BLUM v ANZ BANK NEW ZEALAND LIMITED CA241/2014 [2015] NZCA 335

BLUM v ANZ BANK NEW ZEALAND LIMITED CA241/2014 [2015] NZCA 335 [28 July 2015]NOTE: SUPPRESSION ORDERS MADE IN THE HIGH COURT REMAININ FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDCA241/2014[2015] NZCA 335BETWEEN MARKUS LEOPOLD BLUMFirst AppellantGLOBAL PRESTIGE BRANDSLIMITEDSecond AppellantAND ANZ BANK NEW ZEALAND LIMITEDRespondentHearing: 17 June 2015Court: Randerson, Wild and French JJCounsel: J K Goodall and A Mitra for AppellantsP R Jagose and R M Dixon for RespondentJudgment: 28 July 2015 at 11 amJUDGMENT OF THE COURTA The appeal is dismissed.B The appellants are to pay the respondent's costs as for a standard appeal ona band A basis with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Wild J)Introduction[1] The issue on this appeal is whether the appellants may disclose confidential information inadvertently released to them by ANZ Bank New Zealand Ltd (ANZ).[2] The appeal is from a judgment of Thomas J delivered in the High Court at Auckland on 15 May 2014.1 The Judge made orders permanently restraining the appellants from disclosing any of the confidential information except for the facts that Mr Blum:(a) requested details from ANZ of its trade finance loans to his company Global Prestige Brands Ltd (Global); and(b) when he received those details by email, also received, inadvertently, disclosure of confidential information.[3] We are unable to identify any public interest in the proposed disclosure, certainly none sufficient to warrant disclosing information the appellants admit is confidential and is the property of ANZ.BackgroundEvents leading to receipt by Mr Blum of ANZ's confidential information[4] Global was a customer of ANZ. Mr Blum was the sole director and shareholder of Global. ANZ lent Global money. One of the loan securities was a personal guarantee from Mr Blum.[5] Periodically between September 2011 and May 2013, at Mr Blum's request, ANZ emailed Mr Blum details of Global's indebtedness to ANZ.[6] On 6 June 2013 Mr Blum met with Mr Bullivant of ANZ. The meeting was requested by Mr Bullivant. At the time Global owed ANZ approximately $566,000. Mr Bullivant told Mr Blum ANZ was not prepared to allow Global's persistently1 ANZ Bank New Zealand Ltd v Blum [2014] NZHC 640. Thomas J initially delivered an embargoed version of her judgment on 2 April 2014 but, in order to deal with some points raised by counsel, recalled it and reissued it on 15 May.high level of indebtedness to continue and required a resolution. Mr Blum responded, "It is what it is". He then handed Mr Bullivant 40 pages of an ANZ report containing detailed information. He told Mr Bullivant, "I think the ANZ Bank has bigger issues to deal with than I," adding, "This is an issue above your or I's pay grade". Mr Blum then explained to Mr Bullivant that these 40 pages were part of a much longer report ANZ had sent him about one and a half weeks earlier. Mr Blumsaid he had "visibility" of other reports, but would not expand on this and would notsay how he had come into possession of the report. He told Mr Bullivant he waswilling to work with ANZ to prevent the information "leak" reoccurring.[7] Mr Bullivant then handed Mr Blum a new formal demand for repayment, by 5 pm on Monday 10 June 2013, of Global's indebtedness. After Mr Blumacknowledged that he was "crystal clear" as to the implications of not meeting thisdemand, the meeting ended.[8] ANZ immediately set about investigating what the 40 pages were and howthey had got into Mr Blum's hands. It quickly became apparent they were from a confidential ANZ Report (the ANZ Report) containing details of the banking arrangements of a substantial number of ANZ customers. Instead of emailing MrBlum just the details of Global's indebtedness to ANZ, the Bank had inadvertently emailed him the whole Report. Mr Blum could open that by double-clicking on the attachment to the email. The Report had also been sent inadvertently to some ofANZ's other customers.[9] On 13 June 2013 ANZ wrote to Mr Blum. The letter thanked Mr Blum fordrawing to the Bank's attention that it had inadvertently disclosed to himconfidential information relating to other customers. It required him, by midday on Monday 17 June 2013, to agree, by completing an enclosed statutory declaration, not to disclose the confidential information to any other person or use it for any purposewhatsoever and to destroy all copies of the information he had. Failing Mr Blum'sagreement, the letter advised ANZ may issue a proceeding without further notice.[10] At 12.29 pm on 17 June Mr Blum emailed ANZ. The email stated:I am being advised by Bruce Stewart QC in relation to this matter.Mr Stewart is in meetings for whole of today, and is unavailable to provide me with the advice I require today.Accordingly he has asked that I request from you, a 24 hour delay in proceedings.[11] At 12.53 pm ANZ responded that it was only prepared to consider the delay Mr Blum sought on receipt of his written undertaking not to use the confidential information he had for any purpose other than obtaining legal advice.[12] Having not received that undertaking from Mr Blum, later on 17 June ANZ applied, ex parte, for orders restraining disclosure by the appellants.Procedural history[13] Keane J made the following orders on 17 June:23.1 until further order of the Court, the defendants are to:(a) return forthwith to the plaintiff all hard copies of the ANZ Report and other ANZ confidential information in their power, possession, or control;(b) delete irretrievably all electronic copies of the ANZ Report and other ANZ confidential information in their possession or control;(c) file and serve an affidavit within three working days of theseorders confirming the defendants' compliance with thepreceding orders;3.2 until further order of the court, the defendants are prohibited fromotherwise using ANZ's confidential information for any purposewhatsoever;[14] The appellants filed a statement of defence on 21 August 2013. In summary this:(a) admitted the information in the ANZ Report was ANZ's property untilANZ released it to "certain of its customers";2 ANZ Bank New Zealand Ltd v Blum HC Auckland CIV-2013-404-3174, 17 June 2013 (Interlocutory Orders of the Honourable Justice Keane).(b) alleged the ANZ Report was not confidential if customers' nameswere deleted from it;(c) alleged the appellants had no obligation of confidence in respect ofthe ANZ Report, provided customers' names were deleted from it;(d) denied Mr Blum had, at the meeting on 6 June 2013, threatened to misuse the confidential information in the ANZ Report;(e) denied Mr Blum had intended to convey to ANZ that the appellants would work with ANZ to keep the ANZ Report confidential inexchange for favourable treatment by ANZ of Global's debt to theBank, failing which the appellants would disclose the Report and its inadvertent release by ANZ; and(f) admitted they had not complied with ANZ's letter of 13 June as at thedate of the statement of claim, but stated they had complied with the interim orders of Keane J.[15] The statement of defence also pleaded an affirmative public interest defence. The nub of this was in these paragraphs:21. The release of the ANZ Reports to the defendants and other customers of the bank constitute:(a) A breach of the Privacy Act 1993;(b) A breach of the Code of Banking Practice;(c) A breach of contract between the bank and its customers recorded in the ANZ Reports; and(d) A breach of the bank's duty of care owed to the customers named in the ANZ Reports.24. It is in the public interest, and therefore not a breach of confidence, that the defendants be permitted to disclosure [sic]:(a) To the customers named in the ANZ Reports: the fact their personal information has been disclosed;(b) To the public: the ANZ Reports with all customer names redacted.[16] The proceeding was heard by Thomas J on 10 March 2014.[17] On the morning of trial the appellants' counsel, Mr Stewart QC, was grantedleave to amend the statement of defence, essentially to abandon (a), (b) and (c) set out in [14] above. Thus, the appellants abandoned their contention that anonymising the ANZ Report removed its confidentiality. The issue for trial then became: what could Mr Blum disclose about the fact, and the circumstances, of the inadvertent disclosure of the ANZ Report?[18] Thomas J delivered her judgment on 2 April 2014. After counsel had sought clarification of what could and could not be disclosed, Thomas J recalled her judgment and reissued it on 15 May. As sealed, the judgment contained these orders:31 the first defendant is entitled to disclose the following facts only: that herequested from the Bank details of the second defendant's Trade FinanceLoans and when he received those by email he also received inadvertent disclosure of confidential information;2 the defendants are otherwise immediately restrained from using the confidential information for any purpose;3 the defendants must immediately return to the Bank all hard copies of the report and other Bank confidential information in their possession or control;4 the defendants must immediately and irretrievably delete all electronic copies of the report and other Bank confidential information in their possession or control and within three working days of these orders file an affidavit with the Court confirming that such deletions have been made;[19] The appellants have complied with those orders.3 ANZ Bank New Zealand Ltd v Blum HC Auckland CIV-2013-404-3174, 14 July 2014 (Sealed Orders).[20] In a minute, also issued on 15 May, Thomas J ordered that the judgment for public release be redacted and that anything the subject of the confidentiality findings be permanently suppressed.4Events since judgment[21] Mr Blum was adjudicated bankrupt on 22 May 2015, on the application of the Bank of New Zealand.[22] Counsel provided us with a letter dated 10 June 2015 from Meredith Connell,acting for the assignee of Mr Blum's bankrupt estate. The letter advised "the Assignee does not object to Mr Blum continuing the appeal". It added "the Assignee proffers no view on whether the appeal rights have vested [in the Assignee]".[23] Mr Jagose advised us ANZ, likewise, did not oppose Mr Blum pursuing this appeal.[24] Global was placed in receivership on 27 June 2013, but the receivership ended on 4 July 2014 and the Company was returned to its proprietor. Mr Blum'swife is currently the sole director and shareholder of Global.[25] On 12 February 2015, in response to a request from Mr Blum, ANZ declinedMr Blum consent to disclose ANZ's confidential information to the BankingOmbudsman in support of a complaint against ANZ. ANZ pointed out "Yourproposed actions would be in breach of the High Court's orders, which prevent you using our confidential information "for any purpose"." ANZ advised Mr Blum it had asked its solicitors, Chapman Tripp, to "engage with your counsel, Bruce Stewart QC[,] in this regard".[26] On 26 February 2015 Mr Blum wrote again to ANZ advising:The NZ Banking Ombudsman's office have advised us that under paragraph27.6 of their Terms of Reference they are only able to consider a complaintwhich "is not, has not and does not during the course of their investigation come before any court, tribunal or arbitrator".4 ANZ Bank New Zealand Ltd v Blum HC Auckland CIV-2013-404-3174, 15 May 2014 [Minute of Thomas J].We are therefore left with little alternative but to place this matter before the relevant Statutory Authorities and intend to proceed by sending a copy of our complaint & supporting information, albeit in a redacted form so as to comply with the orders of the NZ High Court, to the following: NZ Ministry for Economic Development: Attn: Stephen Joyce New Zealand FMA Australian FOS Australian Privacy Commissioner at the OAICAs a matter of courtesy we will forward a copy to the ANZ's MelbourneHead office.Mr Goodall advised us Mr Blum has not "followed through" on any of these steps.Submissions on appeal[27] ANZ accepts Thomas J's order 1 (set out in [18] above) permits Mr Blum to disclose that:(a) he received inadvertent disclosure of confidential information from ANZ;(b) the error arose from emails sent by ANZ to the appellants between 2011 and 2013; and(c) those emails contained details of the appellants' bankingarrangements.[28] Mr Blum argues he should also, in the public interest, be entitled to disclose:(a) some of the detail in or of the ANZ Report; and(b) the number of ANZ customers (in addition to Global) to whom the ANZ Report had inadvertently been sent.[29] Mr Goodall submitted these further disclosures should be permitted because they would not involve a breach of confidence by Mr Blum or, alternatively, the affirmative defence of public interest is available to Mr Blum.Would the further disclosures involve a breach of confidence?[30] Mr Goodall advanced his submission that the further disclosures would not involve a breach of confidence on three broad bases.Case law[31] He submitted Thomas J erred in distinguishing the English Court of Appeal'sdecision in R v Department of Health, ex parte Source Informatics Ltd, the primary authority relied on by the appellants at trial.5 Source Informatics Ltd obtained information from general practitioners and pharmacists about drugs prescribed for patients, using the information in prescription forms. It sold the resulting data in anonymised form (that is, having deleted the names of patients) to drug companies. In finding it would not be a breach of confidence for general practitioners or pharmacists to disclose that information, the Court held:6The concern of the law here is to protect the confider's personal privacy.That and that alone is the right at issue in this case. The patient has no proprietorial claim to the prescription form or to the information it contains.[32] In his statement of defence, amended on the morning of the trial, Mr Blumadmits the information contained in the ANZ Report is confidential and "was ANZ's exclusive property".[33] We cannot improve on the way in which Thomas J distinguished Source Informatics:7[57] Source Informatics Ltd would be analogous to the case before the Court if a bank customer sought to prevent the Bank providing to a thirdparty information regarding the Bank's [banking] arrangements withcustomers but where the privacy of customers was guaranteed. In otherwords where the information at issue was to be released at the request of the owner of it, the Bank. In this case, however, the defendants have no5 R v Department of Health, ex parte Source Informatics Ltd [2001] QB 424 (EWCA).6 At [34].7 ANZ Bank New Zealand Ltd v Blum, above n 1.ownership of the confidential information at issue. The information is notMr Blum's to anonymise.[34] Despite the appellants admitting ANZ had exclusive ownership of the information in the ANZ Report, Mr Goodall submitted Global owned its own information. We need not resolve that because ANZ does not oppose Global disclosing its own banking arrangements with ANZ and the level of its debt to ANZ.We simply comment that the appellants' desire to disclose this information is difficult to reconcile with their professed concern at ANZ's inadvertent disclosure to others of that same information.[35] As noted in [17] above, on the morning of trial the appellants abandoned their contention that anonymising the ANZ Report removed its confidentiality. Inconsistently with that, Mr Goodall contended the "material part" of the confidential information in this case is the customers' identities and banking details.He submitted Source Informatics established that a person to whom confidential information is disclosed will only be liable for breach of confidence if their misuse relates to a material part of the information.8 Since the appellants do not propose todisclose the customers' identities, Mr Goodall argued there would be no breach ofconfidence in respect of material parts of the information in the ANZ Report. We do not accept this. Source Informatics can be distinguished from the present case on the basis the only confidential information in that case was the patients' identities; here,all the detail in the ANZ Report is confidential.[36] Mr Goodall also cited London Regional Transport & Anor v Mayor of London and Peninsular Real Estate Limited v Harris in support of the proposition not every use of confidential information constitutes a breach of confidence.9London Regional Transport concerned the proposed publication of a report that drew on confidential tender information about a public-private partnership model for funding London public transport. The Court allowed publication of a redacted version of the report because the confidential details could be sufficiently protected8 Mr Goodall also referred to Tanya Aplin and others Gurry on Breach of Confidence: The Protection of Confidential Information (2nd ed, Oxford University Press, Oxford, 2013) at [15.10]9 London Regional Transport v Mayor of London [2001] EWCA CIV 1491, [2003] EMLR 4;Peninsular Real Estate Limited v Harris [1992] 2 NZLR 216 (HC).in that way, and the partly public nature of the issue meant there was a strong public interest in disclosure.10[37] In Peninsular, the High Court held former employees could not be preventedfrom using customer details held in their "genuine unaided memory".11 But, whereas the former employees in Peninsular had routinely acquired customer information in the course of their employment (they were real estate salesmen), Mr Blum admits it was "immediately apparent" to him when he opened the ANZReport that it contained confidential information not meant for him.[38] Thus, upon their distinctly different facts, we accept that London Regional Transport and Peninsular are instances of the courts not upholding blanket confidentiality. Significantly, both judgments emphasised how fact-dependent the decision in each case must be. It depends on whether the disclosure would — in the circumstances — be unconscionable, a test to which we now turn.Unconscionability[39] Next, Mr Goodall submitted the disclosures Mr Blum wanted to make ofANZ's confidential information would not involve a breach of confidence. As to thelegal test, and the factors relevant to its application, Mr Goodall referred to thisCourt's judgment in Hunt v A.12 In that case the issue was whether Ms Hunt had breached confidence by publishing a book about civil, criminal and professional disciplinary proceedings against a health professional referred to in the judgment as'A'. Those proceedings arose out of a patient's allegations that A had sexually abused her while she was A's patient. On what it accepted was law not yetdefinitively resolved, this Court held the most satisfactory principle on which to determine breach of confidence is:13 to determine whether [the] third party recipient of confidentialinformation has acted unconscionably in relation to the acquisition of the information or in the way in which it has been employed.10 London Regional Transport v Mayor of London, above n 9. See also Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 (HCA) at 51–52.11 Peninsular Real Estate Limited v Harris, above n 9, at 221.12 Hunt v A [2007] NZCA 332; [2008] 1 NZLR 368 at [92]–[93].13 At [92].This Court then said:[93] When so approached, the factors to be considered in a given case will include: the nature of the information; the state of knowledge of the acquirer of the confidential information; the extent of any breach; what kind of detriment has or might result to other parties; and the degree of"culpability", as it were, of the third party acquirer and discloser. This is notof course, a closed list of the considerations which may be appropriate in a given case.[40] Applying that test, Mr Goodall advanced four reasons why the disclosures Mr Blum seeks to make would not be unconscionable. His first point was that ANZaccepts, and Thomas J held, that Mr Blum can disclose the fact of ANZ's inadvertentdisclosure to him.[41] Building on that, Mr Goodall's second point was that the further disclosuresMr Blum seeks to make "simply provide the context to the disclosure alreadypermitted. It contains no confidential information relating to customer bankingdetails or customer identities". We do not accept that. Essentially, Mr Blum isseeking to disclose the information set out in [28] above. This would not merelyprovide "context" to the fact of the inadvertent disclosure; it involves disclosure ofsome of the detail in or of the ANZ Report. This is inconsistent with Mr Blum'sacceptance that merely anonymising the ANZ Report would not remove its confidentiality.[42] Thirdly, in Hunt the alleged breach of confidence had already occurred (in the form of the publication of a book); here Mr Goodall submitted the appellants, acting in good faith, had not disclosed any part of the ANZ Report and have agreed to allow the Court to determine the extent of permitted disclosure.[43] We accept the appellants have not disclosed the ANZ Report. As to their good faith, we consider the appellants began by attempting to use their possession of the confidential information for commercial advantage, and now seek to do so in order to damage ANZ. We address this further at [56](g) below. We also note that inHunt the appellant obtained the confidential information from, and with the informedconsent of, the patient, who did not object to the disclosure.14 Hunt was not an inadvertent disclosure case.[44] Fourthly, Mr Goodall argued ANZ's customers "would have legitimateconcerns in relation to the breaches". We deal with this point in [56] below. For themoment, it suffices to say that protecting ANZ's customers is primarily, and certainlyin the first instance, a matter for ANZ.Proportionality[45] Mr Goodall's final broad submission was that any injunction restraining disclosure about the ANZ Report should not extend further than is reasonably necessary to protect the confidential information in the Report. Mr Goodall argued the orders made by Thomas J extend beyond protecting the confidentiality of theinformation in the Report "to concealing the ANZ's breaches" in inadvertently disclosing the Report to customers. That, in Mr Goodall's submission, "would set aconcerning precedent allowing persons to suppress errors and breaches of duty". MrGoodall sought to reinforce this point by referring to the judgment of the High Court in Earthquake Commission v Krieger and to s 14 of the New Zealand Bill of Rights Act 1990.15[46] Section 14 provides:Freedom of expressionEveryone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.[47] The answer to Mr Goodall's reliance on s 14 is surely that, in terms of s 5 of the Bill of Rights Act, preventing a person from disclosing this type of confidentialinformation is a "reasonable limit prescribed by law" and one which can "be demonstrably justified in a free and democratic society".16 If that were not so, it would spell the end of the ability to confide (for examples, in a close friend, a doctor,14 Hunt v A, above n 12, at [96]–[97].15 Earthquake Commission v Krieger [2013] NZHC 3140; [2014] 2 NZLR 547.16 Refer Earthquake Commission v Krieger, above n 15, at [86].a priest, a legal adviser or in a business or commercial context) with all the resulting consequences.[48] Here, a restriction on Mr Blum's freedom of expression is rationallyconnected to the important objective of protecting commercially sensitive and private information owned by ANZ and inadvertently disclosed.[49] We readily accept that the orders restraining Mr Blum should not be wider than is necessary to protect the confidential information in the ANZ Report.17 Andthat was precisely what Mr Goodall submitted: "any relief should not extend beyond the protection of confidential information". Thomas J's orders did no more thanrestrain the appellants from disclosing the confidential information in the ANZ Report. They do not prevent Mr Blum disclosing the fact of his inadvertent receipt of confidential information from ANZ or from expressing opinions about ANZ generally, so long as the confidential information in the ANZ Report is not revealed.[50] Mr Goodall also submitted Thomas J erred in drawing this distinction:[53] What makes this intended disclosure different from disclosure of themere fact of the Bank's mistake is that it involves the use of informationcontained within the report.[51] Mr Goodall argued:(a) even the fact of inadvertent disclosure involved Mr Blum using the ANZ Report: only when he opened the Report did he appreciate it was confidential;(b) so, logically, Thomas J should also have permitted disclosure of some of the detail of the Report (except the names of other customers).[52] Right from the time he filed his statement of defence on 21 August 2013, Mr Blum admitted it was "immediately apparent" to him that the ANZ Report wasconfidential information. So (a) is correct. But we do not accept (b). As Mr Goodall stressed, not every disclosure of confidential information should be17 See Earthquake Commission v Krieger, above n 15, at [88].restrained and we agree with Thomas J that the mere fact of inadvertent disclosure of the Report by ANZ should not be suppressed. But we do not accept it follows logically that Mr Blum should be able to disclose the detail in or of the ANZ Report set out at [28] above. Thomas J correctly distinguished between the fact of disclosure and detail of the confidential information disclosed.Is the affirmative 'public interest' defence available to Mr Blum?[53] Although Mr Jagose was reluctant to accept it, we are in little doubt thatANZ's inadvertent disclosure of the ANZ Report constituted a breach of confidence, at least in terms of ANZ's contractual banker/customer relationship with those customers whose banking information it disclosed to other customers.[54] We do not, because we need not, attempt a definitive statement of the current ambit of the 'public interest' defence to breach of confidence in New Zealand. For the purposes of this judgment we accept the defence might potentially be raised tojustify disclosure of confidential information in order to uncover "almost any civil wrong".18 Likewise, because a claim for breach of confidence is an equitable remedy, we accept the 'public interest' defence can usefully be viewed as anextension of the equitable 'unclean hands' defence.19 It follows, from our finding that ANZ breached the confidence of its customers, that we accept the 'public interest' defence is potentially available to Mr Blum.[55] When the defence is available and is pleaded, what the Court needs to decide is whether the public interest in the protection of confidential information is outweighed by the public interest in disclosure of the confidential information.20The onus is on the party seeking to disclose confidential information to identify and establish the public interest.21 This onus is not readily able to be discharged: the courts draw a distinction between matters that are in the public interest and those that are merely of interest to the public.22 Moreover, the test is not only whether the18 Aplin and others, above n 8, at [16.12].19 Gino Dal Pont and Don Chalmers Equity and Trusts in Australia (6th ed, Thomson Reuters, Sydney, 2015) at [6.295].20 Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109 (HL) at 282.21 Attorney-General v Guardian Newspapers (No 2), above n 20, at 269; European Pacific Banking Corporation v Fourth Estate Publications Ltd [1993] 1 NZLR 559 (HC).22 Lion Laboratories Ltd v Evans [1984] 3 WLR 539 (CA (Civ)).information is a matter of public interest, but whether in all the circumstances it is in the public interest that the duty of confidence should be breached.23[56] We consider seven factors need to be balanced in determining which of those two competing public interests prevails here:(a) Inadvertent: ANZ's disclosure was inadvertent, not calculated ormalicious.24(b) Matter of public interest?: This matter concerns a bank and its customers, albeit a bank which is both a publicly listed company and the largest trading bank in New Zealand. It does not concern a branch of central or local government or some other public body or entity which has made or is contemplating making a decision that will affect the public and is therefore of public interest or concern.25 The details of what ANZ inadvertently disclosed to some of its customers about other of its customers is simply not a matter of public interest.(c) Adequacy of steps taken by ANZ: Once Mr Blum had informed ANZ of its inadvertent disclosure, ANZ promptly investigated and has taken steps to contain any consequent damage to its customers, including by bringing this proceeding. Mr Blum criticises those steps as inadequate. But, as Mr Goodall accepted, assessing what steps to take in the situation confronting ANZ involved difficult decisions, carrying a risk that a step(s) might cause damage rather than prevent or contain it. And it is, after all, for ANZ to decide how best to protect the interests of its customers.(d) ANZ simply trying to protect its reputation?: Mr Goodall submitted ANZ in this proceeding seeks only to protect its reputation and is notconcerned about its customers' interests. We do not accept that. The23 HRH Prince of Wales v Associated Newspapers Ltd [2008] Ch 57 at [68].24 See Hunt v A, above n 12, at [92] regarding unconscionability.25 See Earthquake Commission v Krieger, above n 15, at [76]; London Regional Transport v Mayor of London, above n 9.submission overlooks that a bank without customers is no bank at alland that a bank's reputation is largely its customers' view of the bank.Reputation and concern for customers are inextricably linked and are really two sides of a single coin. Mr Goodall accepted the force of this point when the Court put it to him.(e) Risk of future damage?: As a result of its inquiries of customers, ANZ has concluded the risk of its inadvertent disclosure causing damage to customers in the future is negligible and that, accordingly, further steps are neither needed nor appropriate. ANZ accepts there are two qualifications to this: one customer to whom the confidential information was disclosed cannot be traced; a second has not been contacted because the bank assesses that could be counterproductive.(f) Passage of time: Relevant to (c)–(e) above are the facts that the lastof ANZ's inadvertent disclosures was in April 2013 and, in theintervening two years plus, no other customer (other, that is, than the appellants) has raised a concern with ANZ. We infer the other customers to whom the confidential information was inadvertently disclosed are either unaware of that fact or are not concerned by it. By 'not concerned' we envisage, for example, customers who realised confidential information had inadvertently been sent to them and simply deleted it.(g) Mr Blum's motives: The ANZ Report was first inadvertently emailed to Mr Blum in September 2011. It was then sent to him again in subsequent emails, the last in May 2013. Mr Blum claims he first became aware the ANZ Report had been sent to him when working on his computer in June 2013. Yet he only alerted ANZ to its error at the meeting on 6 June 2013, when confronted by Mr Bullivant with a demand that steps be taken to repay Global's substantial indebtedness.We infer Mr Blum did that seeking to obtain a commercial advantagein terms of Global's debt. Then, when it became apparent ANZ wasnot willing to offer this, we infer Mr Blum's motivation turned to adesire to cause damage to ANZ by disclosure to the Banking Ombudsman, the Ministry for Economic Development and to the other regulatory authorities listed by Mr Blum in his 26 February 2015 letter to ANZ. In short, Mr Blum's motives are anything but altruistic or public-minded.[57] A balancing of these seven factors leads us overwhelmingly to the conclusionthat the public's interest in having confidential information protected well outweighsany interest or benefit to the public in receiving the confidential information Mr Blum seeks publicly to disclose.[58] It follows that Thomas J was right to hold that Mr Blum had not discharged the onus he carried of establishing his public interest defence.To what extent should the Courts' decisions be suppressed?[59] To give effect to the orders she made in her judgment, Thomas J made the two orders to which we referred in [20] above:26[5] The judgment for public release will be redacted as proposed and agreed between counsel.[6] Orders are made permanently suppressing from publication anything in the court file the subject of the confidentiality findings.[60] Mr Goodall submitted those orders were based only on the Judge's findingsof breach of confidence, without regard to the law concerning suppression. While disclosure of the details in the ANZ Report might involve a breach of confidence, it did not warrant suppression. Mr Goodall submitted the proper extent of suppression orders should govern and limit relief granted to prevent disclosure of confidential information.[61] In advancing these submissions Mr Goodall relied on two successive orders made by the United States District Court of the Northern District of California in26 Minute of Thomas J, above n 4.Rocky Mountain Bank v Google, Inc.27 In that case, an employee of Rocky Mountain Bank inadvertently sent confidential banking details of 1,325 customers to the wrong email address. The Bank sought a court order that Google, which held the email account to which the information was sent, disclose information about the account, and sought to have the court file sealed. In its 18 September 2009 ruling, the Court held that:28An attempt by a bank to shield information about an unauthorized disclosure of confidential customer information until it can determine whether or not that information has been further disclosed and/or misused does not constitute a compelling reason that overrides the public's common law rightof access to court filings.[62] Even if a decision of the United States District Court is of persuasive authority, Rocky Mountain Bank does not advance Mr Goodall's argument. Incontrast with the present case, no confidential customer information was disclosed inRocky Mountain Bank's pleadings or motion papers at the interlocutory stage.Further, the Court noted that if disclosure of such information became necessary at a later stage, then those parts of the filings could be sealed.[63] More fundamentally, Mr Goodall's submissions put the cart before the horse.The first question for Thomas J was: to what extent, if any, should Mr Blum be permitted to disclose the confidential information inadvertently sent to him by ANZ? The second question was: what suppression orders should be made? The first question must necessarily be determined before the second, because the appropriate suppression orders were those necessary to give effect to the orders the Court made restraining disclosure of confidential information. After all, it would be pointless for the Court to make orders restraining disclosure of confidential information if it did not also make orders suppressing publication of any parts of the proceeding or of the judgment which recorded the confidential information in issue.[64] We have referred to appropriate suppression orders relating both to the proceeding and the judgment, because Mr Goodall took the point that some of the27 Rocky Mountain Bank v Google, Inc 2009-CV-4385 (N D Cal, San Jose Div 2009), 18 September 2009; Rocky Mountain Bank v Google, Inc 2009-CV-4385 (N D Cal, San Jose Div 2009), 23 September 2009.28 At 3.information Mr Blum now wants to disclose came, not from the ANZ Report, but from documents made available by ANZ in the proceeding. We were referred in particular to an internal ANZ report dated 19 June 2013 reporting to ANZ's Board the results thus far of ANZ's investigation into its inadvertent disclosures. Whathappened in relation to this Report can be summarised in this way:(a) ANZ did not discover any documents relating to its investigations into its inadvertent disclosure.(b) Very shortly before the hearing, counsel for the appellants (Mr Stewart QC) requested counsel for ANZ to discover/disclose any such documents.(c) Counsel for ANZ advised he considered such documents irrelevant, but nevertheless gave counsel for the appellants two documents, eachmarked "confidential to counsel only". That endorsement, whichMr Goodall accepted was disclosure to counsel on a confidentialbasis, was intended to preserve ANZ's view that the documents were irrelevant, while enabling counsel for the appellants to check that for himself.(d) On the day of the hearing, Mr A M Gibbons of ANZ served asupplementary brief of evidence. This recorded counsel's request andannexed and produced a copy of the 19 June 2013 Board Report.[65] Mr Jagose submitted to us that the 19 June 2013 Report was disclosed to theappellants' counsel on a confidential basis and had no relevance to anything in issuein the proceeding. We do not accept the latter submission. As is clear from [56](c), we consider the adequacy of the steps taken by ANZ once it became aware of its inadvertent disclosure was a factor to be weighed in considering whether Mr Blum had made out his affirmative public interest defence.[66] Nevertheless, we see no error in the Judge suppressing details of those steps, and of the content of the 19 June 2013 Board Report. As we have said, it was aninternal ANZ report. It was only the raising by Mr Blum of his affirmative 'public interest' defence which obliged ANZ to disclose that Report. The appellants were entitled to have the Report for the purpose of advancing their defence. The Judge held the defence was not made out. We have upheld that. Disclosure of the Board Report would effectively undermine the primary orders made by Thomas J to protectANZ's confidential information.[67] Thomas J's orders set out in [59] above correctly extended to the 19 June 2013 Board Report and to any other documents disclosed by ANZ relevant to theappellants' affirmative 'public interest' defence.Result[68] The appeal is dismissed.[69] The appellants are to pay the respondent's costs as for a standard appeal on aband A basis with usual disbursements.Solicitors:Kevin McDonald & Associates, Auckland for AppellantsChapman Tripp, Wellington for Respondent