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Missingham v Shamin

Missingham v Shamin

Case [2012] NSWSC 288 21 March 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Missingham v Shamin [2012] NSWSC 288
Hearing dates: 16 March 2012
Decision date: 21 March 2012
Jurisdiction: Equity Division
Before: Ward J
Decision:
Permanent injunction granted to restrain defendant from breaching confidentiality obligations. Nominal damages and indemnity costs ordered against defendant

Catchwords: CONFIDENTIALITY - deed containing confidentiality provision - whether plaintiff disentitled to assert confidentiality due to unclean hands - whether disclosure of some terms of the deed due to ordinary legal processes such as filing a Notice of Discontinuance in court destroyed the confidentiality of the material - whether posting of judgment containing some terms of the deed in the NSW Caselaw website destroyed the confidentiality of the material - whether material entered public domain a matter of fact and degree - limited disclosure in these circumstances does not deprive the confidentiality provision of utility - HELD - permanent injunction granted and plaintiff entitled to costs of these proceedings on indemnity basis pursuant to relevant provision in deed
Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW)
Cases Cited: AG v Guardian Newspapers (No 2); AFL v The Age Co Limited (2006) 15 VR 419
Artedomus v Del Casale [2006] NSWSC 146
Attorney-General v Guardian Newspapers Ltd [No 2] [1990] 1 AC 109
Black Uhlans Inc v NSW Crime Commission & Ors [2002] NSWSC 1060
Brand v Monks [2009] NSWSC 1454
Carantinos v Magafas [2008] NSWCA 304
Dalgety Wine Estates Pty Ltd v Rizzon (1979) 141 CLR 552
Doherty v Allman (1878) 3 App Cas 709
Dow Jones & Company Inc v Gutnick 210 CLR 575
Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349, at 379; [1973] 1 All ER 992
G v Day [1982] 1 NSWLR 24
Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104
Johns v ASC (1992) 178 CLR 408
Kation Pty Limited v Lamru Pty Limited [2009] 257 ALR 336
Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181
Missingham v Shamin [2011] NSWSC 1208
Orleans Investments Pty Ltd and Anor v Mindshare Communications Ltd [2009] NSWCA 40; (2009) 254 ALR 81
Rinehart v Welker [2011] NSWCA 403
Seven Network (Operations) Ltd and Ors v James Warburton (No 2) [2011] NSWSC 386
Texts Cited: Cross, The Law of Intellectual Property: Copyright, Designs and Confidential Information Vol 2
Category: Principal judgment
Parties: Walter Patrick Missingham (Plaintiff)
Alex Shamin (Defendant)
Representation: Counsel
A T S Dawson (Plaintiff)
Self-represented (Defendant)
Solicitors
Yeldham Price O'Brien Lusk (Plaintiff)

File Number(s): 11/305541

Judgment

HER HONOUR:This matter came before me on 16 March 2012 on a summons filed on 22 September 2011 by the plaintiff (Mr Walter Missingham) seeking as against the defendant (Mr Alex Shamin) a permanent injunction to restrain him from publishing any matter concerning the settlement of earlier proceedings in this Court (2010/397452), or the contents of a deed of settlement entered into in connection with those proceedings, other than as provided…

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.

Continue reading Missingham v Shamin

Details

AGLC: Missingham v Shamin [2012] NSWSC 288
Case: [2012] NSWSC 288
Decision Date: 21 March 2012

CaseChat Overview and Summary

The case of Missingham v Shamin involved a dispute over the enforceability of a confidentiality provision in a deed between the parties. The plaintiff, Missingham, sought to enforce the confidentiality provision against the defendant, Shamin, who had disclosed some terms of the deed. The case was heard in the Supreme Court of New South Wales. The primary legal issue was whether the plaintiff was disentitled from asserting the confidentiality provision due to the doctrine of unclean hands. Additionally, the court considered whether the disclosure of some terms of the deed due to ordinary legal processes, such as filing a Notice of Discontinuance, destroyed the confidentiality of the material. The court also examined whether the posting of a judgment containing some terms of the deed on the NSW Caselaw website destroyed the confidentiality of the material, and whether the entry of the material into the public domain was a matter of fact and degree.

The court found that the doctrine of unclean hands did not disentitle the plaintiff from asserting the confidentiality provision. The court held that limited disclosure in these circumstances did not deprive the confidentiality provision of utility. The court found that the material had not entered the public domain to a significant degree, and that the confidentiality provision remained enforceable. The court granted a permanent injunction to the plaintiff and ordered that the plaintiff was entitled to the costs of these proceedings on an indemnity basis, pursuant to the relevant provision in the deed. The court held that the disclosure of some terms of the deed did not destroy the confidentiality of the material, and that the confidentiality provision remained effective.

Orders