Background
Byrnecut Australia Pty Ltd, a mining contractor, commenced proceedings against Develop Global Ltd alleging, among other things, breach of confidence in relation to 23 documents described as work, health and safety materials used at mine sites. Byrnecut’s Amended Statement of Claim (ASOC) asserted that each of those documents had been kept confidential and possessed the necessary quality of confidence. The pleading advanced both a primary case — that each document as a whole constituted confidential information — and an alternative case that, if the whole document did not qualify, the document at least “contained confidential information.”
Develop Global filed an interlocutory application on 21 May 2026 seeking to strike out paragraphs 5, 7, 14(c)(iii), 16, and 17 of the ASOC under r 16.21 of the Federal Court Rules 2011 (Cth). It argued that the confidential information had not been identified with the specificity required by law, noting that the documents appeared to cover common-sense workplace safety advice and that portions seemed to reproduce publicly available material from the internet. Develop Global also raised practical difficulties in framing any injunction if the primary case failed.
The hearing and judgment were delivered ex tempore by Jackman J on 4 June 2026.
The Court’s Holding
Jackman J dismissed the strike-out application in respect of the primary case. The Court accepted that, as a matter of pleading, Byrnecut was entitled to allege that the whole of each of the 23 documents constituted confidential information, even if some content might ultimately be shown to be generally known or in the public domain, provided Byrnecut could establish at trial that sufficient skill and ingenuity had been applied in the compilation of those documents. The Court declined to resolve at the interlocutory stage the potential tension between the High Court’s reasoning in O’Brien v Komesaroff (1982) 150 CLR 310 and the line of authority supporting a relatively undemanding test for compilation-based confidentiality.
However, the Court struck out the alternative limb of particular (iii) to paragraph 5 of the ASOC — the words “or, in the alternative, contains confidential information” — on the ground that it failed to identify the confidential information with sufficient specificity, as required by the Full Federal Court in Lift Shop Pty Ltd v Next Level Elevators Pty Ltd [2025] FCAFC 108; (2025) 312 FCR 127. The Court granted Byrnecut leave to re-plead the alternative case in the form set out in its solicitors’ letter of 4 June 2026, which reformulated the alternative as the whole of each document except for specifically identified portions, thereby achieving the requisite specificity. Costs of the interlocutory application were ordered to be costs in the cause, given that each party had achieved partial success and that the interlocutory work would largely be redeployed at trial.
Key Takeaways
- A claimant alleging breach of confidence must identify the confidential information with specificity; a bare assertion that a document “contains confidential information” without identifying which parts is insufficient as a pleading.
- A primary case that an entire document is confidential can survive a strike-out motion even where some content is publicly known, if the pleading can support a compilation-based confidentiality argument tested at trial.
- An alternative confidentiality case can achieve the required specificity by pleading that the whole document is confidential except for specifically identified non-confidential portions — a negative identification approach accepted by the Court.
- Courts will generally leave unresolved tensions between High Court authority and intermediate appellate decisions to be determined at the final hearing rather than on a strike-out application.
Why It Matters
This decision reinforces the demanding pleading standard for breach-of-confidence claims in Australian litigation: parties cannot shelter behind broad or disjunctive formulations when asserting that documents contain confidential information. At the same time, the judgment confirms that a compilation of otherwise publicly available material may still attract confidentiality protection if skill and ingenuity in assembly can be demonstrated, keeping that doctrinal question open for a full merits hearing.
For practitioners advising clients in industries — such as mining — where operational know-how is embodied in procedural documents distributed to workforces, the case is a practical reminder to map confidentiality claims at the pleading stage: either assert the whole document is confidential or, in the alternative, identify with precision exactly which parts are and are not claimed to be confidential. A vague “contains confidential information” formulation will not survive scrutiny.