• Andrew Pingree

The Injustice of Equity: A Study of Confidence and Civilian Investigators

Having spent the better part of two years looking deeply into various laws surrounding rights of privacy and confidentiality, after first studying the basic concepts as part of a university degree, and after having published three times in peer-reviewed journals before graduating with a JD, you'd think you might have more than a thing or two to say on the topic in question. You'd think, after multiple reviews and second-guesses, critically refining all the thought processes and tightening down the reasoning, ever expanding the scope of works and cases cited, you would have watertight arguments. When you really do believe this is the best work you've ever done, you expect to make some waves in the confines of your patch.


Alas, no, for the article I produced, being as forthright and detached as I could be, is highly critical of the area of law under inquiry. Showing up many errors of reasoning and failures to refer to precedent, this article treads on judicial toes left, right and centre. Up to a point that is a cool thing to do because it proves how cleaver the author is. Yet I have learned that there is an invisible line you must not cross - and I've crossed it big time without being a "somebody" who can get away with stuff like that.


Having spent all year 2017 waiting for responses from academic journals and trying to figure out what I can do to improve my work, at last I have decided to stop waiting on those that are now just sulking, to overlook those who took just one or two days to reject, and to forgive the Monash University Law Review for getting so very much in a knot over it all. (They really didn't need to take it so personally). I'm keeping these emails so I can look back over them and have a laugh.


So what is it about the topic that's such a powder keg? A lot of it has been formed in hasty swipes by courts under pressure in interlocutory decisions where imminent publication in the mass media must be decided on at very short notice. This has meant that much of the time neither the parties' counsels nor the judges or magistrates have sufficient time to think through a murky, muddy area of law where only the barest basics are firmly established. This area is the Equitable Duty of Confidentiality. It is argued that some conceptions of the right to confidence may get in the way of gathering evidence by civilians for purposes of civil justice. The mere fact that this has not presented a major problem so far is immaterial as all building blocks of an impediment to justice are there.


This article has been abbreviated heavily as compared to the original, however the abbreviated version is presented due to better expression.


The Equitable Duty of Confidence presents all sorts of risks to people making conscientious and reasonable enquiries for legitimate purposes, due to uncertainties created through swiftly formed interlocutory decisions. The current fashion of having the law impinge upon every conceivable potential wrong, however slight, may also have played a role.

Abstract

The equitable duty of confidentiality is antithetical to evidence gathering by civilians. Some aspects also are ill-defined and many judgments ignore prior authorities, creating major uncertainty. Thus human rights are protected at the cost of justice where further evidence is needed. The iniquity limb of the public interest defence is argued not to be based on Gartside v Outtram, which itself appears to found a unique defence eliminating confidence ab initio, rather than an excuse for breach. The clean hands maxim is also examined. Neither defence operates where a subject is absolved of suspicion. Apparent rejection of the detriment rule is consistent with equity, but makes for a hair-trigger law. Lord Denning proposed a two-pronged rule of reasonableness which has been ignored, but is recommended as a mainstay requisite. The application of this law to investigative work is examined in depth and recommendations for law reform are given throughout.


Introduction

This article relates to all civilians who gather evidence not volunteered by the subject(s), as to any matter of serious and lawful concern. This is whether investigating is done as a line of business, in a self-help capacity, or for an employer such as some government bodies. The primary focus in this article is on the private investigation industry, however, the word ‘investigator’ encompasses the entire foregoing category. It seems that few investigators are fully aware of this equitable doctrine and may feel it is inapplicable due to the commonality of certain practices undertaken with reasonable intent, as standard measures. It is the author’s contention that the equitable duty of confidence, if utilised to its full potential and without pragmatic restraints, could impede justice and result in liability borne by persons whose employment or professional duty, or whose personal concern, is to further justice, even where the only harm incurred or anticipated by a subject is embarrassment, or where the only grievance is the fact of having been investigated. An underlying question is whether or not the law is doing good work in going so far as to cater to such grievances in absence of quantifiable harm.


The approach taken is to discuss non-argumentatively, each relevant aspect of the law likely to impinge on evidence gathering so as to establish weaknesses of note and to build a case for law reform. Some of the conflicting judicial decisions are identified and evaluated. The logical implications of approaches are examined in depth. In some areas intractable problems are found, just waiting to be exploited, while in others support for investigative activities is found.


An important underlying assumption in this study is that not all of what the law forbids (or that is, following some authorities, would forbid) is morally unreasonable or unfair. (Traffic codes are a case in point as they exist for safety and convenience). It is generally argued that the law can be ameliorated by attenuating its scope of proscription: thus the title. The motivating concern is not political or ideological, but practical, with a view to easier access to justice, more decisive resolution of personal problems, and fairness upon those who work in pursuit of such. Liabilities potentially arising as a result of an investigation conducted in breach of the equitable duty can be suffered by witnesses who breach a first-hand confidence. There is debate as to whether there is any equity between the aggrieved source of information a third party recipient. Meagher et al consider it well established that only the confidant can sue, based on the accepted pattern in fiduciary matters[2] but Nahan, in a particularly cogent study, identified a line of authority establishing that third parties are indeed liable.[3] Even if the confidant has no action against the investigator, a witness found liable has an action in negligence against the investigator for encouraging or failing to prevent the breach.


Confidentiality at Equity

Except for the major operational principles, the equitable duty of confidence is shrouded in uncertainty. It has attracted much free thinking by a judiciary apparently eager to uphold what it views as a moral imperative, but which has proven elusive as to identifying by what fundamental logic that compulsion arises. A recipient of confidential information is restrained from passing on such without authorisation. Megarry J in Coco v AN Clark (Engineers)[4] is commonly referenced for basic principles that the information must either have a ‘necessary quality of confidence’[5] or it must be given in circumstances implying a duty of confidence. Differing perspectives arise from cases dealing with information imparted for a limited purpose, information deemed confidential due to its content, information obtained surreptitiously and information acquired by accident. Nahan stated,


...it is possible to distill from the cases one universal basis for the duty of confidence, irrespective of how the confidential information comes into the hands of the defendant. It is this – a duty of confidence arises, without more, when the defendant knows that there are restrictions to his use of the confidential information in question.[6]


Nahan finds authority for both objective and subjective assessments of what amounts to ‘knowledge.’[7] Being more widely applicable than parallel duties such as the fiduciary duty of confidentiality, it is an obligation pressed upon all people at all times when the necessary preconditions exist. Generally it serves a good purpose but some supposedly confidential information is important as evidence at court, and in a variety of other instances of fair and lawful use. Members of the public need information to make choices about their own private undertakings, investments, employment choices and relationships. It is apparent from the cases that the duty is more widely applicable than the use to which it has been put to the present time: as such it is here supposed that if the right matter comes along the duty could be deployed with ease as an impediment in the search for justice by both plaintiffs and defendants. Common assumptions and fears of supposedly nefariousness figures working unsupervised in gathering detailed private information and behaving recklessly with it would almost certainly add to the problem. This rule of equity if fully enforced, and fully understood by investigators and potential clientele eager to keep out of trouble, would have a chilling effect on most forms of civilian investigative activities. Therefore in this study where needs for law reform are identified it is with a view to preventative reform more than preventing a repetition of past injustices.


Part of the problem is that while the major principles are settled, there is uncertainty in regard to the details. In Meagher et al a long list of questions as to the exact shape of the law of confidence is put forward. The authors state, ‘These questions largely lack satisfactory answers; this is because the courts, faced with a rush of litigation, much of it interlocutory, have spoken quickly and with many tongues.’[8] Nahan discussed some of the conflicting perspectives on the logical foundations of this law.[9] The concept of confidentiality has received quite varied treatment by courts; a fine example of individual thought appears in Theakston[10] where in spite of case facts relating to deeply personal activities that would have been viewed by a reasonable person as imparting an obligation of confidence, the court propounded an argument against this. In so doing the court conflicted with the very well accepted ratio of Megarry J above. The Theakston approach would likely liberate all commercial service providers from implied obligations of confidence arising from their day to day commercial activities, even in conflict with the fiduciary duty of confidence. Instead the court found confidence based on a contrivance for which neither a judicial nor policy underpinning was given, which would impart an obligation merely for breach of privacy per se, regardless of the subject matter.[11] A trend of free-thinking appears in this area of law to an extent that is inexcusable, and could well be responsible for conflict among many writings. This uncertainty makes it difficult for even the most informed and diligent investigators to be certain that they will not breach the law as they seek to do incisive and informative work.


The Relevance and Character of the Private Investigation Industry

It is necessary to ensure that readers are correctly informed about the major non-legal subject matter of this study. It may be said in humour that some sincere notions of the investigation industry are informed more by Tom Selleck and Agatha Christie than by sober factuality. Private investigators are licensed by State and Territory government bodies such as the police, to offer investigative services commercially. They have no investigative powers but rely on skills developed mostly through experience. The Australian Law Reform Commission published findings in 2008 on the question of privacy law reform.[12] Recommendation 44 relates to proposed exceptions and exemptions for the private investigation industry and gives a pithy description of the industry and its relevance to the civil law system.


Private investigators are professionals who trade in obtaining information about persons and organisations, their activities, their whereabouts and their assets or interests. The industry is largely bifurcated between circumstance investigators (also known as factual investigators) and surveillance investigators. The two areas require very different approaches towards work in general and very different skill sets, such that few excel in both. Circumstance investigators specialise in interviewing witnesses, discovery and analysis of documents and gathering various evidence at, and around, incident scenes. This role requires an understanding of a wide range of laws as well as effective self-management, efficiency and professional conduct. Surveillance investigators typically perform covert video surveillance, both stationary and following subjects. There are also undercover and pretext-based operations, which may involve hidden audio or video devices. Surveillance skills are underestimated easily: the skill level required with subjects who are already watchful cannot be reached without prior experience on subjects who are not. The latter include spouses under marital suspicion and miscreant teenagers.


Questions are raised by some people as to ethics with investigators accused of intimidating and persecuting insurance claimants. However such behaviour would lead to clients and investigators answering for it in person in court and in the mass media which in turn would affect the brand image of insurers. As individuals, to retain a licence, and a continued sub-contracting work flow, most investigators take great care to avoid breaching the law or raising complaints. Misbehaviour also can render evidence inadmissible at court. Clients therefore expect high standards and there is uncertainty and stress for investigators when the work flow declines. While some investigations occur for inadequate reasons and some lack the skill needed to get results while maintaining discretion or avoiding misunderstanding, once the subject’s candour or cooperation is lost, no further evidence is available and the investigation is over. The ethics of investigating a reasonably alleged serious fraud or finding a missing person allegedly in danger are of course quite clear and would permit greater effort by an investigator than cases of lesser gravamen.


An advantage lies for parties lacking evidence, in engaging an independent professional to gather it on an hourly rate so as to protect the apprehended reliability of evidence through avoidance of conflicts of interest. Furthermore an experienced investigator is able to obtain more information of value lawfully than someone who has not developed such a skill set.


Implied Consent

In eliciting information from third parties in a matter where a person – such as a litigant or the beneficiary or holder of an insurance policy - is making a claim against the assets of another, an investigator is reliant upon the claimant having given consent in some form for information concerning them to be provided for purposes of the assessment of their claim. The principle of implied consent is very well established as justifying acts or inaction with respect to a person that otherwise would be illegal.


It is arguable that a reasonable person making a claim against the assets of another would bear in mind that their counterparty will want to determine the claim’s validity and will make whatever inquiries are necessary and realistic to reach a firm conclusion. These inquiries may involve the engagement of a private investigation firm or use of in-house faculties. This is common experience in the insurance industry, as well as in the context of certain familial difficulties, and is well publicised in the mass media. Nevertheless the fact of common practice alone has been discredited as a whole basis for implied consent. As to the use of customer information in retail banking, Tyree[13], referring to Turner v Royal Bank of Scotland Plc:[14]


The Court found as a fact that Turner himself did not know of the practice [of giving references] and that the bank had done nothing to call it to his attention.... A principal argument of the bank was that the giving of bankers’ references is established banking practice. The Court noted that to be binding, usage must be “notorious, certain and reasonable and not contrary to law.”... Thorpe LJ, who delivered the leading judgment, said:

‘The proposition that banks can agree among themselves upon a banking practice and put the practice into effect without the knowledge of their customers and then claim that, because the practice is common to all banks, it is binding upon their customers is…unacceptable.’[15]


Abdullah also stated in relation to Turner:

The Court of Appeal... held that a bank could not depend on banking practice to justify the assumption of its customer's implied approval for the use of private details in providing other banks with references. Therefore, the theory that the bank could pass on its customer's confidential information on the grounds that the bank has its customer's implied consent was rejected.....[16]


More recently in Imerman v Tchenguiz[17] it was ruled that the fact that the plaintiff knew the defendants had access to a computer server containing his confidential information did not stand as a defence. We can say therefore that the mere fact that a thing is a plausible necessity for parties is a doubtful basis for implied consent. Also the mere fact that a person is aware that a record has been made or that knowledge is held by another does not mean they consent implicitly to the dissemination of such.[18] ‘FG’ and National Archives[19] deals with non-consent as to disclosure arising from a presumption of confidentiality based on normal practice. In that matter a reasonable expectation of confidentiality was upheld.


Conversely, if the use of investigative services in certain situations is objectively to be understood by reasonable persons in a given situation then it stands to reason that fair investigative practices would be justifiable before a court of equity. As shown in Sunderland v Barclays Bank,[20] a party which has information to divulge or report on, may act on a reasonable assumption that such consent has been given. As described by Stanley:


...an account holder discussing banking business on the telephone passed the receiver to her husband. It was held, applying an objective test, that she had impliedly consented to the bank discussing her affairs. The test was not what she believed, but what the bank manager ‘justifiably’ (that is, on an objective basis, reasonably) understood her to have consented to.[21]


This could be achieved to some extent by employers in the course of the formalities of hiring employees. Where a person cooperates of their own free will with an investigation in which their personal interests or activities are an issue, and it is reasonable for them to expect further enquiries with other parties, it may then be said that a reasonable person in their position should expect such evidence to be discussed by others. By maintaining their claim a claimant may then be said implicitly to have consented. However, in this author’s experience claimants under investigation often give evidence that proves false or exaggerated upon enquiry with other persons, even including the claimant’s own nominated witnesses, and with managers and supervisors (in the case of work injuries) also making admissions in the claimant’s favour. It is apparent, therefore, that a person will not necessarily anticipate any particular breadth of enquiry even if interviewed in depth. It is noted by Tyree that obtaining consent in standard form contracts is ‘of dubious value for the simple and obvious reason that the customer is either totally unaware of what he or she is consenting to or, even worse, is being coerced into granting consent.’[22] The psychology of both situations may be the same. This author concurs with Abdullah’s call for statutory reform,[23] but in relation to clarifying all applications of the duty of confidentiality, not just in banking.


The Iniquity Limb of the Public Interest Defence

The public interest defence allows for communication to the public in breach of confidence. It has been discussed as being comprised of subset forms[24] which hinge on a right or interest of the public in knowing the truth of a matter, in being informed of a wrongful or illegal thing of seriousness, and the balance of interests in the public being informed and not being informed and the revelation of iniquities of legitimate concern.[25] Additional factors have also been balanced together.[26] This defence is of little interest to this study as investigators communicate their findings to individual clients and not to the public, but the iniquity limb does present interesting insights. It is addressed here for reasons of its origin and statements as to its operation which may avail a defence in instances of communication to individual entities.


The Breadth of ‘Iniquity’

A widely inclusive view of what an ‘iniquity’ is, is borne out in certain authorities so that it can be availed not merely for crimes and civil wrongs, but also for misdeeds that the law does not forbid. This appears from judgments such as Lord Denning in Initial Services v Puterill.[27] Gibbs CJ Attorney-General (NT) v Kearney[28] relying on Russell v Jackson[29] and Gartside v Outtram.[30] The latter source concerned a series of ethically questionable commercial dealings. Wood VC gave clear definition to the principle that confidence cannot exist as to the revelation of an iniquity. This will be dealt with in depth later. Authorities refer to courts excusing breaches of confidence or refusing to recognise confidence in communications about criminal, unlawful or wrongful acts. These include Gummow J in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic)[31] and Bullivant v Attorney-General for Victoria,[32] regarding which Gibbs CJ stated in Kearney, ‘In the same case Lord Shand and Lord Davey spoke of "fraud or illegality".’[33] The notion presented in the phrase ‘fraud or illegality’ is of something that is lawful, yet harmful and unfair. This then would serve to open the gateway to an argument supporting civilian investigators acting not only upon matters going to civil trial, but matters which could only potentially could by a stretch, even pending further evidence. It may even seem at face value, also to avail a defence of an investigation into matters that have nothing to do with the law, but which are of legitimate concern, such as family matters or employee conduct. There is nevertheless some theoretical doubt as to whether marital infidelity, famously bread-and-butter for many surveillance investigators, fits within this scope of permissiveness. The basis for this doubt is discussed below in relation to Theakston v MGN[34] under the heading, ‘Surveillance and Reporting on Deeply Personal Matters.’


Iniquity Limb Not Based on Gartside v Outtram

Initial Services v Puterill is an example of the iniquity limb of the public interest defence. An ex-employee of the plaintiff published company documents in the mass media showing arrangements between his former employer and their competitors to keep their prices high. Lord Denning stated that a defence for such breaches of confidence is important:


The reason is because 'no private obligations can dispense with that universal one which lies on every member of the society to discover every design which may be formed, contrary to the laws of the society, to destroy the public welfare'[35]


Although Lord Denning based his reasoning on Gartside, giving anchorage to the rule in a duty to uphold the public good requires that any iniquity be such that the public would legitimately be concerned with it. It must affect the public generally or be of such a nature as to concern the public: commonplace and minor wrongs do not fall into this category, even if they are devastating to individuals who are directly connected to it. This then is so close to the other limbs of the public interest defence as to be no different in practice.


The judicial line of thought emanating from Gartside has it that where an iniquity is divulged it is the same as if what was divulged occurred in a manner or context, and with such intent, as would eliminate any obligation of confidence. The reason appears to be a matter of judicial policy that disreputable deeds should not be protected, more than a lack of actual expectation on the plaintiff’s part. Indeed, as Gummow J said in Corrs:


[Gartside] provides insufficient basis for any "public interest defence" of the kind that, in its name, has been developed in the recent English authorities. The truth as to what Gartside v Outram decided is less striking and more readily understood in terms of basic principle.[36]


Once an iniquity is established and Gartside invoked, there is no longer a confidence the breach of which would need to be excused as being in the public interest. It ought therefore be conceded – contrary to the reasoning of some august jurists – that the Gartside approach is distinct from the public interest defence. We should instead speak of a completely distinct rule separate from other defences – an exemption rather than an excuse – and acknowledge that the iniquity limb of the public interest defence is based on more recent authority.


Iniquity that Overrides Confidence

An early case where an iniquity was found to be sufficient to defeat a claim of confidence was Russell v Jackson. This relates to legal client privilege, but the principle of confidence has the same operation and effect. It was stated by Turner VC:


Can it then be said that the communication should be protected because it may lead to the disclosure of an illegal purpose? I think that it cannot; and that evidence which would otherwise be admissible cannot be rejected upon such a ground. On the contrary, I am very much disposed to think that the existence of the illegal purpose would prevent any privilege attaching to the communication.[37]


It is the last phrase to which the reader’s attention should be drawn. This was applied by Gibbs CJ at the High Court of Australia in Attorney-General (NT) v Kearney[38]. His Honour also relied on a more frequently cited early authority, being Gartside v Outram, where Wood VC stated that:


The true doctrine is that there is no confidence as to the disclosure of an iniquity. You cannot make me the confident of a crime or fraud, and be entitled to close up my lips upon any secret which you have the audacity to disclose to me relating to any fraudulent intention on your part.[39]


This defence then appears to hinge on the non-existence of confidentiality from the beginning. Wood VC also gave an illustration of a man briefing a series of lawyers in relation to a scheme to have an innocent person executed in a privately run prosecution for a trumped-up capital offence. The lawyers each refuse on moral grounds to involve themselves, until one is found who is willing to be party to the iniquitous scheme. The point is that those who refused to participate should be free to disclose the evidence they have.[40]


In Corrs, Gummow J, in his powerful and oft-cited dissenting judgment, reasoned in relation to Gartside:


That principle, in my view, is no wider than one that information will lack the necessary attribute of confidence if the subject matter is the existence or real likelihood of the existence of an iniquity in the sense of a crime, civil wrong or serious misdeed of public importance, and the confidence is relied upon to prevent disclosure to a third party with a real and direct interest in redressing such crime, wrong or misdeed.[41]


Glover commented on this quote:


Therefore, rather than using the public interest as a means for permitting disclosure of confidential information, this approach uses iniquity to defeat a breach of confidence action at the first stage: namely, that the information must possess 'the necessary quality of confidence'.[42]


The picture which emerges is not one of an excuse to break confidence, but rather one of the non-existence of confidence ab initio.[43] For this reason we need not concern ourselves with whether the public can avoid harm or gain a benefit by knowing the information at hand, or indeed whether any party has any substantive interest to bring. An investigator can take advantage of this as a defence when reporting on an investigation into any matter where an iniquity is established; as shown above, also, there is wide scope as to what may constitute an iniquity. However, the case is disturbingly different when the subject is exonerated.


The Detriment Rule – Does it Still Exist?

It has often been considered necessary for a plaintiff to show that they have suffered detriment through the breach of their confidence, but there is good authority against this. Damages sought without quantifiable harm are limited to nominal damages.[44] A requirement of detriment is effective in preventing trivial suits by persons either short tempered or easily embarrassed. Its existence, however, may have been short lived and it must be determined whether it can still be relied on. It was a feature of the brief reasoning of Muirhead J in Foster v Mountford & Rigby Ltd[45] and was affirmed by Mason J in Commonwealth v Fairfax as a requirement in addition to the obligation of confidence and stated that ‘It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism.’[46] Gummow J in Corrs gave tacit approval to these two judgments.[47] The High Court also acknowledged argument based on the detriment rule in Attorney-General (UK) v Heinmann Publishers Australia,[48] although that matter was decided on grounds of cross-border jurisdiction. Lord Keith of Kinkel in Guardian Newspapers, affirmed that it is a necessary element of the law,[49] although in apparent boldness he considered mere unauthorised divulgence to be a sufficient detriment.[50]


The detriment rule nevertheless has been discarded more recently by two decisions in South Australia and New South Wales. In NP Generations v Feneley foreign authorities were considered by Debelle J in which the detriment rule was questioned. His Honour then stated that the detriment rule in Fairfax may need to be reviewed:


It seems that it is not necessary for a former employer to prove actual or apprehended detriment in order to recover a list of customers.... In Commonwealth v John Fairfax & Sons..., reliance was placed on the views of Megarry J in Coco v A N Clark... which stated that detriment was a necessary requirement to enforce an obligation of confidence. But, as Lord Denning MR pointed out in Dunford & Elliott Ltd v Johnstone & Firth Brown..., Megarry J questioned whether detriment was essential. It is plain that the retention of the list on ceasing employment arms the former employee with a capacity to use the list to the prejudice of the person who gave it without obtaining consent... When customers or clients are approached by the former employee, the former employer will never be able to prove whether the list was used or not. The decision in Commonwealth v John Fairfax & Sons Ltd may, therefore, have to be reviewed.[51]


Additionally the rule was discarded in the appeal of NRMA v Geeson even though it was said that the trial judge ‘...was entitled to have regard to the potential detriment and benefit to the applicant that depended upon whether an injunction would be granted or refused.’[52] These two authorities were applied in the trial of Trevorrow v State of South Australia (No 3).[53] Meagher et al stated:


Unhappily this escaped attention in... [Fairfax] and detriment as an essential rule of equity was put forward as having Megarry J’s imprimatur.... [W}here the subject is commercially valuable because of its secrecy, actual or threatened publication will cause detriment, [yet]... it has never been suggested that the only breaches of fiduciary duty that equity will enjoin are those harmful to the plaintiff.’[54]


They provide the example of an inside trader who can be sued in spite of the company suffering no loss and ask why a confidant in breach should be treated more lightly. This is an obvious result of drawing no distinction between the fiduciary duty of confidence and the general duty applicable to non-fiduciaries, as appears now and then in the authorities[55] and is absent any recognition of parallel statutory remedies. It is also questionable whether it is appropriate at all to erode the distinction between fiduciaries and non-fiduciaries. In Attorney General v Guardian Newspapers (No 2) an argument is presented based on moral grounds, surrounding the facts of Argyl v Argyl[56] to disallow the use of confidential information for profit, regardless of any quantifiable detriment.[57] Additionally, Gleeson CJ in ABC v Lenah Game Meats left it as a question whether or not detriment needs to be proven. [58] Meagher et al’s argument against the detriment rule is powerful, referencing a series of English authorities, and beginning with Lord Denning MR’s interpretation of Coco v AN Clarke Engineers in Dunford v Johnson.[59]


On the other hand the existence of some well-referenced authorities acknowledging and relying on the existence of this rule stands to present us with confusion and uncertainty. Among these in fact is Dunford itself as Lord Denning has been misunderstood on the detriment issue. He quoted from Coco where Megarry J presented the three essential elements including ‘...unauthorised use to the detriment...’ and then stated: ‘Though he questions whether “detriment” is essential.’[60] The basis for this observation is where Megarry J explained how a suit could be motivated by detriment to friends or family of a plaintiff, who him/herself gets by unscathed by the breach.[61] However, reading beyond this we find Lord Denning relying on the detriment rule as a basis for his decision, stating:


There is a serious question as to whether the disclosure to J.F.B. [the respondent] will act in any way to the detriment of D & E [the appellant] or their shareholders.... So I would hold that there is not a sufficient likelihood of damage to warrant the grant of an injunction.[62]


His Lordship clearly did not intend to discard the detriment rule, but in fact incorporated it into his ratio. This relegates the doubt he raised to obiter dictum.


Notwithstanding this it might be said that where the reliance of a person on another as to the secrecy of information is given, or is implied by equity, then the breach of that equitable interest is constituted in the elimination of the secrecy surrounding it and not in anything which happens consequentially from that initial breach. A person may have an additional interest in avoiding trouble or loss through the passage of information. In providing said information to another, they trust the other person with their wellbeing as well as with their privacy, but the avoidance of loss or difficulty is often a separate interest, particularly because further actions or omissions are usually needed for harm to be incurred. Therefore the two must be treated as being separate and it is in mere divulgence that the party trusted with a secret breaches the equitable duty of confidence. Detriment is a thing that can be sued upon separately at negligence. The Australian jurisdictions which exclude a detriment requirement, unlike the United Kingdom, seem to have adhered to the essential nature of the equitable interest, although at the cost of creating a law which catches offences no greater than idle gossip that can be activated by situations causing nothing more than embarrassment. Furthermore this need not be embarrassment on the scale suffered by Mrs Tame,[63] but a simple technical breach may be enough. What is of real concern is that a person possessing the temperament or high mindedness of Mrs Tame may require a very small breach indeed in order to motivate at least a trial at a lower court.


A detriment rule continues to appear now and then, and the Australian decisions militating against a detriment are binding only in limited jurisdictions, leaving others free to continue relying on it. It is notable then that Cosgrave J at the County Court of Victoria in 2015 employed the detriment rule, quoting Gummow J and Megarry J, as above, in Schiavello Group v Exquisite Australia.[64] This, however, is a weaker authority, meaning that there is uncertainty as to whether the Victorian Supreme Court would uphold the detriment rule. Another point is that the detriment rule resembles the particular species of the balancing approach to the public interest defence used in Theakston,[65] as referenced above, where the plaintiff’s interest in disallowing publication was one of the factors balanced in an application of the public interest defence. However, such a defence is inapplicable to reporting to a solitary recipient. The question of whether an investigator can avoid liability for having reported on an investigation in which the subject was established to have done wrong remains open. This author submits that it is important from a pragmatic point of view that a person should not be able to take another through the tribulation of a court trial unless they have suffered quantifiable harm.


The Equitable Maxim of Clean Hands

The equitable maxim, ‘he who comes into equity must come with clean hands,’ has been used as defence to claims of breach of confidentiality.[66] Its operation is not to exculpate the defendant or to eliminate confidence, but simply to disallow an action or to exclude evidence[67] where a party has committed a wrong materially relevant to the action. This is because of the manner in which this maxim is worded and because the uncleanness of a party’s hands does not change the character of the action or omission of which they complain. Neither is it relevant to a court’s treatment of the law where a defendant commits a wrong in a retaliatory or defensive spirit at the plaintiff’s own wrongdoing. It has been applied in the Scientology cases, Hubbard v Vosper[68] and Church of Scientology of California v Kaufman.[69]


It has been said in Meagher, Gummow and Lehane’s well known text that the defence of unclean hands would have availed the defendant in Gartside.[70] This point is also made in Corrs by Gummow J in minority.[71] Meagher et al illustrate the maxim with Kettles and Gas Appliances v Anthony Hordern and Sons.[72] The plaintiffs were manufacturing and marketing a kettle with the words ‘Patented. Copyrighted.’ printed prominently on it, and the defendants were passing this off as their own product. There was in fact neither patent nor copyright held by the plaintiff, and the public was being deceived as to their rights. The court ruled that if an injunction was granted then it would be assisting the plaintiffs in defrauding the public. The court described this behaviour as ‘unjustified and improper,’[73] and as ‘...deliberate, and intended to deceive the public and to deter others from manufacturing and vending a similar article...’ and as ‘fraudulent or dishonest trading.’[74] This amounted to unclean hands and so an equitable remedy was refused. It is noteworthy that the so-called fraud did not appear to have left any customer with less than they paid for, and neither did it prevent a competitor with appropriate acumen from competing. Nevertheless the plaintiff dirtied its hands by this misdemeanour. One case relied on in Kettles and Gas was Leather Cloth Company v American Cloth Company where Lord Cranworth stated: ‘The general rule seems to be that the mis-statement of any material fact calculated to deceive the public, will be sufficient for the purpose.’[75] Therefore confidence cannot be enforced where some relevant form of wrong would otherwise be protected.


Nevertheless as made clear in Kettles and Gas, authority exists to the effect that a period of good behaviour can be regarded by a court as washing the hands of the plaintiff, thus eliminating the effect the maxim would otherwise have.[76] Therefore an investigator who hopes to rely on the maxim needs to be aware of the potential for cleansing of hands, even after enquiries are completed. Against this no person has any power, making it an unreliable defence in any undertaking that sails close to the wind.


Evidence at Court

It is frequently the case that a person may have evidence to give to an investigator on some topic that involves facts concerning the doings and interests of another person. The third party may well object to being discussed by others, especially in the context of proposed litigation. The person also may be unavailable or uncontactable to indicate whether they actually do consent; in some cases the third person may be deceased. The Uniform Evidence Law, as enacted in most States and Territories, permits evidence in civil proceedings that would be first hand to an unavailable or deceased person to be brought as first-hand hearsay by someone else. As discussed, if for any reason it has not been possible to obtain a third party’s consent to be discussed, then issues of confidence can arise. However, even if it is acceptable to evidence law, equity may still deem it to have the necessary quality of confidence and rule it out. In DC Payments v Next Payments[77] the plaintiff was compelled to amend their pleadings to exclude reference to confidential information belonging to the defendant. Although Vickery J described it as a ‘unique circumstance in the evolving law of confidential information’[78] it is here submitted that the rule arising from it is much more broadly applicable than the unusual circumstances of this case itself.


The plaintiff sued the defendant for breach of confidence, but in so doing relied in part on confidential information belonging to the defendant. As His Honour put it, ‘This conduct has spawned an arguable case where the ancient phrase ‘the pot calling the kettle black’ has a tale to tell.’[79] Both parties compete in the business of supplying automatic teller machines to retail shops and public venues. It was alleged that certain former employees of DC Payments who went to work for Next Payments passed confidential information from their old employer to their new employer. During the discovery process Next Payments supplied documents to DC Payments, accidentally also including a master customer list which contained extensive information on its customers. DC Payments then amended schedules to its Statement of Claim incorporating information contained in the customer list. The court then ruled in favour of Next Payments compelling DC Payments to remove that information.


DC Payments shows that the duty of confidentiality does apply to evidence being presented before a court and to interlocutory procedures. While privilege as to confidential information is only recognised by courts where a cogent reason for doing so exists,[80] there was no consideration as to privilege in that interlocutory judgment. Neither was evidence law considered. This extends the applicability of confidence as a de-facto rule of evidence beyond what was thereto established, to include instances where information is revealed by accident. The potential for this to spill over into a wider application of the rule in court proceedings remains to be seen. Depending on an investigator’s level of legal understanding and their degree of caution,[81] some evidence that may or may not be confidential, however useful it is, could never reach the instructing solicitor.


Reasonableness and Matters of Private Interest

In Australian Broadcasting Corporation v Lenah Game Meats Gleeson CJ gave some illumination as to what may be confidential. His Honour’s reasoning has been described as a two limb test,[82] although it is suggested here that the intention was only to indicate that certain subject matter is more likely than not to be confidential:


Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.[83]


A requirement of reasonableness is evident here as a mainstay in judging what is confidential. Meagher et al[84] identify this principle in Coco[85] as well as Deta Nominees v Viscount Plastic Products.[86]

Lord Denning followed Coco in Dunford v Johnson stating that: ‘The court will not enforce a stipulation for confidence if it was not reasonable at the time of making it, nor if afterwards, owing to subsequent happenings, it became unreasonable that it should be enforced...’[87] Yet Meagher et al, arguing to the contrary, identify conflict with the usual principles of equity in that the fiduciary duty of confidence requires a standard of conduct above that to be expected of ‘the commonality of mankind.’[88] (This author questions whether it is necessary or wise to intertwine the general duty with the fiduciary duty as if the general duty had no other basis. To do so may one day support an argument that all persons are fiduciaries in all social circumstances, be they only of legal competence, which would be an oppressive burden to bear). A reasonableness rule does not appear in any other authorities, although it bears a resemblance to the equitable principle of unconscionability[89] (and detriment), which would somewhat legitimise its usage.


An investigator may take heart from a principle of reasonableness á la Denning because any investigation undertaken for a party’s lawful and understandable concerns, and reported on for the same sake, can be argued to be a breach committed reasonably – that would be, in good faith and with lawful, practical concerns in mind. Theoretically a rule of reasonableness should legitimise any of the type of investigation that lends respectability to the investigation industry. However there appear to be no further authorities following this reasoning. Without a principle of reasonableness to set a workable limit to liability, the duty threatens to become an unwieldy and burdensome law of everything, so to speak, catching every utterance or writing concerning any person-at-law with no foreseeable basis for embarrassment or ill effect.


Conflict with Other Laws

The duty of confidentiality conflicts with other laws where the investigation industry is concerned, and a rule of reasonableness may allow for a breach of confidence in fulfilment of some such laws. Suppose that a private investigator obtains for a client, information sourced by means of covert surveillance, or obtained verbally undercover, or under a pretext of some kind. Suppose then that the information is of substantial gravity to the client, either affecting the client’s personal welfare, that of someone close to them, their business or employment, or is of probative value in a proposed civil law action. A moral duty in favour of disclosure would arise that mirrors the tortious duty of care which is not dissimilar to equitable duties. If the information involves an iniquity of a relevant kind on the part of the person to be reported on, then equity will permit reporting. However if it is of a different nature, then equity will stand in the way of reporting. Should the investigator be prevented by equity from upholding their client’s ostensibly reasonable and lawful interests, or from reporting so that the subject can be protected? To answer in the affirmative would run contrary to the classical operation of equity to prevent injustice from being suffered as a result of the technicalities of other bodies of law. Here, negligence law would militate to compel action in line with good conscience. So too other laws that require reporting crimes to the police and so forth, whereas it is equity’s proper role to intervene in that way. As asked by Glover, would such a duty of ‘conscionable behaviour’ in fact destroy any duty of confidentiality totally?[90]


Circumventing the Subject’s Influence

Maintaining the candour and authenticity of information sources and subjects is a paramount objective of professional investigators in all forms of investigation. As much information as possible is gained without breaking cover or discussing avenues of enquiry with the subject or other stakeholders. The skills an experienced investigator brings to their role – particularly in relation to surveillance and pretext or undercover work – are centred to a significant degree on this one priority. This well-worn and necessary path, however, is threatened and to a large extent closed off by the expansions that have been granted to the duty of confidentiality over many years. This difficulty arises from the fact that an obligation of confidence can arise where there has been no exercise of trust in the recipient of information by the person it concerns.[91]


Questioning Witnesses about Others

In a great many investigations the interests or activities or omissions of a person who is not approached directly (or who is yet to be approached) by the investigator are of key importance. In workplaces the actions and attributes of supervisors and managers in allocating work, determining work methods, or engaging in disciplinary action, maintenance workers who fixed a problem or who did faulty work, and other workers who have suffered similar injuries or problems, are all of significance. Alternatively, suppose a person is owed money or contractual consideration and the party allegedly at fault has departed without leaving any contact details. A stray debtor must be tracked down and, to prevent excuses of impecuniousness, their assets identified. Would-be defendants often need to be located for purposes of process service. If the defaulting party is given reason to think that an investigation is occurring they may take further steps to conceal their whereabouts and assets. If they are exonerated of any wrongdoing then the investigator will stand liable for breaching confidence.


Suppose a person suffers a medically diagnosed mental condition which they allege is due to being bullied in their workplace. The matter is subject to a WorkCover claim and maybe then a suit in negligence. Evidence of the bully’s activities is paramount, as also is evidence of other persons who have interacted at length with him/her. As to the alleged bully, anything that they have said in apparent confidence, whether directly about their treatment of the victim, or about other colleagues, as with evidence of anything relevant that they have done, that may support or undermine the putative victim’s case, will likely have been discussed ‘...for a strictly limited purpose.’[92] Such comments thus come shrouded in duties of confidentiality and the alleged bully’s consent to discuss their doings and comments is required by law. If the alleged bully and victim were only parties to a personality clash and the claimant simply has deceived themselves or misinterpreted the facts, then no defence avails the investigator. Unfortunately the alleged bully’s guilt can never be assessed reliably until well into the investigation, by which time the investigator has already taken substantial risks.


Suppose then that the alleged bully has relocated since the events in question and they are not answering attempts at contacting them. They will be unable to have their say, and there will be no means by which to argue that confidentiality has been waived. If the facts of the matter clear them of the allegations, and they later sue for breach of confidence, then there is no resort available to any defence based on iniquity or unclean hands. As there is no exception at equity to admit evidence of high probative value, a need manifests in the interests of the justice system as a whole to prevent the suppression of evidence by operation of equity.


Surreptitious or Unapproved Acquisition of Evidence

The protection of information gained by covert means of any kind arises from the obligation of confidence implied where there is no express investiture of confidence. As explained by Deane J in Moorgate Tobacco v Phillip Morris, the rational basis for the duty ‘lies in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained.’[93] It is for this reason that confidentiality operates in regard to information obtained surreptitiously. Lord Goff of Chiveley in Guardian Newspapers (No 2) stated that a duty of confidence arises in:


...certain situations, beloved of law teachers – where an obviously confidential document is wafted by an electric fan out of a window into a crowded street, or where an obviously confidential document, such as a private diary, is dropped in a public place, and is then picked up by a passer-by.[94]


This point was also addressed in the old case of Lord Ashburton v Pape[95] where the duty was described as acting to ‘restrain the publication of confidential information improperly or surreptitiously obtained’.[96] These words were quoted by Gleeson CJ in his often quoted obiter dictum at the High Court in ABC v Lenah Game Meats.[97] Trespassers hid cameras inside an abattoir’s premises and took pictures of the processes of possum slaughtering, which were later broadcast on television. His Honour recognised that information obtained by surreptitious, illegal or improper means is subject to a duty of confidentiality; yet he also required that the information ‘…must be such that it is capable of being regarded as confidential.’[98]


Superficially, where surreptitious, illegal or improper acquisition of information is concerned, there is an appearance that the manner of acquisition is itself held to be the basis of the duty. Lord Phillips in Douglas v Hello, referring back to the above quote from Lord Goff in Guardian Newspapers, brought together the nature of information, the manner of its recording and the manner in which it came to the possessor as a troika of considerations as to confidentiality.[99] (The manner of passage may be discarded in cases where the original acquirer is the defendant).


This rule as to covert acquisition is convergent with the rule as to accidental acquisition and was a point of departure for Kirby J in Lenah, where he considered that the manner of acquisition was sufficient regardless of the nature of the information.[100] It is attractive in one respect as a high-minded principle, and has been called upon previously in relation to video and photographs.[101] Yet a dispute can be raised in that the authorities dealing with the better established rule that information must be confidential in nature also cut the opposite way, in that if the information is not confidential in its nature then it is not protected. This was of core significance in Lenah where an equitable remedy was denied due to the plaintiff’s admission that the processes of possum slaughtering were not confidential.[102] Thus a person who listens to another stating which football team they support is able to repeat this fact even if they recorded the conversation without consent and use the recording to retrieve that information. To have it the other way would be to create the absurdity that such would be actionable while another person who makes no recording is free to recount the same fact from memory. Making a video of the same person chanting support at a football game and posting it on Facebook would also be an equitable wrong. Once again, conflict between authorities creates uncertainty for those seeking justice.


In the trial of Campbell v MGN[103] the core facts at issue, that the model Naomi Campbell, had a drug addiction and was receiving treatment, were ruled not to be confidential for reason of her public denials of them. Other key facts were not viewed in this light, albeit that they were closely related. The trial judge found that the line was crossed where details of the nature and frequency of the treatment were revealed. Denials of fact therefore should serve to legitimise the divulgence of information to the contrary, and this should extend the private arena. This should come to investigators as welcome news because it is common that the parties in an investigation have spoken and the alleged facts have been denied.


Campbell appears to show that the surreptitious nature of the photography did not make the photographs confidential. Rather it was only the salacious personal secrets that they helped to prove that brought about an obligation. Baroness Hale of Richmond was clear on this:


We have not so far held that the mere fact of covert photography is sufficient to make the information contained in the photograph confidential. The activity photographed must be private. If this had been, and had been presented as, a picture of Naomi Campbell going about her business in a public street, there could have been no complaint.[104]


In further reasoning Her Ladyship referred to the place held by photography and publicity in Miss Campbell’s working and business life, which appears as a further justification of the photographs in this individual case. The court nevertheless found the photographs to be a breach of confidence because they were associated with written information that revealed facts that were confidential on their own.[105] In line with the above argument, the court’s reasoning subordinates surreptitiousness and suchlike as a basis of confidentiality so that on its own it is insufficient to found an obligation. This is a direct contradiction of the position expressed by Kirby J in Lenah.


Further Points on Surveillance and Reporting on Deeply Personal Matters

This discussion carries on directly from the foregoing more general discussion as to surreptitious acquisition of information. Douglas v Hello[106] is very important as to the publication of unauthorised photographs. Confidentiality was recognised in photographs of a private wedding, but arguably it is equally applicable to video footage and all other forms of media recordings. What is most significant about Douglas is that the activities photographed were to be published to the same audience as that to which the defendant published. A deciding issue was that the authorised photographs taken by OK! Magazine were a commercial asset which was rendered valueless through the release of unauthorised photographs. Apart from this, there were other factors which also helped to establish confidentiality. As expressed by Tomlinson & Thomson:


…because of the exceptional nature of a wedding and the elaborate and expensive security measures adopted by the Douglases, the event was private in nature and that the images of the couple were confidential. The exclusivity deal with OK! was a legitimate and reasonable way to control and limit the press exposure, and resulted in the information becoming a valuable "commercial trade secret."[107]


Thus the confidentiality in the photographs emanated from the circumstances surrounding them, such as what was done to control them, their commercial potential, as well as from the nature of the information itself. The fact that it was to be public knowledge anyhow did not overcome these factors because the court found the photographs effectively to be a trade secret which the defendants destroyed. It was clearly not sufficient that the photographs were taken surreptitiously or contrary to the plaintiff’s manifest wishes. It may also be taken from Douglas that the more deliberately placed hurdles that must be overcome to get images or sound, and the more that is done to control what happens with such after possession is transferred, the more likely a court will be to find a breach of confidence. This is consistent with the overarching rule that if information is imparted or acquired in a circumstance implying confidence, then it comes with such an obligation.


One past authority relied on in Douglas was Theakston v MGN[108] where photographs of a highly sensitive nature were sought to be restricted. The plaintiff, a presenter of a rock music television show, sought an injunction to restrain the publication of lewd photographs and information about himself while drunk in a brothel. He had previously publicised aspects of his sexual life in the media due to the supposed career benefit he gained from the publicity. It would be a very rare and irresponsible investigation indeed which would venture indoors at a brothel, but the fact of a person attending such an establishment would be relevant in some cases. Notwithstanding subsequent reasoning, Ousley J stated:


...courts have consistently recognised that photographs can be particularly intrusive and have showed a high degree of willingness to prevent the publication of photographs, taken without the consent of the person photographed but which the photographer or someone else sought to exploit and publish.[109]


The court nevertheless found that not all sexual relationships bear the same quality of confidence and liaisons with prostitutes are not confidential, because apart from the sexual nature of the activity it was provided in return for payment and constituted the whole of the relationship between the parties, the brothel is accessible to anyone, and the plaintiff could be seen entering and leaving. His honour relied in part on the lack of actual assent or recognition as to confidence by the prostitutes, although the alleged confidant’s subjective perspective is not an issue considered in other cases. As stated above confidence is a feature of the legal duties of many other occupations and the idea that the private nature of sexual activity would be lost on any reasonable person is truly novel. Investigators may be surprised at finding support for reporting this kind of information in very limited circumstances, however this author suggests that Theakston does not stand to be taken as a strong authority.


A more salutary judgment to heed is found in Stephens v Avery[110] where the fact of the plaintiff’s past lesbian relationships was considered to be confidential, and the revelation of it was considered unconscionable. An iniquity defence was ruled out due to the lack of consensus in society as to whether the said behaviour truly was iniquitous. By that standard, given the year of judgment, the thought of finding a general consensus in anything related to sex or drugs in contemporary multicultural societies is daunting, and so any iniquity based defence in relation to such things is unavailable. Investigators engaged in marital infidelity investigations and the like will have difficulty navigating these waters. Going by Campbell, where denials exist there should be a window of opportunity. However, where there is only suspicion of misbehaviour then an iniquity based defence will not avail and confidence will be protected. However it is submitted that perhaps adultery, or sexual misbehaviour against the interests of any kind of personal partner, can be viewed as a form of fraud. A form that may not cost the victim money, but which costs the victim in a far more sensitive and damaging way. It is submitted, but by no means advised as a reliable defence, that a defence of unclean hands could be argued on that basis. Whether that is possible remains to be seen.


Concluding Remarks

The equity of confidence has received quite varied treatment by courts, to the extent that many judgments are formulated as if judges were free from the authority of their predecessors and peers. A study of the cases to tease out the developing principles is laborious and confusing and would have contributed to the contrary nature of representations in extrajudicial writings. This puts certainty as to duty well beyond the reach of those who need to know it in their day-to-day working lives. This article has identified a number of areas where the existing law is overwhelmingly strict, where defences are too narrow as well as areas of detrimental uncertainty. This all arises with respect to practices that are undertaken in good faith in the interests of justice by people who largely, this author strongly believes, are simply ignorant of the law. It is well to note that some confidences may exist where failing to break them will create moral culpability, and yet proceeding to break them is illegal. Where failing to report information will leave a subject in danger or will deprive a client of an opportunity to avoid harm to themselves, and yet no iniquity exists to avail a defence, this would imply negligence by omission. For the investigation industry’s primary functions to be carried out ably and confidently the law needs to be clarified, simplified and amended to support reasonable and fair activities aimed at gathering evidence. Major areas of difficulty are where mere embarrassment is the dominant concern of the law and where privacy is protected as an inalienable right rather than as a matter of pragmatism.

[1] JD, BA (Hons), Cert IV Investigative Services. The author has no conflict of interest.

[2] R Meagher, D Heydon, M Leeming, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies, (4th ed, Lexis Nexis Butterworths, Australia 2002), [41-070].

[3] N Nahan, The Duty of Confidence Revisited (2015) 39:2 UWALR 270, 272-7.

[4] Coco v AN Clark (Engineers) Ltd [1968] FSR 415 (ChD).

[5] Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203, 215. As relied on in Coco (n 4).

[6] Nahan (n 3), 278. This is very much the position taken in Imerman v Tchenguiz [2010] EWCA Civ 908, [2011] 1 All ER 555.

[7] Nahan (n 3), 281-3.

[8] Meagher et al (n 2), [41-010]. See also discussion at [41-011].

[9] Nahan (n 3), 275-6.

[10] Theakston v MGN [2002] EWHC 137 (QB).

[11] Theakston (n 10), [75].

[12] Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice (ALRC Report 108), (ALRC, 12 August 2008) <http://www.alrc.gov.au/publications/report-108> accessed 6 June 2016.

[13] A Tyree, Implied Consent (2000) 11:1 JBFLP 35.

[14] Turner v Royal Bank of Scotland Plc [1999] 2 All ER (Comm) 664 (CA).

[15] Tyree, above n13, quoting from Turner above n14.

[16] S Abdullah, The Bank’s Duty of Confidentiality, Disclosure Versus Credit Reference Agencies; Further Steps for Consumer protection: ‘Approval Model’, (2013) 19(4) Web JCLI. The word ‘common’ was added by the current author to adapt the brief quote in accordance with the case facts in Turner.

[17] Imerman (n 6).

[18] Attorney-General v Jonathan Cape Ltd [1976] QB 752, [1975] 3 All ER 484.

[19] ‘FG’ and National Archives of Australia [2015] AICmr 26. A matter decided by the Australian information Commissioner on the Privacy Act 1988 (Cth).

[20] Sunderland v Barclay’s Bank Ltd (1938) 5 LDAB 163.

[21] P Stanley, The Law of Confidentiality: A Restatement, (Bloomsbury Publishing, 2008), 51. This work is of general application, but draws upon cases related specifically to banking among other things to describe the general law of confidentiality. Some would have it that narrowly focussed banking confidentiality cases do not necessarily have application outside banking unless specifically found to do so by a court. See R Dennings and G Howatson, The Duty of Confidentiality and Non-Bank financial Institutions, (Clayton Utz, 2004), sourced online at https://www.claytonutz.com/knowledge/ 2004/february/the-duty-of-confidentiality-and-non-bank-financial-institutions, on 2 November 2016.

[22] Tyree (n 13).

[23] Abdullah (n 16).

[24] K Koomen, Breach of Confidence and the Public Interest Defence: Is it in the Public Interest? A review of the English Public Interest Defence and the Options for Australia [1994] QUTLJ 56; T Glover, The Scope of the Public Interest Defence in Actions for Breach of Confidence (1999) 6 JCULR 109.

[25] A leading Australian authority on the balancing approach is Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44, (1980) 147 CLR 39, although see Corrs Pavey Whiting & Byrne v Collector of Customs for Victoria [1987] FCA 433, [55]; (1987) 41 FCR 434.

[26] See Theakston (n 10). This approach may possibly lead to a melding of all the recognised approaches or limbs of the defence into one, permitting a significant degree to discretion such that courts may be free to assess the strength of whatsoever interests may impinge on the specific matter before them, as long as the interest of the public is one of them. It also may highlight the observation of Gummow J in Corrs (n 25), as to the bringing of judicial idiosyncrasies to bear.

[27] Initial Services Ltd v Putterill [1968] 1 QB 396 (CA) 405.

[28] Attorney-General (NT) v Kearney [1985] HCA 60, (1985) 158 CLR 500, [14].

[29] Russell v Jackson (1851) 21 LJ Ch 146, (1851) 68 ER 560.

[30] Gartside v Outtram (1856) 26 LJ Ch (NS) 113, 3 Jur (NS) 39 (Ch)

[31] Corrs (n 25).

[32] Bullivant v Attorney-General for Victoria (1901) UKHL J0502-1, AC 196, 201.

[33] Kearney (n 28), [15]. See Bullivant (n 23), 203 & 204-5.

[34] Theakston (n 10).

[35] Initial Services (n 27), 405. His Honour quoted from Annesley v Earl of Anglesea (1743) 17 State Tr 1139.

[36] Corrs (n 25), [54].

[37] Russell v Jackson (n 29).

[38] Kearney (n 28), [14].

[39] Gartside (n 30). The Vice Chancellor is also quoted in very different words, but to the same effect, by Jenkinson J in Corrs (n 18) from an alternative report series.

[40] Gartside (n 30), 116.

[41] Corrs (n 25), 456.

[42] Glover, (n 24), 120.

[43] Per Jenkinson J leading the court in Corrs (n 25), [9]. This point does not conflict with the more often cited ratio of Gummow J. His Honour, however, in conflict with other authorities, used this argument to overrule Gartside (n 30), as ill-founded. See also Glover (n 24), 120-121. Strangely, while there is an appearance of criticism of Gartside ostensibly in Gummow J’s name extra-judicially for not applying the established maxim, he follows the Gartside line of reasoning judicially.

[44] Her Majesty’s Attorney General v Guardian Newspapers (No. 2) (Spycatcher case) [1990] 1 AC 109 (HL) sub nom Attorney General v The Observer Limited.

[45] Foster v Mountford & Rigby Ltd (1976) 14 ALR 71 (NTSC).

[46] Fairfax (n 25), [25], [27].

[47] Corrs (n 25), 443.

[48] Attorney-General (UK) v Heinmann Publishers Australia Pty Ltd (Spycatcher case) [1988] HCA 25, (1988) 165 CLR 30, [15].

[49] Guardian Newspapers (n 44), 127.

[50] Guardian Newspapers (n 44), 112.

[51] N P Generations Pty Ltd v Feneley No. SCCIV-00-242 [2001] SASC 185, [21]; (2001) 80 SASR 151. See judgment for additional cases cited inline.

[52] NRMA v Stewart Geeson & Ors [2001] NSWCA 343, [58]. See [57]-[59].

[53] Trevorrow v State of South Australia (No 3) [2005] SASC 471. Note a misspelling of the defendant’s name in Dunford v Johnson.

[54] Meagher et al (n 2), [41-050]. The authors cite Green & Clara Pty Ltd v Bestobell Industries Pty Ltd [1980] WAR 1, 20 in support of their argument. The authors also quote from the ratio of Lord Keith in the Guardian Newspapers (n 44). This conflicts with Lord Keith’s ratio, quoted above, whom the authors quote from elsewhere in the same judgment.

[55] Meagher et al, above n2, [41-050]. In making this point the authors relied on PD Finn, Fiduciary Obligations, Law Book Co, Sydney, 1977, p160; Professor Birks (1989) 105 LQR 501, and on Ohio Oil Co v Sharp 135 F 2d 303 (1943). They then went on to add weight by reference to a range of other cases, some of which deny any detriment rule in the United Kingdom, contrary to those cited here.

[56] Duchess of Argyl v Duke of Argyl [1967] Ch 302 (Ch).

[57] Guardian Newspapers (n 44), per Lord Keith of Kinkel.

[58] Australian Broadcasting Corporation v Lenah Game Meats [2001] HCA 63, 208 CLR 199, [44].

[59] Dunford & Elliot Ltd v Johnson & Firth Brown Ltd [1976] EWCA Civ J1203-2, [1977] 1 Lloyd’s LR 505.

[60] Dunford (n 59), 509.

[61] Compare with the thinking of Lord Griffiths in Guardian Newspapers (n 44), 18, who took the view that detriment is actually present in such a case as the aggrieved confidant who takes no action will lose a friend. The effect of finding detriment so liberally is to eliminate the effect of the rule but largely to leave it intact for governments.

[62] Dunford (n 59), 510.

[63] Mrs Tame's appeal to the High Court is found in the dual judgment of Tame v New South Wales; Annetts v Australian Stations (2002) 211 CLR 317. Mrs Tame was a teetotaller wrongly accused by new South Wales Police of drink driving by reason of faulty equipment, and who was so embarrassed by the false charge that she suffered mental harm as a result and sued for negligence. Her application failed on appeal for reason of her being not of normal fortitude.

[64] Schiavello Group Pty Ltd v Exquisite Australia Pty Ltd & Anor [2015] VCC 4, [361]-[364].

[65] Theakston (n 10).

[66] Koomen (n 24), 60. Glover, (n 24), incorrectly deals with the maxim as the actual basis (not a potential though unused basis) of the Gartside principle and simultaneously as the basis of the iniquity limb (or narrow view) of the public interest defence, although he is not alone in doing this. See also the Scientology cases discussed below.

[67] See discussion on DC Payments Pty Ltd v Next Payments Ltd [2016] VSC 315, below.

[68] Hubbard v Vosper [1971] EWCA Civ J1119-4; [1972] 2 QB 84.

[69] Church of Scientology of California v Kaufman [1972] EWCA Civ J1218-1, [1973] RPC 635.

[70] Meagher et al (n 2), [41-115].

[71] Corrs (n 25), [56].

[72] Kettles and Gas Appliances Ltd v Anthony Hordern and Sons Ltd (1934) 35 SR (NSW) 108, (1934) 51 WN (NSW) 190;.

[73] Kettles and Gas Appliances (n 72), 127.

[74] Kettles and Gas Appliances (n 72), 128.

[75] The Leather Cloth Company Ltd v The American Cloth Company Ltd 11 HLC 523, per Lord Cranworth.

[76] Cases referred to on this point are Mrs Pomeroy Ltd v Scale 24 RPC 177, 71 ER 118 and JH Coles Pty Ltd v Need [1931] HCA 55, [1934] AC 82.

[77] DC Payments (n 67). This ruling was given without reference to the rules of evidence. In Victoria such evidence could be excluded on the basis of illegality under the Evidence Act 2008 (Vic), s 138. By way of comparison, a rule against admission of confidential information of any kind exists in the Evidence Act 2016 (NT), Part 7.

[78] DC Payments (n 67), [1].

[79] DC Payments (n 67), [1].

[80] PK Waight & CR Williams, Evidence: Commentary and Materials, (7th Ed, Thomson Lawbook Co, Sydney, 2006), [6.10].

[81] Investigators operating in fields overseen by government bodies such as WorkSafe Victoria and the Transport Accident Commission are accustomed to high expectations of compliance with the Privacy Act 1988 (Cth), however, individual investigators are also accustomed to submitting to the legal and/or commercial judgment of firms that provide client instructions to them.

[82] E Kearney, The not so Secret Diary of a Call Girl who Kissed and Told, (Thomson Geer Lawyers, 2013), <http://www.tglaw.com.au> accessed 16 January 2017.

[83] Lenah (n 58), [42].

[84] Meagher et al (n 52), [41-020].

[85] Coco (n 4), 48.

[86] Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167, 190-1.

[87] Dunford (n 59), 509.

[88] Meagher et al (n 2), [41-020].

[89] Discussed variously throughout Lenah Game Meats (n 58).

[90] Glover, above n15.

[91] The earliest case for this is Lord Ashburton v Pape (1913) 2 Ch 469 (CA). The principle is further exemplified in cases such as Francome v Mirror Group Newspapers [1984] EWCA Civ J0316-3, [1984] 1 WLR 892 and X v Y [1988] 2 All ER 648, (1987) 3 BMLR 1. See also G Taylor and D Wright, Australian Broadcasting Corporation v Lenah Game Meats: Privacy, Injunctions and Possums: An Analysis of the High Court’s Decision (2002) 26 MULR 707, 715.

[92] Saltman (n 3), 216. See also Seager v Copydex [1967] EWCA Civ J0418-2 (CA) where this principle was accepted without any question of a contract.

[93] Moorgate Tobacco Co Ltd v Philip Morris Ltd [1984] HCA 73, (1984) 156 CLR 414, [28].

[94] Guardian Newspapers (n 44).

[95] Ashburton (n 91).

[96] Ashburton (n 91), 475.

[97] Lenah, (n 58).

[