Facts: Johns was an informant to the Australian Securities Commission (ASC) on the basis his identity would be secret. His identity got leaked to the press. ASC conducted a private confidential examination of the managing director of the Tricontinental group of companies. ASC disclosed the transcript of which was disclosed to a State Royal Commissioner inquiring into the collapse of the group and seeking an injunction. The State Royal Commissioner used these transcripts in public hearings which were made available to the media. Johns sought to prevent further disclosure and dissemination of the information in the transcripts. The transcript disclosed a range of conduct.
Issue: Did release to Royal Commission = public domain?
Principle: Once the information enters the public domain, the confidential nature of the information is lost.
Held: Denied injunctive relief from further dissemination as the information was already in the public domain.
Held (Brennan J): The information was used in public hearings (cf. situations where a 'limited publication' is made) and it is too late now to recall the decisions which permitted them to be used. Hearing transcripts could be lawfully published. Public domain is not measured by the extent of media reporting.
Held (Gaudron J; McHugh J substantially agreeing): The concept of “public domain” has two distinct aspects: “the first is concerned with the question whether any duty of confidence arises; the second is concerned with whether a duty of confidence has come to an end”. The assertion the documents had entered the “public domain” through tender could mean either that ASC’s obligation of confidence came to the end or that the transcript no longer retained a quality of confidence. Gaudron J rejected that ASC’s obligation of confidence had come to an end. “[I]t seems that publication, no matter how extensive and no matter whether by third parties or by the person who owed the primary obligation, does not necessarily extinguish an obligation of confidence”. Also rejected that the documents had lost their quality of confidence when tendered to the Royal Commission. It was not apparent that materials presented during Royal Commissions were treated the same way as evidence tendered during judicial proceedings. Her Honour also noted that the transcript was returned once the final report had been drafted and an order was made against further publication. Her Honour also observed that if the documents were in the public domain, it was limited to the State of Victoria.