ConnectEast Pty Ltd v CityLink Melbourne Ltd - [2021] VSC 626

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2020 04353

BETWEEN:

CONNECTEAST PTY LTD (ACN 101 213 263)	Plaintiff
v
CITYLINK MELBOURNE LIMITED (ACN 070 810 678)	Defendant

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JUDGE:	RIORDAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 September 2021
DATE OF JUDGMENT:	30 September 2021
CASE MAY BE CITED AS:	ConnectEast Pty Ltd v CityLink Melbourne Ltd
MEDIUM NEUTRAL CITATION:	[2021] VSC 626

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CONFIDENTIALITY – Equitable duty of confidence – Experts provided with information by the plaintiff for purposes of a government inquiry – Experts subsequently retained by the defendant to give evidence in this proceeding – Information in question not relevant to any issue in this proceeding – Principles to be applied – Whether alleged confidential information described with sufficient precision – Whether there is a real and sensible risk of disclosure – Application to restrain the engagement of the experts dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P H Solomon QC	Gilbert and Tobin
For the Defendant	Mr J W S Peters AM QC with Ms J Moir	King and Wood Mallesons

Contents

Litigation history

Background

Submissions

Plaintiff’s submissions
Defendant’s submissions

Principles

Consideration

Identification of allegedly confidential information with specificity
The plaintiff’s first submission to the ACCC
The plaintiff’s second submission to the ACCC
The plaintiff’s third submission to the ACCC
The CityLink Roaming Fee Presentation
The Follow Up Presentation
The plaintiff’s submission to the Inquiry

Real and sensible risk of misuse of confidential information

Orders

HIS HONOUR:

By summons filed 5 August 2021, the plaintiff applies for orders, in summary, that the defendant be restrained from continuing to engage:
(a)Mr Brendan Lyon as an expert in this proceeding; and
(b)Frontier Economics as experts or advisors in connection with this proceeding.

Litigation history

By statement of claim filed 23 November 2020, the plaintiff alleges that since 1 January 2009, the defendant has charged the plaintiff a fee under a Link roaming agreement (‘the roaming fee’) for the provision of a Link roaming service in excess of the net incremental marginal cost to the defendant of providing that Link roaming service,[1] in contravention of s 93AB of the Melbourne City Link Act 1995 (Vic) (‘the City Link Act’). The primary relief sought by the plaintiff, in substance, is the reimbursement of the amount by which the roaming fee, as charged by the defendant, exceeded the net incremental marginal cost to the defendant since 1 January 2009.
[1]The terms ‘Link roaming agreement’, ‘Link roaming service’, and ‘net incremental marginal cost’ are defined in s 93AA of the Melbourne City Link Act 1995 (Vic), which is set out in paragraph 5 below.
By concise statement of defence filed 12 February 2021, the defendant denies that the roaming fee exceeded, at any relevant time, the net incremental marginal cost, and alternatively, pleads defences based on the Limitation of Actions Act 1958 (Vic) and a change of position in good faith.
In relation to roaming fees, s 93AB of the…

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: [2021] VSC 626
Decision Date: 30 September 2021

CaseChat Overview and Summary

ConnectEast Pty Ltd sought to restrain CityLink Melbourne Ltd from engaging two experts who had been provided with confidential information by ConnectEast for a government inquiry. The dispute arose in the Federal Court of Australia, where ConnectEast sought an interlocutory injunction against the use of the information in the present litigation. The court was required to determine the principles applicable to the enforcement of equitable duties of confidence, particularly when experts who had access to confidential information are retained by the opposing party in the same proceeding. The key issues were whether the confidential information had been described with sufficient precision and whether there was a real and sensible risk of disclosure.

The court considered the principles established in previous cases such as *Coco v AN Clark (Engineers) Ltd* and *Prudential Assurance Co Ltd v Newman Industries Ltd (No 2)*. It found that ConnectEast had not sufficiently described the confidential information to enable the court to determine whether it had been misused. The court also held that there was no real and sensible risk of disclosure, as the information in question was not relevant to the issues in the current proceeding. The court noted that the experts had been instructed not to use the information and had given undertakings not to do so. Given these findings, the application for an interlocutory injunction was dismissed.

The court's reasoning was grounded in the need for a clear and precise description of the confidential information and the absence of a real and sensible risk of disclosure. The decision highlights the importance of specificity in the description of confidential information and the need for a tangible risk of misuse before an injunction will be granted. The court emphasised that the principles of equity require a balance between protecting confidential information and ensuring that justice is served in the proceeding.

Orders