Case: Dart Industries Inc v Decor Corporation Pty Ltd [1993] HCA 54 ; (1993) 179 CLR 101
Outcome: followed
The claim by Bluescope and Castrip for an account of profits requires a determination of the profit derived by Mr Kelly and K.Con from any wrongful use or disclosure of the relevant information. The Court, in calculating the quantum of profit, must make such approximation as will do justice to the parties ( Dart Industries Inc v Decor Corporation Pty Ltd [1993] HCA 54 ; (1993) 179 CLR 101 at 119). 162 K.Con received sums totalling $1,484,238.16 from Danieli. K.Con paid $333,802 to Messrs Sorensen, Minter, Russell, Zancolich and their respective companies and incurred travelling and other expenses of $41,934.37. Bluescope and Castrip assert that the net amount of $1,108,501.79 is the profit derived by Mr Kelly and K.Con from their wrongful use or disclosure of the relevant information. 163 While that calculation of profit makes an allowance for amounts paid to Messrs Sorensen, Minter, Russell, Zancolich and their companies and travelling and other expenses, it makes no other allowance for the cost of deriving the fees. Nor does it make allowance for information provided to Danieli that did not consist of confidential information relating to Project M. Danieli received information and assistance from K.Con, in exchange for the fees of $1,484,238, that was not confidential information belonging to Bluescope and Castrip. It is tolerably clear that Danieli also obtained benefit derived from Mr Kelly's wealth of experience in steel making over some 40 years. It would not have been possible for Mr Kelly or K.Con to disclose the specific information that has been identified except through an individual who has Mr Kelly's wealth of experience in steel making. 164 Bluescope and Castrip contend that, without the confidential information relating to Project M, neither Mr Kelly nor K.Con would have been retained by Danieli at all. They say that the whole arrangement involving the Consultancy Agreement between K.Con, on the one hand, and Danieli, on the other, came about only by reason of the wrongful use of the confidential information obtained by Mr Kelly from Bluescope. They say that Danieli only paid K.Con in exchange for receiving confidential Project M information. Had K.Con not been in a position to provide confidential Project M information, Danieli would have paid nothing at all. Accordingly, they say, the net amount represents profit obtained by K.Con from unlawful conduct (see Dart Industries at 119-120). 165 It may be that an inference can be drawn that Danieli was interested in entering into arrangements with Mr Kelly and K.Con because of Mr Kelly's involvement with Project M. However, it by no means follows that Danieli's object was to obtain confidential information relating to Project M, in breach of Mr Kelly's obligations of confidence to his employer. Bluescope and Castrip do not contend, and they have certainly not established, that all of the information imparted by Mr Kelly, either directly or through K.Con, to Danieli involved a breach of Mr Kelly's obligations of confidence. On the other hand, it is for Mr Kelly to demonstrate the extent to which any benefit he received in connection with any breach of duty is attributable to his own effort, expertise and know how beyond the mere disclosure of confidential information.