not a time for celebration yet, page-23

and here is a couple of paragraphs from that in-depth article on the April 5th case

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However, his Honour disagreed with GCR’s position that Newcrest maintained their entire tenements (i.e. profited) as a result of the breach, and that GCR lost the ability to buy the discarded parts of the tenements themselves (i.e. lost) as a result of the breach. Stevenson J held that GCR had not proved on the balance of probabilities that Newcrest would have failed to keep their whole tenements without the breach of confidence; the Department would most likely have found there were “special circumstances” to justify the renewal of the exploration licenses regardless of the mention of the induced polarisation technology. Newcrest could not be said to have profited from the breach. Furthermore, even if Newcrest had lost 50% of the tenement, it was at Newcrest’s election which 50% they would lose, and in any case there was no guarantee that GCR would obtain the discarded components.

His Honour also held that in this case, where the confidentiality agreement included an entire agreement clause and did not contain a clause preserving other remedies outside of the agreement, it excluded the need for an equitable duty of confidence. His Honour held such an equitable duty is residual in nature and there was no place for equity to interfere where the contract between the parties otherwise dealt with the parties’ rights and obligations in respect of confidential information.

As a result, even if GCR had shown that Newcrest had profited from their maintenance of the tenements, GCR could not obtain an account of profits as a remedy for the breach because the contract did not provide for it and equity would not step in.

GCR’s claim under Section 52 of the former Trade Practices Act 1974 (Cth) also failed, as Newcrest did not make their statements to the Department ‘in trade or commerce’.

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