Dear Katy / Ger,
I am making public a private response I sent to Ger earlier today, with some edits to take into account Katy's comments:
Dear Ger,Thank you very much for this judgment.I'm afraid, unlike you, I do not consider the reasoning or conclusion to be particularly surprising. Injunctions of this nature have almost always been justified on the basis of the underlying confidentiality of the information, to which privilege has generally been regarded as irrelevant. There is a discussion about this in Wee Shuo Woon v HT SRL [2017] 2 SLR 94, which is cited by the HCA.For the HCA to have decided otherwise would, in my view, have represented a major development of the law (though not necessarily one that I personally would have considered undesirable).In relation to your specific questions:1. I think there was probably no choice but to put the case on that basis since the information was in the public domain and no longer confidential, having widely been reported by the media (at [7]). This was not the case in Wee Shuo Woon, where the hacked information was on the internet but there was no evidence of it having been publicly accessed, meaning it was not in the public domain. [Ed: This I think also addresses Katy's similar comment concerning Spycatcher: again, this is discussed in some detail in Wee Shuo Woon.]2. I don't think it does, since even in jurisdictions which recognise privilege as a fundamental right, eg England, it is not possible to obtain such an injunction where the information is not confidential or the conscience of the target of the injunction is not affected by his receipt of the information.3. In most jurisdictions, on the existing state of the law, those circumstances would be regarded as fatal to a claim to privilege. [Ed: Or perhaps, more accurately, fatal to a claim that an injunction to protect the claimant's privilege should be issued. Glencore faced an additional difficulty in light of s 166 of the ITAA 1936, which I imagine posed an insurmountable obstacle to a claim based on "ordinary" confidentiality - certainly in Singapore in light of their statutory powers it would be very doubtful that the tax authorities could be prevented from making use of confidential documents that came into their hands without fault (and possibly even with fault). Even in the absence of such statutory provisions, there is authority that regulatory authorities cannot be prevented by injunction from making use of such relevant information: Butler v Board of Trade [1971] 1 Ch 680, though not all jurisdictions follow this approach: see e.g. CITIC Pacific Ltd v Secretary for Justice [2012] HKCA 153.]
Kind regards,
Colin
On Thu, Aug 15, 2019 at 11:15 AM Katy Barnett <k.barnett@unimelb.edu.au> wrote:
Dear Ger,
It is an interesting one, isn't it? Thanks for making me look at it more deeply.
My first observation with regard to the focus on immunity versus right is that we have a particular requirement for interlocutory injunctions in Australia derived from Australian Broadcasting Corporation v Lenah Game Meats (2001) HCA, that the plaintiff must identify a legal, equitable or statutory right which the injunction supports. There is no availability of a "free-standing" injunction on the basis that it is "just and convenient", unlike the UK and Canada. So that explains the focus on right versus immunity.
My second observation is that Glencore confirms that the ATO can obtain privileged documents unless obtained in breach of confidence (see [6]). Thus, like you, I am not sure why the appellants did not argue breach of confidence pursuant to Spycatcher (even documents blowing out of the window may be impressed with an obligation to keep them confidential). I think it was not argued properly, as stated at [7] of the judgment:"There may be difficulties for the plaintiffs in meeting the requirements for such relief, given that the Glencore documents are in the public domain and there being no allegation concerning the defendants' conduct or knowledge."Your question about why, if the confidential quality of the information has been lost for the purposes of breach of confidence, it has not also been lost for the purposes of legal professional privilege is a good one. Even if breach of confidence could have been established, I wondered if it wasn't argued because of concerns about the equitable bar of lack of clean hands? Or perhaps some kind of public interest defence was raised, as you suggest: the High Court at [7] seemed to regard it as determinative on this point that s 166 of the ITAA 1936 allowed for taxation to be assessed on any information in the Commissioner's possession (implicitly, howsoever acquired). I would be interested in the views of others on this. I suspect, in any case, that this is why they went down the standalone right/common law right instead.
My third observation is that we do not have an established tort of breach of privacy in Australia (common law, statutory or equitable) and Glencore does nothing to resolve this. There was a hint that the HCA might be open to developing one in ABC v Lenah Game Meats, and the HCA noted in Glencore that the appellants did not to seek to expand the tort of unjustified invasion of privacy at [7]. (Oh so tantalising!) Because we do not have the European Human Rights overlay, it is difficult for us to rely too heavily on expanding breach of confidence as UK courts have in cases such as Douglas v Hello, Campbell etc. although there is a Victorian Court of Appeal case called Giller v Procopets where the court did so in any event. Thus, it follows that the result in such a decision might well be different in a jurisdiction which has certain statutory rights or a more developed tort of breach of privacy.
Any other thoughts welcome. I will do a summary of the case for our Opinions on High blog and circulate it in due course.
All the best, Katy
Katy Barnett | Professor
Melbourne Law School
Level 7, 185 Pelham Street, Carlton
The University of Melbourne, Victoria 3010 Australia
T: +61 3 9035 4699 E: k.barnett@unimelb.edu.au
SSRN | Twitter: @drkatybarnett | Blog: http://blogs.unimelb.edu.au/opinionsonhigh/
Just released: Barnett and Harder, Remedies in Australian Private Law (Cambridge University Press, 2018)
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From: Gerard Sadlier <gerard.sadlier@gmail.com>
Sent: Thursday, 15 August 2019 9:32 AM
To: obligations <obligations@uwo.ca>
Subject: Privilege without Confidentiality in the HCADear all
Some of you will be aware of the High Court of Australia's judgment in
Glencore International AG v Commissioner of Taxation [2019] HCA 26 (14
August 2019) https://protect-au.mimecast.com/s/EXXQCgZolKF6ZD6MINkgBb?domain=austlii.edu.au
In brief, the applicant sought an injunction to restrain use by the
Commissioner of Taxation of documents over which the applicant claimed
legal professional privilege and which had been disclosed as part of
the so-called Paradise Papers leak. The applicant argued that
privilege was in itself sufficient to justify the grant of an
injunction and that it did not have to rely on the law of
confidentiality for this purpose.
The Court held the privilege is an immunity, not a right which would
justify the grant of an injunction, in the absence of confidentiality,
which would justify the grant of injunctive relief.
I must confess, with the utmost respect, that I find the reasoning
conclusory at best. A number of questions do also seem to arise
though:
1. The case was put on the basis that privilege would justify the
grant of injunctive relief, without reference to the law of
confidence. I am sure that I am missing something here but that seems
to me a baffling concession. Whatever one's view of the Paradise
Papers leak, the fact remains that confidential documents were
disclosed without the consent of those like Glencore who had a right
to that confidence. Everyone, including the Commissioner is presumably
aware of how these documents became public. In those circumstances,
why would the Commissioner not be impressed with an obligation to
respect that confidence, as against Glencore, in much the same way as
a third party is obliged by equity not to accept the disclosure of
information which he knows is being provided by an employee in breach
of confidence. Was there a concern that the Commissioner might
successfully rely on a public interest or statutory defence?
2. Does the HCA's reasoning suggest that a different result would be
reached where privilege is constitutionally protected or guaranteed by
the European Convention on Human Rights? There, arguably at least, it
is in reality a substantive legal right.
3. To ask 1 in another way, how can privilege be claimed at all by a
party who cannot say either that (i) the documents are in fact be
confidential or (ii) the documents should and would be confidential
but for some wrongful act of the other side or of which the other side
is on notice?
Any comments would be most welcome as I have rarely left a judgment of
the HCA so unsatisfied.
Kind regards
GEr