Case: Telstra Corporation Limited v Australis Media Holdings Limited (unreported, Supreme Court of New South Wales, 3 December 1996)
Outcome: considered
Some of the obvious difficulties which can be created for legal advisers or others in such situations were adverted to in an interlocutory judgment given by McLelland CJ in Eq, in Telstra Corporation Limited v Australis Media Holdings Limited (unreported, Supreme Court of New South Wales, 3 December 1996). There his Honour said: 'So far as concerns disclosure to individuals who may in the future participate in decisions on the part of either of the plaintiffs or other commercial associates, to which confidential and commercially sensitive information in the satellite joint venture agreement may be relevant, any requirement imposed by way of condition or undertaking to refrain from using that information in making any such decisions may, in a practical sense, be impossible to fulfil, and any breach impossible to detect or prove. This was a point forcefully made by Hayne JA in the Mobile Oil Australia case where, at p 87, his Honour said: "Once the documents are inspected by the principals of the trade rival the information which is revealed is known to the trade rival and cannot be forgotten. Confidentiality is destroyed once and for all (at least so far as the particular trade rival is concerned). To say that the trade rival is bound not to use the documents except for the purposes of the action concerned is, in a case such as this, to impose upon that trade rival an obligation that is impossible of performance by him and impossible of enforcement by the party whose secrets have been revealed. How is the trade rival to forget what internal rate of return the competitor seeks to achieve on a new investment of the kind in question? How is the party whose hurdle rate has been revealed to know whether the rival has used the information in framing a tender? Thus, if the trade rival may inspect the documents concerned, the confidentiality of the information in them is at once destroyed. Is that necessary for the attainment of justice in the particular case?" This applies not only to any officers or employees of the respective plaintiffs but also to any solicitor or counsel who may have ongoing responsibilities in advising the plaintiffs or their commercial associates on matters other than the prosecution of the proceedings for which the confidential information in question may have relevance. For reasons of this kind in some classes of cases it may sometimes be appropriate to confine disclosure of particular documents to nominated individuals associated with the parties to which disclosure is to be made who have given undertakings to the Court and to the disclosing party, not only restricting the use to which information in the documents may be put, but restricting the future activities of those individuals in representing or advising, or in participating in decision making for, those parties, at least for some specified period of time. Such a procedure, however, has its own disadvantages discussed in the cases including the quarantining of the individual to whom the poisoned chalice passes, from providing their services in particular areas and depriving the parties of the benefit of those services, and also creating a situation where agents of a principal are in that capacity put in possession of information, from access to which the principal is excluded.'