O'Brien v Komesaroff [1982] HCA 33

High Court of Australia Mason, Murphy, Aickin, Wilson and Brennan JJ. O'Brien v Komesaroff [1982] HCA 33

ORDER Appeal dismissed with costs. Cross appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1982, May 21 Mason J.

The respondent, the plaintiff in the action, claimed against the appellants relief for breach of copyright and for breach of confidence. Both at first instance and in the Full Court of the Supreme Court of Victoria the respondent succeeded in relation to breach of copyright but was unsuccessful in relation to breach of confidence. From the decision of the Full Court the appellants appeal and the respondent cross appeals to this Court.

The respondent is an experienced solicitor who appeared in person. The first appellant ("the appellant") is an accountant and life insurance salesman. The second and third appellants are companies with which the appellant and members of his family have been closely associated. The respondent alleged that the appellants infringed his copyright in certain unit trust deeds and articles of association in 1974 and thereafter. The action for breach of confidence is founded upon an alleged confidential communication to the appellant of, and consequential misuse of, certain information relating to, first, the form of a unit trust deed drafted by the respondent which expressed a concept to minimize taxation and estate duty for the beneficiaries of the trust and, secondly, a scheme designed to minimize taxation by using an overseas trust in a suitable "tax haven" country in conjunction with an Australian trust entity.

Breach of Copyright.

In the late 1950s the respondent became professionally interested in the use of various devices as a means of minimizing taxation. At that time it was common for persons possessing considerable assets and income to use discretionary trusts to minimize the incidence of income tax. In the same period public unit trusts were in common use in the community. This concept involved the vesting of property in a trustee who was bound by a trust deed to deal with the property as directed by the manager (usually a private corporation). The trust property was held for the benefit of "unit holders", these being members of the public who subscribed to the trust and derived income from their investment in proportion to their unit holding. In 1959 or 1960, as a result of proposed changes to income tax legislation, the respondent researched the possibility of developing a private unit trust for an individual family as an alternative tax minimization device.