mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Foster v Mountford &amp; Rigby Ltd (1976) 29 FLR 233
Outcome: cited
In Johns v Australian Securities Commission at 460, Gaudron J recognised that in Foster v Mountford &amp; Rigby Ltd (1976) 29 FLR 233 at p 238, Muirhead J enjoined a publisher on an interlocutory basis from continuing to publish and distribute a book revealing, in breach of an obligation of confidence on the part of the author, sites and objects of deep religious and cultural significance to particular Aboriginal claimant groups, and in Wheatley v Bell [1982] 2 NSWLR 544 at p 550, Helsham CJ (in Equity) enjoined on an interlocutory basis innocent licensees (described as parties who 'have already been licensed or chosen, or engaged, or are either purchasers or potential purchasers') of a promotional business system from using that system notwithstanding that they had apparently paid contracted amounts to a disclosee who had failed to observe an obligation of confidence to the plaintiff disclosor. Gaudron J noted at p 460 that the law had not developed to a point of identifying in a 'definitive or comprehensive way' the matters which would determine whether a duty of confidence might arise in a third party. 74 The decision in Johns v Australian Securities Commission , on this aspect of the matter at least, turned on the basis that the information made available voluntarily to the relevant media organisations had become publicly available and the question of the innocence of the third parties, Australian Broadcasting Corporation and the Herald &amp; Weekly Times Ltd, would require further determinations of questions of fact. The decision in Foster v Mountford arose out of an ex parte application and the commercial arrangements with the publisher were not examined. The decision in Fraser v Evans concerned the disclosure to an English national newspaper of aspects of a confidential report submitted by the plaintiff as a public relations consultant to the Greek Government. The case seemed not to involve acquisition of confidential information pursuant to an arms-length contract. Although the consultant had no standing to agitate a contended obligation on the part of the newspaper, and the information, in any event, was of such a nature that disclosure was in the public interest, the statement of general principle recognises that a third party who has not received confidential information in confidence might be restrained 'once he gets to know that it was originally given in confidence'. The decision in Wheatley v Bell adopted that expression of principle together with the observation of Professor Pettit ( Equity and the Law of Trusts , 3 rd ed (1974)) that a third party who knowingly obtains confidential information in breach of confidence or in any other fraudulent manner will be restrained from use and 'even if a man obtains the confidential information innocently, once he gets to know that it was originally given in confidence, he can be restrained from breaking that confidence', as the foundation for the interlocutory orders against the innocent licensees.
Case: Wheatley v Bell [1982] 2 NSWLR 544
Outcome: cited
In Johns v Australian Securities Commission at 460, Gaudron J recognised that in Foster v Mountford &amp; Rigby Ltd (1976) 29 FLR 233 at p 238, Muirhead J enjoined a publisher on an interlocutory basis from continuing to publish and distribute a book revealing, in breach of an obligation of confidence on the part of the author, sites and objects of deep religious and cultural significance to particular Aboriginal claimant groups, and in Wheatley v Bell [1982] 2 NSWLR 544 at p 550, Helsham CJ (in Equity) enjoined on an interlocutory basis innocent licensees (described as parties who 'have already been licensed or chosen, or engaged, or are either purchasers or potential purchasers') of a promotional business system from using that system notwithstanding that they had apparently paid contracted amounts to a disclosee who had failed to observe an obligation of confidence to the plaintiff disclosor. Gaudron J noted at p 460 that the law had not developed to a point of identifying in a 'definitive or comprehensive way' the matters which would determine whether a duty of confidence might arise in a third party. 74 The decision in Johns v Australian Securities Commission , on this aspect of the matter at least, turned on the basis that the information made available voluntarily to the relevant media organisations had become publicly available and the question of the innocence of the third parties, Australian Broadcasting Corporation and the Herald &amp; Weekly Times Ltd, would require further determinations of questions of fact. The decision in Foster v Mountford arose out of an ex parte application and the commercial arrangements with the publisher were not examined. The decision in Fraser v Evans concerned the disclosure to an English national newspaper of aspects of a confidential report submitted by the plaintiff as a public relations consultant to the Greek Government. The case seemed not to involve acquisition of confidential information pursuant to an arms-length contract. Although the consultant had no standing to agitate a contended obligation on the part of the newspaper, and the information, in any event, was of such a nature that disclosure was in the public interest, the statement of general principle recognises that a third party who has not received confidential information in confidence might be restrained 'once he gets to know that it was originally given in confidence'. The decision in Wheatley v Bell adopted that expression of principle together with the observation of Professor Pettit ( Equity and the Law of Trusts , 3 rd ed (1974)) that a third party who knowingly obtains confidential information in breach of confidence or in any other fraudulent manner will be restrained from use and 'even if a man obtains the confidential information innocently, once he gets to know that it was originally given in confidence, he can be restrained from breaking that confidence', as the foundation for the interlocutory orders against the innocent licensees.
Case: Fraser v Evans [1969] 1 Q.B. 349
Outcome: cited
Her Honour also noted the statement of principle of Lord Denning in Fraser v Evans [1969] 1 Q.B. 349 at p 361 to the effect that if a person 'comes by [confidential information] innocently, nevertheless once he gets to know that it was originally given in confidence he can be restrained from breaking that confidence' and the statement of principle of Goff J in Butler v Board of Trade [1971] Ch. 680 at 690 that 'an innocent recipient of information conveyed in breach of confidence is liable to be restrained'. 74 The decision in Johns v Australian Securities Commission , on this aspect of the matter at least, turned on the basis that the information made available voluntarily to the relevant media organisations had become publicly available and the question of the innocence of the third parties, Australian Broadcasting Corporation and the Herald &amp; Weekly Times Ltd, would require further determinations of questions of fact. The decision in Foster v Mountford arose out of an ex parte application and the commercial arrangements with the publisher were not examined. The decision in Fraser v Evans concerned the disclosure to an English national newspaper of aspects of a confidential report submitted by the plaintiff as a public relations consultant to the Greek Government. The case seemed not to involve acquisition of confidential information pursuant to an arms-length contract. Although the consultant had no standing to agitate a contended obligation on the part of the newspaper, and the information, in any event, was of such a nature that disclosure was in the public interest, the statement of general principle recognises that a third party who has not received confidential information in confidence might be restrained 'once he gets to know that it was originally given in confidence'. The decision in Wheatley v Bell adopted that expression of principle together with the observation of Professor Pettit ( Equity and the Law of Trusts , 3 rd ed (1974)) that a third party who knowingly obtains confidential information in breach of confidence or in any other fraudulent manner will be restrained from use and 'even if a man obtains the confidential information innocently, once he gets to know that it was originally given in confidence, he can be restrained from breaking that confidence', as the foundation for the interlocutory orders against the innocent licensees.
Case: Butler v Board of Trade [1971] Ch. 680
Outcome: cited
Her Honour also noted the statement of principle of Lord Denning in Fraser v Evans [1969] 1 Q.B. 349 at p 361 to the effect that if a person 'comes by [confidential information] innocently, nevertheless once he gets to know that it was originally given in confidence he can be restrained from breaking that confidence' and the statement of principle of Goff J in Butler v Board of Trade [1971] Ch. 680 at 690 that 'an innocent recipient of information conveyed in breach of confidence is liable to be restrained'.
Case: Stephenson Jordan &amp; Harrison Ltd v MacDonald &amp; Evans (1951) 68 RPC 190
Outcome: cited
These expressions of principle concerning rights to relief against third parties are stated at a reasonably high level of abstraction and do not deal 'definitively or comprehensively' with the 'matters' which determine ultimately whether a duty of confidence has devolved upon a third party. The applicant also relies upon what is said to be an applied expression of the principle to a bona fide third party for value in the decisions of Lloyd-Jacob J in Stephenson Jordan &amp; Harrison Ltd v MacDonald &amp; Evans (1951) 68 RPC 190 and the Court of Appeal in Stephenson Jordan &amp; Harrison Ltd v MacDonald &amp; Evans (1952) 69 RPC 10 per Evershed M.R. and Denning and Morris LL.JJ. In that case, Lloyd-Jacob J granted an injunction to restrain a publisher from publishing, pursuant to a contract with the author, a book containing confidential information of the plaintiff concerning the application of principles of business management to particular problems encountered at various functional levels of commercial activity. The publisher struck the contract innocently but once put on notice, prior to publication, of the confidential content incorporated within the work, the jurisdiction to grant an injunction was found by Lloyd-Jacob J to arise on the footing that 'an innocent mind at the time of contract could not overcome the consequences of full knowledge at or before the time [of publication]'. This applied statement of principle was said to derive from Prince Albert v Strange (1849) 1 Mac. &amp; G. 25 and Morison v Moat (1851) 9 Hare 241 at 263. On appeal, the Court of Appeal found that the principles of business management reflected in the work were not confidential and in the context of a contention that an injunction will not lie in the absence of some right of property, breach of contract or breach of trust, Evershed M.R. observed at p 16, '... it would be, to my mind somewhat shocking if reputable publishers, who discovered that there was in some work which they had acquired, a gross breach of faith, publication of which would involve the ruin of some business, yet nevertheless could say, having discovered that fact before they had published or incurred any substantial expense that they were entitled to insist on going on with their publication'. Denning LJ at p 22 fully agreed with 'all that [Evershed M.R.] has said on all the issues' and Morris LJ 'at p 23 also fully agreed'.
Case: Stephenson Jordan &amp; Harrison Ltd v MacDonald &amp; Evans (1952) 69 RPC 10
Outcome: cited
These expressions of principle concerning rights to relief against third parties are stated at a reasonably high level of abstraction and do not deal 'definitively or comprehensively' with the 'matters' which determine ultimately whether a duty of confidence has devolved upon a third party. The applicant also relies upon what is said to be an applied expression of the principle to a bona fide third party for value in the decisions of Lloyd-Jacob J in Stephenson Jordan &amp; Harrison Ltd v MacDonald &amp; Evans (1951) 68 RPC 190 and the Court of Appeal in Stephenson Jordan &amp; Harrison Ltd v MacDonald &amp; Evans (1952) 69 RPC 10 per Evershed M.R. and Denning and Morris LL.JJ. In that case, Lloyd-Jacob J granted an injunction to restrain a publisher from publishing, pursuant to a contract with the author, a book containing confidential information of the plaintiff concerning the application of principles of business management to particular problems encountered at various functional levels of commercial activity. The publisher struck the contract innocently but once put on notice, prior to publication, of the confidential content incorporated within the work, the jurisdiction to grant an injunction was found by Lloyd-Jacob J to arise on the footing that 'an innocent mind at the time of contract could not overcome the consequences of full knowledge at or before the time [of publication]'. This applied statement of principle was said to derive from Prince Albert v Strange (1849) 1 Mac. &amp; G. 25 and Morison v Moat (1851) 9 Hare 241 at 263. On appeal, the Court of Appeal found that the principles of business management reflected in the work were not confidential and in the context of a contention that an injunction will not lie in the absence of some right of property, breach of contract or breach of trust, Evershed M.R. observed at p 16, '... it would be, to my mind somewhat shocking if reputable publishers, who discovered that there was in some work which they had acquired, a gross breach of faith, publication of which would involve the ruin of some business, yet nevertheless could say, having discovered that fact before they had published or incurred any substantial expense that they were entitled to insist on going on with their publication'. Denning LJ at p 22 fully agreed with 'all that [Evershed M.R.] has said on all the issues' and Morris LJ 'at p 23 also fully agreed'.
Case: Prince Albert v Strange (1849) 1 Mac. &amp; G. 25
Outcome: cited
These expressions of principle concerning rights to relief against third parties are stated at a reasonably high level of abstraction and do not deal 'definitively or comprehensively' with the 'matters' which determine ultimately whether a duty of confidence has devolved upon a third party. The applicant also relies upon what is said to be an applied expression of the principle to a bona fide third party for value in the decisions of Lloyd-Jacob J in Stephenson Jordan &amp; Harrison Ltd v MacDonald &amp; Evans (1951) 68 RPC 190 and the Court of Appeal in Stephenson Jordan &amp; Harrison Ltd v MacDonald &amp; Evans (1952) 69 RPC 10 per Evershed M.R. and Denning and Morris LL.JJ. In that case, Lloyd-Jacob J granted an injunction to restrain a publisher from publishing, pursuant to a contract with the author, a book containing confidential information of the plaintiff concerning the application of principles of business management to particular problems encountered at various functional levels of commercial activity. The publisher struck the contract innocently but once put on notice, prior to publication, of the confidential content incorporated within the work, the jurisdiction to grant an injunction was found by Lloyd-Jacob J to arise on the footing that 'an innocent mind at the time of contract could not overcome the consequences of full knowledge at or before the time [of publication]'. This applied statement of principle was said to derive from Prince Albert v Strange (1849) 1 Mac. &amp; G. 25 and Morison v Moat (1851) 9 Hare 241 at 263. On appeal, the Court of Appeal found that the principles of business management reflected in the work were not confidential and in the context of a contention that an injunction will not lie in the absence of some right of property, breach of contract or breach of trust, Evershed M.R. observed at p 16, '... it would be, to my mind somewhat shocking if reputable publishers, who discovered that there was in some work which they had acquired, a gross breach of faith, publication of which would involve the ruin of some business, yet nevertheless could say, having discovered that fact before they had published or incurred any substantial expense that they were entitled to insist on going on with their publication'. Denning LJ at p 22 fully agreed with 'all that [Evershed M.R.] has said on all the issues' and Morris LJ 'at p 23 also fully agreed'.
Case: Morison v Moat (1851) 9 Hare 241
Outcome: cited
These expressions of principle concerning rights to relief against third parties are stated at a reasonably high level of abstraction and do not deal 'definitively or comprehensively' with the 'matters' which determine ultimately whether a duty of confidence has devolved upon a third party. The applicant also relies upon what is said to be an applied expression of the principle to a bona fide third party for value in the decisions of Lloyd-Jacob J in Stephenson Jordan &amp; Harrison Ltd v MacDonald &amp; Evans (1951) 68 RPC 190 and the Court of Appeal in Stephenson Jordan &amp; Harrison Ltd v MacDonald &amp; Evans (1952) 69 RPC 10 per Evershed M.R. and Denning and Morris LL.JJ. In that case, Lloyd-Jacob J granted an injunction to restrain a publisher from publishing, pursuant to a contract with the author, a book containing confidential information of the plaintiff concerning the application of principles of business management to particular problems encountered at various functional levels of commercial activity. The publisher struck the contract innocently but once put on notice, prior to publication, of the confidential content incorporated within the work, the jurisdiction to grant an injunction was found by Lloyd-Jacob J to arise on the footing that 'an innocent mind at the time of contract could not overcome the consequences of full knowledge at or before the time [of publication]'. This applied statement of principle was said to derive from Prince Albert v Strange (1849) 1 Mac. &amp; G. 25 and Morison v Moat (1851) 9 Hare 241 at 263. On appeal, the Court of Appeal found that the principles of business management reflected in the work were not confidential and in the context of a contention that an injunction will not lie in the absence of some right of property, breach of contract or breach of trust, Evershed M.R. observed at p 16, '... it would be, to my mind somewhat shocking if reputable publishers, who discovered that there was in some work which they had acquired, a gross breach of faith, publication of which would involve the ruin of some business, yet nevertheless could say, having discovered that fact before they had published or incurred any substantial expense that they were entitled to insist on going on with their publication'. Denning LJ at p 22 fully agreed with 'all that [Evershed M.R.] has said on all the issues' and Morris LJ 'at p 23 also fully agreed'.
Case: Franklin v Giddins [1978] QdR 72
Outcome: cited
In Franklin v Giddins [1978] QdR 72 Dunn J made an order for the delivery up of nectarine trees by a female defendant who from a nominated date knew that an orchard conducted by her husband and herself contained nectarine trees propagated by a grafting process undertaken by her husband based upon budwood cuttings stolen by her husband from the plaintiff's orchard. Because the female defendant knew, from the relevant date, that the trees were propagated from a stolen trade secret Dunn J in reliance upon the observations of Greene M.R. in Saltman Engineering Co. Ltd v Campbell Engineering Co. Ltd (supra) at p 213, held that it was unconscionable for her to derive any benefit from the propagation and sale of the trees and thus she, like her husband, infringed the plaintiff's rights. 79 Since the female defendant jointly conducted the orchard with her husband (the first defendant), and became after knowledge of her husband's conduct an active participant in the continued use of the plaintiff's stolen trade secret, she became an accessory to the primary conduct and thus susceptible to an injunction (although undertakings were ultimately recorded) and delivery up of the trees. 80 No feature of this case involves the notion of a party acting bona fide and striking an arms-length contract with another prior to any notice of a contended breach of an obligation of confidence by such a party and then being enjoined from exercising rights under the contract, upon notice. Accordingly, the primary Judge addressing the O 15A r 6 application, observed [16] that the case of Franklin v Giddins involved use of confidential information by somebody who had obtained it from an infringer rather than a case adapted to the relevant circumstances of the present applicant.
Case: Breen v Williams [1995] HCA 63 ; (1996) 186 CLR 71
Outcome: cited
There is no doubt that the authorities recognise that an innocent third party thus acting bona fide may come into possession of confidential information of a primary disclosor either by reason of a disclosure in breach of an obligation of confidence by the disclosee owed to the primary disclosor or because an entity dealing with the third party may have a degree of interconnection with the initial recipient such that information has been disclosed to that entity in breach of an obligation of confidence and then disclosed to the third party; and, in principle, 'in some circumstances the restraint of an apprehended or continued breach of confidence may involve enjoining third parties' ( Breen v Williams [1995] HCA 63 ; (1996) 186 CLR 71 per Gummow J at p 129; see also, Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2002) 54 IPR 161 per Gummow and Hayne JJ [137] [2001] HCA 63 ; (2002) 185 ALR 1; and Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501 at 537 and 567; Johns v Australian Securities Commission (supra)). Although Gummow J in Breen v Williams at p 129 was emphasising that the assertion of a right to relief in respect of an obligation of confidence does not rest upon any species of proprietary right, his Honour also notes that the circumstances of disclosure to the third party condition whether such a party will be enjoined.
Case: Australian Broadcasting Corporation v Lenah Meats Pty Ltd 54 IPR 161
Outcome: cited
There is no doubt that the authorities recognise that an innocent third party thus acting bona fide may come into possession of confidential information of a primary disclosor either by reason of a disclosure in breach of an obligation of confidence by the disclosee owed to the primary disclosor or because an entity dealing with the third party may have a degree of interconnection with the initial recipient such that information has been disclosed to that entity in breach of an obligation of confidence and then disclosed to the third party; and, in principle, 'in some circumstances the restraint of an apprehended or continued breach of confidence may involve enjoining third parties' ( Breen v Williams [1995] HCA 63 ; (1996) 186 CLR 71 per Gummow J at p 129; see also, Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2002) 54 IPR 161 per Gummow and Hayne JJ [137] [2001] HCA 63 ; (2002) 185 ALR 1; and Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501 at 537 and 567; Johns v Australian Securities Commission (supra)). Although Gummow J in Breen v Williams at p 129 was emphasising that the assertion of a right to relief in respect of an obligation of confidence does not rest upon any species of proprietary right, his Honour also notes that the circumstances of disclosure to the third party condition whether such a party will be enjoined.