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The plaintiff, Mr Parker, was employed by the Queensland Fire and Emergency Service (“QFES”). Mr Parker was tasked by the QFES with providing informal support to a colleague (“XY”) who was experiencing stress. XY surreptitiously recorded some of their conversations. The conversations were eventually shared with QFES. Mr Parker submitted that the recorded conversations were protected by the equitable obligation of confidence and could not be used by QFES. Ultimately, Henry J held that the recordings were not protected as confidential information.
6 November 2020 (delivered ex tempore)
Mr Parker was the area director for the far northern region of the Rural Fire Service, which is a branch of the QFES.
Mr Parker had been asked to provide support, informally, to XY who was experiencing high levels of stress. From late 2015 until mid-July 2017, Mr Parker used his work-issued mobile phone to contact XY on XY’s personal mobile phone every one to three weeks. Without Mr Parker’s knowledge, XY recorded some of these conversations.
The recorded conversations revealed that during these conversations Mr Parker had disclosed confidential information, disparaged his manager and evidenced an intention to corrupt an employee selection process.
XY made a WorkCover claim in 2017. It was refused and XY applied for a review of that decision to the regulator under the Workers’ Compensation and Rehabilitation Act 2003. The information that XY submitted to the regulator included XY’s recordings of conversations with Mr Parker.
Ultimately these conversations were referred to the QFES’ Ethical Standards Unit and in turn to the Crime and Corruption Commission. QFES suspended Mr Parker from his duties as area director as a result of the content of these recorded conversations.
Did QFES’ use of the recorded information breach an equitable obligation of confidentiality said to attach to the recordings?
Henry J observed that the equitable obligation of confidentiality was summarised by Allsop CJ in Crown Resorts Ltd v Zantran Pty Ltd (2020) 374 ALR 739, 745  (“Crown Resorts”), who stated that:
“Even in the absence of contract, equity will grant relief in personam not to disclose information other than for the purpose for which it was communicated if the nature of the information and the circumstances in which it was communicated call for that confidence to be respected by reference to notions of conscience.”
Citing Megarry J in Coco v AN Clark (Engineers) Ltd  RPC 41, 47, Henry J set out the elements required in proof of the obligation of confidentiality as follows:
“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.”
Justice Henry held that it was “uncontroversial” that the first and third elements were satisfied. His Honour noted that unlike XY, Mr Parker had no “expectation of confidentiality” during those phone calls, stating that Mr Parker’s position was akin to a psychologist. A psychologist is expected to maintain the client’s confidences; however the client does not owe the psychologist an obligation of confidentiality.
His Honour noted that Mr Parker’s comments were “not essential to the process” of supporting XY. In the circumstances, Mr Parker’s comments did not import an obligation of confidence. Therefore, the recorded comments were not protected by the equitable obligation of confidence.
Justice Henry went on to observe that even if he had found that the circumstances did attract the equitable obligation of confidence, it was defeated by an exception to that obligation, the principle that there is no confidence in inequity. Referring to Allsop CJ in Crown Resorts, Henry J stated that “the equitable obligation of confidence ought not protect against disclosure of a criminal or civil wrong or a serious misdeed of public importance”. Here, the information disclosed a reasonable suspicion of corrupt conduct.
Justice Henry explained that:
“The practical effect of the application of the Crime and Corruption Act to the circumstances of this case was to remove the protection of the equitable obligation of confidence if ever it did arise, because the action it necessarily required to be taken conferred upon the disclosed information a quality which placed it within the category of an acknowledged exception to that protection”.
A Hughes of Counsel