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Australian Energy Producers Journal Australian Energy Producers Journal Society
Journal of Australian Energy Producers
RESEARCH ARTICLE (Non peer reviewed)

Confidentiality—conditions, compliance and consequences*

J. King A and A. Gibbs A
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DMAW Lawyers.

The APPEA Journal 51(2) 670-670 https://doi.org/10.1071/AJ10050
Published: 2011

Abstract

With advancements in technology driving faster and easier flows of information, it has never been more important for companies to understand how the law can assist them in protecting their valuable information and what their obligations are in dealing with the confidential information of others. This is of particular relevance in the petroleum industry, where the possession of data and information is usually crucial to a company’s decision about whether to proceed with a project, and where information can provide a significant commercial advantage. This paper will examine the legal framework regulating the use and protection of confidential information, from an Australian perspective. The paper will consider related issues such as:

  1. When should information should be treated as confidential?

  2. When is a confidentiality agreement required between parties?

  3. What needs to be considered when entering into a confidentiality agreement?

  4. What is the position at law in the event that there is no written confidentiality agreement between parties?

  5. What restrictions apply to the purposes for which confidential information can be used?

Finally, the paper will consider the legal consequences of breach of confidentiality and suggest practical ways that companies can minimise their risk of being exposed to these consequences.

Jo King is a special counsel with DMAW Lawyers. She has more than 25 years of experience in advising clients regarding major contractual matters and transactions, particularly in the areas of energy and resources, outsourcing, property and information technology. In recent years, she has been involved in a number of significant asset acquisitions and disposals in the oil and gas industry. She has a Bachelor of Laws (LLB) from Adelaide University.

Alison Gibbs is a senior associate at DMAW Lawyers, a leading commercial law firm based in SA. Alison graduated from the University of Adelaide with Bachelors of Commerce (accounting) (2002) and Law (Hons) (2004) and was admitted to the Supreme Court of SA in 2005. Alison works mainly in the area of energy and resources, property and contract law, advising clients across all sectors on local, national and international issues.


References

Coco v AN Clark (Engineers) Ltd [1969] RPC 41 Megarry J.

(2002) 210 CLR 181.

Section 65(2)(b) Petroleum and Geothermal Energy Act (2000) (SA).

Confidentiality Agreements in a Commercial Setting: Are they Necessary; Linda A Tompkins (2008) 27 ARELJ.

LAC Minerals Ltd v International Corona Resources Ltd (1989) 61 DLR (4th) 14.