Published on 20/03/2008

Estoppel in Equity

5.1 Proprietary estoppel

Equity developed a jurisdiction to prevent a person from insisting upon strict legal right in property, usually land, in circumstances in which the person concerned had encouraged another to act in his or her detriment on the faith of a belief that he or she had some rights over the property in question.

The result of this estoppel is usually extinction, qualification or suspension of the rights of the legal titleholder, rather than the requirement to make good some representation made by that party. It does not necessarily rely on any expectation created or encouraged by the defendant. Acquiescence with knowledge in the plaintiff’s mistaken belief will also satisfy the doctrine.

Dillwyn v Llewelyn
Facts: a father put his son in possession of some land and signed an instrument of conveyance which proved to be ineffective. The son occupied the land and built a house on it, all with the knowledge and approval of the father. On the father’s death, the son obtained a declaration that he was the equitable owner of the land.
Held: The rule that if A puts B in possession of the land and tells him that he may build a house on it, and B – on the strength of that promise, with the knowledge of A – expends money in building a house, then B will acquire a right to compel A to complete the contract and perfect the imperfect donation.

The other line of authority Ramsden v Dyson places much stronger reliance on equitable fraud arising in circumstances where B improves the land of A, under the belief that he has some right to that land, and A, knowing of B’s mistaken assumption and of his work on the land, stands by and allows B to proceed with the improvements.
“If a stranger begins to build on my land supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a court of equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own.”

In Willmott v Barber, Fry J stated the elements of equitable estoppel:
1.   Plaintiff must have made a mistake as to his or her legal rights;
2.   the plaintiff must have expended money or done some other act on the faith of that mistaken belief;
3.   the defendant must know of his or her own legal right, which is inconsistent with that claimed by the plaintiff;
4.   the defendant must know of the plaintiff’s mistaken belief; and
5.   the defendant must have encouraged the plaintiff in his or her expenditure or other actions, either directly or by abstaining from asserting his or her own rights.
The question will be whether the defendant can resile from the expectation fostered by the statements made and other conduct and which have led to the action taken by the plaintiff. If it is reasonable to expect that a normal person would respond to the act of encouragement, it should not matter whether the encouraging party also knew that the plaintiff was responding.

Proprietary estoppel, arising from encouragement rather than acquiescence, was also applied in qld in Riches v Hogben, preventing an elderly woman from denying her 64 year old son a proprietary interest in a house she had purchased in Brisbane in her name. The son had migrated from England with his family on the basis of an assurance by the mother that she would purchase a house in his name if he came out to look after her. Within a week of the son and his family moving in, the mother asked them to leave, following a disagreement.

Stevenson v Payne is authority commonly cited in support of the proposition that it would be essential for the party insisting on his or her rights to have known of them at the time of the acquiescence or encouragement in the expenditure by the other.

The relief awarded in proprietary estoppel has been described as the minimum equity required to do justice: Crabb v Arun District Council. In the ‘encouragement’ cases, this is held to require fulfillment of the expectation, while in the ‘acquiescence’ cases the concern has generally been to prevent A from enjoying the benefit conferred on him or her by B, or to compensate B for any exertions, sometimes by charging the property of A.
The principle which operates in determining the appropriate relief is one concerned to prevent unconscionable insistence upon strict rights. Relief will generally take the form of some qualification, suspension or extinguishment of the rights of A unless that has become impossible, in which case compensation for the detriment may be awarded. In extreme cases the court may go further.

Jackson v Crosby
A man was effectively awarded half the unencumbered, improved value of a block of land on which he built a house. The land was owned by a woman with whom he had been living, and was intended to be their home. The court considered half the value of the house and land, about $19,000, a more appropriate compensation in the circumstances than the value of the man’s labour, about $12,000.

Giumelli v Giumelli
HC dealt with the remedy that estoppel gives you. Specifically, what is the relationship between estoppel and a constructive trust.

Facts: Mr and Mrs Giumelli conducted a business as a partnership and encouraged their son to stay and work in the business by promising that he would be given an unspecified part of the block of the land they had acquired. Also told him that he could build a house on the land. Robert’s first marriage failed after his wife refused to live on the land, he remarried, and his parents disapproved. His parents disapproved and refused to subdivide the block of land and transfer a portion of it into robert’s name. Robert commenced proceedings that his parents held the land on trust to convey the promised lot to him.
Held: Full court were prepared to make an order in the nature of constructive trust to secure the conveyance to Robert Giumelli of the promised lot.

HC upheld the finding that Robert Giumelli had incurred detriment in acting in reliance on the promise to convey part of the land to him. However, overturned the Full Court’s decision to award the remedy of constructive trust. Instead, it made an order for the payment of a monetary sum representing the then present value of Robert’s claim to the promised lot. Their honours said that before making an order imposing a constructive trust, the court was obliged to consider all the circumstances of the case including the still pending partnership action, improvements to the lot by family members other than Robert, the breakdown in family relationships, and the continued residence on the promised lot of one of Roberts brothers and his family.
“in these cases, the equity which founded the relief obtained was found in an assumption as to the future acquisition of ownership of the property which had been induced by representations upon which there had been detrimental reliance by the plaintiff. This is a well recognized variety of estoppel as understood in equity and may found relief which requires the taking of active steps by the defendant.”

Before a constructive trust is imposed, it is outlined in Plimmer v Mayor of Wellington that ‘the court must look at the circumstances in each case to decide in what way the equity can be satisfied’ i.e. is there an appropriate equitable remedy which doesn’t require imposing a trust; court needs to also look at relevant third factors (including the impact upon relevant third parties).

5.1 Waltons v Maher

The underlying principle of the common law doctrine of estoppel by representation is that it ‘prevents a person who, by representation of fact, has led another to alter his position, from denying that the fact is as represented’: Discount & Finance Ltd v Gehrig’s NSW Wines Ltd (1940)

In Jordan v Money the House of Lords confined estoppel by representation to representations of existing fact, rather than intention of some future matter. In Low v Bouverie stated that estoppel was a rule of evidence and would not itself support a cause of action.  The result was that a party seeking to rely on and enforce some representation could not sue on estoppel. This destroyed estoppel by representation as a cause of action at common law.

The principle distinction between equitable estoppel and common law estoppel is the requirement that there be a representation as to an existing fact. Equitable estoppel will apply where the representation or assumption on which the plaintiff operates includes matters of future intention or conduct. Equitable estoppel can be used as a cause of action: a sword as well as a shield, at common law, it is only available as a ‘shield’.

The two strands of estoppel in equity, proprietary estoppel and promissory estoppel, have now been joined under the one doctrine of equitable estoppel.
The principle source of authority is Waltons Stores (interstate) Ltd v Maher (1988) Facts:
1.   The respondents (lessors) negotiated with the appellant (lesee) for the lease of commercial premises in Nowra.
2.   It was arranged that the respondents would demolish the existing premises and construct new premises which the appellant would lease.
3.   Draft agreements were prepared, negotiated and ammended.
4.   The appellant’s solicotor told the respondents’ solicitor that he had received verbal instructions from the appellant that the amendments were acceptable.
5.   The appellant’s solicitor sent to the respondents solicitor (7 Nov) fresh documents incorporating the agreed ammendments.
6.   The covering letter said ‘you should note that we have not yet obtained our clien’ts specific insturcitons to each amendment requested, but we believe that approval will be forthcoming. We shall let you know tomorrow if any amendments are not agreed to.
7.   Having heard nothing (11 Nov) the respondents’ solicitor forwarded executed documents ‘by way of exchange’.
8.   Thereafter, the respondents completed demolition of the old building, the appellant becoming aware of this fact (10 Dec).
9.   Having been advised by its solicitor that it was not bound to proceed because contracts had not been exchanged, the appelant decided not to commit itself to the lease and instructed its solictor to ‘go slow’.
10.   Pursuant to these instructions, the appellant’s socilitr made no response to the letter of 11 Nov until 19 Jan, and in the meantime, had retained possesion of the document executed by the respondents.
11.   By letter dated 19 Jan the appellant’s solicitor informed the respondents’ solicitor that the appelnt did not intend to rpoceed with the matter.
12.   At that stage the new building was approx 40 per cent completed.
13.   The respondents’ instituted proceedings for specific performance or damanges, and obtained an award of damages.
14.   Carney J found that the appellants were estopped from denying that a contract existed.
15.   Problem with this is that it doesn’t really fit the facts: they said, here is our side of the contract by way of exchange, BUT, they never actually got the other half back. Thus difficult to say that there was an actual contract, as they knew they had never received the contract back grom the other side.
16.   Problem was that if you don’t prove the contract, you are left arguing that there was a promise for a contract (this would be promissory estoppel). If it is an estoppel by conduct case (if you have found that there is an actual representation of a contract) then it is an easy case.
17.   But the facts do not fit this, so difficult to argue that there was a factual contract existing.
Held: Gaudron and Deane JJ took this view in the HC.
Mason CJ and Wilson J
Note: the traditional conception of promissory estoppel
[T]rue it is that in the orthodox case of promissory estoppel, where the promisor promises that he will not exercise or enfroce an existing right, the elements of reliance and detriment attract equitable interveniton on the basis that it is unconscionable for the promisor to depart from his promise, if to do so will result in detriment of the promisee.
- Per Mason CJ and Wilson J
-Ratio:
[T]he doctrine extends to the enforcement of voluntary promises on the footing that a depature from the basic assumptions underlying the tranasaction between the parties must be unconscionable. As failure to fulfill a promise does not of itself amount to unconscionable conduct, mere reliance on an executory promise to do something, resulting in the promisee changing his position or suffering deriment, does not bring promissory estoppel into play. Something more would be required….this may be found, if at all, in the creation or encouragement by the party estopped in the other party of an assumption that a contract will come into existence or a promise will be perfromance and that the other party relied on the assumption to his detriment or the knowledge of the first party”.
- Per Mason CJ and Wilson J
-Held:
[T]he appellants inaciton in all the circusmtances consituted a clear encouragement or inducement to the respondents to continue to act on the basis of the assumption which they had made. It was unconscinoable for it, knowing that the repsondents were exposing themselves to detriment by acting the basis of a false assumption, to adopt a course of inaciton which encouraged them in the course they had adopted. To express the point in the language of promissory estoppel the appellant is estopped in all the circusmtances from retreating from its implied promise to complete the contract.
- Per Mason CJ and Wilson J
-Brennan J
[I]n my opinion, to establish equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintff assumed or expected that a particular legal relationship exists between the plaintiff and the defendant or that a particular legal relationship will exist between them and, in the latter case, that the defendant is not free to withrdraw from the expected legal relationship; (2) the defedant has induced the plaintiff to adopt the assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the asusmption or execptation; (4) the defendant knew or intended him to do so; (5) the plaintiffs aciton or inaciton will occasion detriment if the asusmption or expectation is not fulfilled; and (6) the defendat has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will neverthless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant’s porperty, a diminuition of his rights or an increase in his obligations and he, knowing that the plaintiff’s reliance on the assumption or expecation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or exceptation on which the plaintiff is conducting his affairs.

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Problems with promissory estoppel: it was argued that it only applies to pre-exisitng contracts; does it not emasculate the whole idea of consideration (all you need to do instead is rely on it to your detriment). However, Mason CJ and Wilson J note:
[S]o far the doctrine has been mainly confined to precluding departure from a representaiton by a person in a pre-existing contractual relationship that he will not enforce his contractual rights, whether they be pre-existing or rights to be acquired as a result of the rerepsentaiton….In principle, there is certainly no reason why the doctrine should not apply so as to preclude departure by a person from a representaton that he will not enforce a non-contractual right.

Despite the slight divergence in opinion in the HC, the better statement of principle appears to be that applied by Mason CJ and Wilson J, that equity will come to the relief of a plaintiff who has acted to his or her detriment on the basis of a basic assumption in relation to which the other party to the transaction has played such a part in the adoption of the assumption that it would be unconscionable of that other party to ignore the assumption. In that sense, equitable estoppel is based on the relief against unconscionable conduct, rather than the making good of representations.

Elements of Waltons estoppel:
These are drawn from Waltons.
-    Assumption or representation: Plaintiff adopts an assumption that a certain state of affairs exists or will be brought into existence. Usually an issue of fact, law or legal right. The representation can be inferred from conduct. Needs to be clear and unambiguous
-    Encouragement or acquiescence: Defendant can be shown to have contributed to or caused the adoption of the assumption by the plaintiff. Usually as a result of some representation;
-    Reliance: Plaintiff acts or refrain from acting in reliance on the assumption in such a way that he or she will suffer detriment if the assumption is denied. The action or inaction, the change of position in reliance of the assumption, must also be of some significance

Fitzwood Pty Ltd v Unique Goal Pty Ltd (in liq) [2001]
Held: The equity principle will have no application when the transaction remains wholly executory on the plaintiff’s part. If the facts give rise to an estoppel, the relief that a court will grant should not ‘exceed what could be justified by the requirements of good conscience’ particularly where it would be unjust to the estopped party’  equity permits the court to do what is necessary but no more. The representee must demonstrate a link between the promise or representation made and the conduct said to be in reliance on that promise, it need not be the sole inducement for the actions of the representee provided it acts as an inducement. This cannot be the case if it is shown that the representee would have acted in the same way whether the representation was made or not.

-    Detriment: Plaintiff will suffer detriment if the assumption is not made good or if the Defendant insists on his strict legal rights that are inconsistent with the assumption, the representee must show that it is unconscionable for the party making the representation to resile from it in the circumstances. Jurisdiction in equity is based on the need to relieve against the detriment which would otherwise be suffered by the plaintiff, rather than the making good of the representation or expectation.
One view of detriment is the relevant detriment is confined to the detriment flowing from the reliance on the assumption. The other view is that the relevant detriment is detriment occasioned by reliance on a promise that is not fulfilled.

-    Unconscionability: It must be unconscionable for the Defendant to insist on his strict rights and deny the assumption as seen in Austotel Pty Ltd v Franklins Selfserve Pty Ltd  a property developer and a supermarket proprietor negotiated for lease of new premises, exchanging letters of intent expressed to be subject to a formal agreement for a lease. Subsequently, the size of the store was increased but no agreement was reached on the rent to be charged for the larger premises. The supermarket proprietor nevertheless acquired fittings and equipment and the property developer proceeded with construction and adaption of the store premises.

o   By a majority the crt held that the parties were commercial entities which had deliberately refrained from coming to an agreement as to rental, and in those circusmtances, no equity had arisen from the developer who subsequently declined to enter a lease. Having taken the deliberate ‘gamble’, Franklins could not expect equity to put it in the position it would have held had it not gambled.
o   Priestly JA analysed Waltons and earlier cases, and concluded that for equitable estoppel to operate in pre-contractual negotiations [T]here must be the creation or encourgament by the defendant in the plaintiff of an assumption that a contract will come into existence or a promise be performed or an interest granted the plaintiff by a defendant, and relianc eon that by the plaintiff in circustmances where departure from the assumption by the defendant would be unconscionable. - Per Priestly JA

In this case, they took the view of commercial reality, you have to be free to change your mind, you have to be able to back out of a contract.
This appears to be the dividing line: there was encouragment in Waltons, however, in this case, there was no encouragment.

The point of unconscionability requires something more. It requires that there be something wrong in the circumstances themselves. Waltons knew for some time they were not going to take up the lease and knew also the Mahers were demolishing the buildings and going ahead with construction. They let some months go by before saying they were not proceeding with the lease.

Commonwealth v Verwayen affirmed the doctrine of equitable estoppel identified in Waltons.
Facts: Verwayen was a member of the crew of HMAS Voyager when that ship was sunk in a collision with HMAS Melbourne during naval exercises.

In 1984, he commenced proceedings against the Commonwealth seeking damages for injuries sustained in the collision, which he alledged had been caused by the negligence of the officers and crew of one or both ships.
At the time proceedings were commenced, and for some considerable time thereafter, the Commonwealth stated that it would not rely on any defences based on the Statute of Limitations, or on the ground that the Voyager was engaged in a combat situation at the time of the collision, so that the only issues to be tried would be whether the injuries sustained by the plaintiff had resulted from the sinking of the Voyager and the appropriate measure of damages. In 1985 that policy was changed and in 1986 the Commonwealth sought and obtained leave to amend its defence to contest liability, on the basis that it did not owe a duty of care in the circumstances, and that the claim was statute-barred. The respondent delivered a reply which asserted, among other things, that the Commonwealth was estopped from relying on either defence.

Held: The Commonwealth could not change its position and that it could not introduce either defence. Majority thought that it was enough that the Cth promised to pay V’s costs, ie. put him back in the position he would have occupied if he never brought the action.

But, importance is that there are comments in the Mason and Brennan judgements that the different doctrines of estoppel are merging.

[I]n conformity with the fundamental purpose of all estoppels to afford protection against the detriment which would flow form a party’s change of position if the assumption that led to it were deserted, these developments have brought a greater underling unity to the various categories of estoppel. Indeed, the consistent trend in the modern decisions points inexorably twaords the emergence of one overarching doctrine of estoppel rather than a series of independent rules.
-Per Mason CJ

-Deane J (part of majority) argued that promissory estoppel was a species of estoppel by conduct (again, an overarching princple with ‘branches’ as opposed to different doctrines altogether)

This case is subject to the continuation of the debate about the possible unification of equitable and common law estoppel.
The principles of equitable estoppel were discussed and applied by the Full Court of the Federal Court in S & E Promotions Pty Ltd v Tobin Bros Pty Ltd (1994)
Held: as in Waltons that in some cases it might be necessary to show that the defendant had actual knowledge of a belief that the plaintiff had acted in reliance. Where the actions or the imprudence of the Defendant was a ‘proximate cause of the other party’s adopting and acting upon the faith of the assumption’, then the justice of an estoppel would be made out. As far as reliance was concerned, it was stated that it would be sufficient to the representee to establish that reliance caused it to lose a real chance of avoiding the detriment.

The Current state of law:
1.   The object of the estoppel is to prevent an unjust departure by one person from an assumption adopted by another as the basis of some act or omission which, unless the assumption is adhered to, would operate to that other’s detriment.
2.   Equitable estoppel can also arise from representations or assumptions as to future conduct: Waltons.
3.   Equitable estoppel is a source of substantive rights and may be pleaded as a cause of action in its own right.
4.   Equitable estoppel creates an equity in favour of the party who can successfully assert it. The remedy granted will be that necessary to prevent detriment resulting from the unconscionable conduct of the other party, which is described as ‘the minimum equity to do justice to the plaintiff’: Crab v Arun District Court.
5.   The essential feature of the modern doctrine of equitable estoppel is its operation as a principle designed to prevent unconscionable conduct, or the unconscionable insistence on strict rights. It does this by fashioning appropriate remedies to achieve that object.
6.   There is uncertainty with the elements of the cause of action available under the principle of equitable estoppel. Mason CJ and Wilson J in Waltons view estoppel in equity as a doctrine principally intended to prevent unconscionable conduct. However Brennan J in Waltons equitable estoppel arises mainly to prevent the detriment of the plaintiff would otherwise suffer if the assumption or expectation were not made good.

There is concurrent jurisdiction between equitable estoppel and estoppel in pais in the field of representations of fact, there seems little need for unification. HC appears unlikely to revisit the question of unification of common law and equitable estoppel.

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5.3 Confidential Information

A person who receives information of a confidential nature, in circumstances of confidence, cannot make unauthorized use of that information. Equity will restrain any threatened abuse and otherwise will hold the confident accountable for any profits acquired by such improper use: Coco v A N Clark (Engineers) Ltd.

The plaintiff, the confider, must show that the information was of a confidential nature, and not a matter of common knowledge: Saltman Engineering Co Ltd v Campbell Engineering Co Ltd.

The circumstances in which the information is imparted must be confidential.  The trade secrets of an employer will be protected under this doctrine, but an employee will not be prevented from using skills and knowledge acquired in the course of employment: Herbert Morris Ltd v Saxelby.

Coco v A N Clark (Engineers) Ltd [1969]
Inventor of a moped went to Clark with a view to selling them the design for manufacture. Clark said no thanks but later produced a moped very much similar to Coco’s. Sued and lost – couldn’t make out the second element listed below. Coco was careless in the way he imparted the information.
1.   The information at issue is of a confidential nature;
2.   The information was communicated in circumstances of confidence;
3.   There was unauthorized use of the information;

The reasonable man’ test: The obligation of confidence will arise out of a contract between the parties, and the extent of the obligation will be determined by that agreement, although the existence of such an agreement will not necessarily exclude the operation of general equitable principles. An obligation of confidence may arise simply from the circumstances surrounding the receipt of the information  the question then is whether the information was disclosed for a limited purpose.

One view is to take the objective test where the confident will be found to have received the information for a limited purpose if a reasonable person, standing in the shoes of the recipient, would have realized that the information was being given to him or her in confidence: Mense v Milenkovic.
However, it is stated that the better test would be to ask whether an equity lawyer, ‘observing the analogies so far drawn from the produce of labour, would in all the circumstances recognise the information in question as being the property of the plaintiff’.

Information needs to be confidential
-    Often if it is in the public domain it will not be considered confidential.
-    But it can still be confidential if there are a number of elements that are known to the public but which are brought together in a unique way;
-    This has also been applied to cases of idea poaching in TV networks and in reprehensible means involving industrial espionage;
-    In situations of employees and confidential information the Courts in Australia have adopted the Faccenda approach:

Faccenda Chicken Ltd v Fowler
There are three kinds of employee knowledge with degrees on confidentiality:
1.   information which is publicly available and trivial so obvious it cannot be protected;
2.   information which is confidential only during the term of employment. It becomes part of the person’s fund of knowledge should the employment be terminated;
3.   Confidential trade secrets which will be protected even after termination of the employment.
Goulding J noted that information in the second category might be protected after the period of employment by express agreement restraining the employee from competing, subject to reasonable limits such as time and geography. As seen in

Wright v Gasweld Pty Ltd
Facts: Wright was employed by Gaswald who imported goods from 4 Taiwan dealers out of 3000 which produced similar goods. They were chosen for their reliability. Only Gaswalds managing director dealt directly with the suppliers in Taiwan. Wright was sent to Taiwan but was required to sign a written agreement containing a promise to keep confidential the identity and whereabouts of any supplier used by Gaswald during his employment with the company and thereafter. After leaving Gaswald, Wright set up competition and Gaswald sought to restrain him from using information about its suppliers.
Held: An injunction was granted restraining Wright from using the information for a period of 4 years from the date of termination of his employment. The clause of the contract restraining Wright for an unlimited period of time is void at common law for being too wide under s4 of the Restraining of Trade Act.

Information obtained by reprehensible means: Someone who obtains information by dishonest, unlawful or superstitious means cannot be said to have been given information ‘in confidence’, and yet there can be no good reason why a person in that position in the same way as a consensual recipient of such information.

The Springboard doctrine: A person who receives information in confidence will not be allowed to use it as a springboard for activities detrimental to the party who provided the information, even though all other aspects of the product have been published or can be ascertained by actual inspection by any member of the public. This is to ensure that the possessor of such information does not get an unfair start.

Reciept by third parties: The obligation of confidence will apply not only to the original confidant, but also to any third party to whom the information is conveyed and who knows, or becomes aware, of the confidentiality of the original communication, regardless of whether they acquired the information innocently or for value: Wheatley v Bell.

If the third party possesses actual knowledge of the dishonesty or of the circumstances surrounding it, then they may fall under the second leg of Barnes v Addy, and be held liable to account as constructive trustee, if need be as strangers participating with knowledge in a dishonest and fraudulent design on the part of a trustee or fudiciary.

Breach of duty

It is not clear whether the confider must suffer any detriment from such use. It has been argued in some cases that detriment is essential and in other cases that it is not. If detriment is essential it gives the action for breach of confidence the flavour of a cause of action at common law with the element of damage rather than that of an equitable claim concentrating on the conduct of the defendant. Detriment is not necessary in an action to restrain a breach of fiduciary duty.

Defences

Change of position: Where a party receives confidential information innocently (or at least in innocence of the limitation placed on its use) and, believing he or she has the right to use the information, makes some significant or otherwise acts to his or her detriment by materially altering his or her circumstances on the understanding that he or she can use the information, that party can plead that change of position as a defence against a confider seeking to assert the right to confidentiality.

Public interest:

Sometimes the confident will be justified in disclosing the information when it is in the public interest. In Australia, the courts have not been so willing to apply this principle as seen in Castrol Australia Pty Ltd v Emtech Associates Pty Ltd.
Facts: Plaintiff provided certain documents to the Trade Practices Commission for the purpose of establishing whether some proposed advertisements satisfied a part of the act. The commission later attempted to prosecute Castrol for other breaches on the basis of information contained in the documents. Castrol sought to restrain this on the ground that the documents were supplied for a limited purpose. The commission argued that such use was justified in the public interest.
Held: the proposed use was a breach of confidence and that the defence of public interest was not made out. He said that a just cause for breaking a confidence must be more weighty and precise than a public interest in the truth being told.

When the confider is the government, or some government agency, the public interest consideration takes on a different meaning. In Commonwealth v John Fairfax & Sons Ltd it was held that “It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to the government when the only vice of that information is that it enables the public to discuss, review and criticize government action”.

Access to the Cmlth Govt documents in the normal course of events is governed by the Freedom of Information Act 1982 (Cth) and also the Privacy Act 1988.

In some circumstances, the law may compel disclosure of information received in confidence, such as the Public Health Act 1902 which imposes a requirement on medical practitioners to inform the relevant authorities when a patient tests positive for the HIV virus.