Supreme Court of SA|1995-01-19|Before: King CJ

For the reasons which I have already given, the plaintiff failed to prove vicarious liability. As a result, the action in defamation fell to be dismissed for the same reason as the action for breach of confidence.

JUDGE3 DEBELLE J This is an appeal from a decision of a District Court Judge dismissing claims in three separate actions in which each of the three appellants made like claims for damages for defamation, negligence and breach of confidence.

The appellants' claims arise out of the publication and circulation in the township of Port Augusta of a report of a meeting between members of the Kuyani Association, officers of the governments of the Commonwealth and of the State of South Australia, and other persons. The meeting had been held at Port Augusta on 23 August 1990. It concerned Coorlay Lagoon. The report had been prepared by Dr Neil Draper, a senior archaeologist and anthropologist employed by the Aboriginal Heritage Branch, a division of the Department of Environment and Planning in the Government of South Australia ("the Aboriginal Heritage Branch").

A DISPUTE ABOUT COORLAY LAGOON 3. Coorlay Lagoon is near Roxby Downs. In 1987 disputes had arisen between Western Mining Corporation and an Aboriginal tribe called Kokota concerning Coorlay Lagoon and activities associated with mining by Western Mining Corporation at Roxby Downs. The Aboriginal Heritage Branch had consulted with representatives of the Kokota and Western Mining Corporation. The Kokota people claimed they were traditional owners of the Coorlay Lagoon. An unincorporated association called the Kuyani Association which represented the Kuyani Aboriginal tribe disputed the claim of the Kokota People's Committee to be traditional owners of Coorlay Lagoon according to Aboriginal law and tradition. The Kuyani Association claimed that the Kuyani people also had an interest in the lagoon. The negotiations concerning these issues extended over some years. In mid 1990 the Kuyani had requested the intervention of the Aboriginal and Torres Strait Islanders Commission ("ATSIC"). In late August 1990 three meetings were organised by Mr Manfred Behr, an officer of ATSIC. One meeting was held with the Kokota People's Committee on 22 August 1990, a second meeting was held on 23 August 1990 with Kuyani Association, and a third meeting was held a day or two later with Western Mining Corporation. The second meeting is the meeting out of which the appellants' claims arise. ATSIC had asked officers of the Aboriginal Heritage Branch to attend the meetings, expressing the hope that the Government of South Australia could resolve the dispute. TWO MEETINGS WITH GOVERNMENT OFFICERS

The first meeting on 22nd August 1990 was held at Coorlay Lagoon. Those invited to attend were the Kokota People's Committee and people of Kokota descent, the Kuyani Association and people of Kuyani affiliation, officers of ATSIC and of the Aboriginal Heritage Branch. However, neither representatives of the Kuyani Association nor people of Kuyani affiliation attended that meeting. In the result, it was essentially a meeting between the officers of government and the Kokota people.

The second meeting on 23 August 1990 was attended by representatives of the Kuyani Association and people of Kuyani affiliation. The meeting lasted about one and a half hours. Four officers of government were present, Ms Cohen and Dr Draper from the Aboriginal Heritage Branch and Messrs Behr and Baker from ATSIC. Also present were nine Aboriginals, who included three women and the three appellants, and a Mr John Bannon, who was an adviser to the Kuyani Association. The Aboriginals present at the meeting supported the Kuyani cause.

As the trial judge found, the meeting on 23 August 1990 had been organised so that the officers of State and Federal Governments could convey the views of the Kuyani Association to their respective departments and Ministers. After the meeting had closed, Mr Davies, the chairman of the meeting, who was also chairman of the Kuyani Association, expressly requested the government officers present to convey the views expressed at the meeting to their respective Ministers. The trial judge also found that the matters discussed at the meeting were sensitive to all of the Aboriginals present at the meeting and that Dr Draper fully appreciated the sensitivity of those matters.

Before the meeting was held, Ms Kriven, a reporter from "The Advertiser" newspaper, had requested permission to attend with a photographer and to report what transpired. Those present decided that she should not be permitted to attend the meeting. However, the photographer with Ms Kriven was permitted to take photographs of those present. The photographs were taken after the meeting had started and depict the appellant Coulthard who had arrived late. Ms Kriven was informed that a representative of the Kuyani Association would make a statement to her after the meeting. However, the only statement made at the end of the meeting was a brief "No comment". A report about the meeting was published in "The Advertiser" but there was no evidence whether it was published before or after the publication in Port Augusta of Dr Draper's report.

DR DRAPER'S REPORT OF THE MEETING 8. Dr Draper took handwritten notes of the meeting on 23 August. They were quite detailed. It was obvious to those present at the meeting that Dr Draper was taking notes. He was sitting at a table with pen and paper and writing in full view of all those present. The photographs taken by the press photographer clearly show him taking notes. On his return to Adelaide, Dr Draper arranged for his notes to be typed as a report. Dr Draper intended his report to be a record of what had transpired at the meeting for use by senior management in the Aboriginal Heritage Branch. As some of the references in his report might not be understood by all members of senior management, Dr Draper had added some explanatory footnotes. Dr Draper gave a copy of his report to Ms Cohen asking her to check its accuracy. Ms Cohen made a few comments but was satisfied that the report was accurate.

The typewritten report made by Dr Draper occupies ten pages of A4 size paper. The footnotes extend over a further four and half pages. Nothing now turns on the content of the footnotes. Is it unnecessary to recite all of the report. It records those present and opens with a note of the decision to exclude Ms Kriven from the meeting. The topics dealt with at the meeting and noted in the report were -
- Grievances expressed by the Aboriginals present at the meeting concerning the Kokota People's Committee and their claims for traditional ownership of sites
- A complaint that ATSIC had not provided funds to enable members of the Kuyani Association to attend the meeting on the previous day at Coorlay Lagoon.
- Other complaints of the Kuyani Association concerning ATSIC
- Claims made by the Aboriginals present at the meeting to traditional ownership of Coorlay Lagoon and the basis of those claims
- Discussion concerning the boundaries of tribal groups
- Complaints as to the manner in which some claims for traditional land were being advanced and submissions that they were being wrongly advanced
- Complaints about Commonwealth and State legislation and the administration of that legislation
- Explanation by the government officers present of how Government seeks to administer the protection of sacred sites and deal with claims for them

Dr Draper's report noted statements made at the meeting by each of the appellants. At times he was able to take down an almost verbatim account of what was said. The trial judge held that the record made by Dr Draper was accurate. There is no appeal from that finding.

THE REPORT IS UNLAWFULLY TAKEN 11. The original typewritten report was placed in the docket kept by the Aboriginal Heritage Branch concerning the disputes relating to Coorlay Lagoon. Dr Draper kept a copy in a locked cabinet for his own use. The docket containing the original report was placed in a storeroom within the Aboriginal Heritage Branch. It was the storeroom used by the Branch for filing dockets. If a docket was required from the store, a note would be made of the officer to whom it had been given. Members of the public do not have access to the storeroom. In late September 1990, the Aboriginal Heritage Branch received complaints that copies of Dr Draper's report were being circulated in Port Augusta. Dr Draper examined his own file and ascertained that he still had his duplicate copy of the report. However, the original was missing from the docket.

The Aboriginal Heritage Branch caused an investigation to be made concerning the disappearance of the original report. The investigation was conducted by an officer of the Attorney-General's Department. He was unable to ascertain how the report had disappeared or how it had transpired that copies were circulated in Port Augusta. The trial judge found that the circulation of the report resulted from an unauthorised leak by an unknown employee of the Aboriginal Heritage Branch. That finding was not challenged.

THE WORDS COMPLAINED OF 13. Before referring to the grounds of each claim, I note the remarks of which each appellant complains on this appeal. In the course of the meeting some views concerning the Kokota People were strongly expressed by Messrs Coulthard and MacKenzie. The report of what Coulthard said is in these terms: "Gordon Coulthard said that he had been invited to go to the Roxby Downs Mine - Graham Baker knows - Public Relations. He was told by Bill Clifton on Saturday that he couldn't go. Bill advised him not to go. So he reported him (Bill) to the Aboriginal Legal Rights. Mark MacKenzie said : 'Why?' 'Because a couple of elders said so?' (At this point he passed a letter to Fred Behr). We want to leave the past and start new. Bill Clifton is just a white bloke. Gordon Coulthard said: 'We'll charge Bill Clifton for trespass. He can get legal rights, but we can't. The Kokota can go and die in Nepabuna if they like. They get ATSIC money."

It is common ground that according to Aboriginal law and tradition, the expression "The Kokota can go and die in Nepabuna if they like" was a curse or tantamount to a curse.

The appellant McKenzie also criticised the Kokota in the course of the meeting, in his case on two occasions. The first occasion was in the following context: "Mark McKenzie said: My language is Kuyani. We are Kuyani people - what do Coolie, Andamooka, Pimba mean? Our elders buried our culture. The Kokota are claiming sacred things that are not there most of the time."

Mr McKenzie then continued with some other remarks. The second criticism was made later in the meeting in the context of the accuracy of information concerning sacred sites: "John Bannon asked: Who authenticates the sites? Fred Behr replied that, in the case of the report of a drilling rig on a site north of Coorlay Lagoon, the first job was to identify the threat and stop it. At this stage both the Stage government and Western Mining were consulted. The drilling was almost complete, so that the immediate threat was over, but the issue was still unresolved. It was painful that two groups of Aborigines were unable to resolve it with one another. The State government was now responsible for further site protection. John Bannon asked: How do you confirm whether the information is accurate? Fred Behr answered: We consult with the State. The registered sites certainly are there - who owns them is another matter. Mark MacKenzie said: They are archaeologists' sites - old camps and bedtime stories. We don't go with dreams, but facts and reality - trespassers will be killed. At Wilpena, archaeologists found 22 sites. I took the elder there, and he found nothing."

The fault in the above remarks was said to lie in the fact that Mr MacKenzie was not a member of the Kokota tribe or group and had no authority to speak in respect of claims by that group to a sacred site. Having spoken in the way he did, he had seriously infringed Aboriginal law and custom by suggesting that spurious claims had been made in respect to sacred sites.

The remarks made by the appellant Champion were of a different kind. They were made in the following context: "There was further discussion between Fred Behr and Graham Baker and Kuyani Association members about incorporation of

organisations. Mark MacKenzie asked John Bannon to speak. John Bannon proceeded to attack A.T.S.I.C. further concerning the incorporation and declaration of organisations (details not recorded). Eddie Champion then said that this was an example of discrimination against urban Aboriginal communities, and that the government showed no consideration - for example, that Fred Behr had been to look at Coorlay Lagoon without seeing the Kuyani first."

(Mr Fred Behr of whom Mr Champion spoke is Mr Manfred Behr, the officer in ATSIC who had organised the meeting.) The fault in those remarks was said to be that Mr Champion had come from Western Australia and from the Pitjantjatjara tribe and was thus an outsider. He therefore had no right or authority to express a view as to a dispute between the Kuyani and the Kokota or to take sides in the dispute. Given the position he held, he was expected to be entirely impartial in such matters. His contribution to the meeting was, therefore, totally unacceptable in the Aboriginal community.

Although at the trial the appellants had complained of the publication of other parts of their remarks, on appeal, the appellants did not complain of any part of Dr Draper's report other than the passages already mentioned.

In addition to noting the remarks made by each of the appellants, Dr Draper had recorded in his list of those present at the meeting that the appellants Coulthard and Champion were members of the Kuyani Association. The trial judge found that neither was then a member of the Association although Mr Champion had subsequently become a member. The trial judge added that Dr Draper's assumption that Messrs Coulthard and Champion were members of the Kuyani Association at the time of the meeting was understandable though erroneous.

The claims of each of the appellants for damages for defamation, negligence, and breach of confidence were all dismissed. At the trial, the appellants had also claimed that Dr Draper had inaccurately recorded what they had said. The trial judge dismissed the claim, holding that each of the appellants had said what Dr Draper had attributed to him. There is no challenge to that finding.

The appellant MacKenzie does not appeal against the decision dismissing his claim for defamation. The appellants Coulthard and Champion appeal against the decision dismissing their claims for defamation to the extent only that the trial judge dismissed their claim for defamation on the ground that Dr Draper's report had described them as members of the Kuyani Association. I will return to that issue.

None of the appellants' appeal against the decision dismissing their claim that the respondent had been negligent in failing to ensure that Dr Draper's report was not published outside the Aboriginal Heritage Branch. All of the appellants appeal against the dismissal of the claim for breach of confidence.

THE CLAIMS FOR BREACH OF CONFIDENCE 25. The claim for confidentiality was pleaded in this way. "5 The said meeting was held on the basis that anything said would be totally confidential and that no Minutes of the meeting would be taken, giving rise to an obligation of confidentiality. 5A By reason of the facts stated in paragraph 5 hereof, each participant at the said meeting owed a duty to every other participant to preserve the confidentiality of each and every statement made at the meeting. Further and in particular the defendant owed a duty to the plaintiff to preserve and maintain the confidentiality of all the statements made by the plaintiff at the meeting."

When considering the appellants' claim for breach of confidence, the trial judge applied the test in Coco v AN Clark (Engineers) Ltd (1969) RPC 41 which requires a plaintiff to establish, inter alia, that the information was of a confidential nature and that the information was communicated in circumstances importing an obligation of confidence. The trial judge found that there was no resolution or agreement, either before, during, or after the meeting, that anything said at the meeting would be confidential or "totally confidential" as pleaded; that, since the press are excluded from meetings for any number of reasons, the exclusion of Ms Kriven from the meeting did not necessarily mean that what transpired at the meeting would be confidential; and that there was absolutely no foundation for an allegation by the appellants that the meeting was held on the basis that no minutes of the meeting would be made. In respect of the last finding, it should be noted that there was evidence that two Aboriginals present at the meeting also made brief notes, one of them being the appellant Champion. The trial Judge concluded that the meeting was not conducted on the basis that anything said at the meeting would be confidential or totally confidential. The trial Judge also held in respect of each appellant (1) that the information itself did not have the necessary quality of confidence, and (2) that the information had not been imparted in circumstances purporting an obligation of confidence.

The appellants did not question that the trial judge was correct in applying the test in Coco v AN Clark (Engineers) but submitted that he had erred in making the last two findings. Nor did they challenge the findings that there was no resolution or agreement, either before, during, or after the meeting, that anything said at the meeting would be confidential or totally confidential. Their submission was that the views expressed were not in the public domain and that the circumstances in which their views were communicated imported a duty of confidentiality.

It is a well established principle of equity that the court will "restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged: Lord Ashburton v Pape (1913) 2 Ch 469, 475; Commonwealth v John Fairfax and Sons Ltd [1980] HCA 44; (1980) 147 CLR 39, 50. The essence of the duty which equity enforces is using the information without the consent of the plaintiff: see Saltman Engineering Co v Campbell Engineering Co (1948) 65 RPC 203 where Lord Greene M.R. said at 213: "If a defendant is proved to have used confidential information, directly or indirectly obtained from a plaintiff, without the consent, expressed or implied, of the plaintiff, he will be guilty of an infringement of the plaintiff's rights."

The court will restrain the publication not only of confidential information in the form of trade secrets but also of an individual's private secrets: Prince Albert v Strange [1849] EngR 255; (1849) 18 LJ Ch 120, Argyll v Argyll (1967) Ch 302, and has restrained the publication of tribal secrets of Pitjantjatjara Aboriginals communicated in confidence to an anthropologist: Foster v Mountford and Rigby Ltd (1977) 14 ALR 71. As Mason J noted in Commonwealth v John Fairfax and Sons Ltd (supra) at 51, the equitable principle has been fashioned to protect the personal private and proprietary interests of the citizen.

The three elements to be proved by a plaintiff seeking to restrain the publication of confidential information as stated by Megarry J in Coco v AN Clark (Engineers) Ltd (supra) at 47 and approved by Mason J in Commonwealth v John Fairfax and Sons Ltd (supra) at 51 are: 1. that the information was of a confidential nature; 2. that the information was communicated in circumstances importing an obligation of confidence; and 3. that there has been an unauthorised use of the information to the detriment of the person who communicated the information.

It has been questioned, both in judicial and academic writing, whether the third requirement of detriment is essential: Dunford and Elliot Ltd v Johnstone and Frith Brown Ltd (1978) FSR 143, 148; Meagher et al, Equity - Doctrines and Remedies (3rd ed) para 4110; Finn, Fiduciary Obligations, pp.159-160; Gurry, Breach of Confidence in Finn (ed), Essays on Equity, p.112; Professor Peter Birks, A Lifelong Obligation of Confidence (1989) 105 LQR 501; Smith Kline and French Laboratories (Australia) Ltd v Secretary for Health [1989] FCA 248; (1990) 95 ALR 87 at 126. It has been held that there is sufficient detriment to a citizen where disclosure of information relating to his affairs has exposed him to public discussion and criticism: Commonwealth v John Fairfax and Sons Ltd (supra) at 52; Prince Albert v Strange (supra). More recently, some members of the House of Lords have suggested that in the case of private citizens there may be no requirement to show material harm or loss beyond the fact of unwanted disclosure: Attorney-General v Guardian Newspapers Ltd (No 2) (1990) 1 AC 109, 256, 281-2. The authorities are reviewed and discussed in Dean, Law of Trade Secrets (1990) at 177-178, where it suggested that the question is still open. As equity is concerned to uphold the obligation of confidence, the question of damage might go only to the discretion to grant the remedy. But it is not necessary to resolve those issues in this case. Even if a plaintiff must show detriment, the appellants have done so. The public dissemination of this report in Port Augusta has caused damage to the individual reputations of the plaintiffs. The Aboriginal community in Port Augusta was outraged by the remarks made by each appellant and each has suffered public criticism and rebuke.

I respectfully adopt a formulation by Gummow J in Smith Kline (supra) at 102 which refines the broader statement in Coco's Case and identifies four elements in the equitable obligation of confidence: (1) The plaintiff must be able to identify with specificity, on not merely in global terms, that which is said to be the information in question; (2) the plaintiff must be able to show that the information is confidential; (3) the information was received by the defendant in such circumstances as to impart an obligation of confidence; and (4) there is actual or threatened misuse of that information without the consent of the plaintiff.

The central issues in this appeal concern the first two elements in Coco's Case and issues (2) and (3) in Smith Kline.

WAS THE INFORMATION CONFIDENTIAL? 34. The first question is whether the information conveyed in the statements was confidential. There can be no breach of confidence in revealing to others something which is already common knowledge: Coco v AN Clark (Engineers) Ltd (supra) at 47. Confidential information is that which is not public property or public knowledge or otherwise in the public domain: Saltman Engineering Co v Campbell Engineering Co (supra) at 215; Woodward v Hutchins (1977) 1 WLR 760. It is a question of degree whether information previously disclosed to a limited public has been made generally available: Attorney-General v Guardian Newspapers Ltd (No 2) (supra) per Sir John Donaldson M.R. at 177. Equity will intervene only to protect a confidence if the circumstances are of sufficient gravity; it will not intervene merely to protect trivial tittle-tattle, however confidential: Coco v AN Clark (Engineers) Ltd (supra) at 48; nor "pernicious nonsense": Church of Scientology of California v Kaufman (1973) RPC 635, at 638. In other words, a duty of confidence will only be imposed where the information is "a proper subject for protection": Hubbard v Vosper (1972) 2 QB 84, at 95.

The appellants do not claim that there was anything confidential about the identify of those who attended the meeting

nor could they. The fact of the meeting was well-known in the Aboriginal community at Port Augusta. Its purpose was well-known. Those attending would in all likelihood be identified with the cause of the Kuyani Association. Photographs were taken showing those present. The photographs included Coulthard although he arrived late for the meeting. There was, therefore, no breach of confidence in naming Messrs Coulthard and Champion as being present or incorrectly identifying them as members of the Kuyani Association. If a wrong was done to them, the remedy, if any, was in defamation. The only issue is whether there is any confidence in the remarks made by the appellants in voicing their criticism of the Kokota People's Committee or of the Kokota people generally.

Each statement was an expression of views concerning the Kokota people held by each appellant. What was said was the expression of a private opinion which had not been publicly expressed on a prior occasion. In other words, they were views, beliefs or opinions which were not public property or public knowledge or otherwise in the public domain. While Aboriginals in Port Augusta would, in all likelihood, have known both who attended the meeting and the purpose of the meeting, what was not in the public domain was any knowledge of who had expressed a view at the meeting or the nature of the views expressed, which could be confidential information. To that extent, each statement was confidential: see G v Day (1982) 1 NSWLR 24; Schering Chemicals Ltd v Falkham Ltd (1981) 2 All ER 321. Each appellant expressed his view forcefully, if not with a degree of vehemence, particularly in the case of Mr MacKenzie who uttered what amounted to a curse according to Aboriginal law and custom. Does the forcefulness with which each expressed his view deprive the statements of their confidentiality? I do not think so. The fact that a confidence is expressed in derogatory or abusive terms makes it no less confidential since the quality of confidentiality stems from the fact that it is a disclosure of an individual's private opinion which has not been publicly expressed.

A person making a communication on a privileged occasion is not restricted to the use of such language as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege. He will be protected, even though his language should be violent or excessively strong: Adam v Ward (1917) AC 309 at 339. The same principle should, I think, apply in relation to confidential information. Opinions are expressed with varying degrees of tact and propriety and, not infrequently, with a complete absence of either. The question whether information is confidential should not be affected by the terms in which the information is imparted. It would be quite impracticable to determine whether information was deprived of the quality of confidence by the manner in which it was expressed. The statements made by each appellant were, therefore, of a confidential nature despite the manner in which they were expressed.

AN OBLIGATION OF CONFIDENCE? 38. I turn to the question whether each of the statements was made in circumstances which imported an obligation of confidence. That question is to be determined objectively: Coco v AN Clark (Engineers) Ltd (supra) at 48; Mesne v Milenkovic [1973] VicRp 78; (1973) VR 784, at 801; Half Court Tennis Pty Ltd v Seymour (1980) 53 FLR 240 at 255. The obligation to keep information confidential will be imposed on the defendant having regard not only to what the defendant knew but also to what he ought to have known in all the relevant circumstances: Smith Kline (supra) at 111.

In many cases, the obligation of confidentiality will be expressly stated but it can also be implied from the circumstances in which the information was imparted. The obligation can also be implied where the information is disclosed for a limited purpose. Both of these factors were noted by Bowen CJ in Equity Eq in Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales (1975) 2 NSWLR 104, where the question was whether results of a survey of solicitors were confidential. Two extracts from Bowen CJ's reasons deal with the implied obligation of confidentiality in the two instances just mentioned. His Honour observed (at 108): "No express mention was made of the confidentiality or otherwise of the discussions. The sole reference to confidentiality related to information supplied by participants in the survey, a different universe of discourse. However, it was the kind of discussion which would generally be assumed by those taking part would be treated as confidential, in the sense that use would be made of what had been said for purposes consistent with the holding of the meeting, but not otherwise. For example, the Law Society would, in my view, have been justified in complaining of breach of confidence had (a representative of the plaintiff company) given his account of the meeting with the committee to the press."

Later (at 117) His Honour added: "In my opinion, having regard to the amount of skill, judgment and labour involved in the preparation of the proposal and the 1972 questionnaire and to the limited purpose of the negotiation between the plaintiff and the defendant in furtherance of which the material was supplied, both documents were confidential, in the sense that they could be used by the Law Society only for the

purpose for which they had been given to it, that is to say, for the purpose of considering and deciding whether it would engage the services of the plaintiff for its own survey and interfirm comparison: they could not, without the plaintiff's consent, be used for other unrelated purposes, for example, for the purpose of publishing a book of precedents or writing an article in the Law Society's journal."

Confidential information is frequently disclosed in circumstances where the confidant is authorised to use the information in a limited way. An obvious example from the field of intellectual property is where a trade secret is disclosed to enable manufacture but no other purpose: Abernethy v Hutchinson [1825] EngR 653; (1824) 47 ER 1313; Torrington Manufacturing Co Ltd v Smith and Sons (England) Ltd (1966) RPC 285, 301. The fact that information is disclosed for a limited purpose will not of itself necessarily render the information confidential to bind the conscience of the confidant: Smith Kline at 110. The confidant will be bound to treat the information as confidential if, by reason of the combined effect of the confidential nature of the relevant information and the circumstances in which it was communicated, there appears an equity which answers the description of an obligation of confidence: Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) [1984] HCA 73; (1984) 156 CLR 414 at 437-438; Smith Kline (supra) at 110.

Where confidential information is disclosed for a limited purpose, the confidant must not use that information for any other purpose. In establishing a breach of a duty of confidence, the relevant question to be asked is what is the confidant entitled to do with the information: Lac Minerals Ltd v International Corona Resources Ltd (1989) 16 IPR 27, 36.

The same principles apply in relation to information disclosed by citizens to government. Government frequently in the public interest seeks information from private citizens or corporations. In other circumstances, information is voluntarily supplied to Government either in the public interest or to advance the private interests of the confider. Such information might, according to the nature of the information and the circumstances in which it was disclosed, attract an obligation of confidence which equity will protect. As McHugh JA observed in Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 75 ALR 353 at 454: "Courts of Equity will also protect the confidentiality of information given by citizens to governments and their departments and agencies: Castrol Australia Pty Ltd v Em Tech Associates Pty Ltd (1980) 33 ALR 31; Norwich Pharmacal Co v Commissioners of Customs and Excise [1973] UKHL 6; (1974) AC 133 at 189 per Viscount Dilhorne. But the relationship between the modern State and its citizens is so different in kind

from that which exists between private citizens that rules worked out to govern the contractual, property, commercial and private confidences of citizens are not fully applicable where the plaintiff is a government or one of its agencies. Private citizens are entitled to protect or further their own interests, no matter how selfish they are in doing so. Consequently, the publication of confidential information which is detrimental to the private interest of a citizen is a legitimate concern of a Court of Equity. But governments act, or at all events are constitutionally required to act, in the public interest. Information is held, received and imparted by governments, their departments and agencies to further the public interest. Public and not private interest, therefore, must be the criterion by which equity determines whether it will protect information which a government or governmental body claims is confidential."

While the public interest will determine whether equity will protect information claimed by government to be confidential, the protection of confidential information concerning private or proprietary interests of citizens will be protected according to the equitable principles already mentioned.

An obligation of confidence might attach to information compulsorily acquired by government or its agencies. In Conway v Rimmer [1968] UKHL 2; (1968) AC 910 at 946, Lord Reid expressed the principle in these terms: "If the state insists on a man disclosing his private affairs for a particular purpose it requires a very strong case to justify that disclosure being used for other purposes."

See also D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; (1977) 1 All ER 589, 609; Alfred Crompton Amusement Machine Ltd v Customs and Excise Commissioners (No 2) (1974) AC 405, where the duty of confidentiality was accepted though the documents were not privileged form production. The width of Lord Reid's proposition was slightly qualified by Lord Dilhorne in Norwich Pharmacal Co v Commissioners of Customs and Excise [1973] UKHL 6; (1974) AC 133 at 189, although in terms which expressly recognise that information given for a limited purpose cannot be used for another purpose: "I do not accept the proposition that all information given to a government department is to be treated as confidential

and protected from disclosure, but I agree that information of a personal character obtained in the exercise of statutory powers, information of such a character that the giver of it would not expect it to be used for any purpose other than that for which it is given, or disclosed to any person not concerned with that person, is to be regarded as protected from disclosure, even though there is no statutory prohibition of its disclosure."

Instances where an obligation of confidence has been found to exist in the case of information voluntarily given for a limited purpose are R v Birmingham City Council (1982) 1 WLR 679 and Castrol Australia Pty Ltd v Emtech Associates Pty Ltd (1980) 33 ALR 31. In the latter case, the plaintiff restrained the Trade Practices Commission from using for the purposes of preparing a prosecution case against the plaintiff confidential information which had been disclosed to the Commission for the purpose only of justifying certain advertising claims. In the Smith Kline Case it was held that in the particular circumstances of that case the information disclosed could be used for another purpose, a purpose which fell within the exercise of the statutory powers of the defendant.

In some cases there is express statutory protection of the confidence, for example, information disclosed in answer to a census or in an income tax return: see Census and Statistics Act, 1905 (Cth) s19 and Income Tax Assessment Act, 1936 (Cth) s16. In the absence of express provision, it is necessary to examine factors such as the circumstances in which the information was disclosed, the nature of the information disclosed, and the purpose for which the information was disclosed. In the absence of express agreement as to the use to be made of the information voluntarily disclosed, a court will be slow to restrict or inhibit the proper exercise of statutory powers by a regulatory authority: Smith Kline (supra) at 110-115. In this case there was no express statutory obligation of confidence. The obligations as to confidential information under the Aboriginal Heritage Act, 1988 do not apply. If the statements made were to be protected the appellants must rely on the principles of equity already mentioned.

The circumstances of this meeting, as found by the trial judge or as established by the undisputed evidence, might be summarised in this way:- 1. The dispute between the Kokota People's Committee and the Kuyani Association concerning Coorlay Lagoon had existed for some years and was well-known in the Aboriginal community at Port Augusta, where members of both the Kokota

people and Kuyani people reside. The appellant Champion described the dispute as "the biggest topic in Port Augusta for a number of years". 2. The main purpose of the meeting was to enable the public servants present to consult with the Kuyani Association and report back to their respective Departments and Ministers. 3. The fact of the meeting and its purpose was well-known among Aboriginals in Port Augusta. 4. The matters discussed at the meeting were sensitive to all of the Aboriginals present. 5. Dr Draper fully appreciated the sensitivity of the matters under discussion. 6. There was no prohibition against any person taking notes. Dr Draper was seen taking notes at the meeting and no-one objected to him doing so. Indeed, his taking of notes would be quite consistent with the expressed desire of those attending the meeting that the government officers should report to their respective Departments and Ministers. 7. Photographs were taken of those present by a press photographer. There was no prohibition on the use of the photographs. 8. The press was excluded from the meeting. The journalist was informed that a statement would be made at the end of the meeting. 9. There was no resolution or statement at the meetings that anything said at the meeting should be confidential.

While the trial judge dealt with those facts, he failed, however, to address the question whether what was said at the meeting would be disclosed for the limited purpose of providing information to the Government officers and to enable them to seek to resolve the dispute concerning Coorlay Lagoon. His reasons suggest that he attached considerable weight to the absence of a resolution or statement to the effect that what was said at the meeting should be treated in confidence. However, the absence of such a resolution is not necessarily fatal. All relevant circumstances must be considered.

The meeting was not a public meeting but a private meeting attended by nine Aboriginals, who supported the Kuyani cause. It would be unlikely that the dispute between the Kokota and the Kuyani would be resolved if the views expressed at either the meetings on 22 and 23 August 1990 were made public. Publication of the views expressed at either of those meetings would have the potential to inflame the dispute. It can, therefore, be fairly inferred from the purpose of the meeting and the longstanding dispute between the Kokota and the Kuyani people that those present at the meeting were entitled to expect that what was said would be treated in confidence and used only for the purpose of enabling the respective governments to seek to resolve the dispute concerning the Coorlay Lagoon. Consistently with that limited purpose, the government officers would be at liberty to disclose to other officers in the relevant department and to Ministers what had been said; the government officers would be at liberty to convey to the Kokota People's Committee the general thrust of what had been said at the meeting and even specific topics which had been discussed at the meeting but those topics could be mentioned only if the speaker was not identified. Given the long running dispute between the Kokota and Kuyani people, there was a real likelihood that, if the speaker were identified, he or she might be subjected to personal attack either physical or verbal, and the dispute thereby inflamed. It is also clear from the fact that the press was excluded from the meeting that no-one present would have expected that a detailed report of what had transpired at the meeting would be released in a way in which it could be circulated to the public. Widespread circulation of the report was, therefore, quite inconsistent with the limited purpose for which the statements were made at the meeting.

For these reasons, the trial judge erred in holding that the circumstances in which the meeting was held did not import an obligation of confidence. While the statements made at the meeting could be used for the limited purpose already mentioned, they could not be made public or made generally known.

I do not think it likely that equity will often intervene to protect a person who has made abusive remarks even at a private meeting of this kind. Although the circumstances of the meeting on 23 August 1990 enabled the cloak of confidentiality to be extended over what was said, there must be a real question whether those who choose to use such an occasion to vilify or attack others unjustly are entitled to restrain publication of what they have said. The maxim "He who comes to equity must come with clean hands" comes to mind, though it probably has no immediate application. Care must be taken to ensure that the court is not simply being asked to protect a person who has said publicly something he later regrets. In this case, the statements were an expression of private views stated in circumstances importing confidentiality for the purpose of seeking the assistance of government.

IS THE STATE LIABLE? 54. The question then remains whether, given that the report was published in consequence of an unauthorised leak by an unidentified person employed by the Aboriginal Heritage Branch, the State of South Australia is vicariously liable to the appellants.

Neither my own research nor that of counsel has found any authority on the question of the liability of an employer for unauthorised leaks of this kind. The appellants submit that in the absence of direct authority, it is appropriate to draw an analogy from the law of bailment, calling in aid, the decision of the Court of Appeal in Morris v CW Martin and Sons Ltd (1966) 1 QB 716, where, the appellants contend, it was held that an employer is liable to the owner of goods if those goods are entrusted to the employer in circumstances which give rise to a duty to take reasonable care of the goods, the goods are then entrusted to an employee, and that employee negligently or dishonestly converts those goods to his own use. So then, the appellants submitted, the State is liable for the consequences of the dishonest appropriation of Dr Draper's report. That decision does not have the force for which the appellants contend. The reasoning of the majority in that case establishes a narrower proposition.

In the case of bailment, an employer is liable for the act of his dishonest employee in stealing goods, only if the duty of handling or dealing with those goods has been deputed to that employee. The employer is not liable for the dishonest conduct of an employee who would not in the ordinary course of his employment handle the goods but who, by reason of his employment, had an opportunity of stealing the goods. The distinction was explained in Morris v CW Martin and Sons Ltd by Diplock LJ in these terms at 737: "Nor are we concerned with what would have been the liability of the defendants if the fur had been stolen by another servant of theirs who was not employed by them to clean the fur or to have the care or custody of it. The mere fact that his employment by the defendants gave him the opportunity to steal it would not suffice. The crucial distinction between Lloyd v. Grace, Smith and Co. [1912] UKHL 1; (1912) AC 716 and Ruben v. Great Fingall Consolidated (1906) AC 439 is that in the latter case the dishonest servant was neither actually nor ostensibly employed to warrant the genuineness of certificates for shares in the company which employed him. His fraudulent conduct was facilitated by the access which he had to the company's seal and documents in the course of his employment for another purpose: but the fraud itself which was the only tort giving rise to a civil liability to the plaintiffs was not committed in the course of doing that class of acts which the company had put the servant in its place to do."

Salmon LJ expressed the same view in these terms (at 740-741): "I am anxious, however, to make it plain that the conclusion which I have reached depends upon Morrissey being the servant through whom the defendants chose to discharge their duty to take reasonable care of the plaintiff's fur. The words of Willes J. in Barwick's case (1867) LR 2 Exch 259 are entirely applicable to these facts. The defendants `put the agent (Morrissey) in (the defendants') place to do that class of acts and ... must be answerable for the manner in which that agent has conducted himself in doing the business which it was the act of his master to put him in.' A bailee for reward is not answerable for a theft by any of his servants but only for a theft by such of them as are deputed by him to discharge some part of his duty of taking reasonable care. A theft by any servant who is not employed to do anything in relation to the goods bailed is entirely outside the scope of his employment and cannot make the master liable. So in this case, if someone employed by the defendants in another depot had broken in and stolen the fur, the defendants would not have been liable. Similarly in my view if a clerk employed in the same depot had seized the opportunity of entering the room where the fur was kept and had stolen it, the defendants would not have been liable. The mere fact that the master, by employing a rogue, gives him the opportunity to steal or defraud does not make the master liable for his depredations: Ruben v. Great Fingall Consolidated (1906) AC 439. It might be otherwise if the master knew or ought to have known that his servant was dishonest, because then the master could be liable in negligence for employing him."

Thus, the employer is liable only if the employee is acting in the course of doing what he is employed to do.

While there are cases such as Lloyd v Grace Smith and Co [1912] UKHL 1; (1912) AC 716 where an employer is liable even though the employee has wrongfully acted solely for his own benefit, generally speaking, an employer is not liable where the employee has acted outside the scope of his employment or has engaged in a frolic of his own. As the House of Lords noted in Kooragang Investments Pty Ltd v Richardson and Wrench Ltd [1981] UKPC 30; (1982) AC 462 at 473: "It remains true to say that, whatever exceptions or qualifications may be introduced, the underlying principle

remains that a servant, even while performing acts of the class for which he was authorised, or employed, to do, may so clearly depart from the scope of his employment that his master will not be liable for his wrongful acts."

The employer is vicariously liable, therefore, for the acts of the employee only when the acts of the employee are done in the ostensible performance of his employer's work or which are committed under cover of the authority the employee is held out as possessing or of the position in which he is placed as a representative of his employer: Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370, 381.

The report was not leaked by either Dr Draper or Ms Cohen. There is no evidence to suggest that the person who wrongfully removed the report from the file was an officer in the employ of the Aboriginal Heritage Branch who ordinarily dealt with the file. The State of South Australia is not, therefore, vicariously liable for the act of the employee who wrongfully removed the report from the docket.

THE CLAIMS FOR DEFAMATION 62. The appellants Coulthard and Champion limited their appeals against the dismissal of their claims for defamation to the ground that they were defamed in that part of the report which described them as members of the Kuyani Association. It was alleged that the statements were defamatory in that neither was a member of the Kuyani Association and each held a position which required that they be independent of tribal groups. The trial judge had held that the statements were not true but did not deal with the question whether the statements were defamatory stating that neither appellant had pleaded in his statement of claim that the statement was defamatory. In this respect the trial judge was wrong. Both had pleaded that fact in an amended statement of claim.

Mr Champion was a consultant employed by the Aboriginal Community Affairs Panel at Port Augusta. He was employed on contract for a term of twelve months. His duties included liaison between Aboriginal communities and government, local authorities, private developers, and others. One of his tasks was to create employment and development projects for the Andymathna people in the Flinders Ranges. His position as a consultant required him to be unbiased and not to take sides in any dispute between Aboriginal communities.

Mr Coulthard was employed as a community liaison officer by the Aboriginal Community Affairs Panel in Port Augusta. He was a member of the Andymathna people. His duties included mediation of disputes. Membership of an association of Aboriginal people other than the Andymathna would be seen to be inconsistent with his duties.

There was little dispute about the effect of this evidence. I think that the statement that each was a member of the Kuyani Association was defamatory since it would adversely affect the reputation of each as an unbiased and independent consultant or mediator. In the case of Mr Coulthard, the claim is not so strong. Dr Draper's report records that he was introduced to the meeting as a member of the Kuyani Association. Mr Coulthard disputed that the report accurately recorded what had occurred but the trial judge accepted the accuracy of the note. But it is unnecessary to determine whether Mr Coulthard's conduct led Dr Draper into believing he was a member of the Kuyani Association as there are other grounds on which the claims for defamation must fail.

The trial judge held that the respondent had failed to satisfy him that the publication of the report was not due to any want of care on its part. That conclusion does not sit happily with his finding in the very next paragraph of his reasons that the circulation of the report in Port Augusta resulted from the unauthorised act or acts of an unknown employee of the respondent. That question aside, there is another reason why he erred in reaching that conclusion, namely, that he failed to give effect to the fact that the publication was due to a wrongful act.

The writer of defamatory material is liable only if publication is intended or results from his negligence. A defendant is liable if he negligently allows another person to read the defamatory material: Weld-Blundell v Stephens (supra). As Professor Fleming expresses it, the unintentional publisher escapes responsibility only if he can clear himself of negligence: Law of Torts (8th ed) p.543. If the publication results from the acts of a third person, the defendant is liable only if he could reasonably have anticipated the action of the third party: Weld-Blundell v Stephens (1920) AC 956. Although, generally speaking, it is not actionable to send a libellous letter directly to the person defamed, the writer will incur liability if he should reasonably have anticipated that it might well be open by someone else such as the addressee's husband: Theaker v Richardson (1962) 1 WLR 151 or the addressee's secretarial staff: Pullman v Hill and Co Ltd (1891) 1 QB 524.

But the law does not go so far as to require that a defendant should reasonably anticipate a wrongful act by a third party. If a person writes a letter defamatory of an employer and sends it to the employer but an employee, in breach of his duty, opens the letter, the writer of the letter is not liable: Huth v Huth (1915) 3 KB 32, at 38 where Lord Reading CJ stated the principle in these terms: "It would be impossible successfully to contend - and it is not contended, as I understand - that if a person, in breach of his duty, were to open a letter, and there was no reason to expect that he would commit that breach of duty, the fact that he had opened it and read it would amount to publication by the person who sent it."

Bray J expressed the same proposition (at 46): "In my opinion it is quite clear that, in the absence of some special circumstances, a defendant cannot be responsible for a publication which was the wrongful act of the third person. He cannot be said, except in special circumstances, to have contemplated it. It was not the natural consequence of his sending the letter, or writing, in the way in which he did."

In Pullman v Hill (1891) 1 QB 524 at 527 Lord Esher M.R. expressed the same principle stating that, if the writer of defamatory material locks it up in his desk and a thief comes and breaks open the desk and takes away the material and makes its contents known, that would not constitute publication of the material for which the writer was liable. I do not think that it is necessary that defamatory material should be under lock and key for a defendant to escape liability. In Huth v Huth, the letter which was opened was sent in an unsealed envelope. If the defamatory material is stored in a safe place to which access may be gained only for authorised purposes, the writer of the material should not be liable if the material is wrongfully taken for an unauthorised purpose. In other words, the writer of defamatory material and the employer of the writer are entitled to act on the footing that people will not act unlawfully.

Dr Draper put his copy of the report in a locked filing cabinet. The original report was stored by Aboriginal Heritage Branch in the appropriate docket in a store-room to which the public did not have access. Although Dr Draper's report dealt with sensitive matters, the subject matter of the report was not so sensitive nor was the report of a kind which required such a high degree of security that the report should be kept under lock and key. The report was wrongfully removed from the docket. The respondent is entitled to assume that its officers will not act wrongfully, that they will not steal documents from a file, and that they will not make unauthorised use of material which has been appropriately filed. I do not think that there was any want of care on the part of the Aboriginal Heritage Branch in the manner in which it stored the docket. The respondent is not, therefore, liable for the publication of the report at Port Augusta.

The appeals in respect of the claims for defamation, therefore, fail.

I would, therefore, dismiss each of the appeals.

GORDON COULTHARD v THE STATE OF SOUTH AUSTRALIA MARK MCKENZIE v THE STATE OF SOUTH AUSTRALIA MALCOLM EDWARD CHAMPION v THE STATE OF SOUTH AUSTRALIA Nos. SCGRG 94/207, 94/208, 94/209 Judgment No. 4927 Number of pages - 29 Equity - defamation (1995) Aust Torts Reports 81-326 (1995) 63 SASR 531 [1995] SASC 4927 (19 January 1995)

Coco v AN Clark (Engineers) Ltd (1969) RPC 41; Lord Ashburton v Pape (1913) 2 Ch 469; Commonwealth v John Fairfax and Sons Ltd [1980] HCA 44; (1980) 147 CLR 39; Saltman Engineering Co v Campbell Engineering Co (1948) 65 RPC 203; Prince Albert v Strange (1849) l8 LJ Ch 120; Argyll v Argyll (1967) Ch 302; Foster v Mountford and Rigby Ltd (1977) 14 ALR 71; Woodward v Hutchins (1977) 1 WLR 760; Church of Scientology v Kaufman (1973) RPC 635; Hubbard v Vosper (1972) 2 QB 84; Adam v Ward (1972) 2 QB 84; Smith Kline and French Laboratories (Australia) Ltd v Secretary for Health [1989] FCA 248; (1990) 95 ALR 87; Mesne v Milenkovic [1973] VicRp 78; (1973) VR 784; Half Court Tennis Pty Ltd v Seymour (1980) 53 FLR; Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales (1975) 2 NSWLR 104; Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) [1984] HCA 73; (1984) 156 CLR 414; Lac Minerals Ltd v International Corona Resources Ltd (1989) 16 IPR 27; Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 75 ALR 353; Weld-Blundell v Stephens (1920) AC 956; Conway v Rimmer [1968] UKHL 2; (1968) AC 910; D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; (1977) 1 All ER 589; Alfred Crompton Amusement Machine Ltd v Customs and Excise Commissioners (No 2) (1974) AC 405; Norwich Pharmacal Co v Commissioners of Customs and Excise [1973] UKHL 6; (1974) AC 133; R v Birmingham City Council (1982) 1 WLR 679; Castrol Australia Pty Ltd v Emtech Associates Pty Ltd (1980) 33 ALR 31; Morris v CW Martin and Sons Ltd (1966) 1 QB 716; Kooragang Investments Pty Ltd v Richardson and Wrench Ltd [1981] UKPC 30; (1982) AC 462 at 473; Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370 and Huth v Huth (1915) 3 KS 32, applied. Dunford and Elliot Ltd v Johnstone and Frith Brown Ltd (1978) FSR 143; Attorney- General v Guardian Newspapers Ltd (No 2) (1990) 1 AC 109; G v Day (1982) 1 NSWLR 24; Schering Chemicals Ltd v Falkman Ltd (1981) 2 All ER 321; Abernethy v Hutchinson [1825] EngR 653; (1824) 47 ER 1313; Torrington Manufacturing Co Ltd v Smith and Son Ltd (1966) RPC 285; Lloyd v Grace Smith and Co [1912] UKHL 1; (1912) AC 716 and Pullman v Hill (1891) 1 QB 524, discussed.

The evidence proves that the employee who removed the report from the file and caused it to be circulated in Port Augusta, was acting entirely without authority. That employee was not, so far as the evidence goes, assigned to any duties associated with Coorlay Lagoon or the dispute between the Kuyani and the Kokotha people. While the motivation for the actions is unknown, it is clear that the removal and circulation of the report did not occur in the course of the performance of any duties assigned or authorized by the Heritage Branch or any other department or agency of the State. So far as the evidence goes, what the unknown employee did can truly be described as a "frolic of his own"; Joel v Morrison (1834) 6 C and P 501 per Parke B. at p503, or as acting as "in effect a stranger in relation to his employer with respect to the act he has committed"; Bugge v Brown [1919] HCA 5; (1919) 26 CLR 110 per Isaacs J at p118. The only connection with the employment is that it provided the opportunity for the unknown employee to commit the unauthorized act and that is not sufficient to establish vicarious liability; Morris v Martin (1965) 2 All ER 725 per Lord Denning MR at p731.

The liability of the defendant with respect to the acts of its servants is no different in the relevant sense from the liability of any other employer. In many subsequent cases both in the United Kingdom and in Australia the authority of Lloyd v Grace, Smith and Co [1912] UKHL 1; (1912) AC 716 has never been doubted. Having regard to the principles which find expression in that case, it was incumbent upon the appellants to prove that the conduct of the servant of the respondent responsible for the leak, was committed in the course of his or her employment. This required a finding that at the very least the person concerned had a responsibility to deal with the report or the file in which it was retained in the course of his or her employment.

GORDON COULTHARD v THE STATE OF SOUTH AUSTRALIA MARK MCKENZIE v THE STATE OF SOUTH AUSTRALIA MALCOLM EDWARD CHAMPION v THE STATE OF SOUTH AUSTRALIA Nos. SCGRG 94/207, 94/208, 94/209 Judgment No. 4927 Number of pages - 29 Equity - defamation

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