New South Wales Supreme Court CITATION : British American Tobacco Australia Services Ltd v John Fairfax Publications & anor [2006] NSWSC 1197 HEARING DATE(S) : 2 November 2006 JURISDICTION : Equity Division Duty List JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 11/02/2006 DECISION : Interlocutory injunction restraining publication and dissemination until trial granted CATCHWORDS : EQUITY – Confidential Information – documents allegedly leaked to press by employee of plaintiffs' former solicitors – whether seriously arguable case to restrain newspaper and journalist from publishing or disseminating information therein – where information may include criminal offence - balance of convenience CASES CITED : A v Hayden (1984) 156 CLR 532 Brown v Brooks (NSWSC, McLelland J, 18 August 1988) British American Tobacco Australia Services Limited (plaintiff 5611/06) PARTIES : British American Tobacco Australia Limited (plaintiff 5612/06) John Fairfax Pubications (first defendant) The Age Company Limited (second defendant) FILE NUMBER(S) : SC 5611/06; 5612/06 Mr G Reynolds SC w Mr K Smark (plaintiff 5611/06) COUNSEL : Mr R Potter (plaintiff 5612/06) R Glasson (defendant) Corrs Chambers Westgarth (plaintiff 5611/06) SOLICITORS : Baker & McKenzie (plaintiff 5612/06) Banki Haddock Fiora (defendant) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY LIST BRERETON J Thursday, 2 November 2006 5611/06 British American Tobacco Australia Services Limited v John Fairfax Publications Pty Limited 5612/06 British American Tobacco Australia v John Fairfax Publications Pty Limited JUDGMENT (Ex tempore) 1 HIS HONOUR: I order that the two proceedings in which I have granted leave to file a summons this evening be heard together, and that evidence in one be evidence in the other. 2 It appears that following events which are reasonably well-known concerning proceedings brought by Rolah McCabe against British American Tobacco Australia Limited and British American Tobacco Australia Limited in the Supreme Court of Victoria, and comments which were made by Eames J in the course of those proceedings concerning the conduct of the solicitors who acted for BATAS in them, the firm of solicitors in question, Clayton Utz, conducted an internal inquiry into the conduct of those solicitors. As a result of that inquiry, reports to the board of that firm were prepared. At some stage, it seems that those reports, or at least parts of them, have found their way into the hands of journalists employed by the defendant, John Fairfax Publications Pty Limited, and information derived from those reports was published in The Sunday Age on 29 October 2006 and in The Age on 30 October 2006. 3 Although the investigation the subject of the reports appears, so far as the evidence currently goes, to have been conducted at the initiative and for the purposes of Clayton Utz, it is at least arguable that the reports use and disclose the strategy and tactics, and/or information related to the strategy and tactics, employed by BATAS in the underlying McCabe litigation in the Supreme Court of Victoria, which information is arguably confidential to the plaintiff British American Tobacco Australia Services Limited and/or to the other plaintiff British American Tobacco Australia Limited. The reports pertain to the manner in which litigation was conducted on behalf of the plaintiffs, and it is sufficiently arguable, for the purposes of an interim application of this type, that information contained in it is the subject of obligations of confidence owed to the plaintiffs. It may well be that other entities, such as Clayton Utz, would also have a claim for confidentiality in respect of it, but that is beside the point for present purposes. What is significant is that it is at least arguable that obligations of confidence were owed by Clayton Utz to the plaintiffs in respect of information in those documents. 4 Although the precise means by which the documents came into the hands of the defendants is not clear, an inference is open from the email from Marcus Priest to Dale Bryce dated 31 October 2006 that the documents were received with knowledge that they were internal and confidential documents of Clayton Utz. Whether that inference is drawn at a final hearing is another matter, but it suffices for present purposes that it is arguable that such an inference should be drawn from the material presently before the court. 5 It has been argued that the leaked documents apparently disclose a criminal offence, and that this weighs against the grant of an injunction. That is so, in the sense that on an application to restrain a breach of confidence where there is a threatened disclosure of a crime, the court is often involved in weighing private rights of confidence against the public interest and disclosure; see A v Hayden (1984) 156 CLR 532, and Brown v Brooks (NSWSC, McLelland J, 18 August 1988). But that exercise is not one which ought to be undertaken on very limited evidence, in the context of an interim application of this kind, unless the outcome is manifestly clear, and I do not think that it is so clear in this case. 6 In those circumstances there is, I think, a sufficiently arguable case for final relief on the basis that the defendant has received confidential information of the plaintiffs with knowledge that it was disclosed to the defendant in breach of confidence, to justify considering the balance of convenience. 7 If I were wrongly to refuse an injunction and further publication were to take place, then that would effectively finally determine the matter and destroy any such confidentiality as remains in the documents. That, I think is the major factor weighing in the balance in favour of the plaintiffs. 8 If I were wrongly to grant an injunction, then the ability of Fairfax to publish will be deferred for some days, but as I have indicated, a final hearing can be held late next week and, given the history of this subject matter over the years, it does not seem at first sight that a delay of that order will seriously affect the newsworthiness of the information. 9 That is more so when it has been indicated on behalf of Fairfax that further publication, so far as it relates to BATAS, would go no further than what has already been published. While, on the one hand, it might be said that that weighs against the grant of an injunction, it seems to me that arguably any further publication that widens the audience beyond that which has already been reached is potential damage that might be averted by an injunction. On the other hand, if the further publication is not to go beyond what has already been published, it is difficult to see that anything is lost by deferring the opportunity to publish that for a little while. 10 It follows, in my view, that in each proceeding there should be an interim injunction until a final hearing can be held late next week. 11 In the proceedings instituted by British American Tobacco Australia Services Limited, in which Mr Reynolds SC appears for the plaintiff, upon the plaintiff by its counsel giving to the court the usual undertaking as to damages, I make an order in terms of paragraph 5 of the document entitled Order and initialled by me, dated this day and placed with the papers. I direct that the summons be returnable at 10am on Thursday 9 November 2006 before me. I dispense with further service of the summons. I direct that these orders be entered forthwith. 12 In the proceedings instituted by British American Tobacco Australia Limited, in which Mr Potter appears for the plaintiff, upon the plaintiff by its counsel giving to the court the usual undertaking as to damages, I make an order in terms of paragraph 3 of the document entitled Order and initialled by me, dated this day and placed with the papers. I direct that the summons be returnable at 10am on 9 November 2006 before me. I dispense with further service of the summons. I direct that these orders be entered forthwith. 13 I direct that any further affidavit evidence to be relied upon by the plaintiff in both proceedings be served by 4pm on Tuesday 7 November 2006. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.