AMI Australia Holdings Pty Limited v Fairfax Media Publications Pty Limited [2009] NSWSC 612

New South Wales Supreme Court

CITATION : AMI Australia Holdings Pty Limited v Fairfax Media Publications Pty Limited [2009] NSWSC 612

HEARING DATE(S) : 12 June 2009 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 12 June 2009

DECISION : Defendant restrained from publication for a short period of time.

CATCHWORDS : PROCEDURE - Injunctions - confidentiality - whether serious question to be determined - whether material in hands of defendant has necessary quality of confidentiality and obtained by defendant in such circumstances as to import an obligation of confidence - rushed nature of application - whether interim injunction should be granted

CASES CITED : Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63; (2001) 208 CLR 199 Corrs Pavey Whiting & Byrne v Collector of Customs (VIC) & Anor (1987) 14 FCR 434

AMI Australia Holdings Pty Limited (First Plaintiff) PARTIES : Advanced Medical Institute Pty Limited (Second Plaintiff) Fairfax Media Publications Pty Limited (Defendant)

FILE NUMBER(S) : SC 3219/09

COUNSEL : M Green/ E M Peden (Plaintiffs) D R Sibtain/ A Douglas-Baker (Defendant)

SOLICITORS : Bruce Stewart Dimarco Lawyers (Plaintiff) Johnson Winter & Slattery (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

FRIDAY 12 JUNE 2009

3219/09 AMI AUSTRALIA HOLDINGS PTY LIMITED & ANOR v FAIRFAX MEDIA PUBLICATIONS PTY LIMITED EX TEMPORE JUDGMENT 1 The plaintiff, AMI Australia Holdings Pty Limited, seeks an order that the defendant be restrained from publishing or otherwise disclosing any of the matters referred to in an email identified in the notice of motion until 16 June 2009. The email is part of an affidavit in support of the motion that I have ordered not be disclosed to any person other than the Court and the legal advisers to the parties. 2 The matters set forth in the document specified in the notice of motion are clearly, of their nature, detrimental to AMI's business. The application is brought against Fairfax Media Publications Pty Limited. It was asked to give an undertaking that it would not publish the material for a suitable period of time. It has refrained from giving that undertaking. 3 It is maintained that the matters the subject of investigation by Fairfax are topics of iniquity of which the press would seek publication and it ought to be allowed to publish. 4 This is not a case seeking an interim injunction to restrain publication of defamatory material, although there may be some similarities that should be considered in determining the application on a final basis. 5 This is a case in which the author of the material in question is likely to have been an employee of AMI. I have been asked to draw that inference from the nature of the material. The author is said to have been an employee of AMI at some stage in the past. The inference is appropriate because of the nature of the remarks attributed to the individual in question. 6 The evidence reveals that the contract of engagement of consultants by AMI is subject to a standard form of contract that includes a confidentiality provision. There is also a form of confidentiality deed poll that employees are also required to execute. 7 Prima facie, there is a clear breach of the confidentiality requirements as between the author of the material in question and AMI. 8 But that is not the question I have to consider. The question I have to consider is whether information, confidential as between two parties, retains its confidentiality in the hands of a third party, in this case a member of the press. 9 In Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63; (2001) 208 CLR 199 at [55], this was said: "For reasons already given, I regard the law of breach of confidence as providing a remedy, in a case such as the present, if the nature of the information obtained by the trespasser is such as to permit the information to be regarded as confidential. But, if that condition is not fulfilled, then the circumstance that the information was tortiously obtained in the first place is not sufficient to make it unconscientious of a person into whose hands that information later comes to use it or publish it. The consequences of such a proposition are too large." 10 In my view there is a serious question to be determined whether the information is to be regarded as confidential. 11 In Corrs Pavey Whiting & Byrne v Collector of Customs (VIC) & Anor (1987) 14 FCR 434 at 443, Gummow J set out a number of matters that need to be established for confidentiality to attach to a third party. He said: "It is now settled that in order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria. The plaintiff: (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question; and must also be able to show that (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge); (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence; and (iv) there is actual or threatened misuse of that information." 12 I regard it as a serious question to be determined whether the first requirement has been satisfied and, in my view, there is a lot to suggest that it has. 13 As to the second requirement, again it seems to me that is a serious question that needs to be determined and there is much to commend the view that it has been established. 14 The third requirement raises a serious matter that needs to be decided. 15 The fact that Fairfax has the information and has refrained from answering a request for an undertaking not to disclose it is designed to satisfy the final requirement. 16 The matter is brought before the Court - it is now 6.15 pm - and brought before the Court in rushed circumstances. There are important issues that I have indicated need to be determined with respect to a final form of relief. With respect to an interlocutory form of relief the balance of convenience needs to be considered. 17 Because of the rushed way in which this matter has been brought before the Court, notwithstanding that I have serious doubts that an interlocutory injunction will ensue, I do think it is appropriate to make an interim order in terms of the notice of motion restraining publication of the material until the matter can be determined by the Duty Judge next week on an interlocutory basis. 18 I therefore make an order in terms of paragraph 4 of the notice of motion. I reserve the costs of the hearing. I stand the matter over before the Duty Judge at 10 am on Tuesday 16 June 2009.