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Simes, Cheryl --- "The Development of the Public Interest Defence to Breach of Confidence" [1999] WkoLawRw 7; (1999) 7 Waikato Law Review 165


THE DEVELOPMENT OF THE PUBLIC INTEREST DEFENCE TO BREACH OF CONFIDENCE

BY CHERYL SIMES[*]

I. INTRODUCTION

A lawyer wants to inform his former employer’s clients, and the media, that the employer breached the Credit Contracts Act.[1] A New Zealand newspaper wants to publish the memoirs of a former British spy.[2] A psychiatric nurse wants to prevent the discharge into the community of a potentially dangerous patient.[3] A television station wants to reveal the anti-tax schemes of a corporation, based on information leaked by an employee.[4] A newspaper wants to identify a mother who killed her child.[5]

Each scenario has required the New Zealand courts to consider the public interest defence to an action for breach of confidence. Breach of confidence has three elements: information that is confidential, the imparting of that information in circumstances of confidence, and the unauthorised use of that information.[6] If, however, the disclosure or use was in the public interest, the breach of confidence action will fail. The principles involved extend beyond confidential information obtained as an employee, to other types of confidential information and other relationships of confidence.

What, then, are those principles? They are less immediately obvious than one might expect.

That New Zealand law recognises the existence of a public interest defence to an action for breach of confidence is not in question:

it has never been in dispute that in principle the law of New Zealand recognises that a public interest ... defence or justification is available in appropriate cases.[7]

On the other hand, when one seeks guidance on “appropriate cases”, almost all authorities cited, whether in a 1973 report,[8] or in New Zealand texts published in 1996[9] and 1997,[10] are English or Australian cases, not New Zealand. One cannot now simply assume that New Zealand courts will follow those decisions. Divorced from a New Zealand context, such citations are at best persuasive.

In an action for breach of confidence, a defendant relying on an overriding public interest in disclosure has the onus of identifying and establishing the relevant public interest.[11] Without a clear New Zealand precedent, such a defendant must potentially try to predict the extent to which New Zealand courts will follow the English or Australian precedents.

This article identifies aspects of the public interest defence already established in New Zealand law, and compares them to the English and Australian approaches. It also attempts further to identify likely New Zealand parameters of the defence. The writer draws on other New Zealand case law, and legislation, to consider how the broader law views the “public interest” in relation to disclosure of confidential information.

Confidential information is perhaps at the core of the “fusion” of law and equity, having never been absolutely on one side of the line in the first place.[12] These mixed origins offer particular legitimacy to a research approach that includes inferences from other areas of law. One may note, for instance, Cooke P’s obiter discussion of the possible application of the “newspaper rule” (from defamation and slander of goods) to breach of confidence.[13] Paul Roth, also, has drawn on breach of confidence to elucidate the Privacy Act.[14] In discussing public interest immunity from discovery, a breach of confidence case is considered relevant.[15] Jeffries J was ready to apply, mutatis mutandis, principles of and modifications to the ethical principle of medical confidence, to confidential information supplied under a statutory obligation.[16] Similarly, the Privacy Commissioner has drawn analogies from other statutes, and from medical discipline for breaching patient confidences, when considering privacy breaches.[17]

Such inferences, however, must still take account of the differing contexts from which they are drawn. Underpinning this analysis is a particular concern for notions such as unconscionability, said to be the equitable essence of breach of confidence.[18]

It is submitted below that the New Zealand courts have rejected the literal rule of “there is no confidence as to the disclosure of iniquity”.[19] Instead, the courts consider whether disclosure of the “iniquity” is sufficiently in the public interest to outweigh the obligation of confidence. This depends on a range of factors: the relationship to which the information refers; the nature and extent of disclosure; the import of the information being disclosed; and, especially, the effect of disclosure in preventing or causing harm. The courts do not confine “iniquity” to criminality. The onus and standard of proof appear partly to differ from the English and Australian approaches.

II. DISCLOSURE OR NOT? - BALANCE, NOT FORMULA

1. Principle

The clearest New Zealand authority summarising the public interest defence - particularly the “iniquity” aspect - is from the Court of Appeal:

Iniquity is not limited to the proposed or contemplated commission of crimes or civil wrongs. It extends to crimes, frauds and misdeeds, committed as well as in contemplation, and to disclosures of things done in breach of national security, provided always, and this is essential, that the disclosure of them is in the public interest ... By public interest is meant ... something which may be of real concern to the public.[20]

Thus it is clearly necessary not only to perceive an element of iniquity (or other harm or other public interest), but to consider also whether disclosure of that element is sufficiently in the public interest to outweigh the obligation of confidence.

This may be contrasted with the alternative approach in which an appropriate level of iniquity (or other harm) would, once established, either automatically nullify the confidence or automatically justify disclosure.

2. Application

New Zealand courts, unlike the High Court of Australia,[21] have not agreed that criminal conduct (or other iniquity or wrongdoing) necessarily nullifies confidentiality. Instead, they have first considered whether there is a breach of confidence, and then decided whether or not a public interest in disclosure outweighs (or, in interlocutory applications, may outweigh) this breach. The level of iniquity becomes one element to be weighed along with other circumstances, rather than being the sole determinant.

T v Attorney-General[22] is perhaps the clearest example of this. It involved the disclosure of confidential personal information about a woman who had killed her child. The plaintiff sought to prevent the media from publishing information from a confidential report by the first defendant which had inadvertently been provided to the media. The media submitted that the respective iniquities of the plaintiff (killing her child) and the Attorney General (through the Director-General’s failure to protect the child in the Department’s care) were a bar to equitable relief. Ellis J disagreed. Ellis J first allowed the obligation of confidence to outweigh the iniquity, then also declined to allow the iniquity to bar relief.[23]

In weighing factors favouring publication, I consider the initial position taken by the court should be that the confidential information should not be published unless there are compelling factors in the competing public interest to the contrary.[24]

If confidential information related to children, “the interests of the child (and perhaps children in general) will be considered paramount”.[25] But neither freedom of the press, iniquity, nor prior publication compelled disclosure of the full report as such.[26] Ellis J weighed the question of harm to the plaintiff and to the Department together with the other matters going to an overall assessment of how the public interest was best to be served.[27] It was clear that publication would harm the plaintiff, and also, by undermining the essential relationship between social workers and their clients, the Department. (Ellis J drew a close parallel with X v Y,[28] in which a newspaper was restrained from identifying doctors who were still practising although they had contracted AIDS).

This approach is clearly analogous to the statutory “likely effect of the disclosure on the confidant or any other person”.[29]

In a different context, Henry J adopted,[30] as summarising “the present nature” of the iniquity rule, an Australian summary:

publication of otherwise confidential material might be permitted in cases in which there is shown to be some impropriety which is of such a nature that it ought, in the public interest, to be exposed.[31]

His Honour appears to have considered that the nature of the impropriety was the sole determinant of whether it was in the public interest to expose that impropriety. Yet, in saying that publication “might” rather than “would” be permitted, he clearly recognised that the decision was discretionary, at least as to the extent of disclosure. The interlocutory judgment did not fully explore the issue.

On the other hand, in three other New Zealand cases, courts have taken a different approach. Instead of beginning with a clear breach of confidence and then deciding whether the breach was outweighed by a public interest in disclosure, they have ruled that either the confidentiality of the information, or the breach of that confidentiality, was nullified. First, although overturned on appeal, Davison CJ ruled that government information was prima facie not confidential information, unless confidentiality was proved to be in the public interest.[32] Secondly, Jeffries J twice ruled that disclosure was not a breach. Disclosing a letter to a senior practitioner while seeking advice on an ethical matter was not a breach of confidence;[33] and there was no breach if information was used for statutorily-approved purposes in the interests of protecting public health.[34] None of these cases is irreconcilable with the principle that, once the court does establish a breach of confidence, that breach may be deemed justified in the public interest.

3. Analogous law

The approach in T v Attorney-General is consistent not only with Australian and English precedent,[35] but also with other New Zealand law affecting the disclosure of confidential information in the public interest.

For instance, the public interest in securing justice may, in a criminal investigation, justify disclosing information that would otherwise be privileged.[36] The information must be sufficiently relevant and significant to outweigh the public interest in upholding the confidence.[37] (If, on the other hand, there is no additional, special reason for confidentiality, the level of relevance and significance need not be great: the usual public interest in preventing crime and in the administration of justice will justify disclosure of criminal activity).

Section 35 of the Evidence Amendment Act (No. 2) 1980 allows a court to excuse a witness from giving any particular evidence if giving that evidence would breach a confidence. Under section 35, there must be not only confidential information imparted in confidential circumstances, but also a special relationship: therefore the analogy must not be taken too far. It is worth noting, however, that the section requires the court to consider whether the public interest in disclosure is “outweighed” by the public interest in the preservation of confidences.[38] Considerations include the manner and circumstances in which the information was given, the purpose for which it was given, the seriousness of the reasons for seeking disclosure, and whether there are other means of obtaining the evidence.[39] This provision is similar to the common law privilege for confidential relationships, which focuses on the existence of a confidential relationship that “ought to be sedulously fostered”.[40]

The public interest in avoiding delays in the administration of justice may sometimes favour disclosure[41] and at other times require non-disclosure.[42] Brannigan was an application for leave to appeal to the Privy Council. The Court of Appeal had upheld the ruling of Davison CJ, the “winebox” Commissioner, who had required the giving of evidence and production of documents. Although affirming the strong public interest in having the Commission proceed as soon as reasonably practicable, the Court of Appeal granted leave to appeal to the Privy Council because there was in fact no evidence that such an appeal would delay the Commission’s work.[43]

Fairness to an accused may sometimes justify the disclosure of otherwise confidential material to ensure that the accused has access to all material relevant to his defence.[44] At other times it may require that evidence not be admitted, as, for instance, if the evidence was obtained unfairly.[45]

4. Nature of relationship

The “special relationship” factor may extend to actions for breach of confidence (where confidentiality is a sword), rather than being confined to claims of privilege (where confidentiality is a shield).

One perceives therefore a reducing scale of seriousness: breach of confidence in a fiduciary relationship;[46] breach of confidence that also breaches privacy;[47] breach of confidence alone;[48] and breach of privacy alone.[49] Thus, in situations involving breach of privacy but not breach of confidence, a rather lower level of public interest may justify disclosure.[50] This may support a hypothesis that confidential information is seen not “in terms of exchange, or commodity value, but as part of an ongoing web of communication”, or part of a process of relationship-building.[51] The stronger the relationships, the stronger their claims to protection “as processes of communication, negotiation, shared interests, reciprocal loyalty or (in the event of breakdown) minimal ethical requirements of conscionable conduct”.[52]

However, any reduction in scale should not be over-stated. New Zealand law specifically protects individual privacy, as in the Privacy Act 1993. For instance, claims of the “public interest” did not validate the surreptitious filming of an interview in which a woman revealed that she had been the victim of sexual abuse: Eichelbaum CJ ruled that “privacy”, as protected also by the Broadcasting Act, should receive a liberal interpretation.[53] This New Zealand approach may be contrasted with the English case of Kaye v Robertson.[54]

5. There may be confidence as to the disclosure of iniquity

The above cases indicate that New Zealand courts are likely to reject the literal notion that there is no confidence as to the disclosure of iniquity. They are more likely to accept that the confidence exists, and then decide whether the public interest in disclosure is more important. “Iniquity” (or other public interest) will be only one element put into the balance. The relevance and significance of the information, and the nature of the relationship between the parties, will also be considered. Particular attention is paid to the effect of disclosure in preventing or causing harm.

This suggests that, for all the talk of “equity” (the court in T v Attorney-General was consciously offering equitable intervention),[55] the emphasis is on consequences rather than conscience.

III. DISCLOSURE TO WHOM: TO AUTHORITIES OR TO THE PUBLIC?

Whether disclosure to the public is acceptable depends primarily on what is necessary to prevent harm, and sometimes to provide public accountability. Also relevant are the extent of any wrongdoing, the nature of the relationship (discussed above), and the state of the proceedings (interlocutory or substantive). One is required to balance the several interests involved.

1. Wrongdoing: disclosure to the public?

The Court of Appeal ruled that it was in New Zealand’s public interest that information about penetration of and wrongdoing by the British Security Service should be available to the New Zealand public[56] - even, apparently, when the New Zealand Government supported the British attempt to prevent publication. This was because of the implications for New Zealand’s own national security. There is an apparent contrast with the English courts’ refusal to justify public (media) disclosure of misconduct affecting national security.[57] (It is not clear, however, exactly how the New Zealand public, as against the New Zealand authorities, was expected to remedy the problem.) But the “Spycatcher” facts offer scant precedent for more usual scenarios.

On the other hand, disclosure to the public was firmly rejected in T v Attorney-General.[58] In deciding whether disclosure of the full departmental report to the public was justified, Ellis J adopted the principle that “the question of immorality as a bar to relief [from publication]” involved “an assessment by the Judge based on questions of degree”. Contrary to what might have been expected, his Honour weighed, not the degree of misconduct by respective parties, but the obligation of confidentiality against the degree of publication necessary to satisfy the public interest. Despite the obvious “iniquities”,[59] Ellis J ruled that the public at large “only needs to know the essential features”. The Amended Report, although less detailed and less readable than the full report, preserved those features, and so publishing the Amended Report met those needs. The full report would still be available to professionals who needed it.[60]

Ellis J prohibited publication of the full report. But, because some of the confidential information had already been published when the events concerned first occurred, and was therefore independently known, the media were allowed to use other sources to find out what they could, as long as they did not use the report as a springboard for their investigations.[61]

Although the two cases were very different, T v Attorney-General approved Stephens v Avery. In Stephens v Avery,[62] unlike T v Attorney-General, the judge basically decided that there was no iniquity to consider: the plaintiff’s conduct had not been what the general public would consider “grossly immoral”. Moreover, “grossly immoral” conduct meant producing a tendency towards immoral conduct, and therefore the appropriate public interest response by the defendants was hardly to aggravate that tendency by “spread[ing] the news of such conduct nationwide for their own profit”.[63] This latter approach confirms the “prevention of harm” consideration.

Similar principles appear to apply to commercial information. Wrongdoing may, in the public interest, be disclosed in the media, not merely to enforcement authorities. The difficulty is in knowing what exactly is the determinant of wrongdoing “which should or could properly be made public”.[64]

On the one hand, the Court of Appeal has approved[65] Initial Services v Putterill,[66] which allowed disclosure to the press of breaches of a statutory duty. In Initial Services, Salmon LJ and Wynn LJ considered that to strike out a defence because the defendant went to the wrong person to disclose the information would be impossible,[67] while Denning LJ reasoned that had the information been disclosed to the appropriate authority (registrar) it would then have been publicly accessible anyway.[68] Further, in one of the “winebox” cases, Henry J accepted, in general terms, that information allegedly about companies avoiding or circumventing New Zealand taxation, investment and company law warranted disclosure, including to the public.[69] The Court of Appeal, recognising “fraud on the revenue” as potentially allowing disclosure, upheld the lower courts’ interlocutory decisions. However, in that same case, the appellate court left the key question of “the permissible extent of publication in such a case”[70] to be determined at the substantive hearing. It did draw the trial court’s attention to English authority on the public interest defence.[71] (In an obiter discussion, Cooke P also noted that an order to reveal the source of the information might be declined precisely because what the source had disclosed was an iniquity).[72]

On the other hand, when considering alleged breaches of the Credit Contracts Act and other protective legislation, the High Court declined to allow disclosure to the media. The public interest was satisfied instead by limited disclosure to “those agencies with a statutory remit to receive and investigate such matters”.[73] The court added that this limitation could potentially be reconsidered in the future, given that the news media had not been represented in the proceedings.

2. Wrongdoing: disclosure to authorities?

In interlocutory proceedings, to ensure that the substantive issue is not predetermined, a stricter test applies. Disclosure must be only such as is necessary to enable enforcement authorities to ensure that the conduct does not recur and to take action against what has occurred. Thus, Henry J granted an interim injunction to prevent disclosure to the general public: disclosure was not necessary, because the transactions were in the past, and because the “appropriate enforcement authorities” already had the information.[74] The Court of Appeal agreed.[75] Like Henry J, the Court of Appeal applied Francome v Mirror Group Newspapers Ltd,[76] in which the public interest was served by delivering the information to the authorities rather than permitting its publication by the defendant.[77]

In R v H,[78] the relevant disclosure (of company bribes to a fisheries official) was by a company employee to the police; disclosure to a wider public was not discussed. The issue was the admissibility of the resulting evidence, not the civil liability of the informant, but the Court of Appeal indicated that the public interest defence would have applied if the latter had been in issue.[79] This was surely scarcely surprising. By referring to “the iniquity or public interest plea”,[80] or “the iniquity/public interest rule”,[81] in the singular, the Court of Appeal also appeared to correct Barker ACJ’s discussion of the “‘iniquity’ defence” and the “defence of ‘public interest’“ as alternatives.[82]

Criminal wrongdoing, such as corruption,[83] serious fraud,[84] or direct threats of violence against innocent persons,[85] will not merely justify disclosure to enforcement authorities, but require it.

3. Public health and personal safety: only to authorities?

Where wrongdoing is not involved, disclosure of serious risks to personal or public safety is justified only if made to authorities who can act to prevent the harm.[86]

Is wider disclosure justifiable if the authorities have failed to act? Neil Pugmire disclosed to an opposition politician the dangers posed by the release of a particular psychiatric patient. The Privacy Commissioner found that this disclosure exceeded what was necessary and interfered with the patient’s right to privacy.[87] Pugmire had apparently already tried unsuccessfully to ensure action by more appropriate authorities.[88] The Privacy Commissioner’s concern was with Pugmire’s disclosure of specific, identifying information.

It seems that disclosure to the public, even in order to protect potential patients or clients, is not valid if there is a duty of confidence, unless other attempts to persuade authorities to act have failed, or there is an immediate serious threat to an identifiable individual who can be warned directly.[89]

The duty of confidence is the deciding factor here. In G v G,[90] the general public was warned indirectly. But, in that case, the defendant’s identity was not subject to a duty of confidence: the judge merely declined to continue name suppression. One may contrast X v Y, where the court forbade media identification, from leaked hospital records, of doctors who had AIDS. The public interest in confidentiality and maintaining patient trust, especially in reference to AIDS patients’ hospital records, outweighed the “very small theoretical risk” to individuals whose doctors had AIDS.[91]

If authorities fail to act, this will potentially warrant disclosure of relevant confidential information to someone who is seeking a remedy after being harmed as a result of that failure to act.[92]

4. Public accountability: a new ground for disclosure?

The Court of Appeal readily accepted public disclosure in the Spycatcher case. This should not be misinterpreted as emphasising the public interest in government accountability: Spycatcher involved an overseas government, and on that basis was distinguished from other authorities.

Other areas of law in New Zealand do contain hints that disclosure to the public may be valid on grounds of public accountability. First, confidential commercial information had to be disclosed in public, not merely in private, in order to maintain public confidence in a commission of inquiry that had been established specifically in response to public concerns.[93] Secondly, in defamation law, New Zealand has recently accepted an extension of “qualified privilege”, on the basis that the public interest warrants a defence of “political expression”. The court recognised the public interest in receiving information about the exercise of public functions and powers.[94]

Thus disclosure, even to the general public, may be valid for reasons other than the necessary prevention of harm. Will an emphasis on public accountability then detract from the equitable emphasis on keeping confidences?

5. Proceed with caution

Despite the courts’ apparently liberal approach to the public disclosure of government or commercial wrongdoing, most disclosures are likely to be weighed against necessity, or at least proportionality. Disclosure to the wider public is unlikely to be approved if it bypasses appropriate authorities.[95] Disclosure to the wider public may in certain circumstances be approved if it accompanies disclosure to appropriate authorities.

IV. DISCLOSURE OF WHAT?

When the courts are weighing the public interest in disclosure, the subject matter being disclosed remains a central element in the balance. Included is not only the traditional “iniquity”, but broader prevention of harm. I submit that the parameters are likely to be similar, but not identical, to those applicable in England and Australia.

1. “Iniquity” - broad rather than narrow

The “defence of iniquity” is recognised as “probably the prime instance” of the principle that “the law will not protect confidential information if the publication complained of is shown to be in the overriding public interest”.[96] Defining “iniquity” has not always been easy.

“Iniquity” may encompass past wrongs as well as present or future, and civil as well as criminal wrongs.
Iniquity is not limited to the proposed or contemplated commission of crimes or civil wrongs. It extends to crimes, frauds and misdeeds, committed as well as in contemplation, and to disclosures of things done in breach of national security.[97]

As already discussed, New Zealand “iniquity” cases have involved the killing of a child by his mother,[98] security-service wrongdoing and possible infiltration,[99] corporate tax schemes and investigative authorities’ inaction,[100] breaches of the Credit Contracts Act,[101] and corrupt payments to a fisheries officer.[102]

As regards criminal wrongs, one may draw parallels with other areas of law in which the administration of justice has favoured disclosure of otherwise confidential information. These include allegations of taxation law abuse by major New Zealand companies;[103] allegations of abuse of the taxation function by the Cook Islands Government;[104] and disclosure of bank account details, to enable the recovery of money fraudulently obtained.[105]

As regards civil wrongs, New Zealand courts may well follow their English counterparts[106] in supporting the public disclosure of conduct that deceives consumers. After all, in implementing the Fair Trading Act 1986, the courts have recognised the public interest in freedom from deception.[107] On a related subject, incorrect odometer readings in imported vehicles justified the vehicles’ seizure under a customs ban which the court upheld as being necessary in the public interest.[108] Similarly, the protection of genuine trademarks from free-riding competitors is in the public interest.[109]

Given that the Fair Trading Act bans misleading conduct, not merely deceptive conduct, New Zealand courts may also potentially approve disclosures that correct an image that had been falsely projected.[110] The court in Re Dickinson came close to this, where the public interest in a fair determination of market rents favoured disclosure of subpoenaed information about other rental and collateral agreements, despite confidentiality clauses in those agreements.[111] Maintaining the confidentiality of these agreements would, in the peculiar context of the creative accounting prevalent in the property market at the time, have perpetrated false, almost fraudulent, impressions of actual market rents.[112] The information was disclosed only as much as was necessary for the arbitration.

But if New Zealand courts do uphold the public disclosure of confidential information about misleading conduct, they will be going against Australian authority: Castrol Australia Pty Ltd v EmTech Associates Ltd,[113] and Corrs Pavey v Collector of Customs.[114]

The courts recognise the public interest in the maintenance or security of economic institutions, “among them commercial morality”.[115] The public interest in maintaining standards of honesty in the commercial community may even outweigh solicitor-client privilege.[116]

Negligence and incompetence, without any intent, may perhaps not be enough to bring the defence into operation.[117] Yet, in Campbell v Tameside Metropolitan Borough Council,[118] a plaintiff was granted access to confidential psychological reports on a school pupil following a violent attack by that pupil for which the plaintiff held the education authority responsible. Disclosure of past negligence was barred in Schering principally because the defendant’s unconscionable conduct was not outweighed by any genuine need for disclosure: the suspect drug had been withdrawn from the market, and individuals affected were already engaged in litigation to seek remedies.[119]

From these decisions, it appears that negligence resulting in personal harm may, if meeting the other tests for “public interest” disclosure, be disclosed; while past negligence, or negligence affecting only property, may not be disclosed.[120]

Does a breach of statutory duty justify disclosure? There is a general principle that it is not appropriate to grant relief contrary to the object of an enactment, because to do so is against the public interest preserved by the enactment.[121] Thus, extensions of time for dealing with mining privilege applications were overturned, as being contrary to the statutory time requirements. This was because the time limits were imposed primarily in the public interest, to limit the time during which proprietary rights were threatened.[122] In breach of confidence, by analogy, someone who has breached a statute should not obtain relief against someone else who discloses that the statute has been breached. (Contrary Australian authority[123] should be acknowledged but not necessarily followed). Yet the court in M v R restricted disclosure of the “allegedly unlawful conduct or conduct which does not achieve the objects of the Credit Contracts Act”,[124] allowing disclosure only to enforcement authorities, rather than to clients or the public.[125] This was however only an interim injunction, not the substantive trial of either the alleged statutory breaches or the action for breach of confidence.

2. Private immorality

Matters of a “grossly immoral” tendency fall within the “iniquity” definition; but only where there is still “a generally accepted moral code”.[126] Thus, any such matters must be generally recognised as “grossly immoral”.[127]

Even if the information concerns “grossly immoral” matters, the disclosure itself must be in the public interest. English courts focus principally on the behaviour of the confidant, and will enforce a duty of confidence against unconscionable disclosure.[128]

In New Zealand, “compelling” grounds for disclosure would be necessary.[129]

3. Public health

In England and Australia, confidences may be breached in order to prevent harm to the health and welfare of the general community or to a particular member of the community.[130] Whether disclosure is justified will depend on the likelihood and severity of the danger involved.

New Zealand law recognises the interests of public health as a public interest.[131]

The strongest New Zealand authority in this aspect of the public interest defence may appear to be[132] Jeffries J’s decision in Smith Kline & French Laboratories Ltd v Attorney-General.[133] But Jeffries J did not directly consider the public interest defence, finding instead that there was no breach of confidentiality.

In this case, in order to assess the safety of an identical (generic) drug submitted by a competitor, the Department of Health had used confidential information supplied years previously by the manufacturer of the original drug when that drug was submitted for approval. The relationship was not contractual, or fiduciary, but imposed by statute. His Honour assessed the purpose of the statute concerned as being to avoid catastrophes such as thalidomide. The “health of the nation” was of “the foremost public importance” when the Minister and Department were granting consent to new medicines.[134] The information in question was used only internally within the Department, not conveyed to commercial rivals or anyone else.[135] In these circumstances, the use was not unauthorised and there was no breach.

His Honour approved the majority reasoning of the parallel English decision:[136] the protection of public health was the fundamental purpose of the drug-licensing system, and therefore the licensing authority could use the information for all or any of its duties as might be appropriate. His Honour distinguished[137] the Australian case of Castrol Australian Pty Ltd v EmTech Associates Pty Ltd[138] on the different purposes of the statutes involved.

A similar outcome occurred in the parallel Australian case.[139]

Beyond the rather specialised facts of Smith Kline, it is unclear to what extent New Zealand courts would approve disclosure of confidential information on the grounds of public health.

One may infer from the Privacy Act 1993 that, if disclosure of personal information were involved, the danger to health would have to be serious and imminent, and disclosure would be restricted to the level necessary to prevent harm.[140]

In relation to more general commercial information, the focus is likely to be on whether the public or any individual needed protection, or at least redress. In Schering,[141] these needs had already been met, so disclosure in breach of confidence was not justified. Conversely, by extension, if those needs had not already been met, disclosure in breach of confidence would indeed have been justified.

In New Zealand, memories of the National Women’s Hospital “unfortunate experiment” suggest a court might well view disclosure favourably, depending on the circumstances of disclosure and the seriousness of the information.

4. Personal safety

In England, a psychiatrist may reveal to the appropriate authorities that his or her patient is likely to be more dangerous if released than other doctors believe.[142] This requires “a real risk of consequent danger to the public”.[143]

On similar principles, a New Zealand court has recognised (obiter) that the public interest in disclosure would outweigh the public interest in confidentiality in circumstances where a doctor fairly and reasonably believed that danger to another life was imminent. Such disclosure would have to be to appropriate authorities.[144] The particular case involved a doctor who disclosed information about a patient whom he believed to be unfit to drive a bus. Disciplinary sanctions were upheld because the doctor had disclosed the patient’s medical information without knowing that a heart surgeon had certified the patient as fit to drive a passenger vehicle.[145]

Even more strongly, Hammond J urged that therapists or counsellors who knew of information threatening to others, such as a direct threat of violence against innocent persons, could not ignore those others.[146]

The broader law recognises that the public interest includes, for instance, the right to protection against acts of violence.[147] This may extend not only to physical harm, but also to emotional harm. When awarding exemplary damages for assault and battery, Cartwright J permitted publication of the defendant’s name and occupation “in the broader public interest”.[148] The “public interest” was that prospective women patients would know the defendant’s attitudes to women and his inability to control himself under stress.[149] But note that this case involved no breach of confidence, only a decision on whether, in a civil action, to continue name suppression.

5. “Public benefit”: not enough for breach of confidence?

It is not just disclosure of information that is at issue, but disclosure of confidential information. The courts have been cautious about increasing the “public interest” that may outweigh the recognised public interest in maintaining confidentiality. Are there, then, additional public interests, outside iniquity and public health and welfare, that justify breaching a confidence?

Pizer included “the public interest in the realisation of the democratic ideal” as justifying disclosure about government activity.[150] This Australian approach required the judiciary to view the disclosure of governmental information “through different spectacles”, and reversed the onus of proof by requiring the government to prove that the public interest demanded non-disclosure. It was adopted briefly in New Zealand by Davison CJ, but was promptly rejected by the Court of Appeal.[151]

It is well recognised that “public interest” is not simply to be equated with “public benefit”, especially when proprietary rights (as in confidential information) are involved.[152]

Although apparently not made expressly, this distinction is implied in Harding Signals Ltd v Cooper.[153] The High Court rejected the argument that it was in the public interest that the city council had a lower tender to consider. (The defendants had misused confidential information and submitted a tender lower than that of their former employer).[154]

6. Conclusion

The “public interest” encompasses the prevention or redress of wrongdoing, including aspects of civil wrongdoing, and the prevention of harm to public health or safety. This is similar in scope to comparative English and Australian approaches, and is supported also by other branches of New Zealand law.

One may hope that any new “public interest” grounds for disclosure of confidential information will be most carefully evaluated. As noted above, confidentiality is a higher duty than privacy.[155] The courts should not lightly extend the grounds on which candour and trust may be breached.

V. ONUS AND STANDARD OF PROOF

1. Onus is on defendant

In an action for breach of confidence in New Zealand, the defendant carries the onus of proving that disclosure is in the public interest. This is the case, whether the information concerned is about government, commercial, or private matters.

Regarding government information, this is different from the English and Australian approaches. English[156] and Australian[157] courts have accepted that government information should be disclosed unless those opposing disclosure can prove that the public interest requires non-disclosure.

In the New Zealand Spycatcher case, Davison CJ adopted this approach. His Honour drew on the Australian analysis in John Fairfax, namely, that breach of confidence was rooted in equity’s protection of personal, private and proprietary rights, and that “when equity protects government information it will look at the matter through different spectacles”. Reversing the usual onus of proof, he required the Attorney General to establish that restraint of publication was in the public interest.[158]

This approach was overturned on appeal. Cooke P applied the standard test for breach of confidence. The plaintiff had only to show that the information was prima facie confidential: “[t]he claim may be then rebutted by a public interest defence”.[159] Cooke P did not, however, totally reject the English and Australian authorities. Having rejected their view of the onus of proof, he recognised that determining the public interest “will or may require a balancing exercise of the kind undertaken ... in the cases last cited”.[160]

Thus, although the Official Information Act 1982 is rooted in the principle that official information is available unless there is good reason for withholding it,[161] the Court of Appeal in effect declined to extend this principle to breach of confidence. Its judgment is, however, consistent with the Official Information Act itself. Under that statute, “good reason” for refusing to make official information available exists where the information was subject to an obligation of confidence or was supplied by statutory compulsion, if making the information available would prejudice the supply of such source, or would be likely otherwise to damage the public interest.[162] This is consistent with an intention that government information be treated no differently, in breach of confidence actions, from other information.

2. Credible narrative, or balance of probabilities?

Will the defence be valid only if the defendant can prove the allegations of impropriety were true? Or does the defendant merely have to show that the allegations were well founded, perhaps made in an honest belief on reasonable grounds?

The usual requirement in Australia has been a prima facie case, or reasonable grounds for believing that there is serious wrongdoing.[163] In England, similarly, the House of Lords required, in the Spycatcher case, at least a prima facie case that the allegations had substance.[164] Cooke P summarised that their Lordships required at least “a credible allegation from an apparently reliable source”,[165] and, with such attempts at verification as is reasonably possible, “such appearance of truth as it would be reasonable in all the circumstances to expect”.[166] This foundation can then be built on by using interrogatories or discovery to obtain (further) evidence of the fraud or other iniquity.[167]

In New Zealand, the court upheld an order for discovery of information about certain companies and their relationship. That information impinged on the specific allegation of impropriety, and the plaintiffs were likely to produce, at trial, documentation to rebut the inference or imputations claimed by the defendants.[168] This seems consistent with the established principles. Similarly, a “prima facie case” was expressly mentioned in M v R.[169]

Yet, by encompassing the plaintiffs’ likely response, the reasoning in European Pacific v TVNZ implies that the test is the balance of probabilities, rather than a prima facie case. This approach also raises the question of whether a breach of confidence is justifiable on public interest grounds if the defendant only subsequently obtains (through discovery) enough evidence to prove those public interest grounds. Should the defendant not already have such evidence, before breaching the confidence?

The plaintiff in the New Zealand “Spycatcher” case wished, on security grounds, to avoid giving evidence, and therefore waived the need for the defendant to prove the allegations made. Noting the alternative mechanisms available for protecting security, and therefore that the plaintiff had not been denied justice, the Court of Appeal acted on the alleged matters of fact in the book as if they had been proved.[170]

Moreover, Cooke J’s treatment of disclosure that is “true and in the public interest”[171] as a full justification supports the need for proof on the balance of probabilities.

3. Conclusion

The onus of proof is on the defendant. The allegations require some foundation, but it is not clear whether a credible narrative will suffice, or whether the defendant must prove truth on the balance of probabilities.

It is clear from the Court of Appeal’s judgment in the “Spycatcher” case that, if a plaintiff waives the need for the defendant to prove the allegations, the court will treat the allegations as having been true.

VI. CONSEQUENCES OF DISCLOSURE

If on balance the public interest favours disclosure, is the public interest defence then a full justification? If so, the defendant will be able not only to resist an injunction, but also to retain any profits derived from the disclosure. Or is the public interest only a defence against an injunction, but not against damages or an account of profits?[172]

1. Full justification?

New Zealand has emphasised justification. In particular, Cooke P rejected Davison CJ’s apparent treatment of the public interest defence as going only to relief:

If that was his meaning I have to say, with great respect, that at least against a third party in the position of The Dominion the defence should go to the whole cause of action. I am unwilling to accept that in this class of case, when the publication by it is both true and in the public interest, a newspaper should have to pay damages or account for any profits.[173]

Although this statement refers specifically to third parties, Cooke P also reaffirmed, in the appeal sequel, that “a public interest (or “iniquity”) defence or justification is available in appropriate cases”.[174]

Hammond J has also referred to the “public interest justification” for a breach of confidence.[175]

2. Good faith but untrue?

Cooke P’s statement suggests that a full justification is warranted where disclosure is true and in the public interest. This may in turn imply that good-faith disclosure that was, in the end, not true might indeed be subject to damages, or at least an account of profits. New Zealand has no breach of confidence ruling on such facts: the “winebox” cases, if brought to substantive hearings, might yet provide this answer.

VII. CONCLUSION

From the above review of the cases, I draw out the following principles:

First, in assessing claims that a breach of confidence is in the public interest, New Zealand courts have drawn on principles established by English and Australian authorities, but have altered their application.

Secondly, wrongdoing by a plaintiff will not in itself justify a breach of confidence: disclosure of the wrongdoing must be in the public interest. The nature of the public interest will influence whether disclosure to the public, rather than merely to enforcement authorities, is justified.

Thirdly, a serious breach of confidence will be justified only by a compelling public interest; a lesser breach may be justified also by a less significant public interest. This is more to do with the harm to be averted, or the nature of the confidential relationship, than with whether the information as such was commercial, governmental, or personal, or even the conduct of the parties. While talking equity, the courts appear to view consequences more seriously than conscience.

Fourthly, unlike in England and Australia, in New Zealand a breach of confidence involving governmental information is approached no differently than a breach involving other confidential information. Other aspects of New Zealand law may also draw the public interest defence away from English and Australian precedent, in the disclosure of civil wrongs, and in a stronger weighting for individual privacy.

Fifthly, it is unclear exactly what standard of proof is required of the truth of what is disclosed. It is however clear that, in New Zealand, whatever standard is required must be met by the defendant.

Sixthly, it appears most likely that disclosure in the public interest constitutes a complete justification, allowing a defendant not only to avoid an injunction or damages, but also to retain any profits.

Finally, New Zealand is clearly developing its own public interest defence to breach of confidence. In doing so, the courts are drawing on other areas of New Zealand law, while remaining also attuned to English and Australian authorities.


[*] MA (Hons), LLB (Hons) (Waikato), barrister and solicitor of the High Court of New Zealand. Note, the law in this article is current to August 1998.

[1] M v R, unreported, High Court, Auckland, 24 April 1998 (CP 590/97).

[2] The “Spycatcher” cases: Attorney-General for United Kingdom v Wellington Newspapers Ltd [1987] NZHC 377; [1988] 1 NZLR 129 (CA); Attorney-General for United Kingdom v Wellington Newspapers Ltd (No 2) [1988] 1 NZLR 180 (CA).

[3] Privacy Commissioner, Statement ... on the Neil Pugmire Case, Case Note 2049 (1996), http://www.knowledge-basket.co.nz/privacy/speeches/privfeb.htm.

[4] The “winebox” cases, including European Pacific Banking Corporation v Fourth Estate Publications Ltd [1993] 1 NZLR 559 and European Pacific Banking Corporation v Television New Zealand Ltd [1994] 3 NZLR 43 (CA).

[5] T v Attorney-General [1988] NZHC 656; (1988) 5 NZFLR 357.

[6] Coco v AN Clark (Engineers) Ltd [1969] RPC 41, 47, approved in AB Consolidated v Europe Strength Food Co [1978] 2 NZLR 515, 520 (CA).

[7] Attorney-General for United Kingdom v Wellington Newspapers Ltd (No. 2) [1988] 1 NZLR 180, 182 (CA), per Cooke P.

[8] Torts and General Law Reform Committee, Report, 17, cited by Brown, A and Grant, A The law of intellectual property in New Zealand (1989) 671.

[9] Dal Pont, GE and Chalmers, DRC Equity and trusts in Australia and New Zealand (1996) 101-109.

[10] Todd, S and Bedggood, M “Tortious aspects of unfair competition” in Todd, S (ed) The Law of Torts in New Zealand (2nd ed, 1997) 811-813. See also Katz, J Laws of New Zealand: Intellectual Property: Confidential Information (1995) 184-190.

[11] European Pacific Banking Corporation v Fourth Estate Publications Ltd [1993] 1 NZLR 559, 564, per Henry J.

[12] Note the ambivalence of New Zealand courts on the importance of rooting breach of confidence in equity: contrast the statement in Attorney-General for United Kingdom v Wellington Newspapers [1987] NZHC 377; [1988] 1 NZLR 129, 172 (CA), per Cooke P, with that in Smith Kline and French Laboratories Ltd v Attorney-General [1988] NZHC 734; [1989] 1 NZLR 385, 396, per Jeffries J.

[13] European Pacific Banking Corporation v Television New Zealand Ltd [1994] 3 NZLR 43, 48 (CA).

[14] Roth, P Privacy law and practice (1995-1998) C/245B: Roth discusses Smith Kline & French Laboratories (Aust) Ltd v Department of Community Services and Health [1991] FCA 150; (1991) 28 FCR 291, 302-03 (FCA).

[15] McGechan on Procedure (1996) 5-8(g), referring to Attorney-General for United Kingdom v Wellington Newspapers [1988] 1 NZR 129 (CA).

[16] Smith Kline & French Laboratories v Attorney-General [1988] NZHC 734; [1989] 1 NZLR 385, 396, referring to Duncan v Medical Practitioners Disciplinary Committee [1986] 1 NZLR 513.

[17] See, for instance, Privacy Commissioner, supra note 3.

[18] Dal Pont and Chalmers, supra note 9, at 96. See also Stephens v Avery [1988] 2 All ER 477, 482 (Ch).

[19] Gartside v Outram (1857) 26 LJ Ch (NS) 113, 114.

[20] Attorney-General for United Kingdom v Wellington Newspapers Ltd [1987] NZHC 377; [1988] 1 NZLR 129, 178 (CA), per McMullin J (emphasis added). McMullin J appears to have drawn this from Lord Denning’s summary in Initial Services Ltd v Putterill [1967] 3 All ER 145, 148, but with the addition of “things done in breach of national security”.

[21] A v Hayden [1984] HCA 67; (1984) 156 CLR 532, 557, 563, 574, 587-88, 592, 597-98 (HCA).

[22] T v Attorney-General [1988] NZHC 656; (1988) 5 NZFLR 357.

[23] At 374.

[24] At 373.

[25] At 372.

[26] At 373-76.

[27] At 375.

[28] X v Y [1988] 2 All ER 648.

[29] Evidence Amendment Act (No. 2) 1980, s 35(2)(c).

[30] European Pacific Banking Corporation v Fourth Estate Publications Ltd [1993] 1 NZLR 559, 564.

[31] Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513, 525, per Powell J.

[32] Attorney-General for the United Kingdom v Wellington Newspapers [1987] NZHC 377; [1988] 1 NZLR 129 (CA).

[33] McKaskell v Benseman [1989] NZHC 225; [1989] 3 NZLR 75, 88. Note also that in this case the analysis of breach of confidence was in tort and contract, rather than equity.

[34] Smith Kline & French Laboratories Ltd v Attorney-General [1988] NZHC 734; [1989] 1 NZLR 385, 396.

[35] Dal Pont and Chalmers, supra note 9, at 102-3; Initial Services Ltd v Putterill [1967] 3 All ER 145 (CA); also Gibbs CJ’s dissent in A v Hayden [1984] HCA 67; (1984) 156 CLR 532, 545-546 (HCA).

[36] Attorney-General v Transport Accident Investigation Commission, unreported, High Court, Wellington, 18 December 1996 (CP 164/96, CP 180/96). This was upheld on appeal in New Zealand Airline Pilots Association Ltd v Attorney-General, unreported, Court of Appeal, 16 June 1997 (CA 300/96). See also R v Lory (Ruling 8) [1997] 1 NZLR 44, 50-51; R v S (1996) 13 CRNZ 637, 641.

[37] The evidence was insufficiently material in R v Bain (No. 5), unreported, High Court, Dunedin, 11 May 1995 (T 1/95). In R v S, ibid, 641-42, it went to the central issue of credibility.

[38] Evidence Amendment Act (No 2) 1980, s 35(2).

[39] R v Secord [1992] 3 NZLR 570, 575 (CA, Full Court) (obiter).

[40] The Wigmore test, cited in R v Lory (Ruling 8) [1997] 1 NZLR 44, 50.

[41] Brannigan v Davison (1996) 9 PRNZ 277, 281 (CA).

[42] European Pacific Banking Corporation v Fourth Estate Publications Ltd [1993] 1 NZLR 559, 567.

[43] Brannigan v Davison (1996) 9 PRNZ 277, 281 (CA).

[44] As in R (T 65/96) v R (1996) 14 CRNZ 635, 641; R v S (1996) 13 CRNZ 637, 641-42; also R v McNicol [1995] 1 NZLR 576, 579-80 (CA), where the Court acknowledged the possibility of allowing disclosure about police informants if relevant to showing that the accused was innocent of the offence.

[45] R v H [1994] 2 NZLR 143 (CA); R v Rapana [1995] 2 NZLR 381.

[46] Eg X v Y [1988] 2 All ER 648; also Duncan v Medical Practitioners Disciplinary Committee [1986] 1 NZLR 513.

[47] T v Attorney-General [1988] NZHC 656; (1988) 5 NZFLR 357; Stephens v Avery [1988] 2 All ER 477 (Ch).

[48] Often, but not necessarily, commercial cases.

[49] As in Tucker v News Media Ownership Ltd [1986] NZHC 216; [1986] 2 NZLR 716; also Kaye v Robertson [1991] FSR 62.

[50] See detailed discussion in Laster, “Commonalities between breach of confidence and privacy” (1990) 14 NZULR 144.

[51] Wright, “Confidentiality and the public/private dichotomy” [1993] EIPR 237, 241.

[52] Ibid, 242.

[53] TV3 Network Services Ltd v Broadcasting Standards Authority [1995] 2 NZLR 720.

[54] [1991] FSR 62.

[55] T v Attorney-General [1988] NZHC 656; (1988) 5 NZFLR 357, 374.

[56] Attorney-General for United Kingdom v Wellington Newspapers Ltd [1987] NZHC 377; [1988] 1 NZLR 129, 177 (CA).

[57] Ibid.

[58] [1988] NZHC 656; (1988) 5 NZFLR 357.

[59] At 373-74.

[60] At 374-75.

[61] Paraphrased from 376-77.

[62] Stephens v Avery [1988] 2 All ER 477 (Ch); in T v Attorney-General (1988) NZFLR 357, 365, Ellis J quoted the headnote.

[63] Stephens v Avery [1988] 2 All ER 477, 480.

[64] European Pacific Banking Corporation v Television New Zealand Ltd [1994] 3 NZLR 43, 48 (CA), per Cooke P.

[65] In European Pacific, ibid. See also McMullin J in Attorney-General for United Kingdom v Wellington Newspapers [1987] NZHC 377; [1988] 1 NZLR 129, 178 (CA), as discussed supra note 20.

[66] Initial Services Ltd v Putterill [1967] 3 All ER 145, 149 (Lord Denning) and 150-51 (Salmon LJ).

[67] At 150-51, and 152.

[68] At 149.

[69] European Pacific Banking Corporation v Fourth Estate Publications Ltd [1993] 1 NZLR 559, 564.

[70] European Pacific v Television New Zealand [1994] 3 NZLR 43, 46 (CA).

[71] At 46-47. Cooke P referred to Attorney-General v Observer Ltd [1990] 1 AC 109 (HL), 222-23, 262, 279-80, 283, and to Cripps, Y The legal implications of disclosure in the public interest (1986) 79-82 (since superseded by a new edition, 1995), and went on also to cite Initial Services Ltd v Putterill [1967] 3 All ER 145 (CA).

[72] European Pacific v Television New Zealand [1994] 3 NZLR 43, 48, noting British Steel Corporation v Granada Television Ltd [1981] AC 1096, 1175 and 1201, and X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1, 44.

[73] M v R , unreported, High Court, Auckland, 24 April 1997 (CP 590/97).

[74] European Pacific v Fourth Estate Publication Ltd [1993] 1 NZLR 559, 564.

[75] European Pacific v Television New Zealand Ltd [1994] 3 NZLR 43, 48 (CA).

[76] [1984] 2 All ER 408, 413, 415, 416.

[77] Similarly, in rejecting attempts to require the defendants to reveal their informant, His Honour found disclosure at the interlocutory stage was not “necessary, in the sense that there is a compelling reason for it” (European Pacific v Fourth Estate Publication Ltd [1993] 1 NZLR 559, 567). Henry J distinguished British Steel Corporation v Granada Television Ltd [1981] AC 1096, and applied Francome v Mirror Group [1984] 2 All ER 408.

[78] R v H [1994] 2 NZLR 143 (CA).

[79] At 149.

[80] At 148.

[81] At 149.

[82] At 145.

[83] At 148 (Richardson J), from Fraser v Evans [1969] 1 QB 349, 362, and Lion Laboratories Ltd v Evans [1984] 2 All ER 417, 423.

[84] R v Curtis, unreported, Court of Appeal, 3 December 1993 (CA 346/93). This case is discussed by Morgan, “The public duty exception in Tournier: getting there the hard way in New Zealand” (1994) 9 Jnl of International Banking Law 241, 243.

[85] R v Lory (Ruling 8) [1997] 1 NZLR 44, 50.

[86] Furniss v Fitchett [1958] NZLR 396, 405-406 (Barrowclough CJ, obiter); Duncan v Medical Practitioners Disciplinary Committee [1986] 1 NZLR 513, 521. Compare W v Edgell [1989] EWCA Civ 13; [1990] 1 All ER 835.

[87] Privacy Commissioner, supra note 3.

[88] De Maria, “Whistleblowing: public interest disclosure laws in Australia in New Zealand” (Dec 1995) 20(6) Alternative Law Jnl 270, 274.

[89] See discussion in Paterson, “AIDS, HIV testing, and medical confidentiality” [1991] OtaLawRw 2; (1991) 7 Otago LR 379, 392-395, also Duncan v Medical Practitioners Disciplinary Committee [1986] 1 NZLR 513.

[90] G v G (1996) 15 FRNZ 22, 35-36.

[91] X v Y [1988] 2 All ER 648, discussed in Dal Pont and Chalmers, supra note 9, at 104, and in Paterson, supra note 89, at 392-393.

[92] See, for example, the facts of Campbell v Tameside Metropolitan Borough Council [1982] 2 All ER 791.

[93] Fay, Richwhite & Co Ltd v Davison [1995] 1 NZLR 517, 523-24, 528-29, 534-35 (CA).

[94] Lange v Atkinson [1997] 2 NZLR 22, 46-47. Upheld by the Court of Appeal at [1998] 3 NZLR 424. The matter was then appealed to the Privy Council, which referred the matter back to the Court of Appeal.

[95] Note in comparison that New Zealand’s two recent whistle-blowing bills both required that disclosure occur through specified channels, and did not protect disclosure to the public. See Whistleblowers Protection Bill (1994 No. 20-1) cl 6(b); Protected Disclosures Bill (1997 No. 208-1) cl 6-10.

[96] European Pacific Banking Corporation v Television New Zealand [1994] 3 NZLR 43, 46 (CA), per Cooke P.

[97] Attorney-General for United Kingdom v Wellington Newspapers Ltd [1987] NZHC 377; [1988] 1 NZLR 129, 178 (CA).

[98] T v Attorney-General [1988] NZHC 656; (1988) 5 NZFLR 357.

[99] Attorney-General for the United Kingdom v Wellington Newspapers Ltd [1987] NZHC 377; [1988] 1 NZLR 129 (CA).

[100] European Pacific Banking Corporation v Fourth Estate Publications Ltd [1993] 1 NZLR 559; European Pacific Banking Corporation v Television New Zealand [1994] 3 NZLR 43 (CA).

[101] M v R, unreported, High Court, Auckland, 24 April 1998 (CP 5990/97).

[102] R v H [1994] 2 NZLR 143 (CA).

[103] Fay, Richwhite & Co Ltd v Davison [1995] 1 NZLR 517 (CA); Controller & Auditor General v Davison [1996] 2 NZLR 278, 290 (CA).

[104] Controller & Auditor General v Davison, ibid, 306-307, 309.

[105] Morgan, supra note 84, at 243.

[106] Initial Services Ltd v Putterill [1967] 3 All ER 145, 148 (CA).

[107] ER Squibb & Sons v ICI NZ Ltd [1988] NZHC 719; (1988) 2 NZBLC 103,382, 103,402; Magellan Corporation Ltd v Magellan Group Ltd (1995) 6 TCLR 598, 614.

[108] Collector of Customs v Kilburn Car Sales Ltd, unreported, High Court, Auckland, 18 November 1996 (M 20/95).

[109] Levi Strauss & Co v Kimbyr Investments Ltd [1994] 1 NZLR 332, 362.

[110] See Woodward v Hutchins [1977] 1 WLR 760, 763-764.

[111] Re Dickinson [1992] 2 NZLR 43, 47, 49, 51 (CA).

[112] See Fisher J’s comments on this practice, and on Re Dickinson, ibid, in Wattie v Commissioner of Inland Revenue (1996) 17 NZTC 12,712, 12,715; overturned on other grounds on appeal in Wattie v Commissioner of Inland Revenue (1997) 18 NZTC 13,297 (CA).

[113] Castrol Australia Pty Ltd v EmTech Associates Ltd (1980) 51 FLR 184, 216.

[114] Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987) 74 ALR 428, 446.

[115] Trotter v Telecom Corporation of New Zealand [1993] NZEmpC 152; [1993] 2 ERNZ 659, 690 (EC) (Goddard, Chief Judge).

[116] Schroder v Foulkes, unreported, High Court, Auckland, 17 March 1993 (CP 871/92).

[117] Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] 1 All ER 41, 49-50.

[118] [1982] 2 All ER 791, 797; discussed in Dal Pont and Chalmers, supra note 9, at 105.

[119] Schering Chemicals Ltd v Falkman Ltd [1981] 2 All ER 321, 337-338 (CA).

[120] This would be consistent with legislative proposals to allow disclosures of significant or serious (current) risks to public health or safety, or to the environment (see Whistleblowers Protection Bill, cl 2; Protected Disclosures Bill, cl 5(1)).

[121] NZI Bank Ltd v Euro-National Corporation Ltd [1992] 3 NZLR 528, 548 (CA); similar principle in Supercool Refrigeration & Air Conditioning v Hoverd Industries Ltd [1994] 3 NZLR 300, 314-315.

[122] Peninsula Watchdog Group (Inc) v Minister of Energy [1996] NZCA 262; [1996] 2 NZLR 529, 536 (CA).

[123] Katz, supra note 10, at 187, referring to David Syme & Co Ltd v General Motors-Holdens Ltd [1984] 2 NSWLR 294.

[124] M v R, unreported, High Court, Auckland, 24 April 1998 (CP 590/97).

[125] Ibid.

[126] Stephens v Avery [1988] 2 All ER 477, 481 (Ch).

[127] At 480.

[128] At 482.

[129] T v Attorney-General [1988] NZHC 656; (1988) 5 NZFLR 357, 373.

[130] Dal Pont and Chalmers, supra note 9, at 104.

[131] ER Squibb & Sons v ICI NZ Ltd [1988] NZHC 719; (1988) 2 NZBLC 103,382, 103,406.

[132] As in Dal Pont and Chalmers, supra note 9, at 105 note 116.

[133] Smith Kline & French Laboratories Ltd v Attorney-General [1988] NZHC 734; [1989] 1 NZLR 385 (appealed on other grounds but without challenging the decision on confidentiality: Smith Kline & French Laboratories Ltd v Attorney-General [1991] 2 NZLR 560, 561 (CA)).

[134] At 396.

[135] Ibid.

[136] R v Licensing Authority, ex parte Smith Kline & French Laboratories Ltd [1988] 3 WLR 896 (CA); upheld on appeal [1989] 2 WLR 397, 398 (HL).

[137] Smith Kline & French Laboratories Ltd v Attorney-General [1988] NZHC 734; [1989] 1 NZLR 385, 398.

[138] (1980) 51 FLR 184.

[139] Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health [1989] FCA 384; (1990) 95 ALR 87, 125-26 and 134-136.

[140] Privacy Act 1993, s 6 IPP 10(d).

[141] Schering Chemicals Ltd v Falkman Ltd [1981] 2 All ER 321, 337-338.

[142] W v Edgell [1989] EWCA Civ 13; [1990] 1 All ER 835, 846 and 852.

[143] At 853.

[144] Duncan v Medical Practitioners Disciplinary Committee [1986] 1 NZLR 513, 521. Note also Barrowclough CJ’s obiter comments in Furniss v Fitchett [1958] NZLR 396, 405-406.

[145] Duncan v Medical Practitioners Disciplinary Committee [1986] 1 NZLR 513.

[146] R v Lory (Ruling 8) [1997] 1 NZLR 44, 50.

[147] Re M [1991] 1 NZBORR 217, 236.

[148] G v G (1996) 15 FRNZ 22, 36.

[149] At 35.

[150] Pizer, “The public interest exception to the breach of confidence action: are the lights about to change?” [1994] MonashULawRw 4; (1994) 20 Monash ULR 67, 76-77, from Commonwealth of Australia v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39, 52.

[151] Attorney-General for United Kingdom v Wellington Newspapers Ltd [1987] NZHC 377; [1988] 1 NZLR 129 (CA), 145, 176.

[152] Lion Laboratories Ltd v Evans [1985] 1 QB 526, 538, 550 (CA). See also Pizer, supra note 150, at 74-75.

[153] Unreported, High Court, Christchurch, 10 November 1982 (A280/82) (see note in Brown and Grant, supra note 8, at 8.35).

[154] Ibid.

[155] Laster, supra note 50, at 161-163.

[156] Pizer, supra note 150, at 77; Attorney-General v Guardian Newspapers (No. 2) [1988] UKHL 6; [1988] 3 All ER 545, 640-642 (HL).

[157] Commonwealth of Australia v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 32 ALR 485, 492-493 (HCA).

[158] Attorney-General for United Kingdom v Wellington Newspapers Ltd [1987] NZHC 377; [1988] 1 NZLR 129, 144-145 (CA).

[159] At 176.

[160] At 176, citing Commonwealth of Australia v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39, and Attorney-General v Jonathan Cape Ltd [1976] QB 752.

[161] Official Information Act 1982, s 5. This principle is based, it has been suggested, on the “public interest in good government”: Jack Hodder, delivering oral presentation at seminar on Official Information Act, Auckland, February 1997.

[162] Section 9(2)(ba). I submit that the latter requirement is a qualification that applies more to information supplied by statutory compulsion than to information subject to an obligation of confidence.

[163] A v Hayden [1984] HCA 67; (1984) 156 CLR 532, 546-547.

[164] Attorney-General v Guardian Newspapers Ltd (No 2) [1988] UKHL 6; [1988] 3 All ER 545, 644 (HL), discussed in Dal Pont and Chalmers, supra note 9, at 103.

[165] Attorney-General for the United Kingdom v Wellington Newspapers Ltd [1987] NZHC 377; [1988] 1 NZLR 129, 170 (CA).

[166] Ibid.

[167] A v Hayden [1984] HCA 67; (1984) 156 CLR 532 (HCA), from Gartside v Outram (1856) 26 LJ Ch 113 and other authorities.

[168] European Pacific Banking Corporation v Television New Zealand Ltd [1994] 3 NZLR 43, 47 (CA), approving Henry J’s observations in European Pacific Banking Corporation v Fourth Estate Publication Ltd [1993] 1 NZLR 559.

[169] M v R, unreported, High Court, Auckland, 24 April 1998 (CP 590/97).

[170] Attorney-General for United Kingdom v Wellington Newspapers Ltd [1987] NZHC 377; [1988] 1 NZLR 129, 171-172 (CA). The accepted truth of the disclosures was a significant difference between the New Zealand case and its British equivalent.

[171] See discussion below.

[172] Pizer, supra note 150, at 90-98.

[173] Attorney-General for United Kingdom v Wellington Newspapers Ltd [1987] NZHC 377; [1988] 1 NZLR 129, 177 (CA), per Cooke P (emphasis added).

[174] Attorney-General for United Kingdom v Wellington Newspapers Ltd (No. 2) [1988] 1 NZLR 180, 182 (CA) (emphasis added).

[175] Tabley Estates Ltd v Hamilton City Council [1996] 1 NZLR 159, 164.


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