Maurice Blackburn Cashman v Ackland

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

4818/01 MAURICE BLACKBURN CASHMAN v RICHARD ACKLAND t/as LAW PRESS OF AUSTRALIA

1 HIS HONOUR: This is an application by the partners of Morris Blackman Cashman solicitors ("MBC") for an injunction restraining the defendant, Richard Ackland, trading as Law Press of Australia, from further publishing certain material and for the removal by Mr Ackland of that material from a website maintained by him on which it is currently accessible. Mr Ackland is the publisher of what was once a paper journal known as "Justinian". That journal is no longer published in paper form but is published in the form of a website, access to which is given to subscribers. MBC were the solicitors for the plaintiffs in a "class action" relating to the Copper 7 contraceptive device. I use the words "class action" in a loose sense, since the proceedings were brought in this Court rather than the Federal Court and all of the women who sought damages in the action, more than 300 in number, were actually made plaintiffs. 2 The action had an unhappy history in which it was tried by Bruce J, then a Judge of this Court. The trial was of the claims of nine "lead" plaintiffs. Shortly before his resignation as a Judge his Honour delivered judgment to the effect that those claims were unsuccessful. His Honour's judgment was subsequently overturned on appeal by the Court of Appeal, which ordered a new trial generally. Before that new trial the proceedings were settled on terms which it is plain that the parties to the settlement intended to be kept confidential. Before the plaintiffs gave instructions for the settlement, MBC forwarded them a letter of advice and two opinions of counsel. On the evidence before me, before those plaintiffs received the letter of advice and opinions, each of them signed a confidentiality agreement agreeing to keep confidential and not disclose the contents of the letter of advice and opinions. 3 It may be inferred from the evidence before me that the advice and opinions have come into Mr Ackland's hands. On 27 September 2001 there was published on the "Justinian" website an article headed "Pathetic Payouts to Damaged Plaintiffs" and the two opinions in toto. The article summarises the terms on which settlement was reached and what are suggested to be the underlying reasons for that. Dr Cashman and Miss Gilsenan, solicitors for the plaintiffs, first made application before me late yesterday afternoon ex parte for injunctive relief. I refused to give relief ex parte but gave the plaintiffs leave to apply for interlocutory relief on notice at 10am today. However, despite considerable efforts, Mr Ackland was not able to be located last night at his home or place of business, likewise today, and it has not even been possible to speak to him by telephone. Application for injunctive relief has, therefore, been renewed before me today on an ex parte basis on behalf of the plaintiffs by Dr Cashman and Miss Gilsenan. An event of considerable importance in this matter occurred this morning. This morning in the Sydney Morning Herald there was published an article under the byline of Mr Ackland headed "A Nasty Taste of our Justice System in Action". In that article Mr Ackland repeated the substance of the material contained in the "Justinian" article and in the first of the two opinions that appears on the website. The substance of the material contained in the second opinion is not in my view revealed in the article in the Sydney Morning Herald. 4 The injunctions which Dr Cashman and Miss Gilsenan now press for on an ex parte basis are to restrain the further publication of the material, being the letter of advice and the two opinions, and the removal of the material from the website. Dr Cashman suggested that there was a right to restrain the publication of the material on the basis that, at least so far as counsel's opinions were concerned, there was a breach of copyright; however, there is no material before me which establishes even an arguable case that these plaintiffs have any cause of action based on copyright and nothing more need be said about that. The other two bases on which it is suggested that the plaintiffs have an arguable case for injunctive relief are that what has been published is confidential information, that is, confidential to the plaintiffs, which it is contended was improperly obtained and the publication of which is to the detriment of the plaintiffs. The evidence is quite silent as to how Mr Ackland obtained the material save that it is apparent, because he says so in the "Justinian" article, that he knew that the "clients were instructed that the deal was confidential. There was to be no disclosure to anyone about the terms of settlement or the payment of money to MBC." It is clear, therefore, that there is an arguable case that he was aware that the material had been given to MBC's clients on a basis of confidence. There can be little doubt that each of those clients must have known that the condition of confidence was imposed not only on herself but on the numerous other clients involved in the litigation. 5 Perhaps the most recent case with some similarity to the present decided in this Court is the proceedings in Hitchcock v TCN Channel Nine Pty Ltd [2000] NSWSC 198 (Austin J) and Hitchcock v TCN Channel Nine Pty Ltd (No 2) [2000] NSWCA 82. There is perhaps also some similarity in the circumstances dealt with by Hodgson CJ in Eq, as his Honour then was, in Donnelly v Amalgamated Television Services Pty Ltd NSWSC 5 November 1998 unreported. It does seem to me that in relation to this material the plaintiffs have made out an arguable case of breach of confidence in that they have arguably demonstrated fulfilment of the three elements necessary in the case of a breach of confidence summarised by Megarry J in Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47; see also Mainbridge Industries Pty Ltd v Whitewood (1984) 73 FLR 117 at 122 per McLelland J; DPP (Cth) v Kane (1997) 140 FLR 468 at 474 - 475 per Hunt CJ at CL. They seem also to have made out an arguable case of the necessary involvement of the defendant albeit he was not a party to the contract or relationship from which the obligation of confidence arose: see Attorney General v Guardian Newspapers Limited (No 2) [1990] 1 AC 109 at 167 per Scott J; and see Johns v Australian Securities Commission (1993) 178 CLR 408 at 459 - 460 per Gaudron J. Whilst there is not evidence of actual damage to the plaintiffs arising from the disclosure, it seems to me that sufficient detriment may be inferred from the revelation of the confidential material to support injunctive relief in the short term. 6 I should be inclined to grant injunctive relief, at least in the short term, on the material available, were it not for the problem created by the article in the Sydney Morning Herald this morning, which it seems to me has placed a very large part of the relevant material in the public domain and thus rendered the grant of an injunction futile. Dr Cashman has protested that this piece of evidence ought not operate in that way, since it was the act of this very defendant that placed the matter in the public domain. He has also suggested that articles in daily newspapers are evanescent, whereas material on a website has an ongoing existence, so that it would not be futile to deal with the matter on the website despite the publication in the newspaper. However, I am of the view that these things must be approached in a manner that comes to grips with common reality. This is not a case like Hitchcock's case where, although the plaintiff had revealed substantial items of the confidential material by bringing it out in open Court in order to pursue relief, the inference could be drawn that considerable further material that was still confidential would be published if the television programme that was the subject matter in that case were allowed to proceed. Here it is rather different. The vast bulk of the horse has bolted. Only a small amount of the information which is in any way discrete remains unrevealed. In relation to the material that has been revealed, an injunction would in my view be futile and, on that ground I do not propose to grant it. 7 As appears above, the portion which has not been revealed and which is discrete is the second opinion, which deals with a separate subject matter. There is some case for saying that a more balanced view of the situation would be obtained by a reader who read the second opinion as well as being privy to the material contained in the "Justinian" article and the first opinion. Dr Cashman in argument conceded that there was a deal in this view. However, he took the stance that, since confidential information that belongs to a large number of MBC's clients is involved and since MBC ought do nothing that could in any way be construed as consenting to the release of that material or failing to do everything that can be done to preserve its confidentiality, he ought press for injunctive relief in relation to the second opinion, even if I were inclined to refuse it in respect of the "Justinian" article and the first opinion. 8 The conclusion that I have come to is that I should refuse relief in respect of the "Justinian" article and the first opinion but that, as the subject matter of the second opinion is discrete, and as I am of the view that an arguable case of confidentiality has been made out, I should restrain further publication of the contents of that opinion and order the removal of that opinion from the website. Although the second opinion already appears on a website accessible by subscribers it does not appear that it has been so widely disseminated as to render the restraints in respect of it nugatory, as contrasted with the material the substance of which has been published in the Sydney Morning Herald. I propose to grant the relief on an ex parte basis only for a short and finite time. During that time, on the balance of convenience the maintenance of confidence (which would be irrevocably lost) outweighs any public interest in the publication of the material: see Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513 at 525 per Powell J; Criminal Justice Commission v Nationwide News Pty Ltd (1994) 28 IPR 360 at 361 per Pincus JA. These questions may be argued, if desired, on any motion to continue the relief. 9 I shall ask Miss Gilsenan to bring in as soon as possible short minutes of orders to give effect to the decision that I have announced. The relevant order should be for removal of the second opinion from the website within 48 hours of the service of the orders upon Mr Ackland. The orders should provide for costs to be reserved and standing the matter over to the relevant day. Do you give to the Court the usual undertaking as to damages? GILSENAN: Yes, I do. HIS HONOUR: Incorporate that undertaking in the minutes.

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