Chapter -12 Source Book - Equity and Trusts in Australia PDF

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1 CHAPTER 12 – BREACH OF CONFIDENCE (SOURCEBOOK) 12.1 – INTRODUCTION  Equity has always protected certain information from unauthorised misuse.  In Coco v AN Clark (Engineers) Ltd, Megarry J, dated equitable jurisdiction.  Four elements need to be satisfied. (In Sourcebook) 12.2 – The Elements of the cause of action  12.2a - Coco v AN Clark (Engineers) Ltd 12.2.1 – Specifying the confidential material Information that the plaintiff claims is confidential must be specified in the pleading so that the defendant can defend the action by demonstrating its lack of confidentiality, and so that the court can make appropriate remedial orders. 12.2.1a – O’Brien v Komesaroff 12.2.1.1 – Quality of confidence  Information must have the necessary quality of confidence about it – Megarry J in Coco v AN Clark.  Sometimes the confidentiality is inherent in the relationship between the parties.  In Duchess of Argylll v Duke of Argyll, it was held that the confidence passing between parties to a marriage pass within an equitable relationship of confidence.  The solicitor and client relationship is also inherently confidential: Lord Ashburton v Pape.  Information loses it confidentiality when it enters the public domain: AFL v The Age 12.2.1.1a – AFL v The Age 12.2.2 – Circumstances imposing an obligation  According to Megarry J in Coco v AN Clark if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that the information was being given to him in confidence, this should suffice to impose upon him the equitable obligation of confidence. 12.2.2a – Smith Kline & French Laboratories v Secretary, Department of Community Services. 12.2.3 – Unauthorised use  Any unauthorised use is potentially a breach.  The exception here is where the plaintiff is the government, attempting to protect governmental secrets from exposure. In such cases, the government is required to demonstrate that there will be some detriment to the public interest if information is released: Commonwealth v John Fairfax. 12.2.3a - Commonwealth v John Fairfax. 12.3 – Defences 12.3a – AFL v The Age 12.4 – Remedies  The exception is the equitable proprietary remedy, the constructive trust. 12.4a – Bluescope Steel v Kelly – Remedies given in this case included an account of profits and continuing injunctions to prevent further disclosure of confidential information. 12.4b – Giller v Procopets – Equitable compensation provided....