Breach of confidence

This ‘Breach of Confidence’ section of the Annotation provides a detailed analysis of this complex area of law, including commentary on each of the elements necessary to establish a case for protection in equity of confidential information.  For a more concise summary of this area of law as it relates specifically to the RTI context, including the necessary elements, please see the ‘Application’ Annotation.

Confidential information

It is a well-settled principle of law that where one party ('the confidant') acquires confidential information from or during his service with, or by virtue of his relationship with another ('the confider'), in circumstances importing a duty of confidence, the confidant is not ordinarily at liberty to divulge that information to a third party without the consent or against the wishes of the confider.

Attorney-General v Guardian Newspapers (No. 2) [1989] 2 WLR 805

Background

Information is conveyed in confidence when one party (Confider) imparts the information to another (Confidant), on the express or implied understanding that the information is for a restricted purpose: Dal Pont and Chalmers, Equity and Trusts in Australia 4th ed.

It is the confidant's obligation to keep the information confidential and a failure to do so is referred to as 'Breach of Confidence'. The Courts will restrain a confidant or hold them accountable for any breach of confidence: Dal Pont and Chalmers, Equity and Trusts in Australia 4th ed.

The accepted approach in Australia to an action for breach of confidence is to determine whether:1

a.   the information is confidential
b.   the information was imparted in circumstances importing an obligation of confidence; and
c.   there has been an unauthorised use or threatened use of the information.

Although all of the elements of the test must be satisfied, these elements are not in all cases completely independent of one another. For example, the circumstances in which the information is communicated may themselves dictate the confidentiality of the information in question.2

Gummows J's dissenting judgement in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic),3 summarised the relevant law and proposed additional elements to the test:

It is now well settled that in order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria. The plaintiff: (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question; and must also be able to show that (ii) the information has the necessary quality of confidence (and is not for example, common or public knowledge); (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence; and (iv) there is actual or threatened misuse of the information. … It may also be necessary… that unauthorised use would be to the detriment of the plaintiff.

Gummows J's dissenting judgement has since been applied and accepted in Australia as defining the elements of a breach of confidence action in equity.4 Each of the five elements outlined by His Honour are set out in detail below.

Criteria for establishing an equitable obligation of confidence

1. The confidential information is specifically identified

To establish a breach of confidence, the confider must establish with particularity, the information alleged to be confidential, so that it can be measured against the alleged or threatened breach.5 An identifiable use of specific confidential information, or at least circumstances from which an inference could properly be drawn as to the use of particular information, must also be shown.6

The following are reasons for this:

  • if information alleged to be confidential is not clearly defined, any injunction would be of uncertain scope and therefore difficult to enforce.7
  • the lack of proper particulars may compromise the defence of the action, as the defendant may not know what case he or she has to meet.8
  • an absence of specificity may raise the inference that the action is designed to harass the defendant, not protect the plaintiff, leading the court to strike it out as an abuse of process.9
  • where the allegation of misuse of confidential information imputes conduct of a gravely improper character, the law ordinarily demands clear particularisation;10 and;
  • the more general the information the plaintiff seeks to protect, the more difficult it is for the court to satisfy itself that information so described was imparted to or received by the defendant in circumstances giving rise to an obligation of confidence.

A plaintiff in a breach of confidence action has an obligation to identify the relevant confidential information precisely and with specificity. This is so the courts are able to frame injunctions accurately and other parties know when they are at risk of a claim of wrongfully using information.11 The courts have recognised the considerable risks that this imposes on the plaintiff and take some measures to manage them.12

This element is perhaps ancillary to the second element,13 as Dean considers that the insistence by the court that before information can be protected it must be capable of detailed identification has elevated identification of information to an importance equal to the nature of the information itself.14

The recent case of Manderson M & F Consulting v Incitec Pivot Ltd (No 2),15 highlights the importance of specifically identifying the information upon which an action for breach of confidence is sought to be raised. There, Croft J held that 'the absolutely critical element in the pleading of a claim of this kind [breach of confidence] is the identification or definition in specific, and not merely general, global terms, or on some inferential basis, of that which it is said to be the confidential information in question.'16 Further, 'all the other elements of the cause of action required, according to the relevant principles, to be pleaded are entirely dependent upon the identification of the confidential information to be protected.'17

Mason J in O'Brien v Komesaroff18 stressed that it is essential that the confidential information sought to be protected is precisely identified so that it is possible for a party to know when it is at risk of a claim of wrongfully using such information.19 Information can be characterised as public knowledge even though it is well known only in a particular industry or profession.20

Croft J in Manderson M & F Consulting v Incitec Pivot Ltd (No 2),21 provided the following analogy:

The approach is rather like, by way of simple example, identifying the problem that people become thirsty and need a satisfying, sustaining drink. The problem is solved, the purported provider of confidential information says, by a brown-coloured, sugar-flavoured, carbonated drink, which is described as the model. This model is said to have various "input parameters" and attributes - which include water, sugar, colouring, carbon dioxide and others. There are various options with respect to these inputs and parameters and various results are specified for the ultimate product by reference to examples of a number of variations. But how do you make the drink, what is the formula, hence what is the model? As in the present case, the model is sought to be defined in terms of a description of inputs and outcomes - but the heart of it, the model itself, is not identified or defined.

2. The Information has the necessary quality of confidentiality

The information must have the necessary quality of confidence to be protected in an action for breach of confidence.22 For information to have this quality, it must not be common knowledge or be in the public domain,23 or be mere 'trivial tittle-tattle'.24 The mere fact that a document is labelled as secret or confidential information does not necessarily make it so and the courts will look to the content rather than the form.25

The reasonable person test is primarily used to determine whether there is an obligation of confidence,26 however the test has also been applied to determine whether information is sufficiently secret to be capable of having the necessary quality of an obligation of confidence (the third element).27 In a sense it may be that the two limbs correlate, as a reasonable person would not be expected to assume that there was an obligation of confidence if the information in question was not confidential.28 The information does not have to be complex and the information can include photographs29 or videos.30 The courts have declined to protect a 'perfectly useless' system of picking winners in a horse race,31 and the 'utterly absurd' teachings of Scientology.32 Information that may be protected can also include commercial/technical information,33 government information34 or personal information.35

Novelty

Invention or novelty is not a prerequisite of confidential information.36 The mere fact that information is simple does not prevent it from being confidential,37 although information that is obvious or commonly known cannot be confidential. 38 To establish confidentiality for information that is partly common knowledge, the information must also consist of some independent thought or be the product of some commercial twist.39

Categories of Confidential Information

The protection of confidential information has been extended to a wide range of topics, such as the secret folklore of Australian aboriginals,40 the concept of a series of television programs dealing with self-made millionaires41 and government secrets.42 Dean in The Law of Trade Secrets and Personal Secrets43 considers that even though confidentiality is to be decided on a case by case basis, over time four general categories of confidential information have been recognised by the law.44 He identified these categories as;45

  • commercial secrets
  • private secrets
  • government information; and
  • professional information.

Commercial Secrets

In the context of confidential commercial or technical information, the courts often use the term 'trade secret'.46 Information under this category includes;

  • processes47
  • formulae and designs48
  • customer lists49
  • business secrets;50 and
  • data.51

Gowans J in Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd,52 outlined six factors that are relevant to determining whether information is a trade secret (commercial confidence);

  • the extent to which information is known outside the plaintiff's business;
  • the extent to which the information was known by employees and others involved in the business (including the extent of the measures taken by the plaintiff to guard the secrecy of the information);
  • the value of the information to the plaintiff and to its competitors;
  • the amount of effort or money expended by the plaintiff in developing the information; and
  • the ease or difficulty with which the information could be properly acquired or duplicated by others.

The use of confidential information to achieve a commercial advantage by reducing the time and cost taken to work out a method for achieving something is known as the 'springboard' doctrine.53 Under the 'springboard' doctrine it is not a defence to an action of breach of confidence to say that with sufficient time, labour and expense, a similar result could have been produced, as the confidant has still obtained a time and cost advantage through the use of confidential information.54 However, if no confidential information is misused and instead the similar product is the result of 'reverse engineering', the law of confidentiality will not intervene. 55 The onus is placed on the confider to establish that the confidant misused confidential information in an action for breach of confidence.56 In Coco v A N Clark (Engineers) Ltd,57 the court held that even though there were close similarities between the engine manufactured by the confidant and that designed by the confider, the confider could not establish a prima facie case of infringement, as many of the components were available on the open market.

The 'springboard' doctrine is of limited duration58 and depends on the facts of each particular case.59 Generally, the courts have regard to how long it would take to 'reverse-engineer' a similar result when considering what is a reasonable amount of time to impose an injunction.60

The law does not protect 'know-how' when distinguished from confidential information,61 which is particularly important in an employment relationship.62 The law must balance the fact that employees should not be restricted in using 'know-how' obtained at their former place of employment in legitimate competition63 and the need to protect the confidentiality of trade secrets.64

Information relating to sales or price is unlikely to be afforded protection by equity, due to the general nature of this information, much of which is usually in the public domain.65 However, customer and client lists are likely to be protected by equity, as they are information that is generally inaccessible to those outside the company.66

Private Secrets

Private secrets may receive protection, although English Courts on numerous occasions have denied public figures injunctive relief against the media disclosing information about their sexual conduct,67 as Ouseley J in Theakston v MGN Ltd68 considered that confidentiality does not attach to all acts of physical circumstances, regardless of the circumstances. Like all information, the confidentiality of personal information ceases when the information enters the public domain.69 Information recognised under this category includes;

  • personal information70
  • artistic works71
  • identity and reputation;72 and
  • cultural information.73
Government information

The general approach to information held by government is that government has an onerous burden to establish the confidentiality of information in its possession, as it controls information in a representative capacity and its workings should be open and accountable.74 Examples of government information include:

  • correspondence from, and within, government agencies
  • cabinet discussions;75 and
  • information concerning national security;76

To establish a breach of confidence for government information, the following must be proved:77

  • that such publication would be a breach of confidence
  • that the public interest requires that the publication be restrained; and
  • that there are no other facts of the public interest contradictory of and more compelling than that relied upon

The court must also look closely to ensure that restrictions are not imposed beyond the strict requirement of public interest.78

The burden placed upon governments to justify the secrecy of information in their possession arises as governments control information in a representative capacity and their workings should be open to public scrutiny and criticism.79 In Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd,80 McHugh JA considered that private citizens are entitled to protect or further their own interests, no matter how selfish they are in doing so. Conversely, his Honour considered that the public interest and not the private interest, must be the criterion by which equity determines whether it will protect information which a government or governmental body claims is confidential.81

The leading Australian case in this area is Commonwealth of Australia v John Fairfax & Sons Ltd (Fairfax).82 Mason J considered that the executive government must not only show that the information is confidential in quality and that it was imparted so as to import an obligation of confidence, but also that there will be 'an unauthorised use of the information to the detriment of the party communicating it'.83 His Honour next considered if detriment is required to be shown by the executive government when it seeks protection in equity.84

Mason J considered that the equitable principle has been fashioned to protect the personal, private and proprietary interests of citizens, not to protect the very different interests of the executive government. The executive government acts or is supposed to act, not according to the standards of private interest, but rather in the public interest.85 He considered that this did not mean that equity would not protect information in the hands of the government, but rather when equity does protect government information, it will look at the matter 'through different spectacles'.86

Mason J considered that it is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticise government action. Accordingly, he held that the court will determine the government's claim to confidentiality by reference to the public interest. Unless the disclosure is likely to injure the public interest, it will not be protected.87 This is now known, particularly within the context of State and Federal information access regimes, as the 'Fairfax Doctrine'. Mason J did not consider it a relevant detriment to the government that publication of material concerning its actions would merely expose it to public discussion and criticism.88

His Honour also noted that disclosure of information concerning the past workings of government serves the public interest in keeping the community informed and in promoting discussion of public affairs. However, its disclosure will be restrained if it will be unfavourable to the public interest for reasons of national security, relations with foreign governments or if the ordinary business of government will be prejudiced.89

Professional information

'Professional Information' refers to Information disclosed under specific professional relationships, broadly described as those of client and professional adviser. Information under this category includes;

  • doctors' records90
  • lawyers' instructions91
  • bankers' client information92
Loss of confidentiality

Information that is published to the world,93 or otherwise placed in the public domain will lose its confidentiality.94 Information that was once confidential can lose its protection when the public becomes aware of it.95 For example, obtaining a patent and marketing a product are likely to destroy confidentiality that once existed in design information.96 However, the mere fact that limited publication has occurred, does not destroy the right of confidence.97 It is important to note that this loss of confidence in equity may not affect relevant contractual provisions to the contrary that impose an obligation of confidence,98 or where only part of the information has been published.99

Confidence will also not be destroyed where the information appears only briefly in transient form (for example, a few seconds on television) to a small segment of the community.100

Therefore, no matter how secret information is, there can be no binding obligation of confidence if the information is disclosed in public or communicated in other circumstances which negative any duty of holding it confidential.101

3. There were circumstances imposing an obligation of confidence

An obligation of confidence will be established when:102

… the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose upon him the equitable obligation of confidence.

The existence of an obligation of confidence is to be determined objectively,103 however constructive knowledge is enough to impose an obligation of confidence.104 Therefore, the existence and scope of a confidential obligation is determined not only by what the confidant knew, but what he or she ought to have known in the circumstances.105

The courts have varied the extent and nature of the obligation depending on whether the information is personal, commercial or government information. For example the obligation not to disclose personal information is much more extensive than the obligations attaching to trade secrets, which are different again to those attaching to government information.106

In the ordinary case, a person who is given free access to material, pursuant to a request, without any duty of confidentiality reserved is ordinarily entitled to assume that he or she is not restricted in the use or disclosure of that material.107 In other circumstances, however, where the very nature of the information in question is indicative of its confidentiality, the position is different.108

While the objective test is the prevailing view that is applied in the majority of cases, there have been other tests proposed to determine whether the circumstances of communication are confidential.

The highest threshold was that imposed by Fullagar J in Deta Nominees Pty Ltd v Viscount,109 where his Honour considered whether an equity lawyer in all the circumstances (including the relationship of the parties, the nature of the information and the circumstances of its communication) would have recognised the information as belonging to the plaintiff and not as something with which the defendant might do as he liked. Dal Pont similarly argues that reliance on the concept of a reasonable person is not appropriate, as the standards of conduct expected by equity exceed those expected of the commonality of humankind.110

However, such a proposition has not found wide judicial support and the better view is that an objective test should be applied when determining whether an obligation of confidence exists.

In Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales,111 Bowen CJ considered that even though on the facts before him there was no express mention made of confidentiality or otherwise, that the kind of discussion taking place was one which would generally be assumed by those taking part would be treated as confidential.

A literal interpretation of Megarry J in Coco v A N Clark (Engineers) Ltd,112 that the obligation only attaches to information communicated from a confider to a confidant has been rejected. It has become clear that so long as the circumstances surrounding the acquisition of confidential information import an obligation of confidence not to disclose information, such an obligation will be enforceable whether or not those circumstances included a communication.113 Therefore it is clearer to refer to the circumstances of the obtaining or receipt rather than the circumstances of communicating or delivering the information.114

The basis of the obligation to respect confidence 'lies in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained'.115 The obligation of confidence may be imposed expressly or by implication. 116 In certain circumstances, the obligation of confidence may extend beyond information imparted in confidence to encompass surreptitiously or possibly even accidentally obtained information.117 The issue of surreptitiously obtained information arose in Franklin v Giddins,118 a case in which nectarine budwoods, whose genetic makeup was secret, had been stolen from the plaintiff's orchard by the defendant. Liability was found on the basis that the thief's actions in seeking to use the information in competition with the plaintiff were as unconscionable as those of a 'traitorous employee'. Dunn J held;119 'the thief is unconscionable because he plans to use and does use his own wrong conduct to better his position in competition with the owner, and also place himself in a better position than that of a person who deals consensually with the owner'.

The obligation is also normally imposed at the time the information is imparted.120 Unsolicited disclosures of information may also give rise to confidentiality obligations.121

Relevantly, the mere existence of an obligation of confidence will not afford grounds for relief if the information imparted is common knowledge.122

Information communicated in a contractual relationship

People in a contractual relationship may expressly or impliedly arrange to protect confidential information exchanged between them123 and the courts should not substitute their views of what is confidential for what the parties have already agreed to be confidential.124 It should be noted that a contractual agreement that information should be treated as confidential is relevant to establishing that there are circumstances imposing an obligation of confidence, but this alone, will not establish an equitable action. To establish an equitable action for breach of confidence, the remaining four criteria must also be met.

Information disclosed to government

Citizens who disclose information to government may in equity be able to restrain its use for purposes beyond the purpose of its disclosure.125

Relationship between the confider and confidant

The Courts have recognised the following categories of personal relationships, which may include the passing of confidential information;

  • husband and wife,126 although not all information communicated within a marital relationship attracts equity's protection. Equity is only concerned with information relating to the private life, personal affairs or private conduct communicated between spouses in confidence, where they are not already in the public domain127
  • unmarried sexual partners,128 however the courts may distinguish between permanent relationships and casual encounters.129

A short lived relationship can also give rise to an obligation of confidence,130 as ultimately, it may be that if the nature of the information in question is highly personal and private, the less important the closeness of the relationship.

Nature of the Information

Information of a highly personal nature may come under a legally enforceable duty of confidence.131

However, in Theakston v MGN Ltd,132 an English Court denied a public figure injunctive relief against media outlets publishing information as to his sexual activities. Therefore, it appears that in England at least, the more well known a person is, the less likely a court is to protect from disclosure of his or her personal information.133

4. There is actual or threatened misuse of the information

A confidant's disclosure or use of confidential information inconsistent with the purpose for which it was received is a breach of confidence.134 A threatened breach of confidence is sufficient to institute proceedings.135

Receipt of Confidential Information by Third Parties

Given that equity acts on the conscience of a person, a third party recipient of confidential information cannot escape liability, if knowing, the information to be confidential, he or she makes unauthorised use or disclosure of that information.136

To establish knowledge, it is necessary to look to the facts of each case. Documents marked confidential will convey actual knowledge that the documents were intended to be confidential (as opposed to being determinative of confidentiality),137 as will a third party closing their eyes to the obvious for fear of discovering confidentiality.138 Constructive knowledge is also sufficient in Australia, being knowledge of information that a reasonable person in the third party's position would have appreciated was confidential.139

Innocent Recipients

Recipients of information conveyed in breach of confidence who lack knowledge of its original confidentiality can be restrained from perpetuating the breach, after receiving notice of the breach.140 The commencement of proceedings amounts to the requisite notice.141

In Wheatley v Bell,142 the defendant breached confidence in relation to a business idea he obtained from the plaintiff in Perth and on sold the scheme to three buyers in Sydney. Helsham CJ was satisfied that the first defendant had knowledge and should have known information was given in confidence. However the other defendants did not know that the information was imparted to the first defendant in confidence. Counsel for the second, third and fourth defendants argued that they were analogous to bona fide purchasers for value without notice, and so should be free to make use of the information that had come to them innocently. However, Helsham CJ rejected this and found that 'the defence of bona fide purchaser for value is an equitable defence directed towards the resolution of priorities in relation to property rights…. [and] there are no property rights associated with the type of equity involved here.'143 By reason of the court action, the previously innocent defendants were conferred knowledge of the breach of confidence, and so could be restrained from using the information by means of an injunction.

Wheatley v Bell144 assumed that confidential information is not property. This can be contrasted with obiter from Young J in Minister for Mineral Resources v Newcastle Newspapers Pty Ltd,145 where his Honour suggested that no liability for confidential information should attach to a bona fide purchaser for value of that information without notice of its confidentiality.

Information Gained by Reprehensible Means

Equity can restrain the misuse of confidential information obtained illegally.146 The case for equity intervening strengthens when information is stolen.147

Termination of the obligation of confidence

Scientists discussing their research will not destroy the obligation of confidence,148 similarly at termination of a partnership, one partner cannot disclose information to the disadvantage of the other.149

Where the confider, following the creation of an obligation of confidence, purposely places the information in the public domain, the obligation on the confider will cease to exist.150

5. To the detriment of the plaintiff

In Coco v A N Clark (Engineers) Ltd,151 Megarry J noted that some authorities consider detriment a necessary element, while others omit any discussion of it. In his judgment however, Megarry J did not conclusively determine this point. In Corrs Pavey Whiting & Bryne v Collector of Customs (Vic),152 Gummow J also considered that it may be necessary that unauthorised use be to the detriment of the plaintiff.

The precedent in this area divides information into government information and other information, with the requirement of detriment more stringent in the case of government secrets.153

Government Information

In Fairfax, Mason J indicated that detriment to the confider is generally a necessary element of an action in breach of confidence.154 Further, in that case, Mason J held that, in the case of a government confider, the court will determine the government's claim to confidentiality by reference to the public interest (ie. the Fairfax Doctrine). Unless disclosure is likely to injure the public interest, it will not be protected.

See above under the heading 'Categories of confidential information' for a more detailed discussion of the Fairfax Doctrine.

Other Information

Outside of government information, it is unclear whether detriment is required.

As noted above, in Fairfax,155 Mason J commenced from the proposition that detriment to the plaintiff must be shown, and then considered what (additional) detriment a government as plaintiff must demonstrate.

On the other hand, some lower court decisions have cast some doubt on this proposition. For example, in the Federal Court decision of Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health,156 Gummow J held that 'equity intervenes to uphold an obligation of conscience and not necessarily to prevent or to recover loss', adding that 'the obligation of conscience is to respect the confidence, not merely to refrain from causing detriment to the plaintiff'. This approach also finds support from Johnson J in the Supreme Court of Western Australia in the decision of Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd,157 where his Honour held that 'the requirement for proof of detriment is inconsistent with the established notion that the basis for the exercise of equitable jurisdiction is to enforce the obligation of confidence.'

However these are decisions of lower courts, and at least until the High Court provides further guidance, it appears that Fairfax is authoritative, and the requirement of detriment should be treated as required to establish an equitable action for breach of confidence.158

  • 1 Coco v A N Clark (Engineers) Ltd [1968] F.S.R. 415 per Megarry J at  419; Commonwealth of Australia v John Fairfax & Sons (1980) 147 CLR 39 per Mason J at 51. [up]
  • 2 Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [2005] WASC 255 per Johnson J at paragraph 61; Titan Group Pty Ltd v Steriline Manufacturing Pty Ltd (1990) 19 IPR 353 per O’Loughlin J at paragraph 379. [up]
  • 3 Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 74 ALR 428 at 437. [up]
  • 4 Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [2005] WASC 255; Ekaton Corporation Pty Ltd v Chapman and Department of Health [2010] SADC 150 per Brebner J at paragraph 17. [up]
  • 5 O’Brien v Komesaroff (1982) 150 CLR 310 per Mason J at paragraph 326-328; Moorgate Tobacco Co Ltd v Phillip Morris Ltd (No 2) (1984) 156 CLR 414 per Deane J at 438; Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 74 ALR 428 at 437. [up]
  • 6 Pioneer Concrete Services Ltd v Galli (1985) 4 IPR 227 at 228. [up]
  • 7 P A Thomas & Co v Mould [1968] 2 QB 913. [up]
  • 8 John Zink & Co v Wilkinson [1973] RPC 717. [up]
  • 9 John Zink & Co v Wilkinson [1973] RPC 717. [up]
  • 10 John Zink & Co v Wilkinson [1973] RPC 717. [up]
  • 11 Meridian Vat Reclaim Aust Pty Ltd v Agius [2006] VSC 503; GlaxoSmithKline Australia Pty Ltd v Ritchie (2008) 77 IPR 306; Corrs Pavey Whiting & Byrne V Collector of Customers (Vic) (1987) 74 ALR 428 at 437.  [up]
  • 12 FSS Travel and Leisure Systems Ltd v Jognson [1999] FSR 505 at 512. [up]
  • 13 Lawbook, Laws of Australia (current at 15 October 2014) Confidential Information 23.6.50. [up]
  • 14 Robert Dean, The Law of Trade Secrets and Personal Secrets, (Lawbook Co, Sydney: 2nd ed, 2002) at page 106. [up]
  • 15 Manderson M & F Consulting v Incitec Pivot Ltd (No 2) [2011] VSC 205. [up]
  • 16 Manderson M & F Consulting v Incitec Pivot Ltd (No 2) [2011] VSC 205 at paragraph 8. [up]
  • 17 Manderson M & F Consulting v Incitec Pivot Ltd (No 2) [2011] VSC 205 at paragraph 9. [up]
  • 18 O’Brien v Komesaroff (1982) 150 CLR 310. [up]
  • 19 O'Brien v Komesaroff (1982) 150 CLR 310 at paragraph 327-328, where Mason J makes particular reference to Amway Corporation v Eurway International Ltd [1974] RPC 82 and to the decision in Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 per Fullagar J at 189-190. [up]
  • 20 O'Brien v Komesaroff [1982] 150 CLR 310 at 327-328. [up]
  • 21 Manderson M & F Consulting v Incitec Pivot Ltd (No 2) [2011] VSC 205 at paragraph 29. [up]
  • 22 Moorgate Tobacco Co Ltd v Phillip Morris Ltd (No 2) (1984) 156 CLR 414 per Deane J at paragraph 438. [up]
  • 23 Johns v Australian Securities Commission (1993) 178 CLR 408 per Gaudron J at 460-461. [up]
  • 24 Coco v A N Clark (Engineers) Ltd [1968] FSR 415. [up]
  • 25 Drake Personnel Ltd v Beddison [1979] BR 13 per Anderson J at 20. [up]
  • 26 Robert Dean, The Law of Trade Secrets and Personal Secrets, (Lawbook Co, Sydney: 2nd ed, 2002) at page 81. [up]
  • 27 Coco v A N Clark (Engineers) Ltd [1968] FSR 415; Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167. [up]
  • 28 Robert Dean, The Law of Trade Secrets and Personal Secrets, (Lawbook Co, Sydney: 2nd ed, 2002) at page 81. [up]
  • 29 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199. [up]
  • 30 Kwok v Thang [1999] NSWSC 1034. [up]
  • 31 McNichol v Sportsman’s Bookstores (1930) MacG Cop Cas. (1928)-30) 116 at 125. [up]
  • 32 Church of Scientology v Kaufman [1973] RPC 635. [up]
  • 33 Seager v Copydex Ltd [1967] 1 WLR 923. [up]
  • 34 Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39. [up]
  • 35 Duchess of Argyll v Duke of Argyll [1967] Ch 302. [up]
  • 36 Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37; Robert Dean, The Law of Trade Secrets and Personal Secrets, (Lawbook Co, Sydney: 2nd ed, 2002), 3.100 at page 75. [up]
  • 37 Fractionated Cane Technology Ltd v Ruiz-avila [1988] 1 Qd R 51 at 62-63. [up]
  • 38 Independent Management Resources Pty Ltd v Brown [1987] VR 605. [up]
  • 39 Linda Chih Ling Koo and Another v Lam Tai Hing (1992) 23 IPR 607 at 627. [up]
  • 40 Foster v Mountford & Rigby Ltd (1977)14 ALR 71. [up]
  • 41 Talbot v General Television Corporation [1980] VR 224. [up]
  • 42 Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39. [up]
  • 43 Robert Dean, The Law of Trade Secrets and Personal Secrets, (Lawbook Co, Sydney: 2nd ed, 2002), 3.30 at page 69. [up]
  • 44 Robert Dean, The Law of Trade Secrets and Personal Secrets, (Lawbook Co, Sydney: 2nd ed, 2002), 3.30 at page 69. [up]
  • 45 Robert Dean, The Law of Trade Secrets and Personal Secrets, (Lawbook Co, Sydney: 2nd ed, 2002), 3.30 at page 69. [up]
  • 46 However, Dal Pont considers that the term is no more than a synonym for a commercial confidence, as it introduces no new legal concepts; G E Dal Pont and D R C Chalmers, Equity and Trusts in Australia (Lawbook Co, Sydney: 4th ed, 2007), 6.30 at page 151; Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37. [up]
  • 47 Under Water Welders & Repairers Ltd v Street & Longthorne [1968] RPC 498. [up]
  • 48 Peter Pan Manufacturing Corp v Corsets Silhouette Ltd (1962) 1B IPR 795. [up]
  • 49 Bachich v Australian Broadcasting Corporation (1992) 29 NSWLR 1; Riteway Express Pty Ltd v Clayton (1987) 10 NSWLR 238. The largest group of cases in the commercial secret or trade secret category regard customer lists; Robert Dean, The Law of Trade Secrets and Personal Secrets , (Lawbook Co, Sydney: 2nd ed, 2002), 3.45 at page 70. [up]
  • 50 Littlewoods Organisation Ltd v Harris [1978] 1 All ER 1026; Queensland Mines Ltd v Hudson (1978) 18 ALR 1; Surveys & Mining Ltd v Morrison [1969] Qd R 470. [up]
  • 51 Bates & Partners Pty Ltd v Law Book Co Ltd (1994) 29 IPR 11. [up]
  • 52 Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37 at 50. [up]
  • 53 Dart Industries Inc v David Bryar & Associates Pty Ltd (1997) 38 IPR 389 per Goldberg J at 408. [up]
  • 54 Dart Industries Inc v David Bryar & Associates Pty Ltd (1997) 38 IPR 389 per Goldberg J at 408. [up]
  • 55 Mars UK Ltd v Teknowledge Ltd (1999) 46 IPR 248. [up]
  • 56 Norbrook Laboratories Ltd v Bomac Laboratories [2004] 3 NZLR 49. [up]
  • 57 Coco v AN Clark (Engineers) Ltd [1968] FSR 415. [up]
  • 58 Harrison v Project & Design Co (Redcar) Ltd [1978] FSR 81. [up]
  • 59 Franchi v Franchi [1967] RPC 149 at 153. [up]
  • 60 International Tools Ltd v Kollar (1968) 67 DLR (2d) 386. [up]
  • 61 Amway Corporation v Eurway International Ltd [1974] RPC 82 at 85-86. [up]
  • 62 Stephenson Jordan & Harrison Ltd v MacDonald & Evans [1952] 1 TLR 101. [up]
  • 63 Stenhouse Australia Ltd v Phillips [1973] 2 NSWLR 691. [up]
  • 64 Herbet Morris Ltd v Saxelby [1916] 1 AC 688. [up]
  • 65 Half Court Tennis Pty Ltd v Seymour (1980) 53 FLR 240; Faccenda Chicken Ltd v Fowler [1987] Ch 117. [up]
  • 66 Freedom Motors Australia Pty Ltd v Vaupotic [2003] NSWSC 506; Digital Pulse Pty Ltd v Harris (2002) 40 ACSR 487. [up]
  • 67 Theakston v MGN Ltd [2002] EWHC 137 at paragraph 76-78. [up]
  • 68 Theakston v MGN Ltd [2002] EWHC 137. [up]
  • 69 Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 74 ALR 428. [up]
  • 70 Duchess of Argyll v Duke of Argyll [1967] Ch 302; Stephens v Avery [1988] Ch 449; Deputy Federal Commissioner of Taxation (Cth) v Rettke (1995) 31 ATR 59. [up]
  • 71 National Education Advancement Programs (NEAP) Pty Ltd v Ashton (1995) 128 FLR 334. [up]
  • 72 G v Day [1982] 1 NSWLR 24. [up]
  • 73 Coulthard v South Australia (1995) 63 SASR 531. [up]
  • 74 Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86. [up]
  • 75 Attorney-General v Jonathan Cape Ltd [1975] 3 All ER 484. [up]
  • 76 Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39. [up]
  • 77 Attorney-General v Jonathan Cape Ltd [1975] 3 All ER 484 at 485; approved in Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39. [up]
  • 78 Attorney-General v Jonathan Cape Ltd [1976] 1 QB 572 at 770-771. [up]
  • 79 Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 at 191. [up]
  • 80 Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 at 191. [up]
  • 81 Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 at 191. [up]
  • 82 Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39. [up]
  • 83 Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 51. [up]
  • 84 Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 51. [up]
  • 85 Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 51. [up]
  • 86 Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 51. [up]
  • 87 Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 52. [up]
  • 88 Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 51. [up]
  • 89 Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 52. [up]
  • 90 Minister for Mineral Resources v Newcastle Newspapers Pty Ltd (1997) 40 IPR 403. [up]
  • 91 Fordham v Legal Practitioners' Complaints Committee (1997) 18 WAR 467. [up]
  • 92 Gooley v Westpac Banking Corporation (1995) 53 IR 262. [up]
  • 93 EPP National Buying Group Pty Ltd v Levy [2001] NSWSC 482. [up]
  • 94 Castrol Australia Pty Ltd v EmTech Associates Pty Ltd (1980) 33 ALR 31; O'Brien v Komesaroff (1982) 150 CLR 310; Johns v Australia Securities Commissioner (1993) 178 CLR 408 per Gaudron J at 461. [up]
  • 95 Titan Group Pty Ltd v Steriline Manufacturing Pty Ltd (1990) IPR 353. [up]
  • 96 Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104; G v Day [1982] 1 NSWLR 24; ANI Corporation Ltd v Celtite Australia Pty Ltd (1990) 19 IPR 506. [up]
  • 97 G v Day [1982] 1 NSWLR 24 at 39. [up]
  • 98 Attorney-General v Blake [2001] 1 AC 268. [up]
  • 99 Seager v Copydex Ltd [1967] 1 WLR 923. [up]
  • 100 G v Day [1982] 1 NSWLR 24. [up]
  • 101 Coco v AN Clark (Engineers) Ltd [1968] FSR 415 per Megarry J at 419-420. [up]
  • 102 Mense & Ampere Electrical Manufacturing Co Pty Ltd v Milenkovic [1973] VR 784; Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [2005] WASC 255; Trevorrow v State of South Australia (No 4) (2006) 94 SASR 64 at paragraph 41. [up]
  • 103 Coco v AN Clark (Engineers) Ltd [1968] FSR 415. [up]
  • 104 Robert Dean, The Law of Trade Secrets and Personal Secrets, (Lawbook Co, Sydney: 2nd ed, 2002) at page 106; Schering Chemicals Pty Ltd v Falkman Pty Ltd [1981] 2 WLR 848 per Shaw LJ. [up]
  • 105 Mainbridge Industries Pty Ltd v Whitewood (1984) 73 FLR 117; Fractionated Cane Technology Ltd v Ruiz-Avuka [1988] 1 Qd R 51 at 62. [up]
  • 106 Coulthard v South Australia (1995) 63 SASR 531 at page 550. [up]
  • 107 Trevorrow v State of South Australia (No 4) (2006) 94 SASR 64. [up]
  • 108 National Education Advancement Programs (NEAP) Pty Ltd v Ashton (1995) 128 FLR 334. [up]
  • 109 Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 at 190-194. [up]
  • 110 G E Dal Pont and D R C Chalmers, Equity and Trusts in Australia (Lawbook Co, Sydney: 4th ed, 2007) at page 172. [up]
  • 111 Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104. [up]
  • 112 Coco v AN Clark (Engineers) Ltd [1968] FSR 415. [up]
  • 113 Franklin v Giddins [1978] Qd R 72 per Dunn J at 80. [up]
  • 114 Moorgate Tobacco Co Ltd v Phillip Morris Ltd [No 2] (1984) 156 CLR 414 per Deane J at 437; Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 at 190-194. [up]
  • 115 Moorgate Tobacco Co Ltd v Phillip Morris Ltd [No 2] (1984) 156 CLR 414 per Deane J at 438. [up]
  • 116 Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd [No 2] (1987) 10 NSWLR 86 per McHugh J at 189-190. [up]
  • 117 Franklin v Giddins [1978] Qd R 72; Fairfax at 50. [up]
  • 118 Franklin v Giddins [1978] Qd R 72. [up]
  • 119 Franklin v Giddins [1978] Qd R 72 per Dunn J at  80. [up]
  • 120 Coco v AN Clark (Engineers) Ltd [1968] FSR 415 per Megarry J at 419. [up]
  • 121 Talbot v General Television Corp Pty Ltd [1980] VR 224. [up]
  • 122 John Zink Co. Ltd v Lloyds Bank Ltd [1975] RPC 385 per Templeman J at 389. [up]
  • 123 Esso Australia Resources Ltd v Plowman (Minister for Energy & Minerals) (1995) 183 CLR 10. [up]
  • 124 Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317 at 333. [up]
  • 125 Castrol Australia Pty Ltd v EmTech Associates Pty Ltd (1980) 33 ALR 31. [up]
  • 126 Duchess of Argyll v Duke of Argyll [1967] 1 Ch 302. [up]
  • 127 Gibb, In the Marriage of (1979) 37 FLR 109. [up]
  • 128 Stephens v Avery [1988] Ch 449 at 454. [up]
  • 129 A v B plc [2002] 3 WLR 542. [up]
  • 130 Kwok v Thang [1999] NSWSC 1034 at paragraph 30. [up]
  • 131 Stephens v Avery [1988] Ch 449 at 454. [up]
  • 132 Theakston v MGN Ltd [2002] EWHC 137. [up]
  • 133 A v B plc [2002] 3 WLR 542 at paragraph 552. [up]
  • 134 Seager v Copydex Ltd [1967] 1 WLR 923. [up]
  • 135 Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 74 ALR 428. [up]
  • 136 Foster v Mountford and Ridby Pty Ltd (1976) 14 ALR 71, 75; G v Day [1982] 1 NSWLR 24 at 25; Wheatley v Bell [1982] 2 NSWLR 544 at 550. [up]
  • 137 Jockey Club v Buffham [2003] 2 WLR 178 per Gray J at paragraph 190. [up]
  • 138 Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 per Lord Goff at 281. [up]
  • 139 Wheatley v Bell [1982] 2 NSWLR 544 at 548. [up]
  • 140 Johns v Australian Securities Commission (1993) 178 CLR 408 per Gaudron J at 460. [up]
  • 141 Ricketson, 'Confidential Information – A New Proprietary Interest' (1977-78) 11 Melbourne University Law Review 223 at paragraph 240-241. [up]
  • 142 Wheatley v Bell [1982] 2 NSWLR 544. [up]
  • 143 Wheatley v Bell [1982] 2 NSWLR 544 at 549-550. [up]
  • 144 Wheatley v Bell [1982] 2 NSWLR 544. [up]
  • 145 Minister for Mineral Resources v Newcastle Newspapers Pty Ltd (1997) 40 IPR 403 at 405. [up]
  • 146 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 per Gleeson CJ at 222-225 and per Kirby J at  272. [up]
  • 147 Sullivan v Saunders (2000) 77 SASR 419 per Gray J at 428. [up]
  • 148 Linda Chih Ling Koo v Lam Tai Hing (1992) 23 IPR 607 at 633. [up]
  • 149 Lloyds Bank Ltd v Chartered Bank of India, Australia & China [1928] All ER Rep 285. [up]
  • 150 Speed Seal Products Ltd v Paddington [1985] 1 WLR 1327. [up]
  • 151 Coco v AN Clark (Engineers) Ltd [1968] FSR 415 at 420. [up]
  • 152 Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 74 ALR 428 at 437. [up]
  • 153 Lawbook, Laws of Australia (current at 1 November 2010) Confidential Information 23.6.50. [up]
  • 154 Fairfax per Mason J at 51-52. See also Director-General of Education v Public Service Association of NSW (1984) 79 FLR 15 per McLelland J at paragraphs 15 and 20. [up]
  • 155 Fairfax per Mason J at 51-52. [up]
  • 156 Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health (1990) 95 ALR 87 at 126. [up]
  • 157 Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [2005] WASC 255 at 78. [up]
  • 158 See B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at paragraph 110. [up]

Last updated: March 1, 2012