Artedomus v Del Casale [2006] NSWSC 146

Reported Decision : 68 IPR 577

New South Wales Supreme Court

CITATION : Artedomus v Del Casale [2006] NSWSC 146

HEARING DATE(S) : 5,6,7,8,14,15 Sept 2005 (written submissions received subsequently between 27 Sept & 17 October 2005)

JUDGMENT DATE : 13 March 2006

JUDGMENT OF : Burchett AJ at one

DECISION : Judgment for the Plaintiff on liability

CATCHWORDS : Confidential information - meaning of requirement that the information have "the necessary quality of confidence about it" - whether the secrecy of the information must be absolute or may be merely relative so that what is "not generally known" may be a trade secret or confidential information - relevance of "the usage and practices of the particular industry or trade" - effect of the decision in Wright v Gasweld Pty Ltd --- - confidentiality of information as to the source and suppliers in Italy of a particular stone found in a remote and little known area of Sicily - agreement in restraint of trade - whether related to employment only or also to goodwill involved in a sale of shares - effect of involvement of goodwill - construction of expression "commercially sensitive information " by reference to the practice in the industry concerned - whether a company was used as a cloak to enable a covenantor to avoid the effect of his personal obligation --- principles of construction of agreements in restraint of trade --- prevention of the use of confidential information as a "springboard" - duties of directors and employees of a company, whether currently or formerly so, with respect to information under s. 183 of the Corporations Act 2001.

LEGISLATION CITED : Corporations Act 2001 Restraints of Trade Act 1976.

Gilford Motor Company, Limited v Horne [1933] I Ch 935; Scheckter v Kolbe [1955] 3 S.Af.LR 109; H & R Block Ltd v Sanott [1976] 1 NZLR 213; Hawker de Havilland Ltd v Fernandes (1996) ATPR 41-479 at 41,905-41,906; Clarke v Newland [1991] 1 All ER 397 at 402; Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37; Industrial Rollformers Pty Ltd v Ingersoll-Rand (Australia) Ltd [2001] NSWCA 111 at [182] – [191]; R Dean on The Law of Trade Secrets and Personal Secrets 2nd Edition (2002) at 67; R Ricketson and C. Creswell on The Law of Intellectual Property: Copyright, Designs & Confidential Information Volume 2 section 25.85, 25.0; CASES CITED : Vulcan Detinning Co v Assmann (1918) 173 NY Supp. 334 ; Thomas Marshall (Exports) Ltd v Guinle [1979] Ch 227 at 248; Herbert Morris Ltd v Saxelby [1916] 1 AC 688, 705; International Scientific Communications Inc v Pattison [1979] FSR 429 at 434; Maggbury Pty Limited v Hafele Australia Pty Limited (2001) 210 CLR 181 at 197; Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317 ; Coco v A. N. Clark (Engineers) Ltd [1969] RPC 41 at 47; T.W. Cronin Shoe Pty Ltd v Cronin [1929] VLR 244; Butt v Long (1953) 88 CLR 476; Cream v Bushcolt Pty Ltd [2004] WASCA 82 at [21] - [24]; R.P. Austin H.A.J. Ford and I.M.Ramsay on Company Directors Principles of Law and Corporate Governance (2005) sections 9.19 – 9.24;