Case: Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37
Outcome: applied
agreed elements of the action for breach of confidence are, for present purposes, that: (i) the information in question must be confidential in character: it must have "the necessary quality of confidence about it": Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 215; (ii) it must have been imparted in circumstances importing an obligation of confidence: Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47; Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37 at 40; and (iii) there must have been an actual or threatened unauthorised use or disclosure of that information: Smith Kline &amp; French Laboratories (Aust) Ltd v Department of Community Services and Health [1989] FCA 384 ; (1990) 22 FCR 73 at 87, 111-112; Prince Jefri Bolkiah v KPMG (a firm) [1998] UKHL 52 ; [1999] 2 AC 222. See generally, Dean, The Law of Trade Secrets and Personal Secrets (2 nd ed, 2002); Toulson and Phipps, Confidentiality (2 nd ed, 2006). The essential attribute of confidential information is what has been described as "relative secrecy": Franchi v Franchi [1967] RPC 149 , at 153; Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104 at 119. Whether this attribute exists in a given case will be often a question of degree and a variety of criteria have been invoked in varying contexts to sharpen the inquiry to be made: (i) is the information in question widely known, or publicly available in the relevant industry, trade, etc: Coco at 51; cf Ansell Rubber Co at 50; Titan Group Pty Ltd v Steriline Manufacturing Pty Ltd (1990) 19 IPR 353 at 381; (ii) has the confider made the information public by using it in its manufactured products and placing it on the market, or would the ascertainment of the information from the manufactured product by reverse engineering or otherwise require the expenditure of time, effort, money or experimentation: see eg Ackroyds (London) Ltd v Islington Plastics Ltd [1962] RPC 97 ; Aquaculture Corporation v New Zealand Green Mussel Co Ltd (1985) 5 IPR 357 at 379; (iii) did the confider produce or obtain the information only after the expenditure of time and/or money by way of research or in the application of skill and ingenuity; Saltman Engineering Co Ltd ; cf United Sterling Corporation v Felton [1974] RPC 162 ; Interfirm Comparison (Australia) Ltd , at 117; could another person acquire or duplicate the information only by going through a like process: Cranleigh Precision Engineering Ltd v Bryant [1966] RPC 81 at 89-90; Ansell Rubber Co at 49; (iv) what steps has the confider taken to preserve the secrecy of the information and to prevent it becoming public knowledge: Amber Size &amp; Chemical Co Ltd v Menzel (1913) 30 RPC 433 at 438; Dean, at [3.165]-[3.175]; (v) is the information intrinsically valuable or is it valuable to the confider or to a competitor or other interested party: Surveys &amp; Mining Ltd v Morrison [1969] Qd R 470 ; Measures Brothers Ltd v Measures [1910] 1 Ch 336 ; and (vi) would a reasonable person in all the circumstances recognise the information to be the "property" of the confider: Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 at 191; Printers &amp; Finishers Ltd v Holloway (No 2) [1965] RPC 239 at 255. There is no single test for determining when the communication of confidential information will import an obligation of confidence. As Gowans J said in Ansell Rubber (at 40): That obligation may come into existence by reason of the terms of an agreement, or what is implicit in them, by reason of the nature of the relationship between persons, or by reason of the subject-matter and the circumstances in which the subject-matter has come into the hands of the person charged with the breach. By way of background I should note that cl 28 of the Distribution Agreement did impose a duty of confidentiality of a qualified variety and its terms presaged that there could be confidential information about the Products imparted during the parties' relationship.