Unreported National Court Decisions
N1688
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS NO. 874 OF 1996
BOROKO RESTAURANT PTY LIMITED
V
PACIFIC LEISURE PTY LIMITED
AND
NATIONAL GAMING CONTROL BOARD
Waigani
Batari AJ
28 July 1997
CONFIDENTIAL INFORMATION - Breach of Confidence - Board Member’s disclosure of confidential information in court - Whether prohibited by Act - Public Interest - Whether Defendants entitled to injunction.
CONFIDENTIAL INFORMATION - s.91 - Gaming Machine, Act.
Counsel
S. Mulina, for the Plaintiff
E. Anderson, for the First Defendant
K. Kua, for the Second Defendant
MOTION TO REMOVE AFFIDAVIT - RULING
28 July 1997
BATARI AJ: By a notice of motion filed on 25 June, 1997 the Defendants sought an order against the Plaintiff, inter alia that the Affidavit of Brown Sinamoi dated 24 March, 1997 be struck off the proceedings. The Affidavit is in the following terms:
“On 24 day of March 1997, I, Brown Sinamoi, businessman, of P. O. Box 2831, Boroko, N.C.D., make the Oath and say:
1.       I was the chairman of the National Gaming Control Board in 1995 and I have knowledge of the matter that is the subject of this proceedings.
2.       In accordance with the Gaming Act, a liquor license in the category of “Club, Hotel, Motel, Tavern or Restaurant” is a requirement on the part of an applicant in applying for a Gaming Permit.
3.       I was the chairman of the Board meeting which considered the application for a Gaming Permit by the First Defendant.
4.       I have knowledge that the First Defendant did not have a liquor licence in the category of “Club, Hotel, Motel, Tavern or Restaurant” at the time it was applying for a Gaming Permit.
Furthermore, I was aware that at that time there was a sole liquor license holder in the category stated above on the premises of Allotment 4, Section 23, Angau Drive, Boroko, N.C.D., belonging to Boroko Restaurant Pty. Limited, the said Plaintiff in the proceedings.
5.       I believe and say that the Gaming Permit granted and issued by the National Gaming Control Board to the First Defendant was based on the fact that there was a liquor license on the said premises at the time of the application and so the Board considered and approved the issuing of the permit”.
The application was made pursuant to Order 11 Rule 28 of the National Court Rules which states:
“28.    Scandal etc (38/8)
Where there is scandalous, irrelevant or otherwise oppressive matter in an Affidavit, the Court may order that:
(a)      the matter be struck out,
or
(b)      the Affidavit be taken off the file”.
Under this Rule, an Affidavit or part of the Affidavit may be removed from court proceedings if it contains matters which are scandalous, irrelevant or oppressive and the burden is on the party who alleges to establish the existence of all or any of those considerations mentioned.
On the face of Brown Sinamoi’s Affidavit, the facts deposed do not appear ‘scandalous’, ‘irrelevant’ or ‘oppressive’. Indeed, Counsel for each Defendant did not rely on any of those considerations under Order 11 Rule 28 of the National Court Rules but claimed the general depository discretionary powers therein permits exclusion of the document on the basis that it contained matters which are prohibited under s.91 of the Gaming Machine, Act 1993. Section 91 reads:
“91.    Confidentiality
(1)      Any information disclosed under this Act to the Minister, to a member of the Board, to the Registrar, to a member of the staff of the Board of the Board or the Registrar or a member of the staff of the Board or an Inspector without the prior written approval of the person who provided that information, except:
(a)      to the extent that disclosure is authorized or required under this Act or any other law; or
(b)      to the extent that the person providing the information authorized its disclosure at the time of providing the information; or
(c)      to the extent necessary to enable the Registrar to publish statistical information concerning the subject matter of the functions of the Board; or
(d)      to the extent necessary to enable the Board to give advice to the Minister.
(2)      A member of the Board or the Registrar or a member of the staff of the Board or an Inspector who fails to comply with Subsection (1) or who uses, his knowledge in the course of or by reason of his membership of the Board or his employment as Registrar, a member of the staff of the Board or an Inspector, is guilty of an offence.
Penalty:A fine not exceeding K5,000.00 or imprisonment for a term not exceeding two years, or both”.
The Plaintiff is a company that carries on business in the nature of restaurant and for that purpose holds a current Restaurant Liquor Licence. It carries out its business in Allotment 4 Section 23, Angau Drive leasing part of the building generally known as the Namba Wan Trophy Haus. The first Defendant is a company that carries on the business of lottery in the same premises on a separate lease arrangement. In 1995 the First Defendant was issued a permit by the Second Defendant to operate poker machines. The First Defendant has been operating poker machines on that permit since.
The Plaintiff in the substantive action is claiming declaratory orders that:
“1.      A declaration that, a current and valid liquor license (restricted to a Club, Hotel, Motel, Tavern, or Restaurant) issued under the relevant liquor licensing legislation, is a pre-requisite or conditionprecedent to applying for a gaming permit under the Gaming Machine Act 1993;
2.       A declaration that:
a.       the Plaintiff’s restaurant liquor license was relied upon or was the requirement upon which the first defendant applied for the said permit, and
b.       the Plaintiff’s restaurant liquor license was used as the basis upon which the said permit was issued.
3.       A declaration that if the Plaintiff’s restaurant liquor license was not relied upon for the issue of the permit then the subsequent issuing of the said permit to the first defendant by the second defendant was in breach of the Act and wrong in law and is therefore invalid;
The Affidavit in question was filed by the Plaintiff. Brown Sinamoi was chairman of the Second Defendant company in 1995. It is not clear whether he still holds that office at the time of this application. The facts, deposed to, I infer from paragraph 1 his Affidavit were from within his own knowledge and information acquired in the course of the Second Defendant’s consideration of the First Defendant’s application for the Gaming permit.
Counsel for each Defendant argued that Affidavit contained information which are privileged under the provisions of the Gaming Machine Act because the persons providing the information had not given approval, written or otherwise for disclosure. In support of their contentions, the Defendants relied on the Affidavit of Aplina Gapi, Assistant Registrar of the National Gaming Control Board, which in essence states that no authority, to her knowledge and recollection was given to Mr Sinamoi or any of the Board members or servants of the Second Defendant to disclose information that came to him or her whilst being a Board member or servant. Confronted with a situation as this, whose word do I accept? Whilst Aplina Gapi may have no knowledge or may not be aware of any authorisation to disseminate information given to the Board, it does not necessarily follow that the Chairman or the Second Defendant had not given authority for disclosure. Brown Sinamoi as Chairman of the Second Defendant, may well have the authority in his office or was endorsed by the Second Defendant to disclose the information. There is no evidence to the contrary.
Whether the authority should come from the First Defendant through its agent as the person who provided the information, is also raised. I will cover that aspect later. But first, it is to be noted that there are exceptions under s.91 which permit disclosure of information which might otherwise be considered confidential. Once one or more of the exception apply, the information ceases to be confidential. The Plaintiff does not claim any of those exceptions. Second, it will be noted that the prohibition is against disclosure to ‘any person’ outside the Board, including a member, a staff, the Registrar, the Inspector and the Minister. This I think relates to unauthorised disclosure to the public at large. The disclosure being complained of is in the form of Affidavit for use by the Court in legal proceedings. Does the provision extend to exclude disclosure to the Court?
The motion before me is argued at the stage when a Statement of Claim and a defence thereto have already been filed and served. The Plaintiff had particularised its claim that, at the time of it application, the First Defendant did not possess the requisite qualification for grant of a Gaming Machine Permit. The Writ of Summons claims the Second Defendant had granted the First Defendant the Permit on the basis of the Plaintiff’s Liquor Trading Licence.
I think this application can be properly considered by asking whether the information in the Affidavit are relevant and necessary to the substantial cause of action. The facts deposed in the Affidavit support pleadings of fraudulent grant of the Gaming Permit by the Second Defendant to the First Defendant. Whether the fraudulent act is proven or not is a matter for hearing on the substantive cause of action. It is in my view sufficient that the Affidavit provides a prima facie case that the Plaintiff’s allegations have substance. I am satisfied that the matters raised are both relevant and necessary for the Plaintiff’s cause of action.
It has been argued that the person who provided the information had not approved its disclosure. Such contention is in my view misconceived for reasons that:
(i)       The law does not authorise illegal acts to be kept confidential. To this I think s.19(1)(a) has application. Any allegation of fraud must be disclosed in order to enable proper investigations of corrupt practices.
(ii)      The law over-rides principles of confidence or secrecy in favour of administration of justice. Brown Sinamoi, in this case is not obliged to disclose the information unless the interest of justice so demand.
(iii)     The public interest also arises generally in relation to the law of confidence. The public must be protected against corrupt practices and one way to do this is to expose it. The duty of confidence owed by Ben Sabumei to the Defendants not to divulge the contents or minutes of the Board meetings is in my view over-ridden by the public interest in protecting the public by placing the information before the proper authorities.
The duty of confidentially that was undoubtedly owed by Brown Sinamoi to the Defendants in the course of his and arising out of his employment is obvious. If this were a case in which disclosure by Brown Sinamoi, of confidential information concerning the way in which the First Defendant carries on business or concerning any details of the affairs of any of its clients or employees, there could be no answer to a claim for an injunction; but it is not general disclosure that the Plaintiff has in mind. His only intention to disclose is to support his cause of action in court.
One further and final observation is whether a privilege by law entitles the Second Defendant, its servants and employees not to disclose information obtained from the First Defendant’s application for Gaming Permit, in court. This question is more pertinent to the issue of confidence in profession and client relationship, but I think it is relevant in regard to disclosure to the Court. I adopt what Lord Denning MR states in the case of Attorney-General v. Mulhodland, Attorney-General v. Foster 2 Q.B.D. 477 at pp.489-90:
“The only profession that I know which is given a privilege from disclosing information to a court of law is the legal profession, and then it is not the privilege of the lawyer but of his client. Take the clergyman, the banker or the medical man. None of these is entitled to refuse to answer when directed to by a judge. Let me not be mistaken. The judge will respect the confidences which each member of these honourable professions receives in the course of it, and will not direct him to answer unless not only it is relevant but also it is proper and, indeed, necessary question in the course of justice to be put and answered. A judge is the person entrusted, on behalf of the community, to weigh these conflicting interests - to weigh on the one hand the respect due to confidence in the profession and on the other hand the ultimate interest of the community in justice being done, or, in the case of a tribunal such as this, in a proper investigation being made into these serious allegations”.
It is apparent that considerations against the injunction sought in para 1 of the Notice of Motion is over-whelming. Accordingly I decline the motion. I award costs in this application to the Plaintiff.