A little precis of the law of non-lawyer professionals’ duties of confidentiality

In Grego v Great Western Insurance Brokers Pty Ltd [2006] WASC 284, Justice Peter Blaxell of the Supreme Court of Western Australia, gave this little account of the duty of confidentiality owed by a non-lawyer professional to his or her client:

“It is well established that the professional relationship between an accountant and client is one which attracts a duty of confidence. As was said by Diplock LJ in Parry-Jones v Law Society [1969] 1 Ch 1, at 9:

‘What we are concerned with here is the contractual duty of confidence, generally implied though sometimes expressed, between a solicitor and client. Such a duty exists not only between solicitor and client, but, for example, between banker and customer, doctor and patient and accountant and client. Such a duty of confidence is subject to, and overridden by, the duty of any party to that contract to comply with the law of the land. If it is the duty of such a party to a contract, whether at common law or under statute, to disclose in defined circumstances confidential information, then he must do so, and any express contract to the contrary would be illegal and void. For example, in the case of banker and customer, the duty of confidence is subject to the overriding duty of the banker at common law to disclose and answer questions as to his customer’s affairs when he is asked to give evidence on them in the witness box in a court of law.’

In the same case, Lord Denning MR (at 6 – 7) referred to the privilege arising out of the confidence subsisting between solicitor and client, doctor and patient, banker and customer, accountant and client, and went on to state:

‘The law implies a term into the contract whereby a professional man is to keep his client’s affairs secret and not to disclose them to anyone without just cause (see Tournier v National Provincial & Union Bank of England [1924] 1 KB 461, 479 – 481).’

29 As to the question of what might constitute “just cause” for the disclosure of confidential information, the law imposes a fairly rigorous test. In A & Ors v Hayden (1984) 156 CLR 532 Gibbs CJ stated at 546 – 547 (in the context of a police investigation):

‘It is clear that a person who owes a duty to maintain confidentiality will not be allowed to escape from his obligation simply because he alleges that crimes have been committed and that it is in the public interest that he should disclose information relating to them. He bears the burden of establishing the facts upon which he relies to relieve him of the obligation.

… It would not be enough to justify the disclosure of the confidential information in the present case that the police have requested it. It would be necessary to show, at the very least, that there is reasonable ground to believe that any plaintiff whose identity it is sought to disclose is implicated in the commission of an offence.’

30 Similarly, in Grofam Pty Ltd v KPMG Peat Marwick (1993) 43 FCR 396, Olney J held at 403:

‘… a departure from an obligation to maintain confidentiality for the purpose of providing information to law enforcement authorities is justified only when the information is required in the course of the investigation of an actual or reasonably apprehended breach of the criminal law.'”

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