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Ramsay Health Care Ltd v Information Commissioner[2019] QCATA 66

Ramsay Health Care Ltd v Information Commissioner[2019] QCATA 66

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Ramsay Health Care Ltd v Information Commissioner & Anor [2019] QCATA 66

PARTIES:

RAMSAY HEALTH CARE LIMITED

(applicant)

v

INFORMATION COMMISSIONER

(first respondent)

QUEENSLAND NURSES AND MIDWIVES UNION

(second respondent)

SUNSHINE COAST HOSPITAL AND HEALTH SERVICE

(third respondent)

APPLICATION NO:

APL094-17

MATTER TYPE:

Appeals

DELIVERED ON:

10 June 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

ORDERS:

  1. The appeal is allowed.
  2. The decision of the Information Commissioner made on 23 February 2017 is set aside.
  3. The matter is returned to the Information Commissioner for reconsideration in accordance with this decision of the Appeal Tribunal.
  4. The parties shall file any submissions on costs by 4.00 pm on 21 June 2019.
  5. Unless either party requests an oral hearing, the issue of costs will be determined on the papers on a date to be fixed by the Tribunal.

CATCHWORDS:

ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – RIGHT OF ACCESS – GROUNDS FOR REFUSAL – where Information Commission determined to grant access to information held by the third respondent to the second respondent under the Right to Information Act 2009 (“RTI Act”) – where appellant appeals that decision of the Information Commissioner – whether the Information Commissioner erred in law by holding that a breach of a contractual obligation of confidence does not amount to an action for breach of confidence within the meaning of Sch 3, s 8 of the RTI Act – whether the Information Act erred in law by reading Sch 3, s 8 of the RTI Act as importing a further consideration of the public interest – whether the Information Commissioner erred in law in holding that the appellant did not have standing to bring an action for breach of confidence

Right to Information Act 2009, s 47, s 48, s 49, s 119, sch 3, s 8

Attorney-General (UK) v Heinemann Publishers Pty Ltd (1987) 10 NSWLR 36

Ammon v Consolidated Minerals Ltd [No 3] [2007] WASC 232

Bray v Workers Rehabilitation and Compensation Board [1994] 62 SASR 218; [1994] SASC 4478

Callejo and Department of Immigration and Citizenship [2010] AATA 244; (2010) 51 AAR 308

City North Infrastructure Pty Ltd; Treasury Department (CNI case) (Unreported, Queensland Information Commissioner, 9 May 2012)

Coco v AN Clark (Engineers) Ltd [1969] RPC 41

Commonwealth of Australia v Cockatoo Dockyard Pty Ltd (1995) 36 NSWLR 662

Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434; [1987] FCA 266

Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167

Esso Australia Resources Ltd & Ors v Plowman & Ors (1995) 183 CLR 10 

Henderson and Queensland Law Society [2006] QICmr 2

Johns v Australian Securities Commission (1993) 178 CLR 408; [1993] HCA 56

Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448; [2009] HCA 10

Murphy and Health Quality and Complaints Commission [2009] QICmr 39

Optus Networks Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281; [2010] FCAFC 21

Queensland Nurses Union and Sunshine Coast Hospital and Health Service; Ramsay Health Care (third party) [2017] QICmr 6 (23 February 2017)

Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279

Re Lobo and Department of Immigration and Citizenship [2011] AATA 705

Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203

Seeney and Department of State Development; Berri Limited (third Party) (Berri) (2004) 6 QAR 354

Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services & Health (1990) 22 FCR 73; [1989] FCA 384

Smith Kline & French Laboratories (Aust) Ltd v Secretary to the Department of Community Services & Health (1991) 28 FCR 291; [1991] FCA 150

Streetscape Projects (Australia) Pty Ltd v City of Sydney (2013) 85 NSWLR 196; [2013] NSWCA 2

The Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39; [1980] HCA 44

TSO08G and Department of Health (Unreported, Queensland Information Commissioner, 13 December 2011)

Watts v Forests NSW [2007] NSWADT 197

Wilson v Ferguson [2015] WASC 15

REPRESENTATION:

 

Appellant:

Clayton Utz

First Respondent:

Self-represented

Second Respondent:

S Robb instructed by Roberts & Kane Solicitors

Third Respondent:

MinterEllison

APPEARANCES:

 

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

Introduction

  1. [1]
    A person’s general right of access to documents of a government agency, as conferred by s 23 of the Right to Information Act 2009 (“RTI Act”), is subject to other provisions of the legislation.  In particular, s 47(3)(a) allows an agency to refuse access to a document “to the extent the document comprises exempt information under s 48”.
  2. [2]
    Section 48 of the RTI Act provides:

48 Exempt information

  1. If an access application is made to an agency or Minister for a document, the agency or Minister must decide to give access to the document unless disclosure would, on balance, be contrary to the public interest.
  2. Sch 3 sets out the types of information the disclosure of which the Parliament has considered would, on balance, be contrary to the public interest.
  3. However, despite an agency or Minister being able, under section 47(3)(a), to refuse access to all or part of a document, the agency or Minister may decide to give access.
  4. In this Act – 

 exempt information means the information that is exempt information under sch 3.

  1. [3]
    Sch 3, s 8(1) provides, “Information is exempt information if its disclosure would found an action for breach of confidence.”
  2. [4]
    This appeal from a decision of the Information Commissioner[1] turns on the proper interpretation of that exemption in Sch 3, s 8.

Background

  1. [5]
    The following summary of the background, taken from the Information Commissioner’s decision[2] is not contentious. 
  2. [6]
    In 2010, Queensland Health invited private hospital operators to bid for the design, construction, finance, commissioning, operating and maintenance of a private hospital on the Sunshine Coast, to be co-located with the public Sunshine Coast University Hospital, which was expected to be built and commissioned by 2018.  Ramsay Health Care Limited (“Ramsay”) submitted its ultimately successful bid in November 2010.  The Sunshine Coast University Private Hospital (“SCUPH”) opened in November 2013.  As part of being awarded the contract to build and operate SCUPH, Ramsay was required to enter into a services agreement with Queensland Health, under which it agreed to treat public patients at SCUPH while the public hospital was being built and commissioned.  The services agreement contained the terms and conditions on which Ramsay was to provide public health services on behalf of Queensland Health.
  3. [7]
    On 10 September 2015, the second respondent, the Queensland Nurses and Midwives Union (“QNU”), applied under the RTI Act for access to:

(1)document that provides the number of each patients [sic] referred to the Sunshine Coast University Private Hospital (SCUPH) per annum; (2) A report containing a summary of any SAC1, SAC2 and Sentinel Events reports by Ramsay Health Services; (3) Any correspondence, letters or electronic, notifying Ramsay that a breach has occurred in relation to patient care; (4) a complaints spreadsheet that contains a meaningful summary of any complaints from patients regarding SCUPH.

  1. [8]
    On 16 February 2016, after several extensions within which to give a decision, the third respondent, the Sunshine Coast Hospital and Health Service (“SCHHS”), advised QNU that, as it had not given QNU a decision in response to the access application within the time specified by the RTI Act, SCHHS was deemed to have given a decision refusing access to the requested information. 
  2. [9]
    On 1 March 2016, the QNU applied to the Office of the Information Commissioner for external review of that deemed refusal of access.
  3. [10]
    On 23 February 2017, the Information Commissioner made a decision setting aside SCHHS’s deemed refusal of access.  In particular, the Information Commissioner found that the information was not exempt information under the RTI Act and its disclosure would not, on balance, be contrary to the public interest.
  4. [11]
    This is an appeal against that decision by the Information Commissioner.

Decision of the Information Commissioner

  1. [12]
    After setting out the background, the Information Commissioner noted Ramsay’s objections to disclosure of the information:
    1. (a)
      The information was exempt information because its disclosure would found an action for breach of confidence; and
    2. (b)
      Disclosure would, on balance, be contrary to the public interest because:
      1. it could reasonably be expected to prejudice Ramsay’s business, professional, commercial or financial affairs;
      2. it could reasonably be expected to prejudice SCHHS’s ability to obtain confidential information.
  2. [13]
    SCHHS also argued before the Information Commissioner that disclosure of the information would found an action for breach of confidence, and advanced a number of factors in support of a contention that disclosure would be contrary to the public interest:
    1. (a)
      Disclosure could reasonably be expected to cause the public interest harm because it would disclose personal information of a person;
    2. (b)
      Disclosure could reasonably be expected to prejudice the protection of an individual’s right to privacy; and
    3. (c)
      Disclosure could reasonably be expected to prejudice the management function of an agency.
  3. [14]
    The Information Commissioner expressly rejected an argument that breach of a contractual obligation of confidentiality was covered by the exemption under Sch 3, s 8(1) of the RTI Act.  The Information Commissioner said:
  1. Ramsay argues that the information in issue was communicated pursuant to the Services Agreement.  Clause 13 of the Services Agreement is a confidentiality clause that requires that neither party to the Agreement disclose any confidential information of the other party without consent.  Exceptions to that general restriction are contained in clause 13.2.  Ramsay claims that the information in issue is confidential information under the Services Agreement and is therefore subject to the express contractual obligation of confidence contained in clause 13.
  2. In ‘Band BNRHA,[3] Commissioner Albietz said that an action for breach of confidence may be based on a contractual or an equitable obligation of confidence.  However, he noted that a contractual term requiring that certain information be kept secret will not necessarily equate to a contractual obligation of confidence: an issue may arise as to whether an action for breach of the contractual term would satisfy the description of an ‘action for breach of confidence’.
  3. In TSO08G and Department of Health,[4] Right to Information Commissioner Mead applied the decision of the Administrative Appeals Tribunal in Callejo and Department of Immigration and Citizenship[5] in finding that, where a contractual term requiring confidentiality exists, disclosure (or threatened disclosure) of information may, in itself, only found an action for breach of contract.  An action for breach of contract, and in equity, for breach of confidence, are separate and distinct causes of action at general law.  An action for breach of confidence for the purposes of sch 3, section 8(1) of the RTI Act will only be established where the five cumulative requirements to found an action in equity for breach of confidence are met.[6]
  4. Accordingly, I find that, if a breach of clause 13 of the Services Agreement were to give rise to an action for breach of a contractual term, it would not give rise to an action for breach of confidence within the meaning of sch 3, section 8(1) of the RTI Act.  In order to give rise to an action for breach of confidence, the five cumulative requirements referred to in the preceding paragraph (and discussed below) must be met.
  5. In its submissions dated 29 August 2016, Ramsay argued that this test was too narrow and that until there had been a judicial interpretation of this issue, the test for exemption under sch 3, section 8(1) of the RTI Act should be read as covering a hypothetical plaintiff who would have a cause of action to enforce a contractual obligation of confidence.  However, for the reasons explained above, I prefer the interpretation set out in Callejo.
  1. [15]
    The Information Commissioner then continued:
  1. Even if I am incorrect in my view in that regard, such that a breach of clause 13 of the Services Agreement is sufficient to found an action for breach of confidence under sch 3, section 8(1) of the RTI Act, it is well-established that a public interest exception applies in respect of both contractual obligations of confidence and equitable obligations of confidence.[7] For the reasons that I will explain below, I am satisfied that there are strong public interest considerations favouring the disclosure of the information in issue in the interests of proper accountability of SCHHS for the delivery of public health services in Queensland.
  1. [16]
    The Information Commissioner then went on to assess whether the information in issue was subject to an equitable obligation of confidence.  In the course of that, the Information Commission said:
  1. The following five cumulative requirements must be established to give rise to an equitable obligation of confidence:
  1. the information must be capable of being specifically identifiable as information that is secret, rather than generally available;
  2. the information must have the necessary quality of confidence, i.e., it must not be trivial or useless, and must have a degree of secrecy sufficient for it to be subject to an obligation of confidence;
  3. the circumstances of the communication must create an equitable obligation of confidence;
  4. disclosure of the information to the access applicant must constitute an unauthorised use of the confidential information; and
  5. disclosure must cause detriment to the confider of the information.[8]
  1. As noted above, item ii of the information in issue was communicated by SCHHS rather than Ramsay.  SCHHS has not argued that it is owed an obligation of confidence in respect of this information.  Rather, it argues that it is under an obligation of confidence in respect of information that Ramsay supplied.  It has not argued that disclosure of item ii would constitute a use unauthorised by SCHHS, or that its disclosure would cause SCHHS detriment.  I do not consider that Ramsay has standing to bring an action in equity for breach of confidence in respect of information which it did not supply.  I therefore find that the requirements to establish an equitable obligation of confidence in respect of item ii of the information in issue are not met.
  1. Moreover, as regards all of the information in issue, assessing whether requirement c) is satisfied requires an evaluation of all relevant circumstances surrounding the communication in question, so as to determine whether the recipient ‘should be fixed with an enforceable obligation of conscience not to use the confidential information in a way that is not authorised by the confider of it.’[9]  These include public interest considerations relating to the community’s legitimate interest in obtaining information about the affairs of government, which may affect the question of whether enforceable obligations of confidence should be imposed on government agencies in respect of information purportedly supplied in confidence by parties outside government.[10]
  1. In my view, the present circumstances fall within this ‘public interest exception’.  The information in issue concerns the manner in which Ramsay discharged its obligations to provide public health services on behalf of SCHHS.  It involved complaints about the care provided by Ramsay; and details of adverse outcomes for patients under Ramsay’s care in the form of SAC1, SAC2 and Sentinel Event notifications.  The information in issue also concerns the manner in which SCHHS discharged its obligations to monitor the standard of care being provided by Ramsay, as well as Ramsay’s compliance with its obligations under the Services Agreement.
  1. [17]
    When considering whether the circumstances of the communication of the information had given rise to an equitable obligation of confidence, the Information Commissioner said that “public interest considerations form part of the constellation of relevant circumstances that I am required to take account of in assessing whether requirement c) is established in a breach of confidence claim for exemption under the RTI Act”, and continued:

In my view, the community’s legitimate interest in obtaining information about the actions of government, which are taken on the community’s behalf, and which are funded by the taxpayer, affect the question of whether an enforceable obligation of confidence should be imposed on government agencies in respect of information purportedly supplied in confidence by parties outside government.  This is especially so when one bears in mind Parliament’s express intentions as set out in the RTI Act’s preamble, including the recognition that, in a ‘free and democratic society’, ‘there should be open discussion of public affairs’; that ‘the community should be kept informed of governments’ operations’; and that ‘openness in government enhances the accountability of government’.

  1. [18]
    The reasons continued:

I do not accept that equity would hold SCHHS conscience bound to keep confidential from the Queensland community, information concerning the discharge by Ramsay of its obligations to provide public health services on behalf of the government, and for which it was paid public monies, or information concerning the discharge by SCHHS of its obligations to monitor the compliance by Ramsay of its obligations.  I consider that there is a strong public interest in information that concerns the standard of health services provided to the public.

  1. [19]
    The Information Commissioner held that the circumstances of the communication between Ramsay and SCHHS did not create an equitable obligation of confidence.  The Information Commissioner also held that, to the extent that the information in issue was communicated by SCHHS rather than Ramsay, Ramsay did not have standing to bring an action in equity for breach of confidence in respect of information which it did not supply.  Accordingly, the Information Commissioner held that the information in issue was not exempt information under Sch 3, s 8 of the RTI Act
  2. [20]
    The Information Commissioner then turned to consider separate arguments which had been advanced by Ramsay and SCHHS under s 47(3)(b) and s 49 of the RTI Act to the effect that disclosure of the documents would be contrary to the public interest.  This, as was noted by the Information Commissioner, is a further ground on which access to information may be refused under the Act.  The Information Commissioner canvassed and considered the various factors which had been identified by Ramsay and SCHHS and concluded that disclosure of the information in issue would be in the public interest.
  3. [21]
    The Information Commissioner decided to set aside the decision under review, and to substitute that with a decision that there were no grounds upon which access to the information in issue may be refused under the RTI Act

The appeal

  1. [22]
    By s 119(2) of the RTI Act, an appeal against a decision of the Information Commissioner may only be on a question of law.
  2. [23]
    Ramsay’s contentions on this appeal are that the Information Commissioner erred in the construction and application of Sch 3, s 8 of the RTI Act by:
    1. (a)
      holding that a breach of a contractual obligation of confidence would not be sufficient to give rise to an action for breach of confidence;
    2. (b)
      reading Sch 3, s 8 of the RTI Act as importing a further consideration of the public interest; and
    3. (c)
      holding that Ramsay did not have standing to bring an action for breach of confidence in respect of letters that were sent from SCHHS to Ramsay.
  3. [24]
    In relation to the first ground of appeal, Ramsay submitted that the Information Commissioner erred in holding that a breach of a contractual obligation would not be sufficient to give rise to an action for breach of confidence, and submitted that the present decision involved a misconstruction of and failure to follow conclusions previously reached in the decision of the Queensland Information Commissioner in Re B and Brisbane North Regional Health Authority (“Re B”).[11]  It was argued that the failure to follow Re B resulted in a failure to apply the correct legal test.
  4. [25]
    In relation to the second ground of appeal, Ramsay criticised the Information Commissioner for proceeding on the basis that the existence of a cause of action for breach of contract negated the possibility of an action for breach of confidence within the meaning of the confidentiality exemption, and again invoked the reasoning of the Information Commissioner in Re B.  It was argued that, in addition to the contractual obligation of confidence, SCHHS owed Ramsay an equitable duty of confidence in respect of the information.  Ramsay argued that, insofar as the Information Commissioner here considered whether the circumstances were such as to give rise to an equitable obligation of confidence, there was nothing in the statute which called for the overlay of a public interest test.  Insofar as there is a “public interest defence” to an equitable claim for breach of confidence, it is irrelevant to consider the potential availability of such a defence when considering whether disclosure of information would found an action for breach of confidence under Sch 3, s 8(1). 
  5. [26]
    The third ground of appeal was an extension of the argument that the Information Commissioner had erred in holding that a breach of a contractual obligation of confidence would not be sufficient to give rise to an action of breach of confidence under Sch 3, s 8(1). 
  6. [27]
    The SCHHS adopted and supported Ramsay’s arguments.
  7. [28]
    In relation to the first error, the SCHHS submitted that the position adopted by the Information Commissioner was untenable, and pointed to numerous decisions in which Re B had been applied.  The SCHHS also submitted that the Information Commissioner’s reliance on the decision in TSO08G was misconceived because that case did not arise from a contractual obligation of confidence.
  8. [29]
    In relation to the second error, the SCHHS joined in the submission that the Information Commissioner erred by importing a public interest test as a component of the existence of an equitable obligation of confidence and relied on a previous decision by the Information Commissioner in Boulton and Whitsunday Regional Council.[12]  It was also submitted that a plain reading of s 48(2) made clear that the legislature deliberately omitted a public interest test in Sch 3.
  9. [30]
    The SCHHS also expressly adopted Ramsay’s submissions in relation to the third error.
  10. [31]
    As is conventional, the Information Commissioner, as first respondent, indicated its intention to abide the decision of this Appeal Tribunal, on the basis that the QNU was the appropriate contradictor.
  11. [32]
    The QNU argued, in relation to the first alleged error, that Ramsay had neither established that the Information Commissioner was bound to follow Re B nor that the decisions in TSO08G and Callejo were wrong.  Counsel for the QNU pointed to the reasoning set out in Callejo’s case, and argued that comity between Information Commissioners meant that it was appropriate and reasonable for the Information Commissioner in the present case to prefer the reasoning in TSO08G and Callejo.  It was argued that neither the doctrine of precedent nor judicial comity operated to elevate the decision in Re B to one which bound the Information Commissioner in this case.
  12. [33]
    As to the second alleged error, QNU argued that it was incumbent on Ramsay to establish that public interest cannot have a bearing on a determination of whether information is exempt from disclosure because its disclosure would found an action for breach of confidence by sch 3, s 8.  It was accepted that it is an established principle that defences are irrelevant to the determination of the question whether disclosure would found an action for breach of confidence, but QNU argued that this was not the basis on which the public interest was considered relevant by the Information Commissioner in this case.  Rather, the Information Commissioner considered that public interest formed part of the matrix of relevant considerations that went to construing whether an enforceable equitable obligation arose.  It was argued that the Information Commissioner did not construe sch 3, s 8 as importing a consideration of public interest, but accepted that public interest was a relevant consideration in determining whether disclosure would found an action for breach of confidence.  The QNU also argued that an analysis of the plain text of the relevant provisions in the RTI Act make public interest a relevant consideration in determining whether to disclose information.  It was said that the Information Commissioner did not apply a separate public interest test either on the basis that a government body was involved nor on the basis that public interest was separate to the circumstances of the communication, but rather the issue of public interest was identified as a discourse relevant to construing the meaning of the communication, amongst other variables such as the relevant terms of the service agreement and the statutory framework.  Ultimately it was submitted that Ramsay’s contention that a “separate test” had been applied by the Information Commissioner was really an argument that too much weight had been afforded to the effect of discernible public interest considerations and the circumstance that the SCHHS is a government agency, and this involved alleged errors of fact not of law. 
  13. [34]
    As to the third alleged error, the QNU relied on its argument opposing the first alleged error and submitted that, having determined that a contractual term requiring confidentiality may found an action for breach of contract not for breach of confidence, the Information Commissioner was correct in not considering whether a possible breach of contract would give Ramsay standing to bring an action for breach of confidence for disclosure of the letters.

Discussion

The first ground of appeal

  1. [35]
    The first ground of appeal turns on whether the Information Commissioner was correct in construing sch 3, s 8(1) as being limited to an equitable claim for breach of confidence. 
  2. [36]
    In Corrs Pavey Whiting & Byrne v Collector of Customs (“Corrs Pavey”),[13]  the Full Federal Court had before it a case which concerned, relevantly, a similar exemption under the Freedom of Information Act 1982 (Cth) (“Cth FOI Act”).  At that time, s 45(1) of the Cth FOI Act conferred exempt status on a document “if its disclosure under [the Cth FOI Act] would constitute a breach of confidence”.
  3. [37]
    Gummow J, who dissented as to the outcome but whose reasons have since been repeatedly adopted and applied, expressed the view that the term “breach of confidence” was “used in its technical sense so that a document is an exempt document only if its disclosure would be actionable at the general law”[14] and was “used in s 45 in the sense well known to the law as the description of a particular class of legal proceeding”.[15] 
  4. [38]
    Corrs Pavey concerned a request made under the Cth FOI Act that the Collector of Customs disclose documents concerning the importation of a particular brand of drug.  Corrs Pavey Whiting & Byrne were the solicitors for the Australian patent holder for the drug, which was seeking information to prove that a competitor was importing the drug in breach of the patent.  The Collector of Customs declined to supply the documents on the ground that they were exempt from disclosure because they had been supplied to the Collector in confidence.  The Administrative Appeals Tribunal (“AAT”) affirmed that decision, and the matter went to the Full Federal Court on appeal.
  5. [39]
    Earlier in his reasons, Gummow J referred to the AAT’s findings about the circumstances under which the documents had been provided to the Collector and which the AAT considered were the subject of an obligation of confidence “resulting from the common intention of both the importer and [the Service] that they be retained in confidence and the information on them be treated as confidential”.[16]  Gummow J said:[17]

I read this passage not as a finding of disclosure of information on the footing of a contract between [the Collector] and Alphapharm [the importer], but as a finding of disclosure in confidence as understood in the authorities dealing with equitable relationships of confidence.

  1. [40]
    His Honour confirmed that the case before him was “to be approached in terms of the general law, not as a case of confidence protected by contract, but as one, if anything, of confidence protected in equity”.[18]   Gummow J then set out the four elements for a plaintiff to establish “in order to make out a case for protection in equity of allegedly confidential information” (underlining added):

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 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 …[19]

  1. [41]
    Importantly, and relevant for present purposes, at no point did Gummow J suggest that the reference to “breach of confidence” in s 45 was limited to an equitable claim for breach of confidence.  The case before him happened to be one concerning a claimed breach of confidence protected by equity, and much of his reasons dealt with the law relating to such a claim.  But it is equally clear that his Honour’s reference to “breach of confidence” in s 45 as being one which is actionable at the general law encompassed both claims in which the necessary obligation of confidence arose from a contract (i.e., was “a case of confidence protected by contract”) and claims in which the confidence was protected by equity.
  2. [42]
    Re B was a decision of Information Commissioner Albietz under the Freedom of Information Act 1992 (Qld) (“Qld FOI Act”) on an external review of a decision by a health authority to refuse to grant B access to a particular entry in his health records.  Under s 46(1)(a) of the Qld FOI Act a document was exempt if “its disclosure would found an action for breach of confidence”. 
  3. [43]
    In considering the proper construction of s 46(1)(a), Information Commissioner Albietz referred to a decision of the AAT[20] in which that Tribunal said that it was not clear whether s 45 of the Cth FOI Act covered a contractual right of confidence, and raised the possibility that it might in all situations, or it might only apply where a plaintiff could invoke the auxiliary jurisdiction of equity in relation to a breach of confidence.  Information Commissioner Albietz then said:[21]

The Tribunal did not attempt to explore this possible ambiguity, since an action for breach of confidence in the case before it could only have been based on the independent jurisdiction in equity.  However, I have difficulty in accepting that contractual obligations of confidence may not be covered by the words which are common to both s.45(1) of the Commonwealth FOI Act and s.46(1)(a) of the Queensland FOI Act.  The only possible ambiguity I can perceive is if the term “action for breach of confidence” is not ordinarily understood to extend to an action for breach of a contractual obligation of confidence (being an action for breach of contract), but is ordinarily understood to refer only to an action for breach of confidence in the exclusive jurisdiction of equity.

A check of the reference cited by Gummow J as referred to in the passage above would tend to the conclusion, however, that the ‘particular class of legal proceeding’ to which Gummow J referred should be taken to include a cause of action based on breach of a contractual obligation of confidence as well as an action for breach of confidence arising solely in the jurisdiction of equity…

  1. [44]
    Further in his reasons, Information Commissioner Albeitz said:[22]

It is therefore not essential that I decide whether s.46(1)(a) extends to a cause of action for breach of a contractual obligation of confidence. If the Commonwealth AAT or the Federal Court should in a future case advance an explanation as to why the words ‘found an action for breach of confidence’ in s.45(1) of the Commonwealth FOI Act should be construed as being confined to an action in equity for breach of confidence, I would be prepared to revisit this issue.  However, on the basis of the material set out above, I consider that the better view is that the words “found an action for breach of confidence” in s.46(1)(a) of the Queensland FOI Act should be taken to refer to a legal action brought in respect of an alleged obligation of confidence in which reliance is placed on one or more of the following causes of action:

  1. (a)
    a cause of action for breach of a contractual obligation of confidence;
  1. (b)
    a cause of action for breach of an equitable duty of confidence;
  1. (c)
    a cause of action for breach of a fiduciary (the meaning of ‘fiduciary’ is explained at paragraph 53 below) duty of confidence and fidelity.
  1. [45]
    This interpretation that the reference in the exemption to “action for breach of confidence” extended to both actions for breach of a contractual obligation of confidence and actions for breach of an equitable duty of confidence was adopted and applied in subsequent decisions in Queensland by the Information Commissioner.[23] 
  2. [46]
    However, in TSO08G and Department of Health,[24] which was a case in which there was no question of the availability of a contractual obligation of confidence, the then Information Commissioner expressly proceeded on the basis that the words “action for breach of confidence” in the exemption “refer to an action based in equity for breach of an equitable obligation of confidence”.[25]  The footnote to that sentence in the decision provided the Information Commissioner’s reasons for expressing that proposition:

In cases concerning disclosure of information that is claimed to be confidential, the facts may give rise to both an action for breach of contract and in equity, for breach of confidence.  At general law, these are separate and distinct causes of action.  An action for breach of confidence will only be established where particular requirements (discussed at paragraphs 13-15 of these reasons) are present.  However, where a contractual term requiring confidentiality exists, disclosure (or threatened disclosure) of information may, in itself, only found an action for breach of contract.  See Callejo and Department of Immigration and Citizenship [2010] AATA 244 (Callejo) at paragraphs 163-166.

  1. [47]
    This was the same reasoning applied by the Information Commissioner in the present case.  That reasoning was sourced in the decision by Deputy President Forgie in the AAT in Callejo and Department of Immigration and Citizenship.[26]
  2. [48]
    Callejo had asked the Department for access under the Cth FOI Act to documents referring to him in respect of his sponsorship of his former wife for a spouse visa.  He was refused access to some documents, relevantly on the s 45 basis that access would found an action for breach of confidence.  By the time of Callejo’s case, s 45 had been amended from the form of wording considered in Corrs Pavey.  As initially enacted, the section made a document exempt if its disclosure “would constitute a breach of confidence”.  That was subsequently amended to exempt a document if its disclosure “would found an action … for breach of confidence”.
  3. [49]
    In considering the interpretation of s 45, the Deputy President set out the history of the section, and referred to the consideration of s 45 in its original form in Corrs Pavey.  She referred to the dissenting judgment of Gummow J and opined that statements made by Gummow J that “the confidence that is protected by the general law is different from a confidence protected by contract and that it is the confidence known to equity”.[27]  The Deputy President referred to the subsequent amendment to the wording of s 45, saying that it was “clear that Parliament wanted the exemption to be based on breach of confidence known to the general law”.[28]
  4. [50]
    The Deputy President then referred to decisions which had considered s 45 in its then current form, i.e., that the words “found an action … for breach of confidence”.  The Deputy President referred first to Kamminga, and then quoted at some length from both the decision of Information Commissioner Albeitz in Re B and from the then edition of the book “Breach of Confidence” by F Gurry, which had been cited by both Gummow J in Corrs Pavey and by Information Commissioner Albeitz in Re B, and also from other authorities referred to in Re B.
  5. [51]
    It was noted by the Deputy President that a similar approach to Re B had been adopted by the Full Court of the Supreme Court of South Australia in Bray v Workers Rehabilitation and Compensation Board,[29] and that Re B had been approved in various cases in the New South Wales Administrative Decisions Tribunal.  One of those cases was Watts v Forests NSW.[30]  The Deputy President analysed the reasons for decision in that case in some detail, and concluded that the reasoning in Watts’ case caused the Deputy President “grave concern”, as had the cases on which it relied.[31]  The Deputy President enumerated four “concerns”:[32]
    1. (a)
      An inability to identify why reasons in a previous NSWADT case which had also applied Re B were adopted in Watts’ case;
    2. (b)
      An inability to identify how propositions identified in the previous case had been applied to the interpretation of the relevant New South Wales legislation;
    3. (c)
      A concern that “abbreviated extracts from previous authorities can be misleading”, citing a reference in Re B to particular observations which had been made by  Fullagar J in Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd;[33]
    4. (d)
      As an extension of those concerns, if propositions from previous authorities are adopted but not linked to the issues under consideration, there is a danger that “sight can be lost of the statutory provision that is under consideration”.[34]
  6. [52]
    The Deputy President then said that she disagreed with the conclusion reached in Re B, and the decisions which had applied Re B, and then turned to conduct her own parsing and analysis of the words “would found an action … for breach of confidence” in s 45 of the Cth FOI Act.
  7. [53]
    The Deputy President’s conclusion about the proper interpretation of s 45 was as follows:
  1. That brings me back to the language used in s 45(1) of the FOI Act.  That language is whether disclosure under the FOI Act would ‘found an action … for breach of confidence’.  The cases to which I have referred and the authorities upon which B and B relies draw distinctions between a word such as “action” and other words that are used to describe processes or outcomes that may be consequent upon an action.  They are defence and remedy or relief.  Once that distinction is seen, it seems to me that the approach taken in Bray and Smith in relation to cl 13(a) of the SAFOI cannot be applied to s 45.  It is one thing to bring an action for abuse or threatened abuse of confidential information that may or may not lead to an equitable remedy and another thing to bring an action for breach of confidence.  The former may be an action for breach of confidence but may equally be an action for breach of contract or an action in tort or in negligence.  It may be an action that relies on a breach of statutory duty not to disclose information obtained in the exercise of the power.  The remedy may be the equitable remedy of an injunction to enforce that statutory duty.  Actions in contract, tort, negligence and for breach of statutory duty are not actions for breach of confidence known to the general law even though they may be based on disclosure, or threatened disclosure, of information claimed to be confidential.

  1. An action for breach of confidence is an action of the sort described by Gummow J in Corrs Pavey.  His Honour set out four elements it comprises and queried a fifth.  If a document is to be an exempt document under s 45 of the FOI Act, all four, and possibly five, elements must be established before it can be said that is disclosure under the legislation would found an action for breach of confidence.  I will return to the fifth element of detriment later in these reasons.
  1. It may be that the information was given under a contract and that there is a term of the contract prohibiting its dissemination.  Without more, disclosure, or threatened disclosure of that information may be the basis for, and so found, an action for breach of contract.  It would only found an action for breach of confidence if the five elements referred to by Gummow J in Corrs Pavey were present.  As the authorities referred to in B and B indicate, it may often be the case that circumstances will give rise to actions both in contract and in equity for breach of confidence.  Whether they do depends upon the circumstances though and I note that those authorities are careful to distinguish the causes of action.  It may well be as Gurry said that courts will use their multiple jurisdictions to grant whatever remedies seem appropriate for breach of a duty of confidence but I do not think that the general law has gone so far as to remove the distinctions between remedies that arise from an action for a breach of confidence and remedies that arise from actions based on other grounds such as contract.  Gurry himself recognises the importance of identifying the jurisdiction upon which the court relies so that it may know the remedies available.
  1. [54]
    In short, the Deputy President held that the words “action … for breach of confidence” in s 45 of the Cth FOI Act refer only to a case of confidence sought to be protected in equity.
  2. [55]
    For the reasons that follow, I respectfully disagree with the Deputy President’s conclusion on this point.
  3. [56]
    The Deputy President’s narrow view that an action for breach of confidence “is an action of the sort described by Gummow J in Corrs Pavey” by reference to the elements identified by his Honour in that case misses the point that what Gummow J was there expressly describing were the matters a plaintiff must prove “in order to make out a case for protection in equity of allegedly confidential information” (underlining added).  As his Honour had made clear in the previous sentence, the particular case before him had to be approached in terms of the general law “not as a case of confidence protected by contract, but as one, if anything, of confidence protected in equity”.[35]  Gummow J was not, by this, saying that cases of confidence protected by contract are not part of the general law of breach of confidence.  Rather, he was highlighting the fact that the particular case before him fell to be determined under that aspect of the general law of breach of confidence by which protection is afforded in equity.
  4. [57]
    In that regard, Gummow J echoed what had been said by Megarry J in Coco v AN Clark (Engineers) Ltd:[36]

In my judgment, three elements are normally required if, apart from contract, a case of breach of confidence is to succeed.  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. (underlining added)

  1. [58]
    If it be accepted, as was stated by Gummow J, that the reference in the legislation to “action for breach of confidence” is to such an action at the general law, there seems to me to be no warrant to construe that term as referring only to actions brought in equity.
  2. [59]
    In “Gurry on Breach of Confidence (2nd edition)”,[37] the learned authors provide the following brief, and in my opinion accurate, summary of what is an action for breach of confidence:[38]

At its core, the action for breach of confidence enables any person who has an interest in information that is confidential to prevent others who have received, or acquired, the information with notice of its confidential quality from using or disclosing the information.  The scope of the action is broad, encompassing a wide range of subject matter, from personal information to commercial ideas or trade secrets, and from the sacred rituals of particular ethnic groups to State secrets.

  1. [60]
    It is clear, as a matter of general law, that the jurisdictional bases for an action for breach of confidence extend to cases in which contracts are relied on to protect confidential information and cases in which the obligation of confidence arises in equity.[39]
  2. [61]
    Hence, the observations by Fullagar J in Deta Nominees v Viscount Plastic Products, which I will quote in full:[40]

Despite some article of one kind or another overseas, some of which in my respectful opinion border upon obscurantism, I am of the opinion that all the cases on “breach of confidence” in relation to information fall into two broad and quite clear classes.  I am further of opinion that the two classes are completely exhaustive of all cases of breach of confidence relating to information, whether relating to trade secrets or not.  The first broad class is composed of those cases where, by a contract, a person has for valuable consideration agreed not to use or publish certain information.  A contract may of course be either express of implied.  Express contracts not to divulge information are made every day, for example between employers and employees, or between two barristers settling a patent case where the terms of settlement provide that the defendant (who has disputed validity) will not divulge to any third party either the terms of settlement or the “prior art” which was raised against validity.  Implied contracts not to divulge information are also not uncommon.  The circumstances in which the law will imply a term in a contract are well-known and clear and need no exposition here, and there is no peculiarity whatsoever in the circumstances in which the implied term will be made not to divulge or use information.  For the most part the cases where the law implies a contractual obligation not to divulge or use information are confined to those cases where the implication or importation is “necessary to give efficacy to the contract”, that is to say to give efficacy to some truly contractual relationship existing apart from the contentious term.  Lawyers are familiar with the doctrine of The Moorcock (1889), 14 P.D. 64; [1886-90] All E.R. Rep. 530, and such an implication will be made when it is necessary in order to give the transaction that efficacy which both parties must have intended it to have.  The contract by which a litigant employs a solicitor or a patient employs a psychiatrist seem to me to be cases where the law will imply a term that the professional man will not publish certain information and will not use it for any purpose outside the purposes for which it was communicated.  All the obligations in the first broad class depend for their existence and their attributes solely upon the law of contract.  They are obligations at common law, although of course equity may act in their enforcement if the ordinary conditions for equity’s intervention are met.

The second broad class is composed of those cases where, whatever might be the position at common law, the court has a discretion to intervene on purely equitable grounds.  Here, in equity, there are two sub-divisions, and both are compendiously called cases of confidence or “breach of confidence”:-

  1. (a)
    Cases where equity will intervene to protect what it regards as the property of a person.
  1. (b)
    Cases where the analogy of property is not available, but where the circumstances are such that the conscience of a recipient or possessor of information is so affected as to make it “unconscionable” on his part to publish or use the information; here equity will intervene on a basis analogous to the truly contractual situation in which the common law intervenes.
  1. [62]
    Bray v Workers Rehabilitation & Compensation Corporation was a case concerning, relevantly, a cognate legislative exemption for a document, disclosure of which would found an action for breach of confidence.  Bollen J, with whom King CJ and Mullighan J agreed, referred to observations of Brennan J (as he then was) in Johns v Australian Securities Commission[41] concerning the undoubted jurisdiction in equity to protect confidential information, and said:[42]

There exists, then, an action for breach of confidence.  Moreover, as appears from the remarks of both Brennan and Deane JJ to which I have referred, there is in existence a jurisdiction in equity to grant relief against abuse or threatened abuse of confidential information.  I should say that I do not read the expression ‘action for breach of confidence’ in cl 13(a) as if it were speaking only of an action at law commenced by inter-party summons (or in some by writ) seeking damages for the tort of breach of confidence or for breach of contract.  The phrase encompasses that type of action.  But it encompasses actions or suits in equity, too.

  1. [63]
    In more recent times, jurisprudential questions have been raised as to whether an equitable duty of confidence and a contractual duty of confidence can co-exist.  In Optus Networks Pty Ltd v Telstra Corporation Ltd,[43] the Full Court of the Federal Court of Australia said:

[38] The notion that no equitable duty of confidence arises where there is a comparable contractual duty is opposed to much authority.  Dr Dean says that ‘Equitable protection … may be used in preference to an existing contractual obligation or alongside a contractual obligation’: R Dean, The Law of Trade Secrets and Personal Secrets, 2nd ed, Lawbook, Pyrmont, 2002, at [2.55] where many examples in the case law are recorded.  They include Morison v Moat (1851) 9 Hare 241; Robb v Green [1895] 2 QB 315; Mense v Milenkovic [1973] VR 784; Attorney-General v Jonathan Cape Ltd [1976] QB 752 and Nicrotherm Co Ltd v Percy (1957) 74 RPC 207. See also Australian Medic-Care Co Ltd v Hamilton Pharmaceuticals Pty Ltd (2009) 261 ALR 501; [2009] FCA 1220 at [628]-[629] (Australian Medic-Care) per Finn J and F Gurry, Breach of Confidence, Clarendon Press, Oxford, 1984, pp 39-46.

  1. [64]
    Subsequently, in Streetscape Projects (Australia) Pty Ltd v City of Sydney,[44] Barrett JA, with whom Meagher and Ward JJA agreed, said:

[150] There is a question whether an equitable duty of confidence arises against one party and in favour of another where those parties have given and received contractual promises of confidentiality creating equal or greater protection of the same subject matter.  The Full Court of the Federal Court, in Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21; (2010) 265 ALR 281, decided that the two kinds of obligation could co-exist (reference was there made to an earlier case in which a contractual duty was described as ‘parasitic upon’ the equitable duty: Australian Medic-Care Company Ltd v Hamilton Pharmaceuticals Pty Ltd [2009] FCA 1120; (2009) 261 ALR 501 at [628] and [629].  The contrary view was taken by Gordon J in Coles Supermarkets Australia Pty Ltd v FKP Ltd [2008] FCA 1915 at [63], citing the observation of Campbell JA in Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172; (2007) 73 IPR 326 at [118] that, if there is a contractual obligation covering the topic, there is no occasion for equity to intervene to impose its own obligation (Campbell JA, as a judge of the Equity Division, had expressed similar views in AG Australia Holdings Ltd v Burton [2002] NSWSC 170; (2002) 58 NSWLR 464 at [75] and Mid-City Skin Cancer & Laser Centre Pty Ltd v Zahedi-Anarak [2006] NSWSC 844; (2006) 67 NSWLR 569 at [155]).  The approach preferred by Gordon J and Campbell JA accords with the residual nature of the equitable duty as recognised by Deane J in Moorgate Tobacco Company Ltd v Philip Morris Ltd (No 2) at 437-438.  Deane J referred to “the equitable jurisdiction to grant relief against an actual or threatened abuse of confidential information not involving any tort or any breach of some express or implied contractual provision, some wider fiduciary duty or some copyright or trade mark right” (emphasis added).  It is also consistent with the notion of equity’s “supplementing” role discussed above in relation to fiduciary duties.

[151] The question of the co-existence of contractual and equitable duties of confidence – described by Kenny J in Complete Technology Integrations Pty Ltd v Green Energy Management Solutions Pty Ltd [2011] FCA 1319; [2011] AIPC 92-431 at [119] as “not without difficulty” – does not arise in this case.  The proceedings before the primary judge were fought on the basis of co-existing contractual and equitable duties of Streetscape and a separate but equivalent equitable duty of Mr Obeid; and that foundation is not challenged on appeal.

  1. [65]
    But even if that question of co-existence remains unsettled (and I hasten to add that it is not necessary for me to resolve that question here), these authorities make it clear that an action for breach of confidence is not limited to a claim brought to protect equitable duties of confidence but may be brought to protect obligations of confidence which arise in contract.
  2. [66]
    In my view, therefore, the phrase “action for breach of confidence” in sch 3, s 8(1) of the RTI Act ought not be construed as being limited to referring only to an equitable action for breach of confidence but rather, in accordance with the general law, that term also encompasses an action for breach of a contractual obligation of confidence.
  3. [67]
    It follows that the Information Commissioner in the present case erred in the interpretation and application of sch 3, s 8(1), and the appeal ought be allowed on that basis alone.

Third ground of appeal

  1. [68]
    With the first ground of appeal being allowed, it is clear that the third ground of appeal must also be allowed, and counsel for QNU effectively conceded as much.  It will be necessary for the Information Commissioner to consider whether there is a contractual obligation of confidence upon which Ramsay may rely to found an action for breach of confidence and, if so, where the letters sent from SCHHS to Ramsay fall within the purview of that obligation.

Second ground of appeal

  1. [69]
    Both Ramsay and SCHHS argued before the Information Commissioner that the information in question was subject to an equitable obligation of confidence. 
  2. [70]
    As quoted above in [16], the Information Commissioner articulated the relevant test as comprising five cumulative requirements.
  3. [71]
    The argument under this ground of appeal turns on the Information Commissioner’s consideration of the third of those requirements, i.e., whether the circumstances of the communication created an equitable obligation of confidence. 
  4. [72]
    It was common ground between the parties that the availability, or potential availability, of a defence to an action for breach of confidence is irrelevant to determination of the question under sch 3, s 8 as to whether disclosure of information would “found” an action for breach of confidence.[45]
  5. [73]
    It is, however, clear on the Australian authorities that matters sometimes considered as part of a “public interest defence” are to be considered when the content of any equitable obligation of confidence is being considered and formulated.[46]
  6. [74]
    That is so because of the broader context in which the particular general law principles are invoked and applied, namely in the interpretation and implementation of legislation which has, as its primary object, the conferral of “a right of access to information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to give the access”.[47]  In Minister for Immigration and Citizenship v Kumar,[48] the High Court was required to construe a provision of the Migration Act 1958 (Cth) which excluded information the disclosure of which would found an action for breach of confidence from particulars of information which the Migration Review Tribunal was required to give to applicants.  In that context, the High Court observed:[49]

The particular doctrine of the general law, in this case that respecting the protection of confidential information, may have been framed by judicial decisions addressed to ends which do not precisely correspond to those of the statute in question.  The translation from private to public law must accommodate the scope and purpose of the public law regime.

  1. [75]
    Their Honours drew on the judgment of Mason J (as he then was) in The Commonwealth v John Fairfax & Sons Ltd,[50] in which he said:[51]

The equitable principle [of confidence] 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.

  1. [76]
    In Attorney-General (UK) v Heinemann Publishers Pty Ltd,[52] McHugh JA (as he then was) said:[53]

Courts of Equity will protect the confidentiality of information imparted in confidence by governments: Attorney-General v Jonathan Cape Ltd; Attorney-General v Times Newspapers Ltd [1976] QB 752 and Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 50-52.  The doors of the Chancery are not closed to governments or their agencies.  Courts of Equity will also protect the confidentiality of information given by citizens to governments and their departments and agencies: Castrol Australia Pty Ltd v EmTech Associates Pty Ltd (1980) 52 FLR 184; 33 ALR 31 and Norwich Pharmacal Co v Commissioners of Customs and Excise [1974] AC 133 at 189 per Viscount Dilhorne.  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 acts [sic], 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.

  1. [77]
    In Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services & Health,[54] Gummow J at first instance noted:[55]

Equity will only intervene if the information has been communicated in circumstances importing an obligation of confidence.  That was how Megarry J put it in Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 47-48, thereby directing attention to the issue of what in the whole of the relevant circumstances would suffice to impose upon the defendant an equitable obligation of confidence. (emphasis added)

  1. [78]
    In the course of dismissing an appeal from that judgment, the Full Federal Court in Smith Kline & French Laboratories (Aust) Ltd v Secretary to the Department of Community Services & Health[56] referred to the then generally accepted “limited purpose” test, i.e., whether the information said to be covered by an equitable obligation of confidence was disclosed for a limited purpose, and said:[57]

In many circumstances, that suggested test will produce a proper result, but the circumstances in which confidential information is supplied may vary widely.  To determine the existence of confidentiality and its scope, it may be relevant to consider whether the information was supplied gratuitously or for a consideration; whether there is any past practice of such a kind as to give rise to an understanding; how sensitive the information is; whether the confider has any interest in the purpose for which the information is to be used; whether the confider expressly warned the confidee against a particular disclosure or use of the information – and, no doubt, many other matters.  Confidential information is commonly supplied without payment: for example, by a prospective employee (or his referee) to support an application for employment.  The understanding ordinarily would be that the prospective employer would not disclose the information to any third party; but it would hardly be expected that its use would necessarily be confined to the employment application itself.  If that application were successful, the employee would not act on the assumption that material in the relevant file would be destroyed.  He would surely be inclined to assume that it might be resorted to later to assist the employer in making decisions relevant to the employee – for example, as to whether the employee (rather than another) should be promoted, or dismissed.

  1. [79]
    Information Commissioner Albeitz relied on these, and other, observations in both the judgment of Gummow J and the Full Federal Court when reaching the following conclusion in Re B, with which I respectfully agree:[58]

What the judgments in Smith Kline & French primarily emphasise is that the fundamental inquiry is aimed at determining, on an evaluation of the whole of the relevant circumstances in which the confidential information was imparted to the defendant, whether the defendant’s ought to be bound with an equitable obligation of confidence. (original underlining)

  1. [80]
    In Esso Australia Resources Ltd v Plowman,[59] the High Court considered, amongst other things, whether an obligation of confidence existed over documents produced or disclosed in a private arbitration.  In the course of his reasons for judgment, Mason CJ (with whom Dawson and McHugh JJ agreed) reaffirmed the view he had previously expressed in The Commonwealth v John Fairfax & Sons Ltd that the courts view governmental secrets differently from personal and commercial secrets, and that judges must view the disclosure of governmental information “through different spectacles”.[60]  He prefaced that by referring to information provided in and for the purposes of arbitration and acknowledged that “there may be circumstances, in which third parties and the public have a legitimate interest in knowing what has transpired in an arbitration, which would give rise to a ‘public interest’ exception”.[61]  Importantly, he then said that the “precise scope of the exception remains unclear”.[62]  In separate reasons for judgment, Toohey J identified that there must be “an underlying principle, significantly qualified in accordance with these reasons, that a party to an arbitration is under a duty not to disclose to a third party documents and information obtained by reason of the arbitration”.[63]  His Honour continued:[64]

Although it did not arise in this appeal, I agree with the Chief Justice that there is a ‘public interest’ exception to the principle.  But it is unnecessary and inappropriate to discuss the boundaries of that exception.

  1. [81]
    Despite the High Court there using the terminology public interest “exception”, I do not understand their Honours thereby to have suggested that public interest considerations are, of themselves, determinative of the existence of an equitable obligation of confidence with respect to information held by a government.  To do so would effectively delete one of the settled elements of the test for ascertaining whether such an obligation exists (i.e., whether the subject information was received in circumstances which imported an obligation of confidence) and replace that with a quite different requirement (i.e., whether it is in the public interest that the information be subject to an obligation of confidence).  Even acknowledging the necessity, in the present context, for the private law to be translated to accommodate the scope and purpose of the relevant public law regime, I think that removing a general element from the test and replacing it with this quite different requirement would be a step too far. 
  2. [82]
    To posit such a specific public interest requirement would fly in the face of repeated judicial acknowledgment that regard needs to be had to all of the circumstances in which the information was supplied to ascertain whether those circumstances as a whole imparted an obligation of confidence.  In the case of information produced to and held by a government agency, it can be accepted that the public interest in having access to the particular information is one of the factors to be considered when ascertaining whether or not that information is held under an obligation of confidence.  Indeed, it may be a factor to which considerable weight attaches.  But it is not the sole determining factor.  It needs to be weighed in the mix of all the relevant circumstances under which the information was imparted to ascertain whether the information is held subject to an equitable obligation of confidence. 
  3. [83]
    In any event, as is clear from the observations of Mason CJ and Toohey J in Esso Australia Resources Ltd v Plowman, the scope of the “public interest exception” is unclear.  It would be unsatisfactory to articulate a separate test relating to the equitable obligation of confidence in information held by government which is dependent on and determined by such an imprecise element.
  4. [84]
    Returning, then, to the present case, the fundamental difficulty with the approach adopted by the Information Commissioner is that, whilst the Information Commissioner expressly acknowledged the need to evaluate “all relevant circumstances surrounding the communication” and that those relevant circumstances included public interest considerations,[65] in fact the only circumstance to which the Information Commissioner paid regard when considering whether the information was conveyed in circumstances which imparted an obligation of confidence was the “public interest exception”.  The Information Commissioner did not refer to any of the other relevant circumstances under which the information was given, and focused solely on whether the Information Commissioner’s conception of the “public interest” effectively trumped the potential availability of equitable protection.
  5. [85]
    So much is clear from the Information Commissioner’s conclusions, quoted above at [17] and [18].
  6. [86]
    Counsel for the QNU contended, correctly in my view, that the public interest “forms part of the matrix of relevant considerations that bear on construing the effect of the communication”.[66]  The problem in this case, however, is that the Information Commissioner did not in any way identify or consider that “matrix of relevant considerations”, but focused solely on the issue of public interest.
  7. [87]
    Similarly, the argument by counsel for the QNU that Ramsay’s argument amounts to a contention that the Information Commissioner afforded too much weight to the public interest considerations overlooks the fact that the public interest was the only factor considered by the Information Commissioner.  There was no balancing of that consideration against “other variables such as the relevant terms of the service agreement and the statutory framework”.[67]
  8. [88]
    By approaching the matter in this way, the Information Commissioner effectively elevated the consideration of the public interest to the status of a determinative requirement for ascertaining whether the information was conveyed in circumstances which created an equitable obligation of confidence.  For the reasons given above, this was an erroneous approach to and application of the relevant law, and accordingly the appeal on this ground must be allowed.
  9. [89]
    Before concluding, there is a further observation to make concerning another aspect of the Information Commissioner’s considerations under this part of the decision.
  10. [90]
    As set out above at [16], the Information Commissioner invoked what were described as “five cumulative requirements [which] must be established to give rise to an equitable obligation of confidence”, the fifth of which was that disclosure of the information cause detriment. 
  11. [91]
    That catalogue of five requirements has regularly been invoked in decisions by the Information Commissioner,[68] and has its genesis in Information Commissioner Albeitz’ decision in Re B
  12. [92]
    The requirement of detriment was referred to by Mason J in The Commonwealth v John Fairfax & Sons Ltd,[69] citing in turn the decision of Megarry J in Coco v AN Clark (Engineers) Ltd.  Whether Megarry J in fact specified that as a requirement or, indeed, questioned whether “detriment” is essential is essayed in Meagher, Gummow and Lehane (5th ed) at [42-095].
  13. [93]
    Be that as it may, as was noted by Mitchell J in Wilson v Ferguson,[70] the existence of a requirement to show detriment has been doubted in subsequent cases.  For example, in Ammon v Consolidated Minerals Ltd [No 3],[71] Martin CJ observed:

The third element of the cause of action identified by Megarry J in Coco (at 47), was described by him as ‘an unauthorised use of the information to the detriment of the party communicating it’.  In Lac Minerals Ltd v International Corona Resources Ltd [1989] 2 SCR 574; (1989) 16 IPR 27, this third element was referred to by LA Forest J as the element of misuse of the information.  That terminology avoids specific reference to the element of detriment – an element which later cases strongly suggest is not an essential component of the equitable claim for breach of confidence – see for example Attorney-General v Observer Ltd (1990) 1 AC 109; National Roads and Motorists’ Association Ltd v Geeson [2001] NSWCA 343; (2001) 40 ACSR 1 at [58]; N P Generations Pty Ltd v Feneley [2001] SASC 185; (2001) 80 SASR 151 at [21].  Although the matter is not entirely free from doubt, the better view seems to be that detriment is not an essential element of the cause of action.

  1. [94]
    These, and cognate, considerations are addressed by the learned authors of Meagher, Gummow and Lehane (5th ed), who propose[72] that it is safer to apply the statement of principle by the Full Federal Court in Optus v Telstra,[73] in which the Court adopted a previous formulation by Gummow J[74] and said that there are four elements to a claim for breach of confidence in equity:
    1. (a)
      The information in question must be identified with specificity;
    2. (b)
      It must have the necessary quality of confidence;
    3. (c)
      It must have been received in circumstances importing an obligation of confidence; and
    4. (d)
      There must be an actual or threatened misuse of the information.
  2. [95]
    For my own part, I would respectfully associate myself with that approach, particularly having regard to the following observations by Gummow J in Smith Kline & French:[75]

The basis of the equitable jurisdiction to protect obligations of confidence lies … in an obligation of conscience arising from the circumstances in or through which the information, the subject of the obligation, was communicated or obtained … The obligation of conscience is to respect the confidence, not merely to refrain from causing detriment to the plaintiff.  The plaintiff comes to equity to vindicate his right to observance of the obligation, not necessarily to recover loss or to restrain infliction of apprehended loss.  To look into a related field, when has equity said that the only breaches of trust to be restrained are those that would prove detrimental to the beneficiaries?

  1. [96]
    It is, however, unnecessary for me to say anything more about this, as it was not part of this case, and no argument on this was addressed to me. 

Decision

  1. [97]
    Despite Ramsay urging[76] that this Tribunal should set aside the Information Commissioner’s decision and substitute its own decision, it is quite clear that this matter should properly be returned to the Information Commissioner for reconsideration.  As identified above, there are two discreet lines of inquiry which the Information Commissioner needs to complete for the purposes of properly making the decision, namely investigation as to the existence and operation of a contractual obligation of confidence, and consideration of all the relevant circumstances for the purposes of the equitable obligation of confidence.  Those are not matters on which this Tribunal can make a decision based on the material presently before it, nor have the parties had the opportunity to make full and appropriate submissions with respect to those matters.
  2. [98]
    Accordingly, there will be the following orders:
  1. The appeal is allowed.
  1. The decision of the Information Commissioner made on 23 February 2017 is set aside.
  1. The matter is returned to the Information Commissioner for reconsideration in accordance with this decision of the Appeal Tribunal.
  1. The parties shall file any submissions on costs by 4.00 pm on 21 June 2019.
  1. Unless either party requests an oral hearing, the issue of costs will be determined on the papers on a date to be fixed by the Tribunal.

Footnotes

[1] Brought pursuant to s 119 of the RTI Act.

[2] Queensland Nurses Union and Sunshine Coast Hospital and Health Service; Ramsay Health Care (Third Party) [2017] QICmr 6 (23 February 2017).

[3]B and Brisbane North Regional Health Authority [1994] QICmr 1, a decision of  the Information Commissioner analysing the equivalent exemption in the repealed Freedom of Information Act 1992 (Qld) at [43].

[4] (Unreported, Queensland Information Commissioner, 13 December 2011).

[5] (2010) 51 AAR 308; [2010] AATA 244 at [163-166].

[6] See Kalinga Wooloowin Residents Association Inc and Brisbane City Council; City North Infrastructure Pty Ltd; Treasury Department (CNI case) (Unreported, Queensland Information               Commissioner, 9 May 2012) at [64-65].

[7] See Seeney and Department of State Development; Berri Limited (third Party) (Berri) (2004) 6               QAR 354 at [191ff].

[8] B and BNRHA at [60-63].

[9] B and BNRHA at [76].

[10] See Berri at [191] citing Esso Australia Resources Ltd & Ors v Plowman & Ors (1995) 183 CLR 10,               Commonwealth of Australia v Cockatoo Dockyard Pty Ltd (1995) 36 NSWLR 662 and Cardwell               Properties Pty Ltd & Williams and Department of Premier, Economic and Trade Development               (1995) 2 QAR 671 at pp.693-698 [51-60].  See also Orth and Medical Board of Queensland; Cooke               (Third party) (2003) 6 QAR 209 at [34] (Orth).

[11] (1994) 1 QAR 279.

[12] [2008] QICmr 13.

[13] (1987) 14 FCR 434; [1987] FCA 266.

[14] At 447.

[15] At 449.

[16] At 442.

[17] At 442.

[18] At 443.

[19] At 443.

[20] Re Kamminga and  Australian National University (1992) 15 AAR 297; [1992] AATA 84.

[21] Re B at 39.

[22] At 43.

[23] See, for example, Henderson and Queensland Law Society [2006] QICmr 2; Boulton and  Whitsunday Regional Council [2008] QICmr 13; Murphy and Health Quality and Complaints               Commission [2009] QICmr 39.

[24] [2011] QICmr 46.

[25] At [12].

[26] [2010] AATA 244; (2010) 51 AAR 308.

[27] At [125].

[28] At [126].

[29] [1994] 62 SASR 218; [1994] SASC 4478.

[30] [2007] NSWADT 197.

[31] Callejo at [144].

[32] At [145]-[149].

[33] [1979] VR 167.

[34]Callejo at [149].

[35]Corrs Pavey at [14].

[36] [1969] RPC 41 at 47.

[37] T Aplin, L Bently, P Johnson, S Malymicz “Gurry on Breach of Confidence: The Protection of               Confidential Information (2nd ed)”, Oxford University Press, 2012.

[38] At [1.01] and omitting footnote.

[39] It is not necessary for present purposes to trace the historical development of the action for breach of               confidence.  This is traversed in considerable detail in Chapter 2 of “Gurry on Breach of Confidence               (2nd edition)”.  Suffice it to say that the history discloses that the courts frequently relied on contract               to protect confidential information during the first half of the twentieth century, with the recognition               in the second half of the twentieth century of a jurisdiction in equity to restrain a breach of confidence               independently of any right at law in cases such as Saltman Engineering Co Ltd v Campbell               Engineering Co Ltd (1948) 65 RPC 203.

[40] At 190-191.

[41] (1993) 178 CLR 408; [1993] HCA 56.

[42] Bray v Workers Rehabilitation & Compensation Corporation at 227.

[43] (2010) 265 ALR 281; [2010] FCAFC 21.

[44] (2013) 85 NSWLR 196; [2013] NSWCA 2.

[45] See, in that regard, Re Lobo and Department of Immigration and Citizenship (2011) 124 ALD 238; [2011] AATA 705.

[46] Heydon, Leeming, Turner “Meagher, Gummow & Lehane’s Equity Doctrines and Remedies (5th               ed)”, Lexis Nexis Butterworths, 2015 (“Meagher, Gummow & Lehane (5th ed)”) at [42-165]; see also               Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services &               Health (1990) 22 FCR 73 at 110.

[47] RTI Act, s 3(1).

[48] (2009) 238 CLR 448; [2009] HCA 10.

[49] At 455.

[50] (1980) 147 CLR 39; [1980] HCA 44.

[51] At 51.

[52] (1987) 10 NSWLR 86.

[53] At 191.

[54] (1990) 22 FCR 73; [1989] FCA 384.

[55] At 86 – 87.

[56] (1991) 28 FCR 291; [1991] FCA 150.

[57] At 302-303.

[58] At [84].

[59] (1994-1995) 183 CLR 10.

[60] At 31.

[61] At 31.

[62] At 31.

[63] At 48.

[64] At 48.

[65] At [25] of the Information Commissioner’s decision.

[66] QNU’s written submissions, para [36].

[67] As asserted by the QNU in its written submissions at [47].

[68] See, for example, Re Seeney MP and Department of State Development (2004) 6 QAR 354 at [188].

[69] At 51.

[70] [2015] WASC 15 at [43].

[71] [2007] WASC 232.

[72] At [42-100].

[73] Supra at 39.

[74] In Smith Kline & French Laboratories (Aust) Ltd (supra) at 87.

[75] At 112.

[76] Written submissions in reply, para 8.

Close

Editorial Notes

  • Published Case Name:

    Ramsay Health Care Ltd v Information Commissioner, Queensland Nurses and Midwives Union and Sunshine Coast Hospital and Health Service

  • Shortened Case Name:

    Ramsay Health Care Ltd v Information Commissioner

  • MNC:

    [2019] QCATA 66

  • Court:

    QCATA

  • Judge(s):

    Daubney P

  • Date:

    10 Jun 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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