Case: Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70 ; (2002) 210 CLR 181 , 
Outcome: applied
Where parties enter into written or verbal confidentiality agreements prior to commercial negotiations, the terms of the agreement usually govern the rights and obligations of the parties to that agreement. This is so even in relation to information that may not truly be confidential (for example because it has lost its confidentiality by reason of being in the public domain): Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70 ; (2002) 210 CLR 181. Nonetheless, the High Court found that the agreement in question in Maggbury was an unreasonable restraint of trade because the information the agreement sought to protect was in the public domain and had been put there by Maggbury itself. 112 Krueger submitted there was a contractual obligation arising out of an express agreement to keep certain information confidential between Krueger and Camerons at the Cameron / Krueger meeting. The evidence of John Krueger and Grant Krueger was that at the beginning of the meeting with Camerons, John Krueger specifically requested that all information discussed in the meeting be kept private and confidential. Mr Cameron denies that confidentiality was discussed at any point during the meeting and denies that there was any express agreement as to confidentiality. He said that if the issue had been raised, he would have been offended. Initially, Tindal denied that confidentiality was discussed but later accepted he could not recall whether confidentiality was discussed at the meeting. 113 Both Grant and John Krueger asserted that Krueger had good reason to demand a confidentiality agreement from Camerons on the basis that Camerons rarely bought trucks from Krueger and he had the impression that Camerons was not seriously considering contracting with Krueger, but instead trying to keep Vawdrey competitive. It is true Camerons had not purchased many new Krueger trucks directly from Krueger for some years, though they did own a number of Krueger trucks they had purchased on the second hand market. 115 In this respect, as in others, I prefer the evidence of the Krueger witnesses to that of Camerons' witnesses. That is, I find that there was an oral agreement between Krueger and Camerons that "any quotation, drawings and technical and pricing information provided by Krueger, including the Krueger Concept, would be kept confidential. (The consideration for that agreement was an exchange of promises - a promise of confidentiality in consideration for a promise to proceed with the negotiations and submit a design proposal.) Moreover, that agreement was a reasonable restraint of trade because, unlike in Maggbury , the Krueger Concept was not already in the public domain. Finally, for the reasons given earlier (see [81]-[83]), Camerons breached that agreement. 116 Camerons submitted that, even if it breached an equitable or contractual obligation of confidentiality to Krueger, it was nevertheless not liable in damages because Krueger lost the contract with Camerons for reasons unrelated to disclosure of the confidential design information. Specifically, it argued that Vawdrey won the contract for reasons of delivery time, price, difficulties with hire trailers, and reliability of supply. 117 Having carefully reviewed those submissions, I find that the evidence does not support them. In that regard, I need not rely on the principle that I should more readily infer that the wrongdoer achieved its desired objective: eg omnia praesumuntur contra spoliatorem . Instead, I find as a matter of fact that, but for the disclosure of Krueger's confidential information by Camerons to Vawdrey, Krueger would have won the contract with Camerons. Further, I find that it was reasonably foreseeable to Camerons at the time it disclosed the confidential information that Vawdrey would use the information to improve its design solution and win the contract to the detriment of Krueger.