Case: Coco v AN Clark (Engineering) Ltd [1969] RPC 41 , 
Outcome: applied
The information submitted by Krueger to be confidential is described above (see [3]). I will deal with each element of the test in Coco in turn. 89 As Megarry J put it, "there can be no breach of confidence in revealing to others something which is already common knowledge" ( Coco, at 47). However, the standard that must be met to establish the necessary quality of confidence is low. For example, confidentiality can attach to information that is not entirely novel or original, provided the information was not commonly or publicly known at the time of the alleged breach. Confidentiality can also attach to a design that draws on already known information to create a new solution to a problem. In British Celanese Ltd v Courtaulds Ltd (1935) 52 RPC 171 at 193, Lord Tomlin observed that there may well be inventive merit in combining in one combination, integers which are themselves old or the subject of common knowledge. In fact, that which is required to transform common knowledge into a matter of commercial confidence may involve little more than "work done by the maker upon materials which may be available for the use of anybody, so as to achieve a result which can only be achieved by somebody who goes through the same process": Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37 at 49 per Gowans J. 92 Before proceeding, however, I pause here to note that care must be taken in using such loaded terms as "novel" in this context. The parties proceeded in this case as if it were a patent matter, presenting expert testimony regarding prior art, common general knowledge, and so forth. That is to say, they implicitly proceeded as if the Krueger design had to be patentable in order to be confidential. No doubt this approach was influenced at least in part by the ongoing patent application by Krueger in respect of the design at issue and the fact that the same experts were retained by the parties in both proceedings; Camerons' expert gave candid evidence that he was unaware of any distinction between patent, copyright, and breach of confidence litigation, and that he and Krueger's expert approached this case as if it were a patent dispute. Unfortunately, this is a fundamentally wrong approach in breach of confidence litigation. As Megarry J said in Coco (at 48), one should not get caught up by particular adjectives such as novel; "whether it is described as originality or novelty or ingenuity or otherwise, I think there must be some product of the human brain which suffices to confer a confidential nature upon the information". To put it more plainly, information need not be patentable, copyrightable, or otherwise protected by the intellectual property laws in order to be confidential. Common examples of commercial information that may be considered confidential even if not novel in the patent law sense include customer lists, price lists, business proposals, and marketing strategies. In this regard, I would draw the parties' attention to the concise definition of confidentiality provided by IP Toolbox in its handy reference page, "The concept of legal confidentiality" (available at http://www.iptoolbox.gov.au/default.asp?print=true&amp;action=article&amp;ID=194): Confidential information need not be entirely composed of information that is not available publicly. Public information can also be considered as confidential. This depends on the way a business uses the information. A customer list, for example, can be protected as having the necessary legal confidentiality where it has been developed and treated as confidential, even though it is drawn from information which is publicly known (ie. telephone records, trade journals, public registers etc). Legal confidentiality can be distinguished from the requirements for patent or design registration. The latter require that the concept be inventive and novel (or in the case of a design, an advance on the 'prior art' base). Legal confidentiality can protect uninventive information as long as it is not in the public domain. (Emphasis added.) 93 Notwithstanding that definition, the obligation of the Court is to decide the case that has been put, not the case that should have been put. Accordingly, I will approach the issue of confidentiality as it was argued - that for the Krueger Concept to be protected it must not have been routine or otherwise a minor variation of common general knowledge. In that respect, Krueger submitted that there were at least two bases on which its design could be seen as novel as compared to existing load restraint systems. I turn to consider those bases now. 94 Camerons accepted that an ability for gates to overlap or stack would have set the Krueger Concept apart from pre-existing load restraint systems so that the Krueger Concept would not have been routine or already publicly known. Camerons submitted, however, that the ability of the gates to overlap or stack was, in fact, not conveyed by the confidential information. 104 The concession of Mr Cameron does not end the inquiry, however, because not everything that is confidential in business is necessarily deemed confidential in law. What is important for information to attract a legal obligation of confidence is that "the preservation of its confidentiality or secrecy is of substantial concern to the plaintiff": Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) [1984] HCA 73 ; (1984) 156 CLR 414 at 438. In Moorgate , the High Court found that information relating to a new cigarette brand was not confidential in part because it comprised merely standard marketing materials that would be shown to any prospective licensees, not just the defendant. Here, on the other hand, it is clear that Krueger created the information and communicated it to Camerons so that Krueger, and only Krueger, would win the business with Camerons. It is thus objectively reasonable in the circumstances of this case that the preservation of the information's confidentiality and secrecy (specifically, its non-disclosure to competitors such as Vawdrey) was of substantial concern to Krueger. Accordingly, I conclude that the information in [3] attracted an obligation of confidentiality under the 'reasonable man' test propounded by Megarry J in Coco at 48. 106 Analysis of this third element requires what Megarry J in Coco (at 50) describes as both a strict and broad approach. The strict approach, which Megarry J suggested should be applied in commercial cases such as this, requires some detriment suffered by the provider of the confidential information for equity to intervene. In contrast, under the broad approach, unauthorised use does not necessarily need to be accompanied by detriment. In the years since Coco , however, the cases have cast considerable doubt on whether detriment should be considered part of the cause of action even in commercial cases: see L Tsaknis, " The Jurisdictional Basis, Elements and Remedies in the Action for Breach of Confidence Uncertainty Abounds " (1993) 5 Bond University Review 18, 21-23 (collecting the cases and stating, "It is not clear whether the confider must suffer any detriment as a result of the unauthorised disclosure, though the balance of the authority suggests that the better view is that detriment is not required"). I do not consider the point further, however, because Krueger did not raise it, relying instead principally on Coco . In any event, nothing much turns on detriment in the present case because detriment is not an issue if Krueger is successful in establishing the other elements, detriment was clearly suffered by Krueger in that it lost the contract with Camerons in respect of the Amcor Tender. 107 Krueger provided its information to Camerons for the limited purpose of winning a contract with Camerons for the manufacture of approximately 20 truck trailers. In order to advance this purpose, it allowed Camerons to include part of that information (the Subsequent Krueger Drawings) in the tender Camerons submitted to Amcor. As noted earlier, it was not submitted that the authorised disclosure of the Subsequent Krueger Drawing to Amcor robbed that drawing of its confidential character or released Camerons from its otherwise general obligation to maintain it in confidence. Camerons had asked for permission to disclose it to Amcor. It had not asked for permission to disclose it more generally. 108 That leaves the issue of unauthorised use of the confidential information. If it is shown that Camerons provided Krueger's information (or part of it) to Vawdrey, allowing Vawdrey to eventually win the work with Camerons, Krueger suffered detriment from that unauthorised use. As noted earlier in these reasons (see [81] to [83]), I concluded that Camerons, knowing the Krueger Concept to contain information confidential to Krueger, made unauthorised use of it by disclosing it to Vawdrey without the consent of Krueger.