Hitchcock v TCN Channel 9

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

1773/00 . SHARI-LEA HITCHCOCK V TCN CHANNEL NINE PTY LTD

JUDGMENT (Revised on 22 March 2000 to correct typographical errors)

1 HIS HONOUR: On Wednesday 15 March 2000 a news item appeared on the front page of the Sydney Morning Herald under the heading 'The billionaire, his lover, their nanny and her hush money'. The journalist reported that on the previous Thursday, Ms Julie Page had been paid a substantial amount of cash for withdrawing from proceedings in Waverley Local Court, in which she was the complainant seeking an apprehended violence order. 2 The newspaper article alleged that: · the respondent to the local court proceedings was Shari-Lea Hitchcock, the plaintiff in the present proceedings; · the plaintiff is the mistress of Mr Richard Pratt, a successful and very wealthy Melbourne businessman; · the plaintiff gave birth to Mr Pratt's child two years ago, and that Mr Pratt supports her and the child in an opulent lifestyle; · Ms Page had been employed as a nanny to look after the child, living in a granny flat behind the plaintiff's mansion in Centennial Park; · the relationship between the plaintiff and Ms Page broke down not long after Ms Page commenced to work for the plaintiff, when the plaintiff accused Ms Page of theft; · subsequently Ms Page began the local court proceedings seeking an apprehended violence order. 3 At approximately 11 am on 16 March 2000, the plaintiff received a telephone call from a woman identifying herself as Deborah Cornwell, a journalist employed by the defendant. Ms Cornwell informed the plaintiff that Channel 9 would be running an article that evening on 'A Current Affair', a television program, 'about [her] and Julie and the court case'. She told the plaintiff that she 'would like to get [the plaintiff's] side of the story'. 4 The plaintiff quickly sought legal advice, having regard to a contract between her and Ms Page dated 3 March 2000, which contained a confidentiality clause. The plaintiff's solicitors wrote to the defendant that afternoon, drawing attention to the contract, asserting that the proposed broadcast would constitute an inducement of breach of that contract, and demanding by 5:15pm a written undertaking not to broadcast the segment or any material of a like nature. At 5:25pm an officer of the defendant contacted the plaintiff's solicitors and informed them that the defendant was not prepared to give the undertaking. 5 The plaintiff's counsel approached me in chambers, as Equity Duty Judge, for ex parte relief shortly after 6pm. I granted an injunction shortly before the program was due to go to air at 6:30pm, having the effect that the program was not shown. 6 The plaintiff's summons seeking injunctive relief was filed on the morning of 17 March 2000, returnable later that day. At the hearing, which began on the afternoon of 17 March and continued through to 20 March 2000, the plaintiff's application for the continuation of the interlocutory injunction was contested by the defendant. The present judgment deals with the plaintiff's application for continuation of the injunction. 7 I granted leave to Nationwide News Ltd to intervene at the hearing, and heard submissions by counsel for that company on two questions, namely whether any part of the proceedings should be conducted in camera, and whether any non-publication or similar order with respect to evidence should be made. Notwithstanding those submissions, I closed the court for the viewing of a videotape of the program which the defendant wished to broadcast (Exhibit PX 4 in the proceedings), and I admitted the file of Waverley Local Court into evidence subject to orders restricting access to it and limiting the references which could be made to its contents in open court without prior notice to the plaintiff's counsel.

The plaintiff's grounds for relief 8 The plaintiff contended that she was entitled to the continuation of the injunction on two grounds: namely inducement of breach of contract, and breach of confidence. 9 In final submissions counsel for the plaintiff said that he would have based the plaintiff's case on the threatened defamation, in addition to the other two grounds, but that Practice Note 85 ('Defamation - Injunctions against 'Publication') prevented him from doing so. The Practice Note indicates that applications to restrain a threatened defamation should be made before the Defamation Judge or in his absence, the Common Law Duty Judge, rather than the Equity Duty Judge. 10 I indicated to counsel that the Practice Note should not be allowed to prevent the plaintiff from making whatever submissions were justified by the facts, though I observed that the defendant may object to the plaintiff raising an additional ground in final submissions. Then the defendant objected strenuously to the plaintiff raising threatened defamation so late in the hearing. The plaintiff's counsel responded by abandoning reliance on that ground, while purporting to reserve the plaintiff's right to seek relief in the Common Law Division on that ground in separate proceedings. He foreshadowed an application that the evidence in the present proceedings be used in the proposed new proceedings. 11 I have recorded this interchange to make it clear that the plaintiff's case in the present proceedings is confined to the two grounds that I have mentioned.

Summary of conclusions 12 This case might have raised some very important principles about privacy and media publicity. People are entitled to choose not to live their lives in the spotlight, however rich they may be and however they may conduct their sexual relationships and discharge their parental responsibilities. The fact that their lifestyle may be interesting or titillating to the public, or the subject of envy or gossip or scandal, does not oblige them to justify themselves to the media. Nor does it entitle their employees to disregard their duties by disclosing the employers' personal, private information to the media. Where the subject of disclosure is private conduct, newsworthy only because of the wealth and lifestyle of those involved, there is no overriding public interest which demands disclosure. 13 Not surprisingly, therefore, the law will hold domestic employees to their promises not to disclose private information, and will impose a duty of confidentiality in some cases even if no promise has been made. It may also protect the employer by restraining a third party from publishing information which has been wrongfully disclosed. 14 In the present case Ms Page made a promise of confidentiality which is enforceable against the defendant. But the promise was poorly drafted. It does not cover the ground that the plaintiff now says she intended to be covered. Properly construed, it was not a promise to keep all of the plaintiff's domestic arrangements private. And as far as the evidence before me goes, Ms Page was not engaged, or treated during her employment, in such a manner as to become subject to an equitable obligation of confidentiality which would prevent her from saying most of what she says in Exhibit PX4. 15 I have decided that the plaintiff is entitled to an interlocutory injunction until further order, restraining the defendant from televising a small part of Exhibit PX 4 on its television station, TCN Channel 9, and restraining it from permitting that material to be televised on any other station. The material which will be subject to the injunction is the part of the interview in which Ms Page answers questions about matters referred to in the complaint in the local court proceedings. I shall specify the particular questions and answers in a transcript of the videotape. 16 There will be no restriction on televising the remainder of Exhibit PX 4. The plaintiff has failed to show that there is a serious question to be tried in support of her claim for any wider injunctive relief. 17 I have decided to reject the plaintiff's construction of the confidentiality clause in the contract between her and Ms Page. In my view the contract prevents Ms Page from disclosing information about the contractual terms and conditions of her employment by the plaintiff and her occupation of the rear of the plaintiff's property. In Exhibit PX 4 Ms Page discloses some information about the contractual terms and conditions of her employment, though not about her occupation of the rear of the plaintiff's property. However, in her oral evidence the plaintiff herself disclosed more information about the terms and conditions of Ms Page's employment than Ms Page discloses in Exhibit PX 4, except on one point where their accounts are inconsistent. There is no justification for restraining further dissemination of information on matters which were disclosed in open court. 18 The contract also prevents Ms Page from disclosing information relating to the matters referred to in the complaint in the local court proceedings. The injunction which I propose will prevent the defendant from assisting Ms Page to breach this part of her contract. I reject the defendant's submission that the information is sufficiently in the public arena, through the publication of many newspaper articles, and that the injunction would be futile. 19 There is not enough evidence before me to make out even an arguable case on breach of confidence. The mere fact that Ms Page was employed as a nanny occupying the rear of the plaintiff's premises does not give rise to any equitable or implied contractual duty not to disclose the information which she purports to disclose in Exhibit PX 4, other than information about the matters referred to in the Complaint. 20 A domestic employee such as a nanny or housekeeper may well be subject to a duty of confidentiality which a court of equity will enforce by injunction. But if the duty of confidentiality has not been expressly imposed by contract, it will be implied only to the extent that the facts justify the implication. A part-time nanny who has separate accommodation is not necessarily bound to keep confidential the things she observes, while attending to her duties in the employer's residence, about her employer's personal relationships and her discharge of parental responsibilities.

Interlocutory application 21 The plaintiff was at pains to stress that her application for continuance of the injunction should not be assessed as if it were an application for final relief. She correctly submitted that the two questions for the Court in an interlocutory application are whether the plaintiff has identified a serious question to be tried at the final hearing, and whether the balance of convenience favours the continuation of the injunction until that time. 22 However, as will be seen, this case turns upon some questions of law and construction. It is sometimes inappropriate for the Court to give an answer only to the 'serious question' standard, and better to give a judgment purporting to resolve an issue which is open to be resolved on the state of the evidence at the interlocutory stage. The point was very well expressed by McLelland J in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533, where his Honour said (at 535): 'Where a plaintiff's entitlement to ultimate relief is uncertain, the Court, in deciding to grant or refuse an interlocutory injunction, must consider what course is best calculated to achieve justice between the parties in the circumstances of the particular case, pending the resolution of the uncertainty, bearing in mind the consequences to the defendant of the grant of an injunction in support of relief to which the plaintiff may ultimately be held not to be entitled, and the consequences to the plaintiff of the refusal of an injunction in support of relief to which the plaintiff may ultimately be held to be entitled. ... Where the uncertainty depends in whole or in part on a contested question of fact it is not appropriate for the Court to decide that question on the interlocutory application. Where the uncertainty depends in whole or in part on a contested question of law, it may or may not be appropriate for the Court to decide that question on the interlocutory application, depending on circumstances, eg., whether the question is novel or difficult, or is susceptible of resolution on the present state of the evidence, or where the urgency of the matter renders it impracticable to give proper consideration to the question. ... If the Court does decide the question of law the uncertainty is to that extent removed.' 23 The plaintiff submits that I should not decide questions of construction of the contract between her and Ms Page at the interlocutory stage. She points out that a contract must be interpreted by reference to the genesis or aim of the transaction (citing Prenn v Simmonds [1971] 1 WLR 1381; Codelfa Construction Pty Ltd v State Rail Authority (1982) 149 CLR 347, 350-352). She notes that evidence of surrounding circumstances known to both parties is permissible in aid of interpretation, where the provisions of the contract are ambiguous. Although the hearing of the interlocutory application lasted for 1 1/2 days, only very limited evidence was adduced. The plaintiff says that more ample evidence, more fully tested, will be available to assist the Court's task of construction at the final hearing. Therefore, says the plaintiff, what she needs to demonstrate is that there is a serious question to be tried as to the construction of the contract for which he contends. 24 On the other hand, the Court's principal task in construing a written contract is to read the document as a whole and decide upon its meaning. I have received very full submissions by the parties on the questions of construction. The document is in evidence. There is some evidence, though admittedly limited, about the circumstances surrounding the making of the contract. It is unlikely, in my view, that evidence by Ms Page, if available, would assist in resolving ambiguities. It is probable that evidence by the person who drafted the contract would be inadmissible (the plaintiff did not herself draft it). I therefore doubt that the judge at the final hearing will be in any better position to decide these questions than I am now. 25 Moreover, since I have formed the opinion that the plaintiff is entitled to an interlocutory injunction to protect her contractual position pending the final hearing, the proper construction of the contract will affect the nature and scope of the interlocutory regime. The difference between the plaintiff's preferred construction and my own is extreme. On my view of the contract, the televising of most of Exhibit PX 4 would be consistent with the contract, whereas on the plaintiff's construction none of Exhibit PX 4 could be shown. It is probable that Exhibit PX 4 will cease to be newsworthy well before any final hearing of these proceedings can take place, even if an expedited hearing is granted. The story has been headline news for almost a week, but that cannot last much longer. Effectively, therefore, success by the plaintiff at the interlocutory stage will remove the defendant's commercial motive for televising Exhibit PX 4. In my opinion that outcome would be unjust in the present circumstances. 26 I therefore intend to construe the contract as best I can, for the purpose of deciding whether to make interlocutory orders. I shall not limit myself to considering whether there is a serious question to be tried, or an arguable case, with respect to the plaintiff's preferred construction.

The contract 27 The contract is a document headed 'Release and Indemnity'. It refers to the file number of the local court proceedings and is expressed to be made between Ms Page (described as the 'Complainant') and the present plaintiff (described as the 'Respondent'). It is dated 3 March 2000, and is executed as a deed by Ms Page, though not by the plaintiff. 28 The pertinent parts of the contract are as follows: ' JULIE PAGE of Rear 42 Martin Road Centennial Park IN CONSIDERATION of the payment to her of the amount of TWENTY THREE THOUSAND DOLLARS ($23,000.00) ('the Settlement') in the manner hereinafter set forth HEREBY RELEASES INDEMNIFIES AND FOREVER DISCHARGES the Respondent from and against all claims charges cost expenses demands and liabilities whatsoever which the Complainant may allege arising from the terms and conditions of the employment by the Respondent of the Complainant and her occupation of the rear of the Respondent's property ('the Employment') or in any other manner arising from the matters set forth in the materials before the Local Court in the above matter ('the Complaint'). .… The Complainant COVENANTS AND AGREES with the Respondent that: .... (c) The Complainant will hereafter make no further claim against the Respondent on any account whatsoever relating to the Employment or to any matter arising in or from the Complaint. (d) The Complainant shall keep all knowledge relating to the Complainant, the Employment and the matters referred to in the Complaint as confidential and shall not disclose, publish or communicate or permit the disclosure, publication or communication thereof to any person. The Complainant acknowledges and agrees that damages alone would not be an adequate remedy for any breach by her of this Release and that accordingly the Respondent shall be entitled without proof of special damage to the remedies of injunction, special [sic] performance and other equitable relief for any threatened or actual breach of the provisions of this Release by the Complainant.' 29 It will be seen that the heading characterises the document as a 'release and indemnity', and the structure of the document supports that characterisation. The first clause contains a release and indemnity. The heading and structures suggest that the confidentiality clause (paragraph (d)) is ancillary to the release and indemnity. That suggestion is reinforced by paragraph (d) itself, which uses the definitions established in the body of the release clause. 30 At the time when the contract was made, Ms Page was still in occupation of the rear of the plaintiff's house, since one of the clauses of the contract obliges her to vacate the premises by 4pm on 4 March 2000 without causing damage to the plaintiff's property. Ms Page's employment by the plaintiff had recently come to an end in circumstances of such hostility that on 29 February 2000 Ms Page had made a complaint in the local court seeking an apprehended violence order against the plaintiff. For present purposes it is sufficient to say that Ms Page's complaint alleges abusive conduct and assault by the plaintiff. Ms Page was to be paid $23,000 in consideration of the promises made by her in the contract. 31 Not surprisingly, the first subject matter of the contract was a release and indemnity in respect of claims by Ms Page arising from the 'terms and conditions' of her employment and occupation, and the matters set forth in the materials before the local court. The context in which the contract was made suggests that the release and indemnity was directed to any future claims by Ms Page for breach of her contract of employment, or arising out of her removal from the premises at the rear of the plaintiff's house, or relating to the alleged assault and other matters set out in the local court complaint. It is plausible to say, in that context, that the first part of the contract, at least, did not purport to deal with the general relationship between the plaintiff and Ms Page during the period of her employment. To the extent that the confidentiality clause is ancillary to the first part of the contract, this reasoning suggests that the confidentiality clause was also not intended to deal with the general relationship between the plaintiff and Ms Page. 32 Paragraph (d) obliges Ms Page to 'keep' certain knowledge 'as confidential', and also obliges her not to disclose or permit the disclosure 'thereof' to any person. The clause identifies the knowledge to which it applies as knowledge 'relating to the Complainant, the Employment and the matters referred to in the Complaint'. Ms Page's description as the 'Complainant' in the heading of the document and the capital letters in 'Employment' and 'Complaint' make it clear that these words have the meaning given to them in the release clause. The plaintiff has made submissions on the meaning of each of the three components of the knowledge to which paragraph (d) refers.

'Knowledge relating to the Complainant' 33 The plaintiff says that the first element of paragraph (d) is 'knowledge relating to the Complainant'. It would be absurd to construe these words as requiring Ms Page never to disclose any knowledge about herself to anyone. The plaintiff says that these words must be given some sensible field of operation, which must be compatible with the aim of the contract. The plaintiff says that the aim of the contract was 'to pull down the shutters' on the relationship between the plaintiff and Ms Page. 34 The plaintiff offers two alternative interpretations of these words. The first is to say that the 'knowledge relating to' herself that Ms Page agreed not to disclose was knowledge concerning the relationship as she saw it and knowledge of what, according to Ms Page, she had observed about the plaintiff and the plaintiff's child in the course of her work. The second alternative is to conclude that the reference to the 'Complainant' in the second line of paragraph (d) is an obvious error which should be corrected so as to read 'Respondent'. The plaintiff relies on some well-known observations by Dixon CJ and Fullagar J in Fitzgerald v Masters (1956) 95 CLR 420. Their Honours said (at 426-7): 'Words may generally be supplied, admitted or corrected, in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency.'

(See also Attorney-General (NT) v Maurice (1987) 72 ALR 231; Lisciandro v Official Trustee in Bankruptcy (1996) 139 ALR 689.) 35 I disagree with the plaintiff's submissions. In the first place, I cannot agree with the plaintiff that the aim of the contract, even from her point of view, was to 'pull down the shutters' on the entire relationship between her and Ms Page. As I have already indicated, the principal component of the contract is a release and indemnity with respect to three categories of legal claims which, I infer, must have been very much in the plaintiff's mind at the time when the contract was made. Paragraph (d) is an ancillary clause, which does not exhibit any intention to introduce a large new subject, namely information about the entire relationship between the parties to the contract. 36 The plaintiff's first alternative construction would require the Court to read into paragraph (d) a substantial number of words which are not literally there. 'Knowledge relating to the Complainant' would become 'knowledge relating to the Complainant concerning her relationship with the Respondent as she saw it and knowledge which she had observed about the Respondent and the Respondent's child in the course of her work'. There is simply no basis for reading these words into the clause. 37 The plaintiff's second alternative would also require an adventurous intervention by the Court. The plaintiff does not seek to make a case for rectification of the contract to cause it to reflect the common intention of the parties. To succeed in proceedings for rectification the plaintiff would have to have evidence that the parties' intended the clause to apply to all knowledge possessed by the Complainant relating to the Respondent. Instead the plaintiff makes the much bolder assertion that the Court should correct the wording of the contract as a matter of construction. But this case is very far from the facts of such cases as Fitzgerald v Masters . In that case a clause in a contract said that the usual conditions of sale approved by the Real Estate Institute would 'so far as they are inconsistent herewith' be deemed to be embodied in the contract. The only possible interpretation of the literal words was an absurd one, and the Court had no difficulty in reading 'inconsistent' as 'consistent'. 38 In the present case it is far from obvious that the word 'Complainant' was intended to be 'Respondent'. Assuming for the moment that the word 'Complainant' was inserted by mistake, it is no more plausible to say that the correct word should have been the 'Respondent' than that it should have been 'Complaint'. There is a sensible distinction between 'knowledge relating to the Complaint' and 'the matters referred to in the Complaint'. Moreover, whereas the uncorrected construction was absurd in Fitzgerald v Masters , in this case the words of the clause can be construed sensibly as they stand. 39 In my opinion, the words 'knowledge relating to the Complainant' are to be read in conjunction with the words which follow. The first of the words which follow are the words 'the Employment'. Knowledge in relation to the Employment is knowledge relating to the contractual terms and conditions of the employment contract and occupancy. Knowledge relating to the Complainant includes, on this view, knowledge about the Complainant relating to the contractual terms and conditions. This would include, for example, knowledge about the complainant's adherence to, or breach of, the contracts of employment and occupation. The remainder of the words which follow are 'the matters referred to in the Complaint'. Knowledge relating to the Complainant includes, on the same reasoning, knowledge about the Complainant's role in connection with the matters referred to in the Complaint. 40 This construction does not require the Court to alter the text of paragraph (d), or to read into it words which are not literally there. It merely requires that the words 'knowledge relating to the Complainant' be construed in a manner which takes into account the context in which the words appear.

'The terms and conditions of the employment' 41 The second component of paragraph (d) is the Complainant's obligation to keep all knowledge relating to 'the Employment' confidential. The Employment is defined in the release clause as 'the terms and conditions of the employment by the Respondent of the Complainant and her occupation of the rear of the Respondent's property'. Several questions arise from these words. 42 First, in my opinion the definition of 'the Employment' extends to encompass the words 'the terms and conditions', in the manner set out in the previous paragraph. I reject the plaintiff's submission that 'the Employment' is only 'the employment by the Respondent of the Complainant and her occupation of the rear of the Respondent's property'. The sentence which contains the definition speaks of a release and indemnity with respect to certain claims, namely those claims 'arising from' stated subjects. The stated subjects are set out in the part of the sentence which begins immediately after the words 'arising from' and ends at the end of the sentence. The stated subjects are divided into two parts, one defined as 'the Employment' and the other defined as 'the Complaint'. The first part includes the words 'the terms and conditions'. 43 Secondly, on the face of the clause, the words 'the terms and conditions' apply to both the employment and the occupation - in other words, the Employment does not extend to every aspect of the Complainant's occupation of the rear of the Respondent's property, but only to the terms and conditions of the occupation. This conclusion flows from the structure of the sentence, in which there is no comma before the words 'and her occupation'. It is supported by my observations about the purpose of the contract and the context in which it was made. A consequence of this construction is that matters relating to or arising out of Ms Page's occupation of the rear of the plaintiff's house are not the subject of the confidentiality clause unless those matters relate to or arise out of the terms and conditions of the occupation. In my view nothing in Exhibit PX 4 can be said to come within the latter description. 44 Thirdly, the plaintiff submits that the expression 'terms and conditions' does not refer exclusively to stipulations enshrined in the contracts of employment and occupation. She notes that the contractual arrangements were, as one would expect, of a relatively informal kind. Moreover, the expression used is 'the terms and conditions of the employment ...', in contradistinction to 'the terms and conditions of the contract of employment'. Thus, says the plaintiff, the expression chosen is apt to refer not only to the contractual stipulations agreed between the parties but also to the course of their activities during the employment relationship created by their contract. The plaintiff says it would be artificial to treat the reference to 'terms and conditions' as a term of art having a narrow denotation. She relies upon the dictionary definition of 'condition', one of the meanings of which is 'state in regard to wealth; circumstances; hence social position, estate, rank' ( Shorter Oxford Dictionary , p 393; and to the same effect, Macquarie Dictionary , p 457). 45 I disagree with this submission. As I have said, the contract is principally a release and indemnity, with an ancillary confidentiality clause which uses definitions established in the body of the release clause. The expression 'terms and conditions', in a clause which releases and discharges the plaintiff from all claims, demands and liabilities which Ms Page may make, arising from the terms and conditions of employment and occupation, naturally refers to the provisions of the contracts relating to Ms Page's employment and occupation. 46 It is common to use the expression 'terms and conditions' so as to be sure that contractual warranties and conditions are both covered. An adequate reason for not referring to the 'contract of employment' rather than 'the employment' is simply that the contractual nature of the subject matter is sufficiently encapsulated by the words 'terms and conditions' themselves without any further qualification. There is no artificiality on this construction in the context of a release and indemnity, nor therefore in a confidentiality clause which borrows definitions from a release and indemnity clause. 47 As to the dictionary definition, I note that the first definition of 'condition' in the Shorter Oxford Dictionary includes (without setting it out in full) 'a provision, a stipulation' and 'covenant, contract, treaty'. Thus the narrower construction accords with the dictionary definition at least as well as the construction advocated by the plaintiff. 48 Having regard to the construction which I favour, the only parts of Exhibit PX 4 which display a contravention by Ms Page of her promise to keep all knowledge relating to the Employment confidential, are those parts where she refers to the contractual terms and conditions of her employment. She makes disclosure about this at lines 130-135 of the transcript of Exhibit PX 4. 49 However, the plaintiff gave oral evidence at the hearing on 17 March 2000 in which she disclosed more of the terms and conditions of the employment contract than Ms Page discloses in Exhibit PX 4. The only assertion by Ms Page which cannot be found elsewhere is an assertion about the term of her contract. The plaintiff denies the assertion, in effect, by giving evidence that Ms Page was engaged on a trial basis. 50 To enjoin the defendant now from televising disclosure of the terms and conditions of the employment would be to enjoin it from publishing evidence touching upon matters addressed in open court. The public interest in free access to information given in proceedings in open court would be compromised if I were to do so. The plaintiff is therefore not entitled to an interlocutory injunction which would prevent the televised disclosure made in Exhibit PX 4 of the terms and conditions of Ms Page's employment.

'The matters referred to in the Complaint' 51 This is the third component of paragraph (d). There is no disagreement between the parties as to its meaning. Plainly Exhibit PX 4 contains some material the disclosure of which is prohibited by this part of the clause. The only question is whether I should refrain from enjoining the defendant from televising that material on the ground that is already so much in the public domain that the injunction would be futile. 52 The defendant submits that a great deal of material about the Complaint is already in the public domain. Counsel for the defendant refers to the Sydney Morning Herald article of 15 March 2000, which 'broke the story'. I summarised this article at the beginning of this judgment. Plainly there is a significant amount of information in the article concerning the Complaint. The defendant also refers to articles in the Sunday Telegraph of 19 March 2000, The Australian of 18-19 March 2000 and the Sydney Morning Herald of 18 March 2000, although in each case disclosure about the Complaint is less specific than in the original Herald article. 53 However, in my opinion Exhibit PX 4 goes beyond what has been disclosed in the newspapers, at lines 118-123 of the transcript of Exhibit PX 4. 54 Even if that were not true, I would reject the submission that an injunction restraining the televised disclosure of information in breach of Ms Page's contractual obligation would be futile. Counsel for the plaintiff referred to the observations of Street CJ in David Syme & Co Ltd v General Motors-Holden's Ltd [1984] 2 NSWLR 294. His Honour said (at 299, admittedly in a somewhat different context): 'A generous construction of the ground of appeal would permit the appellant to argue, as was done, that there has already being such publication of the technical information and the project information as to destroy or diminish any continuing confidentiality in those two categories of information. This argument, however, cannot stand in the face of the demonstration in the evidentiary material of information clearly adequate to attract the intervention of the Court at this interlocutory stage. After all, as was pointed out by Shaw LJ in Schering Chemicals Ltd v Falkman Ltd [1982] QB 1 at 28: '... What obligation of reticence can apply to what has long been an open secret? So the argument ran. It is an argument which is at best cynical; some might regard it as suspicious. Even in the commercial world, ethics and good faith are not to be regarded as merely opportunist or expedient. In any case, though facts may be widely known, they are not ever-present in the minds of the public. To extend the knowledge or to revive the recollection of matters which may be detrimental or prejudicial to the interests of some person or organisation is not to be condoned because the facts are already known to some and linger in the memories of others.'' 55 In the present case there has been an enormous amount of newspaper publicity, and some other media publicity of the 'affair' which includes the Complaint. But the Court may take judicial notice of the fact that publication of Ms Page's interview in prime-time free-to-air television would communicate information about the matters referred to in the Complaint to a different and probably much wider audience than has been reached by publication so far. Additionally, viewers of the television program who have read the newspapers would have their recollection revived in a way that may be detrimental or prejudicial to the interests of the plaintiff. In my view, therefore, to the extent that Exhibit PX 4 contains disclosure of matters referred to in the Complaint contrary to paragraph (d), an injunction would not be futile. 56 The plaintiff contended that the threatened breaches of paragraph (d), appearing from Exhibit PX 4, were: (a) reiteration of the substance of allegations made in the Complaint; (b) the disclosure of (false) information about the relationship between the plaintiff and her daughter and the plaintiff's alleged treatment of her daughter; (c) disclosure of information about the plaintiff's alleged lifestyle, said to be based on observations made by Ms Page during the subsistence of the employment relationship. For the reasons which I have given, I agree with the plaintiff as to (a) but not as to (b) and (c).

Breach of confidence 57 The three requirements which must be satisfied before a court will protect information as being confidential were laid down by the English Court of Appeal in Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203. The requirements were conveniently summarised by Megarry J in Coco v A. N. Clark (Engineers) Ltd (1969] RPC 41, 47 as follows: 'In my judgment, three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene MR in the Saltman case on page 215, must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it. ...'. 58 For a time it was arguable that the equitable doctrine of breach of confidence was confined, or ought to be confined, to disclosure of trade secrets and other information of a proprietary kind. But in Duchess of Argyll v Duke of Argyll [1967] 1 Ch 302 Ungoed-Thomas J held that an obligation of confidence can arise independently of any right of property, and equity has jurisdiction to preserve a matrimonial confidence by injunction. That case was accepted and interpreted widely in dicta by Mason J in The Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39. When dealing with a contention that equity protects information which is not public property and public knowledge, and that no relevant distinction is to be drawn between the government and a private person, his Honour observed that 'a citizen is entitled to the protection by injunction of the secrets of his or her private life, as well as trade secrets', and he cited the Argyll case as support for that proposition. Later English cases have confirmed that the equitable doctrine is available to protect non-proprietary domestic confidences: see Stephens v Avery [1988] 1 Ch 449, 455; Woodward v Hutchins [1977] 1WLR 760. 59 Thus, there is an equitable doctrine potentially available to the plaintiff to restrain wrongful disclosure of private domestic confidences. Megarry J's first condition is satisfied, subject to two potential restrictions on the availability of the doctrine, to which I shall now turn. 60 The first arises from a proposition enunciated by Megarry J in the Coco case (at 48) that equity will not intervene unless the circumstances are of sufficient gravity, and that the equity ought not to be invoked merely to protect 'trivial tittle-tattle, however confidential'. However, having viewed Exhibit PX 4, I believe it would be wrong to regard the confidences in the present case as 'tittle-tattle', and I do not understand the defendant to have submitted otherwise. Although at one stage counsel for the plaintiff described the defendant as attempting to 'gratify public curiosity for commercial gain by regaling viewers with what was once called 'below-stairs' tittle-tattle about the private lives of people', I do not understand him to have conceded that the subject matter of Exhibit PX 4 is not of sufficient gravity to warrant equitable intervention. 61 The second possible restriction arises from the fact that the plaintiff and Ms Page were in a contractual relationship when the relevant information was disclosed to Ms Page. It may be plausible to hold that 'where there is a contract then it is to the contract that the court should look to see from express words or necessary implication what the obligations of the parties are and the introduction of equitable concepts should be resisted'; Meagher, Gummow and Lehane, Equity Doctrines and Remedies (3rd ed, 1992), para [4104]. If that view is correct, then the question is whether the information which the plaintiff seeks to protect falls within an express or implied contractual obligation of confidentiality. There is no evidence of any express contractual obligation of confidence in the contract of employment. For reasons which I shall give, there is no basis in the evidence for implying such a contractual term. Therefore if the plaintiff's case in breach of confidence rests solely in contract, it is likely to fail on the facts even at the 'serious question' threshold. 62 If, however, the plaintiff can rely on an equitable obligation, it may be that the duty is less dependent on findings of fact. That may be why the plaintiff submitted, drawing an analogy with fiduciary relationships, that the equitable obligation to protect confidential information may subsist concurrently with a contractual relationship, except to the extent that the contract expressly or impliedly modifies the equitable obligation. 63 In my opinion it is unnecessary for me to decide, in the present interlocutory circumstances, whether the equitable doctrine is capable of co-existing with a contractual relationship. I have decided that the plaintiff's problem, whether she relies upon an implied contractual term or an equitable duty, is that the facts adduced at the hearing before me fail to establish even a serious question to be tried or an arguable case that a contractual or equitable duty exists which would prevent Ms Page from making the disclosure which she makes in Exhibit PX 4. In other words, there is no factual substratum for relief based on contract, and Megarry J's second condition for application of the equitable doctrine to Exhibit PX 4 has not been satisfied on the present facts. 64 Very little relevant evidence has been tendered. The plaintiff relies on her own affidavit and oral evidence, two affidavits by her solicitor, a videotape of a television broadcast promoting the interview with Ms Page, some newspaper articles, the proposed interview with Ms Page which is Exhibit PX 4, and the file from Waverley Local Court. The defendant's evidence comprises a large number of newspaper articles and another videotape promoting the television interview. The newspaper articles describe the relationship between the plaintiff and Ms Page but they are not evidence of the truth of the assertions which they contain. What is lacking is any detailed description of the circumstances surrounding the engagement of Ms Page to be nanny for the plaintiff's daughter; and in particular, evidence of any facts beyond the fact of Ms Page's engagement as a nanny, which might suggest a promise or expectation that the privacy of the plaintiff's lifestyle and relationships would be observed. For example, one contrasts the meagre facts in this case with Stephens v Avery , where there was evidence that the plaintiff prefaced the disclosure of her lesbian relationship with a statement that she was speaking in confidence and the information was to go no further, and that the first defendant acquiesced. 65 In the present case I am asked to infer a great deal from the sheer fact that Ms Page was engaged as a nanny. I accept that a person engaged for domestic service (such as a cook, maid, gardener, housekeeper or nanny) is subject to an implied contractual or equitable obligation to keep certain matters confidential, if there is no relevant express contractual provision. For example, it would be a breach of duty for such a person to rifle through the employer's financial records, in order to communicate the contents to an outsider. It may be a breach of duty for a domestic employee to disclose to an outsider, for example, that the employer has been seen in a compromising situation with a lover. Even there, however, the duty will depend upon the circumstances, including such matters as whether the employee lives in the same residence as the employer, and on the precise nature of the duties of employment. It is very difficult to generalise. 66 If one analyses Exhibit PX 4, one can identify several broad topics. First, there is the relationship between the plaintiff and Mr Pratt. Secondly, there is the issue whether the plaintiff is a good mother to her daughter. Thirdly, various incidents are related. Fourthly, there is discussion of the Complaint and finally there is discussion about the feelings and attitudes of Ms Page. 67 I have said that in my opinion the discussion about the Complaint contravenes paragraph (d) of the contract between the plaintiff and Ms Page, to the extent that it discloses matters referred to in the Complaint. But it does not seem to me that the mere position of Ms Page as a nanny to the plaintiff's child, living at the rear of the plaintiff's house, implies of itself any contractual or equitable obligation on Ms Page to keep secret the aspects of the relationship between the plaintiff and Mr Pratt which she discloses in the interview. Equally, I cannot imply from the mere position of Ms Page a duty not to disclose the things she discusses in the interview about the plaintiff's parenting. It is not clear to me from the evidence that the various incidents disclosed in Exhibit PX 4 were observed in circumstances which attached to them some special duty of confidentiality, and the mere employer/nanny relationship is not sufficient to protect them from disclosure. 68 Ms Page's conduct in disclosing information on these topics may well strike the viewer as disloyal and therefore morally objectionable. But implying a contractual term or discovering an equitable duty of confidentiality is quite another matter (especially as it is open to the employer in such a situation to obtain protection by an express provision in the contract of employment). I am not in the position to do so, on the evidence. 69 One might compare the position of a nanny with the position of, say, a gardener who works only outside the house. In the absence of any express contractual stipulation, it seems to me very implausible to contend that the gardener has any legal obligation to keep secret the events which he may observe with respect to his employer's relationships and parenting. The position of a live-in butler may well be different, assuming that the butler's job is to assist the employer as a manager of personal affairs. No doubt the nanny's position is somewhere in between these two. Frequently, one would hope, the duty of confidentiality would be articulated by the employer. But where the nanny is employed part-time with separate quarters and there is no other evidence, I cannot make the leap which the plaintiff invites me to make of treating the disclosure in Exhibit PX 4 as a breach of any implied contractual or equitable duty. 70 The defendant submitted that any equitable or contractual obligation of confidence which may have arisen out of the contract of employment or the circumstances of employment was overridden by the contract of 3 March 2000 and in particular, by paragraph (d), which should be regarded as 'covering the field'. To a degree, this submission was in tension with the defendant's principal submissions on construction of the contract, which were to the effect that the contract was prepared for limited purposes and should not be construed as regulating the overall relationship between the plaintiff and Ms Page. 71 In any event, I can see no justification for treating paragraph (d) as covering the field with respect to Ms Page's duty of confidentiality. In my opinion the contract was prepared principally to provide a release and indemnity for the plaintiff, as I have said, and the confidentiality clause was ancillary and of limited scope. Had there been a contractual or equitable duty of confidentiality arising out of the employment relationship and extending to the disclosure in Exhibit PX 4, my view is that the contract of 3 March 2000 would not have extinguished or reduced that obligation. 72 The defendant submits that even if there is any contractual or equitable duty of confidence, it would be inappropriate to make an interlocutory order having regard to the vast publicity which this matter has received. The submission is that newspaper articles have disclosed all of the substance of Exhibit PX 4, and therefore an injunction would be futile. I have already dealt with the substance of this submission in considering whether an injunction should be granted to enforce paragraph (d). 73 If there were a continuing equitable or implied contractual duty which would be violated by the disclosure in Exhibit PX 4 (an hypothesis which I do not accept), then I would not regard the publicity which has been given to this matter as a ground for concluding that an injunction would be futile. As far as I can tell, several matters disclosed in the interview have not been publicly aired so far, and even if they had, the television program will reach a wider audience and will refresh the memories of those who have read the newspapers, to the potential prejudice of the plaintiff. But on the reasoning which I have adopted, the disclosure will not be in breach of an equitable or implied contractual obligation (though disclosure of matters referred to in the Complaint will be in breach of an express contractual stipulation), and consequently it is not necessary to make a final decision on the submission.

The position of the defendant 74 The defendant has reminded the Court that it is not a contracting party, and its conduct should not be constrained unless it can be shown to possess an element of 'scienter'. As far as the tort of inducing a breach of contract is concerned, the tortious conduct may well involve an element of knowledge that the tortfeasor's conduct would induce or encourage or assist the contract party to breach the contract. As far as breach of confidence is concerned, the third party's position is described in Attorney-General v Guardian Newspapers Limited (No 2) [1988] 2 WLR 805, at 868. The defendant was aware of the terms of the contract of 3 March 2000, and was aware that Ms Page was employed as the plaintiff's nanny. 75 However, it follows from my findings that knowledge of the contract did not put the defendant in the position of a tortfeasor except to the extent that paragraph (d) would be breached by Ms Page's disclosure in the interview. To that extent, an injunction lies against the defendant, but since the contract does not impose any other relevant constraint there is no justification for restraining the defendant in any other way. 76 As regards the defendant's position with respect to breach of confidence, my view is that its conscience would be affected only if and to the extent that it knew of facts which established that Ms Page's disclosure in the interview would be a breach of confidence. I have found that the plaintiff has not adduced evidence of any such facts, and it follows that the plaintiff has not shown that the defendant was aware of any such facts.

Balance of convenience 77 The plaintiff submits that the balance of convenience tilts heavily in her favour. According to the plaintiff, the threatened publication does not relate to any matter in the public interest. For that position she relies on Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153. I agree that disclosure of the subject matter of Exhibit PX 4 is not obviously required in the public interest, but on the other hand one must be very careful about preventing by injunction the disclosure of information in which it appears that the public has a real interest, however motivated. 78 Further, the defendant says that the threatened publication contains serious defamatory imputations of and concerning the plaintiff, which I should take into account on the balance of convenience, although the defamation has not been put forward in these proceedings as a substantive ground for relief. The difficulty with this submission, in my view, is that the plaintiff has not demonstrated that damages would be an inadequate remedy to compensate her for any defamation which may occur. 79 The plaintiff says that an inference is open on the evidence that the Defendant, with knowledge of Ms Page's obligation of confidentiality, has paid her money to breach that obligation. It is said that this inference must go to the balance of convenience. This submission is relevant to the extent that I have found that the interview will involve a breach by Ms Page of paragraph (d) of the contract. But it does not enable the plaintiff to obtain any more extensive relief. 80 My conclusion is that the balance of convenience favours the grant of an injunction limited to restraining the defendant from showing the parts of Exhibit PX 4 which relate to the matters referred to in the Complaint. If I had found that there is a serious question to be tried as to whether the televising of Exhibit PX 4 would involve a breach of an implied contractual term of the contract of employment or an equitable duty of confidence, I would have concluded that the balance of convenience would have favoured interlocutory relief. While I recognise the importance of free dissemination of information through the media, I would not hesitate to restrain any media entity from inducing disclosure of private matters in breach of contract or equitable duty. But that question does not arise.

Conclusions 81 The plaintiff is entitled to an injunction to restrain the defendant from televising, or permitting to be televised on any other television station, that part of Exhibit PX 4 that would involve breach by Ms Page of paragraph (d) of the contract of 3 March 2000, with respect to matters referred to in the Complaint. In my opinion, the plaintiff has failed to make a case for any wider relief. 82 I have considered whether I should make an order restraining the defendant from inducing any further or other breach of the contract of 3 March 2000. I have concluded that such an order is unnecessary. It appears from the slim evidence before me that the defendant, being well aware of the terms of the contract, took legal advice as to its scope. I cannot on the evidence infer that the defendant has followed all the legal advice that it has received. But the facts are that the text of the contract was faxed by the plaintiff's solicitor to the defendant on the afternoon 16 March 2000 and by 6pm that evening, when the plaintiff moved for ex parte relief, the defendant's present legal advisers attended my Chambers as observers. The next day they strenuously contended (not implausibly and partially successfully) that their client's proposed conduct would not involve any tort or breach of duty. Given the nature of the legal advice which the defendant has had, it will be well aware of the consequences of inducing any further breach of the contract. I do not regard repetition of the tort as at all likely on the evidence before me. 83 I shall settle the precise form of the injunction with the parties, by reference to the particular passages of the transcript of Exhibit PX 4 which must not be televised. I shall also hear the parties on the question of costs. * * * * * * * * *

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