Land Court of Queensland considers the legal test for a threatened breach of confidence by an expert witness

In brief

The case of Apex Outdoor Pty Ltd v Cross River Rail Delivery Authority [2021] QLC 5 concerned an application to the Land Court of Queensland (Court) seeking to restrict the Respondent from calling a nominated expert witness (Expert) in a proceeding in respect of compensation for a loss of opportunity to erect a digital advertising billboard (Compensation Proceeding) because of a concern that the Expert may misuse information alleged to be confidential (Confidential Information). 

The Court observed that the Court will intervene to restrict a party from calling a witness to give evidence, where there is "…a threatened breach of confidence if there is a real and sensible risk of the misuse of confidential information." (at [5]). The risk of disclosure (or misuse) of confidential information may be either intentional or inadvertent (at [10]). 

The Court identified (at [6]) the following matters, which are required to be satisfied for the Court to restrict a party from calling a witness because of a threatened breach of confidence: 

• The information alleged to be confidential is identified with specificity. 
• The information has the necessary quality of confidence. 
• The information was received in circumstances which imported an obligation of confidence. 
• There is an actual or threatened misuse of the information without consent.

The Court drew a distinction between the relationship of a solicitor and client, which the Court stated requires a solicitor to use all information within the solicitor's knowledge for the client's benefit, to that of an expert witness, who is engaged by a party to give the Court independent evidence based on assumptions which are required to be disclosed to the Court (at [13]). 

The Court accepted evidence that the Expert had a lack of exposure to the Confidential Information, which reduced the risk that the Expert might inadvertently misuse the Confidential Information. The Court also accepted that an adequate system was put in place to limit the Expert's access to the Confidential Information.

The Court held that the task before the Court was to "…weigh the facts and assess the risk in the eye of reality, disregarding theoretical risks…", and that "[t]he duty of confidentiality does not extend to avoid a remote possibility of accidental disclosure." (at [19]). 

The Court held that the risk of inadvertent disclosure of the Confidential Information was a remote possibility, and therefore the Court did not need to address other issues to determine whether there was a threatened breach of confidence. The Court refused the application.

Party positions

Expert witnesses were nominated by the parties in the Compensation Proceeding to prepare joint expert reports in respect of "'[i]nputs for the discounted cash flow analysis and attributes of the proposed LED advertising sign'." (at [2]). 

The Applicant objected to the Respondent's nomination of the Expert on the following grounds: 

• The Expert was the co-managing director of a company with, and a sibling of, an expert formerly engaged by the Applicant (Former Expert) to provide expert evidence in respect of the Compensation Proceeding. 
• The company had been in possession of the Confidential Information for approximately two and a half years, the company used common files to store information, and the Expert and Former Expert shared a personal assistant who had access to the common files. 
• There were a number of opportunities for daily contact between the Expert and Former Expert. 
• The Expert only recently ceased to have access to the Confidential Information. 
• The Expert might misuse the Confidential Information, which was provided to the Former Expert. 

The Respondent submitted that the elements of the legal test for a risk of a breach of confidence had not been met, including that the Applicant did not establish that the alleged Confidential Information was, in fact, confidential, and that there was no real or sensible risk that the information would be misused. 

The Respondent relied on the following evidence from the Expert to support the Respondent's position:

• The Expert did not have knowledge of, nor did he access, the Confidential Information. 
• The Expert did not have knowledge of the extent of the Former Expert's relationship with the Applicant, nor did he have knowledge of any conversation had with, or information provided to, the Former Expert. 
• The Expert put measures in place to remove his access to the Confidential Information and agreed not to discuss the matter with the Former Expert. 
• The Expert had, and will, act on his own knowledge in respect of the Compensation Proceeding.

No real or sensible risk of disclosure

The Court rejected the Applicant's reliance on D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118 (D & J Constructions) in respect of the daily contact between the Expert and Former Expert over long periods being supportive of a real and sensible risk of disclosure of the Confidential Information because D & J Constructions related to the duty of a solicitor, which the Court distinguished from the duty of an expert witness. 

The Court was satisfied that the Expert had not accessed the Confidential Information and that the system established by the Expert, Former Expert, and their personal assistant to limit the Expert's access to the Confidential Information was adequate.

The Court held that there was a remote possibility of accidental disclosure of the Confidential Information, which was not protected by the duty of confidentiality (at [19]). 

Obiter comments of the Court 

The Court expressed the following opinion which was not essential to the Court's decision:

• The Applicant could have, but did not, direct the Former Expert to destroy the Confidential Information within his possession (at [19]). 
• Some of the matters which were described to be the subject of the Confidential Information would likely fall within the Applicant's duty of disclosure in respect of the Compensation Proceeding, including a draft witness statement of an expert prepared by the Applicant's solicitors, which the Court stated could reasonably be assumed to be that of the Former Expert (at [21] to [23]). 

Conclusion

The Court refused the application to restrain the Respondent from calling the Expert as a witness.