Confidential Information 

Following from Kone Elevators Pty Ltd v McNay — BC9700733 — 10 March 1997 Young J BC9700733 at 16

“Two initial points should be made which are virtually beyond contest.

The first is that just because a person says that something is “confidential” does not of itself make it confidential within the scope of confidential information which equity protects. This is clear from Re Dalrymple [1957] RPC 449; Re Gallay Ltd’s Application [1959] RPC 141; Drake Personnel Ltd v Beddison [1979] VR 13 and Wright v Gasweld Pty Ltd at p333, though in the lastmentioned case, Kirby P said that “Courts should… exercise a modest disinclination to hold that information is not confidential when parties have taken the trouble to say it is.” With respect, this dictum seems to run contrary to the authorities which are replete with situations where a person with superior bargaining power has endeavoured to protect itself from competition by a bold definition of “confidential information” and the courts have not been at all impressed with the attempt.

The second point is the Court looks at the matter of confidentiality at two points of time. For the purpose of discovering whether there is property being confidential information which it is legitimate and reasonable to protect, the Court looks to the facts as at the time the parties made their contract, Lindler v Murdock’s Garage (1950) 83 CLR 628, 653; Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd (1973) 133 CLR 288, 318; and ICT Pty Ltd v Sea Containers Ltd (1995) 17 ATPR 46-145 at p53, 142, though cf Geraghty v Minter (1979) 142 CLR 177, 200. Of course, the Court takes into account future possibilities which could then have been foreseen, Murdock’s Garage at 653, Sea Containers at p53, 142.”

Following from Consolidated Paper Industries Pty Ltd v Matthews [2004] WASC 161

“[60] An employee during the period of his employment must act in the employer’s best interest and not in pursuit of his own interests: Wessex Dairies Ltd v Smith [1935] 2 KB 80; Faccenda Chicken Ltd v Fowler & Ors [1986] 1 All ER 617. Except in special circumstances, however, there is no general restriction on an ex-employee canvassing or doing business with customers of his former employer: Faccenda at 625, Wessex Dairies at 89. But during the term of his employment an employee must not solicit customers for a future time when the employment has ceased and the employee has established his own business: Wessex Dairies Ltd v Smith (above), Independent Corporate Services Ltd v Stevens [2002] WASC 280. An employee is not, however, prohibited during his employment from making preparations for setting up a business when the employment ends. What steps by the employee will be permissible will depend upon the circumstances, but such activities may extend to the issue of circulars, finding business premises and hiring employees: Robb v Green [1895] 2 QB 1; Independent Management Resources Pty Ltd v Brown [1987] VR 605. But the duty of loyalty of an employee will be breached if the employee engages in unfair or wrongful acts detrimental to the employer’s business, such as deferring fulfilment of orders in anticipation of filling them himself, or developing the capacity to copy his employers products with a view to appropriating for himself his employer’s market, or recruiting the employer’s staff for the new business, or taking copies of or memorising customer lists or other confidential information of the employer, or engaging in significant work to set up the business in his employer’s time: Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; McPherson’s Ltd v Tate (1993) 35 AILR 225; Blythe Chemicals Ltd v Bushnell (1933) 49 CLR 66; WA Fork Truck Distributors Pty Ltd v Jones & Ors [2003] WASC 102.”

Accountant’s duty of confidentiality to client: Prince Jefri Bolkiah v KPMG [1999] 1 AER 517 (HL)

Duties of employees after employment – whether information gained during employment has quality of confidence: ANI Corp v Celtic Aust 19 IPR 506

Categories of confidential information an employee may acquire: Wright v Gasweld Pty Ltd 20 IPR 481

Whether employees entitled to use of confidential information acquired in later employment – principles: Peninsular Real Estate v Harris [1992] 2 NZLR 216

Duty of employee – injunction restraining disclosure – damages for misuse of confidential information: Universal Thermo Senses v. Hibben [1992] 4 AER 257

Employees stealing employer’s customer lists and setting up rival company: Universal Thermo Sensors v Hibben [1992] 1 WLR 840

Breach of confidence – public interest: S v S [1997] 1 WLR 1621

Employee using confidential information to run other business: Candle (Aust) Ltd v Keeley [1999] VSC 305

General principles — Breach of confidence – Terms of contract: Hitchcock v TCN Channel 9 [2000] NSWSC 198

Fiduciaries — Breach of fiduciary duties — Account of profits – client lists: Halliday & Nicholas Insurance Brokers Pty Ltd v Corsiatto [2001] NSWCA 188

Confidential information — Delivery up — Order for delivery up for destruction: AG Australia Holdings Ltd v Burton [2002] NSWSC 454

Injunctions — Mandatory injunctions — Anticipatory breaches: Rototek Pty Ltd v AD Engineering Pty Ltd [2004] WASC 108

Production and inspection — Confidential information – Motion for production of documents: Australian Competition & Consumer Commission v Visy Industries Holdings Pty Ltd [2006] FCA 136

Confidential information — Unauthorised use — Application for damages: Woolworths Ltd v Olson [2004] NSWSC 849

Injunctions — Restraint of trade — Undertakings — Application for interlocutory injunction restraining defendants from disclosing confidential information: Satellite Terrestrial Distributors Pty Ltd v Jonsa Ellies (Aust) Pty Ltd [2005] WASC 3

Injunctions — Solicitors — Confidential information — Application for injunction to restrain solicitor from acting for party — Injunction required to protect use of confidential information: Durban Roodepoort Deep Ltd v Reilly [2004] WASC 269

Whether confidential information should be set out in reasons for decision – administration of justice required the confidential matters be published: Reckitt Benckiser v Johnson & Son [2004] FCA 1277

Restraint of trade — Employer and employee — Application for injunctive relief in terms of restraint clause in employment contract: Koops Martin Financial Services Pty Ltd v Reeves [2006] NSWSC 449

Contract — Termination — Application for injunction to restrain respondent providing products and services to customers except in accordance with contract — Expiry of contract: Mincom Ltd v Oniqua Pty Ltd [2006] QSC 155

Ownership and possession of medical records relating to patient treatment – obligations of medical practitioner working in another’s practice – equitable remedies – account of profits: Mid-City Skin Cancer & Laser Centre v Zahedi-Anarak [2006] NSWSC 844

Solicitors — Confidential information — Chinese walls: Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2007] NSWSC 350

Confidential information — Obligation of confidence — Agreement for supply for syringes: Retractable Technologies Inc v Occupational & Medical Innovations Ltd [2007] FCA 545

Breach of confidence — Steel manufacture project — Application for injunctions restraining further disclosures and infringement of copyright: Bluescope Steel Ltd v Kelly [2007] FCA 517

Restraint of trade — Employer and employee: Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172

Equitable interests — Breach of confidence — Unauthorised use of confidential information: Polwood Pty Ltd v Foxworth Pty Ltd [2008] FCAFC 9

Breach of confidence — Disclosure of information to competitor: Krueger Transport Equipment Pty Ltd v Glen Cameron Storage & Distribution Pty Ltd  [2008] FCA 803

Fiduciaries — Employees — Confidentiality: Futuretronics .com .au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 2

Suppression orders – obligation of confidence: Moran v Atrum Coal NL [2015] WASC 209

Legal practitioners – confidential information- the right of former client to protection of his confidential information – protection of the integrity of the judicial process: Quann v Wilson & Atkinson [2015] WASC 229

Confidential information and material in breach of covenant in deed – whether director breached statutory and fiduciary duties: Ezystay Systems Pty Ltd v Link 2 Pty Ltd [2015] NSWSC 1105


Open Justice

Principles of: See Idoport Pty Ltd & Anor v National Australia Bank Ltd & 8 Ors; Idoport Pty Ltd & Market Holdings Pty Ltd v Donald Robert Argus; Idoport “JMG” v National Australia Bank Ltd & Ors [2001] NSWSC 1024