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.