Case: Commonwealth v John Fairfax &amp; Sons Ltd [1980] HCA 44 ; (1980) 147 CLR 39
Outcome: cited
to the question posed in [56(b)] above (the cause of action based upon the breach of the equitable duty of confidence), the following matters are relevant: (a) The classic definition of the equitable duty of confidence is found in Lord Ashburton v Pape [1913] 2 Ch 469 at 475. At that part of his reasons, Swinfen Eady LJ said: The principle upon which the Court of Chancery has acted for many years has been to restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged. Injunctions have been granted to give effectual relief, that is not only to restrain the disclosure of confidential information, but to prevent copies being made of any record of that information, and, if copies have already been made, to restrain them from being further copied, and to restrain persons into whose possession that confidential information has come from themselves in turn divulging or propagating it. These observations were cited with evident approval by Mason J in Commonwealth v John Fairfax &amp; Sons Ltd [1980] HCA 44 ; (1980) 147 CLR 39 at 50; (b) In the present case, the information was not improperly or surreptitiously obtained. It is contended that it was imparted in confidence in circumstances where it ought not to be divulged; (c) The question of whether an equitable duty arises in the present case is not straightforward. The relevant information was contained in documents which were produced pursuant to compulsory powers invoked by the ACCC and in circumstances where it is at least arguable that the only source of any duty of confidence is s 155AAA itself. Although the use of documents and information obtained compulsorily in this way is constrained by s 155AAA and perhaps may be constrained by other general law principles, it is difficult to see how a party in the position of Allphones could sensibly expect that the information would be kept confidential and not disclosed even for legitimate purposes associated with the due performance by the ACCC of its statutory functions. It may be thought that this is particularly so in circumstances where Allphones made no express claim for confidentiality when the documents were produced. In Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88 ; (2008) 246 ALR 137 , [2008] ATPR 42-218 , Gordon J, in the context of considering claims that documents ought not to be disclosed on public interest immunity grounds, said (at [30]): The theoretical merit of the ACCC's confidentiality contentions is even more deficient. A cartel claim, by definition, involves collusion between two or more actors. In the same way that it is both inevitable and self-evident that the statements of a cooperating criminal conspirator will be used against (ie, disclosed to) the non-cooperating conspirators, it must be taken for granted that a cartel participant contemplating a confession to the authorities knows, or should know, that his statements will be used by the authorities to prosecute the other party or parties. As such, the ACCC's claim that a party like Amcor can have a reasonable expectation of confidentiality with respect to statements made to investigators is devoid of substance. And without such a reasonable expectation, the ACCC's contention that non-disclosure of the documents is required to protect the public interest cannot stand. and (d) The definition of protected information seems to me to contemplate a dichotomy between information that is given (voluntarily) in confidence to the ACCC, on the one hand, and information that was obtained by the ACCC (compulsorily) pursuant to a s 155 Notice, on the other hand. In the latter case, the section seems to contemplate that there is no room for any equitable duty of confidence to arise.