Topic 4: Duty of Confidence Flashcards
What is the duty of confidence primarily concerned with?
Obligations relating to information.
This is narrower than Fiduciary obligations.
What is the duty of confidence?
Where one party has imparted information with another for some particular purpose, equity imposes an obligation of confidence on the person to whom the information was parted
Does this duty of confidence arise from contract?
This is the equitable duty of confidence and it does not arise by virtue of a contract.
In what circumstances is there a duty of confidence?
- Where the nature of the information is confidential; or
2. The circumstances of communication imply a duty of confidence
What must the nature of the information be to invoke a duty of confidence?
It must:
- Provide a springboard for replicating an invention or doing something: Ansell Rubber v Allied Rubber Industries
- Must be sufficiently detailed and developed, more than a mere idea.
What are the facts of Ansell Rubber v Allied Rubber Industries?
- AR had designed a machine to manufacture gloves
- Two employees subsequently left AR and set up their own company in competition
- It was found that they had a very similar machine
Court held:
- Some of the information obtained was well known and could be obtained just by observing the information in operation.
- But the employees had clearly obtained information that was so detailed and developed that it provided them with a springboard. They effectively didn’t need to go through trouble of examining the machines
- information was confidential in nature and there was a breach of confidence.
Where would the circumstances of imparting with information give rise to a duty of confidence?
- Where it would lead a reasonable person to believe that the information being parted with was for a limited purpose only: Seager v Copydex
What are the facts of Seager v Copydex?
- P invested a carpet grip and wanted to D to manufacture it for him.
- In considering whether to accept the agreement, the Defendants needed access to his plans, which the P gave.
- The Defendant then begun to produce their own carpet grip, with some of the P’s features incorporated in it.
Court held:
- Information had been disclosed for the purposes of negotiation only and nothing more.
- The defendants should have not used it for any other purpose.
What is a possible defence to a breach of duty of confidence?
Public Interest: AG (UK) v Heinemann Publishers
What are the facts of AG (UK) v Heinemann?
- H published a spy catcher book written by a former MI 5 officer.
- the UK gov sought an injunction to restrain publication
- The MI 5 officer’s contract of employment said nothing about what they couldn’t disclose so Gov had to rely on equitable duty of confidence.
Court held:
- Government information is capable of being protected by duty of confidence
- However government information is received and imparted by government agencies to further the public interest.
- However the High court refused to deal with this matter because the public interest was that of the UK, not Australia.
What is the difference in onus of proof where the information is governmental and where it is commercial?
With government information: The PLAINTIFF must show that the public interest was to treat the information as confidential
With commercial information: The DEFENDANT has to show that it would be in the interests o the public to avoid liability.
What is the relevance of Lion Laboratories v Evans?
- LL made a breathalyser device which had been approved for public use
- Two former employees disclosed to press that the device was unreliable, inaccurate and would produce false results.
English COA held:
- Public interest defence was available
- It was concerned with commercial information and there was a public interest in ensuring that nobody should be wrongfully convicted of a serious offence.
- The press did have a legitimate role in making these matters known to the public.
What is a case where the public interest defence failed?
Francombe v Mirror Newspapers
What are the facts of Francombe v Mirror Newspapers?
- Defendant made recordings illegally with phone recording phone conversations with a well known racing figure
- During that phone conversation, they admitted to breaching certain regulations and committed criminal offences
- Publishers sought to publish material but P sought an injunction.
Courts held:
-Public interest aspect similar to case of Lion Laboratories
But the newspaper was not the only way the public interest could be served.
- they could have gone to police or jockey club
- Therefore defendants went beyond was was necessary and hence liable for breach of confidence.
Does a trustee have a duty to close information to the beneficiary?
Yes but only to certain types of information such as:
- The trust instrument; and
- Financial records of books of account of the administration.
