of the word “findings”, particularly in relation to research projects of this kind, and the circumstances surrounding the collection of the data seemed to me clearly to indicate the conclusion that the answers to the questionnaires are not “findings” for that purpose.  Nor, in any case, do I think that the letter, read as a whole, can reasonably be taken to indicate any other conclusion:  In my view it should not be read as suggesting that the data already collected might be available for access; at most, data “once analysed” were to be available.

Once that conclusion is reached, it must follow in my view, that the responses on disc, in tabular form, are not to be regarded as “findings” to which the Association is entitled to have access.  What is on disc is, in substance, exactly the same as what may be found in the answers themselves; one could hardly be “findings” if the other is not.  Additionally, what is on the discs, unedited, identifies individual respondents:  thus the circumstances surrounding the collection of the data once again indicate clearly that this was not material to which the Association should have access.

That brings me to what the Association actually seeks: that the material on disc be edited by omitting certain categories (particularly, registration numbers) and “merging” certain others.  Given my earlier conclusions, there are at least two difficulties with the Association’s submissions.  One is that it is not easy to see how what is not a “finding” becomes a “finding” merely because certain information is omitted from it and other information is presented in a less particular form than that in which the respondents provided it.  The second difficulty ‑ and it is perhaps just another aspect of the first ‑ is that the process contemplated cannot be described as analysis.  It is simply a process which would give the Association some (perhaps most), but not all, of the information in the answers to the questionnaires.  It is still raw data, not findings.  The difficulty is not overcome by pointing out that the guidelines, ethical requirements and code of conduct referred to in the evidence might not have forbidden the provision to the Association of information edited so as to remove all “identifiers”.

There was a suggestion in argument that what the Association was entitled to, even if it was not entitled to the questionnaires, or the material on discs, or an edited version, was a compilation incorporating, for example, totals and percentages of respondents whose answers fell into particular categories.  But there are a number of difficulties with this approach.  One is that the statement of claim as now pursued apparently relates only to a contractual claim in relation to the material stored on disc “subject to the removal of police registration numbers and any other material which might reveal the identity of any individual respondent to a questionnaire used by the respondent to these proceedings for the purpose of collecting data”.  Secondly, there was no specificity as to exactly what “compilation “ the Association sought.  But thirdly, in any event, the only relevant matter to which Association is entitled is matter falling within the description: “my (your) findings”; and there was no evidence of any particular compilation which Dr Higgins might have made.  It was not suggested, and I do not think it could be suggested, that Dr Higgins could be compelled to make findings ‑ or require someone else to make findings for her ‑ in circumstances where she has not actually made findings herself.

It follows, in my view, that the Association’s claim fails.  The application must therefore be dismissed.  Counsel for Dr Higgins indicated that, should I come to that conclusion, he wished to be heard on the subject of costs.  Accordingly, I shall hear counsel before making any order as to costs.

I certify that this and the preceding 24 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane.

Associate:

Dated:22 May 1997

Heard:  7-8 May 1997

Place:  Sydney

Decision:22 May 1997

Appearances:  M B Evans of counsel instructed by Walter Madden Jenkins appeared for the applicant

J V Nicholas of counsel instructed by Phillips Fox appeared for the respondent.