Cronulla-Sutherland District Rugby League Football Club Limited v Nationwide News Pty Ltd

Judgment 1REIN J: The plaintiff ("the Club") seeks, on an interlocutory basis, the extension of orders made by me ex parte on the weekend, restraining the defendants from publishing material taken, it claims, from advice given by the Club's solicitor, Mr Darren Kane on 27 February 2013 and from an advice dated 6 March 2013 given by Mr Allan Sullivan QC who has been retained by Mr Kane on behalf of the Club. The first defendant is the publisher of the Daily Telegraph and the second, third and fourth defendants are journalists who are employed by or, at least, write for the first defendant. 2The background to this matter is an investigation into the alleged use by athletes and members of sporting teams of peptides and similar so called alleged performance enhancing products. Australian Crime Commission ("ACC") and Australian Sports Anti-Doping Authority ("ASADA") issued a report on this topic and the Club then retained a former judge of the Industrial Relations Commission, the Honourable Dr Tricia Kavanagh to conduct an inquiry in relation to the Club's team known as the Cronulla Sharks. The Club is a member of the Australian Rugby League Commission which controls National Rugby League Limited ("NRL") and the allegations if established involved breaches of the NRL's 2011 anti-doping policy. Dr Kavanagh did provide to the Club what has been referred to by some as "a report" but which is, in fact, more accurately described as a chronology with an accompanying summary. Those documents have been produced by the plaintiff and been marked MFI1 as a confidential exhibit. I shall, for convenience sake, refer to these documents are "the Kavanagh report". 3The Club relies on the affidavits of Mr Kane of 27 April 2013 and 30 April 2013 and Annexure A and B therein being relevant pages from the Daily Telegraph of Friday 26 April 2013 and Saturday 27 April 2013, the advice of Mr Kane and Mr Sullivan (Exhibit F) and redacted copies of the advices (Exhibit C and Exhibit D). A digital file of an interview on Triple M radio station to which I refer below was also tendered and became Exhibit E but a transcript of the interview is reproduced as Annexure D to Mr Kane's affidavit of 30 April 2013. 4The Club claims that the defendants have published material from the Kane advice and that they have indicated that they intend to publish future material that will or may contain or refer to or be derived from the Kane advice and the Sullivan advice or that there is a real risk that they will do so if not restrained. 5The Club does not seek to restrain any material derived from the Kavanagh report but its importance is that Dr Bell SC who appears with Mr Sibtain for the defendant initially put forward the contention that the defendants may have obtained the contents of their reports, about which the Club complains, from the Kavanagh report rather than the Kane advice or the Sullivan advice, and that the Kavanagh report is not confidential. 6Having myself examined the Kane advice and the Sullivan advice, I am satisfied that all thirteen items published in the Friday and Saturday editions of the Daily Telegraph (Exhibit A and Exhibit B) identified by Mr Sullivan as having been taken from the Kane advice, have in fact, come from that source. 7Dr Bell, who was provided with a copy of Exhibit E, on a confidential basis, accepts that this is so and he also accepts that none of those thirteen items are contained in the Kavanagh report, to which he also was given access on the same basis. 8It is clear, therefore, that the first defendant has published passages from the Kane advice. 9When Mr Sullivan called on a notice to produce addressed to the defendants seeking all copies of the Kane advice and Sullivan advice held by them, no documents were produced. As Dr Bell pointed out the notice to produce did not seek notes made of the content of the advices so, even assuming the defendants do not hold copies of the two advices, there is a real possibility that journalists employed by the first defendant have transcribed portions of the advices. 10The last point links to the question of whether the defendants will or may publish any further material from the Kane advice and Sullivan advice or republish what they have already published. No undertaking has been proffered by them that they will not. 11There is evidence that the defendants are actively pursing the story and giving consideration to what they will publish in the near future. In an interview on Saturday 27 April 2013, on radio station Triple M, Ms Rebecca Wilson, the second defendant said (as stated in Annexure D to the affidavit of Mr Kane of 30 April and unedited): (1)"And I just want you to know that in the next couple of weeks what will come to the surface will absolutely devastate you because there's a lot more to come and, you know, the legal issues mean we are a bit restrained at the moment...": see p 23 of Annexure D to the affidavit of Mr Kane of 30 April 2013). (2)"Well I think Richard first of all what is does it vindicated the stand that people have taken and it shows that in the middle of all of our scepticism that there is some genuine, umm reason for concern here. And I think that's why the report, umm you know, was leaked. And I also think that you know let's talk about it's author and the other person who's had the input into it. So Tricia Kavanagh - former Deputy Director of ASADA - you know she hasn't minced her words but she's been cautious in the way she's gone about compiling the report. She's done it in a completely legal and above board way, and then another lawyer has gone over the report and added to it with what the possible legal ramification would be for the Board, the club, the players and everyone involved, so we've got two pretty senior people have compiled the report": see page 24 of Annexure D to the affidavit of Mr Kane of 30 April 2013. (3)DAN GINNANE: It's a 60 Page document Bec. We've only through the report's, the Jon Mannah elements. Have you seen more? REBECCA WILSON: Yes. And umm... DAN GINNANE: So how come that wasn't reported? REBECCA WILSON: No it will be next week Dan. We're just getting, it all has to be legalled and you have to be umm.. you have to get things corroborated from not (inaudible) source as well. I mean you (inaudible)... to hand you a report but you've gotta verify its validity and that's what we are doing at the moment but we also have information coimng in that verifies other stuff in that report in the next few days." (to 16:55 on link) : see p 25 of Annexure D of the affidavit of Mr Kane of 30 April 2013. 12To obtain an interlocutory injunction the plaintiff must establish a prima facie case and, in my view, the plaintiff has comfortably demonstrated that the material published (a) came from the Kane advice and (b) that that advice is one given by a lawyer to his client and hence confidential. The essential elements of an action for breach of confidence are described in WA Newspapers v Bond (2009) 40 WAR 164 per Owen, Wheeler and Buss JJA as: ...that the information was of a confidential nature it was communicated in circumstances importing an obligation of confidence and there was an unauthorised use of the information: Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 46-47; American Cyanamid Co v Alcoa of Australia Ltd (1993) 27 IPR 16 at 19. A duty of confidence arises whenever a person receives information he or she knows or ought to know is fairly and reasonably to be regarded as confidential: see Attorney-General (UK) v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 281; Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457 at [14]. 13I am satisfied that the defendants have published material which has been uplifted from the Kane advice and I think there is sufficient material to establish a prima facie case that some of the defendants were aware that what they were utilising was part of legal advice given by a lawyer retained by the Club: see for example p 11 of the Annexures to Mr Kane's affidavit of 30 April 2013 and the passage at . 14Dr Bell contended that an injunction can only restrain publication of confidential information and that all of thirteen items identified in the articles published by the first defendant derive from the chronology prepared by Dr Kavanagh and hence are not confidential. He submitted that paragraphs 40 and 41 of Mr Kane's advice use material from the Kavanagh report. 15The defendant relies on Exhibit 1 which is a copy of an article by Mr Roy Masters published in the Sydney Morning Herald on 10 March 2013, that article contains the following: Two pieces of legal advice, including one from Alan Sullivan, QC, recommended sacking the five, including [names are omitted] who were also employed in 2011. The Cronulla board engaged lawyers more than two weeks ago and the advice to dismiss was carefully considered. 16The defendants have by cross examination of Mr Kane established that the Club did nothing following publication of that article in the Sydney Morning Herald and contend that it is clear that Mr Masters was referring to the Sullivan advice and the Kane advice and that, as a matter of discretion, the Court should not extend the injunction since the Club has done nothing about the Masters article. 17Dr Bell also contended that there is no evidence that the defendants have a copy of Mr Sullivan's advice or have made reference to anything in it. 18Finally Dr Bell submitted that the injunction was too wide because it did not exclude inadvertent communication of the contents of Mr Kane's advice or Mr Sullivan's advice. 19In relation to Dr Bell's first contention about lack of confidentiality, I am unable to accept it. The material identified in the thirteen items is lifted directly from the Kane advice and the chronology attached to it and its content is not limited to reiterating facts that are in the chronology. That the advice refers to or is based on publicly known facts, even were that the case, does not alter confidential nature of the advice. Nor am I satisfied that the details in the chronology have been made public. Legal professional privilege extends to all confidential communications between a person and his or her lawyers made for the purpose of obtaining or giving legal advice: see Baker v Campbell (1983) 153 CLR 52, 115-116 per Deane J approved in Mann v Carnell (1999) 201 CLR 1, 11. What is confidential may include a summary of facts identified since that itself is a part of the skill of a solicitor: see Streetscape Projects Pty Ltd v City of Sydney (2013) 295 ALR 760, 786-et seq approving of Megarry J's formulation of "skill and ingenuity of the human brain" in Coco v AN Clark (Engineers) Ltd [1969] RPC 41 in the context of trade secrets. I have noted Dr Bell's acceptance that none of the thirteen items came from the Kavanagh report and it has not been demonstrated that any of the items in the chronology attached to the Kane advice, which is not identical to the chronology forming part of the Kavanagh report, were revealed to the public by virtue of the answers given to questions at a press conference held by the Club (see T25-26). 20So far as Dr Bell's second point is concerned, I agree that there is no clear evidence that the defendants have a copy of Mr Sullivan's advice. However, there are several indications that they may have that advice. The first is the reference to a 60 page document: see Telegraph article of 26 April 2013 reproduced at page 9 of Mr Kane's affidavit of 30 April 2013 and the reference to "[a] leaked extract from the 60 page plus report..." The Kane advice with the chronology is 39 pages in length and the Sullivan advice is 21 pages in length. These advices together add up to 60 pages in length. The Kavanagh report (MFI1) is not a 60 page document, it is either on my calculation 24 pages excluding annexures or, according to Mr Kane's evidence, with annexures, not included in MFI1, 300 pages (see T18.18-21). 21In the article by Ms Wilson in the Telegraph article of 27 April 2013, reproduced as p 17 of Mr Kane's affidavit, Ms Wilson refers to '[t]he independent report compiled by senior counsel Trish Kavanagh underlines her and an independent oncologist's "deep concerns about the possible causal link between peptides and the acceleration of Jon Mannah's cancer"'. The Kavanagh report does not contain any such material and Dr Kavanagh is not, in fact, a Senior Counsel. The reference to the 60 pages and these anomalies and the fact that the heading "Sharks Report" the article in the Telegraph on 26 April 2013, reproduced at p 9 of Mr Kane's affidavit of 30 April 2013, was above material lifted verbatim from Mr Kane's report present a somewhat confusing picture of the material to which the defendants have had regard. I do have doubts as to whether the defendants have had access to the Sullivan advice but they have not said that they do not. 22On the question of Mr Masters article, Mr Sullivan submitted that the Masters article did not accurately reflect his advice and that the defendant appeared to be arguing that the Club's failure to take action on an article which inaccurately described advice given, meant that, as a matter of discretion it should be refused relief in respect of advices which do reveal the contents of advice given. Dr Bell did not dispute the factual substance of this argument and I understand him to therefore accept that Mr Sullivan's advice is not accurately reflected in the Masters article. It is difficult to express a view on this without descending into the detail of the advice. In any event the focus of the Masters article appears to be of a quite different nature to the matters in the defendants' articles to which objection is taken. It is quite unclear at this stage as to how the Telegraph journalists obtained the material they did obtain and how Mr Masters obtained the Sullivan advice if he did obtain it. 23Until the defendants explains exactly what they hold and the provenance of whatever notes they hold if they do not have copies of the actual advices it is difficult to form a firm view about what the defendants hold and what they might consider publishing if not restrained. It is also possible that the defendants do not intend to make any further use of the material they have which came from the Kane advice but they have not said that they do not intend to do so. In all the circumstances and where publication by the defendants of the confidential legal advice has been established, I think the Club is entitled to an order preventing any further publication of any of the legal advice given by Mr Kane and Mr Sullivan. 24 I am not satisfied that the form of the orders sought are too wide. If the defendants are concerned that they cannot identify whatever they do hold as falling within either the Kane advice and the Sullivan advice it is open to them to seek clarification from Mr Kane as to whether the material that they have and wish to publish is or is not contained in the Sullivan advice or Kane advice. 25Last night my Associate received a letter from Ashurst, the solicitors for the defendants. No leave was sought to provide such communication and there is nothing to indicate the communication was made with the consent of the plaintiff, although the letter was copied to Mr Kane. By response received this morning, Mr Kane made it clear that his consent was not sought and that he is "surprised and disappointed" by Ashurst's conduct. Rule 53 of the NSW Bar Rules (8 August 2011 edition) precludes a barrister from communicating with the Court without an opponent's consent and my understanding is that the Bar's advocacy rules also apply to solicitors engaged in litigation. I have ignored the contents of Ashurst's letter in determining the matter. If the defendants wish to raise an issue about the form of orders, they will need to apply in open Court for leave to make further submissions.