HABIB v. ABC & ANOR [2005] NSWSC 79

New South Wales Supreme Court

CITATION : HABIB v. ABC & ANOR [2005] NSWSC 79

HEARING DATE(S) : Wednesday 16 February 2005

JUDGMENT DATE : 16 February 2005

JURISDICTION : Common Law

JUDGMENT OF : Greg James J at 1

DECISION : I decline to grant the application. I discharge each of the defendants from their undertakings. I dissolve the previous suppression orders. I order the plaintiff to pay the defendants' costs. The plaintiff is to file in court a summons seeking the orders now applied for. The parties are to file short minutes providing for the formal disposition of the matter.

CATCHWORDS : Urgent application for interlocutory relief against media to restrain publication of unauthorised disclosure of plaintiff's medical condition by his psychiatrist - no inducement by media - insufficient prospect of any real damage.

CASES CITED : Australian Broadcasting Corporation v. Leanah Game Meats Pty. Limited (2001) 208 CLR 199

PARTIES : HABIB, Mamdouh v. AUSTRALIAN BROADCASTING CORPORATION & ANOR

FILE NUMBER(S) : SC No. 10542 of 2005

Plaintiff: C.J. Dibb COUNSEL : First Defendant: T. Blackburn, SC./A Dawson Second Defendant: S. Rares, SC.

Plaintiff: Hopper & Co. (Stephen Hopper) SOLICITORS : First Defendant: ABC Legal (Stephen Collins) Second Defendant: Freehills (Leanne Norman)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GREG JAMES, J.

WEDNESDAY 16 FEBRUARY 2005

No. 10542 of 2005

MAMDOUH HABIB v. AUSTRALIAN BROADCASTING CORPORATION & JOHN FAIRFAX & SONS

JUDGMENT

1 HIS HONOUR: It is now almost 6.50pm. At 7.30pm tonight, so the evidence discloses, the Australian Broadcasting Corporation proposes apparently to publish a television programme called The 7.30 Report in which, so the affidavit which has been filed in court of Mr. Hopper of 16 February 2005 deposes, there will be an interview with Dr., also described as, Professor Christopher Tennant, a psychiatrist, the plaintiff's doctor. That interview will apparently elicit from Professor Tennant his opinion that the plaintiff Mamdouh Habib showed evidence of torture such as post traumatic stress disorder, anxiety and physical symptoms such as bruising that is still visible, and disclosed other psychological and physical symptoms of having been tortured. 2 The affidavit to which I refer has been filed in court as a matter of urgency. The application was made to me commencing at about six o'clock this evening. The affidavit was faxed to my chambers some considerable time after that. Notice was given to the ABC and John Fairfax & Sons that injunctions would be sought to restrain the publication of the television program and any publication by the Sydney Morning Herald. 3 The affidavit asserts that an approach to the Herald was referred to by Professor Tennant in a conversation with the plaintiff's solicitor in which he said that he had already completed an interview with The 7.30 Report and proposed that the "medical evidence that he has been tortured" should be disclosed to and "run" in the Herald. 4 The affidavit refers to Professor Tennant as being a defendant but the proceedings have been brought before me in a way not inappropriate to an application of such urgency but without originating process. 5 Mr. Dibb, who appears for the plaintiff, sought orders not against Professor Tennant but against the ABC and John Fairfax & Sons to restrain the publication. Professor Tennant has been given no notice and has not appeared. 6 Since no originating process has been filed, I required of Mr. Dibb's instructing solicitor, Mr. Hopper, the usual undertaking required of a party moving in such a way, that that party will take out and file in the Court within 48 hours a summons seeking the orders for which the party has moved and serve it on the defendants. Mr. Dibb, on behalf of his instructing solicitor, Mr. Hopper, who acts for the plaintiff, gives that undertaking. 7 The defendants who have appeared in response to the application, the ABC, by Mr. Blackburn of senior counsel and Mr. Dawson, and John Fairfax by Mr. Rares of senior counsel have, of necessity, had to obtain instructions on the hop as the matter progressed. They took no objection to the contents of the affidavit but have opposed the making of any orders. They gave certain undertakings to permit the reading of the affidavit. 8 On the hearing, Mr. Dibb argued that the interview Professor Tennant gave was in clear breach of the doctor and patient relationship, since the interview was unauthorised, indeed that his client had not authorised any publication by Professor Tennant of his medical opinions concerning the plaintiff. 9 To determine this application it was necessary for me to have regard to what the affidavit discloses concerning what the relationship was and what disclosure is said to have been made. To avoid defeating the purpose of the application by disclosing the matter, the publication of which it is sought to suppress, I invited submissions from counsel. 10 Mr. Rares has accepted that an order under s 80 might be made suppressing publication of the material in the affidavit pending further order to enable the application to proceed without effectively destroying its subject matter. 11 Mr. Blackburn was unable to accede to such a proposition but had instructions not to divulge the contents of the affidavit served upon him otherwise than for the purposes of these proceedings and not to publish it until further order. 12 The application is on the basis that the defendants, the ABC and John Fairfax, induced the asserted breach by Dr. Tennant of the doctor/patient relationship such as to breach the confidentiality implied in that relationship of information as to the present state of the plaintiff's health. 13 But the evidence does not go so far as to show that inducement. There is evidence that the defendants are minded to publish material which it appears Dr. Tennant had already volunteered to them. Indeed, counsel for the plaintiff, in compliance with his duty as counsel on such an application, drew to my attention that Professor Tennant apparently had said that he had gone with this information to the media rather than that they had sought the information from him. That would not establish any prospect of proving any inducement, even to the limited extent necessary on an interlocutory application and even bearing in mind that if the relief is not granted, the harm sought to be avoided must be occasioned. The harm that it is said would be occasioned to the plaintiff is in respect to an opportunity to pursue "future potential legal action". It is a concern of the plaintiff's solicitor that a party to that future potential legal proceedings might act illegally by withholding or destroying evidence in order to impede the plaintiff's right of recovery. It is further put that a public perception might be created adverse to his client and that there might be some damage to his client's credit in proceedings before the Administrative Appeals Tribunal. 14 When the matter was argued I drew counsel's attention to the fact that much had been seen in the press concerning allegations that his client had been tortured and had asserted that he had been tortured. 15 Mr. Rares sought to put on evidence that that fact at least, if not more, was already in the public domain and reported in the media of the world. 16 This application has had to proceed very quickly. I did not delay it so there might be formal proof but advised the parties that I was prepared to take the existence of that matter in the public domain into account. As to that matter, I do not see that the publication of Dr Tennant's opinion as set out in that affidavit could in any way damage the credibility of the plaintiff but rather I would regard it as likely to confirm his credibility. Further, I do not see that the publication of Dr Tennant's opinion is likely to create an adverse perception to the plaintiff but rather that it might operate to create a perception in favour of his credibility in the public eye generally on that issue. Also, I see no basis to reasonably apprehend misconduct in litigation because of the publication. 17 I conclude that a case has been made out in my view, sufficient at an interlocutory stage, to persuade me, applying the necessary tests, of the breach of the terms of medical retainer and of the obligation of confidentiality. However, no case has been made out as far as I can see against the defendants that they induced that breach nor do I see, having regard to the principles referred to by the High Court in Australian Broadcasting Corporation v. Leanah Game Meats Pty. Limited (2001) 208 CLR 199 that an interlocutory injunction should be granted to restrain the defendants from publishing material which has been brought to them in the way I have described. Nor do I see that there is any real risk of damage to the plaintiff or at least of any damage which cannot be met by an award of damages in an appropriate action or actions that might be brought against appropriate defendants otherwise. 18 Taking all those matters into account, I decline to grant the application as I presently have no summons to dismiss. I indicate I will make appropriate orders in relation to the summons once it is filed. The parties can bring in short minutes sufficient of the necessary formal orders. 19 I discharge each of the defendants from the undertakings that they gave restricting from publication the material given in evidence. 20 I dissolve the suppression orders I made under s.80. 21 Costs have been sought by the defendants against the unsuccessful plaintiff. It has been submitted on his behalf that he is entitled to be indignant at the breach of confidentiality which I found established, at least to the extent necessary on an interlocutory application, but Professor Tennant is not a party. It has also been submitted he is entitled to feel indignant at the press and the media being minded to publish material which they might well have appreciated was obtained in breach of confidentiality. 22 The evidence does not persuade me that they would so have appreciated, indeed, it was an open question as to whether they would have appreciated that Professor Tennant was unauthorised to publish the material. Although the matters that Mr. Dibb raises on the plaintiff's behalf might attract moral sympathy, they are not such as to displace the operation of the ordinary rule governing the exercise of the discretion to award costs in these circumstances. The defendants are innocent of any inducing of the breach. As to whatever damage might have been occasioned by the publication, if any, I was not persuaded it was of such an extent or might be prejudicial or irremediable so that urgent relief should go in the circumstances of this case. The plaintiff has lost on a number of grounds. In all the circumstances, there is nothing been disclosed to me why the plaintiff should not have to pay the costs occasioned by the unsuccessful application. I order the plaintiff to pay the defendants costs. **********