Abrahams v Biggs - [2011] FCA 1475

FEDERAL COURT OF AUSTRALIA
Abrahams v Biggs [2011] FCA 1475

Citation: Abrahams v Biggs [2011] FCA 1475

Parties: TONY ABRAHAMS v BARBARA BIGGS and IASO TRADING PTY LTD (ACN 143 071 050)

File number: VID 812 of 2010

Judge: JESSUP J

Date of judgment: 23 December 2011

Catchwords:
CONFIDENTIAL INFORMATION – Inventor of device to prevent bed bugs having access to beds informing acquaintance of intended improvements – Whether information or merely idea – Whether identified with sufficient specificity – Whether information had necessary quality of confidence – Whether circumstances of imparting information imported obligation of confidence.

TRADE PRACTICES – Misleading and deceptive conduct – False or misleading representations about price and product quality – Whether damage suffered by party to proceeding.

Legislation: Trade Practices Act 1974 (Cth) ss 52, 53, 82, 87 & 163A

Cases cited: Australian Competition and Consumer Commission v Chen (2003) 201 ALR 40
Australian Medic-Care Co Ltd v Hamilton Pharmaceuticals Pty Ltd (2009) 261 ALR 501
Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434
Dais Studio Pty Ltd v Bullet Creative Pty Ltd
(2007) 74 IPR 512
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109
Jones v Australian Competition and Consumer Commission [2010] FCA 481
Macquarie Bank Ltd v Seagle [2005] FCA 1239
RLA Polymers Pty Ltd v Nexus Adhesives Pty Ltd (2011) 280 ALR 125
Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275
Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73

Dates of hearing: 3-6 October 2011

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 97

Counsel for the Applicant: The applicant appeared in person

Counsel for the First Respondent: The first respondent appeared in person

Counsel for the Second Respondent: The first respondent appeared, by leave, on behalf of the second respondent

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 812 of 2010

BETWEEN:
TONY ABRAHAMS
Applicant

AND:
BARBARA BIGGS
First Respondent

IASO TRADING PTY LTD (ACN 143 071 050)
Second Respondent

JUDGE:

JESSUP J

DATE OF ORDER:

23 DECEMBER 2011

WHERE MADE:

MELBOURNE

THE COURT DECLARES THAT:
1.By publishing, on or about 29 June 2010, on their “bbsafe.com.au” web site –
(a)the statement that the BB Safe Ring was half the price of currently available bed leg barriers; and

(b) the statement that the BB Ring was about half the cost of similar products;

the respondents engaged in conduct that was misleading in contravention of s 52 of the Trade Practices Act 1974 (Cth) and made a misleading representation in contravention of s 53(e) of that Act, in that the standard price of the respondents’ goods so referred to was more than half the price of the applicant’s Bed Bug Barrier.
2.By publishing, on or about 29 June 2010, on their “bbsafe.com.au” web site the statement that other bed bug barriers were either unsightly or provided a bridge…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FCA 1475
Decision Date: 23 December 2011

CaseChat Overview and Summary

The case of Abrahams v Biggs is a dispute in the Federal Court of Australia where Tony Abrahams, the inventor of a device called the "Bed Bug Barrier," alleged that Barbara Biggs and her company, Iaso Trading Pty Ltd, had misappropriated confidential information regarding the utility of polytetrafluoroethylene (Teflon) in preventing bed bugs from accessing beds. Abrahams sought declarations, injunctions, damages, and orders for delivery up of the infringing devices. He also alleged that the respondents contravened sections 52 and 53(a) and (e) of the Trade Practices Act 1974 (Cth) by making denigratory statements about his device on Iaso’s website. He sought declarations and damages in relation to these claims.

The legal issues before the court were whether the information Abrahams imparted to Biggs was sufficiently specific to be protected as confidential information, and if so, whether it possessed the necessary quality of confidence. Additionally, the court had to determine if the circumstances under which the information was shared created an obligation of confidence, and whether the respondents’ actions constituted misleading or deceptive conduct under the Trade Practices Act. The court also needed to assess if Abrahams had suffered any damages due to the respondents' actions.

In its reasoning, the court found that the information Abrahams shared with Biggs was not sufficiently specific to constitute confidential information. The court determined that the information lacked the necessary quality of confidence and did not impose an obligation of confidence on Biggs. Furthermore, the court held that the statements made by the respondents did not amount to misleading or deceptive conduct. As a result, Abrahams' claims were dismissed. The court ordered that the proceeding be listed for submissions on costs.

This case highlights the complexities involved in establishing the misappropriation of confidential information and the stringent requirements for such claims. It also underscores the importance of specificity and the quality of confidence in determining whether information can be protected under the law. The court's decision provides clarity on the boundaries of what constitutes confidential information and the circumstances under which an obligation of confidence may arise.

Orders

Orders of the court

4. The application otherwise be dismissed.

5. The proceeding be listed at 9:30 am on 6 February 2012 for the purpose of receiving the parties’ submissions, if any, on the question of costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

Background

Background to the litigation

In this proceeding the applicant, Tony Abrahams, alleges that the respondents, Barbara Biggs (“the respondent”), and her company, Iaso Trading Pty Ltd (“Iaso”), appropriated confidential information about the utility of polytetrafluoroethylene (better known by, and hereinafter referred to by, the proprietary name under which it is marketed – “Teflon”) for preventing or impeding the access of bed bugs to beds. Declarations, injunctions, damages and orders for delivery up are sought in that regard. The applicant also alleges that, when the respondent caused certain denigratory statements to appear on Iaso’s web site, both respondents contravened ss 52 and 53(a) and (e) of the Trade Practices Act 1974 (Cth). Declarations and damages are sought in that regard. THE FACTS Prior to the events which are presently relevant, the applicant was a property manager who provided services to the owners of about 40 properties. Those services included the collection of rent from tenants. In the course of this work, the applicant became aware of the problem presented by the infestation of properties with bed bugs. He became aware that, for landlords and tenants alike, bed bugs were a big concern, and the populations of them appeared to be increasing. In about February 2008, the applicant decided to attempt to solve the bed bug problem, and established his own company called The Bed Protector Pty Ltd (“Bed Protector”). He became an Australian distributor for an American company that produced bed bug-proof mattress protectors. The feedback which he received, however, was that, although these mattress protectors helped to mitigate the problem, they did not solve it. It seems that bed bugs can get into a bed by any route which provides physical access thereto, such as when a bed is placed against the wall, or when items are left draped on the bed in such a way as to be in contact with the floor. While it is possible to take measures to eliminate these points of access, bed bugs would always be able to secure access to the mattress by climbing up the legs of the bed. The applicant decided to address this problem. Over the course of a period which was, it seems, nearly a year, the applicant invented a device that could be attached to the legs of a bed, either (in one form) at the point where the caster meets the floor or (in another form) at the point where the leg is attached to the bed. It is best described by reference to the abstract in a patent application which was filed on the applicant’s behalf on 29 May 2009:A barrier for inhibiting migration of crawling insects to a bed via a bed leg is described. The barrier is co-operable with a bed leg such that an insect must cross the barrier to reach the bed. The barrier includes a trapping portion having a coating of a tacky substance to impede insects upon contact. The barrier may include a perimeter wall for defining a seat for a bed leg, or may include an aperture for enabling a fastener to pass therethrough for securing the bed leg to the bed. An example of a device adapted for mounting between the bed and the leg was placed into evidence. It takes the form of a shallow cylinder about 83 mm in diameter and 21 mm deep. The upper face of the cylinder is closed, save for a 10 mm diameter hole in the centre, through which the bolt securing the bed leg to the bed would pass. Over a diameter of about 55 mm, the lower face of the cylinder is open, such that there is a kind of rim, about 12 mm wide, encircling that opening. Inside this rim, and supported by a short lip in the interior of the cylinder, is a cavity which would contain a tacky substance over which insects, and bed bugs in particular, cannot pass. The way the device is designed, in order to pass from the floor to the mattress, a bed bug would need to negotiate this substance, and could not do so. The applicant gave a name to this device: the “Bed Bug Barrier”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Abrahams v Biggs [2011] FCA 1475
Parties:		TONY ABRAHAMS v BARBARA BIGGS and IASO TRADING PTY LTD (ACN 143 071 050)
File number:		VID 812 of 2010
Judge:		JESSUP J
Date of judgment:		23 December 2011
Catchwords:		CONFIDENTIAL INFORMATION – Inventor of device to prevent bed bugs having access to beds informing acquaintance of intended improvements – Whether information or merely idea – Whether identified with sufficient specificity – Whether information had necessary quality of confidence – Whether circumstances of imparting information imported obligation of confidence. TRADE PRACTICES – Misleading and deceptive conduct – False or misleading representations about price and product quality – Whether damage suffered by party to proceeding.
Legislation:		Trade Practices Act 1974 (Cth) ss 52, 53, 82, 87 & 163A
Cases cited:		Australian Competition and Consumer Commission v Chen (2003) 201 ALR 40 Australian Medic-Care Co Ltd v Hamilton Pharmaceuticals Pty Ltd (2009) 261 ALR 501 Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 Dais Studio Pty Ltd v Bullet Creative Pty Ltd (2007) 74 IPR 512 I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109 Jones v Australian Competition and Consumer Commission [2010] FCA 481 Macquarie Bank Ltd v Seagle [2005] FCA 1239 RLA Polymers Pty Ltd v Nexus Adhesives Pty Ltd (2011) 280 ALR 125 Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73
Dates of hearing:	3-6 October 2011
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	97
Counsel for the Applicant:	The applicant appeared in person
Counsel for the First Respondent:	The first respondent appeared in person
Counsel for the Second Respondent:	The first respondent appeared, by leave, on behalf of the second respondent

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 812 of 2010

JUDGE:	JESSUP J
DATE OF ORDER:	23 DECEMBER 2011
WHERE MADE:	MELBOURNE