Deacon v Australian Capital Territory [2001] ACTSC 8 (8 February 2001)

Last Updated: 19 March 2002

GLYN ANTHONY DEACON v AUSTRALIAN CAPITAL TERRITORY [2001] ACTSC 8 ( 8 February 2001)

CATCHWORDS

CONTEMPT OF COURT - interference with administration of justice - interference with attempts to identify and interview witnesses - workplace injury at defendant's hospital - plaintiff's solicitor attempted to interview employees of hospital so as to identify potential witnesses - defendant's solicitor alleged that (inter alia) it was illegal for employees to make statements to plaintiff's solicitor - application by plaintiff for injunctive and declarative relief.

PRACTICE AND PROCEDURE - application to prevent threatened contempt in pending proceedings - whether application should be made by way of separate proceedings - whether application valid when contemner is non-party - it is.

LEGISLATION - s 10 Crimes (Offences Against the Government Act) 1989, s 9 Public Sector Management Act 1994 and s 70 Crimes Act 1914 (Cth) - duty not to disclose information - nature and extent of - no such duty in this case.

WITNESS - duty to give evidence - nature and extent of - not compellable.

Public Sector Management Act 1994, s 9

Crimes (Offences Against the Government) Act 1989, s 10

Health and Community Care Services Act 1996, s 4

Supreme Court Rules, O 34A, O 52 r 12

Police Act 1964 (UK)

Crimes Act 1914 (Cth), ss 70, 78, 79

Australian Federal Police (Discipline) Regulations (Cth), reg 13

Freedom of Information Act 1982 (Cth)

National Companies and Securities Commission Act 1976 (Cth), s 47

Income Tax Assessment Act 1936 (Cth), s 16

Telecommunications (Interception) Act 1979 (Cth), Div 4

Freedom of Information Act 1989

Children's Services Act 1986, s 172

Community Advocate Act 1991, s 19(2)

Motor Traffic Act 1936, ss 174, 178, 203

Critchley v Australian Urban Investments Ltd [1979] VR 374

Kitcat v Sharp (1882) 52 LJ Ch 134

Connolly v Dale [1996] QB 120

R v Wright (No. 1) [1968] VR 164

Australian Building Construction Employees' and Builders Labourers' Federation v Minister of State for Industrial Relations [1982] FCA 134; (1982) 43 ALR 189

Gregory v Philip Morris Ltd (1987) 74 ALR 300

Sherlock v Jacobsen (1983) 13 ATR 935

Johnston v DPP (1989) 90 ACTR 7

News Corporation Ltd & Ors v National Companies and Securities Commission [1984] FCA 36; (1984) 1 FCR 64

Commissioner of Taxation v Swiss Aluminium Australia Limited & Ors (1986) 10 FCR 321

Kanthal Australia Pty Ltd v The Minister for Industry, Technology and Commerce (1987) 14 FCR 90

Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348

Middelhuis v Jakiwczyk [1996] ACTSC 93 (10 September 1996)

Glen Lapham v Office of the Community Advocate and Director of Family Services [1998] ACTAAT 289 (10 November 1998)

Watson v Collings [1944] HCA 33; (1944) 70 CLR 51

Carnell v Mann (1998) 89 FCR 247; 159 ALR 647

Hogben v Chandler [1940] VLR 285

Cavanagh v Galkowski (1979) 20 SASR 322

Re Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371

Mackay v Abrahams [1916] VLR 681

Terbutt v Holmes (1935) 52 WN(NSW) 223

Young v Owen (1972) 19 FLR 70

Forbutt v Blake (1981) 51 FLR 465

R v Lawrence [1984] 3 NSWLR 674

Coco v R [1994] HCA 15; (1994) 179 CLR 427

Clarke v Martlew [1973] 1 QB 58

Megarity v D J Ryan & Sons Ltd [1997] UKPC 37; [1980] 1 WLR 1237; 2 All ER 832

Aspinall v Stirling Mansell Ltd [1981] 3 All ER 866

Prescott v Bulldog Tools Ltd [1981] 3 All ER 869

Neill v Commonwealth of Australia & Anor (unreported, ACTSC, 9 September 1982, No. SC 209 of 1982, Blackburn CJ)

No. SC 757 of 1997

Judge: Higgins J

Supreme Court of the ACT

Date: 8 February 2001

IN THE SUPREME COURT OF THE )

) No. SC 757 of 1997

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: GLYN ANTHONY DEACON

Plaintiff

AND: AUSTRALIAN CAPITAL TERRITORY

Defendant

ORDER

Judge: Higgins J

Date: 8 February 2001

Place: Canberra

THE COURT DECLARES THAT:

1. The defendant's solicitor would be impeding the course of justice if he informed or otherwise conveyed to potential witnesses, whether past or current employees of the defendant or not, that there is any legal impediment, other than, if applicable, legal or professional privilege or an otherwise applicable duty to keep confidential material otherwise rendered confidential, to them giving statements or information concerning the facts of this matter to the plaintiff's solicitors or if he discouraged such potential witnesses from giving information to or making statements to the plaintiff's solicitor about the facts in this matter.

2. The defendant's solicitor may advise such potential witnesses, if requested by them to do so, that they are not obliged to make such statements or give such information but, if they do so, they are entitled so to do without any detriment to their career or employment.

3. No impediment to doing so arises from their employment by the defendant or any duty of service to the defendant.

1. On 16 October 1997, the plaintiff commenced proceedings against the defendant seeking damages for personal injury in the course of his employment by the defendant at Canberra Hospital on 21 December 1993.

2. The particulars of claim asserted that the defendant had caused the plaintiff's injury by means of breach of various statutory duties under relevant occupational health and safety legislation and in breach of the employer's common law duty of care towards its employee.

3. By its defence, dated 21 November 1997, the defendant admitted the injury but denied any breach of duty causing it.

4. It was alleged by the plaintiff that he suffered injury in pushing a "Hendicare" bed. The plaintiff deposed, in answer to interrogatories, that many other complaints had been made by other Hospital employees concerning that type of bed.

5. On 21 August 2000, the solicitors for the plaintiff filed a notice of motion seeking the following orders and declarations:

"ORDERS:

1. That the defendant's solicitor refrain from informing or otherwise conveying in any way to potential witnesses in this matter that there is any legal impediment to their giving statements or information concerning the facts of this matter to the plaintiff's solicitor and refrain from discouraging such potential witnesses in any way from giving information or making statements to the plaintiff's solicitor about the facts in this matter.

2. That the defendant's solicitor, if requested by a potential witness in this matter who is or was at any relevant time an employee of the defendant to advise him/her in respect of the giving of statements to the plaintiff's solicitor, advise him/her that it is the duty of all such persons to assist the court to come to a correct and just conclusion in this matter and that this may involve the necessity of giving evidence or making statements to the plaintiff's solicitor.

3. That in respect of any potential witness to whom the defendant or its solicitor or the Health and Community Care service has indicated in any way that the giving of information to the plaintiff's solicitor concerning the facts of this case is illegal or in any way improper or undesirable or that the defendant or the Health and Community Care service or the defendant's solicitor does not wish that person to give any information statement or cooperation to the solicitor for the plaintiff the solicitor for the defendant clearly and forthwith in writing inform such person that such advice or information was wrong, unlawful and improper and should be disregarded.

4. That the solicitor for the defendant refrain from attempting in any way to prevent or interfere with the carrying out of reasonable investigations and normal and usual preparations for the hearing of this matter including the interviewing of potential witnesses by the plaintiff's solicitor.

5. That a copy of the advices given pursuant to these orders be provided by the defendant's solicitor to the plaintiff's solicitor.

6. That the defendant pay the plaintiff's costs of this motion.

DECLARATIONS:

7. That the conduct of the Government Solicitor;

(a) in attempting to prevent the plaintiff's solicitor from interviewing and seeking statements from government employees in this matter;

(b) in threatening the solicitor for the plaintiff;

(c) in placing impediments in the way of the plaintiff's solicitor's preparation of this matter

amounts to an interference with the course of justice."

6. In support of that application, Mr Peter Harris, the solicitor acting for the plaintiff, deposed that, on 18 July 2000, he had accompanied the plaintiff to the Canberra Hospital to view the scene of the injury, particularly to note the floor surface.

7. Whilst on the premises the solicitor intended to speak to persons the plaintiff had identified as potential witnesses including a Ms Margaret Brandon.

8. The solicitor and the plaintiff viewed the accident scene. On the way back to the car park, they passed an "open office". Ms Brandon was situated within it. The solicitor stopped and spoke to her. After introductions he said to her:

"Would you be prepared to make a statement? You do not have to do so and you can seek legal advice before doing so if you want to."

9. She replied that she did not want to do so.

10. The solicitor then said to her:

"Well you don't have to but I may have to subpoena you later to give evidence to the court instead."

11. Mr Harris and the plaintiff then left the Hospital.

12. About 28 July 2000, Mr Harris had a telephone conversation with Mr Russell Bayliss, the solicitor conducting the defence for the ACT Government Solicitor on behalf of the defendant.

13. In the course of that conversation, Mr Bayliss, according to Mr Harris' recollection, said Ms Brandon had complained of the approach Mr Harris had made to her on 18 July 2000. He then said to Mr Harris:

"It is a breach of the law for any employee of the hospital to make any statement to you. There is a legal proscription against any employees making any statement to you."

14. That "legal proscription", Mr Bayliss said, arose out of the provisions of "The Public Sector Management Act". It applied to all employees past and present.

15. Mr Bayliss further objected to the plaintiff or any of his advisers, legal or otherwise, being at the Hospital at all, even in those areas open to public visitation as:

"... there are no public parts at all. You can only attend the Hospital if you are sick or visiting someone who is sick."

16. To do otherwise, Mr Bayliss contended, was "illegal pursuant to the Crimes (Offences Against the Government) Act 1989."

17. Mr Harris expressed concern that those assertions, if acted upon and conveyed to potential witnesses, would hinder the preparation of the plaintiff's case, and, if persisted in, amount to an attempt to pervert the course of justice.

18. In reply, Mr Bayliss concurred with the substance of Mr Harris' assertions as to what he had said, though not the form of it. As to site visits, his recollection was that he said:

"I have no problem whatsoever with you attending at the Hospital for the purposes of obtaining treatment or visiting a sick friend or a family member or the like but I do have a problem if you attended the Hospital for the purpose of gaining evidence. The etiquette would be for you to contact me and seek my consent for you to do so or in the absence of my counsel for you to obtain the order of the court."

19. He did recall saying:

"It is potentially a breach of the Public Sector Management Act for any employee of the Hospital to make any statement to you about a matter involving the Hospital without authority from their supervisor to do so."

20. His affidavit continued:

"I also said to Mr Harris that an employee owed a duty of confidentiality to an employer. I futher said that in circumstances where the negligence of employees forms the cause of action that it was potentially a breach of that duty for an employee to provide a statement to Mr Harris. I said to Mr Harris "It is a different matter for them to give evidence, I have no problem at all with that, but I do have a difficulty in relation to you obtaining a statement"."

21. He confirmed that he had expressed the view that the Crimes (Offences Against the Government) Act 1989 (COAG Act), particularly s 10, would apply in such a situation.

22. Mr Bayliss then pointed out that, obviously, unlimited and unconditional access could not be given to many areas of the Hospital in the interests of infection control and patient care.

23. He said that he had not been approached for advice by any potential witness but, if asked, he would advise:

"(a) There is no obligation upon them to provide a statement to Mr Harris;

(b) That having regard to ss 9(p) and (q) of the Public Sector Management Act 1994 (ACT), they ought not provide a statement to Mr Harris without obtaining consent to do so from their supervisors; and

(c) That in any event, the action by the plaintiff involves allegations of negligence concerning the acts and omissions of the staff of the Hospital for whom it is said the Hospital is vicariously liable and in those circumstances they ought not provide statement [sic] to Mr Harris."

24. He would, however, advise that giving evidence or providing documents pursuant to subpoena would be covered by the "lawful authority" exception.

25. Mr Bayliss disputed that he objected to Mr Harris freely attending the foyer or like public areas of the Hospital. He stated that he was prepared to cooperate with such inspections as Mr Harris might reasonably wish to make.

26. There was a further issue. On 20 April 2000, Mr Bayliss wrote to Mr Harris' firm suggesting that discovery was limited by the creation, with effect from 1 July 1996, of a statutory corporation, the "Health and Community Care Service". That is a reference to "Australian Capital Territory Health and Community Care Service" established by the Health and Community Care Services Act 1996, s 4.

27. Mr Bayliss commented:

"To that extent the Australian Capital Territory no longer employs any of those persons referred to in correspondence including your client."

28. The issue as to discovery has now been resolved. However, that comment is relevant to the submissions relied on by the defendant in these proceedings.

29. Pursuant to directions made by Crispin J on 11 October 2000, the defendant filed and served a statement of facts and contentions.

30. The facts are as noted. The plaintiff does not challenge them. The difference between the two solicitors is not contended to be material. It is merely a genuine difference as to recollections.

31. The contentions of the defendant may be summarised as follows:

1) Procedurally, the orders and declarations are sought in a manner unsupported by the Rules of Court;

2) The ACT Government Solicitor, a non-party, is not amenable to the orders sought;

3) The application, in reality, seeks advisory opinions;

4) In any event, the orders and declarations sought ought not to be made:

* As to Order 1 - because there is a legal impediment created by the common law, s 9(p) and (q) of the Public Sector Management Act 1994 (PSM Act) and s 10 of the COAG Act to a witness providing information to the plaintiff's solicitors;

* As to Order 2 - because it amounts to a mandatory injunction requiring the giving of advice to potential witnesses that it is their duty "to assist the court to come to a correct and just conclusion in this matter and that this may involve the necessity of giving evidence or making a statement to the plaintiff's solicitor" and it would be wrong to impose such a duty on the defendant's solicitor particularly as it would, in any event, be wrong in law to do so;

* As to Order 3 - because this assumes that advice has been given. It has not. Thus no occasion for the order has arisen;

* As to Order 4 - because, not only has the conduct in question not been engaged in, but it would be proper to advise potential witnesses of the legal impediments asserted;

* As to Order 5 - because, again, such a duty should not be imposed and, in any event, would be inappropriate; and

* As to Order 7 - because no such conduct has occurred and the advice, if given, would be correct and, hence, not in contempt.

32. The plaintiff's solicitors, in reply, point to the real likelihood that the advice they contend to be wrong in law will be given and, hence, the proceedings improperly impeded.

Procedural Issues

33. There is, clearly enough, a power in the Court to grant relief of the kind sought. Order 52 r 12 of the Supreme Court Rules (the Rules) would empower the Court to make injunctive orders if required.

34. The real question is whether the application should be made within the personal injury action or by way of separate proceedings as the defendant's counsel contends.

35. In support of the contention that it should be the former, Mr Sheils QC, for the plaintiff, cited Critchley v Australian Urban Investments Ltd [1979] VR 374.

36. In that case, as in the present, there were pending proceedings. In that case, those proceedings related to the proposed presentation of a winding up petition. The plaintiff's company sought an injunction to restrain it. Counsel for the defendant, on an adjournment application, made serious and unsubstantiated allegations concerning the plaintiff's company and its managing director. The defendant's counsel then, apparently, briefed a number of journalists as to the allegations, presumably with a view to ensuring their dissemination. Fearing this, plaintiff's counsel applied for and obtained an order prohibiting various newspapers from publishing defendant's counsel's remarks on the grounds that to publish the allegations would be a contempt of court. It was found unnecessary to continue the order, but the defendant was ordered to pay the legal and other costs of the newspaper proprietor who appeared to answer the application. It was objected that the application should have been by way of a separate proceeding and could not empower the court in the main proceedings to make a costs order in favour of a non-party.

37. The Full Court (Young CJ, Menhennitt and Crockett JJ) agreed that the defendant, by attempting to procure unfavourable publicity against the plaintiff, had committed a contempt of court. It was an attempt to prejudice the fair trial of the action by inhibiting the plaintiff's right to a fair trial. Their Honours were also of the view (at 379) that:

"The authorities make it clear that for the purpose of dealing with a contempt of the kind here threatened in a pending proceeding a motion in the action making the alleged contemner a respondent is appropriate. Where the contempt has been committed it will usually be a motion for committal. ... The more modern authorities, however, make it quite clear that a motion in the action is the appropriate procedure."

38. Nor, in their Honours' view, was it necessary to wait until the non-party has actually perpetrated a contempt. Their Honours approved a statement by Fry J in Kitcat v Sharp (1882) 52 LJ Ch 134, 135 where his Lordship stated:

"It appears to me I have plainly jurisdiction to prevent the threatened conduct. Only observe what would be the effect if I had not the jurisdiction. It would be that the Court, seeing that a fair trial is likely to be interfered with by a contempt of Court, would be powerless to prevent such contempt, and powerless to prevent the fair trial from being interfered with ..."

39. Their Honours stated, at 380, following that quotation:

"It is clear that the same reasoning would apply to a threatened contempt by a person not a party to the action."

40. It follows that, unless some Rule or Statute requires otherwise, and none has been suggested to me, I should adopt the reasoning of the Full Court of the Supreme Court of Victoria and hold that, assuming a threatened contempt in relation to a pending proceeding, the application to deal with or prevent the contempt should be taken in the pending proceedings.

41. Further, it is no objection to the competency of those proceedings that the alleged potential contemner is a non-party. Nor is it a valid objection that no conduct in contempt has yet occurred.

42. The questions to be answered, therefore, are whether the conduct in question, if engaged in as threatened, would be contempt and then, even if that would be so, whether it is excused, authorised or even required by legislation.

Advice to witnesses not to assist the other party

43. There is no doubt that the advice that Mr Bayliss stated he would give to employees (or former employees) of the defendant or (presumably) the Authority, would tend to persuade them not to make statements disclosing possibly relevant matter to the plaintiff's legal advisers.

44. It is open, of course, for the plaintiff's advisers to summon the potential witnesses in any event. To do so without proofing their evidence would, at least, be "courageous".

45. To interfere with proper and reasonable attempts by a party's legal advisers to identify or interview witnesses is a contempt. It may be restrained by injunction.

46. A recent case directly in point is that of Connolly v Dale [1996] QB 120. The accused in a murder case raised alibi as a potential defence. His solicitor instructed an enquiry agent to attempt to locate and interview potential alibi witnesses showing them the accused's photograph in the process.

47. The police also desired to obtain statements, not only from those persons, but also others who might be shown the photograph. Police sought to restrain the agent from his enquiries on the grounds that it might interfere with the course of justice by prejudicing a possible identification parade. Additionally, a detective superintendent of police told the accused's solicitor that his proposed line of enquiry was contrary to the Police Act 1964 (UK), being an obstruction to police in the exercise of their duties, and, accordingly, might well lead to his prosecution.

48. Balcombe LJ (for himself and Buxton J) held, at 125:

"In our judgment, the concept of interference with witnesses extends to interference with proper and reasonable attempts by a party's legal advisers to identify and thereafter interview potential witnesses."

49. The actus reus of contempt was, in their Lordship's view, clearly made out. Further, though the motive was "benign", being a desire to avoid contamination of an identification parade, it was nevertheless deliberate.

50. The alleged statutory justification by reference to the Police Act failed. The threat to pursue criminal action under that statute was "a clear contempt of court" (at 126). There was "no property in a witness" and, under the common law system "everything is permitted except what is expressly forbidden". Thus the solicitor had been acting properly and reasonably. The attempts to hinder the actions he proposed to take was a threatened contempt.

51. That the position under Australian law is no different cannot be doubted. In R v Wright (No. 1) [1968] VR 164, a threat of violence to deter or punish a witness was held contemptuous by Starke J.

52. Industrial sanctions used for a similar purpose were held to be in contempt by Evatt and Deane JJ in Australian Building Construction Employees' and Builders Labourers' Federation v Minister of State for Industrial Relations [1982] FCA 134; (1982) 43 ALR 189, 208.

53. There is, in my view, no doubt that, unless excused or sanctioned by an express legal rule, the conduct Mr Bayliss proposed that he would engage in would constitute an intentional attempt to dissuade potential witnesses from giving truthful evidence (see per Gray J in Gregory v Philip Morris Ltd (1987) 74 ALR 300, 308).

54. No doubt, for that reason, Mr Tracey QC for the defendant, confined his argument to a contention that the potential witnesses had no duty to assist the plaintiff or the Court and could be so advised if they requested advice without the adviser being guilty of contempt. Further, he contended that the PSM Act and the COAG Act did create a legal impediment to the giving of statements and it was reasonable and proper for the defendant's solicitor to warn potential witnesses of that impediment if it apparently applied to them.

Was there a legal duty on the potential witnesses being employees or former employees of the defendant to refuse to assist the plaintiff or his legal advisers?

55. Section 9(p) and (q) of the PSM Act provide:

"A public employee shall, in performing his or her duties:

(p) not disclose, without lawful authority -

(i) any information acquired by him or her as a consequence of his or her employment; or

(ii) any information acquired by him or her from any document to which he or she has access as a consequence of his or her employment;

(q) not make a comment which he or she is not authorised to make where the comment may be expected to be taken to be an official comment."

56. "Public employee" is defined to include employees of statutory corporations such as the ACT Health and Community Care Service.

57. The COAG Act, s 10, creates an offence for unauthorised disclosures by public employees. It states:

"(1) A person who, being an officer of the Territory publishes or communicates, except to some person to whom he or she is authorised to publish or communicate it, any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of him or her being an officer of the Territory and which it is his or her duty not to disclose, is guilty of an offence punishable, on conviction, by imprisonment for a period not exceeding 2 years.

(2) [similar restraint in respect of a person "having been" a Territory officer]."

58. At first blush, it would seem extraordinary if superior authority was required to disclose criminal or tortious conduct because a public employee had learnt of such conduct in the course of his or her duties. What possible public interest could there be in preventing a public employee from assisting police or a private litigant by disclosing to them or their advisers what he or she had observed simply because the observation was made in the course of duty?

59. Nor could it be credible to suppose that the power to disclose such information could apply to assist third parties injured near or in sight of government premises, but not those same persons if injured on government premises, whether those injured persons be government employees or not. Nor could it be supposed that a public employee injured in the course of his or her duties would need permission from a superior officer to complain of that injury to police or legal advisers.

60. Section 10 of the COAG Act in fact does not support the defendant's contention. It does not require authority to disclose irrespective of the nature of that information. It is the confidential character of the information that requires it to be kept confidential not the mere fact that the public employee has gained it as a result of his or her employment.

61. The proscription imposed by s 10 COAG Act is limited to information "it is [or "was"] his or her duty not to disclose".

62. The kind of information covered by that phrase has, perhaps surprisingly, not expressly been the subject of judicial exegesis. Some guidance may, perhaps, be discerned from Sherlock v Jacobsen (1983) 13 ATR 935. In that case, Burt CJ upheld an appeal on sentence by an appellant found guilty of breaching s 70 of the Crimes Act 1914 (Cth) (a provision similar to s 10, COAG Act). The offender had obtained tax returns and a counsel's opinion from "a friend" in the Australian Taxation Office (ATO) to help him in his accountancy practice better to prepare tax returns for clients.

63. Clearly, the nature of that information is such that an ATO officer would be under a duty not to disclose it to unauthorised persons.

64. In Johnston v DPP (1989) 90 ACTR 7, Miles CJ dismissed an appeal by a police officer against a conviction for an offence against s 70 (supra). There was no issue concerning the duty not to disclose the information in question. The police computer records in question included information that a certain person was believed to be in possession of a firearm. That was, clearly enough, information which, of its nature, was to be kept confidential. That conclusion was supported by Reg 13(1) of the Australian Federal Police (Discipline) Regulations. It provided:

"A member shall not, without lawful authority or excuse -

(a) communicate to a person any information that he has acquired in the course of his duties."

65. The General Orders specifically restricted the release of "information concerning the personal record of an individual".

66. The threshold question is the nature and extent of the duty not to disclose the information in question. It seemed to be conceded by counsel, Mr Tracey QC that information incidentally acquired by a public employee, such as seeing an accident in the car park or, indeed, in a public foyer of the workplace is not such information. What, then, is protected?

67. In News Corporation Ltd & Ors v National Companies and Securities Commission [1984] FCA 36; (1984) 1 FCR 64, the issue concerned the scope of compulsory disclosure under the Freedom of Information Act 1982 (Cth). Section 47(1) of the National Companies and Securities Commission Act 1976 (Cth) forbade disclosure of officially acquired information. Bowen CJ and Fisher J drew an analogy with s 70 of the Crimes Act and commented, at 69:

"We agree with the contention of counsel for the News Corporation that the provision [of s 70 Crimes Act] is similar to s 47 in that it defines the information which is not to be disclosed only by reference to the fact that it came into the possession of the officer by virtue of his office."

68. Section 78 of the Crimes Act in contrast, makes express reference to the characteristics of the information (eg useful to an enemy or foreign power). However, their Honours added the caveat that the view so expressed was not final. Full argument had not been heard.

69. In Commissioner of Taxation v Swiss Aluminium Australia Limited & Ors (1986) 10 FCR 321, a similar issue arose.

70. Bowen CJ, at 325 contrasted s 70 Crimes Act with s 16 Income Tax Assessment Act 1936 (Cth):

"From the policy point of view it may be noted that an enactment such as s 70 of the Crimes Act prohibiting the disclosure of information obtained in the course of the duties of a public servant treats the nature or kind of information disclosed as virtually irrelevant. It is the office occupied by the person and the character in which he obtained the information which imposes the obligation of secrecy upon him in the interests of orderly administration and discipline of the service. In contrast, the information relating to the affairs of persons obtained or disclosed under the income tax legislation is a highly sensitive area. The prohibition is laid down not because of the positions of the officers as public servants dealing with this matter but because of the sensitivity of the particular information which perhaps may, in a general way, be referred to as tax related information."

71. The comment concerning s 70 Crimes Act was obiter. Neither Fox J nor Jackson J considered it necessary to refer to it.

72. Section 70 Crimes Act was referred to in Kanthal Australia Pty Ltd v The Minister for Industry, Technology and Commerce (1987) 14 FCR 90. Wilcox J, at 98, noted that the section imposed no prohibition "upon the disclosure of information by an officer in the course of his duties as such". Thus, a disclosure of documents pursuant to an obligation to give discovery in legal proceedings was "clearly a disclosure in the course of the officer's duties".

73. The case of Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 involved the validity of the designation of federal judges as persons authorised to issue interception warrants. One ground urged as supporting the invalidity of the designation was that s 70 (and s 79) of the Crimes Act required the judge to keep secret that he or she had issued (or refused to issue) a warrant, even if that obligation was incompatible with the requirements of natural justice. The majority were prepared to assume the validity of that argument without adopting it. They considered if it was valid, that an "appropriate practice" would be adopted to avoid any such result (see 366) (per Brennan CJ, Deane, Dawson and Toohey JJ). Gummow J did consider the issue. It was conceded that it would, in general, be the duty of the "eligible judge" to keep warrant information confidential but, at 397, his Honour said:

" ... in my view, any such "duty", in so far as it applied to an "eligible Judge", would not extend to the discharge by the "eligible Judge" of functions as a judge exercising the judicial power of the Commonwealth."

74. At 398, his Honour observed:

"Section 70 of the Crimes Act also operates only where it was the "duty" of the Commonwealth officer not to disclose the information in question. The same reasoning is applicable here as to s 79. In particular, whether the source of the duty be in a statute, namely Division 4 of the [Telecommunications (Interception) Act 1979 (Cth)] or the general law, the ambit of the duty stops short impeding discharge of the higher duty flowing from Cth III of the Constitution by the "eligible Judge".

But for this construction which, in my view, should be placed upon the Act and upon ss 70 and 79 of the Crimes Act, I would have accepted the submission by the applicant that the impugned provisions of the Act and those sections of the Crimes Act, in their operation upon information and documents acquired by "eligible Judges" pursuant to the Act, did amount to an impermissible undermining of the Boilermakers' doctrine."

75. McHugh J dissented from the view of the majority that a Federal Judge could be an "eligible Judge". In the course of doing so, however, his Honour acknowledged that s 70 of the Crimes Act might well not prevent disclosure of confidential warrant information where it would be necessary in the interests of justice to disclose it.

76. Miles CJ, in Middelhuis v Jakiwczyk [1996] ACTSC 93 (10 September 1996) considered another situation in which a police officer was alleged to have provided confidential police information (concerning a vehicle registration) to a private investigator. The appellant had been found guilty of an offence against s 70 of the Crimes Act in the Magistrates Court. He appealed to the Supreme Court. His Honour found that the omission from the charge of the allegation that the information disclosed was information "which it is not his duty to disclose" [sic - the omitted allegation should have been "which it was his duty not to disclose"]. The omitted allegation was an essential element of the offence. Thus, in his Honour's view, with which I would respectfully concur, the conviction could not be sustained.

77. Nevertheless, his Honour did comment on the element relating to possession of knowledge of the relevant information stating, at par 9:

"The knowledge at which s 70 is directed is clearly not confined to first-hand knowledge, but includes knowledge based on secondary sources. Otherwise the section would have an extremely limited operation and in practical terms would not address the mischief at which it is directed, namely the unauthorised dissemination of information gained by virtue of being an officer of the Commonwealth."

78. As to the phrase "by virtue of being a Commonwealth officer", his Honour repeated his opinion, expressed in Johnston v DPP (supra), 11, that it means:

"... that there has to be a causal connection between being a Commonwealth officer and the coming to the knowledge of the officer of the fact in question."

79. Thus it is clear enough that if the acquisition of the information in question comes to the attention of a Commonwealth officer adventitiously, for instance, whilst gazing out of the office window, no causal connection could relevantly be asserted.

80. On the other hand, an officer inspecting a work place in order to report upon a claimed work-place accident would then be in possession of information acquired "by virtue of being" an officer. It would not matter for that purpose that any other person, not an officer, might equally have access to the information.

81. In both Johnston and Middelhuis, the information was undoubtedly of a "confidential" character. That is, it was an inescapable conclusion that there was a duty cast upon the relevant officer not to disclose the information to unauthorised persons.

82. In the matter of Glen Lapham v Office of the Community Advocate and Director of Family Services [1998] ACTAAT 289 (10 November 1998), Professor L J Curtis, President of the ACT Administrative Appeals Tribunal, considered the impact of s 70 Crimes Act on information given to the Community Advocate to which access was sought under the Freedom of Information Act 1989. The Community Advocate sought to maintain confidentiality about information which the FOI applicant already possessed. It was, Professor Curtis remarked, a "veritable Alice in Wonderland" situation. He acknowledged (par 10) that there were, doubtless,

"... cases involving high issues of national security or sensitive undercover police investigations where it is important in the public interest to avoid official acknowledgment of the existence of a document".

However, to allege that a duty of confidentiality arose in the circumstances of the instant case was, Professor Curtis said "patently unsustainable". He continued (par 12):

"It could not apply where the notification was made by a person who did not wish the fact of the notification to be kept confidential or who did not wish his or her identity to be kept confidential. Whether a source of information is a confidential source of information is a matter to be established by evidence."

83. Noting that s 172 Children's Services Act 1986 and s 19(2) Community Advocate Act 1991 were analogous to s 70 Crimes Act, Professor Curtis considered that information held by the relevant officers was forbidden from disclosure only if there was an obligation of confidentiality in relation to the information.

84. In relation to s 19(2) Community Advocate Act, for example, the prohibition (par 31):

"... does not apply where the information is disclosed in the course of performing functions under the Community Advocate Act or any other Act.

* It does not apply where the disclosure is made to the person to whom the information relates.

* It does not apply where disclosure is made with the consent of the person to whom the information relates."

85. There was, of course, no prohibition on the Community Advocate deciding, in the public interest, to release information.

86. I bear in mind that the confidentiality in question in the above matter was that of the identity of an informant. In the present case it is knowledge of matters relating to an accident on an employer's premises.

87. Whether a duty of confidentiality arises so that s 70 Crimes Act can punish its breach will depend on the type of information, the circumstances in which it has been acquired and the interests of relevant parties in keeping it confidential. A consideration of the public interest must also be relevant. The duty to keep information confidential may attach to information of any kind but it must be such and acquired in such circumstances that such a duty arises. It does not arise merely because the information is obtained by an officer in the course of his or her duties.

88. Thus it could not, in my view, be a breach of s 70 Crimes Act for a Commonwealth officer to disclose to police the unlawful conduct of another officer merely because the first officer came by that information by virtue of or in the course of the performance of his or her official duties.

89. I can see no difference between disclosure of information relevant to a crime and information relevant to tortious conduct. To suggest otherwise is to make s 70 of the Crimes Act (and s 10 of the COAG Act) an instrument for the protection and concealment of wrongdoers rather than the protection of the public interest in preventing unfair commercial advantage, breaches of privacy or prejudice to the orderly administration of the executive government or protection of national security.

90. In the present case, the defendant suggests that a broad, indeed all-embracing, duty of confidentiality arises from the terms of PSM Act. That duty is then supported and breaches of it subjected to sanctions by the COAG Act.

91. It is true that the classes of information which appear to fall under the protection of the PSM Act are very broadly expressed. It is "any information" but the qualifying phrase "without lawful authority" would, in my view, permit disclosure of information where the law would not recognise any need for confidentiality or, even if such a duty would usually be implied, where a higher public interest recognised by law would require or, at least, authorise, disclosure.

92. One obvious example, already conceded by the defendant, is the duty to obey a subpoena by disclosing information documentary or otherwise. Also included, the authorities make clear, is the obligation to give discovery whether by way of production of documents or the answering of interrogatories.

93. It is unnecessary to consider the complete scope of s 9(q) PSM Act. It has no application to a witness making a statement as to the evidence he or she would give if called to testify in proceedings, civil or criminal. It could not be regarded as "official comment" however inimical to the defendant's interest it may be for that statement to be made.

94. There is no doubt that it is unlawful for a private employer to attempt to dissuade an employee from offering evidence even if it would be contrary to the employer's interests for that employee to do so. It was baldly stated by Rich J in Watson v Collings [1944] HCA 33; (1944) 70 CLR 51, 58 that:

"... it is against the law for any person who has any authority or means of influence over a witness to use it for the purpose of affecting his evidence."

95. It is unlikely that the legislature intended that the Executive should enjoy any wider immunity from disclosure of information than a private employer absent some overriding public interest such as national security, the protection of confidential informants or the like.

96. No such issue arises in the present case.

97. In my view, neither s 9(p) or (q) PSM Act nor s 70 of the Crimes Act or s 10 COAG Act, or any combination of them would authorise any person in authority to dissuade or discourage a witness or potential witness in actual or potential proceedings, whether civil or criminal, from disclosing information lawfully acquired by them, whether in the course of their duties or not, to a proper relevant authority.

98. It is both lawful and proper to disclose knowledge relevant, or potentially relevant, to an allegation of tortious conduct to the parties to the litigation, be it actual or potential litigation. There is no duty not to disclose such information arising from the status of the person holding the information as a "public officer."

99. That does not mean that there cannot be a legal impediment to disclosure. A specific statutory prohibition or the existence of a privilege such as legal professional privilege may be asserted to prevent a third party making a disclosure. No such privilege or prohibition arises from the PSM Act.

100. Carnell v Mann (1998) 89 FCR 247; 159 ALR 647 is an example of a situation in which information might be protected though otherwise disclosable.

101. There are, however, questions raised not only as to the discouragement of potential witnesses in proceedings, but also the extent to which the defendant is required to encourage witnesses to come forward and to permit the plaintiff and his advisers to carry out investigations, particularly upon premises owned or, at least, controlled by the defendant.

Duty to encourage witnesses

102. I have concluded that it would tend to impede the course of justice for a person, whether a party or a solicitor for a party or otherwise, to discourage a witness or potential witness from offering evidence relevant (possibly) to another party's case.

103. It was not contended that, absent some statutory authority, a person could be compelled to give a proof of evidence to a party to proceedings (or their solicitor).

104. Certainly, there is no privilege which may be asserted by an employer to hinder an employee from giving evidence in proceedings including the making of statements preparatory to giving evidence (see Connolly v Dale (supra)).

105. Whilst, no doubt there is a public interest in members of the public coming forward to assist police in their enquiries and to assist parties to litigation fully and properly to present evidence to a court so as to enable justice to be done, there is, in general, no mechanism to compel that cooperation. The law does not, generally speaking, cast a duty upon a person, whatever their moral duty maybe, to volunteer knowledge relevant to a criminal or civil wrong.

106. Order 34A (Preliminary Discovery) of the Rules represents some erosion of that position. It is, in itself, an indication that such an obligation does not exist generally.

107. Even where a direct public interest exists, as in the case of criminal investigation, a potential witness, even if not likely to be incriminated, may decline to assist police or provide information, absent an express legal obligation. (cf eg Motor Traffic Act 1936 ss 174, 178 and 203).

108. To advise a person of that right is not, per se, hindering a police officer (see Hogben v Chandler [1940] VLR 285). Even where a statute requires the giving of information and failure to do so is an offence, it is not "hindering police" to decline to provide the information or advise a person that they need not do so (see Cavanagh v Galkowski (1979) 20 SASR 322). But cf Re Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371 (advising non-cooperation in a statutorily authorised search of a person is an offence).

109. A shopkeeper may order a police officer out of his or her shop absent a warrant to enter even if the officer had been pursuing legitimate enquiries (see Mackay v Abrahams [1916] VLR 681). But to warn possible offenders of the approach of police may be hindering police (Terbutt v Holmes (1935) 52 WN(NSW) 223; cf Young v Owen (1972) 19 FLR 70).

110. Nor does disobedience to police orders, even if reasonably given to avoid a breach of the peace, unless supported by statutory power, constitute hindering or obstructing police (see Forbutt v Blake (1981) 51 FLR 465).

111. Thus, while it no doubt serves the interests of justice for a witness to come forward for the purposes of aiding the prosecution of litigation, whether civil or criminal, there is no generally enforceable duty on that person to do so. It follows that a solicitor, whilst not permitted to obstruct or hinder or dissuade a witness from coming forward or cooperating with enquiries, would not be acting unlawfully merely by advising the witness that he or she is not obliged to come forward or respond to enquiries. But, let there be a word of caution. Pre-emptively to advise employees that they are entitled to refuse to give information to assist a litigant (or police) might be construed as attempting to pervert the course of justice (see eg R v Lawrence [1984] 3 NSWLR 674).

Access to Premises

112. It is not contended by the defendant that it is entitled to prevent access to areas of the Canberra Hospital open to and used by the public (such as the foyer) notwithstanding that earlier correspondence from the ACT Government Solicitor seemed to go so far.

113. Nevertheless, the ACT Government Solicitor now not only concedes that point but also offers cooperation to enable inspection by experts engaged by the plaintiff of areas and equipment relevant to his injury.

114. There is no right in a party, even in pursuit of the purposes of justice, to commit trespass. Coco v R [1994] HCA 15; (1994) 179 CLR 427 amply demonstrates that. Even in pursuit of the execution of an interception warrant otherwise authorised by statute, trespass is not authorised.

115. Thus plaintiffs or their solicitors have no right to commit an act otherwise contrary to law even in pursuit of the proper prosecution of the plaintiff's case.

116. That does not leave a plaintiff without remedy. The power to order discovery includes a power to direct expert inspection. That direction may be subject to such conditions as seem reasonable.

117. In Clarke v Martlew [1973] 1 QB 58, the defendant's solicitors sought an order for the medical examination of the plaintiff. Lord Denning MR (Cairns LJ concurring) agreed that there was power to do so but that it was a reasonable condition that any report so obtained be disclosed to the plaintiff.

118. As Denning MR stated, at 62:

"... if a plaintiff unreasonably refuses to be medically examined at the request of the defendant, then his action will be stayed until that medical examination is held. That is only fair to the defendant. He should be able to check the plaintiff's condition and his injuries so as to be able to assess the damages properly."

119. But, as to the suggestion that the report so obtained could be kept secret at the defendant's option, Denning MR stated at 63:

"It is the defendant who seeks a privilege - he seeks to have a medical examination of the plaintiff - and I do not think he should have this privilege unless he is prepared to act fairly by it. Fairness requires that he should show it to the plaintiff."

120. The same observations are relevant to a request that a defendant give access to a place or item relevant to an action otherwise not open to inspection.

121. However, the practice endorsed by Denning MR was qualified by Megarity v D J Ryan & Sons Ltd [1997] UKPC 37; [1980] 1 WLR 1237; 2 All ER 832. Roskill LJ, with whom Ormrod LJ agreed, noted that where each side was, before hearing, entitled to disclosure of any medical report it was intended by that party to rely upon, fairness required only the disclosure of such reports. That was in the context that the plaintiff was not required to disclose reports upon which he or she did not propose to rely. It may be otherwise if that practice is abolished or qualified. Passed over was the consideration that the defendant gained a privilege by being given access to the plaintiff for the purposes of a medical report.

122. There has been disagreement as to the extent to which a party may be required to submit to inconvenience, discomfort and, possibly, injury in giving disclosure (see Aspinall v Stirling Mansell Ltd [1981] 3 All ER 866; cf Prescott v Bulldog Tools Ltd [1981] 3 All ER 869).

123. Megarity (supra) was followed, in preference to Clarke v Martlew (supra), by Blackburn CJ in Neill v Commonwealth of Australia (unreported, ACTSC, 9 September 1982, No. SC 209 of 1982).

124. For present purposes, it is enough to note that, in principle, the process for access to relevant places or equipment proposed by the defendant's solicitor is appropriate.

125. If there is disagreement as to detail, it can be met by appropriate directions.

Relief sought

126. The plaintiff seeks three substantive orders and one declaration. I consider that only the following declarations should be made:

(1) That the defendant's solicitor would be impeding the course of justice if he informed or otherwise conveyed to potential witnesses, whether past or current employees of the defendant or not, that there is any legal impediment, other than, if applicable, legal or professional privilege or an otherwise applicable duty to keep confidential material otherwise rendered confidential, to them giving statements or information concerning the facts of this matter to the plaintiff's solicitors and should not discourage such potential witnesses from giving information to or making statements to the plaintiff's solicitor about the facts in this matter.

(2) That the defendant's solicitor may advise such potential witnesses, if requested by them to do so, that they are not obliged to make such statements or give such information but, if they do so, they are entitled so to do without any detriment to their career or employment.

(3) That no impediment to a potential witness doing so arises from the employment past or present, by the defendant or any duty of service to the defendant.

127. It is unnecessary to make any further declaration unless the need arises.

128. I will hear the parties as to costs.

I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Associate:

Date: 8 February 2001

Counsel for the plaintiff: Mr P Sheils QC with Ms G Wong

Solicitor for the plaintiff: Canberra Lawyers

Counsel for the defendant: Mr R Tracey QC with Mr C Erskine

Solicitor for the defendant: ACT Government Solicitor

Date of hearing: 19 October 2000

Date of judgment: 8 February 2001