EQUITY EXAM NOTES INTRODUCTION
EQUITY EXAM NOTES INTRODUCTION Definition of equity
The separate body of law, developed in the Court of Chancery, which supplements, corrects, and controls the rules of common law. (Butterworths)
Judicature System
Supreme Court Act s 29 (1) o Law and equity to be concurrently administered
Rules of equity prevail if there is a conflict between rules of equity and rules of the common law concerning the same matter
Fusion Fallacy o The fusing of the administration of law and equity does not mean that the fusion of law and equitable doctrines has occurred o Examples:
Doctrine in Walsh v Lonsdale: Agreement for a lease is as good as a lease
Breach of confidence: No need to establish detriment
Modern equity
Exclusive jurisdiction: Certain causes of action which arose only in equity
Availability of remedies 1
o Some remedies: Only available for equity’s exclusive causes of action o Other remedies: Available in relation to common law (auxiliary jurisdiction)
Two types of remedies o Personal remedies: Attach to the person o Proprietary remedies: Attach to property
Constructive trust: Only available if a breach of fiduciary duty
Remedies are discretionary o Making out cause of action does not guarantee specific outcome
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BREACH OF CONFIDENCE Whose confidence is protected: A corporation cannot get benefit if personal dignity (Lenah); but personal ingenuity may mean the corporation also has confidence
Element 1: Information must be specific (Komessaroff)
Approach
1. Determine whether the information is defined with sufficient precision
Obligation on plaintiff (Komesarroff) i.
To clearly define what the confidential information is
ii. Consider generality of info (ie minutes; resolutions; provisions of a trust)
Does the matter concern a pleading seeking an injunction? (Ocular Sciences)
Element 2: Information must have the necessary quality of confidence (Coco)
Approach
1. Is the type of information within the scope of the breach of confidence doctrine?
Non-commercial and commercial information can be protected i.
Commercial (product of human brain): Saltman (technical drawings); Franklin (technique for breeding trees); Talbot (concept/documents)
ii. Non-commercial (human dignity): Giller (sex depiction); Foster (ritual) iii. Combination: Hello! (personal information for commercial purpose)
Diverse range of information protected i.
The genetic structure of a tree (trade secret) (Franklin)
ii. Photograph (Hello!); Images on film (Lenah Meats) 3
2. Is the information banal?
Analogy to established banality: Wedding (Douglas); Processing (Lenah)
If no analogy: Determine whether it is banal in context (tittle tattle?- Coco)
Consider extent to which product of human brain
3. Is the information sufficiently secret?
Test: Must not be public property and public knowledge (Saltman)
Lack of barriers: Ease of access to processing relevant (Lenah)
Knowledge of limited class: Not conclusive- focus on relative secrecy i.
Jane Doe: Statutory regime restricting disclosure relevant
ii. AFL: Learning in official capacity + unreliable discussion forums
4. Reverse engineering: If reproduced through own endeavours, not breach (Saltman)
5. Does the public interest preclude classification as secret? (Gummow, Smith Kline)
Eg (Castrol): Security; matters medically dangerous to public
Element 3: Information imparted in circumstances importing an obligation of confidence
Starting Point
Test o Would a reasonable person in the defendant’s position have realised that the information was confidential? (Coco)
Determine which category of case is relevant (Gummow, Smith Kline)
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1. Is the information surreptitiously or improperly obtained? (Takings)
Examples i. Franklin: Taking budwood with unique genetic characteristics ii. Lenah: Taking unauthorised film
Atmosphere of confidence i. Lenah (lack of restrictions) vs Hello (lengths to protect secrecy)
Photo of private act from a distance: Likely to satify definition (Lenah)
2. Is the information imparted in confidence which ought not be divulged? (Givings)
Examples i.
Talbot: Information about a potential TV show
ii. Saltman: Drawings provided for a limited manufacturing purpose
Restrictions on the use of information imparted (Smith Kline) i.
If D did not know/ought know of limited purpose: Not bound
Blurting information (Coco) i. Establishing blurting: Depends on atmosphere of confidence (Lenah)
3. Tricky cases
Finding information i. Consider atmosphere of confidence 1. Spycatcher (Marked Top Secret) 2. Lenah: Information flying outside window
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Blurting information (Coco) i. Does not have the necessary quality of confidence
4. Has the information been passed to a third party?
Apply same test: Would a reasonable person have known information disclosed in circumstances importing an obligation of confidence?
If information not confidential and other party not bound i.
Fact obtained tortiously does not stop publication (Lenah)
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The separate body of law, developed in the Court of Chancery, which supplements, corrects, and controls the rules of common law. (Butterworths)
Judicature System
Supreme Court Act s 29 (1) o Law and equity to be concurrently administered
Rules of equity prevail if there is a conflict between rules of equity and rules of the common law concerning the same matter
Fusion Fallacy o The fusing of the administration of law and equity does not mean that the fusion of law and equitable doctrines has occurred o Examples:
Doctrine in Walsh v Lonsdale: Agreement for a lease is as good as a lease
Breach of confidence: No need to establish detriment
Modern equity
Exclusive jurisdiction: Certain causes of action which arose only in equity
Availability of remedies 1
o Some remedies: Only available for equity’s exclusive causes of action o Other remedies: Available in relation to common law (auxiliary jurisdiction)
Two types of remedies o Personal remedies: Attach to the person o Proprietary remedies: Attach to property
Constructive trust: Only available if a breach of fiduciary duty
Remedies are discretionary o Making out cause of action does not guarantee specific outcome
2
BREACH OF CONFIDENCE Whose confidence is protected: A corporation cannot get benefit if personal dignity (Lenah); but personal ingenuity may mean the corporation also has confidence
Element 1: Information must be specific (Komessaroff)
Approach
1. Determine whether the information is defined with sufficient precision
Obligation on plaintiff (Komesarroff) i.
To clearly define what the confidential information is
ii. Consider generality of info (ie minutes; resolutions; provisions of a trust)
Does the matter concern a pleading seeking an injunction? (Ocular Sciences)
Element 2: Information must have the necessary quality of confidence (Coco)
Approach
1. Is the type of information within the scope of the breach of confidence doctrine?
Non-commercial and commercial information can be protected i.
Commercial (product of human brain): Saltman (technical drawings); Franklin (technique for breeding trees); Talbot (concept/documents)
ii. Non-commercial (human dignity): Giller (sex depiction); Foster (ritual) iii. Combination: Hello! (personal information for commercial purpose)
Diverse range of information protected i.
The genetic structure of a tree (trade secret) (Franklin)
ii. Photograph (Hello!); Images on film (Lenah Meats) 3
2. Is the information banal?
Analogy to established banality: Wedding (Douglas); Processing (Lenah)
If no analogy: Determine whether it is banal in context (tittle tattle?- Coco)
Consider extent to which product of human brain
3. Is the information sufficiently secret?
Test: Must not be public property and public knowledge (Saltman)
Lack of barriers: Ease of access to processing relevant (Lenah)
Knowledge of limited class: Not conclusive- focus on relative secrecy i.
Jane Doe: Statutory regime restricting disclosure relevant
ii. AFL: Learning in official capacity + unreliable discussion forums
4. Reverse engineering: If reproduced through own endeavours, not breach (Saltman)
5. Does the public interest preclude classification as secret? (Gummow, Smith Kline)
Eg (Castrol): Security; matters medically dangerous to public
Element 3: Information imparted in circumstances importing an obligation of confidence
Starting Point
Test o Would a reasonable person in the defendant’s position have realised that the information was confidential? (Coco)
Determine which category of case is relevant (Gummow, Smith Kline)
4
1. Is the information surreptitiously or improperly obtained? (Takings)
Examples i. Franklin: Taking budwood with unique genetic characteristics ii. Lenah: Taking unauthorised film
Atmosphere of confidence i. Lenah (lack of restrictions) vs Hello (lengths to protect secrecy)
Photo of private act from a distance: Likely to satify definition (Lenah)
2. Is the information imparted in confidence which ought not be divulged? (Givings)
Examples i.
Talbot: Information about a potential TV show
ii. Saltman: Drawings provided for a limited manufacturing purpose
Restrictions on the use of information imparted (Smith Kline) i.
If D did not know/ought know of limited purpose: Not bound
Blurting information (Coco) i. Establishing blurting: Depends on atmosphere of confidence (Lenah)
3. Tricky cases
Finding information i. Consider atmosphere of confidence 1. Spycatcher (Marked Top Secret) 2. Lenah: Information flying outside window
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Blurting information (Coco) i. Does not have the necessary quality of confidence
4. Has the information been passed to a third party?
Apply same test: Would a reasonable person have known information disclosed in circumstances importing an obligation of confidence?
If information not confidential and other party not bound i.
Fact obtained tortiously does not stop publication (Lenah)
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