HOSPITALS CONTRIBUTION FUND OF AUSTRALIA LIMITED v JOHN FAIRFAX AND SONS LIMITED [1988] NSWCA 70

HOSPITALS CONTRIBUTION FUND OF AUSTRALIA LIMITED v JOHN FAIRFAX & SONS LIMITED

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MCHUGH and CLARKE JJA 20 September 1988, 21 September 1988

[1988] NSWCA 70

KEY WORDS CONTEMPT — CONFIDENTIAL INFORMATION — FAIR ACCURATE REPORT CONFIDENTIAL INFORMATION — summons to restrain breach of confidence — undertaking not to publish pending suit — party bound released from undertaking in order to publish fair and accurate report of court proceedings in which reference made to document sought to be protected — whether such a report would constitute contempt of court on ground that it would frustrate or render nugatory the pending proceedings to restrain publication. CONTEMPT — a fair and accurate report of court proceedings published in good faith is not a contempt of court — Hinch v Attorney General (Vic.) (1987) 61 ALJR 556 discussed and applied. ORDERS Leave to appeal is refused. The summons is dismissed with costs. The injunction is dissolved.

Samuels JA The claimant is a medical and hospital benefits fund which deals with over 22000 claims each week and has assets exceeding $110 million. In late 1987 a company called B W Walker Actuarial Services Pty Limited ("Walker") prepared a report for the claimant headed "1986/87 Underwriting Experience" ("the Walker Report"). It is alleged by the claimant that this report contained errors and other material which if published could damage its professional reputation and financial standing. In 1987 the claimant commenced proceedings against Walker and the opponent and sought and obtained orders that all copies of the report be returned to the claimant or otherwise accounted for.

On 9 March 1988 Mr Adrian Deamer, the opponent's legal manager, swore an affidavit to the effect that the opponent had no copies of the report in its possession; and on 10 March the opponent was dismissed from the proceedings.