27 That leaves two individuals who were not able to be contacted, and two who advised SH that they strongly objected to release of the material. I shall proceed as if those who could not be contacted also object strongly to the release of the material.
28 Counsel for the Complainant submitted that the correspondence which I have outlined did not show any binding agreement as to confidentiality, and the Privacy Policy of SH allowed for disclosure of material such as this to a diverse range of persons.
29 In my view, the material does not establish any binding agreement as to confidentiality. No one appears to have considered the prospect of legal proceedings at the time the statements were taken. It is unfair for the Complainant to be taken to have given up any rights she may otherwise have had simply by agreeing to participate in an internal human resources investigation.
30 There does not appear to be any suggestion that any of the four interviewees whose statements are in issue was involved in perpetrating any illegal activity or any of the activities which are the subject of the Complainant's claims in this proceeding. I have not been told why the interviewees strongly object to disclosure of their statements. I presume that it is because, as continuing employees of SH, they fear that their working relationships with other employees and consultants will be affected. I have read the statements, and there appears to me to be no material in the statements which could reasonably have that effect.
31 The fact that the documents may prove embarrassing to the four witnesses who have not given consent to their release is not in my view a reason to prevent disclosure. It points up a flaw in the Non-party's investigation procedures, rather than providing a defence to production.
32 The written submissions of the Respondent confirm that, apart from the protection of public interest immunity - a principle which the Respondent agrees has no application in this case, there is no principle of law or of public policy that documents prepared confidentially in connection with an internal investigation should never be produced in legal proceedings arising out of the subject matter of the investigation. In Royal Women's Hospital v Medical Practitioners Board of Victoria (2006)VSCA85, public interest immunity was limited to decision-making at the highest government levels. In that case, documents of the highest personal sensitivity to the parties - referring to a late term termination of a foetus, were held discoverable. In this case, the documents, though potentially embarrassing, have nowhere the same degree of sensitivity.
33 The argument as to estoppel by convention was based upon New Zealand authority. National Westminster Finance NZ Ltd v National Bank of New Zealand Ltd (1996)1NSLR 548, and sets out six elements necessary for such a principle to apply. I do not agree that, in this case, the facts support any application of an estoppel by convention, or estoppel in pais, as it is referred to by Deane and Mason JJ, in a decision of the High Court of Australia in Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406 at page 430. Specifically, I do not accept that the Non-party has established that in no circumstances would the documents prepared during the course of the investigation be released by the parties. I do not accept that the Complainant intended her acceptance of the confidentiality of the investigation to be legally binding on her, and I find that any detriment which may be suffered by SH as a result of disclosure of the information sought will be brought about by the Non-party's own inappropriate guarantees to interviewees of anonymity. In all the circumstances, I am not persuaded that it would be unconscionable to allow the Complainant to resile or depart from the obligation of confidentiality.