Richards v Kadian - [2005] NSWCA 328

No judgment structure available for this case.

Reported Decision:
64 NSWLR 204

Court of Appeal

CITATION:
RICHARDS v. ANKUR KADIAN by his Tutor JANAK KADIAN & ORS. [2005] NSWCA 328

HEARING DATE(S):
06/05/2005

JUDGMENT DATE:

23 September 2005

JUDGMENT OF:
Beazley JA at 1; Hodgson JA at 159; Stein AJA at 172

DECISION:
Leave to appeal granted. Appeal dismissed with costs.

CATCHWORDS:
CONTRACT - confidentiality - doctor/patient relationship - whether party to proceedings entitled to insist upon the right to confidentiality with third party - relevant principles - whether maintaining party's right to confidentiality inimical to the public interest and the administration of justice - CONTRACT - confidentiality - waiver - relevant principles - whether party has taken up two inconsistent positions in relation to claim - PRACTICE AND PROCEDURE - stay of proceedings - court's inherent power to make orders necessary to prevent injustice - s.23 Supreme Court Act - discretion as to whether power should be exercised - whether refusal to grant stay would result in unfair trial - whether party has opportunity to defend matter should stay be refused

LEGISLATION CITED:
Evidence Act 1995 (NSW)
Medical Practice Act 1992 (NSW)
Medical Practice Regulation 2003 (NSW)
Supreme Court Act 1970 (NSW)

CASES CITED:
A v. Hayden (1984) 156 CLR 532
AG Australia Holdings Ltd v. Burton (2002) 58 NSWLR 464
Allied Mills Industries Pty. Limited v. Trade Practices Commission (No. 1)
Ampolex v. Perpetual Trustee Co. (Canberra) (1995) 37 NSWLR 405 at 411
Annesley v. Earl of Anglese (1743) 17 State Tr 1139
Ansley v. Ansley (1973) 12 RFL 93
Apollo Shower Screens Pty. Ltd. & Anor v. Building & Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561
Ashburton v Pape [1913] 2 Ch 469
Attorney-General (Northern Territory) v. Maurice (1986) 161 CLR 475
Banning v. Wright [1972] 1 WLR 972
Benecke v. National Australia Bank (1993) 35 NSWLR 110
Bolkiah v KPMG [1999] 2 AC 222 (House of Lords)
British Steel Corporation v. Granada Television Ltd. [1981] AC 1096
Brown v. Brooks (unreported, 18 August 1988, McClelland J)
Calcraft v Guest [1898] 1 QB 759
Carr v. Royal Exchange Assurance Corporation (1864) 34 LJQB 21
Commonwealth of Australia v. Verwayen (1990) 170 CLR 394
Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 74 ALR 428
Craine v. Colonial Mutual Fire Insurance Co Limited (1920) 28 CLR 305
D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118
D v. The National Society for the Prevention of Cruelty to Children [1978] AC 171
Davey v. Bentinck (1893) 1 QB 185
Doe & Ors. v. Eli Lilley & Company Inc & Ors (1983) 99 FRD 126
Dwyer v National Companies & Securities Commission (No. 2) (1988) 15 NSWLR
Edmeades v. Thames Board Mills Ltd [1969] 2 QB 67
Egerton v. Brownlow (1853) 4 HL Cas 1; 10 ER 359
Ferris v. Lambton (1905) 22 WN (NSW) 56
Fitzgerald v. F.J. Leonhardt Pty. Ltd. (1997) 189 CLR 215.
Frenette v. Metropolitan Life Insurance Co. (1992) 89 DLR (4th) 653
Gartside v Outram (1856) 26 L.J. Ch 113
Harmony Shipping Co SA v. Saudi Europe Line Limited [1979] 1 WLR 1380
Hay v. University of Alberta Hospital (1990) 69 DLR (4th) 755
House v. The King (1936) 55 CLR 499
Howard v. Odhams Press Limited [1938] 1 KB 1
Hunter v. Mann [1974] QB 767 at 772
Initial Services v. Putterill [1967] 3 All ER 145
Jack Barclay Ltd [1951] 2 KB 252
Kadian v. Richards [2004] NSWSC 382; Kadian v. Richards (by his tutor Kadian) & Ors. v. Richards & Anor (2004) 61 NSWLR 22
Lane v. Willis [1972] 1 All ER 430
Lound v Grimwade (1888) 39 Ch. D. 605
M(A) v. Ryan (1997) 143 DLR (4th) 1
M(N) v. Drew Estate (2003) 230 DLR (4th) 697
Mann v. Carnell (1999) 201 CLR 1
McGrory v. Electricity Supply Board [2003] IESC 45
McGuire v Ferguson & Anor (Supreme Court of New South Wales, Common Law Division, 11 December 2001, Solomon AJ, unreported)
Medaris v. Lars Halvorsen & Sons Pty. Ltd. (1943) 44 SR (NSW) 71
Nicholson v. Halton General Hospital NHS Trust [1999] EWCA Civ 1664 (24 June 1999, unreported)
Nur v. John Wyeth and Shaw v. Skeet Aung Sooriakumaran [1996] 7 Med LR 371
R v Young (1999) 46 NSWLR 681
Rakusen v Ellis, Munday & Clarke [1912] 1 Ch 831 at 835
Re Morris (Deceased) (1943) 43 SR(NSW) 352
Re Morris (Deceased); Wilkinson v Osborne (1915) 21 CLR 89 at 97
Sargent v. ASL Developments Ltd (1974) 131 CLR 634
St. Louis v. Feleki (1991) 75 DLR (4th) 758
Starr v. National Coal Board [1977] 1 All ER 243
Stoodley v. Ferguson (2001) 93 Alta LR (3d) 78
Swirski v. Hachey (1995) 132 CLR (4th) 122
The Earl of Chesterfield v. Janssen (1751) 28 ER 82
Thomason v. Campbelltown Municipal Council (1939) 39 SR (NSW) 347
Tringali v. Stewardson Stubbs & Collett Ltd (1965) 66 SR (NSW) 335
Watson v. M'Ewan [1905] AC 480
Weld-Blundell v. Stephens [1919] 1 KB 520
Wells v. Paramsothy (1996) 98 OAC 233
Windhill Local Board of Health v Vint (1890) 45 Ch. D.
Wyeth & Brother Ltd [1996] 7 Med LR 300
Yango Pastoral Co. Pty. Limited v. First Chicago Australia Ltd. (1978) 139 CLR 410
P Feltham, D Hochberg and T Leech (eds), "Spencer Bower's Estoppel by Representation" (4th edn), London: Butterworths, 2004

PARTIES:
Bruce Richards (Claimant)
Ankur Kadian by his Tutor Janak Kadian; Janak Kadian and Gurmeet Kadian (Opponents)

FILE NUMBER(S):
CA CA 41020/2004

COUNSEL:
Paul Brereton SC/S.A. Woods (Claimant)
D. Higgs SC/I. Butcher (Opponents)

SOLICITORS:
Blake Dawson Waldron (Claimant)
McLaughlin & Riordan (Opponents)

LOWER COURT JURISDICTION:
Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):
20219/2001

LOWER COURT JUDICIAL OFFICER:
Campbell J

CA 41020/2004
CLD 20219/2004

BEAZLEY JA
HODGSON JA
STEIN AJA
23 September 2005

RICHARDS v. ANKUR KADIAN by his Tutor

JANAK KADIAN & ORS.

Headnote

The opponents/plaintiffs brought proceedings against the claimant/defendant alleging negligence in failing to diagnose a congenital heart condition. In the course of pre-trial preparation, the defendant sought to interview the infant plaintiff’s treating medical specialists. The defendant had already had access to the treating specialists medical records. The request was resisted on the basis that the infant plaintiff’s relationship with his treating specialist was confidential. The defendant brought an application claiming that the plaintiff had waived confidentiality by the commencement of the proceedings or alternatively seeking a stay of the proceedings unless and until confidentiality was waived.

HELD per Beazley JA (Hodgson JA and Stein AJA agreeing):
Confidentiality

(i) The principle that a contract that contains a confidential provision that has the effect of interfering with the administration of justice will not be enforced or will be declared void applies to both criminal and civil cases.

(ii) There may be competing matters of public interest to be weighed up or balanced in determining whether an obligation of confidence should be enforced ( Initial Services v Putterill [1967] 3 All ER 145 ; British Steel Corp v Granada Television [1981] 1 All ER 417; A v Hayden (1984) 156 CLR 532 (considered)).

(iii) In order for the protection of an obligation of confidence to be lost, there must be an identifiable public interest relevant to the administration of justice extending beyond the private rights of the parties to the obligation that would be adversely affected if a court permitted a party to insist upon confidentiality ( Egerton v. Brownlow (1853) 4 HL Cas 1; 10 ER 359; Weld-Blundell v. Stephens [1919] 1 KB 520; Howard v. Odhams Press Limited [1938] 1 KB 1 (considered); A v Hayden (1984) 156 CLR 532 (followed))

(iv) An obligation of confidence will not be overcome or defeated merely by litigation between private interests that does not involve a public interest or element beyond that usually involved in prosecuting or defending a civil claim ( A v Hayden (1984) 156 CLR 532; Monkland v. Jack Barclay Limited [1951] 2 KB 252).

(v) This case involved litigation between private interests with no public interest or element involved so that the confidential relationship between the infant plaintiff and his treating specialists had not been lost by the commencement of proceedings against the defendant.

Waiver

(vi) Although the jurisprudential basis of the concept of “waiver” is imprecise, the principle which underlies the concept is that a party will not be permitted to take up two inconsistent positions, whether expressly or impliedly, in relation to a cause of action (see Commonwealth v Verwayen (1990) 170 CLR 394).

(vii) The question whether it was inconsistent for the plaintiffs to commence proceedings whilst at the same time seeking to maintain the confidential relationship with the treating specialists was answered in the circumstances of this case by determining whether the defendant had a fair opportunity of defending himself in the proceedings ( Mann v Carnell (1999) 201 CLR 1; Benecke v National Australia Bank (1993) 35 NSWLR 110 (considered)).

(viii) There was no waiver in this case. The defendant had a variety of means whereby he could be fully informed and advised so as to be able to properly defend the proceedings.
(ix) There was no basis in Australian law to follow Hay v. University of Alberta Hospital (1990) 69 DLR (4th) 755.

(x) Although obligations of confidence are not the same as legal professional privilege, the question of waiver of confidentiality of information can be approached in much the same way as the question of waiver of legal professional privilege.

(xi) If a party, by its pleadings, particulars or evidence, expressly or impliedly makes an assertion about the content of information obtained by a medical practitioner, then confidentiality of that information may be waived, particularly if the assertion is persisted in after the question of waiver is raised with the party

(xii) The claimant here is making assertions about his medical condition under the care of his current treating physicians, but it is not clear that he is making assertions about information those doctors have obtained whilst treating him. The circumstance that such information would be relevant to his medical condition is not of itself sufficient to make assertions about his medical condition a waiver of confidentiality of the information.
Stay of proceedings

Per Beazley JA (Hodgson JA and Stein AJA agreeing)

(xiii) The Court has an inherent power to make orders necessary for the administration of justice (see s.23 Supreme Court Act 1970 (NSW)), including the power to stay proceedings (see Tringali v. Stewardson Stubbs & Collett Ltd (1965) 66 SR (NSW) 335; Ferris v. Lambton (1905) 22 WN (NSW) 56; Medaris v. Lars Halvorsen & Sons Pty. Ltd. (1943) 44 SR (NSW) 71 (cited)). Whether this power will be exercised to grant a stay depends upon whether the refusal to grant the stay would cause injustice to a party to the proceedings

(xiv) A party seeking a stay bears the onus of establishing that the stay is necessary. The claimant failed to show that there was sufficient evidence from which the court could infer that the first opponent’s current treating doctors had information, additional to that which could be obtained through available curial processes, and which was required to be disclosed in order to ensure a fair trial.
(xv) The decision of the trial judge to refuse the stay was a discretionary decision made on an interlocutory matter of practice and procedure. There was no error in his Honour’s application of relevant principles or his consideration of what facts were relevant to the question whether a stay should have been granted in the circumstances of this case ( House v. The King (1936) 55 CLR 499 (followed)).

Orders:
Leave to appeal granted. Appeal dismissed with costs.

CA 41020/2004
CLD 20219/2004

BEAZLEY JA
HODGSON JA
STEIN AJA
23 September 2005

RICHARDS v. ANKUR KADIAN by his Tutor

JANAK KADIAN & ORS.

Judgment

BEAZLEY JA :

Introduction

1 Ankur Kadian (Ankur) was born with a congenital heart disease which was not diagnosed until he was 9 months old. It is alleged that the delay in diagnosis caused him irreversible damage due to the onset of pulmonary hypertension. Proceedings have been commenced on behalf of Ankur against his paediatrician (the claimant) who it is alleged was negligent in failing to diagnose the heart disease. Proceedings have also been commenced against the Auburn Hospital where Ankur was born. Ankur’s parents have also brought proceedings against the claimant and the hospital claiming that the negligent treatment by each defendant caused them nervous shock.

2 Ankur’s congenital condition was diagnosed when at the age of 9 months, the claimant referred him to Dr. Gary Sholler, paediatric cardiologist. Ankur has remained under Dr. Sholler’s care during the ensuing 7 years. Ankur and his parents commenced proceedings in the New South Wales Supreme Court on 29 March 2001. That Statement of Claim has been amended in respects that are not material to the matter before the Court. The claimant has filed his Notice of Grounds of Defence. The matter otherwise remains in the pre-trial phase.

3 Ankur also has a defective right kidney which was diagnosed before he was born. He has been under the treatment of Dr. Deborah Lewis, paediatric nephrologist, in respect of that condition.

4 As part of his preparation of his defence, the claimant wishes to interview Dr. Sholler and Dr. Lewis. This has been resisted by the opponents. It was due to this resistance that the claimant filed a Notice of Motion in the Common Law Division of the Supreme Court on 6 September 2002. That Notice of Motion has been amended so that the final motion before the Court was a Further Amended Notice of Motion filed on 11 March 2004 in which the claimant sought the following Declaration and Order:

“1. A declaration that in commencing these proceedings the first plaintiff has waived his right to confidentiality which arises from the doctor/patient relations between the first plaintiff and Dr Gary Sholler and Dr. Deborah Lewis.

2. An order that the proceedings be stayed until the plaintiff provides a signed written authority permitting Dr Gary Sholler and Dr Deborah Lewis to discuss their management and treatment of the first plaintiff with legal representatives of the first defendant.”

5 The claimant also sought, either additionally or alternatively, that the opponents file and serve their witness statements at an early date, including statements from Dr. Sholler and Dr. Lewis (if any).

6 The Notice of Motion was heard and determined by Campbell J who delivered Judgment on 22 June 2004: Kadian v. Richards [2004] NSWSC 382; Kadian v. Richards (by his tutor Kadian) & Ors. v. Richards & Anor (2004) 61 NSWLR 22. Campbell J dismissed the application.

7 As his Honour’s judgment was in respect of an interlocutory matter, the leave of this Court is required for the claimant to appeal. The matter has been heard by this Court on the basis that the Summons for Leave to Appeal and the Appeal were heard and are to be determined concurrently.

Issues on the appeal

8 Three specific issues emerged in the way the matter was argued on the appeal: first whether the opponents’ insistence on the right of confidentiality with Ankur’s treating doctors, Dr Sholler and Dr Lewis, had the effect of interfering with the administration of justice so that the confidential relationship, in the circumstances, is void (the confidentiality issue); secondly, whether the confidential relationship had been waived by the commencement of proceedings against the claimant (the waiver issue); thirdly, whether, in this case, the proceedings ought to be stayed unless and until the opponent, the patient in question, waives his right to confidentiality (the stay issue). There is a further subsidiary issue, whether the treating doctors whom the claimant wishes to interview are necessary parties to the proceedings.

9 Underpinning these issues is the notion that confidential information is not formally protected by the law in the same way as privileged information is protected. In the case of material that is privileged, it is protected to the extent that is inadmissible in evidence. Confidential information is not inadmissible in court proceedings. However, there are circumstances in which the law will protect confidential information from being disclosed to a third party. The extent to which the law will do so when litigation has been commenced is at the heart of this matter.

10 Before dealing with each of the issues in turn, it is convenient to review the manner in which the request to interview Dr Sholler first emanated from the claimant and the precise nature and scope of that request.

Request to interview Dr Sholler

11 As I have indicated, the proceedings were commenced on 29 March 2001 and remain in their pre-trial phase. A subpoena has been issued by the claimant for the production of the clinical records of Dr. Sholler and they have been produced and inspected by both parties.

12 On 21 March 2002, the claimant’s solicitors, Blake Dawson Waldron (BDW) wrote to the opponents’ solicitors, McLaughlin & Riordan (M&R) requesting that Ankur “expressly waive the claim to doctor/patient confidentiality (although, of course, retaining any claim to legal professional privilege that is appropriate)”. The purpose of the request was to enable BWD to speak to Dr. Sholler. The reason they gave reason for wishing to do so was “to understand the cause of [Ankur’s] pulmonary hypertension” and “to discuss with Dr. Sholler issues relevant to the nature and extent of [Ankur’s] congenital heart defects and the relationship between those and his pulmonary hypertension.” (J.7). The plaintiff refused to waive confidentiality, thus giving rise to the Notice of Motion.

13 Following the filing of the Notice of Motion, correspondence ensued between the solicitors. The correspondence is set out in the Reasons for Judgment of Campbell J at [8] to [10]. I set out that correspondence as reproduced by his Honour:

“8 On 16 October 2002 M&R wrote to BDW saying:

‘With respect to the Order sought, “permitting Dr Gary Sholler to discuss his management and treatment of the first [opponent] with legal representatives of the first defendant”, please specify whether the [claimant] proposes such discussions by way of conference, or by way of written report in relation to specific questions put by the [claimant].

In an attempt to resolve this dispute before 1st November, please provide us with a list of questions which the [claimant] proposes to have Dr Sholler address, so that we can consider whether to advise the [opponents] to authorise Dr Sholler to address such questions in writing.

We suggest that the said list of questions be provided to us by way of a proposed letter of instruction addressed to Dr Sholler, requesting a formal report.

If the [claimant] will not agree to provide us with such a document, necessitating argument on the Notice of Motion on 1st November, we will tender this letter in any subsequent application for costs.’

9 BDW replied on 24 October 2002 saying:

‘1. We propose to have a conference with Dr Gary Sholler;

2. We do not propose to prepare a specific list of questions. It is not practicable to do so as the answers to set questions may necessitate other areas of inquiry;

3. We are prepared to provide you with a list of issues in paragraph 4 below which we intend to discuss with Dr Sholler. We note, however, for the reasons set out in paragraph 2 above, it may be necessary to proceed beyond the listed issues;

4. We intend to discuss the following matters with Dr Sholler:

(a) Dr Sholler’s observations of Ankur, including but not limited to signs and symptoms of pulmonary vascular disease, during consultations;

(b) Findings on examination of Ankur;

(c) The history of Ankur’s illness, including the onset of signs and symptoms, reported to Dr Sholler by the Kadians;

(d) Provisional and preliminary diagnosis of Ankur’s condition made by Dr Sholler;

(e) The nature of Ankur’s pulmonary vascular disease;

(f) Development of Ankur’s pulmonary vascular disease, in particular but not limited to the likely timing of the establishment of Ankur’s pulmonary vascular disease;

(g) The likelihood of detection of the pulmonary vascular disease at particular times during the first 9 months of Ankur’s life;

(h) On what occasions, if any, did Dr Sholler detect a heart murmur and the difficulty or otherwise involved in detecting the heart murmur;

(i) Dr Sholler’s comment in a treatment report regarding Ankur that “it may be that pulmonary resistance has remained relatively high from birth”;

(j) Whether Dr Sholler was informed that a heart murmur was detected by Dr Bolisetty;

(k) Details of Ankur’s underlying venous sclerotic process and its impact on pharmacological and surgical treatment of pulmonary vascular disease;

(l) The impact of the timing of diagnosis on outcome; and

(m) Timing of surgery and impact on outcome.’

10 M&R wrote to BDW on 31 October 2002 saying:

‘We are not prepared to consent to your client obtaining a written report in lieu of a conference with Dr Sholler, based upon the issues you have outlined, as the vast majority of these are matter which any medico-legal expert would be able to address.’

14 The claimant has retained his own medico/legal experts who have provided reports to BWD. I will deal with those reports more fully when dealing with the question of the stay.

15 In his judgment, Campbell J undertook an extensive survey and analysis of the law in relation to the issue of patient/doctor confidentiality. Neither party, on the appeal, sought to extend that survey of the law. However, senior counsel for each party engaged in a re-analysis of the cases reviewed by his Honour such that it is necessary to undertake the same survey as that undertaken by his Honour. This is not a critical comment. Both senior counsel argued the matter extremely ably and the matter is one of considerable importance so that, in order to do justice to the argument, it is necessary for this Court to itself engage in an analysis of the authorities. In doing so, it is important to keep at the forefront of the consideration or, as senior counsel for the claimant put it, to recognise the underlying thread to each of the issues which arise in this matter, namely, that a right of confidentiality does not have the same legal status as does a right of privilege: D v. The National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218 per Diplock LJ.

The Confidentiality issue

16 The first issue on the appeal raises the question whether a party can insist upon a right of confidentiality arising from a relationship with a third party when the first party has commenced proceedings against another in which confidential information in the possession of third party is relevant to the matters in issue in the proceedings. The claimant asserts that any such confidence is void as against public policy.

17 The commencing proposition in the claimant’s argument on this issue was that “any contract having a tendency, howsoever slight, to adversely affect the administration of justice, is void”. Support for this proposition, it was said, was to be found in A v. Hayden (1984) 156 CLR 532. If that proposition is made out, it would follow on the claimant’s argument that the opponents would not be entitled to prevent the claimant’s legal representatives from speaking to Dr Sholler and Dr Lewis and obtaining from them in the pre-trial phase such facts and opinions that they might be able to provide in relation to Ankur’s condition, including its manifestation, diagnosis and treatment.

18 A v. Hayden involved the notoriously ill-fated security training exercise conducted by the Australian Secret Intelligence Service (ASIS) at the Melbourne Sheraton Hotel during which a number of ASIS officers allegedly committed breaches of the criminal law. The Chief Commissioner of Police for Victoria sought to identify the ASIS officers in order to investigate whether crimes were in fact committed, with a view to the arrest and charging of the offenders. The ASIS officers sought injunctions seeking to restrain the Commonwealth from disclosing their names to the Commissioner of Police on the basis that their contracts with the Commonwealth provided that the identity of each ASIS officer would be kept confidential.

19 The Court held by majority, Gibbs CJ dissenting, that the Commonwealth was not bound by any confidentiality principle or requirement which would constrain it from revealing the identity of the ASIS officers. It was held that although by revealing the names, the Commonwealth would be acting contrary to a provision of the contracts with the respective officers, the confidentiality provision was, in the circumstances, unenforceable.

20 It will be necessary to deal with the judgments in A v. Hayden in some detail. However, as each of the judgments in that case refer extensively to the earlier authorities on the question of confidentiality, it is a more convenient course to refer independently to the principal authorities. As one of the issues in this case is the extent to which the principle in A v. Hayden applies to civil proceedings, it is necessary to understand the evolution of the principles relating to the protection of confidential information, particularly insofar as civil proceedings are involved. The relevant authorities are: Egerton v. Brownlow (1853) 4 HL Cas 1; 10 ER 359; Weld-Blundell v. Stephens [1919] 1 KB 520; Howard v. Odhams Press Limited [1938] 1 KB 1; Initial Services v. Putterill [1967] 3 All ER 145; British Steel Corporation v. Granada Television Ltd. [1981] AC 1096.

Egerton v Brownlow

21 The starting point for the issue under consideration is the decision of the House of Lords in Egerton v Brownlow. That case involved the construction of a condition of a devise in the will of the Earl of Bridgewater, and in particular, the validity of a clause relating to the acquisition of a peerage. The devise was made conditional upon the beneficiary having acquired the title of Duke or Marquis of Bridgewater. A peerage is a high official office carrying both legislative and judicial duties as well as privileges. For example, a peer had a right to demand an audience with the Sovereign and to proffer advice relating to public affairs. If the title had not been acquired by the time of the heir’s death, the devise was to be absolutely void and the estate was to pass to another heir, subject to the same condition. As a result there was a strong pecuniary interest in one branch of the family acquiring the peerage and as strong a pecuniary interest in other branches opposing or seeking to prevent it so that they might have the benefit of the forfeiture.

22 On the question whether the devise was valid, Lord Lyndhurst said (at 423) that:

“It is a well-established rule of law that a condition against the public good, or public policy, as it is usually called, is illegal and void.”

The Earl of Chesterfield v. Janssen

the public good

public policy

dolus malus

yet if the rest of mankind are concerned as well as the parties, it may properly be said that it regards the public utility

23 His Lordship concluded in respect of the devise under consideration:

It is admitted, that any contract or engagement having a tendency, however slight, to affect the administration of justice is illegal and void.”

24 For present purposes, what is relevant about this decision is that it was a civil case dealing with a particular devise in a will. However, the condition of the devise relating to the acquisition of the peerage meant that questions of public policy were involved. Lord Lyndhurst, in concluding that the devise was void stated that the law had always considered certain covenants to be void. Those contrary to the public good were an example as were covenants contrary to law. This latter proposition, of course, must now be read subject to modern authority: see Yango Pastoral Co. Pty. Limited v. First Chicago Australia Ltd. (1978) 139 CLR 410; Fitzgerald v. F.J. Leonhardt Pty. Ltd. (1997) 189 CLR 215.

Weld-Blundell v. Stephens

25 Weld-Blundell v. Stephens was also a civil suit. The plaintiff had engaged the defendant to carry out a financial investigation into the affairs of a company that was seeking further advances from the plaintiff. In the letter of instruction to the defendant the plaintiff made a number of libellous statements about 2 persons connected with the company. The letter of instruction was negligently left at the company’s office, and was passed on to those who had been libelled. Those persons then successfully sued the plaintiff. The plaintiff subsequently brought an action against the defendant for breach of an implied obligation to keep secret the letter of instruction.

26 The Court of Appeal upheld the plaintiff’s claim. Warrington LJ said (at 533) that “if the document in question revealed a contemplated crime, the commission of which its disclosure might prevent, I think there would be a duty owing to the public which would override any private obligation”. However, his Lordship declined to find that the letter was a criminal libel.

27 His Lordship then considered whether an obligation or covenant not to disclose information that was libellous or not to disclose a civil wrong was invalid. He decided that, in the case at hand, the obligation of confidence was not invalid. He distinguished the earlier decision of Gartside v Outram (1856) 26 L.J. Ch 113 where a servant, notwithstanding an obligation of confidentiality, had disclosed a systemic fraud that his employers had pursued in the course of their business and which affected a large number of people. In the case at hand, however, the breach of confidence related to a single document where there was no wider or public interest in its disclosure. The only effect of its disclosure was to arm the persons libelled with the evidence with which to bring their claim.

28 Warrington LJ was also of the opinion that the true basis of the decision in Gartside v Outram was that the Court there had refused to exercise its equitable jurisdiction to restrain the breach of confidence in circumstances where the employer, the party seeking to enforce the confidence, did not come to the court with ‘clean hands’.

29 Bankes LJ observed (at 528) that contracts not to disclose a libel were frequently made. References given by trade societies to customers relating to the credit of persons with whom customers had business provided an example of such “habitually made” contracts. His Lordship pointed out that there was no suggestion that the confidentiality that was promised in relation to the giving of such information was invalid or otherwise void.

30 There was no suggestion in the judgments in Weld-Blundell v. Stephens that the principle that a confidence will not be protected when it is against the public interest to do so was confined to criminal cases. However, it is clear that their Lordships were of the opinion that there had to be some public aspect involved before a court would intervene so as to prevent a party relying upon a confidential obligation.

Howard v. Odhams Press Limited

31 In Howard v. Odhams Press Limited, the English Court of Appeal was concerned with the investigation and possible prosecution of a series of crimes involving fraudulent practices relating to cross0word competitions conducted by a number of newspapers. In an agreement between an employee and his employer newspaper, the newspaper agreed not to divulge the contents of a statement made by the employee in which he admitted that he had engaged in the fraudulent practices and also implicated other employees in the fraud, gave information that the same fraudulent activity had been carried on by employees at a previous newspaper at which he had worked, and stated that the fraud was continuing at both newspapers.

32 The newspaper subsequently became dissatisfied with the employee’s conduct and divulged the information to the trade union to which he belonged. The union disqualified the employee from membership, presumably because he had implicated fellow union members. Given the trade practices at the time it was necessary for newspaper employees to be union members. As a result of being disqualified by the union, the employee lost his job. The employee brought an action against the newspaper for breach of the agreement not to disclose his name. The newspaper alleged the agreement was invalid.

33 Slesser LJ accepted Warrington LJ’s statement in Weld-Blundell v Stephens, set out at [26] above, and observed (at 20) that perversion of the administration of justice can occur in different ways. He noted the following examples: “the concealment or procuring the concealing of a felony”; “an agreement not to prosecute or to stifle a prosecution”; “agreements between a prosecutor and persons indicted, that a proposed witness would not give evidence at a trial for reward”; “an agreement to compromise pending legal proceedings if the offence be of a public nature” (emphasis added).

34 Slesser LJ also noted (at 31-32) that the principle of treating confidential agreements as void had not been confined to cases where the confidentiality related to strictly legal proceedings but extended to cases where the covenant in question had the tendency to affect the administration of justice: see Egerton v. Brownlow at 163. His Lordship also referred to Lound v Grimwade (1888) 39 Ch. D. 605 where Stirling LJ said: “agreements tending to affect the course of legal proceedings are illegal, even although those proceedings may not be strictly criminal in their nature” (emphasis added). His Lordship then said at 32:

“…I think, on the facts of this case, it is impossible to say that any public policy of prevention of crime countervailing the prima facie illegality of the contract can be established, and I do not view the agreement as one to take precautions to prevent a man committing a crime … but rather as an agreement to prevent the public knowing that crimes had been, or would be, committed.”

35 This passage indicates that there may be competing considerations at play in determining whether a covenant is void. This was explained more fully by Greene LJ (Greer LJ agreeing on this point). Greene LJ (at 40) posed the question for determination in these terms:

public

36 Greene LJ considered (at 42) that there were circumstances where a valid promise could be made not to disclose information to the authorities in order to obtain the information in the first place if in doing so, the party to whom the confidential information was imparted would be able to take steps to prevent the commission of future frauds against it. However, once the information affected third parties as well and disclosed the commission of crimes against them and/or the possibility of the commission of future crimes against other parties, the policy considerations shifted. In such a case public policy dictated that the agreement would be invalid. In other words, if the agreement was carried out, it would operate to the public detriment.

37 Howard v. Odhams Press involved, as I have indicated, a confidential covenant in relation to criminal matters. However, it is important to observe that the emphasis remained on the public effect if the covenant was enforced.

Initial Services v. Putterill

38 In Initial Services Ltd. v. Putterill, a former employee, in breach of the confidentiality provisions of his employment contract, gave information and documents to a newspaper about price fixing agreements to which the employer was a party. The employer’s application for an injunction against the former employee was refused. Lord Denning (at 148) agreed with the employer’s submissions that in the context of every employer/servant relationship there is an implied obligation owed by an employee to their employer that they will not, during the currency of their employment or after its cessation, disclose information or documents received in confidence. However, his Lordship noted that this obligation was subject to this exception: the obligation of confidence did not extend “to any misconduct of such a nature that it ought in the public interest be disclosed to others”. Denning LJ said that to the extent Weld-Blundell v. Stephens was authority for the principle that a confidence would not be protected where it related to the actual or contemplated commission of a crime or civil wrong, that proposition was stated too narrowly.

39 Adopting Wood VC’s catch-all phrase in Gartside v. Outram, that “There is no confidence as to the disclosure of the iniquity”, Lord Denning elaborated at 148:

provided always – and this is essential – that the disclosure is justified in the public interest

Annesley v. Earl of Anglese

40 It is convenient at this point to observe that while Wood VC’s epithet in Gartside v Outram is often embraced, and is a useful epithet, it does not really state a principle at all. Rather, as Gummow J pointed out in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 74 ALR 428 at 449, given the context in which it was said, the phrase extends no further than stating that a court would have been unlikely to imply into an employment contract a term that an employee’s obligation of good faith to his employer required that the employee keep secret details of an employer’s “gross bad faith to his customers”.

British Steel Corporation v. Granada Television Limited

41 British Steel Corp v. Granada Television Ltd involved an appeal from an order of the Court of Appeal that required Granada Television to disclose to the solicitors of British Steel the names of all persons responsible for supplying to Granada Television, without the consent of British Steel, British Steel’s confidential documents. The factual situation behind the matter related to a national television broadcast covering a steel strike that had commenced in January 1980 and which was a matter of governmental concern. The television broadcast quoted from a number of secret or confidential documents which had come into the possession of Granada Television from an employee or officer of British Steel.

42 Granada Television had given a promise to the provider of the documents that his identity would not be revealed. British Steel brought an action against Granada Television seeking an order for the delivery up of the documents. Granada Television delivered up the documents. However, the documents had been tampered with, apparently in an attempt to cut off anything that might have led to the identification of the person who had provided the documents to Granada Television. British steel then sought an order that Granada Television disclose the names of the persons who had supplied the documents. At first instance, Sir Robert Megarry V.C. made the order sought. Granada Television’s appeal was dismissed.

43 A further appeal to the House of Lords was dismissed. Lord Wilberforce, after referring to Initial Services v Putterill said (at 1169) that it was recognised that, in cases of misconduct a confidentiality clause did not operate and publication could legitimately be made.

44 Lord Fraser considered that the principle that a confidentiality obligation could be overridden in certain circumstances extended beyond criminal matters. After referring to Lord Denning’s judgment in Initial Services v. Putterill, Lord Fraser concluded at 1202:

weighing up the public interest for and against publication.

Unauthorised disclosure of confidential information [is] liable to damage efficiency and morale. In the present case I am of opinion that the public interest in preserving confidentiality should prevail and I would dismiss the appeal.”

45 Lord Russell said at 1203:

“In general terms I recognise the public interest in the free flow of information and that there may be some obstruction to that flow if a source is not entitled in law to rely on an undertaking by a journalist to treat the identity of the source as confidential to him. But where, as here, the undertaking results in or would perpetuate the gross wrong and injustice done to [British Steel], to accede to such a contention would indeed encourage the doing of injustice. I cannot accept that the public interest in the prevention of injustice is here negatived by any public interest in a free flow of information.”

Summary of principles to be derived from foregoing cases.

46 The following, at least, is apparent from the foregoing cases. The principle that an obligation of confidentiality will not be enforced by a court, or will be treated as void if it interferes with the administration of justice, is not confined to criminal cases, but extended also to civil cases. That does not mean, however, that any interference will suffice to render an obligation of confidentiality unenforceable or void. Rather, in order for the protection of a confidence to be lost, there needs to be some public element relevant to the administration of justice that is affected. This was the subject of discussion in Egerton v Brownlow, Weld-Blundell v Stephens and Howard v Odhams Press. The mere fact that a confidentiality provision may have the effect of protecting the disclosure of a crime or some other wrong does not necessarily render the provision contrary to public policy. It will depend upon all the circumstances, including what information is sought to be protected, the extent of the protection said to be afforded by any confidential agreement, whether the rights of third parties are necessarily affected and whether there are any wider public policy questions involved. In particular circumstances, the court may be required to weigh up or balance competing interests in determining whether the confidentiality clause should be enforced: see Initial Services v. Putterill, per Lord Fraser and British Television v. Granada.

47 It is against the foregoing analysis that the decision in A v Hayden must be considered.

A v Hayden

48 I have already referred to the factual background to A v Hayden. The matter came to the High Court by way of a stated case after Dawson J had ordered interlocutory injunctions restraining the Commonwealth from disclosing the names of the ASIS officers who had been involved in the exercise at Melbourne’s Sheraton Hotel to the Victorian Commissioner of Police. After the grant of the injunctions, Victoria passed legislation whereby matters involving national or international security could be heard in closed court. The Commonwealth then applied to have the injunctions dissolved, leaving the plaintiffs to seek any relief they might have for breach of the confidentiality term of the contract. The Commonwealth’s own position was that the contract was unenforceable as against public policy.

49 Relevantly for present purposes, there were three questions for the Court’s determination in A v. Hayden. First, would the disclosure of the officers’ names amount to a breach of the contract of engagement. Secondly, was the confidentiality clause unenforceable insofar as it purported to prevent the Commonwealth from disclosing the officers’ names to the Victorian Commissioner of Police. Thereafter, was the confidentiality provision enforceable in the interest of national security.

50 Mason J (at 557), drew a distinction between contracts that were void and those where, though valid on their face, a court would decline to enforce a particular provision thereof because the provision would have an adverse affect on the administration of justice. Falling into the former category were those contracts regarded by the common law as illegal, such as, to use the phrase of Lord Lyndhurst in Egerton v. Brownlow: “any contract or engagement having a tendency, however slight, to affect the administration of justice”: see Mason J at 553.

51 Mason J also referred, amongst other cases, to Howard v Odhams Press. His Honour observed, however, that the statement of principle in these cases had been made at a time when the law did not distinguish between void and unenforceable contracts or between contracts that were unenforceable in the sense that it could not be sued upon and a provision of a contract that would not, in particular circumstances, be enforced.

52 His Honour also referred to another example of a contract that the law would not countenance, namely an agreement to compromise legal proceedings for an offence of a public nature: see Windhill Local Board of Health v Vint (1890) 45 Ch. D. His Honour (at 555) identified the underlying thrust of the common law principle as being directed as much against the detriment which it caused to the administration of justice if agreements of such a nature as those in question were enforced, as much as against “the evil of making knowledge of the commission of the crime a source of profit to the individual”.

53 His Honour explained the underlying rationale more fully when he said at 555:

Windhill

Howard v. Odhams Press

54 It was in this context that his Honour (at 556) returned to Lord Lyndhurst’s statement in Egerton v Brownlow, that “any contract having a tendency, however slight, to affect the administration of justice is illegal”, accepting the statement was correct, “subject to a minor qualification”. The qualification his Honour made (at 557) was this: whilst the focus of the statement of Lord Lyndhurst was on contracts or obligations that had a tendency to affect the administration of justice, it was “the effect of the enforcement of the contract that is all important”. As his Honour explained, a simple contract not to disclose the existence of a criminal offence for reward would be most likely be illegal. However, a contract might be legal on its face but contain a broadly expressed confidentiality provision, which if enforced in particular circumstances, would result in the interference with the administration of justice. In that case, if the clause could not be read down, a court would refuse to enforce it.

55 Mason J pointed out (at 559) that when a court refuses to enforce a contract on the ground of public policy, the Court is subordinating private rights to the public interest. His Honour observed that the problem was in formulating, with any degree of precision, the criteria or circumstances which would justify a Court in doing so. His Honour continued:

should

should use extreme reserve in holding such a contract to be void as against public policy, and only do so if the contract is incontestably and on any view inimical to the public interest

Monkland v. Jack Barclay Limited

56 Mason J observed (at 559) that in the case before the Court, the head of public policy involved related to the enforcement of the criminal law, a field which was “well recognised” and one “in which the courts have a special interest and experience”.

57 Mason J also recognised that there were circumstances in which there may be countervailing public interest considerations to which regard had to be had. In that circumstance, his Honour said (at 559-560) that “any opposing public interest must be identified and weighed in the balance so that the common law principle can be appropriately limited and applied”. Mason J added, however, that it may be that the public interest in the administration of justice “was so strong” that it could not be outweighed by any countervailing policy consideration. His Honour also observed that the Commonwealth disavowed any reliance upon national or international security considerations. It followed, in his Honour’s consideration (at 561) that “non-disclosure [of the officers’ names] would have a tendency to adversely affect the enforcement of the criminal law…if on the facts recited in the stated case there are reasonable grounds for apprehending that the plaintiffs or any of them participated in the commission of the offences [alleged]”.

58 Murphy J also drew a distinction between a valid contract that might be unenforceable in certain circumstances and an invalid contract. His Honour was not persuaded that the contracts in question fell into the former category but even if they did, he considered that in the circumstances before the Court it would be contrary to the public interest for a Minister of the Executive government to be prevented from revealing information that would assist in the investigation of a crime (at 563). His Honour was also not persuaded that there were any national security considerations to be taken into account, given the Executive’s disavowal of any such threat.

59 Wilson and Dawson JJ identified the question before the Court as being whether the public interest in the administration of justice precluded the Court, in the exercise of its equitable jurisdiction, from restraining the disclosure of the officers names, notwithstanding the existence of the confidentiality clause in the contracts between the Commonwealth and the ASIS officers. Their Honours (at 574) answered the question in the affirmative, concluding that the injunctions sought by the ASIS officers should not be granted. In reaching that conclusion their Honours also engaged in an examination of authority, and in particular, the five authorities focussed upon above. Their Honours observed that the early cases in which the principle had been stated were concerned with “actual crime or fraud”, but also observed that Lord Lyndhurst in Edgerton v. Brownlow stated the principle in broader terms.

60 Their Honours found it unnecessary to consider all the circumstances in which the enforcement of a duty of confidentiality might lead to a perversion of the administration of justice and so injure the public welfare, instead being content to rely upon the extensive review of the cases conducted by Sheppard J in Allied Mills Industries Pty. Limited v. Trade Practices Commission (No. 1). In that case Sheppard J concluded at 141:

British Steel Corporation v. Granada

British Steel Corporation

Granada

Initial Services v. Putterill

British Steel Corporation v. Granada.

61 His Honour further stated at 146:

only in a case where there is found to be some prima facie evidence of the commission of a breach of the law which is against the public interest generally

62 Brennan J (at 587) also endorsed the principle that obligations of confidence “cannot be enjoined by silence” where disclosure is justified in the public interest: see, for example, Initial Services v. Putterill. His Honour considered that where a contract contains a provision not to disclose information, that provision will be read down so as to permit disclosure where it is deemed necessary in the public interest. If such a provision was not capable of being read down the provision would be held void as contrary to public policy: see pp. 587-8. Under the terms of the confidentiality clause in the officers’ contract of engagement, the Commonwealth had discretion whether to disclose the names to the law enforcement agencies. In that circumstance, Brennan J considered (at 590) that:

binding contract

63 Deane J considered that when the public interest in question was the due administration of the criminal law, there was no balancing act to be undertaken by weighing up some other public interest. His Honour observed, however, at 598:

“In some cases, of course, a balancing process may be involved in determining whether the enforcement of a promise to maintain confidentiality has the overall effect of advancing, rather than obstructing or adversely affecting, the due administration of the criminal law … Once it appears, however, that enforcement or insistence upon observance of such a promise would obstruct the due administration of the criminal law, the principle which precludes enforcement by the courts is operative without any further weighing process being necessary or other considerations of public interest being relevant.”

Other cases

64 The question of the extent to which there should be a restraint upon the imparting of confidential information was considered in Brown v. Brooks (unreported, 18 August 1988, McLelland J). In that case, the plaintiff had consulted the first defendant, a consulting clinical nurse specialising in mental health, having been charged with offences involving sexual assault and acts of indecency against a child under the age of 16 years. The prosecutor became aware that the plaintiff had consulted the first defendant who was then interviewed by police. In that interview, the first defendant informed the police what the plaintiff had told her about the matters relevant to the charges. This information was reduced to a written statement for the purposes of use in the criminal proceedings. The plaintiff applied to restrain the first defendant, and the hospital by whom she was employed, from communicating any information to the police and further, sought to restrain the police from using the information that had been communicated in any way.

65 McClelland J accepted that there was “a degree of public interest” in maintaining the confidentiality of communication between medical advisers and patients. His Honour, however, that that was not sufficient to justify enforcement of the confidentiality in circumstances where the information obtained during the course of any such communication related to the proper investigation and prosecution of a serious criminal offence. His Honour considered that the matter might be different in the case of a trivial offence: see A v. Hayden at 545-546 per Gibbs CJ and at 574 per Wilson and Dawson JJ.

66 Senior counsel for the claimant submitted that it is apparent from the foregoing that the doctrine, that the law will not enforce a contract or covenant that interfere with the course of justice, is not limited to the administration of criminal justice, but extends to the administration of justice generally, albeit the principle is most frequently invoked in the context of the criminal justice system. Although senior counsel for the opponents resisted this proposition, particularly having regard to some of the statements in A v Hayden where the focus was on the criminal law, I am of the opinion that the principle is not so restricted. The English cases are clear that the doctrine has wider application. Further, a full consideration of the statements in A v Hayden makes it apparent that the principle was discussed not only by reference to the English authorities, but in broader terms generally. However, the focus remained on matters of public policy.

67 Senior counsel for the claimant sought to have the notion of public policy and interference with the administration of justice apply to the case of a party to litigation who was concerned to have access to confidential information that might further assist in the preparation of her or his case. It was submitted that the principle as discussed in the cases was not limited to the conviction of the guilty, but extended to the exoneration of the innocent, as that term might be used both in the criminal law and in the civil law (AT 9). In so far as that applied to the present case, it was argued that the claimant was entitled to access to any information that might assist him in defending the claim against him.

68 Senior counsel for the claimant submitted that this proposition was supported by a further consideration of two matters. First, it was said that the law has always placed overriding emphasis upon the exoneration of those against whom allegations have been made wrongly. This, it was said, was secured by the different standards of proof in criminal and civil cases respectively - the standard of proof was “beyond a reasonable doubt” in a criminal case and “on the balance of probabilities” standard in a civil case. But in each case, the prosecuting or claiming party bore the onus to prove the case of wrongdoing at the requisite standard.

69 Secondly, the claimant sought to draw support for his extended proposition from the fundamental principle in the administration of justice, namely that there is no property in a witness: see Harmony Shipping Co SA v. Saudi Europe Line Limited [1979] 1 WLR 1380. The question that arose in that case was whether a handwriting expert, who had been consulted by both sides in the action, should give evidence for one side without the consent of the other. Lord Denning MR at (1384-1385) stated the principles by which the answer to that question was to be determined. First, his Lordship pointed out that there is no property in a witness for the reason that “the court has a right to every man’s evidence”. Thus, neither side could prevent a court from ascertaining the truth by seeing a witness beforehand or contracting with the witness in terms that the witness could not speak to or tell the other side the facts that had been observed. As Lord Denning MR said at 1384 “in no way can one side prohibit the other side from seeing a witness of fact, from getting the facts from him and from calling him to give evidence or from issuing him with a subpoena.” As his Lordship pointed out (at 1385), any witness who had seen or who knew the facts was compellable to assist the court by giving evidence of those facts.

70 Lord Denning MR then went on to consider whether the same rule applied in relation to expert witnesses. His Lordship said at 1385:

or the rule protecting information given in confidence

71 His Lordship concluded that in the case before him the expert witness could be subpoenaed, could be seen beforehand by the solicitors for one or either party and give a proof of evidence on matters which were not protected by privilege or confidentiality. His Lordship observed that the position would be no different if there was a contract of confidentiality which bound the witness, stating at 1386:

“If there was a contract by which a witness bound himself not to give evidence before the court on a matter in which the judge said he ought to give evidence, then I say that any such contract would be contrary to public policy and would not be enforced by the court.”

72 His Lordship concluded that there was no property in an expert witness as to the facts he had observed or his own independent opinion on them. Waller LJ and Cumming-Bruce LJ expressed similar views.

73 In the present case, senior counsel for the claimant did not accept that there was any balancing exercise involved, although he recognised that had been the approach taken in the English authorities. McClelland J in Brown v Brooks also appears to have accepted that there was a balancing exercise involved. There are also indications in A v. Hayden that a balancing exercise may have to be undertaken at least in certain circumstances: see, for example, Mason J as discussed at [57]; Deane J discussed at [63] above.

74 Senior counsel for the claimant submitted that if the opponents were able to insist upon the confidentiality of the communications between him and his parents, and Dr. Sholler and Dr. Lewis, it would, in effect, involve a claim by them of property in a witness – a matter which was contrary to principle (AT 14). It was submitted that once litigation was commenced public policy required that all relevant material be available to the parties to the litigation, including in the pre-trial phase, regardless of whether that information was confidential. As senior counsel put it: “public policy from the outset carves out that territory from the obligation of confidence” or to put the matter conversely, it would be contrary to public policy to prevent disclosure. Senior counsel recognised that this argument had been rejected in AG Australia Holdings Ltd v. Burton (2002) 58 NSWLR 464, however, (AT 14) he sought to demonstrate that that decision was wrong.

AG Australia Holdings Ltd v. Burton

75 In AG Australia Holdings Ltd v. Burton, Campbell J was concerned with the question whether it was contrary to public policy for an employer to seek to enforce a confidentiality clause in an employment contract so as to prevent an employee from disclosing its confidential information to a solicitor albeit out of court, in relation to pending court proceedings. His Honour held (at 503) that the mere fact that confidential information might be of use to a party in civil litigation was not enough to override the obligation of confidence.

76 Campbell J engaged in an extensive analysis of A v Hayden. Having regard to the discussion of that case above it is sufficient to note the conclusions drawn by his Honour. First, Campbell J considered (at 489) that Mason J’s judgment retained “a continuing flavour of focusing on contracts which interfere with the due administration of the criminal law”. It was in that context, according to Campbell J, that Mason J had endorsed, with only minor qualification, the statement of Lord Lyndhurst in Egerton v Brownlow that a contract having a “tendency, however slight,” to adversely affect the administration of justice was, depending on the circumstances, either void or illegal.

77 Campbell J (at 490; [73]-[85]) referred to the comments of Wilson and Dawson JJ in A. Hayden (see [59]) as well as the judgments of Brennan J (at 587) and Deane J (at 595) which focussed on the public interest in the administration of the criminal law and the need to ensure that there was no adverse interference with it.

78 Campbell J concluded (at 491; [86]) that the ratio in A v Hayden was that the term of the confidentiality clause in the contract was void because it interfered with the administration of the criminal law. Senior counsel for the claimant submitted that that was an erroneous reading of the High Court’s reasons and was the first of the two bases upon which Campbell J erred in A G Australia Holdings v. Burton. Contrary to senior counsel’s submission I am of the opinion that Campbell J correctly identified the ratio in A v. Hayden. However, as the above analysis demonstrates, the Court examined the principle more broadly. In the absence of direct authority on the point and given the thirst of the English authorities, their Honours’ obiter statements should be applied by this Court.

79 Given his view as to the ratio in A v. Hayden, Campbell J concluded that other bases needed to be found if the confidentiality clause with which he was dealing was to be struck down. That conclusion caused his Honour to consider, in the first instance, the following issues in order to determine if there was any principle of law that might assist in the determination of that question. Those issues were: how to find public policy; the perversion of the course of justice (including attempts to do so) in the criminal law; and interference with the course of justice in the civil law. His Honour then considered the particular issue of confidentiality and the availability of evidence in court proceedings. For present purposes it is sufficient to refer briefly to the question as to how a court approaches the task of formulating “public policy”, and then to the issue that bears more directly on this case, namely, the issue of confidentiality and evidence in proceedings.

80 In relation to the first issue – the task of formulating policy - Campbell J observed (at 493), in conformity with the authority upon which he relied and which is referred to below, that the answer to that question will change over time “from generation to generation”. It is implicit in that comment that changes will be affected by the gamut of influences that prompt generational change, including social, economic and political factors. Given that premise, public policy is to be determined having regard to the “ideas which for the time being present in a community as to the conditions necessary to ensure its welfare”: see Re Morris (Deceased) (1943) 43 SR(NSW) 352 at 355-356 per Jordan CJ. The concept of “public policy” is not, however, immutable: see Re Morris (Deceased);Wilkinson v Osborne (1915) 21 CLR 89 at 97 per Isaac J; A v Hayden; R v Young (1999) 46 NSWLR 681 at 700 per Spigelman CJ. The task of formulating public policy, which involves formulating what has already come to be regarded by the community as governing its “corporate life” (see Wilkinson v Osborne at 97) must be approached cautiously. The court will only declare a contract void as against public policy “when the contract is incontestably and on any view inimical to the public interest”: Monkland v Jack Barclay Ltd [1951] 2 KB 252 at 265 per Asquith LJ, adopted by Mason J in A v Hayden at 559 (see above at [55]).

81 The next issue, relevantly, was his Honour’s consideration of confidentiality and evidence in court proceedings. From his review, his Honour accepted (at [39]) that a solicitor could be restrained from disclosing confidential information: Rakusen v Ellis, Munday & Clarke [1912] 1 Ch 831 at 835; D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118; Bolkiah v KPMG [1999] 2 AC 222 (House of Lords). His Honour then gave a detailed consideration of the decision in Lord Ashburton v Pape [1913] 2 Ch 469.

82 In Lord Ashburton v. Pape, Pape had surreptitiously obtained privileged communications from Lord Ashburton to his solicitor and took copies of them, intending to use them in legal proceedings, being Pape’s application for discharge from bankruptcy that Lord Ashburton was opposing. Lord Ashburton succeeded in obtaining an interlocutory injunction for the delivery up of the documents and for Pape and his solicitors to be restrained from using the documents or their contents except for the purpose of the pending proceedings. Lord Ashburton appealed in relation to the exception. His appeal was upheld. Cozens-Hardy MR pointed out (at 472-473) that there was a difference between the rule of evidence that permitted secondary evidence (by the way of copy documents) to be given: see Calcraft v Guest [1898] 1 QB 759 and an application directly made to the Court to restrain the use of privileged information improperly obtained. Swiften Eady LJ also referred to this at 475:

“If a litigant has in his possession copies of documents to which legal professional privilege attaches he may nevertheless use such copies as secondary evidence in his litigation: however, if he has not yet used the documents in that way, the mere fact that he intends to do so is no answer to a claim against him by the person in whom the privilege is vested for delivery up of the copies or to restrain him from disclosing or making any use of any information contained in them.”

83 Senior counsel for the claimant submitted that Campbell J read Lord Ashburton v Pape too widely, and that as properly understood, the injunction was granted in that case because the information was privileged, not because it was confidential. It could not be said therefore that it was authority for the proposition that confidential information could be protected from disclosure in the pre-trial phase. This was the second of the two errors said to have been made by his Honour in this part of the judgment. I do not agree. It is apparent from the judgment of Cozens-Hardy MR (with whom Kennedy and Swinfen Eady LJJ agreed) that the principle with which the Court was dealing related to ‘protected’ information regardless whether the ‘protection’ was afforded by privilege or confidentiality.

Conclusion on the confidentiality issue

84 In my opinion, the claimant’s argument based upon the principles said to emerge from the English authorities and from A. v. Hayden, that the opponents are not entitled to insist upon the obligation of confidence between themselves and their treating doctors, should be rejected. As I have already indicated, there is no doubt that the principle, that the law will in certain circumstances not protect an obligation of confidence, extends to civil cases. The authorities have been clear on this for over a century. The real question for determination is when the court will not permit an obligation of confidence to be insisted upon. As appears from the above review of the authorities, the principle has always been stated in association with an identifiable public interest that goes beyond the private civil rights of the parties to the obligation. In my opinion, on the authorities, the claimant is in no stronger a position here than was the defendant in Weld--Blundell v Stephens.

85 The principle that there is no property in a witness does not assist. That principle is designed to ensure that relevant evidence can be brought before the court. A party cannot constrain a witness from giving evidence regardless of the relationship between the party and the witness, except to the extent that the law so provides. For example, the Evidence Act 1995 (NSW) provides that certain persons (including spouses and children) are not compellable to give evidence in a criminal trial of communications between themselves and the accused (see s.18 cf. s.19). That does not mean, however, that the right of a party to call evidence in court operates so as to permit or require a potential witness to breach an obligation of confidence other than in the giving of evidence. Put simply, it does not mean that in the pre-trial phase, a party wishing to call a witness bound by an obligation of confidence, can require the witness to provide information that will breach the obligation of confidence.

86 This case involves private litigation between the parties. The opponents have engaged the legal system in seeking redress for an alleged wrong. They have a right to do so. The claimant has a right to defend the allegations against him. To that extent, the administration of justice is involved. Ankur also has a confidential relationship with his treating doctors that the law will protect unless it can be said that to do so may interfere with the administration of justice. However, the language of the case law is clear: an obligation of confidence will only be overcome where there is some matter of public interest that requires it. That will only be so where, to use the language of Asquith LJ in Monkland v. Jack Barclay Ltd, “the contract is incontestably and on any view inimical to the public interest”. Party/party litigation of the type involved here is not of that nature.

87 I would also reject the claimant’s argument that there is no balancing exercise involved in determining whether an obligation of confidence can be insisted upon in circumstances where there is an interference with the administration of justice. There may be a balancing exercise, depending upon the nature of the confidential information, the public interest said to be affected and whether there is any other public interest consideration. This too is clear on the authorities. However, in this case, that question does not arise, as, contrary to senior counsel’s submission, the obligation of confidence is not being insisted upon in circumstances where it is contrary to public policy to do so.

Second issue: Waiver

88 The claimant’s waiver argument accepted as its premise that the consultations with, and communications between the first opponent and his parents, and Dr. Sholler and Dr. Lewis were confidential. The claimant submitted, however, that confidentiality had been waived when the first opponent commenced proceedings in which he put in issue the medical condition for which he was consulting Dr. Sholler. It followed, on this submission, that a party could not prevent a treating doctor from disclosing the observations made, and opinions formed in relation to the patient’s medical condition, to an opposing party’s solicitor during the pre-trial phase of the litigation. This was so even though Dr. Sholler was not a party to the proceedings. The case in relation to Dr Lewis was more indirect, as she had been a treating specialist for another condition [AT 1-2]. It was submitted that it was well established that the right of confidentiality is waived in such circumstances: see Thomason v. Campbelltown Municipal Council (1939) 39 SR (NSW) 347.

89 It was accepted by both parties that a right of confidentiality could not be asserted to resist compulsory court processes, including the requirement to give evidence in the proceedings. Further, it was not in dispute that Dr. Sholler and Dr. Lewis were compellable witnesses for either party in the proceedings, and, subject to a consideration of the provisions of the Evidence Act 1995 relating to “a Protected Confidence” (see generally s.126B), could be required to give evidence.

90 The question that arose in Thomason was whether the plaintiff had elected to pursue rights under the Compensation to Relatives Act 1987 (NSW) independently of claiming compensation under the Workers Compensation Act 1926 (NSW) following upon the death of her husband. The law, as it then stood, was that the dependents of a worker who instituted proceedings under the Workers Compensation Act were not debarred from suing for damages independently of the Act (for example, under the Compensation to Relatives Act) “unless the proceedings [were] instituted in the exercise of an option”. In order to be found to have exercised an option, the plaintiff had to have knowledge that the law allowed two alternatives, and with that knowledge had chosen to pursue one alternative rather than the other. It was therefore necessary for the defendant to prove what knowledge the plaintiff had as to her legal rights. One of the issues in the case was what advice, if any, the plaintiff had received from legal advisers as to her alternative legal rights. Jordan CJ held (at 358-359) that as both the fact and the nature of the legal advice the plaintiff had received was an issue in the case, legal professional privilege could not be raised to prevent evidence being given of what advice had been received.

91 There are many authorities that support this principle: see Attorney-General (Northern Territory) v. Maurice (1986) 161 CLR 475; Benecke v. National Australia Bank (1993) 35 NSWLR 110 at 116-117 (and cases cited therein); Ampolex v. Perpetual Trustee Co. (Canberra) (1995) 37 NSWLR 405 at 411. The waiver does not have to be intentional. In Maurice, Mason and Brennan JJ said at 487

“A litigant can, of course, waive his privilege directly through intentionally disclosing protected material. He can also lose that protection through a waiver by implication. An implied waiver occurs when, by reason of some conduct on the privilege holder’s part, it becomes unfair to maintain the privilege.”

92 Once the conditions of waiver have been made out, it admits of no exceptions: see Benecke at 116-117. In that case, Clarke JA observed that once the appellant alleged that her litigation had been compromised by her lawyers without her consent, she opened up the question of the authority of her lawyers to act as they did. She thereby waived privilege.

121 Dawson J also observed (at 457) that when the term waiver was not being used to describe election or estoppel “it may be used loosely to indicate non-insistence upon a right either by choice or by default” (emphasis added). When waiver was used in that sense, the question it evoked was whether a party, having failed to insist upon a right at a particular time, should later be allowed to do so.

122 Toohey J adopted the distinction made by Isaacs J in Craine v. Colonial Mutual Fire Insurance Co Limited (1920) 28 CLR 305 between election and waiver. In the case of election, a party makes a choice between two mutually exclusive rights. However, in the case of waiver, a party will not be permitted to take up “two inconsistent positions” (emphasis added) (see Isaacs J at 326). Toohey J then said at 473:

“Waiver, in the sense used for the purposes of this appeal, may be found in the deliberate act of a defendant not to rely upon a defence available to him. That is not to say that there must be an intention to bring about the consequences of waiver; rather the conduct from which waiver may be inferred, must be deliberate. Detriment is not an essential attribute of waiver, though it will often be found as a consequence. Within the adjudicative process at any rate, it is enough that the defendant ‘renounces’ a defence which is available to him and which is there for his benefit.”

123 Gaudron J (at 481) also referred to the statement of Isaacs J in Craine where his Honour referred to waiver as “a doctrine of some arbitrariness introduced by the law to prevent a [person] in certain circumstances from taking up two inconsistent positions” (emphasis added). Her Honour observed that that expression was wider than the expression of “asserting two inconsistent rights”, the latter expression usually being understood as election: see Sargent v. ASL Developments Ltd (1974) 131 CLR 634 at 641. Her Honour explained how this operated in the course of litigation at 482:

“If, in the course of litigation, a person fails to plead a matter, take an available objection or pursue a particular point of law, the matter proceeds on the basis that the point which might have been taken is not in issue. Were it otherwise the conduct of the litigation would be unmanageable. Of course, leave may be granted for the point to be raised … [g]enerally leave is granted if the point can be raised without injustice to the other party.

…

When a party to litigation deliberately chooses not to take a point or fails to take a point when it comes to notice, the courts may adopt a more stringent attitude, treating the point as having been irrevocably abandoned. Usually the party who has thus failed to take the point is said to have ‘waived’ it.”

124 Campbell J found at [J72] that if waiver had any application to this case, it was that identified by Gaudron J. It was not the type identified by Dawson J, which involved the case where a party had not insisted upon a right at one time, but later sought to raise it. It is perhaps worth adding that there is support for Gaudron J’s view in Toohey J’s judgment. On that approach, Campbell J (at [J72]) identified the question to be asked in this case as being whether there was an inconsistency between the opponents insisting upon Ankur’s confidential relationship with his treating doctors and commencing these proceedings. (I pause to observe that His Honour posed the question in generic terms. Its particular application to the facts in this case is as I have stated it).

125 His Honour considered that this approach was supported by the joint judgment in Mann v Carnell where Gleeson CJ, Gaudron, Gummow and Callinan JJ said at 13 [29]:

“ … It has been observed that ‘waiver’ is a vague term, used in any senses, and that it often requires further definition according to the context. …

Goldberg v Ng

What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of confidentiality

126 Benecke v. National Australia Bank provided an example of this principle. In that case, the appellant was held to have waived legal professional privilege concerning settlement instructions to her counsel. The appellant claimed that although she could assert that she had given no such instructions, counsel was constrained by privilege from giving her version of the settlement instructions. Both the inconsistent positions and the unfairness in that circumstance are obvious.

127 Campbell J’s resolution of the question he had identified was first to recognise that the commencement of proceedings by the opponents involved a waiver of the confidential relationship between Ankur and the claimant in respect of the medical matters in issue in the proceedings (see [J.76]). His Honour then noted that there could be a partial waiver of confidentiality, by which I understand his Honour meant waiver may extend in a given case to a severable part of the confidential information. Next, and critically, he observed that if a party commenced proceedings against a medical practitioner alleging on-going problems as a result of the practitioner’s negligence, the practitioner was entitled to have the opportunity to investigate the allegations so as “to have a fair opportunity to defend the action”: [J.79]. The question as to what was required for a party to be afforded a “fair opportunity to defend the action” resolved the question, on his Honour’s approach, as to whether there had been a ‘waiver’ in the sense he was using it. This is apparent from the following two passages in his Honour’s judgment. First, he said at [J78]:

“There are, however, various means by which such a [party] can obtain information about the course of treatment which the [party that has commenced proceedings] has undergone, and the symptoms which [that party] has exhibited after ceasing to be under the [other party’s] care, which can be obtained without an out-of-court interview impinging on the doctor-patient confidentiality between the [party that commended proceedings] and [their] new treating doctor”.

128 His Honour at [J79] explained the relevance of a consideration of the various ways information could be obtained.

“Whether it is inconsistent for the [opponents] to proceed with the litigation, and assert an ongoing obligation of confidence from his treating doctor, depends on whether the means available to the [claimant] to be informed about, and inquire into, the [opponents] health are sufficient to enable the [claimant] to have a fair opportunity of defending the claim. I turn to consider the various means a defendant in such an action has of obtaining information about the plaintiff’s health, so far as is relevant to the litigation.

129 His Honour then considered the various curial means available to the appellant to be informed as to Ankur’s medical condition. Those means included obtaining Dr Sholler’s and Dr Lewis’ medical records on subpoena; by having Ankur medically examined; by having discovery of documents in the respondent’s possession; and by evidence given in court.

130 As to the availability of information from subpoenaed medical records, his Honour observed that medical practitioner’s are required by the provisions of the Medical Practice Act 1992 (NSW) (s.126) and the Medical Practice Regulation 2003 (NSW) (see Pt 3) to keep specific records in relation to a patient, including tests undertaken, diagnosis, treatment given, clinical opinion, and a note of advice given. As was noted earlier in these reasons, the claimant accepted that the medical records of Dr Sholler and Dr Lewis were amenable to the subpoena process, and in fact had been subpoenaed. Accordingly, to the extent that there was documentary evidence of Ankur’s treatment, including his medical history, the medical diagnosis of his condition, his treatment and prognosis, that material was already available to the claimant.

131 Finally, it also appeared that both Dr. Sholler and Dr. Lewis could, if subpoenaed, be required to give evidence. It was accepted that both Dr Sholler and Dr Lewis would be compellable witnesses in the proceedings. However, there is a separate question as to whether, because of the operation of s. 126B of the Evidence Act, they would be compelled to answer questions in relation to the information that is protected by the confidence. Section 126B provides for a discretion to exclude confidential information (subs (1)) and makes it a requirement to do so if it is likely that harm would be caused by the disclosure, and in circumstances where the nature of the harm to the party whose information is disclosed outweighs the desirability of disclosure (subs(3)). In determining this question, a court may take into account the probative value of the information and whether alternative means of acquiring the necessary information are available (sub-s.(4)). Campbell J observed that it was likely that that any relevant information the treating doctors had concerning Ankur’s condition would be likely to be allowed to be given.

132 His Honour (at [J93]-[J95]), declined to follow Hay, holding that, given the means available to a defendant to be appropriately informed about relevant aspects of a plaintiff’s medical condition (that being the matter in issue in this case):

“93. … the mere fact that the plaintiff sues a medical practitioner for negligence, and alleges effects of that negligence concerning which he received treatment from other doctors, means that the maintenance of confidentiality by the plaintiff’s treating doctors is inconsistent with the plaintiff bringing the action he or she brings.

94. For the bringing of proceedings to count as a waiver of such confidentiality, it would have to be possible to say, as soon as the proceedings were brought, that the plaintiff would be acting inconsistently in both continuing with the proceedings, and in seeking to maintain an obligation of confidence from his treating doctor.”

133 The claimant contends that his Honour’s approach at [J79] (set out at [128] above), and the considerations that flowed from it and which led to his Honour’s conclusion, exhibited an erroneous approach to the question whether, in this case, there has been a waiver of the confidential relationship. The claimant appears to accept that ‘waiver’, for the purposes of this case, was as articulated by his Honour at [J72]. He contends, however, that if it is determined that there are two inconsistent positions being asserted, then ‘waiver’ is established. It is not relevant on that approach to ask whether there are other forensic means by which the appellant may gain access to the information, which, he says was the test applied by Campbell J. He recognised that the existence of other such means are relevant to the question of a stay if waiver was not established.

134 With respect to the very detailed and analytical argument advanced by senior counsel for the claimant, I am of the opinion that Campbell J was not, at [J79] and following, engaging in a balancing exercise similar to that required when the question is whether a stay should be granted. Rather, his Honour was considering whether it was inconsistent for the opponents to commence the litigation and to insist upon the maintenance of the confidential relationship. That involved an understanding of whether an insistence by the opponents on the maintenance of confidence would mean that the claimant would not have a fair means of defending himself in the proceedings. That in turn involved an understanding, not only of the allegations made, but of the information, including the means of obtaining information, available to him to defend the allegations. The processes discussed by his Honour were the processes whereby all aspects of Ankur’s treatment, including the history obtained, tests undertaken, diagnosis and treatment, were available to the claimant. It would seem that the only matter not available was Dr Sholler’s opinion on these matters, and possibly, his opinion on the claimant’s treatment of Ankur. As to the first, it is far from clear that any interview with Dr Sholler would result in an amplification of the matters that appear in the notes. What is clear is that an amplification of matters that are already known is not necessary to allow the claimant a fair opportunity of defending the allegations. The same applies in relation to Dr Lewis. As to the second, an opinion on such matters could be and has been obtained from other medical specialists.

Conclusion on waiver

135 Accordingly, I am of the opinion that the error alleged in his Honour’s reasoning has not been established. There is no authority binding on this court that governs the question whether the opponents waived their right to confidentiality by the commencement of proceedings. Nor, in my opinion, is there any matter in principle to support such a submission. I would only add that, having had the benefit of reading in draft the reasons of Hodgson JA, there may remain a question of waiver in this case depending upon what steps the opponents take in the litigation when those steps are taken and what matters are in issue. However, as the matter presently stands, there has been no waiver and I do not find it necessary, therefore, to comment further on any such possibilities.

Stay

136 The claimant submitted that even if the opponent had not waived the confidentiality that attached to their communications with Dr Sholler and Dr Lewis, the proceedings ought to be stayed unless and until they do so.

137 The existence of the power in a court to grant a stay is well recognised. The basis of its exercise is to prevent injustice. The court will be astute however, to exercise the power sparingly: see Tringali v. Stewardson Stubbs & Collett Ltd (1965) 66 SR (NSW) 335; Ferris v. Lambton (1905) 22 WN (NSW) 56; Medaris v. Lars Halvorsen & Sons Pty. Ltd. (1943) 44 SR (NSW) 71; Davey v. Bentinck (1893) 1 QB 185; Carr v. Royal Exchange Assurance Corporation (1864) 34 LJQB 21. In Dwyer v National Companies & Securities Commission (No. 2) (1988) 15 NSWLR 285, McLelland J referred to the inherent power to grant a stay in appropriate circumstances, reinforced by s 23 of the Supreme Court Act1970 (NSW), which enables the court to make such orders as “may be necessary for the administration of justice in New South Wales” His Honour, after noting that the power to grant a stay rested upon the purpose of preventing injustice, said that the extent of the power was co-extensive with the requirements of the necessity which called the power into play.

138 The trial judge rejected the application for a stay. Essentially, his Honour approached the question as to whether a stay should be granted by posing the question whether there could be a fair trial whilst the opponents insisted on their right to confidentiality: [J.111]. His Honour held that the claimant bore the onus of establishing, at a prima facie level, that there was information being kept secret from him and that a fair trial could not be had whilst such information was kept secret. In approaching the matter in this way, his Honour drew a distinction between the need, for the purposes of a fair trial, to have access to certain information, and a forensic fishing expedition.

139 It was submitted that this stated the test too highly. However, it is clear that when his Honour said that the appellant bore the onus of establishing at a prima facie level that there was information that was being kept secret from him, he was not stating a general principle. Rather, he was looking at the application of the general principle, namely whether a stay should be granted so as prevent injustice, to the present case where the appellant alleged that access to information additional to that already available, was necessary in order to have a fair trial. This is apparent from his Honour’s statement at [J111]:

If a litigant satisfies the court that a fair trial of the action cannot be had while the opposing litigant insists on a right to keep information confidential, the court can stay the action until that right of confidentiality is no longer insisted on.

140 A party seeking a stay bears the onus of establishing that a stay is necessary. In this case, as the claimant already had access to the treating doctors’ clinical notes, the claimant bore an onus to show that without access to other information not contained in the doctors’ notes, it was not possible to have a fair trial. Such a proposition is predicated upon there being some such information, a matter upon which the claimant also bore the onus. Given the information available to the claimant, already discussed above at [128]-[130], his Honour considered that what the claimant had to establish to discharge that onus was that there was some information which, whilst it remained secret, meant that there could not be a fair trial. As I understand it, his Honour, by his reference to “secret” information meant no more than the claimant was required to establish that Dr. Sholler had relevant information arising from the patient/doctor confidential relationship that was not contained either in the notes or Dr Sholler or Dr Lewis, or information that was not obtainable on discovery or, possibly, interrogatories.

141 There is no error in his Honour’s approach. His Honour set out in a thorough and logical way what was required to discharge the onus that the claimant bore as the party seeking the stay. Any other approach, on the facts of this case, would permit the claimant to engage in a fishing expedition on pain of the proceedings being stayed. His Honour recognised this, as I have already indicated.

142 Further, his Honour’s explanation as to what he considered was required to establish a prima facie case also demonstrates that he was not setting an unrealistic standard. His Honour said at [J118] that the onus would be discharged if there was sufficient evidence from which an inference could be drawn that the treating doctor had information, not otherwise available, that was required so that there could be a fair trial. His Honour referred to Apollo Shower Screens Pty. Ltd. & Anor v. Building & Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 in support of this proposition. That case was an example of the evidentiary burden shifting to a defendant where a plaintiff bore the onus of proving a negative proposition in circumstances where the defendant had the greater means to produce the evidence contradicting the proposition. It is not therefore precisely in point here. However, it is sufficiently analogous to demonstrate that although the claimant would not necessarily know what relevant information the treating doctors had, it was necessary for the appellant to prove, by inference if necessary, that there was some such information.

143 His Honour rejected the approach in McGrory v. Electricity Supply Board where a stay was granted in circumstances where the information that was sought at an early stage would necessarily become available at a later stage in the proceedings.

144 Again, there was no error in doing so. In this case it is not apparent that Dr. Sholler and Dr. Lewis will be called to give evidence so that it cannot be said that any evidence they could give additional to the information in their medical records, would necessarily become available. His Honour then turned the particular facts before him. This involved a consideration of what the evidence established concerning the likelihood that the treating doctors had information obtainable only through questioning them. In this regard his Honour noted:

(ii) the opponents’ solicitors had served on the claimant’s solicitors a “Medico-legal” brief of documents containing:

· a chronology of facts and assumptions, that listed in chronological order each event which the opponents contended was of significance to their case;

· the correspondence passing between medical practitioners concerning Ankur’s treatment;

· the records of the various hospitals where Ankur had been admitted;

· the records of various treating doctors (including those of Dr Sholler and Dr Lewis) which had been produced on subpoena, and

· the ‘blue book’ recording his neo-natal and paediatric care.

145 Notwithstanding the availability of this information, the claimant still sought Dr. Sholler’s opinion on the matters set out in BDW’s letter of 24 October 2004 (see [13] above). Those matters which in summary were: the history of signs and symptoms of Ankur’s condition; findings on examinations; the nature of Ankur’s underlying condition; the possibility of detection at certain times; and the likely outcome had detection occurred earlier.

146 His Honour held that what was sought by BDW in their letter of 24 October 2004 “was extremely general” and was insufficient to persuade him that Dr. Sholler had information not contained in his records to which the claimant ought to have access to properly prepare his defence. I agree with his Honour’s comments and would only add by way of emphasis that the request for Dr. Sholler’s opinion as to the matters sought, which were matters of Ankar’s medical history, observation and diagnosis, was a request for an opinion as to direct matters of fact and would not usually be matters of opinion. It would seem that the request was framed in the terms of seeking Dr Sholler’s opinion in an attempt to resist the inevitable observation that relevant material in relation to the matters listed has already been provided. As his Honour correctly observed, the material sought in the letter of 24 October 2002 was material that the claimant either had access to through the litigation process or could obtain from his own expert [J.128].

147 Senior counsel for the claimant further submitted that not only had his Honour erected the barriers of onus of proof too highly, the principles that governed the grant of a stay were much wider than he had stated them. He submitted that there was ample authority that a stay would be granted if it could be shown that it was likely that the treating doctor had relevant information that potentially would advance the case or “illuminate the issues in the case” [AT 29]. Senior counsel used as his legal springboard for this issue the decision of Shaw v. Skeet Aung and Nicholson v. Halton General Hospital NHS Trust (see above at [106]).

148 Shaw involved a case where a plaintiff had sued his treating doctor. Buckley J observed that confidentiality had been waived and that a plaintiff could not, other than by risking having the proceedings stayed, impede material evidence being obtained by the other side and placed before the Court. His Honour said at 374:

“… the court has no hesitation in entertaining an application to stay proceedings if that is indeed what it takes to enable the proper evidence to be brought before the court.”

149 In Nicholson the plaintiff had sued her employer in negligence, alleging that her working conditions had caused her repetitive strain injury. The defendant wished to speak to the plaintiff’s treating surgeon. Sumner J said that in “an appropriate case” a court could order a stay if a plaintiff refused to waive the confidentiality of the doctor/patient relationship. However, it is apparent from the order made by the Court in Nicholson that what was being sought, relevant to the plaintiff’s claim, were two facts: the nature of the plaintiff’s condition that necessitated surgery, and, what the operative treatment revealed about the plaintiff’s condition. Information of a like nature in this case, namely, facts of observations carried out and diagnoses in relation to Ankur’s condition, have already been made available to the claimant. Accordingly, that case does not, assist the claimant in this case.

150 The claimant next relied upon a series of cases that related to a plaintiff’s refusal to undergo a medical examination or an examination with a nominated doctor: Edmeades v. Thames Board Mills Ltd [1969] 2 QB 67; Lane v. Willis [1972] 1 All ER 430 and Starr v. National Coal Board [1977] 1 All ER 243. However, those cases relate to a quite different issue. The rules of court require a plaintiff to undergo a medical examination by a doctor nominated by a doctor in any case where a medical condition is in issue. Should a plaintiff refuse or fail to do so, the court may stay the plaintiff’s claim. A stay imposed in that circumstance is in aid of particular rules of court and is but an exemplification of the underlying principle governing the grant of a stay – namely so as to prevent an injustice.

151 The difficulty with a test stated in the terms as formulated by the claimant, namely that a stay would be granted if it could be shown that it was likely that the treating doctor had relevant information that potentially would advance the case or illuminate the issues is that it assumes the answer. Any treating doctor would potentially be able to illuminate the issues for a defendant. Further, a test stated in such broad terms moves away from the notion of what is required for a fair trial. In a case such as this a defendant has to have access to the facts that relate to Ankur’s condition. Although the claimant had contended that the usual pre-trial processes had not been sufficient for this purpose, His Honour was not satisfied that this had been established. He concluded at [J.149]:

“[I am] not persuaded that a fair trial would not be had without the [claimant’s] lawyers ascertaining verbally from Dr Sholler his recollection of what the adult [opponents] told him about what they told the [claimant] concerning Ankur’s condition. No inadequacy in Dr Sholler’s notes had been demonstrated. The topic of what history [Ankur’s] parents gave to the [claimant] is one concerning which (sic) the [claimant] has first hand knowledge and presumably records.

152 Both the claimant’s experts had been able to give reports and did not express any opinion that their ability to give a complete report was in any way hindered by a lack of information or the need for further information from Dr. Sholler. For example, Dr. Wilkinson raised a question as to whether the cardiac catheter studies should have been undertaken earlier and differently, but did so expressly “with the benefit of hindsight” and in response to a request by the claimant’s solicitors to express an opinion on the possible negligence of any other healthcare provider.

153 No evidence was advanced as to why the claimant needed to speak to Dr. Lewis other than that she had been a treating doctor since birth. His Honour thus concluded the claimant’s application in relation to Dr. Lewis was nothing more than a “fishing expedition”. In the absence of any evidence as to what facts Dr Lewis had in her possession that had not been made available to the claimant, this finding is not amenable to challenge on the appeal.

Conclusion on stay

154 The decision to refuse the stay was a discretionary decision made on an interlocutory application on a matter of practice and procedure. As such, this Court will only interfere if error has been made in the exercise of the discretion. The test is that stated by Dixon, Evatt and McTiernan JJ in House v. The King (1936) 55 CLR 499 at 404-405:

“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”

155 The claimant contended that Campbell J applied a wrong test. I have referred to this at [140]. But in my opinion, the statement of the test against which the discretion was to be exercised was stated by his Honour in the first sentence of [J.111], namely, whether the claimant has satisfied the Court that the opponents’ insistence upon maintaining the confidentiality of the information sought would mean a fair trial could not be had. It is repeated at various places in subsequent passages in his Honour’s judgment: see, for example: [J.114]; [J.115] and [J.116]. In the remainder of [J.111], his Honour was referring to what a defendant would need to establish in order to discharge the onus which the party seeking access to confidential information bore on an application for a stay such as this.

156 Accordingly, I see no error in his Honour’s statement of the test to be applied in determining whether to grant a stay. Nor do I consider there was any error in his Honour’s statement of what was necessary for the party applying for a stay to discharge the onus borne by that party on such an application. Nor, in my opinion, was there any error in his Honour’s conclusion. It is apparent that the claimant was seeking the opinion evidence of Dr. Sholler and to a lesser extent, of Dr. Lewis. Whilst Dr. Sholler’s opinion might be of assistance to his defence, the claimant does not need that opinion in order to properly prepare his defence. In those circumstances, no basis was established to stay the proceedings. There was no error in his Honour so concluding.

157 I had referred at the commencement of these reasons to a subsidiary issue, namely whether the treating doctors should have been joined as parties. Given the conclusion to which I have come, it is not necessary to determine that question.

158 In my opinion leave to appeal should be granted and the appeal should be dismissed with costs.

159 HODGSON JA: I agree with the orders proposed by Beazley JA and, subject to what I say below, substantially with her reasons. I would make the following comments on the confidentiality issue and the waiver issue.

160 On the confidentiality issue, the analysis of the authorities undertaken by Beazley JA shows that the principle that an obligation of confidentiality will not be enforced when to do so would impede “ever so slightly” the administration of justice, is not unlimited and unqualified. If it were, it would seem that a party having confidential information would be free to voluntarily give that information to anyone who could be assisted in legal proceedings by the information being given in evidence or even used to obtain evidence. I agree with Beazley JA that there needs to be some matter of public interest beyond the resolution of a civil dispute, and that even then there may be a balancing exercise required in order to determine whether that public interest displaces the obligation of confidentiality.

161 As regards the waiver issue, I would suggest a significant possible qualification to the reasons of Beazley JA.

162 In Standard Chartered Bank of Australia Ltd. v. Antico (1993) 36 NSWLR 87, I discussed a tension that exists between what was said (in a context of legal professional privilege) by Jordan CJ in Thomason v. The Council of the Municipality of Campbelltown (1939) 39 SR 347 at 358-59 (adopted in Benecke v. National Australia Bank (1993) 35 NSWLR 110 at 116) and the case of Wentworth v. Lloyd (1864) 10 HLCas 589, 11 ER 1154.

163 In the former case, Jordan CJ suggested that, whenever a plaintiff seeks to set aside a transaction for undue influence, privilege cannot be relied on to prevent evidence being given of legal advice that the plaintiff had at the time. In the latter case, the plaintiff had sought to set aside the sale of property on the ground of unfairness, and successfully claimed privilege for a communication with his solicitor concerning the transaction; and in the House of Lords, Lord Chelmsford expressed the view, for which this case is considered authority, that no adverse inference (and no application of Armory v. Delamirie (1722) 1 Stra 505, 93 ER 664) could arise from the claim of privilege.

164 In Antico at 94-5, I attempted to reconcile the two cases by suggesting that the true principle was to the effect that, if a party by its pleading or evidence expressly or impliedly makes an assertion about the content of confidential communications between that party and a legal adviser, then fairness to the other party may require that this assertion be considered inconsistent with the maintenance of privilege attaching to the communication, and be taken as a waiver of it. This will usually be the case when a plaintiff alleges that a transaction in which the plaintiff had legal advice was procured by undue influence; but if in a particular case such a plaintiff makes no suggestion of any inadequacy of legal advice or understanding of the legal ramifications of the transaction, but bases the claim entirely on other matters, then privilege might not be waived. Wentworth could then be explained on that basis.

165 It is true that obligations of confidentiality are not the same as legal professional privilege. At common law, obligations of confidentiality are not a basis for excluding relevant evidence, as is legal professional privilege, and obligations of confidentiality are a weaker basis for resisting inspection of subpoenaed documents. But aside from such compulsory Court processes, there is an analogy between the two areas; and I would approach the question of waiver of confidentiality of information obtained by a medical practitioner in much the same way as the question of waiver of legal professional privilege.

166 On that basis, if a plaintiff, by pleadings, particulars or evidence, expressly or impliedly makes an assertion about the content of information obtained by a medical practitioner, then confidentiality of that information may be waived, particularly if the assertion is persisted in after the question of waiver is raised with the plaintiff.

167 In the present case, the plaintiff is making assertions about his medical condition at the time of his treatment by Dr. Sholler and Dr. Lewis, but that is not as such an assertion about information obtained by them about his medical condition: in my opinion, it is not enough that the latter is relevant to the former.

168 However, in my opinion the plaintiff would be making an assertion about information obtained by these doctors about the plaintiff’s medical condition if the plaintiff were to call them to give evidence of their observations of the plaintiff, or if the plaintiff were to rely on their observations as recorded in order to support his case that the claimant was negligent. The present indications are that the plaintiff does not propose to call either Dr. Sholler or Dr. Lewis; but there are indications that the plaintiff does propose to rely on their observations of the plaintiff as recorded by them. In particular:

169 In my opinion, these matters could not at present support a declaration that confidentiality has been waived. The case of waiver has not been put by the claimant on this basis either before Campbell J or before this Court, these particular matters have not been drawn to the plaintiff’s attention and the plaintiff has not unequivocally maintained that it does rely on those reports and observations of Dr. Sholler and Dr. Lewis as supporting its case of negligence against the claimant. Waiver generally requires appreciation of available alternatives.

170 However, if the matter is squarely put to the plaintiff, my tentative view is that the plaintiff must then either abandon any reliance on the reports and observations of Dr. Sholler and Dr. Lewis as part of its case of negligence against the claimant, including reliance on the items identified above, or else be taken to have waived confidentiality.

171 While it is not inconsistent with maintenance of confidentiality for the plaintiff to make assertions about the plaintiff’s medical condition at the time of consultation with these doctors, my tentative view is that it would be inconsistent for the plaintiff to make assertions against the claimant about what these doctors observed and what information these doctors obtained on those occasions, and yet maintain that the information they obtained on those occasions is confidential from the claimant. That stance would involve the inconsistency arising from unfairness identified in Attorney-General for the Northern Territory v. Maurice (1986) 161 CLR 475.

172 STEIN JA: I agree with Beazley JA

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Richards v Kadian [2005] NSWCA 328

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Kadian v Richards [2004] NSWSC 382

State of New South Wales v Jackson [2007] NSWCA 279

Kadian v Richards [2004] NSWSC 382

CITATION:	RICHARDS v. ANKUR KADIAN by his Tutor JANAK KADIAN & ORS. [2005] NSWCA 328
HEARING DATE(S):	06/05/2005
JUDGMENT DATE:	23 September 2005
JUDGMENT OF:	Beazley JA at 1; Hodgson JA at 159; Stein AJA at 172
DECISION:	Leave to appeal granted. Appeal dismissed with costs.

CATCHWORDS:	CONTRACT - confidentiality - doctor/patient relationship - whether party to proceedings entitled to insist upon the right to confidentiality with third party - relevant principles - whether maintaining party's right to confidentiality inimical to the public interest and the administration of justice - CONTRACT - confidentiality - waiver - relevant principles - whether party has taken up two inconsistent positions in relation to claim - PRACTICE AND PROCEDURE - stay of proceedings - court's inherent power to make orders necessary to prevent injustice - s.23 Supreme Court Act - discretion as to whether power should be exercised - whether refusal to grant stay would result in unfair trial - whether party has opportunity to defend matter should stay be refused
LEGISLATION CITED:	Evidence Act 1995 (NSW) Medical Practice Act 1992 (NSW) Medical Practice Regulation 2003 (NSW) Supreme Court Act 1970 (NSW)
CASES CITED:	A v. Hayden (1984) 156 CLR 532 AG Australia Holdings Ltd v. Burton (2002) 58 NSWLR 464 Allied Mills Industries Pty. Limited v. Trade Practices Commission (No. 1) Ampolex v. Perpetual Trustee Co. (Canberra) (1995) 37 NSWLR 405 at 411 Annesley v. Earl of Anglese (1743) 17 State Tr 1139 Ansley v. Ansley (1973) 12 RFL 93 Apollo Shower Screens Pty. Ltd. & Anor v. Building & Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 Ashburton v Pape [1913] 2 Ch 469 Attorney-General (Northern Territory) v. Maurice (1986) 161 CLR 475 Banning v. Wright [1972] 1 WLR 972 Benecke v. National Australia Bank (1993) 35 NSWLR 110 Bolkiah v KPMG [1999] 2 AC 222 (House of Lords) British Steel Corporation v. Granada Television Ltd. [1981] AC 1096 Brown v. Brooks (unreported, 18 August 1988, McClelland J) Calcraft v Guest [1898] 1 QB 759 Carr v. Royal Exchange Assurance Corporation (1864) 34 LJQB 21 Commonwealth of Australia v. Verwayen (1990) 170 CLR 394 Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 74 ALR 428 Craine v. Colonial Mutual Fire Insurance Co Limited (1920) 28 CLR 305 D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118 D v. The National Society for the Prevention of Cruelty to Children [1978] AC 171 Davey v. Bentinck (1893) 1 QB 185 Doe & Ors. v. Eli Lilley & Company Inc & Ors (1983) 99 FRD 126 Dwyer v National Companies & Securities Commission (No. 2) (1988) 15 NSWLR Edmeades v. Thames Board Mills Ltd [1969] 2 QB 67 Egerton v. Brownlow (1853) 4 HL Cas 1; 10 ER 359 Ferris v. Lambton (1905) 22 WN (NSW) 56 Fitzgerald v. F.J. Leonhardt Pty. Ltd. (1997) 189 CLR 215. Frenette v. Metropolitan Life Insurance Co. (1992) 89 DLR (4th) 653 Gartside v Outram (1856) 26 L.J. Ch 113 Harmony Shipping Co SA v. Saudi Europe Line Limited [1979] 1 WLR 1380 Hay v. University of Alberta Hospital (1990) 69 DLR (4th) 755 House v. The King (1936) 55 CLR 499 Howard v. Odhams Press Limited [1938] 1 KB 1 Hunter v. Mann [1974] QB 767 at 772 Initial Services v. Putterill [1967] 3 All ER 145 Jack Barclay Ltd [1951] 2 KB 252 Kadian v. Richards [2004] NSWSC 382; Kadian v. Richards (by his tutor Kadian) & Ors. v. Richards & Anor (2004) 61 NSWLR 22 Lane v. Willis [1972] 1 All ER 430 Lound v Grimwade (1888) 39 Ch. D. 605 M(A) v. Ryan (1997) 143 DLR (4th) 1 M(N) v. Drew Estate (2003) 230 DLR (4th) 697 Mann v. Carnell (1999) 201 CLR 1 McGrory v. Electricity Supply Board [2003] IESC 45 McGuire v Ferguson & Anor (Supreme Court of New South Wales, Common Law Division, 11 December 2001, Solomon AJ, unreported) Medaris v. Lars Halvorsen & Sons Pty. Ltd. (1943) 44 SR (NSW) 71 Nicholson v. Halton General Hospital NHS Trust [1999] EWCA Civ 1664 (24 June 1999, unreported) Nur v. John Wyeth and Shaw v. Skeet Aung Sooriakumaran [1996] 7 Med LR 371 R v Young (1999) 46 NSWLR 681 Rakusen v Ellis, Munday & Clarke [1912] 1 Ch 831 at 835 Re Morris (Deceased) (1943) 43 SR(NSW) 352 Re Morris (Deceased); Wilkinson v Osborne (1915) 21 CLR 89 at 97 Sargent v. ASL Developments Ltd (1974) 131 CLR 634 St. Louis v. Feleki (1991) 75 DLR (4th) 758 Starr v. National Coal Board [1977] 1 All ER 243 Stoodley v. Ferguson (2001) 93 Alta LR (3d) 78 Swirski v. Hachey (1995) 132 CLR (4th) 122 The Earl of Chesterfield v. Janssen (1751) 28 ER 82 Thomason v. Campbelltown Municipal Council (1939) 39 SR (NSW) 347 Tringali v. Stewardson Stubbs & Collett Ltd (1965) 66 SR (NSW) 335 Watson v. M'Ewan [1905] AC 480 Weld-Blundell v. Stephens [1919] 1 KB 520 Wells v. Paramsothy (1996) 98 OAC 233 Windhill Local Board of Health v Vint (1890) 45 Ch. D. Wyeth & Brother Ltd [1996] 7 Med LR 300 Yango Pastoral Co. Pty. Limited v. First Chicago Australia Ltd. (1978) 139 CLR 410 P Feltham, D Hochberg and T Leech (eds), "Spencer Bower's Estoppel by Representation" (4th edn), London: Butterworths, 2004
PARTIES:	Bruce Richards (Claimant) Ankur Kadian by his Tutor Janak Kadian; Janak Kadian and Gurmeet Kadian (Opponents)
FILE NUMBER(S):	CA CA 41020/2004
COUNSEL:	Paul Brereton SC/S.A. Woods (Claimant) D. Higgs SC/I. Butcher (Opponents)
SOLICITORS:	Blake Dawson Waldron (Claimant) McLaughlin & Riordan (Opponents)

LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	20219/2001
LOWER COURT JUDICIAL OFFICER:	Campbell J