DST Bluedoor v AMP (No 3)
[2021] VSC 665
•15 October 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST
S ECI 2019 03205
| DST BLUEDOOR PTY LTD (ACN 110 855 377) | Plaintiff/Defendant by Counterclaim |
| v | |
| AMP SERVICES LIMITED (ACN 081 143 786) | Defendant/Plaintiff by Counterclaim |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 September 2021 |
DATE OF RULING: | 15 October 2021 |
CASE MAY BE CITED AS: | DST Bluedoor v AMP (No 3) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 665 (first revision 3 November 2021) |
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PRACTICE AND PROCEDURE - Whether privilege has been waived due to provision of documents to contractor - Whether expiry of confidentiality agreement is inconsistent with maintenance of confidentiality and privilege.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S W Stuckey QC with Mr A Sykes of counsel | Gilbert + Tobin |
| For the Defendant | Mr L A Merrick of counsel | MinterEllison |
TABLE OF CONTENTS
Summary.............................................................................................................................................. 1
Background......................................................................................................................................... 1
DST’s submissions............................................................................................................................ 3
Confidentiality agreement........................................................................................................... 3
Consultancy agreement................................................................................................................ 3
Obligation of confidence - equity............................................................................................... 4
AMP’s submissions........................................................................................................................... 4
Analysis................................................................................................................................................ 5
Confidentiality agreement........................................................................................................... 7
Consultancy agreement.............................................................................................................. 11
Obligation of confidence - equity............................................................................................. 14
Conclusion......................................................................................................................................... 16
HER HONOUR:
The plaintiff, DST Bluedoor Pty Ltd (‘DST’), and the defendant, AMP Services Limited (‘AMP’), are in dispute about the inspection of documents produced in response to subpoenas. DST caused the subpoenas to be issued. Some of the documents contain information which is confidential to AMP because it is subject to legal professional privilege. This ruling determines whether privilege has been waived.
Summary
Privilege has not been waived.
Background
The background to this proceeding is contained in a previous ruling, namely DST Bluedoor v AMP (No 2).[1]
[1][2021] VSC 499, [3]-[13].
On 9 September 2021, I made ex tempore rulings regarding the redacted parts of documents CAO.6000.0001.0036 and related documents, CAO.6000.0001.0028, and CAO.6000.0001.0037 (‘the documents’). I ruled they were subject to legal professional privilege.
The specific dispute here is whether or not there has been a waiver of AMP’s legal professional privilege by provision of the documents to a contractor, Mr Mark Cassar. The documents consist of an email from AMP to Mr Cassar regarding legal advice that is sought, Mr Cassar’s reply email, and the document over which the legal advice is sought. The documents were produced by Mr Cassar upon return of subpoenas issued on 13 October 2020 addressed to him and his company, Oyster Technologies Pty Ltd (‘Oyster Technologies’).
By way of background, Mr Cassar was a founding director of DST and was later engaged by AMP through Oyster Technologies. He filed a witness statement in this proceeding on 5 February 2021 on behalf of AMP. In it, he states that he has been providing consulting services to AMP in relation to software development and maintenance functions of ‘Bluedoor’ through Oyster Technologies since October 2018.[2]
[2]Witness statement of Mark Cassar filed 5 February 2021, [2].
I will briefly describe the documents.
CAO.6000.0001.0036 (‘the 4 Feb 19 email’) – an email dated 4 February 2019 (time stamp 1.22pm) from Mr Kendall Silverton of AMP to Mr Cassar, copying in Mr Anthony Lloyd, and others, with the subject ‘Project River recruitment process’. On its face, the email includes an attachment. The email commences with a salutation to Mr Cassar and then contains some parts which are privileged and redacted, and others that are not. The privileged parts include direct reference to the obtaining of legal advice, and Mr Lloyd is specifically mentioned. He is one of AMP’s external lawyers and a partner at MinterEllison.
CAO.6000.0001.0028 – the attachment to the 4 Feb 19 email. It is an offer of employment from DST to an employee.
CAO.6000.0001.0037 (‘document 0037’) – an email dated 4 February 2019 (time stamp 1.24pm) from Mr Cassar to Mr Silverton in reply to Mr Silverton’s email above, and copying in the same people. It states “Thanks” and otherwise contains the email to which it is replying (time stamp 1.22pm), and so the parts redacted are the same.
Before turning to the parties’ respective submissions, it is necessary to refer to two agreements.
In November 2017, AMP and Mr Cassar executed a confidentiality agreement (‘the confidentiality agreement’).[3]
[3]Exhibit ‘GJ-8’ to the Jolly 8 affidavit, 266.
AMP and Oyster Technologies later executed a consultancy agreement dated 2 April 2019 (‘the consultancy agreement’).[4]
[4]Without objection, AMP was given leave to provide to this to the Court during the hearing.
DST’s submissions
The communication to Mr Cassar, a third party, would ordinarily waive privilege. The 4 Feb 19 email is a communication between a non-lawyer within AMP, to Mr Cassar, who is a non-lawyer and external to AMP.
Confidentiality agreement
Mr Cassar received information in February 2019 subject only to the confidentiality agreement. That agreement was drafted by AMP, which is well capable of protecting its interests. The parties turned their minds to how long he would be constrained from using the information he obtained in that role, and expressly provided for when that constraint should end. Clause 9 contains confidentiality obligations. It expressly applies for two years. That two year obligation ended in November 2019. Mr Cassar’s obligation was to keep the information confidential until November 2019. After that period, Mr Cassar was not constrained from dealing with the confidential information. If there was legal professional privilege, it was waived in November 2019 when Mr Cassar became able to deal with the information.
Further, the confidentiality agreement defines Confidential Information. It is not directed to include legally privileged communications.
Moreover, there is no evidence to suggest Mr Cassar was embedded in a trusted tent like an employee. He was intended to be an external consultant.
Consultancy agreement
The consultancy agreement applies after the communication in the 4 Feb 19 email occurred. This is relevant because cl 19.1 defines Confidential Information “under this agreement” which applies to communications under the operative agreement. It would not apply to previous communications, save for those regarding negotiations for the agreement. The 4 Feb 19 email is not a communication regarding negotiations for the agreement.
Once a typographical error reporting advice in 2021 is eliminated, all communications in question occurred prior to the end of February 2019. The consultancy agreement does not come into operation until 2 April 2019, after all the communications. So it took place under a regime where Mr Cassar had been released from confidentiality obligations in the earlier confidentiality agreement.
Clause 7.2 of the consultancy agreement does not apply to information in the control of the recipient. There is no obligation of confidentiality on Mr Cassar.
Obligation of confidence - equity
If parties agree between themselves as to rights and obligations regarding confidential information, and specifically agree and address the point at which those obligations cease, there is no occasion for equity to step in and impose a different regime. Equity will not impose an obligation where a contract expressly provides there shall be none.[5] In such circumstances, equity has no role in changing or altering the agreement of the parties.[6] Where a well-resourced party has engaged in an agreement that governs the acquisition or use of information, it cannot possibly be unconscientious for disclosure to occur in accordance with that agreement by exercise of a ‘lawful right’.[7]
[5]Del Casale & Ors. v. Artedomus (Aust) Pty. Limited [2007] NSWCA 172, [118] (per Campbell JA).
[6]Integrated Global Partners Pty Ltd v Hyde & Ors [2018] VSC 45 (‘Integrated Global’) (per McDonald J).
[7]Ibid, [23].
AMP’s submissions
The question is whether AMP has acted in a manner that is inconsistent with the maintenance of confidentiality in the relevant document and, consequently inconsistent with the maintenance of privilege in that document. This question may also be informed by considerations of fairness.[8] The inclusion of a third party in the communication between lawyer and client will not result in a waiver of privilege unless the inclusion of that third party means that the communication is no longer confidential.[9]
[8]Mann v Carnell (1999) 201 CLR 1, [28]-[29].
[9]Slea Pty Ltd v Connective Services Pty Ltd & Ors [2017] VSC 361.
The concept of confidentiality in this context extends to “an unspoken obligation, and to an ethical, moral or social obligation.”[10]
[10]Timbercorp Finance Pty Ltd v Tomes (privilege) [2019] VSC 445, [32]. Having regard to s 131A of the Evidence Act 2008 and noting broad definition of ‘Confidential communication’ in s 117 of that Act.
Obligations of confidentiality may co-exist in contract and equity.[11]
[11]Optus Networks Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281 (‘Optus’), [29]-[30], [38].
There was a seamless obligation of confidence on Mr Cassar from the time of the confidentiality agreement. The communications occur within the two year period. During that period, he entered into the consultancy agreement which recognised he had obligations of confidence.
The consultancy agreement covers the period. Clause 7 expressly provides for the confidentiality arrangement between the parties. The definition of ‘Confidential Information’ expressly includes what has happened in the past regarding anterior negotiations. It is unlikely that this meant negotiation of the consultancy agreement itself.
The consultancy agreement refers to ‘Services’ to be provided, and they reference the statement of work at Annexure A to the agreement. This includes the transition process undertaken by AMP to insource the software. The Key Person was Mr Cassar.
Mr Cassar was assisting AMP in a consultancy capacity and was, at all times, subject to confidence obligations. It would have been plain to Mr Cassar that he had obligations of confidence. He was deployed for a task by AMP. It was clear he was in the AMP tent. The expiry of his obligations under the confidentiality agreement did not leave him free to disclose the relevant confidential information. The nature and circumstances of the communications were such as to make it clear that they were confidential. Equity (and good conscience) would not permit Mr Cassar to treat them otherwise. In the circumstances, there is no unfairness in AMP’s privilege being maintained.
Analysis
The principles on common law waiver are well-established.[12] In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited,[13] the High Court considered the application of s 122 of the Evidence Act 2008. However, the High Court first summarised the common law principles.
According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege). It may be express or implied. In most cases concerning waiver, the area of dispute is whether it is to be implied. In some cases waiver will be imputed by the law with the consequence that a privilege is lost, even though that consequence was not intended by the party losing the privilege. The courts will impute an intention where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.
In Craine v Colonial Mutual Fire Insurance Co Ltd, it was explained that “’[w]aiver’ is a doctrine of some arbitrariness introduced by the law to prevent a man in certain circumstances from taking up two inconsistent positions ... It is a conclusion of law when the necessary facts are established. It looks, however, chiefly to the conduct and position of the person who is said to have waived, in order to see whether he has ‘approbated’ so as to prevent him from ‘reprobating’”. In Mann v Carnell, it was said that it is considerations of fairness which inform the court's view about an inconsistency which may be seen between the conduct of a party and the maintenance of confidentiality, though “not some overriding principle of fairness operating at large.”
Those considerations, articulated in relation to waiver at common law, apply with equal force in relation to the statutory question posed by s 122(2) of the Evidence Act, and made applicable by s 131A of that Act to the determination of a question of waiver of client legal privilege arising in the context of pre-trial discovery.[14]
[12]For a useful discussion on waiver by disclosure to third parties see: Ahmed Terzic, Implied waiver of legal professional privilege: A search for consistency (2018) 45 Australian Bar Review 287.
[13](2013) 250 CLR 303.
[14]Ibid, [30]-[32] (citations omitted).
Section 131A of the Evidence Act provides that the relevant provisions on privilege and waiver in that Act apply only to preliminary proceedings in certain circumstances. They include circumstances where there is an objection by a person subject to a ‘disclosure requirement’ to produce a document. A ‘disclosure requirement’ includes a subpoena. Here, it is Mr Cassar and Oyster Technologies who are subject to that ‘disclosure requirement’. However, the objection is not by them, but by AMP. Accordingly, s 131A of the Evidence Act is not engaged.[15] The common law principles on waiver of legal professional privilege are applicable, not the Evidence Act.
[15]Bradford v Devlot 17 Pty Ltd [2020] VSC 792, [33]-[34] (Kennedy J as her Honour then was).
Turning now to the application of the common law principles.
At the outset, I reject DST’s submission that the disclosure by email to Mr Cassar waived privilege because he was not an employee of AMP. Disclosures to third parties do not always have such consequences. The question is whether the disclosure was inconsistent with the maintenance of confidentiality.
The 4 Feb 19 email to Mr Cassar, and his reply email contained in document 0037, did not waive AMP’s legal professional privilege over the privileged parts of those documents. They were not inconsistent with the maintenance of confidentiality over those parts of the documents. My reasons follow.
The circumstances and nature of the disclosure are not inconsistent with the maintenance of confidentiality in respect of the confidential communication contained in the 4 Feb 19 email.
I have inspected the 4 Feb 19 email and Mr Cassar’s reply email contained in document 0037. They do not, on their face, indicate anything inconsistent with the maintenance of confidentiality over their redacted parts. The email is consistent with Mr Cassar’s role with AMP. Mr Cassar is a third party. However, it is evident from the nature of the information disclosed in the 4 Feb 19 email, and the confidentiality and consultancy agreements, that he was a highly trusted and very senior consultant to AMP. The interests of Mr Cassar and AMP are aligned and consistent with maintaining confidentiality in the privileged communication.
It is necessary to delve into the detail of the confidentiality and consultancy agreements.
Confidentiality agreement
The confidentiality agreement, which was operable at the time of the 4 Feb 19 email, evidences Mr Cassar being a very senior consultant to AMP entrusted with confidential information. Moreover, it placed obligations of confidence on him.
On its face, the confidentiality agreement is signed by a representative of AMP on 21 November 2017 and Mr Cassar on 7 November 2017. The commencement date is not stated. The date of the agreement is left blank. For the purpose of this ruling, I will apply a commencement date of 21 November 2017.
At this point it is useful to recall that the email in dispute is the 4 Feb 19 email and accordingly falls within the two year term in cl 9. Indeed, neither party contended otherwise.[16]
[16]Clause 11 provides the agreement is governed by the law of New South Wales. Neither of the parties here submitted that that affected the construction of agreement for the purposes of this ruling.
Clause 1 provides the following definition of ‘Confidential Information’ and the following definitions of ‘Owner’ and ‘Recipient’.
‘Confidential Information’ means all information (regardless of its form or the medium in which it is stored) treated by the Owner as confidential and which is disclosed, or otherwise made available, to the Recipient or its Representatives (whether before or after the date of this agreement) for or in connection with the Approved Purpose but excludes information:
(a)created by the Recipient (whether alone or jointly with any other person) independently of the Owner's Confidential Information (if the Recipient has evidence in writing that the information falls within this exception):
(b)that is public knowledge (otherwise than through a breach of confidentiality obligations by the Recipient or any person to whom the Recipient has disclosed the information in accordance with the terms of this agreement); or
(c)that was, is, or becomes available to the Recipient on a non-confidential basis from a person who, to the Recipient's knowledge, is not under any confidentiality obligation in respect of that information.
...
‘Owner’ means the owner of Confidential Information disclosed in relation to the Approved Purpose, and to which this agreement applies.
‘Recipient’ means the recipient of Confidential Information disclosed in relation to the Approved Purpose and to which this agreement applies.
I reject DST’s submission that, as a consequence of this clause not expressly referring to communications covered by legal professional privilege, such communications are excluded from the definition. Such communications are covered by the expansive definition of ‘Confidential Information’.
Clause 1 provides a definition of ‘Approved Purpose’ that is referrable to AMP’s investment platforms and business plans, and to any commercial negotiations between the parties.
Clause 3 of the confidentiality agreement contains the following confidentiality clause imposing obligations on the Recipient (here Mr Cassar) regarding the use and disclosure of the Confidential Information.
USE AND DISCLOSURE OF CONFIDENTIAL INFORMATION
3.1In consideration of the parties entering discussions relating to, and disclosing Confidential Information to each other for, the Approved Purpose, the Recipient:
(a)acknowledges that the Confidential Information is valuable to its Owner;
(b)undertakes to the Owner to keep confidential the Owner’s Confidential Information;
(c)undertakes to the Owner not to use, disclose or reproduce the Owner’s Confidential Information for any other purpose than the Approved Purpose except as permitted by this agreement; and
(d)undertakes to establish and maintain effective security measures to safeguard the Owner’s Confidential Information from unauthorised access, use or disclosure.
3.2The Recipient may only disclose the Owner’s Confidential Information as follows:
(a) to Representatives, provided that:
(i)such disclosure is only to persons who have a need to know, and then only to the extent necessary for the Approved Purpose or otherwise as contemplated by this agreement; and
(ii)any failure by a Representative of a Recipient to comply with the obligations of the Recipient under this agreement will be deemed to be a breach of this agreement by the Recipient;
(b)if disclosure is required by law, order of any Government Agency or rules of any stock exchange and then only to the extent and to the persons required and in accordance with clause 6; or
(c)with the prior written consent of the Owner.
Clause 4 provides that the Confidential Information remains the exclusive property of AMP and that Mr Cassar shall not acquire any interest, licence, or other right in it.
Clause 5 of the confidentiality agreement contains obligations regarding the return of Confidential Information. In short, it provides a mechanism whereby AMP may request return or destruction of its Confidential Information and Mr Cassar is generally obliged to comply with that request. This obligation does not have any temporal limitation and must be assumed to be ongoing. Clause 5.2(b) allows Mr Cassar to retain “directors’ papers and minutes of the board of the Recipient or of any committee of the board of the Recipient”. This is consistent with Mr Cassar being a very senior and trusted consultant to AMP.
Clause 6 provides that if Mr Cassar is required to disclose any Confidential Information “under any law, order of any Government Agency or rule of any stock exchange”, he must immediately notify AMP. Importantly it also provides that he must also “(a) provide reasonable assistance and permit” AMP to “oppose or restrict such disclosure; (b) disclose no more Confidential Information than is strictly required; and (c) to the extent practicable, make disclosure on terms which will preserve the confidentiality of the Confidential Information.” There is no temporal limitation on this clause.
Clause 8 provides neither party may make public announcements about, amongst other things, the content of communications between the parties concerning the Approved Purpose or the confidentiality agreement, subject to a number of exceptions such as if required by law. There is no temporal limitation on this clause. It is not limited to “Confidential Information” as defined by the confidentiality agreement.
Clause 9 is relevant to the dispute here and provides the following.
TERM
The Recipient’s obligation to keep confidential the Confidential Information will continue in force until the earlier of:
(a) the date that is 2 years after the date of this agreement;
(b)the Owner releasing the Recipient of its obligations under this agreement;
(c)all the Confidential Information becoming generally available in the public domain (other than through a breach of this agreement); or
(d)if the parties enter into a transaction that gives effect to the Approved Purpose and that transaction results in the Recipient becoming the owner of the Confidential Information.
DST contends that upon expiry of the two year term in cl 9(a) above, namely in November 2019, there was waiver of privilege. That clause does provide for a two year limit (if none of the other sub-clauses apply) on Mr Cassar’s obligations in respect of Confidential Information generally. It does not address his obligations with respect to information covered by legal professional privilege and does not give him permission to act in a manner inconsistent with maintaining the confidence of privileged information. I reject the submission that there was a waiver of privilege upon expiry of that term in November 2019. The expiry of the two year term, specified in cl 9, cannot of itself be characterised as an intentional act (either express or imputed) by AMP or indeed Mr Cassar that was inconsistent with the maintenance of confidence in the 4 Feb 19 email. Moreover, such a construction would be not be harmonious with Mr Cassar’s ongoing obligations in: (a) cl 6 to notify AMP and take specified measures if he was required to disclose any Confidential Information and; (b) cl 8 not to make public announcements with respect to the content of communications between the parties concerning the Approved Purpose.
Prior to the expiry of that term, there was an extension of AMP’s relationship with Mr Cassar and plainly he remained under obligations of confidence. I refer to the consultancy agreement which is dated 2 April 2019. As discussed below, the consultancy agreement does not apply to the 4 Feb 19 email. At the same time, it is not inconsistent with the maintenance of privilege in the 4 Feb 19 email.
Consultancy agreement
Mr Cassar is not himself a party to the consultancy agreement. It is executed by him on behalf of Oyster Technologies (defined in the agreement as ‘the Consultant’). Clause 1 of the consultancy agreement records that Oyster Technologies will provide, ‘the Services’ to AMP on the terms in the consultancy agreement.
Clause 3 requires Oyster Technologies to ensure the ‘Key Person’ is wholly involved in performing ‘the Services’ to AMP. Clause 3 requires the ‘Key Person’ to be “wholly involved on a full time basis… in performing the Services”. In cl 19.1, Mr Cassar is named as the ‘Key Person’.
Clause 19.1 defines the ‘Services’ as “the services, including deliverables, provided or to be provided by the Consultant to AMP and for which a high level description is provided in the Statement of Work”. The Statement of Work is contained in Annexure A. Part A is titled ‘Services’ and contains a ‘services description’ that relates back to Bluedoor.
Clause 19.1 states the Commencement Date of the contract is 25 March 2019.
Consistent with the Commencement Date, the Work Statement refers to the work start date as 25 March 2019. It provides for a ‘work term’ of 3 years. The AMP Project Manager is stated to be Ms Despina Makris. The Statement of Work is executed as an agreement and, on its face, signed by Mr Cassar on 2 April 2019 and by a representative of AMP on 5 April 2019.
Clause 1.1A provides a condition precedent to the commencement of the consultancy agreement. It provides that the Consultant “undertakes to enter into a confidentiality agreement with DST Global Solutions (Bluedoor) Pty Ltd … in respect of the disclosure of Confidential Information of DST to the Consultant.” Pausing there, neither party made any submissions as to whether such an agreement had been executed. It does demonstrate that the parties intended for there to be such an agreement, and its importance is reflected in the following clause. Clause 1.2A provides that commencement of the consultancy agreement and its terms are conditional upon the condition precedent in cl 1.1A being satisfied.
As the ‘Key Person’, Mr Cassar was in a very senior role with significant responsibilities. Clause 4 outlines the Key Person’s responsibilities. Clause 4.1 refers to the Key Person directing AMP’s ‘North’ technical delivery team. Clause 4.2 refers to Oyster Technologies having the authority to, amongst other things, employ staff. It requires Oyster Technologies “to comply with AMP’s staff policies in relation to managing the North Team”. Clause 4.5 requires Mr Cassar and Oyster Technologies to, amongst other things, comply with AMP’s HR policies. Mr Cassar was clearly in the AMP tent. Although he was not an employee, he had significant responsibilities and obligations similar to a senior employee. Clause 3.1 of the consultancy agreement even obliged Mr Cassar to seek AMP’s approval to take leave.
Clause 7 is a clause titled ‘confidentiality and publicity’. Clause 7.1 imposes obligations on a ‘Recipient’ of ‘Confidential Information’ regarding use and disclosure. Clause 19.1 contains a definition of ‘Confidential Information’.
“Confidential Information” means all information that a party receives or acquires relating to the business, financial affairs, clients or products of the party under this Agreement and includes without limitation all such information received or acquired during the negotiations preceding this Agreement.
There is force in DST’s submission that the contents of the 4 Feb 19 email, which predate the consultancy agreement do not appear to be captured by this definition because of the reference to ‘under this Agreement’. I accept too that ‘the negotiations preceding this agreement’ do not capture the 4 Feb 19 email, which is not a negotiation. However, the wide definition of Confidential Information is consistent with Mr Cassar being entrusted with confidential information.
DST submitted that cl 7.2(a) was applicable because Mr Cassar was no longer under a confidentiality obligation regarding the privileged information upon expiry of the two year term in the confidentiality agreement. Clause 7.2(a) provides the confidentiality obligations in cl 7.1 “do not apply to the extent that information is (whether before or after the date of this Agreement) (a) rightfully known to, or in the possession or control of the Recipient, and there is no obligation of confidentiality on the Recipient...”. Given that the 4 Feb 19 email does not fall within the definition of Confidential Information, neither cl 7.1 nor 7.2 apply.
There are other clauses in the consultancy agreement that speak to the nature of the confidential information being provided and the obligations upon Mr Cassar (and Oyster Technologies). Clause 12.5 provides that AMP may terminate the Agreement at any time if the Key Person breaches cl 7 (Confidentiality). Clause 12.8 provides for the return of all Confidential Information in the Key Person’s possession or control on termination of the Consultancy Agreement. Clause 12.10 provides that the termination of the agreement will not affect the rights or remedies of either party. It provides too that cls 7, 8, 12, 14, and 15, (and any necessary clauses incidental to them), survive termination of the agreement.
Clause 18.9 is an entire agreement clause and states it “supersedes all previous agreements, arrangements and representations between the parties in connection with the provision of the Services”. I will not address this further as it is Oyster Technologies rather than Mr Cassar that is a party to the consultancy agreement.
Obligation of confidence - equity
If I am wrong and the confidentiality agreement either did not apply to the 4 Feb 19 email or Mr Cassar’s obligation to keep the privileged information confidential ceased to apply upon expiry of the two year term in the confidentiality agreement, then I find, in the alternative, that Mr Cassar was obliged by an equitable duty of confidence to maintain confidentiality.
The usual elements for an equitable remedy are, first, that the information is confidential, secondly, that it was originally imparted in circumstances importing an obligation of confidence, and thirdly, that there has been, or is threatened, an unauthorised use of the information to the detriment of the party communicating it.[17]
[17]ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, [30] citing Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47 per Megarry J.
The 4 Feb 19 email contained privileged and confidential information. Given the nature of the relationship between AMP and Mr Cassar, discussed above, I am satisfied that the 4 Feb 19 email was imparted in circumstances importing an obligation of confidence. Mr Cassar was obliged to keep the 4 Feb 19 email confidential.
There is a dispute between the parties as to whether or not an equitable obligation of confidence could co-exist with contractual obligations.
DST cited the following in support of its broad proposition that equity does not impose obligations of confidentiality where the contract expressly provides that there shall be none.
If there was a contractual obligation that covered the topic, there would, of course, be no occasion for equity to intervene to impose its own obligation. That was recognised by Megarry J in Coco when he said, at 47:
In cases of contract, the primary question is no doubt that of construing the contract and any terms implied in it. Where there is no contract, however, the question must be one of what it is that suffices to bring the obligation into being…[18]
[18]Del Casale & Ors. v. Artedomus (Aust) Pty. Limited [2007] NSWCA 172, [118]; Cf: Optus, [38].
In Optus, the Full Court of the Federal Court stated the following principle, which I adopt: “[t]he notion that no equitable duty of confidence exists where there is a comparable contractual duty is opposed to much authority.”[19] Equity will intervene when, “in all the circumstances it would be unconscientious for the recipient of the information to decline to respect the confidentiality of the information”.[20]
[19]Optus, [38].
[20]Integrated Global, [23].
Here, the circumstances are more nuanced than DST contends. The confidentiality agreement does not expressly exclude equitable obligations of confidence. Nor should such an exclusion be inferred. The obligations of equity co-exist with the obligations in the confidentiality agreement. I am reinforced in this analysis by cl 7 of the confidentiality agreement. It expressly contemplates equitable remedies. Clause 7 is titled ‘Injunctive Relief’. It records the parties’ acknowledgement and agreement that a breach of the confidentiality agreement may result in damage to AMP and that ‘the Discloser’ (undefined) “is entitled to enforce its rights by seeking specific performance or injunction proceedings as monetary damages may not be sufficient relief”.
Finally, there is no unfairness in upholding the privilege claim. This is not a circumstance where there is abuse of the privilege to create an unfair forensic advantage or procedural injustice.
Conclusion
AMP did not act inconsistently with the maintenance of confidence by disclosing the privileged communication in the email to Mr Cassar. Moreover, since that time, neither AMP nor Mr Cassar have acted inconsistently with the maintenance of confidence in the privileged communication.
The parties will be given an opportunity to confer and, if necessary, address the Court on the orders consequential to the ruling.
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