GREENBAUM v SOUTHERN CROSS HOSPITALS LIMITED [2019] NZCA 438

GREENBAUM v SOUTHERN CROSS HOSPITALS LIMITED [2019] NZCA 438 [18 September 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA358/2018[2019] NZCA 438BETWEEN ADAM RAPHAEL GREENBAUMAppellantAND SOUTHERN CROSS HOSPITALSLIMITEDRespondentHearing: 27 November 2018Court: Williams, Peters and Gendall JJCounsel: J Long and J K Grimmer for AppellantA S Ross QC and L C Bercovitch for RespondentJudgment: 18 September 2019 at 10.00 amJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay the respondent's costs for a standard appeal on aband A basis with usual disbursements.____________________________________________________________________REASONSPeters and Gendall JJ [1]Williams J [81]PETERS AND GENDALL JJ(Given by Peters J)Introduction[1] The appellant, Mr Greenbaum, appeals against a decision of Toogood J inwhich the Judge dismissed his application for non-party discovery fromthe respondent, Southern Cross Hospitals Ltd (Southern Cross).1[2] Mr Greenbaum is a United Kingdom trained plastic surgeon. He and his familyimmigrated to New Zealand in 2009 and in 2010 he accepted a position withthe Waikato District Health Board (WDHB). Differences developed betweenMr Greenbaum and WDHB later that year, culminating in an agreement inDecember 2010 that Mr Greenbaum would resign from WDHB, which he did in early2011 after obtaining vocational registration from the Medical Council of New Zealand(MCNZ). More detail about the background is set out below.[3] In 2011 and 2012, Mr Greenbaum applied to be "credentialled" to usethe facilities of four private hospitals in the Waikato region, including one operated bySouthern Cross. Each hospital declined to grant credentials to Mr Greenbaum.[4] Mr Greenbaum commenced this proceeding against WDHB and Dr TomWatson (the defendants) in 2017. Dr Watson was the Chief Medical Advisor at WDHBat the time Mr Greenbaum sought credentials. The essence of Mr Greenbaum'sproceeding is that the private hospitals declined Mr Greenbaum credentials becausethe defendants interfered, unlawfully, in the credentialling process. The defendantsdeny the allegations.[5] Mr Greenbaum's application for third party discovery, that is, the oneToogood J declined, was against Southern Cross and another of the private hospitals,Braemar Hospital Ltd (Braemar), seeking two categories of documents. The firstcategory was "comparative material" to enable Mr Greenbaum to compare the manner1 Greenbaum v Waikato District Health Board [2018] NZHC 1273 [High Court judgment]; andHigh Court Rules 2016, r 8.21.in which the two hospitals determined his application for credentials with those madeby third parties. Toogood J declined this application and there is no appeal againstthat aspect of the decision.[6] Secondly, Mr Greenbaum sought what was referred to as "evaluative material"concerning or referring to him. Braemar has no such documents but Southern Crossdoes. As we understand it, the documents comprise notes of discussions betweenSouthern Cross personnel and Dr Watson and/or WDHB personnel, whether doctors,nurses or administrators, for whom Mr Greenbaum contends WDHB would bevicariously liable. Southern Cross sought and received the information in confidence,having given an assurance of confidentiality based on a "waiver" in its standard formapplication for credentials, which Mr Greenbaum signed:I authorise Southern Cross Hospitals to make enquiries and obtain informationfrom other sources when necessary for decisions on my credentialled status orscope of practice. I consent to these persons and institutions providing anysuch information required by Southern Cross Hospitals. I also understand andagree that this material may be provided in confidence as evaluative materialand might not be disclosed to me.[7] Southern Cross opposed, and opposes, discovery of the documents on theground that they contain confidential information. Section 69(2) of the Evidence Act2006 (the Act) provides that a Judge may direct that confidential communications orinformation not be disclosed if the public interest in disclosure in the proceeding isoutweighed by a competing public interest.[8] Toogood J was satisfied that there was such a competing public interest,this being in preserving the confidentiality of the documents, and that this interestoutweighed the public interest in Mr Greenbaum having access to the documents.Hence his direction to Southern Cross not to disclose them. The issue on appeal iswhether the Judge's decision that the public interest in maintaining confidentialityoutweighed the public interest in disclosure was correct.[9] There is one other preliminary point to mention which is that Mr Greenbaumalready has Southern Cross's notes of two conversations with Dr Watson, althoughwhether the notes are a complete or accurate record of what was discussed is a differentmatter. One of the notes reports on a discussion between a Mr Holmes, Dr Watsonand another party whose name has been redacted. The other appears to be typed notesof a discussion with Dr Watson. Counsel for Dr Watson supplied the notes toMr Greenbaum's counsel in the course of discovery, so the appeal is concerned withdocuments recording, or purporting to record, conversations or discussions betweenSouthern Cross and other WDHB personnel.Background[10] The following background is from Toogood J's decision:[6] Dr Greenbaum is a London-based plastic surgeon and a New Zealandcitizen who was fully accredited in the United Kingdom and Europe.Dr Greenbaum was in consultant practice and on the specialist register in theUK before his wife, children and he emigrated to New Zealand in 2009. InNew Zealand, Dr Greenbaum accepted a position of employment with theWDHB and obtained a provisional registration from the [MCNZ]. He wasemployed by the WDHB from 11 January 2010 to 23 February 2011.[7] A dispute evolved between Dr Greenbaum and the WDHB overwhether he had been offered a permanent position with the WDHB at theoutset of his employment. The matter was resolved following mediation. Aterm of the settlement reached was that Dr Greenbaum would remainemployed for a further fixed period of time, or until he obtained vocationalregistration.[8] Dr Greenbaum required vocational registration because he was notNew Zealand qualified. Obtaining the qualification would enable him tocommence practice as a private plastic surgeon in New Zealand.[9] On 23 February 2011, Dr Greenbaum obtained vocational registrationdespite alleged opposition from WDHB personnel and Dr Watson in 2010. Itis alleged they failed or refused to countersign mandatory supervision reportsfrom Dr Greenbaum's supervisor; attempted to force a change of supervisorfor Dr Greenbaum; and made direct contact with MCNZ, suggesting a numberof times there were competency concerns with Dr Greenbaum and that therewas data to substantiate these concerns. When the MCNZ requested thatDr Watson provide formal notification and the relevant data, no suchsubstantiating evidence was provided to it. The defendants deny that they tooksteps to prevent or impede Dr Greenbaum's vocational registration.[10] Upon obtaining vocational registration, Dr Greenbaum left theWDHB and sought credentialling from four private hospitals, includingSouthern Cross and Braemar. It is alleged the WDHB and Dr Watson knewthat Dr Greenbaum intended to apply for credentialling at private hospitals inHamilton. Dr Greenbaum's application for credentials was declined by eachof the private hospitals.Credentialling process[11] Credentialling is the process by which a hospital verifies the "qualifications,experience, professional standing and other relevant professional attributes of medicalspecialists, for the purpose of forming a view about a practitioner's competence,performance and professional suitability" to provide services from and with the benefitof the hospital's facilities.2 These facilities include not only the hospital andassociated hard infrastructure, but also staff, such as nurses and administrators.[12] Although we do not know the form the credentialling process takes at everyprivate hospital, we expect it is similar to that Southern Cross employs. Evidence asto that process is contained in an affidavit from Dr Tony Baird, the chairman ofSouthern Cross's National Clinical Medical Committee (NCMC), sworn in oppositionto Mr Greenbaum's application for third party discovery. The NCMC overseesSouthern Cross's credentialling process. Further affidavit evidence was given byProfessor Ron Paterson and Professor Des Gorman and we refer to this below.However, it is convenient to discuss Dr Baird's evidence now.[13] Those credentialled at a private hospital are self-employed and responsible fortheir patients' care. This is a significant point of difference from a public hospital,where specialists are employed.[14] An applicant for credentials at Southern Cross submits a comprehensive,standard form application. Amongst other things, the applicant is required to providedetails of his or her education, training, prior employment, experience, scope ofpractice, the names of referees from whom Southern Cross might seek information,and the waiver referred to in [6] above.[15] In his affidavit, Dr Baird refers to differences between the operationalenvironments of public and private hospitals. In the former, on Dr Baird's (contested)evidence, a surgeon enjoys collegial support, with junior doctors on hand "24/7", andthere are regular meetings of specialties to review practices and outcomes. Dr Baird'sevidence is that these systems, all of which ultimately go to patient safety, are not2 High Court judgment, above n 1, at [31].present in the private hospital environment. As a result, a private hospital must satisfyitself not only of an applicant's clinical competence, but requires information as toother matters that contribute to patient safety and outcomes, and the general smoothfunctioning of the hospital, such as the applicant's personality, character, collegialityand ability to practise under pressure.[16] Dr Baird's evidence, again contested, is that Southern Cross requires "honest"information about these matters from others who have worked with an applicant, andthe ability to guarantee confidentiality is critical to obtaining the information.Dr Baird expects Southern Cross to be denied the information if it cannot be sure ofkeeping it confidential, in which case Southern Cross will end up relying on formalrecords and references provided by the applicant's supporters. Dr Baird also statesthat Southern Cross has an interest in granting credentials to practitioners. It does notuse the information it receives capriciously or unreasonably.[17] As to Mr Greenbaum's application, Dr Baird states that, on the basis of thewaiver, Southern Cross guaranteed confidentiality in return for information aboutMr Greenbaum. Southern Cross has informed those affected that Mr Greenbaum isseeking the documents. The majority are firmly opposed to disclosure and have saidthey would not have supplied the information had they known it might be disclosed.Dr Baird expects it will quickly become known in the medical community ifMr Greenbaum succeeds in his application, and Southern Cross will be unable topromise confidentiality in the future.[18] Mr Baird also states that Southern Cross was on enquiry at the timeMr Greenbaum applied for credentials as it knew of his employment dispute withWDHB. Also, several of the local Southern Cross committee members practised atWaikato Hospital and were aware of difficulties that Mr Greenbaum was said to behaving with others.Privacy Act 1993[19] Having been declined credentials, Mr Greenbaum sought from Southern Crossall "personal" information it held about him, as that term is defined in the PrivacyAct 1993. An individual is entitled to such information subject to, amongst otherthings, s 29 of that Act which permits the withholding of evaluative material suppliedin confidence.3 In May 2013, the Privacy Commissioner upheld Southern Cross'sobjection to providing the information on that ground. The Commissioner was alsosatisfied disclosure would breach legal professional privilege, an argument notadvanced before us.Commerce Commission[20] In or about 2014, Mr Greenbaum complained to the Commerce Commissionthat he was being excluded from performing plastic surgery in Waikato as a result ofanti-competitive arrangements in the region. Having made enquiries, theCommerce Commission took the complaint no further. However, in its letterinforming Southern Cross of its decision, the Commission stated:14. It is beyond doubt that the private hospitals obtained informationabout Dr Greenbaum from a range of sources as part of each hospital'scredentialling process, including from the WDHB, and Doctors TomWatson and Winston McEwan. It also appears beyond doubt that thepicture painted of Dr Greenbaum by the WDHB was not a favourableone and gave the private hospitals concern.Proceeding[21] Mr Greenbaum's claim is for the tort of interference by unlawful means, forwhich he seeks an enquiry into losses, compensation for lost income, and general andexemplary damages. To succeed, Mr Greenbaum will have to prove that WDHB andDr Watson interfered in his applications for credentials; that their interference wasunlawful vis-à-vis the private hospitals concerned; that the interference was intendedto and did cause him harm; and that he suffered loss.4[22] Subject to the outcome of this appeal, the interference Mr Greenbaum alleges(all of which is denied) includes:(a) "spreading misinformation and disinformation" about him, hiscompetency and character;3 Privacy Act 1993, s 29(1)(b).4 See Diver v Loktronic Industries Ltd [2012] NZCA 131, [2012] 2 NZLR 388 at [30], adoptingOBG v Allen [2007] UKHL 21, [2008] 1 AC 1.(b) giving negative and untrue responses to enquiries of them, to the effectthat Mr Greenbaum was not "credible or competent, or otherwise wasa troublemaker who was not to be trusted, and would be a risk" to anyof the hospitals if he were credentialled;(c) encouraging the hospitals to take "identical action" towardsMr Greenbaum's applications for credentials, essentially bydiscouraging the hospitals from granting credentials and insinuatingthat WDHB would take an adverse view of any hospital granting himcredentials; and(d) refusing to provide Mr Greenbaum's surgical logbook so that he couldestablish the work he had done in the final nine months of his time atWDHB.[23] Mr Greenbaum alleges the defendants' interference was unlawful against thehospitals under the Fair Trading Act 1986; in negligent misstatement; under theCommerce Act 1986 (despite the Commerce Commission having decided not toinvestigate); or, in the case of the logbook, was otherwise unlawful.[24] Mr Greenbaum also contends that, in interfering as alleged, the defendantsintended to, and did, cause him harm.Discovery[25] WDHB and Dr Watson have given discovery of all relevant documents in theircontrol. Southern Cross accepts the documents now in issue are relevant to the issuesin Mr Greenbaum's proceeding and thus subject to third party discovery but for s 69.General appeal[26] It is common ground that the appeal is a general appeal, being one in whichthe court must arrive at its own view of the merits of the case, but with the appellantto "identify the respects in which the judgment under appeal is said to be in error, toconvince the appellate court to reach a different view".5Section 69 of the Evidence Act 2006[27] Section 69 provides:69 Overriding discretion as to confidential information(1) A direction under this section is a direction that any 1 or more of thefollowing not be disclosed in a proceeding:(a) a confidential communication:(b) any confidential information:(c) any information that would or might reveal a confidentialsource of information.(2) A Judge may give a direction under this section if the Judge considersthat the public interest in the disclosure in the proceeding of thecommunication or information is outweighed by the public interestin—(a) preventing harm to a person by whom, about whom, or onwhose behalf the confidential information was obtained,recorded, or prepared or to whom it was communicated; or(b) preventing harm to—(i) the particular relationship in the course of which theconfidential communication or confidentialinformation was made, obtained, recorded, orprepared; or(ii) relationships that are of the same kind as, or of a kindsimilar to, the relationship referred to in subparagraph(i); or(c) maintaining activities that contribute to or rely on the freeflow of information.(3) When considering whether to give a direction under this section, theJudge must have regard to—(a) the likely extent of harm that may result from the disclosureof the communication or information; and(b) the nature of the communication or information and its likelyimportance in the proceeding; and(c) the nature of the proceeding; and(d) the availability or possible availability of other means ofobtaining evidence of the communication or information; and(e) the availability of means of preventing or restricting publicdisclosure of the evidence if the evidence is given; and5 Taipeti v R [2018] NZCA 56, [2018] 3 NZLR 308 at [42]; and Green v Green [2016] NZCA 486,[2017] 2 NZLR 321 at [30].(f) the sensitivity of the evidence, having regard to—(i) the time that has elapsed since the communicationwas made or the information was compiled orprepared; and(ii) the extent to which the information has already beendisclosed to other persons; and(g) society's interest in protecting the privacy of victims ofoffences and, in particular, victims of sexual offences.(4) The Judge may, in addition to the matters stated in subsection (3), haveregard to any other matters that the Judge considers relevant.[28] By way of preliminary observations, first, s 69 is concerned with confidentialcommunications, information and sources. The Act does not define "confidential" butwe agree with the Judge — and this too is common ground — that information will beconfidential for the purposes of s 69 if the party claiming confidentiality could have areasonable expectation of confidentiality.6 The documents at issue in this case areconfidential in the sense to which we have referred. The communications were madein confidence, the documents record confidential information and we expectdisclosure would reveal the sources.[29] Secondly, as s 69(2) makes clear, there is a public interest in all relevantinformation, confidential or not, being disclosed in a proceeding. All concerned,not least the court, should have all relevant information when litigating disputes.The effect of s 69(2) is that this public interest prevails, and a direction fornon-disclosure will be refused, unless another public interest of the nature identifiedin s 69(2) exists and outweighs the public interest in disclosure having regard tothe matters in s 69(3) and any others considered relevant (see s 69(4)).[30] Toogood J was satisfied that the credentialling process relies on the free flowof information and that a public interest exists in maintaining the process.7 He wassatisfied that the credentialling process is critical to patient safety; that it depends onthe hospital concerned having the best information available regarding the applicant;that this in turn depends on a hospital's ability to give an assurance that information6 See also R v X (CA553/2009) [2009] NZCA 531, [2010] 2 NZLR 181 at [48]; and FinancialMarkets Authority v Hotchin [2014] NZHC 2732 at [27].7 High Court judgment, above n 1, at [37]; and Evidence Act 2006, s 69(2)(c).supplied will be kept confidential; and that a hospital's ability to obtain informationwould be hindered or "chilled" if there was a prospect of disclosure. These findingsare not challenged on appeal, although the importance of the public interest inthe credentialling process is in issue.[31] The issue on appeal is whether the Judge was correct to find that the publicinterest in maintaining the confidential nature of the credentialling process shouldprevail in this particular case. Mr Long submits that the Judge erred in thisdetermination:(a) by placing no or insufficient weight on the public interest inMr Greenbaum's entitlement to a fair trial in light of all relevantevidence;(b) in the way he approached the public interest in maintainingthe confidentiality of the credentialling process; and(c) in failing to consider other means of preventing or restricting publicdisclosure of the evidence if given, a mandatory consideration unders 69(3)(e).First ground of appeal: public interest in a fair trial[32] In embarking on the weighing process required by s 69, the court must accordsufficient weight to what Mr Long described as the "general public interest factoritself". Mr Long says the Judge failed to do so; failed to give any or sufficient weightto the importance of the documents sought in the context of Mr Greenbaum'sproceeding; and did not consider the consequence of non-disclosure of the documents.[33] As to the first of these, Mr Long submitted that the Judge did not"fully appreciate" the weight to be accorded to the public interest in disclosure, andreferred us to many authorities which state this principle and the importance attachedto disclosure. The following examples suffice.[34] In Science Research Council v Nassé, Lord Salmon said:8The law has always recognised that it is of the greatest importancefrom the point of view of public policy, that proceedings in the courtsor before tribunals should be fairly disposed of. This, no doubt, iswhy the law has never accorded privilege against discovery andinspection to confidential documents which are necessary for fairlydisposing of the proceedings. What does "necessary" in this contextmean? It, of course, includes the case where the party applying for anorder for discovery and inspection of certain documents could notpossibly succeed in the proceedings unless he obtained the order; butit is not confined to such cases. Suppose, for example, a man had avery slim chance of success without inspection of documents, but avery strong chance of success with inspection, surely the proceedingscould not be regarded as being fairly disposed of, were he to be deniedinspection.[35] In D v National Society for the Prevention of Cruelty to Children, Lord Diplocksaid:9The fact that information has been communicated by one person toanother in confidence, however, is not of itself a sufficient ground forprotecting from disclosure in a court of law the nature of theinformation or the identity of the informant if either of these matterswould assist the court to ascertain facts which are relevant to an issueupon which it is adjudicating: Alfred Crompton Amusement MachinesLtd v Customs and Excise Commissioners (No 2) [1974] AC 405,433-434. The private promise of confidentiality must yield tothe general public interest that in the administration of justice truthwill out, unless by reason of the character of the information or therelationship of the recipient of the information to the informant a moreimportant public interest is served by protecting the information orthe identity of the informant from disclosure in a court of law.[36] Mr Long submitted that the Judge's failure to accord sufficient weight to thispublic interest affected his assessment of the consequences of non-disclosure, namelythat Mr Greenbaum would be without documents of critical importance to his case,and that a witness at trial would be entitled to refuse to answer a question concerningthe contents of the withheld documents. These matters are relevant considerationsunder s 69(3)(b).8 Science Research Council v Nassé [1980] AC 1028 (HL) at 1071.9 D v National Society for the Prevention of Cruelty to Children [1978] AC 171 (HL) at 218.[37] Mr Long referred us to the following statement in R v Secord, submitting thatthe "central" importance of the documents in this case magnified the public interest indisclosure:10If the evidence is important to the determination of the issue, then it is likelythat the public interest will favour disclosure; the more serious or importantthe issue, the more likely that is.[38] In response to these submissions, Mr Ross QC first submitted that the publicinterest in disclosure in a proceeding was not absolute, and in an appropriate casewould have to yield to a competing public interest. This follows from s 69 itself, andindeed is apparent from the passage in D v National Society for the Prevention ofCruelty to Children cited above. Nor did Mr Ross accept that the documents were ofcritical importance to Mr Greenbaum's case. Mr Ross submitted thatthe consequences to Mr Greenbaum of not receiving the documents were minimal.Mr Greenbaum was not being deprived of access to the court and could continue hisproceeding. Mr Greenbaum had not said he would discontinue his proceeding inthe absence of the documents. Mr Greenbaum also had the defendants' discovery,including emails, draft affidavit(s), and documents relating to the employment dispute,all of which would have informed Mr Greenbaum of the view held of him within theWDHB. Mr Ross submitted that any conspiracy within the WDHB to interfere inMr Greenbaum's career and professional standing would be evident from thisdiscovery. Mr Greenbaum also knew what Dr Watson appeared to have said toSouthern Cross.Discussion[39] We agree with Mr Long as to the importance of the public interest in disclosure.Of course, whether sufficient weight has been afforded to this interest can only beascertained by considering the strength of the countervailing factors which we shalldo shortly. As to Mr Long's specific criticism of the Judge, we think Toogood J wascognisant of the importance of this public interest, as appears from the following:[33] The starting point for the Court's discretion under s 69 isthe consideration that the disclosure of relevant communications orinformation in a proceeding is in the public interest. It is that which promotes10 R v Secord [1992] 3 NZLR 570 (CA) at 575.access to a fair and just system of adjudication by the courts. For the purposesof this case, the question posed by s 69(2) of the Act is whether that interest isoutweighed by the public interest in maintaining an activity that relies on thefree flow of information.[40] We also accept that the documents sought are likely to be important inthe proceeding, as they will disclose who said what to Southern Cross, and that aconsequence of non-disclosure may be that a witness at trial might decline to answerquestions regarding the contents of the documents. The fact that Mr Greenbaum hasreceived the defendants' discovery is not an answer to his application for discoveryfrom Southern Cross. In short, we accept that Mr Greenbaum is likely to requirethe documents he seeks, if he is to cast his net wider than Dr Watson.[41] However, for the reasons that follow, we find that this consideration isoutweighed by the interests in non-disclosure.Second ground of appeal: public interest in confidentiality[42] Mr Long submitted that the Judge erred in the way he considered the publicinterest claimed in maintaining the confidentiality of the documents. He submittedthe Judge ought to have considered Southern Cross's interest "mainly private".Mr Long also submitted that the Judge erred in placing "significant weight" onthe waiver and on the Privacy Act 1993, as matters counting against Mr Greenbaum.The Judge considered these last two matters under s 69(4).[43] As to the first issue, the essence of Mr Long's submission was that the Judgewas wrong to place significant weight on the prospect that disclosure would be likelyto inhibit a private hospital's ability to obtain information. Mr Long submitted thatthe court is not usually persuaded by arguments that disclosure will have a chillingeffect on the free flow of information. Mr Long referred us to Conway v Rimmer,Science Research Council v Nassé and Campbell v Tameside Metropolitan BoroughCouncil as examples of instances in which the court had declined to accept such anargument without further enquiry.11 In each of the cases to which we have just11 Conway v Rimmer [1968] AC 910 (HL) at 957; Science Research Council v Nassé, above n 8, at1070 and 1081; and Campbell v Tameside Metropolitan Borough Council [1982] QB 1065 (CA)at 1077.referred, disclosure of confidential information was resisted on the ground that suchwould have an adverse or chilling effect on the future provision of candid information.In each case the court inspected the contentious documents, or recommended that suchbe done, and in Campbell v Tameside Metropolitan Borough Council, the Judgeinspected the documents and ordered disclosure. Mr Long submitted that only in veryfew circumstances will the court decline disclosure, such as cases involving criminalinformants. Mr Long submitted that we should be similarly sceptical ofSouthern Cross's contentions in this case.[44] In response, Mr Ross noted that in the vast majority of the cases to whichMr Long referred, the court was considering information that had been supplied orcompiled pursuant to a duty. Those writing the reports or making the statementsrecorded therein were duty bound to do so. Hence the court's scepticism of argumentsthat those concerned would fail in their duty because of the occasional order that theirreports or statements should be disclosed. Mr Ross submitted that this case wasdifferent, being one in which information had been sought from and provided by aperson who was under no obligation to speak. Mr Ross submitted the present casewas closer to D v National Society for the Prevention of Cruelty to Children.12 In thatcase, a third party complained to the NSPCC that a child was being ill-treated.13The child's mother sought the identity of the third party. The court declined to orderdisclosure on the grounds that the greater public interest was best served by preservinganonymity.14[45] Before we address this point in detail, it is convenient to address a point inMr Long's written submission (but not argued at the hearing of the appeal) that aprivate hospital's process for credentialling specialists does not affect the public atlarge sufficiently to engage a significant public interest if a public interest at all.Mr Long submitted that the credentialling process was primarily of interest tothe private hospital itself and to those who use it.12 D v National Society for the Prevention of Cruelty to Children, above n 9.13 At 175.14 At 219, 229, 241 and 242.[46] We do not accept this submission because it is apparent from Dr Baird'sevidence that private hospitals must play an important part in New Zealand's healthsystem. Dr Baird's evidence is that Southern Cross owns and operates 10 hospitals inNew Zealand, and is a party to joint ventures in other hospitals and healthcare facilitiessuch as radiology and endoscopy clinics. Approximately 1,000 specialist surgeonsand anaesthetists are credentialled to have access to Southern Cross hospitals, treatingapproximately 65,000 patients per annum. That evidence, for Southern Cross alone,gives some measure of the part played by private hospitals. Private hospitals are alsoregulated and audited. They cannot be categorised as purely private facilities in whichthe general public has no or little interest.Evidence[47] We turn now to the evidence in this case on the consequences or lack of themif Southern Cross is ordered to disclose the documents.Dr Baird[48] Dr Baird clearly believes that there is a substantial risk Southern Cross will bedenied the free and frank information it seeks, and which he says it requires, if thereis a risk of disclosure. The gist of his evidence is that it is extremely difficult topersuade colleagues and other staff (nurses, junior doctors, administrators) with whoman applicant has worked to speak candidly and that the ability to assure confidentialityis critical. Although Dr Baird is not independent of Southern Cross, he isan experienced and senior practitioner, a past president of the MCNZ andthe New Zealand Medical Association, and it is apparent from his affidavit that he iswell versed in the workings of public and private hospitals, and the credentiallingprocess.Professor Paterson[49] Professor Paterson was the Health and Disability Commissioner between 2000and 2010 and is now a Professor of Law at the University of Auckland specialising inhealth law. His evidence may be summarised as follows.[50] All hospitals, public or private, require that referees be willing to give frankadvice, both as to competence in the sense of technical skills and as to the surgeon'sability to work within a team and to communicate with colleagues. Teamwork isincreasingly recognised as a critical skill in the surgical setting.[51] Credentialling is particularly important in a private hospital given the isolationin which surgeons practise. The peer review processes of a public hospital, such assurgical audit, and mortality and morbidity meetings, are not undertaken.(Professor Gorman disputes this evidence.) Given that, a patient in a private hospitalis much more dependent on the surgeon's competence and professional behaviour;that is, on the surgeon being attentive, visiting, and responding promptly to concernsraised by nurses.[52] Professor Paterson has investigated numerous complaints of substandardsurgical care. His experience has been that colleagues of a poorly performing surgeonare extremely reticent in raising concerns or expressing opinions. This is so whetherthe doctor is seeking employment in a public hospital or credentials in a privatehospital.[53] Colleagues fear repercussions. As Commissioner, Professor Paterson saw"difficult/litigious doctors who chilled the free flow of information because colleaguesfeared legal repercussions" if their opinion became known. Professor Paterson knowsof instances in which a doctor who expressed concerns was subsequently the subjectof complaint or sued.[54] For these reasons, Professor Paterson considers colleagues will be"highly reluctant to express a free and frank opinion to [a] prospective employer orprivate hospital" if that may later be disclosed in a court proceeding. Disclosure couldhave a chilling effect and significantly inhibit the free flow of information. The resultis that concerns about a doctor's competence or professionalism are less likely to beaired, and patients more likely to be exposed to harm.Professor Gorman[55] Professor Gorman is a Professor of Medicine and Associate Dean inthe Faculty of Medical and Health Sciences at the University of Auckland, and wasthe head of the University's School of Medicine from 2005 to 2010 inclusive.Professor Gorman's evidence may be summarised as follows.[56] The MCNZ is the primary and most important vehicle for verifyingcompetence. MCNZ's processes are comprehensive and address not only thecandidate's qualifications, skills and experience but also his or her "fitness forregistration". The latter includes matters such as whether he or she may have been thesubject of any disciplinary process here or elsewhere. MCNZ does not provide thirdparties with any assurance of confidentiality.[57] Professor Gorman considers Professor Paterson and Dr Baird have overstatedthe extent to which confidentiality is necessary in the private hospital credentiallingprocess. Access to a private hospital's facilities is a question of "marketability" forthe hospital concerned, to ensure that there is a full complement of disciplines and toensure those credentialled are capable of performing within that area. Private hospitalcredentialling is more akin to an "employment process", in which the hospital assessesthe suitability of a specific person for a specific role. Professor Gorman does not agreepatient safety requires that no information about credentialling should ever bedisclosed. Professor Paterson and Dr Baird have sought to "elevate its importanceunder the guise of 'patient safety'" in a way it does not deserve. It would be surprisingif a legitimate "competence concern" was raised in response to an enquiry by a privatehospital that the MCNZ or a district health board had not already considered. And, ifso, the private hospital would be required to bring it to MCNZ's attention where therewould be "full transparency". Surgical audits, and mortality and morbidity meetingsoccur in private hospitals and are required as part of a facility's accreditation.[58] Professor Paterson overstates the medical profession's reticence in confrontingand taking steps to address incompetence. Moreover, it would be desirable for anallegedly incompetent doctor to be confronted by that incompetence, and a pooroutcome for patients if that doctor was not told why he or she has failed to obtain aposition.Discussion[59] We accept it is conducive to patient wellbeing, and therefore in the publicinterest, for a private hospital granting credentials to have information that goesbeyond a practitioner's technical competence; we accept such information is morelikely to be forthcoming if there is a guarantee of confidentiality; and we accept thatno absolute assurance of confidentiality can be given if Southern Cross is required todisclose the documents sought. The issue is the likely extent of harm that may resultto the information gathering process from disclosure of the documents sought.In considering this, we place greater weight on the evidence of Dr Baird andProfessor Paterson than on Professor Gorman's. We are unable to dismiss theirevidence of the profession's reticence as exaggerated or unnecessarily cautious, giventheir experience. Although Professor Gorman takes a more robust view of theprofession, we think it stands to reason that a referee, who may be a nurse or juniordoctor starting out in their career, is more likely to give their opinion if assured ofconfidentiality.[60] To conclude on this point, having regard to the evidence before us, we acceptthat significant harm may result to the relationship between private hospitals and thosefrom whom they seek information if the documents are disclosed, and that this mayhave repercussions for patient safety and wellbeing.[61] There is one further point we should mention. It would not be right to applys 69 to protect a referee or source whose adverse comment about a candidate has beenmotivated by malice or some other purpose unrelated to the reason for the hospital'senquiry. Although MCNZ was satisfied as to Mr Greenbaum's competence, andMr Greenbaum considers any adverse view expressed of him to be unfair and untrue,there is no evidence of malice or other wrongful purpose in this case.[62] We turn now to Mr Long's submissions as to what he contends was the undueweight the Judge placed on Mr Greenbaum's waiver and Privacy Act considerations.Waiver[63] The Judge considered the waiver to be an important consideration countingagainst Mr Greenbaum. The Judge said:[44] Furthermore, I regard as significant the acknowledgement byDr Greenbaum that confidential information would be sought. It was not acondition of his consent to confidential inquiries being made thatconfidentiality would not apply to unfavourable information or opinions.On the contrary, the purpose of confidentiality is to encourage full disclosureof facts and opinions, especially those that may be unfavourable. In my view,Dr Greenbaum's prior consent to the making of confidential inquiries weighsheavily under s 69(4) in favour of preserving confidentiality.[64] Mr Long submitted that the fact information was communicated following apromise of confidentiality should not weigh heavily in favour of non-disclosure.In this regard he refers to the same passage of D v NSPCC, cited above at [35], latercited by Campbell v Tameside Metropolitan Borough Council.15 For convenience, weset it out again:The fact that information has been communicated by one person to another inconfidence is not, of itself, a sufficient ground for protection from disclosurein a court of law, either the nature of the information or the identity of theinformant if either of these matters would assist the court to ascertain factswhich are relevant to an issue upon which it is adjudicating. The privatepromise of confidentiality must yield to the general public interest, that in theadministration of justice truth will out, unless by reason of the character of theinformation or the relationship of the recipient of the information to theinformant a more important public interest is served by protecting theinformation or identity of the informant from disclosure in a court of law (Citations omitted.)[65] Campbell was a very different case from the present. The plaintiff was a schoolteacher employed by the defendant. She was injured by a boy she alleged thedefendant knew to be dangerous and unbalanced, and she sought discovery of alldocuments in the defendant's possession relating to the boy, including psychologists'and psychiatrists' reports. The court considered the documents crucial to the plaintiff'sclaim and that there was a real risk of the plaintiff being denied justice if they werenot disclosed. Quite aside from the factual differences between a case such as15 Campbell v Tameside Metropolitan Borough Council, above n 11, at 1075.Campbell and the present, the confidential information the plaintiff wished to have inthat case was not obtained on the strength of any assurance she had given.[66] Mr Long submitted that there has been a change in the position which prevailedat the time Mr Greenbaum signed his application form and thereby gave the waiver.Mr Greenbaum has pleaded a case, the defendants have not applied to strike it out, andMr Greenbaum is serious about pursuing the matter. Mr Long submitted thatMr Greenbaum did not forego his rights to discovery by giving the waiver.[67] By his waiver, Mr Greenbaum authorised Southern Cross to obtain informationfrom third parties for the purpose of making a decision on whether or not to credentialhim; consented to the provision of such information; and agreed that informationmight be provided in confidence and not disclosed.[68] A waiver or acknowledgement such as this may not always be relevant ordeterminative but Mr Long's arguments in the context of this particular case are notpersuasive. This is a proceeding brought by, as opposed to against, Mr Greenbaum inwhich he would have a third party, who has no interest in the case, breach a confidencein information that was only ever obtained because of his undertaking. We acceptMr Ross's submission that Mr Greenbaum's application for credentials would neverhave been considered but for that waiver.[69] Nor is there anything in the point that Mr Greenbaum has pleaded a case.Section 69 only applies if a proceeding is on foot.[70] We note that this court has upheld a claim to confidentiality in respect ofinformation received on an undertaking that the information would be keptconfidential. For instance, in Dotcom v Attorney-General, Winkelmann J declined toorder disclosure of the identity of a party who had allowed the police to installsurveillance cameras on his or her property on the ground his or her identity would bekept confidential.16 That said, the material was not critical to the plaintiffs' case andany unfairness could be met in another way. In Financial Markets Authority v Hotchin,Winkelmann J was required to consider numerous documents that the defendants were16 Dotcom v Attorney-General [2013] NZHC 695 at [29].seeking from the Financial Markets Authority, including documents received fromthird parties.17 The FMA asserted confidentiality in many of the documents. TheJudge allowed redactions.18 We doubt whether this case could be resolved in the sameway because Mr Greenbaum will need to know the source of the information providedif he is to have any prospect of sheeting home liability to WDHB.Privacy Act 1993[71] Mr Long was also critical of the Judge's reference to the Privacy Act as arelevant consideration. The Judge's reference to the Privacy Act was brief. The Judgesaid:[45] The privacy principles under the Privacy Act 1993, while also notbinding, are similarly relevant to the exercise of discretion under s 69.(Footnotes omitted.)[72] It is not apparent to us that this reference was made in the context ofthe evaluative material, rather than the comparative material that was also soughtwhen the matter was before the High Court. However, if a reference to the former,Mr Long submitted that the Privacy Act cannot be relevant to an application unders 69. Mr Long submitted that the information privacy principles in the Act do notcreate "standalone" legal rights and the Act provides that they might yield to otherlegal processes.19 He also submitted that the information privacy principles relate toan individual's private interest, not the public interest in disclosure.[73] The significance of the Privacy Act in the present case is that in legislatings 29(1)(b) of the Act — see [19] above — Parliament provided that an agency mightwithhold evaluative information supplied in confidence. This was no doubt becauseof the harm that disclosure might cause to whoever had supplied the information andthe provision of information in the future. The same considerations arise here.17 Financial Markets Authority v Hotchin, above n 6.18 At [41]–[42].19 Privacy Act, s 6.Third ground of appeal: failure to consider means of preventing or restrictingpublic disclosure of the evidence if given — s 69(3)(e)[74] In presenting this part of Mr Greenbaum's appeal, Mr Grimmer submitted thatMr Greenbaum had proposed alternative measures if the Judge were minded to directnon-disclosure. These alternatives were to make the documents available "on acounsel-to-counsel basis, or under some other controlled-access restrictions".Mr Grimmer submitted that the Judge did not consider these options.[75] Mr Grimmer submitted that, on reflection, "counsel-to-counsel" disclosuremight not be sufficient and that another option would be for Mr Greenbaum toundertake that he would not commence separate proceedings or seek to join otherparties to the existing proceeding without leave of the court. Mr Grimmer alsosubmitted that access to the courtroom could be restricted during the trial, andredactions made to the judgment to protect the identity of referees. Mr Grimmersubmitted such steps would minimise potential harm and allow Southern Cross toinform future referees it had gone to the "full extent possible" to protectthe confidentiality of referees. Mr Grimmer anticipated that a referee's main concernwould be the "stress and understandable embarrassment" of giving evidence.[76] None of these proposals negate the harmful consequences of disclosure withwhich we are concerned because Mr Greenbaum will know who spoke toSouthern Cross, and it will become known that Southern Cross was required todisclose information in respect of which it had guaranteed confidentiality.[77] We have not inspected the documents ourselves because we are not persuadedanything would be achieved by doing so. We assume the contents are adverse toMr Greenbaum, but we would not know whether the opinions expressed were honestlyor fairly held. If we ordered disclosure but allowed redaction of identifyinginformation, Mr Greenbaum's case would not be advanced particularly andSouthern Cross might still be affected adversely. We doubt the concerns of each ofMr Greenbaum and Southern Cross can be met by adopting an alternative approach.Conclusion[78] Taking all of these matters into account, we agree with the Judge that this wasa proper case in which to direct non-disclosure. We accept the information sought islikely to be important in the proceeding. On the other hand, this proceeding concernswhat are now relatively historical matters; there is no suggestion of egregious conductsuch as discrimination or anti-competitive activities; disclosure would be likely tocause harm to Southern Cross's access to information it requires; those who providedinformation in this case were promised confidentiality on the basis of Mr Greenbaum'sown waiver; and we are not persuaded that there is any way in which the informationcould be made available without causing harm.Result[79] We dismiss this appeal.[80] Costs follow the event. Mr Greenbaum must pay Southern Cross's costs for astandard appeal on a band A basis with usual disbursements.WILLIAMS J[81] I agree with the conclusion reached by Peters and Gendall JJ and broadly withtheir reasons. There are, however, two additional matters which I would emphasise.[82] First, s 69 gives the court an "overriding discretion" to protectthe confidentiality of communications where their disclosure is sought in proceedings.The task of the court is to balance competing interests. As the learned authors ofMahoney on Evidence note, the section is concerned only with competing publicinterests.20 On the one hand, there is the public interest in ensuring that relevantunprivileged material is disclosed to litigants. This goes to the right of parties to adispute to a fair trial according to law. On the other hand, there is the public interestin the need to avoid implicating the court's processes in disclosures that might harm20 Elisabeth McDonald and Scott Optican (eds) Mahoney on Evidence: Act and Analysis (4th ed,Thomson Reuters New Zealand, Wellington, 2018) at [EV69.04]; referring to Erceg v Erceg[2016] NZSC 135, [2017] 1 NZLR 310 at [13]; and Small v Body Corporate 324525 [2018] NZHC19 at [6].individuals or important relationships of confidence, or have a chilling effect morebroadly on the free flow of information in the context of such relationships.[83] A private interest such as that in holding the other side to a bargain ofconfidentiality will be relevant only if such bargain can be said to embody some widerpublic interest deserving of protection. Section 69 is not primarily a contractualenforcement mechanism.[84] For that reason, the waiver signed by Mr Greenbaum is not in and of itselfrelevant. Rather, its relevance is derivative. The important point is that it is evidencethat the hospital and Mr Greenbaum must be taken to have implicitly accepted thatconfidentiality between the hospital and its credentialling sources was importantbecause of the public interest in the free flow of honest information between thoseparties. Mr Greenbaum must have known and accepted that patient safety andwellbeing made it necessary for those confidences to be respected.[85] In this case, the public interest in protecting the relationship of candourbetween hospitals and those providing them with information relevant tocredentialling is obvious and it will be a weighty factor in the balancing exercise.[86] The second point I would make is that s 69 also requires the court to giveappropriate weight to the nature of the proceeding21 and the likely importance ofthe communication or information sought in it.22[87] This requires the court to make an assessment, as best it can, about howimportant the information sought might be in the applicant's assembling of their case.The fact that the respondent can establish the existence of a relationship ofconfidentiality whose protection is in the public interest is not an end to the matter.There is also a legitimate public interest in ensuring that such relationships are notabused. Section 69 was not intended to prevent those injured by unlawful behaviourfrom obtaining a remedy in court. It should not protect a confidential source whose21 Evidence Act, s 69(3)(c).22 Section 69(3)(b).motive was, for example, not patient safety and wellbeing; but irrelevant personalenmity, professional competition, racism, or similar.[88] This is so for two reasons. First, it would be an abuse of the court's processesto prevent the disclosure of communications that might demonstrate these improperpurposes. Secondly, where a communication is made for some improper purpose, thereason for keeping communications within the relationship confidential falls away.There is no public interest in encouraging dishonest communications made for animproper purpose. When in doubt, the court can always inspect the documents foritself.[89] It is important therefore to properly consider the nature of the allegations in theapplicant's pleading and the argument as to why the confidential communications maybe relevant to them. The key allegation in the amended statement of claim is thatDr Watson and the WDHB spread misinformation about Mr Greenbaum's competenceand character. It suggests that the instigator of that "campaign" of lies was Dr Watsonand that other third parties had advised Mr Greenbaum they had been approached tojoin this campaign. Mr Greenbaum alleged the campaign amounted to deceptiveconduct under the Fair Trading Act, negligent misstatement and/or a restrictive tradepractice under the Commerce Act.[90] Dr Watson's comments to the respondent have been disclosed. He suggestedthat Waikato Hospital held an affidavit from one of its staff regarding sexual innuendoand bullying, that Mr Greenbaum was "disruptive", and that staff were uncomfortableworking with him. A report following a discussion with Dr Watson and another personalso notes that Mr Greenbaum failed to turn up when rostered, bullied general (that is,non-medical) staff, and lacked the necessary skill to do some of the kinds of surgeryfor which he was hired. These views, if honestly held, are the very sort ofcommunication the public interest in the free flow of credentialling information isdesigned to protect.[91] Weighed against that is Mr Greenbaum's allegation that others were asked tojoin in this malicious or negligent campaign of lies and had told him so. Anycommunication between those individuals and the alleged campaigners is clearly notconfidential. Mr Greenbaum is aware of the alleged content of such communicationsbecause those individuals allegedly told him what was said. Significantly, they havenot provided affidavits in support of this application. Beyond that, Mr Greenbaummerely has allegations. There is no basis in the disclosures thus far to give reasonablecause to suspect that relationships of confidentiality were abused by the respondent'ssources in the ways alleged.[92] Without smoke, that confidentiality ought to be respected. The fact that thesources have not complained to the MCNZ about Mr Greenbaum's behaviour orcompetence is too speculative to be suspicious. Such failure may well simply bebecause once he had left their employment, the WDHB had no appetite for beingdragged into proceedings before or about the MCNZ's disciplinary function.[93] In the foregoing circumstances, allowing disclosure would permit the applicantto embark on a fishing expedition in which the mere levelling of an allegation wouldundermine the relationship of candour protected by s 69.[94] I too am satisfied that the public interest in protecting the confidentiality ofthe respondent's sources and the free flow of information between those sources andthe respondent outweighs the public interest in requiring such information to bedisclosed.Solicitors:Braun Bond & Lomas, Hamilton for AppellantChapman Tripp, Auckland for Respondent