Trevorrow v State of South Australia (No 3) - [2005] SASC 471

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
TREVORROW v STATE OF SOUTH AUSTRALIA (No 3)
Judgment of The Honourable Justice Gray
13 December 2005
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INJUNCTIONS FOR PARTICULAR PURPOSES - TO RESTRAIN BREACH OF CONFIDENCE
Application for injunction to restrain use of documents - defendant applied for injunction to prevent the plaintiff from tendering documents at trial which the defendant said were confidential - discussion of principles regarding equitable doctrine of confidential communication - consideration of detriment - consideration of application of iniquity rule - discussion of doctrine of public interest immunity - claim to confidentiality rejected - equitable and other relief refused.
Trevorrow v State of South Australia (No 2) [2005] SASC 369; Coco v AN Clark (Engineers) Ltd [1969] RPC 41; Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 75 ALR 353; Commonwealth of Australia v John Fairfax & Sons Limited and Others (1980) 147 CLR 39; Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434; Gartside v Outram (1857) 26 LJ Ch 113; Sullivan v Sclanders [2000] SASC 273; Sankey v Whitlam (1978) 142 CLR 1 ; Australian National Airlines Commission v Commonwealth (1975) 132 CLR 582; Alfred Crompton Amusement Machines Ltd v Customs and Excise Cmrs (No 2) [1974] AC 405 , considered.

TREVORROW v STATE OF SOUTH AUSTRALIA (No 3)
[2005] SASC 471
Civil
GRAY J

The defendant, the State of South Australia, seeks an injunction to restrain the plaintiff’s proposed use of documents claimed to be confidential. The application seeks to invoke the equitable doctrine of confidential communication. An order is also sought that the same documents be protected from use as it is said that they fall within a class of documents protected by public interest privilege.[1]
[1] The terms of the application are as follows:
(1)That until further order the plaintiff whether by his servants or agents be restrained and an injunction is hereby granted restraining him from using in any way or for any purpose any and all documents in his possession or in the possession of his servants or agents comprising those documents referred to in paragraph 38 of the judgment of the Honourable Justice Gray dated 26 September 2005 except to the extent that such documents have been discovered and produced to the plaintiff for inspection in this action.
(2)An order that the plaintiff return or destroy by confidential destruction certified in writing to the Crown Solicitor each of the documents the subject of any order pursuant to paragraph 1 above, or any embodiment of the information contained therein within 7 days.
Introduction
In Trevorrow v State of South Australia (No 2),[2] I resolved a dispute concerning a claim of legal professional privilege with respect to a number of documents (the disputed documents). I took the view that in the particular circumstances, legal professional privilege had been excluded. I reasoned that interests associated with the welfare of a child led to that exclusion. The same documents are the subject of the present application.
[2] Trevorrow v State of South Australia (No 2) [2005] SASC 369.
In the course of my reasons I went on to consider the application of the doctrine of waiver and concluded that privilege had been waived in respect of a number of the disputed documents where there had already been disclosure to the plaintiff (the disclosed documents). I reached the conclusion that there had not been any waiver with respect to the balance of the documents that had been withheld (the withheld documents).
I granted the State leave to appeal from my decision. I understand that the hearing of the appeal has been adjourned to enable the State to pursue the present application.
At the outset of the argument concerning legal professional privilege, I raised with counsel for the State whether a more appropriate course in the circumstances with respect to the disclosed documents was to seek injunctive relief to protect any claimed confidentiality. At that time the State elected not to pursue such an application.
On the hearing of this application the parties agreed that all of the material that had been before me on the legal professional privilege argument should be before me with respect to the present application. As a matter of convenience the Full Court appeal books were used as they contained the relevant material. In addition, on the hearing of this application, the State tendered three affidavits, the contents of which will be discussed later. There was no application to cross-examine any deponent.
The trial in the action commenced on 10 November 2005. During the course of the trial, the plaintiff tendered the disclosed documents. The tender was opposed. At the same time the application for injunctive relief was advanced. I heard the objection to tender and the application for an injunction at the same time. Both parties agreed to this procedure. Counsel for the plaintiff indicated that his client no longer sought production of the withheld documents.
The issues arising on this application are - on the basis that legal professional privilege over the documents had been excluded or waived - whether the disclosed documents are of a confidential nature such as to warrant protection from use and further disclosure either as a result of the doctrines of equitable confidence or public interest immunity.
The plaintiff’s claim
It is convenient to adopt the summary of the plaintiff’s claim as set out in my reasons in Trevorrow (No 2). I do so as follows:[3]
[3] Trevorrow v State of South Australia (No 2) [2005] SASC 369 at [8]-[14].
The plaintiff, an indigenous person, was born in 1956. When aged about 13 months, and whilst living with his parents, he became ill. His parents determined that he was in need of medical treatment. They arranged for a neighbour to take the plaintiff to the Adelaide Children’s Hospital. The plaintiff was treated at hospital. It is alleged that the Aboriginal Protection Board removed him from hospital without notice to his parents and placed him in foster care. Quite some time passed before his parents were informed as to what had happened. He remained in foster care for about 9 years.
The plaintiff asserts that the State, through its instrumentalities, acted illegally, improperly and in breach of duty.[4]
The plaintiff alleges that the State was subject to statutory duties pursuant to various enactments including: the Maintenance Act 1926-1937 (SA), the Aborigines Act 1934-1939 (SA), the Social Welfare Act 1926-1965 (SA), the Aboriginal Affairs Act 1962 (SA) and the Community Welfare Act 1972 (SA). Those statutory obligations, the plaintiff claims, also gave rise to a duty of care that was separate and distinct from fiduciary duties owed between guardian and ward. Such duties included the duty to ensure that where any child was alleged to be a “neglected child” within the meaning of section 5 of the Maintenance Act, such a child was brought before the court of summary jurisdiction for a hearing as to whether the child was a “neglected child”, with appropriate notice to the child’s guardian. The plaintiff claims that the State breached its statutory duties and duty of care owed to him.
The plaintiff further claims that the State, by its servants or agents, falsely or wrongfully imprisoned the plaintiff by removing him from hospital without his parents’ consent. He alleges that the State failed to return him to his parents and instead confined him to the custody of foster parents from about 6 January 1958 to 12 May 1967. This conduct was said to be contrary to the requirements of Part IV of the Maintenance Act and contrary to sections 38 and 40 of the Aborigines Act and without the knowledge or consent of the plaintiff’s parents.
The plaintiff further claims that his removal was ultra vires, as it was not conducted pursuant to sections 38 to 40 of the Aborigines Act 1934-1939 and there were other lawful means of removing a child from the custody of its parents.
In addition, the plaintiff asserts that his removal from his parents was performed in bad faith, as such action was taken contrary to legal advice received and accepted by the Aborigines Protection Board, the Children’s Welfare and Public Relief Board, the Minister for Aborigines and the Minister for Children’s Welfare and Public Relief. It was said that such action was taken when the above-mentioned bodies knew they did not have the power to remove the plaintiff from his parents and place him in foster care.
Other causes of action advanced by the plaintiff include the denial of procedural fairness, illegal conduct, misfeasance in public office and breach of fiduciary duty. The fiduciary duty was said to arise from the relationship between the plaintiff and the State and in particular the relationship of guardian and ward.
The defence
[4] The plaintiff alleges that State instrumentalities were involved. Those instrumentalities are identified in paragraph 4 of the Statement of Claim. For the purposes of these reasons, the instrumentalities are simply referred to as “the State”. The State of South Australia has, by its defence, declined to plead to the allegations that the State of South Australia is, by statute, the legal entity liable to be sued for the alleged acts and defaults of the instrumentalities as it is said to be a question of law.
I also adopt for the purpose of these reasons, my earlier summary of the State’s defence:[5]
The State denies the plaintiff’s claim that he was removed from his family. On the State’s case, the plaintiff was placed by the State in foster care because he was a neglected child and legitimately a ward of the State. The State asserts that it was legislatively empowered so to act in relation to the plaintiff. The State denies the plaintiff’s claim that it breached any statutory duty. It also denies that it breached its duty of care. In addition, the State disputes the plaintiff’s reliance upon what is alleged to be the general practice of the State with respect to children of Aboriginal descent during the relevant period to support his claim. The State denies all of the claims advanced by the plaintiff.
[5] Trevorrow v State of South Australia (No 2) [2005] SASC 369 at [21].
The disputed documents
The present application for injunctive relief relates to the same documents with respect to which the claim of legal professional privilege was advanced. The present application identifies those documents as being the documents listed in Trevorrow (No 2). It is convenient to set out the description of the documents as set out in those reasons:[6]
[6] Trevorrow v State of South Australia (No 2) [2005] SASC 369 at [38].
1Letter of the Crown Solicitor returned to the Honourable Attorney General, dated 25 July 1949. This document was read and copied at State Records by the plaintiff’s solicitor. The entire document is subject to a claim of legal professional privilege by the State. [Referred to in paragraph 136.1 of the Amended Statement of Claim]
2A second letter of the Crown Solicitor returned to the Honourable Attorney General, dated 25 July 1949. This document was read and copied at State Records by the plaintiff’s solicitor. The entire document is subject to a claim of legal professional privilege by the State. [Referred to in paragraph 136.2 of the Amended Statement of Claim]
3Minute of the Chairman Children’s Welfare and Public Relief Board to Chief Secretary for forwarding to the Crown Solicitor for advice, dated 8 June 1954. The plaintiff’s solicitor has not seen this document. The entire document is subject to a claim of legal professional privilege by the State.
4Letter of the Crown Solicitor returned to the Honourable Attorney General, dated 13 August 1954. This document was read and copied at State Records by the plaintiff’s solicitor. The entire document is subject to a claim of legal professional privilege by the State. [Referred to in paragraph 136.4 of the Amended Statement of Claim]
5Minute of the Secretary, Aborigines Protection Board to the Chairman of Children’s Welfare and Public Relief Board regarding Aboriginal children, dated 3 February 1956. This document was read and copied at State Records by the plaintiff’s solicitor. Those parts of the document that are subject to the State’s claim to legal professional privilege have been masked in the book of documents. [Referred to in paragraph 136.6 of the Amended Statement of Claim]
6Minute of the Acting Minister of Works to the Honourable Chief Secretary for Cabinet, dated 19 November 1956. This document was read and copied at State Records by the plaintiff’s solicitor. Those parts of the documents that are subject to the State’s claim to legal professional privilege have been masked in the book of documents.
7Minutes of the Aborigines Protection Board, dated 19 December 1956. Read and noted or dictated, but not copied by the plaintiff’s solicitor. Those parts of the documents that are subject to the State’s claim to legal professional privilege have been masked in the book of documents.
8Minute of the Secretary Aborigines Protection Board to the Honourable Minister of Works, dated 24 January 1957. This document has not been seen in unmasked form by the plaintiff’s solicitor. Those parts of the documents that are subject to the State’s claim to legal professional privilege have been masked in the book of documents. [Referred to in paragraph 136.9 of the Amended Statement of Claim]
9Minute of the Acting Minister of Works to the Chief Secretary for Cabinet, dated 2 April 1958. This document has not been seen in unmasked form by the plaintiff’s solicitor. Those parts of the document that are subject to the State’s claim to legal professional privilege have been masked in the book of documents.
10Minute of the Secretary, Aborigines Protection Board, to the Honourable Minister of Works, dated 12 January 1959. This document has been read and copied at State Records by the plaintiff’s solicitor. Those parts of the document that are subject to the State’s claim to legal professional privilege have been masked in the book of documents. [Referred to in paragraph 136.18 of the Amended Statement of Claim]
11Minute of the Minister of Works to the Chief Secretary for Cabinet, dated 18 August 1960. This document has not been seen unmasked by the plaintiff’s solicitor. Those parts of the document that are subject to the State’s claim to legal professional privilege have been masked in the book of documents. [Referred to in paragraph 136.19 of the Amended Statement of Claim]
12Minute of the Secretary Children’s Welfare and Public Relief Board to the Honourable Chief Secretary, dated 11 October 1960. This document was read and copied at State Records by the plaintiff’s solicitor. Those parts of the document that are subject to the State’s claim to legal professional privilege have been masked in the book of documents. [Referred to in paragraph 136.20 of the Amended Statement of Claim]
13Minute of the Secretary Children’s Welfare and Public Relief Board to the Honourable Chief Secretary, dated 11 October 1960. This document was read and copied at State Records by the plaintiff’s solicitor. Those parts of the document that are subject to the State’s claim to legal professional privilege have been masked in the book of documents.
14Minute of the Secretary, Aborigines Protection Board, dated 4 November 1960. This document has not been seen unmasked by the plaintiff’s solicitor. Those parts of the document that are subject to the State’s claim to legal professional privilege have been masked in the book of documents.
15Minute from the Secretary, Aborigines Protection Board to the Minister of Works, dated 22 June 1961. The file copy of this document was read and copied at State Records by the plaintiff’s solicitor. The entire document is subject to the State’s claim to legal professional privilege. [Referred to in paragraph 136.22 of the Amended Statement of Claim]
16File copy of document 584, dated 22 June 1961. The file copy of this document was read and copied at State Records by the plaintiff’s solicitor. The entire document is subject to the State’s claim to legal professional privilege.
17Minutes of the Aborigines Protection Board, dated 5 December 1962. This document has not been seen unmasked by the plaintiff’s solicitor. Those parts of the document that are subject to the State’s claim to legal professional privilege have been masked in the book of documents.
18Note regarding copies of Crown Law Opinion (undated). This document has not been seen unmasked by the plaintiff’s solicitor. Those parts of the document that are subject to the State’s claim to legal professional privilege have been masked in the book of documents.
19Opinion of the Crown Solicitor, dated 13 December 1946. This document was referred to in an affidavit of Dr Raynes. This document was read and copied by Dr Raynes at State Records. Dr Raynes subsequently forwarded the copy to the plaintiff’s solicitor. The entire document is subject to a claim to legal professional privilege by the State.
20Notes of the response of the Crown Solicitor, dated 25 July 1949, made by Dr Raynes. This document was referred to in an affidavit of Dr Raynes. This document was read and noted by Dr Raynes at State Records. The entire document is subject to a claim to legal professional privilege by the State.
The disputed documents can be categorised in five groups: those that the plaintiff has copies of (documents 1, 2, 4, 5, 6, 10, 12, 13, 15, 16, 19); those that the plaintiff does not have in his possession and has never had access to, the contents of which are not known to the plaintiff (document 3); those that have not been seen in unmasked form by the plaintiff (documents 8, 9, 11, 14, 17, 18); those that the plaintiff does not possess a copy of but that the plaintiff’s solicitor has previously reviewed (document 7); and those that have been reviewed by Dr Raynes but that the plaintiff has never seen (document 20). The plaintiff became aware of the existence of the last two documents on this list (documents 19 and 20) through Dr Raynes.
My conclusions in regard to the exclusion of legal professional privilege[7] and waiver[8] are set out in my reasons in Trevorrow (No 2). These conclusions were reached in the context of an interlocutory pre-trial proceeding concerning the claim of legal professional privilege on the material then advanced. As these conclusions were interlocutory conclusions of fact or law, they remain open to later review in the light of further evidence and further argument. Accordingly, both parties remained at liberty to advance further factual material and submissions. Both parties agreed this was the appropriate course to be followed.
[7] Trevorrow v State of South Australia (No 2) [2005] SASC 369 at [88]-[89].
[8] Trevorrow v State of South Australia (No 2) [2005] SASC 369 at [119]-[122].
Evidence with respect to this application
As earlier observed, all of the materials before me on the earlier application were re-presented with respect to this application. In addition, three further affidavits were received.
The first is an affidavit of the current Attorney-General of South Australia, Michael John Atkinson MP, sworn 17 November 2005, in which the Attorney, as legal adviser to the Crown in right of South Australia, outlined the contemporary procedure for the request and provision of legal advice by and to officers and instrumentalities of the Crown from the Crown Solicitor. The Attorney described how, due to the magnitude and complexities of government, information that it intends to keep confidential may, from time to time, be unintentionally and inappropriately disclosed. He went on to state that the documents the subject of this claim contain internal information of a kind that the Crown intends to be confidential.

The second is an affidavit of Janet Elizabeth Newman, the current manager of Reference and Access Services at State Records, sworn 17 November 2005. Ms Newman described the operation and function of State Records. She also described procedures in place at State Records around the time that the disputed documents were transferred for archiving and the rules with respect to restriction from access that have applied over the years. Attached to Ms Newman’s affidavit is a letter from David Rathman, Chief Executive Officer, Department of State Aboriginal Affairs, dated 19 June 1995, requesting State Records to place a blanket restriction on access to two series of files held at Records relating to Aboriginal persons. The effect of the restriction was that researchers wishing to access those files to which the blanket restriction applied were to request access directly from the Department of Aboriginal Affairs and Reconciliation.
The third affidavit filed in relation to this application was of Andrew Steven Wilson, employed at State Records as Aboriginal Project Officer since 1989, sworn 18 November 2005. Mr Wilson also described the restrictions that were in place over the relevant files at State Records and the procedure to be followed by those attempting to gain access.
Factual Background
It is convenient to recite and adopt for the purposes of these reasons the “background” outlined in Trevorrow (No 2):[9]
[9] Trevorrow v State of South Australia (No 2) [2005] SASC 369 at [33]-[37], [40]-[41].
The following factual history was not the subject of any real dispute on this interlocutory hearing. I have drawn on the material before me as providing strong evidence of each of the matters that follow.
From early 1994, the plaintiff’s solicitor, Ms Richardson, made numerous written requests to various government departments for information regarding the removal of the plaintiff from his family. On 20 December 1995, Ms Richardson wrote to the chief executive officer of the Department of State Aboriginal Affairs, Mr Rathman, advising that she had been instructed by the plaintiff in relation to the question of his separation from his family, and that she was assisting him to prepare information to be submitted to the National Inquiry. The letter was in the following terms:
Thank you for your letter of 24 November 1995
I note that you have advised that formal procedures for access to records held by State Records have been developed and that you wish further information from me on the nature of my investigations and the purpose of the information copied from the archives.
Mr Trevorrow has instructed me to act on his behalf in relation to the question of his separation as a child from his family and we are in the process of assisting him to prepare information to be submitted to the National Inquiry.
I understand that State Records hold volumes of minutes of the Aboriginal Protection Board for the years 1940-45, 1954/57 and 1960/63. I believe the relevant years to which [our] request relates would be 1957-1960. I would be pleased if you could advise me whether or not such records exist and if not the reason that they are not available.
I understand that there are however volumes of correspondence which relate to the Minutes of the Board which are held by State Records for the years 1866/1968. I would be pleased if you would grant access to these records, which I believe are entitled “Aboriginal Affairs Correspondence File (letters received) 1866-1968”, and permission to copy documents relevant to Mr Trevorrow.
Lastly I would be pleased if you could provide me with a copy of your guidelines for access to these records in order to facilitate the process in the future.
Mr Rathman, the chief executive officer, responded by letter on 17 January 1996 in the following terms:
I refer to your letter dated 20 December 1995, regarding Bruce Trevorrow/Lampard – Access to Files.
The volumes of minutes of the Aboriginal Protection Board held by State Records relating to the years 1957 – 1960 which you have requested access [to] do not exist.
However your second request for access to the volumes of correspondence which relate to the Minutes of the Board entitled ‘Aboriginal Affairs Correspondence File (letters received) 1866-1968’, permission is given on the condition that:
1.no documents or material are removed or altered by the SA Museum in the process of your investigations; and
2.no information regarding the names of persons alive or deceased should be disclosed or used in documentation without permission of the person who is named or an authorised person able to give such permission; and
3.if copies of documents are required, Mr Andrew Wilson, Aboriginal Project Officer of State Records will copy the documents and you will be charged accordingly for the copies.
By this letter, Mr Rathman granted conditional permission to the plaintiff through his agent to access and obtain copies of documents held by State Records.
On various occasions during 1996, Ms Richardson attended at State Records and, in accordance with the authority provided by Mr Rathman, examined a number of Aborigines Department files, including files relating to: foster parents for Aboriginal children; applications and related correspondence; licensed foster mothers to Aboriginal children; the Aborigines Protection Board – Maintenance of Aboriginal Children – approval for expenditure; Crown Law opinions; the power of the Aborigines Protection Board to remove children from parents; and a Draft Bill for amending the Aborigines Act 1934-1939. Copies of numerous pages from these files were made available to Ms Richardson upon her request.
…
Dr Raynes gave evidence that during the period 2000 to 2002 he was contracted to work as a Project Officer, Aboriginal Access at State Records. In November 2001, he sought and was granted the right to access and copy relevant information for the records of the Aborigines Department and Aborigines Protection Board held at State Records. He wanted this access for the purpose of his private research into the administration of the Aborigines Department under William Penhall, Chief Protector and Secretary of the Aborigines Protection Board from 1939 to 1953. Dr Raynes undertook the research in furtherance of his academic and professional career as a writer and historian.
It was during the course of this research that Dr Raynes obtained access to documents 19 and 20 in the above-mentioned list. On 18 March 2005, Dr Raynes published an article in the Adelaide Review entitled: “Did SA Aborigines’ last Chief Protector go beyond the law?” in which he referred to those documents and their contents.
With respect to the present applications, I proceed on the same basis as in Trevorrow (No 2) and as set out therein in the following terms:[10]
[10] Trevorrow v State of South Australia (No 2) [2005] SASC 369 at [42].
For the purposes of this interlocutory proceeding, and this proceeding only, I proceed on the basis that the material before the Court is strong evidence of the following:
-The letter from the plaintiff’s solicitor of 20 December 1995 represented a straightforward request for access to documentation. The purpose of the request was twofold: to gain information relevant to Ms Richardson’s inquiries concerning the separation of the plaintiff from his family when he was a child; and to assist the plaintiff in the preparation of information to be submitted to a national inquiry into the separation of Aboriginal children from their families.
-The request was handled by internal departmental officers who considered the request and prepared a response for the chief executive officer, Mr Rathman. Mr Rathman, by his response, granted conditional permission to the plaintiff’s solicitor to access and obtain copies of the documents.
-The solicitor’s letter would have put the reasonable reader on notice that the documents disclosed would be used in regard to advising the plaintiff generally about his separation and that would include any possible claims that he might have against persons involved. It would further have alerted the reasonable reader to the possibility that any documents provided would make their way to the National Inquiry and be available on publication to the public generally.
-The documents, once obtained by the plaintiff’s solicitor, were made available to the plaintiff for his consideration and were later used in the preparation of his claim in the present proceedings. To a significant degree, the plaintiff has acted on the documents in formulating a number of his claims and in the preparation and content of his pleading.
-Relevant portions of the documents were also accessed by a researcher, Dr Raynes, and used by him again in publications available generally to the public.
-The contents of part of the privileged documentation has also found its way into a weekly paper published generally to the public in South Australia, known as the Adelaide Review.
-There has come a time when the State has decided to assert legal professional privilege in respect of the documentation released as well as other documentation. Much of that other documentation has been generally available to the public through files, but apparently not accessed by the public. Insofar as that other documentation is relevant to these proceedings, it has been either disclosed with a masking of what is said to be privileged or, alternatively, not disclosed at all with a claim to privilege over the entire document.
Application for Equitable Relief
As earlier observed, this application seeks to invoke the equitable doctrine of confidential communication. The State’s case is that aside from the question as to whether legal professional privilege arises, the disclosed documents remain confidential and an injunction is necessary to prevent further breach of this confidentiality. The nature of the claimed confidentiality broadly falls within the category of State secrets.
The State submitted that it is entitled to injunctive relief once it demonstrates that the disclosed documents are confidential in character. It was said that the State did not have to prove that it would suffer any detriment before injunctive relief could be granted.
In Coco v AN Clark (Engineers) Ltd,[11] Megarry J traced the history of the equitable jurisdiction that arises in cases of breach of confidence. He noted its ancient origins and that the confidence was to be characterised as the “cousin of trust”.[12]
[11] Coco v AN Clark (Engineers) Ltd [1969] RPC 41.
[12] Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 46.
In Coco, Megarry J had to consider the circumstances that gave rise to a claim in the application of the pure equitable doctrine of confidence unaffected by contract. In this respect, the present application is advanced on a similar basis. Megarry J also noted that the application in Coco was advanced in “the realm of commerce”. In the present proceedings the application is advanced in relation to disclosed governmental documents. The significance of this distinction will be discussed later.
Megarry J observed that an obligation of confidence may exist absent contract. He added:[13]
[13] Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 47.
Where there is no contract, however, the question must be one of what it is that suffices to bring the obligation into being; and there is a further question of what amounts to breach of that obligation.
Megarry J then went on to consider the three elements normally required to be established, apart from contract, if a case of breach of confidence is to succeed, he said:[14]
First, the information itself, ... must “have the necessary quality of confidence about it”. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.
Megarry J then discussed each of these requirements in turn:[15]
First, the information must be of a confidential nature. As Lord Greene said in the Saltman case at 215, “something which is public property and public knowledge” cannot per se provide any foundation for proceedings for breach of confidence. However confidential the circumstances of communication, there can be no breach of confidence in revealing to others something which is already common knowledge. But this must not be taken too far. Something that has been constructed solely from materials in the public domain may possess the necessary quality of confidentiality: for something new and confidential may have been brought into being by the application of the skill and ingenuity of the human brain. ...
I must also return to a further point, namely, that where confidential information is communicated in circumstances of confidence the obligation thus created endures, perhaps in a modified form, even after all the information has been published or is ascertainable by the public; for the recipient must not use the communication as a spring-board. ...
The second requirement is that the information must have been communicated in circumstances importing an obligation of confidence. However secret and confidential the information, there can be no binding obligation of confidence if that information is blurted out in public or is communicated in other circumstances which negative any duty of holding it confidential. From the authorities cited to me, I have not been able to derive any very precise idea of what test is to be applied in determining whether the circumstances import an obligation of confidence. ... In the absence of such guides or tests he then in effect concluded that part of the communications there in question would on any reasonable test emerge as confidential. It may be that that hard-worked creature, the reasonable man, may be pressed into service once more; for I do not see why he should not labour in equity as well as at law. It seems to me that if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose upon him the equitable obligation of confidence. ... I merely add that I doubt whether equity would intervene unless the circumstances are of sufficient gravity; equity ought not to be invoked merely to protect trivial tittle-tattle, however confidential.
Thirdly, there must be an unauthorised use of the information to the detriment of the person communicating it. Some of the statements of principle in the cases omit any mention of detriment; other include it. At first sight, it seems that detriment ought to be present if equity is to be induced to intervene; but I can conceive of cases where a plaintiff might have substantial motives for seeking the aid of equity and yet suffer nothing which could fairly be called detriment to him as when the confidential information shows him in a favourable light but gravely injures some relation or friend of his whom he wishes to protect. The point does not arise for decision in this case, for detriment to the plaintiff plainly exists.
[14] Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 47.
[15] Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 47-48.
In Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd,[16] the Court of Appeal in New South Wales, comprised of Street CJ, Kirby P and McHugh JA determined an appeal from a decision of a single Judge granting an injunction restraining the publication of a book that was said to contain information of a confidential nature, the publication of which would be detrimental to the national interest. In the course of his reasons, McHugh JA observed:[17]
Courts of Equity will protect the confidentiality of information imparted in confidence by governments: Attorney-General (UK) v Jonathan Cape Ltd [1976] QB 752; Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 32 ALR 485; 147 CLR 39 at 50-2. The doors of Chancery are not closed to governments or their agencies. … But the relationship between the modern State and its citizens is so different in kind from that which exists between private citizens that rules worked out to govern the contractual, property, commercial and private confidences of citizens are not fully applicable where the plaintiff is a government or one of its agencies. Private citizens are entitled to protect or further their own interests, no matter how selfish they are in doing so. Consequently, the publication of confidential information which is detrimental to the private interest of a citizen is a legitimate concern of a Court of Equity. But governments act, or at all events are constitutionally required to act, in the public interest. Information is held, received and imparted by governments, their departments and agencies to further the public interest. Public and not private interest, therefore, must be the criterion by which equity determines whether it will protect information which a government or governmental body claims is confidential.
[16] Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 75 ALR 353.
[17] Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 75 ALR 353 at 454.
These remarks of McHugh JA echo the approach adopted by Mason J in Commonwealth v John Fairfax & Sons Limited,[18] where the High Court considered an application for an injunction to restrain or to protect the confidentiality of governmental records. Fairfax concerned an application for an injunction to restrain the publishers of The Age and The Sydney Morning Herald from publishing excerpts from a book entitled, “Documents on Australian Defence and Foreign Policy 1968-1975” and restraining the distribution of that book by Angus & Robertson Booksellers.
[18] Commonwealth of Australia v John Fairfax & Sons Limited and Others (1980) 147 CLR 39.
Mason J identified the issue for determination as follows:[19]
The plaintiff says that this case falls neatly within a fundamental principle of Equity. The principle is that the court will “restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged” (Lord Ashburton v Pape, per Swinfen Eady L.J.). In conformity with this principle, employees who had access to confidential information in the possession of their employers have been restrained from divulging information to third parties in breach of duty and, if they have already divulged the information, the third parties themselves have been restrained from making disclosure or making use of the information (Tipping v Clarke; Lamb v Evans).
[19] Commonwealth of Australia v John Fairfax & Sons Limited and Others (1980) 147 CLR 39 at 50.
Mason J proceeded on the basis that it was probable that a public servant having access to the documents in breach of duty and contrary to security classifications made copies available to an intermediary who handed them to the defendant. Mason J referred to the observations of Megarry J in Coco, and stated:[20]
However, the plaintiff must show, not only that the information is confidential in quality and that it was imparted so as to import an obligation of confidence, but also that there will be “an unauthorised use of that information to the detriment of the party communicating it” (Coco v A.N. Clark (Engineers) Ltd.). The question then, when the executive government seeks the protection given by equity, is: What detriment does it need to show?
His Honour then continued:[21]
The equitable principle has been fashioned to protect the personal, private and proprietary interests of the citizen, not to protect the very different interests of the executive government. It acts, or is supposed to act, not according to standards of private interest, but in the public interest. This is not to say that equity will not protect information in the hands of the government, but it is to say that when equity protects government information it will look at the matter through different spectacles.
It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action.
Accordingly, the court will determine the government’s claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected.
The court will not prevent the publication of information which merely throws light on the past workings of government, even if it be not public property, so long as it does not prejudice the community in other respects. Then disclosure will itself serve the public interest in keeping the community informed and in promoting discussion of public affairs. If, however, it appears that disclosure will be inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained. There will be cases in which the conflicting considerations will be finely balanced, where it is difficult to decide whether the public’s interest in knowing and in expressing its opinion, outweighs the need to protect confidentiality.
[20] Commonwealth of Australia v John Fairfax & Sons Limited and Others (1980) 147 CLR 39 at 51.
[21] Commonwealth of Australia v John Fairfax & Sons Limited and Others (1980) 147 CLR 39 at 51-52.

In my view, no obligation to respect confidence arose in the present case in regard to the documents that have been disclosed to the plaintiff.
Generally, the intention to impose confidentiality is to be inferred from the words or conduct of the confider at the time the information was passed. The circumstances in which the information passes may be instructive in determining whether the information was imparted in confidence.
In the present case the solicitors for the plaintiff made a request to the Department of Aboriginal Affairs for access to governmental records. That request was considered and particulars sought. Particulars were provided supporting the purpose of the request. Departmental advice was provided to the Head of the Department who then specifically approved access to the governmental records and on request the provision of copies. The material was perused; copies were requested, paid for and provided.
At no stage during this process did the State expressly or impliedly indicate that the documents were imparted in confidence. This omission is even more telling when one is reminded that the documents were given to solicitors for the plaintiff. The State should reasonably have known that the plaintiff would be interested in the disclosed documents for the purpose at the very least of receiving legal advice concerning his rights.
The disclosed documents remained with the plaintiff without objection for some considerable time. They were used in the pleading of the statement of claim and their contents have been pleaded into issue. Some years passed before any claim to privilege was raised. That claim was apparently first raised in a defence when filed on 19 June 2001.
The disclosed documents relate to the provision of legal advice to government departments and in particular, some of the disclosed documents came before Cabinet. However, the disclosed documents, more than forty years later, were made available to the plaintiff’s solicitors without any condition as to confidence. To the contrary, the evidence would suggest that there was a deliberate disclosure of the documents by the State. The circumstances do not allow an inference to be drawn that there was any condition of confidentiality attached to the disclosure. In these circumstances, no obligation of confidence arose in respect to the contents of the disclosed documents. For this reason the claim for injunctive relief based on the doctrine of equitable confidence should be rejected.
On the approach of Mason J and McHugh JA, confidentiality does not attach to the disputed documents that have been disclosed, either in whole or in part, to the plaintiff. Nor, for reasons to be discussed later, does the protection of public interest immunity arise in respect of these documents.
Two further matters
Detriment
The State submitted that it did not need to show any detriment before the injunctive relief could be granted. Counsel for the State relied on the observations of academic writings including the following reference from Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies:[22]
Megarry J [in Coco v A N Clark (Engineers) Ltd] questioned whether “detriment” was essential, as Lord Denning MR later observed in Dunford & Elliot Ltd v Johnstone & Firth Brown Ltd [1978] FSR 143 at 148. Unhappily, this escaped attention in Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 50-1; 32 ALR 485 at 491-2, and detriment as an essential element in equity was put forward as having Megarry J’s imprimatur.
...
In Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307; 115 ALR 112 Drummond J questioned the need to establish detriment, and it has now been held at the appellate level in New South Wales and South Australia that proof of detriment is not required: National Roads and Motorists’ Association Ltd v Geeson (2001) 40 ACSR 1 at [58]; ... NP Generations Pty Ltd v Feneley (2001) 80 SASR 151 at [21]…
The formulation by Megarry J in Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 47-8… will suffice as a working statement of the equitable principle, subject to two caveats. The first concerns the inclusion of eavesdroppers and the like … and the second the inessentiality of detriment in any specific sense of economic loss. The formulation, so qualified, has been accepted in the Federal Court … and in Coulthard v State of South Australia (1995) 63 SASR 531 at 546-7. The latter two cases also show that equity may impose an obligation of confidence upon a defendant having regard not only to what the defendant knew but also to what he ought to have known in all the relevant circumstances.
But the formulation by Megarry J contains two notions which, while quite distinct, have not always been seen to be so in the writing, judicial and scholarly, on the subject. It is one thing to confide information on the understanding that it is to be treated on a limited basis by the confidant even though he might have ascertained it by other means; it is a further step to require of the information that it previously have been secret and that it then have been confided on the footing that the confidant would retain the secrecy. This was the point of Lord Greene MR’s observation in Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 … that not all objects of confidential disclosure will warrant equitable protection. … Certainly, this further step is the doctrinal justification for the alleged principle often asserted in the cases, that the information must possess an “objective” character, namely that it be not “public” and that it possess at least some degree of “secrecy”. A corollary is that the “information” in question must be susceptible of sufficiently explicit description as to found an entitlement to injunctive relief.
[22] Meagher, Heydon and Leeming, Meagher Gummow & Lehane’s Equity Doctrines & Remedies (4^th ed, 2002) at [41-050]-[41-055].
I would follow and apply the observations of Mason J in Fairfax as to detriment in determining the present application. However, it is to be observed that in refusing injunctive relief, I have not had need to have regard to the consideration of detriment.
In the circumstances, if the documents had been imparted in confidence, I would infer a detriment to the State in regard to their proposed use. That detriment is the loss, through further dissemination, of the confidence attaching to advice from a senior law officer to the government department. However, this detriment would need to be weighed against any detriment suffered by the plaintiff through not being able to make use of the documents provided to his solicitor, particularly in circumstances where they have been pleaded into issue in these proceedings. Also to be weighed is the public interest in the court having access to all relevant information in deciding inter partes litigation and the public interest in the proper workings of government identified by Mason J in Fairfax. Although I have not had to reach a conclusion on this issue, were I to do so, I would conclude that submissions concerning detriment would weigh against the grant of any injunctive relief.
The “iniquity rule”
The other issue relates to the so-called “iniquity rule”. The origins and development of the rule were analysed by Gummow J in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic).[23] Gummow J said that the starting point for any discussion of the rule is Gartside v Outram.[24] There, Wood V-C discussed the exception to the general obligation of confidence in these terms: [25]
[T]here is no confidence as to the disclosure of iniquity. You cannot make me the confidant of a crime or a fraud, and be entitled to close up my lips upon any secret which you have the audacity to disclose to me relating to any fraudulent intention on your part: such a confidence cannot exist.
[23] Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434.
[24] Gartside v Outram (1857) 26 LJ Ch 113.
[25] Gartside v Outram (1857) 26 LJ Ch 113 at 114.
In Corrs, Gummow J recognised that the public interest still has a part to play in determining whether the information in question had the necessary quality of confidentiality. His Honour observed:[26]
That principle, [the iniquity rule] in my view, is no wider than one that information will lack the necessary attribute of confidence if the subject-matter is the existence or real likelihood of the existence of an iniquity in the sense of a crime, civil wrong or serious misdeed of public importance, and the confidence is relied upon to prevent disclosure to a third party with a real and direct interest in redressing such crime, wrong or misdeed.
...
It is no great step to say that information as to crimes, wrongs and misdeeds, in the sense I have described, lacks what Lord Greene MR called 'the necessary quality of confidence'.
...
There is authority which indicates that this defence [unclean hands] is not so confined and it extends to cases where the plaintiff's misconduct has operated to the prejudice of third parties, especially where some general public interest is involved.
[26] Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 456-457.
In Fairfax, Mason J considered that the iniquity rule:
... makes legitimate the publication of confidential information or material in which copyright subsists so as to protect the community from destruction, damage or harm.[27]
[27] Commonwealth of Australia v John Fairfax & Sons Limited and Others (1980) 147 CLR 39 at 57.
In Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd, Kirby P considered the iniquity rule as being an instance of the wider category of the public interest in disclosure:[28]
The respondents also suggested that a defence was available to them on the basis that there is 'no equity in inequity'. I am unimpressed. First, I agree with what Wood VC said long ago in Gartside v Outram, supra. Like him, I do not look upon the word 'inequity' as expressing a principle. It is simply an instance of the wider category of the public interest in disclosure which may sometimes, even if rarely, outweigh the public interest in confidentiality and secrecy: cf Gibbs CJ in A v Hayden (1984) 156 CLR 532 at 545 et seq. The special consideration to be taken into account where suppression is sought by a governmental plaintiff and where the matters relate to issues of general public concern was stressed in Fairfax … I prefer to deal with this publication by reference to a general principle of 'public interest' rather than by reliance upon a narrower defence, developed for special cases, to justify the publication of particular iniquities.
[28] Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 75 ALR 353 at 434.
It is to be observed that in the present matter, the same issues of public interest are said to arise whether the iniquity rule is applied or whether the relevant public interests are balanced.[29]
[29] Sullivan v Sclanders [2000] SASC 273.
On the plaintiff’s case, the relevant evidentiary material contained in the disclosed documents establishes that advice was being given to the Aboriginal Protection Board and others, that in the opinion of the Crown Solicitor of the day the Aboriginal Protection Board did not have power to remove Aboriginal children from their parents except in accordance with particular procedures.
Furthermore, the plaintiff’s case is that the disclosed documents make it apparent that the Board was aware, that by removing Aboriginal children from their families in the plaintiff’s circumstances, it was acting contrary to that legal advice and in the absence of power. As such, it is claimed that the disclosed documents are relevant to the plaintiff’s claim that the Board breached its fiduciary duty with respect to the plaintiff and that its actions constitute a misfeasance of public office. A review of the disclosed documents suggests that the plaintiff’s case is arguable.
The State’s case is that the Board did possess the relevant power to act with respect to the plaintiff in the matter that it did. The State submits that the Board at all material times acted according to and within the law. The question of the legality of the Board’s actions is one of the issues to be determined at the conclusion of the trial of the present proceedings.
In my view, the plaintiff has, on the material advanced thus far, established an arguable case in regard to iniquity. It is not possible or appropriate on the present state of the evidence and submissions to reach any further or final conclusion on this issue. Although I have reached my earlier referred to conclusions without reference to the “iniquity” submission, if I were to have regard to that issue it would weigh against the grant of any injunctive relief.
Public Interest Immunity
The doctrine of public interest immunity has its basis in the principle that a court will not allow disclosure of information that would harm the public interest.
In deciding whether the disclosure of information would harm the public interest, the court weighs competing considerations. The harm that would be caused to the public interest by disclosure of the information must be weighed against the public interest in the proper administration of justice, including that relevant information should be put before a court. In Sankey v Whitlam Gibbs ACJ observed:[30]
In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice.
[30] Sankey v Whitlam (1978) 142 CLR 1 at 43.
The following factors are relevant in weighing up competing considerations of public interest:
-The relevance and importance of the information contained in the documents to the issues before the court. As Mason J observed in Australian National Airlines Commission v Commonwealth,:[31]
[I]t is central to our conception of the administration of justice that documents relevant and material to the issues arising in litigation should not be withheld from the parties and that each party enjoys as an incident of his right to a fair trial the right to present as part of his case all the relevant and material evidence which supports or tends to support that case. The existence of Crown privilege as an acknowledged exception should not be seen as a reason for diminishing the force or the importance of this conception of the administration of justice, but rather as embracing a group of “exceptional cases” in which the public interest in the proper administration of justice has been outweighed by a superior public interest of a self-evident and overwhelming kind.
-That part of the material is already in the public domain as it has been published in a book. It is said that it follows that there cannot be said to be, with respect to that material, any confidential interest to protect.
-Time has elapsed since the creation of the documents to weaken the harm, if any, that they could have on the public interest. In Sankey v Whitlam, Gibbs ACJ observed:[32]
The fundamental principle is that documents may be withheld from disclosure only if, and to the extent, that the public interest renders it necessary. ... It is impossible to accept that the public interest requires that all state papers should be kept secret for ever, or until they are only of historical interest. In some cases the legitimate need for secrecy will have ceased to exist after a short time has elapsed ... . In other cases it may be necessary to maintain secrecy for many years.
-The disclosure of the information will not result in the government losing a source of information.[33]
[31] Australian National Airlines Commission v Commonwealth (1975) 132 CLR 582 at 593.
[32] Sankey v Whitlam (1978) 142 CLR 1 at 41-42.
[33] Alfred Crompton Amusement Machines Ltd v Customs and Excise Cmrs (No 2) [1974] AC 405 at 428.
The submission that the documents the subject of this application are protected by public interest immunity should be rejected.
Conclusion
The claim of confidentiality is rejected. Equitable and other relief is refused. The objection to the tender of the disputed documents is overruled.