Wagdy Hanna & Associates Pty Ltd v National Library of Australia

[2014] ACTCA 32

ACT Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Appellate review of factual findings
3. › Circumstantial case
4. › Whether primary judge's findings on absence of disclosure of confidential information were open
5. › Whether design features were unique
6. › Application of Warren v Coombes and Fox v Percy principles
1. Appeal
2. › Further evidence on appeal
3. › Special grounds requirement
4. › Evidence available at trial but not tendered
5. › Forensic decision not to tender
6. › Whether interests of administration of justice permit re-hearing
1. Contract
2. › Deed of release
3. › Construction of release clause
4. › Whether release confined to matters in recitals or extends to related matters
5. › Phrases 'arising out of or in any way related to'
6. › Whether subsequent proceedings fell within scope of release
1. Equity
2. › Breach of confidence
3. › Tender process
4. › Implied obligation of confidentiality
5. › Whether confidential information disclosed
6. › Limitation period for breach of confidence
7. › Limitation Act 1985 (ACT), ss 11, 33

Quick Take

A deed of release using the words 'arising out of or in any way related to' the discontinued proceedings is sufficiently wide to encompass subsequent proceedings concerning the same underlying transaction (here, a tender process), even where the subsequent proceedings raise different causes of action from those in the discontinued proceedings. An application to adduce further evidence on appeal will be refused where the evidence was available at trial and a forensic decision was made not to tender it, particularly where the purpose is to revisit the trial judge's credibility findings.