SHARI-LEA HITCHCOCK v TCN CHANNEL NINE PTY LTD [2000] NSWCA 82 | Case summary

Austin J granted a limited ex parte injunction to prevent the Respondent broadcasting a television interview with a Ms J Page. The interview concerned the Appellant and her child and their relationship with a third party, Mr R Pratt. Ms Page was the child's "nanny" though this classification of her role was disputed. The Appellant appealed from the Orders of Austin J. However, at the commencement of proceedings before the Court of Appeal, the Respondent offered an undertaking in the same terms as the injunction which the Plaintiff had sought before Austin J. The only issue before the Court of Appeal was the question of costs. The Respondent submitted that it should not be ordered to pay costs because its conduct in defending the proceedings had been reasonable.

1 SPIGELMAN CJ: I invite Justice Heydon to deliver the first judgment. 2 HEYDON JA: The appellant, to be hereafter called the plaintiff, is the unmarried mother of a two year old daughter. The father of the daughter is Richard Pratt, a married man living in Melbourne with his wife. The appellant, whom the defendant describes as his mistress, lives at 42 Martin Road Centennial Park. In mid November 1999 she employed Ms Julie Page as a nanny, an expression which the defendant wishes to controvert. She was paid $200 per week, but was also provided with separate, rent-free living accommodation at the rear of 42 Martin Road. Her duties were to occupy seventeen hours a week. The nature of those duties was said to be babysitting. 3 The employment terminated on 26 February 2000 and on 29 February Ms Page commenced proceedings in the Waverley Local Court against the plaintiff seeking an apprehended violence order. Those proceedings were withdrawn after Ms Page executed a document in the form of a deed dated 3 March 2000. There was some evidence that the consideration to be paid to Ms Page pursuant to that deed of $23,000 has been paid. 4 On 15 March some daily newspapers commenced that day, and on later days, to publish a quantity of material about Mr Pratt, the plaintiff, and Ms Page. The following day Deborah Cornwall, a journalist employed by the defendant, sought to obtain the plaintiff's side of a story which was to be broadcast that night on A Current Affair at 6.30pm to was to take the form of an interview with Ms Page. Channel 9 on that day broadcast items promoting the program intended to be broadcast that evening. 5 The plaintiff demanded a written undertaking that the program would not be broadcast. That undertaking was refused and an application was made to the Equity Division where the duty judge granted ex parte relief to prevent the broadcasting of the program. He heard an application for the continuation of injunctive relief on 17 and 20 March. He delivered a reserved judgment on 21 March granting only limited interlocutory relief. The next day the plaintiff sought an interlocutory injunction from Mr Justice Dunford in the Common Law Division complaining of defamation. That resulted only in an insignificant widening of the injunctive relief from the plaintiff's point of view. At 4.30pm on Wednesday 22 March the plaintiff sought leave to appeal to this court against the orders of the Equity Division. Leave was granted and an interlocutory injunction was granted extending until today, which was fixed as the day for hearing the appeal. 6 Though the initial ground of complaint by the plaintiff against the defendant in the letter of demand rested on the tort of interfering with the contract constituted by the deed on 3 March, before the primary judge much attention was devoted to a second ground of complaint, namely, whether Ms Page had been engaged and been treated during her employment in such a manner as to render her subject to an equitable duty of confidentiality. 7 The primary judge reached these conclusions. He said that assuming any serious question to be tried existed, the balance of convenience favoured the plaintiff. He was of the view there was a serious question to be tried as to whether clause (d) of the deed of 3 March bound Ms Page not to make disclosures about the local court proceedings. He said also there was a serious question as to whether the contract prevented Ms Page from disclosing information about the contractual terms and conditions of her employment and her occupation of the rear of the property. As to the latter, he concluded that the plaintiff had disclosed in her evidence in open court more information about those terms and conditions than Ms Page was proposing to in the program, so that there was no point in an injunction in that respect. 8 He granted a limited injunction in the former respect to do with the local court proceedings. He held there was no serious question to be tried in relation to an equitable duty of confidence on the basis that the mere fact that Ms Page was employed as a nanny occupying the rear of the premises did not give rise to any equitable or implied contractual duty not to disclose the information she had purported to disclose in the program. 9 It is important to remember neither the primary proceedings before the judge, nor these appellate proceedings, had they proceeded in the expected manner, would have been decisive of the ultimate rights of the parties. That is because although the interlocutory injunction, or the refusal of it, could have caused significant damage to the interests of the respective parties, their ultimate rights will be a matter for the final hearing in the Equity Division. The trial judge, as is sometimes appropriate, found it necessary to decide in relation to the deed not merely whether there was a serious question to be tried, but what the appropriate view of the construction of the deed was for himself, but his having done that will not bind whichever judge conducts the final hearing in the proceedings. 10 This morning when the matter was called on, Mr McClintock of Senior Counsel, appearing for the defendant/respondent in this court, offered an undertaking to the court which Mr Hughes of Queens Counsel, appearing for the plaintiff/appellant, declined to accept. The offer of an undertaking was then widened by Mr McClintock to be in the same terms as the injunction which the plaintiff had been seeking before Justice Austin. After some argument, principally relating to the question of costs, Mr McClintock, in opposition to the plaintiff's application either that the defendant pay the costs of the appeal or that the costs be the plaintiff's costs in proceedings, put the following submissions. 11 He said that the conduct of his client was reasonable both in resisting the application to Justice Austin and also reasonable to the point at which undertakings were offered this morning. He said that there was a fatal flaw in effect in the plaintiff's case and that the matter had gone off on a false basis. The false basis was said to be that to characterise Ms Page as the nanny of the plaintiff's child was erroneous. The truth was, in the defendant's submission, that she was a part-time babysitter and that there was nothing in the relationship indicative of the communication as part of the employment relationship of confidential material. 12 It is not necessary for present purposes to say very much about the applicable law. In my judgment there is a serious question to be tried as to whether the legal test is not simply that it would have been part of the common expectations of people generally, and of the plaintiff and Ms Page in particular, that a person in the position of Ms Page would keep secret what she saw or heard or otherwise observed of her employer's life in consequence of that employment. 13 The defendant, in its relatively narrow characterisation of Ms Page's role, placed reliance on the evidence of the plaintiff before Justice Austin. That evidence, prepared as it was in what were necessarily conditions of considerable haste, may or may not totally expound the terms of the contract between Ms Page and the plaintiff, or the terms of the wider relationship between Ms Page and the plaintiff. 14 There are two other sources of material in the exiguous materials before the court that cast light on those questions. One is the terms of the interview itself, which is not material that I propose to go to in detail because of its confidential nature. A reading of that interview, however, establishes that Ms Page was purporting to put to the interviewer, Mr Munro, not material which was known to be in the public domain or material which was accidentally discovered, but rather, material deriving from her knowledge of what happened at 42 Martin Road Centennial Park by reason of her duties at that address. 15 A second source of material can be divided into two parts. On 16 March the defendant, by way of preparation for the program it was proposing to broadcast that evening, advertised the program. It did so in part by, so far as one can infer from the material, broadcasting snippets thought to be interesting from the program. It also did so by the medium of the words of an announcer. The announcer commenced by saying that that evening A Current Affair was to be a program about a billionaire, his mistress and their bizarre lifestyle. The announcer said "The nanny who cares for their love child lifts the lid on their extraordinary relationship". Put into other language, the announcer was saying: "there have been confidential events which are now being brought into public knowledge by the nanny and which we are going to bring further into public knowledge". 16 On the evening news the compere commenced a segment broadcast at 6.09pm about the impending interview in the following terms: "Tonight we can give you at least one side of the scandal that's been too hot for the gossip columns in Sydney and Melbourne and has gone straight to the front page. The former nanny [not babysitter] has told her version of the story of billionaire Richard Pratt, his mistress and their baby." A reporter, apparently the Ms Deborah Cornwall who had contacted the plaintiff earlier that day according to the evidence, then said "It's a fascinating peek into the secret life of Melbourne billionaire Richard Pratt, the man whose money couldn't buy the silence of nanny Juliette Page who's now dishing the dirt on his double life with Sydney mistress Shari-Lea Hitchcock." 17 The defendant, by that conduct, was in effect admitting - or in the alternative, it was broadcasting untruths, which is an alternative I do not accept - that it was going to tell its viewers of matters in the life of Mr Pratt and his associates which had hitherto been secret, and material in that life that derived its interest for the public because it came from someone who knew, being someone who had obtained the material in the office of nanny. 18 In the circumstances, the defendant's submissions proffered in support of the reasonableness of its conduct, first in resisting injunctive relief and then in proffering an undertaking this morning, fail. In my judgment its conduct, at least so far as the Court of Appeal proceedings are concerned, has not been reasonable. 19 It is not necessary to reach a final view on the reasoning of the primary judge, whose reasons for judgment in their clarity and analytical skill command respect in view of the circumstances under which they were prepared. It is not necessary to deal at all with his Honour's opinions on the deed. As to his Honour's opinions on the equitable obligation of confidence, to the extent necessary for disposing of this question of costs I would respectfully differ from him and conclude that there are serious questions to be tried as to whether the relationship between Ms Page and the plaintiff was such that material discovered by Ms Page in the course of that relationship is liable to be protected by the Supreme Court. 20 In those circumstances I would favour the following costs order. That the defendant/respondent pay the plaintiff/appellant's costs of the application for leave to appeal and of the appeal itself. 21 I would not favour this court making any costs order in relation to the proceedings before Justice Austin. He himself has not yet made any order and it is appropriate for him to consider what order is appropriate in light of his intimate knowledge of those proceedings. 22 SPIGELMAN CJ: I agree with Justice Heydon. I add a few comments of my own on the issue of the resistance by the defendant of any order as to costs against itself on the basis of the strength of the case it would, but for the effects of delay on the newsworthiness of the proposed program, have been able to present to the court. 23 Mr McClintock SC, who appeared for the defendant, particularly relies on the passage in the evidence of the plaintiff, to which Justice Heydon has referred, suggesting that the duties of Miss Page, under her contract of employment, were limited to seventeen hours of babysitting per week and that the submissions in these proceedings have proceeded on a false basis as to the scope of the equitable duty of confidence. His submissions seek to restrict the scope of the relevant equitable duty to the specifics of the employment relationship. 24 I agree with Justice Heydon that there is a serious issue to be tried on the appropriate legal test as to the extent of such a duty. 25 Mr McClintock expressly relied on the three conditions that were set out by Sir Robert Megarry originally in Coco v AN Clark (Engineers) Ltd [1969] RPC 41, 67 and which the Vice-chancellor repeated in the case of Malone v Metropolitan Police Commissioner [1979] Ch 344, 375. Of particular relevance to the submissions made on the issue of costs was the second condition of the three. The first condition was that information had to have the necessary quality of confidence; the second, that it must have been imparted in circumstances importing an obligation of confidence; and the third, required some form of unauthorised use causing detriment. 26 At the level appropriate for an interlocutory hearing there is a serious issue to be tried as to the appropriateness of the second and third conditions. The submission made on the costs issue relating to the second condition of Sir Robert Megarry, was linked to the alleged limited scope of the employment relationship, that is, limited to a characterisation appropriate to that of a babysitter. 27 For the reasons advanced by Justice Heydon I agree there is a substantial question to be tried. Given the nature of an interlocutory proceeding and the limited evidence given in that proceeding, it is not appropriate to determine this question, or the strength of the respondent's case, on so limited a basis. 28 The second condition of Sir Robert Megarry has been subject to subsequent consideration in a number of authorities, including Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804. The appropriateness of both that condition and the third condition in Australian law may be doubted in the light of the fact that only the first of the three conditions are set out by Justice Deane, with whom the other members of the court agreed, in Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] (1984) 156 CLR 414, 438. In that passage his Honour referred to the relevant circumstances as extending beyond circumstances in which "the information was communicated" to encompass circumstances in which information was "obtained". 29 With respect to the third condition in Coco, it is an open question as to whether or not there is such a requirement. See Smith Kline & French Laboratories (Australia) Ltd v Department of Community Services and Health (1990) 22 FCR 73 at 121 per Gummow J. See also Attorney General v Guardian Newspapers Ltd [No 2] [1990] 1 AC 109 at 265, 281-282; cf 256 and 270. 30 In the light of uncertainty about the jurisprudential basis of the doctrine of breach of confidence there were, in relevant respects, substantial questions to be argued with respect to the legal basis of a liability of a character which would have significantly weakened the case of the defendant in any appeal, it being an appeal concerned with an interlocutory issue. 31 For those additional reasons I agree with the order proposed by Justice Heydon. 32 MASON P: I agree with the order proposed by Justice Heydon and the reasons which both he and the Chief Justice have given. The particular contract of employment as a live-in nanny provided in itself an arguable basis of a relationship of confidence. In the passage from Coco v AN Clark (Engineers) Ltd to which reference has already been made by the Chief Justice, there were "circumstances importing an obligation of confidence" at least arguably so. Of course the original contract of employment was just the starting point of the relationship. It would be, in my view, wrong to confine oneself to the situation as it stood at the outset as if all nannies had the same duties and the same opportunities for access to confidential information. 33 What happened in the present case (at least as a serious issue to be tried) involved Miss Page being given actual access to intimate details of family life at Centennial Park. Indeed, I consider it arguable that the information threatened to be published in the transcript of exhibit P4 showed that the employer actually made her employee something of a confidante in the lay sense, and this is a relevant factor. 34 There is no suggestion that the information thereby divulged came into the public domain in such a way as to destroy its confidential nature or that its nature was such that there was a public interest in its revelation. 35 SPIGELMAN CJ: The Court notes the undertaking proffered to the Court in terms of Tab 3 of the appeal papers, subject to the substitution of the words "until further order" for the words appearing in the said Tab 3 "be restrained until 3pm on 17 March 2000". 36 The Court notes that the defendant will forward to the Court a form of undertaking in the form it has given to the Court and which will appear on the record of these proceedings. 37 The Court notes that counsel for the Plaintiff/Appellant has given the usual undertaking as to damages. 38 The Court orders that the Defendant pay the costs of the application for leave and of the appeal.

SHARI-LEA HITCHCOCK v TCN CHANNEL NINE PTY LTD

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Judgment (19 paragraphs)

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