Quick Hit

A recent NSW Court of Appeal decision[1] confirms that a general, undeveloped idea pitched during a business meeting will not be protected as confidential information, unless it is sufficiently unique and disclosed in circumstances importing obligations of confidentiality.

Background

Sydney-based promoter, Mark Filby, sued TEG Live (previously Nine Live), a live events management company, for unauthorised use of a marketing concept for a One Direction Australia tour in 2013 - a concept which Filby claimed to have pitched during a meeting with executives of TEG Live prior to the tour.

Filby attended a pitch meeting with TEG Live to promote a different marketing concept but, when prompted by TEG Live’s CEO, informally mentioned an idea involving a partnership with a retail group to reduce costs for the One Direction tour. A few months later, TEG Live entered into a partnership with Coles which mirrored aspects of Filby’s idea.

Breach of confidentiality

Breach of confidentiality arises if:

  • the information can be identified with specificity;
  • the information has the necessary quality of confidence;
  • the information was received by the recipient in circumstances importing an obligation of confidence (either by way of express agreement as to confidentiality, or in circumstances where a reasonable person would realise the information was given in confidence); and
  • there was an actual or threatened use of that information without permission.

Supreme Court decision

The Court heard evidence from attendees at the pitch meeting and ultimately determined that Filby most likely informally and freely volunteered his idea for the retail partnership for the One Direction Australia tour, without expressly specifying that it was confidential information. While that information may have informed TEG Live’s eventual partnership with Coles, the idea itself was a “very general and inchoate idea” that was not sufficiently unique, and not provided in confidential circumstances. TEG Live was therefore free to use the idea without Filby’s permission.

Appeal decision

Filby appealed, but the NSW Court of Appeal agreed with the original decision. The Court of Appeal said that findings based on witness evidence before the primary judge should not be interfered with on appeal unless shown to be “glaringly improbable” or “contrary to compelling inferences”, and in this instance, found no such error in the primary judge’s findings. The Court of Appeal confirmed that the concept of a partnership with a retailer was not a unique idea at that time, and as there was no express or implied obligation of confidence on TEG Live, Filby failed in his claim.

Take-away

To improve the prospect of protecting the ideas being pitched, it’s good practice to agree on confidentiality arrangements prior to disclosure – this might include participants signing a “non-disclosure agreement” or other document limiting the recipient’s use of the information – and being clear on what each party considers to be confidential. Ultimately, if the idea is vague and not sufficiently unique or developed, the law is unlikely to grant protection as confidential information.

For advice on protecting confidential information or dispute resolution generally, contact Adam Simpson or Clare Young.

By Esther Ting


[1] Filby v TEG Live Pty Ltd[2023] NSWCA 320.