——— IP Litigation and disputes · Brisbane
Breach of Confidence of Business Brisbane
A breach of confidence occurs when information that is confidential and valuable to a business is accessed, lost or disclosed without authority, in a way that breaches the business’ legal or contractual rights. This may include misuse of trade secrets, client lists and data, pricing information or other valuable sensitive business information.
$500k+
Minimum value of confidential
information lost
12 – 24mo
Typical litigation
timeframe
📞
Direct Line – Brisbane
——— Practical tips
What should you do?
Practical tips for businesses that have lost confidential information.
01
Act quickly
Because delay is one of the reasons why a Court will not want to issue an injunction.
02
Identify with precision
Exactly what confidential information has been lost or disclosed and who was behind it.
03
Limit Disclosures
Limit any further disclosure or misuse immediately, by revoking system access and changing passwords.
04
Check the source
Of the confidentiality obligation and follow through on notification obligations.
05
Consider urgency
Consider whether urgent legal action is required, including urgent application for evidence preservation orders.
06
Review
Review and improve internal confidentiality protections after the loss to prevent future breaches.
On this page
- quick summary of breach of confidence matters
- what constitutes confidential information?
- who can commence proceedings for breach of confidence?
- relief available for breaches of confidence
- conduct giving rise to a breach of confidence
- key takeaways about breach of confidential matters
- our approach to matters involving confidential information
- FAQs
- send an enquiry
- legislation for breach of confidence
- recent insights about breach of confidence
- recent Federal Court decisions regarding breach of confidential information
——— breach of confidence · Brisbane
Quick summary of breach of confidence
A business may have a claim for breach of confidence where confidential material is used, copied, disclosed or retained without its authority.
Claims may arise under contract, equity or, in some cases under, statute or because of a persons role.
The business must show that the information:
- had the necessary quality of confidence
- had commercial value or was shared in circumstances requiring confidentiality
- was not public, obvious or trivial
- was used or disclosed without authority, causing actual or potential detriment
——— What constitutes breach of confidence?
What is a breach of confidence?
What is a breach of confidence
A breach of confidence occurs where a person uses or discloses confidential information without authority.
The legal test
Generally requires that: the information has the necessary quality of confidence; it was received in circumstances importing an obligation of confidence; and there was unauthorised use or disclosure causing detriment.
Claims
Claims usually arise in equity or contract, including confidentiality clauses and NDAs.
Applicable Laws
Depending on the information involved, legal action may be pursued under the Privacy Act 1988 (Cth), Corporations Act 2001 (Cth) or intellectual property legislation.
Summary
Simply put, it means misusing information that should have been kept confidential.
——— Are you eligible to initiate proceedings?
Who can commence legal proceedings?
Proceedings are usually commenced by the corporate owner of the confidential information. Court action must be supported by a recognised legal basis. Limitation periods vary by claim and jurisdiction, and urgent action may be needed to preserve remedies.
——— What are the reliefs and remedies available?
Relief and remedies for breach of confidence?
Where confidential information has been misused, the affected party may seek court orders to stop further disclosure, recover the information, and address any loss caused.
Possible remedies include:
Injunction
To urgently restrain a person from using, publishing or disclosing the confidential information.
Delivery up or deletion
To require confidential documents, files or data to be returned, destroyed or permanently deleted.
Damages or compensation
To compensate the business for loss suffered because of the breach.
Account of profits
To recover profits made by the wrongdoer from misusing the confidential information.
Orders against third parties
Third party recipients, directors or others involved in the misuse may also be joined where legally appropriate.
——— What are the common examples giving rise to a breach of confidence?
Conduct giving rise to a breach of confidence
Conduct that may amount to a breach of confidence includes using, copying, downloading or disclosing confidential business information without authority.
Common examples include:
Employee or director misuse
An employee or director downloads a confidential database before leaving the business and uses it to compete with the company.
Misuse of computer code
A developer accesses proprietary source code and uses it to build, sell or improve a competing product.
Customer list discolsure
A staff member copies a customer or supplier list and provides it to a third party or new employer.
Unauthorised disclosure
A contractor shares pricing, strategy documents, designs or internal processes with someone outside the business.
Speak With a Breach of Confidence Lawyer
If your business is the subject of a breach of confidence, our lawyers can assess your legal options and help you determine the most effective strategy — including whether litigation makes commercial sense.
or email us at info@dundaslawyers.com.au
——— Key takeaways
Key takeaways about breach of confidence
What is a breach
A breach of confidence may occur where confidential business information is accessed, used, copied or disclosed without authority.
Types of information
Confidential information can include client lists, databases, pricing, trade secrets, business strategies, software code and internal documents.
Types of claims
Claims may arise under contract, equity or statute, depending on the relationship between the parties and the type of information involved.
Consider urgent action
Urgent action may be required to preserve evidence, stop further misuse and protect the business’ legal position.
Possible remedies
Possible remedies may include injunctions, delivery up or deletion of information, damages, compensation or an account of profits.
——— Our approach
How Dundas Lawyers handles breach of confidence matters
Dundas Lawyers approach to breach of confidence cases, combines years of commercial litigation experience with a practical understanding of intellectual property and disputes between businesses. Identifying and forensically preserving evidence is at the heart of our approach to breaches of confidence. In this respect our lawyers use our Uncommon Nous to help clients identify what information is confidential, assess whether it has been misused, and choose the most effective response.
Disputes we advise on:
- Misuse of confidential information
- Disclosure of trade secrets
- Former employees using client lists, pricing information or internal records
- Breaches of NDAs or confidentiality clauses
- Threatened publication or disclosure
What a dispute involves:
- Identifying confidential information
- Identifying use or disclosure
- Reviewing contractual obligations
- Sending or responding to demands
- Negotiating undertakings
- Seeking urgent injunctions
- Court proceedings if necessary
Information we may request:
- Relevant contracts or agreements
- Emails and correspondence
- Copies of confidential information
- Evidence of misuse or disclosure
- Details of involved parties
- Timeline of key events, including when info was created, accessed & misused
——— Common Examples
FAQs about breach of confidence
Common questions about breach of confidence and how to address potential breaches.
01
What is breach of confidence?
Breach of confidence occurs when a person misuses confidential information that was shared with them in circumstances where they knew, or should have known, that the information was confidential.
02
What information can be confidential?
Confidential information may include trade secrets, client lists, supplier details, pricing information, business strategies, financial information, private communications, designs, formulas, source code or other commercially sensitive material.
03
Is breach of confidence the same as copyright infringement?
No. Copyright protects original works, while breach of confidence protects information that has the necessary quality of confidence. In some cases, both causes of action may be claims relevant.
04
Can a former employee use information they learned at work?
A former employee can generally use their own skill, knowledge and experience. However, they must not misuse confidential information, client lists, computer code and other information which has been held to be confidential.
05
What do I need to prove in a breach of confidence claim?
Generally, an applicant will need to show that the information was confidential, it was shared or obtained in circumstances importing an obligation of confidence and there was unauthorised use or threatened misuse of that information.
06
Can breach of confidence matters be resolved without going to Court?
This depends but many breach of confidence disputes are resolved through negotiation, undertakings, settlement agreements or other practical dispute-resolution steps. Court proceedings may still be necessary where urgent relief is required.
Legislation for breach of confidence
Legislation relevant to breach of confidence claims
- Corporations Act 2001 (Cth) — may be relevant where a director, officer or employee misuses company information obtained through their role.
- Privacy Act 1988 (Cth) — may apply where the confidential information is also personal information handled by a covered organisation.
- Copyright Act 1968 (Cth) — may be relevant where the confidential material is also a copyright work, such as documents, software, plans or written content.
Breach of confidence enquiry
Recent insights about breach of confidence
-
Misuse of confidential information within source code
In Australia, computer code can amount to confidential information as well as being subject to copyright protection. In some cases the two things overlap as was the case in decision of the Court in Optus Networks Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281; [2010] FCAFC 21.
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Ex-employees and intellectual property protection
Ex-employees can be a threat to a company’s intellectual property, but with the right contractual clauses, employers can protect their trademarks, copyright, patent, and design. Learn more about how to safeguard your company’s intellectual property.
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Use of confidential information – the springboard injunction
This article examines the UK decision of Forse & ors v Secarma Ltd & ors [2019] EWCA Civ 215, which discussed the legal concept of a springboard injunction, and its implications in Australia. The Court must consider similar principles to determine if an injunction should be granted.
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Injunction sought for breach of confidence
Dundas Lawyers helped a corporate client protect their confidential information and copyright material from a former employee and contractor. Read the full article to learn how they used detailed work and a chronology to secure justice for their client.
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Are fiduciary duties owed by former company directors?
A former director’s duties and responsibilities to their previous company may not end with their resignation. Find out how the Advanced Fuels Technology Pty Ltd v Blythe & Ors [2018] VSC 286 case explored this concept and what the Court had to say.
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What exactly is the springboard doctrine?
This article examines the ‘springboard’ doctrine which refers to the benefit that is derived because of misuse of confidential information by a defendant that enables them to ‘springboard’ a new product or service to market more rapidly than if they had used their own mind.
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Know-how vs confidential information
Understand the difference between “know-how” and confidential information when it comes to employer-employee relationships. Find out how to protect confidential trade secrets and use broad contractual terms to ensure protection. Click through to get the full details.
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Compilations from the public domain – confidential or not?
The Court of Appeal in Ezystay Systems Pty Ltd v Link 2 Pty Ltd [2014] NSWSC 180 had to re-examine the test for confidential information. It found that for information to be protected, it must have the necessary attributes of confidentiality and must be the product of skill and ingenuity of the human brain.
Recent Federal Court decisions regarding breach of confidential information
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New Aim Pty Ltd v Leung [2026] FCAFC 49
CONTRACT – confidentiality – where the first respondent was employed by the appellant – where the employment contract contained a clause providing that the first respondent shall not misuse confidential information of the appellant – where the contract did not contain a definition of confidential information – where the contractual obligation was equivalent to an…
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Korea Midland Power Co Ltd v ACIRL Quality Testing Services Pty Ltd (No 2) [2025] FCA 987
PRIVILEGE – legal professional privilege – third party reports – investigation of alleged misconduct of employees – whether third party reports were created for the dominant purpose of receiving legal advice – held that reports were subjective to legal professional privilege PRIVILEGE – waiver – implied waiver – whether voluntary disclosure of aspects of the…
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Aristocrat Technologies Australia PL v Light & Wonder, Inc. (No 2) [2025] FCA 64
Application for interlocutory injunction to restrain individual from using devices containing confidential information – application refused.
