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 equitable obligation of confidence – where no occasion to consider whether necessary for equity to intervene where there is a contractual obligation of confidence – whether the first respondent misused confidential information – held: breach of contract made out PRACTICE AND PROCEDURE – equity – breach of confidence – where the appellant pleaded that an equitable obligation attached to confidential information comprising the identity and contact details of all of its suppliers as at January 2021 – where the primary judge decided the claim on that basis – where the appellant also opened and conducted its case on the basis that the body of information to which an equitable obligation of confidence attached was the identity and contact details of 17 specific suppliers – where the primary judge did not address this narrower case – held: the primary judge erred in failing to address the alternative case EQUITY – breach of confidence – where the appellant is a large online retailer of various goods sourced from China – whether the identity and contact details of 17 specific suppliers of the appellant was confidential information – where the information concerning all the appellant’s suppliers as at January 2021 included information relating to suppliers that were historical and unreliable – where the information concerning the 17 specific suppliers related to reliable, current suppliers of products suitable to the Australian market – where it would require substantial effort and time to identify such suppliers – where the information concerning the 17 suppliers was commercially valuable – where the appellant engaged in white-labelling of products to prevent public disclosure of supplier information – where the appellant implemented restrictions on employee access to supplier information – where the first respondent, after leaving employment with the appellant, disclosed the information concerning the 17 suppliers to the fourth and fifth respondents, being competitors of the appellant – where it was conceded that the first respondent had misused the information in breach of an equitable obligation, if the information was confidential – where the information concerning the 17 suppliers was confidential – held: breach of confidence made out CORPORATIONS – whether the first respondent breached s 183 of the Corporations Act 2001 (Cth) by improperly using the information concerning the 17 suppliers – where the primary judge held there can be no improper use of information under s 183 if the information cannot be regarded as confidential in equity – where the meaning of information in s 183 is not so limited – where, to the extent that Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 2; 81 IPR 1 held otherwise, it was wrong – where, even if the information concerning the 17 suppliers was not confidential in equity, the degree of confidentiality of the information and the circumstances of its misuse supported a finding that the first respondent breached s 183 – held: claim under s 183 made out EQUITY – breach of confidence – where the appellant brought derivative claims for breach of confidence against the fourth and fifth respondents – where the primary judge dismissed the claims against the fourth and fifth respondents because the primary judge dismissed the claim against the first respondent – held: claims against fourth and fifth respondents remitted for further hearing
Original article available at: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2026/2026fcafc0049For more information, see the original judgement.
