Filby v TEG Live Pty Ltd - [2023] NSWCA 320 - NSWCA 2023 case summary — Zoe

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Filby v TEG Live Pty Ltd

[2023] NSWCA 320

Court of Appeal (NSW)|2023-10-25|Before: White JA, Stern JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2023-10-25

Before

White JA, Stern JA

Catchwords

[2019] HCA 49 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424
[2001] FCA 1833 Cabal v United Mexican States (2001) 108 FCR 311
[2001] FCA 427 Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587 Corrs Pavey Whiting & Byrne v Collector of Customers (Vic) (1987) 14 FCR 434
[1987] FCA 266 Darvall McCutcheon v HK Frost Holdings Pty Ltd (in liq) (2002) VR 570

Source

Original judgment source is linked above.

Catchwords

[2019] HCA 49 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424[2001] FCA 1833 Cabal v United Mexican States (2001) 108 FCR 311[2001] FCA 427 Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587 Corrs Pavey Whiting & Byrne v Collector of Customers (Vic) (1987) 14 FCR 434[1987] FCA 266 Darvall McCutcheon v HK Frost Holdings Pty Ltd (in liq) (2002) VR 570[2002] VSCA 85 Fox v Percy (2003) 214 CLR 118[2003] HCA 22 Fraser v Thames Television Ltd [1984] QB 44 Kuru v State of New South Wales (2008) 236 CLR 1[2008] HCA 26 Lee v Lee (2019) 266 CLR 129[1991] FCA 154 Talbot v General Television Corporation Pty Ltd [1980] VR 224 Warren v Coombes (1979) 142 CLR 531

Judgment (29 paragraphs)

[1]

cy (2003) 214 CLR 118; [2003] HCA 22 Fraser v Thames Television Ltd [1984] QB 44 Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Seager v Copydex [1967] 1 WLR 923 Secton Pty Ltd v Delawood Pty Ltd (1991) 21 IPR 136 Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services & Health (1991) 28 FCR 291; [1991] FCA 154 Talbot v General Television Corporation Pty Ltd [1980] VR 224 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 Watson v Foxman (1995) 49 NSWLR 315 Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277 Category: Principal judgment Parties: Mark Filby (Appellant) TEG Live Pty Ltd (Respondent Representation: Counsel: M White SC and C Hart (Appellant) C Gleeson SC and E Hall (Respondent)

[4]

HEADNOTE In April 2012, it was announced that the Irish/English boyband One Direction ("1D") would be undertaking an Australian concert tour ("2013 1D Tour"). The 2013 1D Tour was promoted by the respondent, TEG Live Pty Ltd ("TEG"), previously Nine Live Pty Ltd ("Nine Live") a subsidiary of Nine Entertainment Co Pty Ltd ("Nine Group"). The 2013 1D Tour sold out predictably quickly following its announcement in April 2012. By May 2012, and before sponsorship arrangements for the tour had been finalised, tickets for all 25 performances were sold out. On 26 February 2013, the appellant, Mark Filby, attended a meeting with Geoffrey Jones of Nine Live, Kelvin Kirk of Nine Rewards, Marius Els and Morris Maroon (both affiliates of Mr Filby). The purpose of this meeting was for Mr Filby to pitch a project known as "Cashtime", with the aim of engaging Nine Live as a media partner in respect of this project. Prior to Mr Filby pitching Cashtime, there was a brief discussion about the 2013 1D Tour. Mr Jones left the meeting after this brief introductory discussion and did not stay for the Cashtime pitch. In early June 2013, Nine Live announced an additional, free 1D concert in Sydney ("the free 1D concert"), to be attended by approximately 11,000 Coles customers who purchased eligible products and were successful in an online draw. This was part of an arrangement between Nine and Coles for Coles to provide sponsorship for the 2013 1D Tour ("Coles 1D promotion"). Mr Filby claims that in devising the arrangement for the free 1D concert, as part of the Coles 1D promotion, Nine Live used confidential information that he had supplied during the introductory discussion at the 26 February 2013 meeting before Mr Jones left the meeting. Mr Filby alleged that this use of information by Nine Live breached an equitable obligation of confidence owed to him as regards the concept of the free 1D concert. On 25 February 2019, Mr Filby commenced proceedings against Nine Live seeking declaratory and other relief. On 3 April 2023 the primary judge dismissed Mr Filby's claim. As to what was said at the 26 February 2013 meeting, the primary judge found (at [110]-[113]) that Mr Jones had raised the subject of the 2013 1D Tour and the fact that it was sold out but that Nine Live was still looking to leverage sponsorship opportunities and that Mr Filby was likely to have mentioned the idea of an extra concert and that in-store purchasers of qualifying merchandise could go into a draw for tickets to that concert. The primary judge characterised this as a quick and casual discussion. As to breach of confidence, the primary judge concluded (at [193]-[198]) that the information conveyed by Mr Filby at the 26 February 2013 meeting was "inherently unspecific", was a "very general and inchoate idea", was not received by Nine Live in circumstances importing an obligation of confidence and that there was no misuse of the information in question. Mr Filby appealed against these conclusions. By way of notice of contention, Nine Live contended that even if the primary judge erred in some of the respects alleged by Mr Filby, his Honour's findings that the information did not have the necessary quality of confidence and that there was, in any event, no misuse of confidential information, should be upheld. Mr Filby also required leave to appeal, having regard to the value of his claim, which is less than $100,000: Supreme Court Act 1970 (NSW) s 101(2)(r). Mr Filby sought leave to appeal out of time, in his written submissions. The principal issues in the appeal were: (i) Whether the primary judge's findings as to the exchange between Mr Filby and Mr Jones at the 26 February 2013 meeting were erroneous. (ii) Whether the information conveyed by Mr Filby to Mr Jones had the necessary quality of confidence. (iii) Whether the information conveyed by Mr Filby to Mr Jones was received by Nine Live in circumstances importing an obligation of confidence. (iv) Whether there was any misuse of confidential information. The Court (Stern JA, White JA and Simpson AJA agreeing) held, granting leave to appeal but dismissing the appeal: As to Mr Filby's application for leave to appeal (1) Mr Filby's appeal raises points of principle of some importance in which the errors that he relies upon go beyond what is merely arguable. Leave to appeal should be granted. Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[37], considered. As to issue (i) (per Stern JA , White JA and Simpson AJA agreeing) (2) The primary judge's findings as to the credibility and reliability of the evidence of Mr Filby and Mr Jones, and indeed of all witnesses to the meeting on 26 February 2013, were likely influenced by his Honour's impression of them in the witness box. In these circumstances, his Honour's findings as to the exchange between Mr Filby and Mr Jones at the 26 February 2013 meeting should not be interfered with on appeal unless shown to be "glaringly improbable" or "contrary to compelling inferences". They have not been shown to be erroneous in that sense: [103]. Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, applied. (3) In any event, having carefully reviewed the evidence, the inferences drawn by the primary judge as to the content and character of the discussion on 26 February 2013 were correct. These findings are soundly reasoned and supported by the evidence and the objective probabilities: [104]-[111]. As to issue (ii) (per Stern JA, White JA and Simpson AJA agreeing) (4) It is implicit in the primary judge's finding (at [195]-[196]) that the very general and inchoate idea, which his Honour found had been communicated to Mr Jones by Mr Filby, did not have the necessary quality of confidence. Though the information conveyed by Mr Filby was not so lacking in specificity that it could not be confidential information, the information was insufficiently unique to have that character: [118]-[120]. Talbot v General Television Corporation Pty Ltd [1980] VR 224; Secton Pty Ltd v Delawood Pty Ltd (1991) 21 IPR 136; Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587, considered. (5) What is apparent from the evidence is that the concept of in-store purchases of qualifying merchandise entitling a customer to eligibility for a draw involving a ticket to a large event or concert was not in any sense unique as at 26 February 2013. Nor was it unique for an event such as a concert or music festival to be staged for a promotional purpose, or for people to qualify themselves for free tickets to an event by making qualifying purchases: [122]. As to issue (iii) (per Stern JA, White JA and Simpson AJA agreeing) (6) The evidence before the Court supports the correctness of the primary judge's conclusion that the information communicated to Mr Jones by Mr Filby on 26 February 2013 was not received in circumstances importing an obligation of confidentiality: [124]-[132]. Smith Kline French Laboratories (Aust) Ltd v Secretary, Department of Community Services & Health (1991) FCR 291; [1991] FCA 154, considered; Seager v Copydex [1967] 1 WLR 923, followed. As to issue (iv) (per Stern JA, White JA and Simpson AJA agreeing) (7) Given the conclusions reached as to whether the information communicated by Mr Filby to Mr Jones had the necessary quality of confidence or was received in circumstances importing an obligation of confidence, the question of whether there was any misuse of confidential information does not strictly arise. However, it was proposed to address the issue relatively briefly: [133]. Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26; Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49, applied. (8) The primary judge did not err in finding that there was no misuse by Nine Live of the information conveyed by Mr Filby to Mr Jones. For there to be a breach of confidence there must be some abuse or unconscientious use of the information. Misuse could, further, arise if there is some unfair advantage taken of confidential information. Here, there was nothing unconscientious in Nine Live using the information conveyed by Mr Filby: [134]. Smith Kline French Laboratories (Aust) Ltd v Secretary, Department of Community Services & Health (1991) FCR 291; [1991] FCA 154, applied; Seager v Copydex [1967] 1 WLR 923, considered.

WHITE JA: I agree with Stern JA.
STERN JA: This matter arises out of the sponsorship and promotional arrangements for the Australian concert tour of the Irish/English boy band One Direction ("1D") in October 2013 ("2013 1D Tour"). That concert tour, which largely sold out predictably quickly following its announcement in April 2012, was promoted by the respondent, TEG Live Pty Ltd ("TEG"), previously Nine Live Pty Ltd ("Nine Live") a subsidiary of Nine Entertainment Co Pty Ltd ("Nine Group") and the promoting arm of Nine Events (another subsidiary of Nine Group). In early June 2013, Nine Live announced an additional, free 1D concert in Sydney ("the free 1D concert"), to be attended by approximately 11,000 Coles customers who purchased eligible products and were successful in an online draw. This was part of an arrangement between Nine and Coles for Coles to provide sponsorship for the 2013 1D Tour ("Coles 1D promotion"). That sponsorship arrangement included a number of elements over and above the free 1D concert. The appellant, Mark Filby, claims that in devising the arrangement for the free 1D concert, as part of the Coles 1D promotion, Nine Live used confidential information that he supplied at a meeting on 26 February 2013. He alleges that this use of information by Nine Live breached an equitable obligation of confidence owed to him as regards the concept of the free 1D concert.
On 25 February 2019 Mr Filby commenced proceedings against Nine Live seeking declaratory and other relief. After a trial over six days in September 2022, on 3 April 2023 the primary judge dismissed Mr Filby's claim. By amended notice of appeal filed on 10 August 2023, Mr Filby appeals against those orders. The grounds of appeal allege error as regards the primary judge's findings as to the specificity of the information conveyed by Mr Filby, whether confidential information was misused by Nine Live and whether the primary judge's partially adverse finding as to Mr Filby's credit was erroneous. Mr Filby also challenges a number of the primary judge's factual findings.
By notice of contention filed on 13 October 2023, Nine Live contends that even if the primary judge erred in some of the respects alleged, his Honour's findings that the information did not have the necessary quality of confidence and that there was, in any event, no misuse of confidential information should be upheld.
For the reasons set out below, Mr Filby's appeal should be dismissed.

[6]

Fact finding on this appeal

The primary judge heard evidence from four witnesses of fact (including Mr Filby) in support of Mr Filby's claim and three witnesses of fact called on behalf of Nine Live. His Honour also heard evidence from Mr Walker, CEO and founder of the Retail Doctor Group which specialises in "retail management" and "brand strategy", who gave evidence in support of Mr Filby's claim. Five of the witnesses of fact were present at the meeting on 26 February 2013 at which Mr Filby claims that he provided information to Nine Live in circumstances in which an obligation of confidence arose. The affidavit evidence of those witnesses is dated from between 2020 and 2022, some seven to nine years after the events they described. Their oral evidence was given some nine years after those events. The process of fact finding was complicated, moreover, by the fact that there are relatively few contemporaneous documents that bear in any way upon the key questions of fact arising. This was explained during oral submissions on the basis that there had been numerous changes to the corporate arrangements of Nine Group, which had resulted in many emails and other documents ceasing to be available.
As would be expected in those circumstances, questions as to the credibility and reliability of their evidence loomed large. Indeed, findings as to the credibility and reliability of the accounts given by the various witnesses, and most particularly by Mr Filby, played a significant role in some of the primary judge's key findings rejecting the claim for breach of confidence. This is apparent from the primary judge's findings as regards the evidence of Mr Filby. The primary judge found (at [12]) that Mr Filby "could become carried away by his own ideas in ways that did not always anchor him firmly to well accepted facts." His Honour found (at [13]) that he had a "reasonably accurate recollection of some of his interactions with the Nine Live executives in February 2013" and that the occasion of the 26 February 2013 meeting "certainly made an impression upon him, embedding some memories of the event." However, his Honour found (at [14]) that Mr Filby had had "a long period to dwell upon his perspective of a single meeting" resulting in him "convincing himself in places of the accuracy of his account of events." Information that Mr Filby had about the Coles 1D promotion was likely to have "informed his recollection of the meeting." The primary judge found (at [15]) that Mr Filby's account of the meeting was "accurate in some limited but important respects" but that his Honour did not "fully accept his detailed evidence about what was said." His evidence was "coloured by a strong sense of betrayal". At [16], the primary judge said: "But Mr Filby's style of jumping around from subject to subject in speech was not just a feature of his evidence. He participated in meetings the same way, entertaining possibilities rather than teasing out the ordered and concrete application of his ideas... This is a most important feature of Mr Filby's personality which was in play at the February 2013 meeting and explains some of the dynamic on the day and in the months thereafter."
Significantly, the primary judge found (at [111]) that Mr Filby had "reconstructed to a degree and added into the conversation [on 26 February 2013] elements of the Coles 1D promotion which he learned of in 2013." Whilst some aspects of the matters identified by the primary judge are apparent to us from the transcript, the primary judge's findings indicate that in reaching his conclusions as to the credibility and reliability of Mr Filby's account, his Honour was likely influenced by his observations of Mr Filby in the witness box.
As regards Mr Jones, the primary judge was also clearly influenced by impressions formed of him in the witness box. The primary judge made findings (at [96]) as to what Mr Jones would have said based upon "[t]he Mr Jones that the Court saw in the witness box" and found also that "the tenor of the language attributed to Mr Jones does not fit well." The primary judge found (at [28]) that Mr Jones "gave an honest account of his recollection and its limits." It is likely that the primary judge's impression of Mr Jones in the witness box played a hand in the primary judge's findings relating to Mr Jones more generally.
As to other attendees present at the meeting on 26 February 2013, the primary judge found (at [22]) that Kelvin Kirk was a credible witness who "presented to the Court as professional, thoughtful, and clear in giving evidence." His Honour found (at [25]) that in evidence, and no doubt in business, Marius Els was "astute, diplomatic and measured" and that his evidence was "mostly accepted". His Honour found (at [17]) that Morris Maroon was a witness of credit but that "the Court does not fully accept his account."
The primary judge (at [20]) found that the account of Peter Wiltshire, who was involved in developing the Coles 1D promotion, was "generally reliable" albeit that he was reluctant to accord any credit to Mr Filby for new ideas. His Honour found that Mr Wiltshire had a reasonable recollection of events relating to the subject of Mr Filby's claim.
In some instances the primary judge expressly identified that his Honour's impressions of the various witnesses as they gave evidence formed part of his assessment of their evidence. Further, in a case such as this where the Court was required to choose between very different accounts of a key meeting which occurred many years prior to trial and where there are few documents which elucidate events, it is inherently likely that in forming judgments as to what occurred the primary judge placed some reliance upon his impressions of the various witnesses when giving evidence. As explained by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 ("Fox v Percy") at [41]: "No judicial reasons can ever state all of the pertinent factors; nor can they express every feature of the evidence that causes a decision-maker to prefer one factual conclusion over another." (References omitted).
Thus, whilst this is an appeal by way of rehearing under s 75A(5) of the Supreme Court Act, and recognising that the supposed categories of fact finding are "so porous that no definitive test is possible": Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277 at [15] (Basten JA), this is a case in which the primary judge enjoyed very real advantages over an appellate court by reason of having seen the witnesses. In these circumstances, to the extent that Mr Filby seeks to challenge findings of fact which were influenced by the primary judge's findings as to the credibility or reliability of a witness, he must establish that the primary judge's findings were "glaringly improbable" or "contrary to compelling inferences": Fox v Percy at [29] and Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 ("Lee v Lee") at [55] (Bell, Gageler, Nettle and Edelman JJ).
That stricture does not, however, apply to all of the primary judge's findings. As held in Lee v Lee at [55] (Bell, Gageler, Nettle and Edelman JJ): "Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences" is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge"." (Footnotes omitted).
In some important respects the inferences drawn by the primary judge relied upon the inherent probabilities and other objectively ascertainable facts. To that extent, this Court is in as good a position as the primary judge to draw inferences: Warren v Coombes (1979) 142 CLR 531 at 538, 551; [1979] HCA 9 (Gibbs ACJ, Jacobs and Murphy JJ); Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [23] citing the Full Federal Court in Cabal v United Mexican States (2001) 108 FCR 311; [2001] FCA 427 at [223]-[224] (Hill, Weinberg, Dowsett JJ). Further, given the very significant passage of time since the key events of relevance to Mr Filby's claim, all of which occurred in 2012 and 2013, the analysis of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 319, has particular resonance: "… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."

[10]

Arranging a meeting with Nine Live

Mr Filby formed the view that to get Cashtime "off the ground", he needed a media partner. To this end, in February 2012 he contacted Win TV, at the time an affiliate of Channel Nine. Win TV representatives said that they would put Mr Filby in contact with Ian Sheppard, Sales Director at Channel Nine. Mr Filby met with Mr Sheppard in October 2012 and gave evidence that Mr Sheppard promised him a meeting with Mr Wiltshire. He emailed and called Mr Sheppard a number of times following that meeting but his correspondence was not returned. Mr Filby also contacted two of Mr Wiltshire's assistants at this time to try to set up a meeting but did not receive a response. Mr Filby then contacted Mr Els of Artists Network. Mr Els' evidence is that he had two meetings with Mr Filby in early 2013. At one such meeting, Mr Filby presented the Cashtime proposal to Mr Els, who told him that he should get in touch with Mr Jones, as "[w]hat you do fits in perfectly for Geoff Jones". Mr Filby believed that "Nine Live would be interested in the Cashtime proposal." Mr Els explained in his witness statement that he and Mr Filby discussed ways to get Cashtime "into the broader market" and in this regard discussed approaching Channels Seven, Nine or Ten.
Mr Els knew of Mr Jones and had had some email communication with him in 2012 about the unrelated matter of a Julio Iglesias concert. In an email dated 5 February 2013 from Mr Els to Mr Jones, Mr Els described "an opportunity for Channel 9 that will nett [sic] a minimum of $12 million per annum in advertising revenue". Mr Els continued that Price Waterhouse Coopers ("PwC") would manage "the Cashtime project" and that they were "looking for a media partner that will generate immediate income for all involved." Mr Els requested a 30 minute meeting with Mr Jones so that he could present "the concept" with its creator, Mr Filby. Mr Jones forwarded this email and its attachment to Mr Kirk, the general manager of Channel Nine Rewards, to review. The attachment was a proposal document entitled "Cashtime and Channel 9". The proposal document described a concept that included: 1. "Daily CASHTIME Supa Draws every 15 minutes - public prize presentations by Live Shopping centre and Retailer TV means winners are seen and applauded so the promotion is believed and loved!"; 2. "290 Live Draws a week, entry free when you purchase a members product."; 3. "Attempt to win $1 million in a vault - (OPEN VAULT TO WIN)"; 4. "Cashtime App for Free Customer Entry."; 5. "CASHTIME SUPA DRAW PROMOTION BUILDS BETTER RELATIONSHIPS WITH ALL BRANDS PRODUCTS, SERVICES AND ALL RETAILERS by offering them a substantial extra income opportunity"; 6. "THIS LOYALTY AND BUSINESS IS THE BIGGEST WINDFALL IN RETAIL AND MEDIA HISTORY (LOCALLY AND INTERNATIONALLY) … an exclusive we are offering to Channel 9 first"; and 7. "101 Systems that GIVE an Unprecedented Historic NEW revenue stream".
Mr Kirk gave evidence that he had not heard of Mr Els or Cashtime prior to receiving this email. He reviewed the document and told Mr Jones in an email dated 6 February 2013 that he did not understand the "consumer value prop and how it will work" but said that he was happy to meet Mr Filby on Mr Jones' behalf to "get a better understanding" about Cashtime. Mr Els reported to Mr Filby on 11 February 2013 that he had left a message on Mr Jones' mobile to call him and had also spoken to Mr Jones' secretary. In an email sent later that day, Mr Els told Mr Filby that he would let him know when he heard from Mr Jones and advised Mr Filby not to put too much pressure on himself "creating more frustration." By way of reply email on 12 February 2013, Mr Filby asked Mr Els to call him to "discuss tactics."
On 11 February 2013 Mr Els sent a second email to Mr Jones in which he reiterated his request for a 30 minute meeting to "present the Cashtime prop" to him. Mr Jones responded on 15 February 2013 indicating that his secretary would set up a 30 minute meeting for Mr Kirk and himself to "see Cashtime." Mr Els responded that he and Mr Filby were looking forward to presenting "this exciting Cashtime prop." On 18 February 2013, Mr Els emailed Mr Filby, indicating that Mr Jones would see them on 26 February 2013. Mr Els identified that it was important to "get the right people there" and suggested a man called Mr Mauage "would be important to give us some cred." On 25 February 2013, Mr Els sent an email to Mr Filby attaching information about Mr Jones' professional background and advising Mr Filby that he "may want to do a bit of research on Geoff". Mr Filby's evidence was that he was "just dying to meet Geoff Jones."
The primary judge found (at [58]) that Mr Jones' professional background suggested that he would scrutinise the Cashtime pitch carefully.

[11]

The Coles 1D promotion

In 2012 Nine Group had a range of media assets, including its primary media asset, Channel Nine, and its subsidiaries Ticketek Pty Ltd ("Ticketek") and Nine Live. It also owned Australia's largest indoor entertainment area, Qudos Bank Arena, previously known as Sydney Superdome Pty Ltd or "Allphones Arena". This enabled Nine Group to offer what were described as "integrated advertising solutions" that targeted audiences across different platforms. Such solutions had been utilised in a sponsorship arrangement that Nine Group entered into with Coles in 2010 for the 2012 London Olympics. The success of this meant that maintaining its relationship with Coles became a priority for Nine Group. Mr Wiltshire, who at the relevant time was the Chief Revenue Officer and Director of Sales and Marketing at Nine Group, and was responsible for marketing and revenue across Nine Group's media assets, explained in his affidavit that Tony Phillips, then Chief Marketing Officer of Coles, had said to him, prior to the London Olympics, that he wanted a "solution for 12 months' time" to try to match the spike in sales consequent upon the London Olympics.
In 2012, Nine Live was the promoter of 1D's first Australian tour ("2012 1D Tour"). This first tour was very successful and as a result, Nine Live arranged the 2013 1D Tour. The 2013 1D Tour was publicly announced in mid-April 2012. Tickets were released for general sale on 28 April 2012 and by the end of that day 100,000 concert tickets were sold. Tickets for an additional ten concerts were then gradually made available, and over the following month all tickets available to the general public for the 25 performances sold out: at [100]. As found by the primary judge (at [103]) Nine Live was required to pay some upfront costs associated with the 2013 1D Tour and gave a guarantee that it would pay a minimum sum for the concerts. That minimum guarantee was not increased when a further 11 concerts were added to the tour. The primary judge also found (at [103]) that that level of guarantee which Nine Live agreed to pay: "… did not cause [Mr Jones] any concern in February 2013 because Nine Live was only required to pay 10 per cent of that fee upfront by no later than 31 December 2012. A further 40 per cent of that fee was payable no later than 29 July 2013 with the balance to be paid after the conclusion of the band's final performance in Australia."
The primary judge also found (at [104]) that Mr Jones had never underwritten a tour that Nine Live was promoting.
As was explained by Mr Jones, it was typically preferable for sponsorship to be lined up prior to a tour, but that was not possible given the speed with which the decision was made to proceed with the 2013 1D Tour. Mr Jones' evidence was that in around April 2012, he spoke with Mr Wiltshire, who he knew had large advertising clients such as Coles, Woolworths, the big banks and Harvey Norman, and said words to the effect of: "Pete, you may have heard that Nine Live has just signed a deal to promote a tour by a band called One Direction in 2013. I don't know if you've heard of them - they're a UK boy band and a bit of a phenomenon. The tour will be a sell-out, and advertisers and sponsors will be dying to get on board."
Consistent with that, Mr Wiltshire's evidence was that around the time that the 2013 1D Tour was announced he became aware that 1D was "sponsorable property" and he believed that Mr Jones, or someone who worked for Mr Jones, told him that. Mr Jones accepted that it was possible that he had said that to Mr Wiltshire. By way of context, Mr Jones' evidence was that a large percentage of artists do not want sponsorship as "it is a very difficult field to play in."
Mr Wiltshire's evidence was that sometime later, in around January or February 2013: "… I had the idea of taking the potential sponsorship of the One Direction tour to Coles. The idea, at this time, was in its infancy and was not as developed as the promotion eventually became …".
When asked about this, Mr Wiltshire agreed that he "claimed the idea of having Coles consider sponsoring One Direction." He said in his affidavit that the way he imagined it at that time was that some type of "retail activation" would be involved, meaning "an incentive for kids and parents to come into Coles [and] make purchases, which would be tied back to the tour" but he did not know what the "incentive" would be at that stage. He explained that "One Direction was appealing to kids" and that "One Direction would be the leverage point for … kids to nag mum or dad to buy a certain product through the store."
In his oral evidence, Mr Wiltshire said that the idea that Coles would sponsor the 2013 1D Tour was "triggered purely by the fact that we had a relationship with Coles … an ongoing relationship with Coles" and by the request from Mr Phillips referred to above. He explained that prior to around January to February 2013, he did not think that 1D would be able to be sponsored by a brand like Coles and he had a concern that Coles may not have been comfortable associating their brand with a band like 1D. He said that the idea a brand like Coles or any other company could sponsor a tour of 1D's "scale and popularity" was "new information that [he] was given." This reference to "Coles or any other company" seems to be addressing the more general information, that 1D was "sponsorable", that he was given by Mr Jones in around April 2012. That is so notwithstanding that, when giving this evidence, Mr Wiltshire was responding to a question from the primary judge asking Mr Wiltshire to explain why it was that he only got the idea about Coles sponsoring the 2013 1D Tour in January to February 2013. It is thus not clear if, in this oral evidence, Mr Wiltshire was referring to his conversation with Mr Jones in 2012 or was saying that he got new information, in January to February 2013, which suggested to him the idea of Coles sponsoring the 2013 1D Tour. That ambiguity was not interrogated during cross-examination.
Mr Jones was asked in cross-examination to explain the time lag between the announcement of the 2013 1D Tour, in April 2012, and the idea of Coles sponsoring that tour which emerged in early 2013. He explained, in answer, that at the time it was difficult to "get a share of voice" from the management and agent of 1D as they were fielding offers from "100 countries around the world to tour." He said that was "probably the primary reason [for] the lag".
Mr Wiltshire's evidence was that he called Mr Phillips in January or February 2013, on or around the day after he had the idea of Coles sponsoring the 2013 1D Tour. Adding to the ambiguity arising from Mr Wiltshire's evidence, in another answer he gave in cross-examination, Mr Wiltshire said that it was Mr Jones making him aware that 1D was a "sponsorable tour" that stimulated the conversation that he had with Mr Phillips in January or February 2013. This might suggest that the conversation that he had with Mr Jones was in fact in early 2013 not in April 2012 as he had earlier suggested or that there was a second conversation with Mr Jones, but it could also be consistent with there being a gap of some months between the conversation with Mr Jones and that with Mr Phillips. Again, this was not further interrogated in oral evidence.
During Mr Wiltshire's call to Mr Phillips he suggested the high-level idea of Coles sponsoring the 2013 1D Tour. He explained in his oral evidence that at the time of the phone call he was "literally seeking interest" and that it was "what I would almost call, like, a test case phone call" to see whether they would want to associate Coles as a brand with a thing called One Direction, which was different for Coles." Mr Wiltshire described this as merely "the seed of an idea" that he was "testing" with Mr Phillips. He said that Mr Phillips was willing to move forward with the idea. He could not recall "exactly how much we'd fleshed out at that time." The primary judge (at [144]) accepted that this was something of "a lightbulb moment where [Mr Wiltshire] thought of something close to the final Coles 1D promotion." However, his Honour found (at [145]) that Mr Wiltshire's evidence was "open to the conclusion" that this idea was prompted by discussions with others and it is unclear whether at that point in time the idea included that there would be an additional, free concert attended by winners of a draw entered by purchasing select products, a key concept discussed further below.
As to the timing of this call, Mr Wiltshire's evidence was that it was necessarily "no later than February 2013" given that it would have taken some two to three months of work to get from that discussion to the stage of signing a letter of intention, and the letter of intention between Coles and Nine Live regarding the sponsorship of the 2013 1D Tour was signed on 18 April 2013. He said that it was "not physically possible" for all the necessary steps to have taken place in the period of about seven weeks between 26 February 2013 and 18 April 2013 being the date the letter of intention was signed. He denied that he had had a conversation with Mr Jones, or someone who worked for him, after 26 February 2013 in relation to Coles' sponsorship of the 2013 1D Tour and that it was only after that that he spoke with Mr Phillips.
Mr Wiltshire's evidence was that he had never heard of Mr Filby before this case was presented to him. He denied that Mr Jones told him "about an idea that came from Mr Filby". Mr Jones said that he had no recollection of having any conversations with Mr Wiltshire about Coles. He also disagreed with the suggestion, put to him in cross-examination, that he had told one of his employees about the idea Mr Filby had given him. He said in response that he had "no recollection of any idea Mr Filby was … alleged to have given [him]."
In his affidavit, Mr Wiltshire said that they began setting up a team at Nine Group to work with Coles, and that this happened almost immediately after his conversation with Mr Phillips. That team included: 1. Nine Group, which took "more of a governing, supervisory role for the overall management of the promotion" and "took care of the media side of the deal"; 2. Nine Live, which had the responsibility of dealing with 1D on behalf of Coles and of negotiating the finer details of the commercial contract; 3. BigRed, Coles' creative agency, which was responsible for the commercial creativity of the project and was broadly responsible for the public perception and brand association between Coles, 1D and the various products forming part of the ticket giveaway; and 4. MBThree, Coles' media agency, which was responsible for the financial and commercial success of the 1D promotion for Coles and had the primary role of "looking at the costs of purchasing media and advertising spots".
Mr Wiltshire explained that it was Coles that approached their suppliers and made arrangements with them to fund or collaborate in the promotion. He described the mechanics behind the promotion as it developed, and that a "key attribute of the promotion" became the "idea that Coles would fund a further concert, which was to be offered exclusively to Coles customers", being the free 1D concert. Mr Wiltshire, in his oral evidence, said that the "unique thing" about the 1D campaign was that: "… they [Coles] agreed to run another concert that was available to Coles customers through whatever promotion that Coles decided to do."
He later added that: "The concert was staged with free tickets for Coles customers. We were not a party to Coles talking to their suppliers about how their suppliers would participate with Coles and their specific product lines, and the way that they would be sold within Coles for Coles' customers to win tickets. That was a conversation that Coles would have with their suppliers. It is not something that we would be party to."
In response to a question whether it was unique for purchasers of particular product lines to go into a lottery for a ticket Mr Wiltshire said: "It was not unique for any retailer including Coles to approach suppliers to participate in a promotion of sorts. The unique thing that we activated with [Mr Phillips] in that conversation was the idea of a free concert".
Again, there is an ambiguity about Mr Wiltshire's evidence in that it is unclear whether the "conversation" referred to is his phone call with Mr Phillips in January or February 2013 or the negotiations he had with Mr Phillips between that phone call and the signing of the letter of intention on 18 April 2013 more generally. This ambiguity was not interrogated during cross-examination.
As to who came up with the idea of the free 1D concert, the following exchange occurred during Mr Wiltshire's cross-examination: "Q: You'd agree with me, wouldn't you, that even if it was the case that you came up with the idea of Coles sponsoring the tour, you did not come up with the idea of funding a free concert through the retailers within Coles, did you? A: No, not me personally. Whether Coles came up with that idea internally and went to their suppliers for funding, that's not to my knowledge, but it wouldn't be unusual."
The primary judge found (at [147]) that Mr Wiltshire's account left "elusive the circumstances surrounding the moment he locked in the final elements of the Coles 1D promotion that most closely resemble the 1D extra concert idea."
Mr Jones' account was that he recalled that: "… the idea for the exclusive show came about because, we realised that in order for the promotion to be successful for Coles, Coles had to have something to give away. … It was therefore clear to me that in order [sic] make tickets to One Direction available for Coles customers, it would be necessary to put on a new, exclusive, concert."
The primary judge (at [155]) accepted that Mr Jones took all these various steps.
A Channel Nine document entitled "Coles 1D Roll Out" dated 23 March 2013 is in evidence. Mr Jones described this as a Channel Nine "pitch." It includes, under the heading "The Exclusive Gig", details of an exclusive 1D concert to be held in Sydney and that Coles "will have the right to hold a consumer promotion for all winners to attend" that concert. Under the heading "The Promotion Mechanic" it is stated that customers who make eligible purchases would receive a "Coles Deal Docket Receipt" with a unique code which could be entered into an online hub to enter the prize draw. There was to be a weekly draw to "encourage repeat visitation and purchase".
A draft letter of intention between Coles and Nine Live was circulated on 8 April 2013. A further PowerPoint presentation, which appears to have been presented and circulated on or around 10 April 2013, containing the logos of each of 1D, Nine Group, M9 and Coles, included reference to: "A SPECIAL, EXCLUSIVE, ONE-OFF COLES GIG for 11,000 people in Sydney on 6 October (1 pm matinee performance) PLUS tickets to show around the country and 'meet and greet'."
The mechanics set out in that PowerPoint presentation were: "- Marketing campaign promoted via CH9/Mi9 assets - Sales promotion giving Coles customers the change to win tickets when they buy your brand at Coles - For every purchase of your brand, customers get a chance to win tickets (if a customer buys two of your brand in one shop, they get two chances) - The chances are represented as a Docket Deal printed at the bottom of the till receipt - Customers enter the docket deal on a website to enter their interest in the Exclusive Gig - There are a very small number of tickets available at each of the band's regional shows which customers can choose to enter instead - A grand draw is made to reveal the winners".
A letter of intention dated 18 April 2013 and signed on behalf of Coles on 19 April 2013 (though not signed by Nine Live) is in evidence. That sets out the proposed commercial terms regarding the 2013 1D Tour sponsorship and corresponding media arrangements. The sponsorship sum was $2.5 million. Provision was also made for further investment in the Today Show, "Online", and a general programming spot schedule. There were also a number of "Proposed Sponsorship Entitlements as per the Nine Live proposal" and "Additional wish list elements that are yet to be confirmed". As the primary judge found (at [134]) Coles structured the promotion so that the promotion was only aligned to one of the suppliers' brands, though the primary judge identified that such "marketing mechanics" did not need to be discussed in his Honour's reasons. The free 1D concert took place on 6 October 2013, at 1.00pm.
In his supplementary expert report, Mr Walker set out his opinion that the Coles 1D promotion seemed to him to have been put in place "late" and that by early 2012 Nine Live would have had available to it all the information that it needed to pitch the Coles 1D promotion to Coles. In this supplementary expert report Mr Walker also set out his opinion that the Coles 1D promotion contained "identical characteristics" to what Mr Filby said, in his affidavit, that he had communicated to Nine Live.

[12]

What was or was not unique about the Coles 1D promotion?

A number of witnesses addressed the question whether, and in what respects, the Coles 1D promotion was unique. Mr Wiltshire's evidence was that it was not unusual for Coles to seek supplier funding and supplier partnership in a promotion, as that was what they had done for the London Olympics. However, as set out above, he considered the idea of a free concert to be unique. He explained: "… the uniqueness of a new concert for Coles' customers based on the fact that One Direction was sold out, and the demand around those tickets would be something or enough to drive people through the doors of Coles."
For Mr Jones there was nothing unique about a multi-product point of sale promotion and he had been involved in many such promotions. Mr Jones was also familiar with the concept of suppliers paying for in-store promotions and could recall being involved in a promotion during his employment with Fosters whereby customers purchased a particular product to become eligible for the chance to win a prize of some sort. He said that there were lots of sponsorships where a sponsor receives a number of tickets to "every show that they can and dispense these tickets how they want to through promotion to their customer base" and, like Mr Wiltshire, Mr Jones said that the single concert idea was developed because the tickets to the 2013 1D Tour were sold out. He didn't know if the combination of a multi-product promotion and free tickets to a concert was unique.
Mr Kirk gave evidence about a promotion he was involved in as marketing manager at IBM in the year 2000. The crux of the promotion was that purchasers of select IBM products sold at Harvey Norman would be entered into a draw to win tickets to the Sydney 2000 Olympics and various merchandise. He gave evidence that IBM and indeed other suppliers involved had to "spend money to get into the campaign". Mr Kirk explained that IBM paid money for sponsorship rights and then "looked to get a return on the sponsorship rights through leveraging the sponsorship."
In response to questions from the primary judge, Mr Wiltshire agreed that as the 2013 1D Tour was sold out, if Coles was going to offer some prize or opportunity to obtain tickets to the 2013 1D Tour, it was inevitable that there had to be a new concert. The primary judge put to Mr Wiltshire that the idea that he took to Mr Phillips "inevitably involved the idea of there being a new concert" and Mr Wiltshire responded "[a]s I recall." He said that: "… the idea of Coles sponsoring One Direction without any kind of additional reason would be a relatively vanilla idea."
Mr Jones' evidence was that if "someone want [sic] to access their customer base and give them ... as what Coles ultimately did with what we proposed to them, or what was developed to them, having tickets to a show is … an ideal mechanic." Mr Jones continued that for a brand such as 1D, which he described in his oral evidence as a "hot artist", having a "brand association" with the band was something that sponsors would aspire to.
Mr Walker prepared two reports and also gave oral evidence. Mr Walker's background was in retail management and brand strategy. He explained that retail operations were at the "heart" of his work and that he had some experience, when at Westfield, of being involved in "name sponsorship" of music tours which would also have involved trying to influence retailers to take part with posters and point of sale ticketing. He did not himself have experience promoting concert tours that involved enticing customers to purchase products. Mr Walker prepared his expert reports by conducting desktop research, reading into the history of supermarkets domestically and internationally and looking to find all of the elements of the promotion that Mr Filby set out at paragraph [58] of his affidavit to see if it was assimilated prior to 2013.
The question he addressed in his first report was "[w]hether the manner, nature and extent of the One Direction competition, the subject of these proceedings, was unique at the time it was launched in June 2013". His evidence was that, whilst supplier funding and promotion in television and store promotion were not unique as at June 2013, from his research it was unique at that time to: 1. Have a multi-product campaign initiated and conducted by different suppliers across categories promoting a unified campaign; 2. Tie in products through internal shop point of sale and "shelf talkers" rather than through packaging changes; 3. Create a special concert funded by competitive suppliers and Coles; 4. Offset the cost of the concert with the supermarket promotion; and 5. Utilise the promoter's own venues.
Mr Walker also set out in his report that whilst there had been numerous event ticket giveaway promotions by retailers, he had not found any instances of concert tickets being given away.
In oral evidence Mr Walker said that the combination of all of the elements that Mr Filby described at paragraph [58] of his affidavit were not in the public domain in the sense that that combination would not have been available through searches of websites or other publicly available information at the relevant time. However, Mr Walker said that multi-product campaigns, involving multiple suppliers to one retailer do occur and that supermarkets were "a good example of that." Mr Walker cited, as an example of this, Coles' "Down Down" campaign in which multiple suppliers to Coles had reduced their prices and which was linked to an exclusive Status Quo album that could only be purchased from Coles. Mr Walker also gave evidence of Coles sponsoring Status Quo's tour of Australia in 2013 and appeared to accept that a major retailer sponsoring a concert tour was not a unique proposition. The following interchange occurred during his cross-examination: "Q: … you'd accept that what would ordinarily happen is that part of the promotion [of a concert tour] would be that there would be some competition to win tickets to concerts on the tour? A: I think - I think it's a reasonable assumption, but it would've materialised in what I was researching at the time, and I couldn't find evidence of that."
Mr Walker was then taken to evidence of a number of international sponsorship arrangements and he accepted that these demonstrated similarities to the Coles 1D promotion. One promotion that Mr Walker was taken to in cross-examination involved the distribution of 80,000 tickets to an evening concert (being put on as part of a festival in the United States) to retail stores and which were then given to customers. Mr Walker accepted that this was an example of the distribution of tickets to an exclusive concert tied up with a retail promotion. He accepted that two of the examples of retail promotion of large concerts overseas and of retailers giving customers the opportunity to win tickets to large music events put to him in cross-examination had elements that appeared "fairly consistent" with the way the Coles 1D promotion was put together, albeit that none of these involved a barcode which was recorded at the point of sale as was a feature of the Coles 1D promotion. Mr Walker said that he did not think that it was a "distinctly new idea for suppliers and/or retailers to be involved with a concert of some sort." He also agreed that in February 2013 there was a "one off" musical event sponsored by Optus enabling interested people to win tickets to that event by undertaking voluntary work.

[13]

The meeting on 26 February 2013

The meeting which gives rise to Mr Filby's claim took place on 26 February 2013. It was attended by, at least, Mr Jones, Mr Kirk, Mr Filby, Mr Els and Mr Maroon, the principal of a Sydney law firm who provided support to Mr Filby at business pitch meetings and had known him since 2005 (there was some suggestion that a Mr Dipen Patel and a representative of PwC also attended the meeting). Mr Jones said in his oral evidence that he did not know who Mr Filby was, what Cashtime was, or who was coming to the meeting on 26 February 2013. Rather he understood that the meeting was something to do with Nine Rewards, and that there was something there for his Nine Rewards business. It is common ground that Mr Jones only attended the meeting for a short period of time at its commencement and that the Cashtime concept was presented to Mr Kirk after Mr Jones left the meeting.
In his affidavit Mr Filby gave a very fulsome account of what he says occurred during the period when Mr Jones was present at the meeting: "[58] I recall advising Mr Jones in detail about how he could underwrite the cost of the One Direction Tour. Before we commenced the presentation on the Cashtime Proposal, Mr Jones said to me words to the following effect: "Mark, what I am interested in is, with your experience, how you would go about underwriting a national tour of a band like One Direction. We've got One Direction coming out this year and it is costing the Board $9M - $12M and we sometimes can't access that money for up to and over 12 months. It's a lot for the Board to risk. Now if you can explain to me how you would [underwrite] it, I am more than interested." In response, I responded to Geoff Jones to the following effect: "I've organised a lot of events for a lot of different clients. Each time is different. My role has always been to create the event to suit that client. I've worked for Westfield, the RAS [the Royal Agricultural Society], Harbourside - Darling Harbour, NSW Government Carnivale, Liverpool City Council, Hurstville City Council, the Marc Hunter Benefit, Lee Kernighan's Pass the Hat Around Australia, Wollongong Storm Aid, Wollongong Council, Parramatta Council, WIN TV. I know what you can do - firstly, you would get a retail partner like Coles, Woolworths, AMP or Westfield. For example Coles, has 33,000 products on their shelves. Coles and Woolies both have buyers talking to their suppliers every day. The way to work it is that each product line pays to participate in the promotion. Coles can get them to do this. The difference is that it would be a multi-product promotion rather than being a single brand promotion so it's a minimal cost to each product. It spreads the cost out. The promotion is not on the labels of the product. Stickers on each product are not needed. The promotional material is on the shelves and in store at the point of sale. This saves everyone big bucks and makes deadlines happen. So the products do not have to spend money on creating new packaging to promote the competition which lowers to [sic] cost to each product line. Coles or Woolies could get this going in a day. This is how your Board can cover the cost of any international act. The price you ask the products [sic] to pay covers the cost of the tour and every one [sic] gets paid. Coles will know which products can be involved at the price. Everyone wins. The prize pool has to match the consumer expectations for a real chance to win. That is what drives the increase in sales for products and that is the incentive for the products to get involved. That is why it has to be a massive prize pool like a completely free concert. Coles wins by bringing an increase in store foot traffic and the fact that the consumer has to buy something in their store to win. Your company wins because it owns the arena at Homebush and it owns Ticketek and Channel 9. You put on a concert at Homebush and instead of the audience paying for the concert, the products have paid for the concert up front. The arena gets paid - its [sic] owned by Nine. Ticketek at gets paid - its [sic] owned by Nine. Channel Nine gets paid for the advertising and anyone else you need to be paid including the act is paid by the products upfront. So you don't have to wait 12 months to get your money." [59] I recall that Mr Jones said words to the effect of "This is a winner. I like it, I want it". [60] After this discussion regarding the One Direction Tour, Mr Jones said words to the effect of: "Now I have my No. 1 man here, Kalvin [sic] Kirk, who will work with you so Channel 9's board can be properly briefed, and our management team can get the best out of this. Now it is important that you explain everything to Kalvin [sic] Kirk, he can organise a workshop. He must understand everything and you must trust us on this so be open and put it all on the table so that we can make this work for all of us. Thank you." [61] On that note Mr Jones left [sic] meeting".
Mr Filby's account was to some extent supported by the evidence of Mr Maroon. Mr Maroon did not take notes of the meeting. In his affidavit, prepared in late 2020, he said that Mr Jones said to Mr Filby: "Mark, the Board has to set aside large sums to cover the costs of these international acts that we bring to Australia. We are bringing out One Direction this year and its [sic] costing us about $10M. Do you have any ideas as to how we could reduce the risk on these costs?"
Whilst Mr Maroon could not recall the specific content of Mr Filby's response in his affidavit, he said that Mr Filby talked about Channel Nine partnering with a retail partner such as Woolworths or Coles and using that partner to engage large numbers of product companies to fund a large scale competition. He said there was "detailed discussion on One Direction" but he could not recall if there was a lengthy discussion or if that discussion was before or after the presentation of Cashtime. He also recalled Mr Filby referring to a free concert.
Mr Els' evidence was that he could recall attending the 26 February 2013 meeting and could recall that the Cashtime concept was discussed but he could not recall any other discussions which took place. In his oral evidence, Mr Els said: "… At that initial meeting, we were sharing information about what acts we were involved with so that was like Keith Urban, One Direction, was just general music talk. But in that initial meeting, it was just about [Cashtime], there was no other reason, nothing else of mention apart, we just stayed focused on that. You know? … So again, it was just music talk about "[w]hat have you got coming up?" And that's probably the content and spirit of it, because none of that had any relevance to the [Cashtime] conversation…".
Mr Jones did not recall attending the meeting but accepted that it took place and that he may have met Mr Filby and Mr Els for a short time when they arrived at the Nine Group office. He explained that it was his usual practice as at 2013, if he could not attend the whole of a meeting, where possible to attend the early minutes of the meeting to participate in "meet and greets" as a courtesy and out of respect for those attending the Nine Live offices and to provide support for his team. Mr Jones agreed in his oral evidence that in early 2013 it was common for him to bring up the 2013 1D Tour in business meetings. He said: "… So, you know, we would have talked - you know, as a way of breaking the ice and talking about, you know, something in the public domain, that we were the promoter of One Direction, nothing more than that."
Mr Jones' evidence was that he had no recollection of Mr Filby mentioning the free 1D concert concept at the 26 February 2013 meeting. Having read Mr Filby and Mr Maroon's affidavits, Mr Jones denied having a conversation with Mr Filby such as they described. Further: 1. As to the suggestion that Mr Jones asked Mr Filby how to underwrite or reduce risk on the costs of the 2013 1D Tour, he explained, in summary, that the level of guarantee Nine Live was to pay would not have caused him any concern and there would have been no need to underwrite a tour. In particular, he knew of the highly successful ticket sales, and Nine Live was only required to pay 10% of the minimum guarantee up front, with a further 40% to be paid by 29 July 2013. During his time at the Nine Group, he had never made arrangements to underwrite a tour promoted by Nine Live; 2. The language attributed to him does not align with the vernacular he used in commercial contexts. For example, he would not have said "[t]his is a winner. I like it. I want it"; and 3. It was not his practice to seek advice on a high profile and strategically important tour from someone he had never met or worked with and he denied having done so.
In his oral evidence he also "emphatically" denied that he asked Mr Filby how he would offset the risk of the 2013 1D Tour. He also denied that he told Mr Filby what the 2013 1D Tour was costing Nine Live and that he asked Mr Filby how to reduce risk on those costs.
Mr Kirk's evidence was that Mr Jones left the meeting shortly after it commenced and that Mr Filby presented his Cashtime concept after that. His evidence was that: "… One Direction was discussed briefly at the beginning of the meeting. At that time, in early 2013, it was common for Geoff to bring up One Direction in business meetings. Nine Live was the promoter … and the tour was an exciting and important part of Nine Live's business for that year. I do not, however, recall Geoff asking Mr Filby how he could "underwrite and lower Channel 9's Boards [sic] risk" in relation to the upfront costs of the One Direction Australian Tour. I do not recall Geoff ever asking that question to anyone during the meeting, or otherwise." (Emphasis in original).
In oral evidence, Mr Kirk said that he could not recall the exact conversation, but was sure that there was some discussion "because Geoff did raise One Direction in the meeting." He said that he did not recall the detail but "Geoff did mention the One Direction tour and that he was interested in what Filby may have in terms of an idea around it." He did not have any recollection of Mr Jones mentioning an amount or a "dollar figure" but agreed that Mr Jones said that the board had a risk as a promoter of the 2013 1D Tour. He later corrected that answer by clarifying that he did recall there was a mention of risk but did not recall any mention by Mr Jones of "[t]he board". Mr Kirk said that in response to Mr Jones' enquiry Mr Filby "had lots of ideas and talked about a lot of things." Mr Kirk did not recall Mr Filby or Mr Jones saying the words attributed to them in paragraphs [58]-[61] of Mr Filby's affidavit.
As to whether the individual participants in the meeting expected that the matters discussed would be confidential: 1. Mr Filby's evidence was that Mr Kirk said, at the beginning of the meeting, that "[e]verything we are dealing with will be kept confidential" and that Mr Jones said "[t]hat's right." It is implicit in the primary judge's finding (at [90]) that his Honour rejected this evidence and there is no challenge to that finding; 2. Mr Els said that "if I was putting a proposal to somebody then I would hope that that would stay within the four walls of the room"; 3. Mr Jones said that he had a lot of meetings with people trying to pitch things. In that context, he said that he treats "all meetings confidentially" and that this was "a given." Mr Jones continued that where there is "real confidentiality, we have a non-disclosure agreement by both parties, typically initiated by the person trying to present"; and 4. Senior Counsel for Nine Live accepted that the "tenor of the evidence" of their witnesses was that, for the pitch aspect of the meeting, there would have been an obligation of confidence.

[14]

Events after 26 February 2013

Mr Filby's evidence was that he learned of the Coles 1D promotion on 5 June 2013 after attending a Coles supermarket. He said that he called Mr Jones on 5 June 2013, spoke with Mr Jones' assistant, requested a return call, and Mr Kirk called him back within a few minutes. He described a conversation with Mr Kirk in the following terms: "[Mr Filby] You've taken the exact promotion that I explained to Geoff Jones and running it with Coles and One Direction. [Mr Kirk] Mark, don't worry about that. Its [sic] Cashtime that we should be focussing on. Lets [sic] work on making Cashtime a success".
In his oral evidence Mr Filby was adamant that this call occurred on 5 June 2013 "within moments" of his call to Mr Jones.
Mr Kirk did not recall having a conversation with Mr Filby around this time. His evidence was that, based on his recollection of how he felt about Cashtime as an idea at this time, specifically that it was not a viable business opportunity, he would not have said the words attributed to him by Mr Filby as set out above. Further, from 31 May to 10 June 2013 he was in New Zealand on a family holiday and did not recall having a telephone conversation with Mr Filby during this period. The primary judge rejected (at [169]) Mr Filby's evidence as to this conversation. There is no challenge to this finding, albeit that, as Senior Counsel for Mr Filby submitted, Mr Kirk did, in his oral evidence, say that Mr Filby mentioned 1D to him in "a call later on" in 2013.
On 21 June 2013 Mr Jones' assistant left a message that Mr Filby had called for him but no message was left. There is no evidence that Mr Filby spoke with Mr Jones at this time.
There were also a number of emails between Mr Kirk and Mr Filby after 5 June 2013 but these did not make any reference to the free 1D concert concept. Mr Maroon's evidence was that he could recall Mr Filby contacting him and telling him that Nine Live had stolen his idea for the 1D "competition." Whilst Mr Maroon recalled this as being a few weeks after the meeting on 26 February 2013, given the timing of the Coles 1D promotion it must have been after 5 June 2013. Mr Maroon said that Mr Filby told him that he was not going to do anything about it as he wanted to get Cashtime "up and running with them." Mr Filby's evidence, in answer to a question from the primary judge, was that he had deferred complaining about Nine Live's use of the free 1D concert concept as he wanted to keep open the possibility of "getting" Cashtime and he did not want to complain. Mr Filby accepted that from 31 July 2013 he was free to complain if he thought that Nine Live had misused his idea as Mr Kirk had confirmed, via email, that Nine Group would not be proceeding with Cashtime. When asked what he did about Nine Live's purported misuse of the free 1D concert concept, Mr Filby's response was that he "went to Channel 7" and "tried to get on with life". In this regard the evidence is that Mr Filby took his Cashtime concept to Channel Seven. He said he only decided to go to court when Channel Seven "dumped" him. It also appears that in 2013 Mr Filby was making complaints to Channel Nine about a separate matter, an A Current Affair broadcast, but that his letter or complaint did not make reference to 1D.
Given the focus of the submissions on appeal, it is unnecessary to recite the development of the Cashtime proposal after the 26 February 2013 meeting in any detail. In summary, whilst there were further discussions between Mr Filby and various Nine Live representatives (other than Mr Jones), by email dated 31 July 2013 Mr Kirk communicated to Mr Filby that Nine Live would not progress the matter any further: at [182]. Shortly prior to that, in an email of 23 July 2013 to Mr Kirk asking that Mr Kirk and Mr Jones have a further meeting with him about Cashtime and give him "this last chance", Mr Filby wrote: "I firstly would like to thank you Kelvin for the professional way you have treated myself and the rest of my team, that have attended the meetings at your office over the past months. I am convinced that you and Geoff are good guys and the amount of time given is well appreciated. I believe that you and Geoff understand that I have something different with Cashtime, especially from the feedback you have received regarding the One Direction Coles Campaign."
Mr Filby explained that this was a difficult time for him as he was hopeful that Channel Nine would contract with Cashtime but he was very angry about the Coles 1D promotion and about an unrelated issue he had with Channel Nine about a program on A Current Affair. Also he had a friend with cancer and another friend who died around that time.

[15]

The meeting on 26 February 2013

Under the subheading "Was Confidentiality Expressly Discussed?" the primary judge made the unchallenged finding that: "[90] It is unlikely that Mr Jones or Mr Filby gave any assurances about confidentiality at the beginning of the 26 February meeting and before the participants focused on the Cashtime proposal. The meeting opened with a degree of exploratory conversation in which both sides were getting to know one another. Assurances about confidentiality were unlikely at that point as being out of context. Discussions about confidentiality were more likely when the meeting was about to turn to the business at hand, the discussion about Cashtime. But even then the Court is not convinced that confidentiality was even mentioned."
The primary judge had earlier made the unchallenged findings: "[76] In the Court's view he freely, and without cautionary warnings about confidentiality, briefly volunteered some ideas about how Nine Entertainment Co could earn greater advantage from the One Direction tour to boost his credibility with Mr Jones. It was important to him to demonstrate, as he did in this short segment, that he had a fertile marketing imagination that allowed him to trace out workable marketing ideas. Responding to the invitation to talk about the One Direction tour was one way of proving his credentials. But for this to work he had to appear to Mr Jones to be generous with his ideas; not hedging them about with limitations on their use. [77] In the Court's view on this part of the meeting Mr Filby was seeking to be expansive and did not signal to Mr Jones that any part of this general introductory discussion was confidential. Nor would it have appeared that way to Mr Jones, partly because in this early part of the discussion Mr Filby was also talking about other background information, such as his experience, which in no sense was confidential. In short, Mr Filby was prepared to share this idea with Mr Jones to secure the far greater objective of Nine Live adopting Cashtime."
Under the subheading "What did Mr Filby say?" the primary judge found: "[109] The Court's findings on this conflicting evidence still leave a substantial area of disagreement about what was said by Mr Filby at the 26 February 2013 meeting. The core of Mr Filby's account of what he said commences with the words above "I know what you can do…" and concludes with the words "so you don't have to wait 12 months to get your money". [110] The Court does not accept that Mr Filby said anything as detailed as this to Mr Jones. … … [112] But taking these matters into account the Court infers the following. Mr Jones raised the subject of the One Direction tour and the fact that it was sold out, but that Nine Live was still looking to leverage sponsorship opportunities from the tour. … Mr Filby is likely to have mentioned the idea of an extra concert and that in-store purchasers of qualifying merchandise could go into a draw for tickets to that concert. To experienced marketing executives such as Mr Jones the 1D extra concert idea did not need to be described in anymore elaborate terms than it is in this paragraph of these reasons. [113] In the Court's view it was quick, casual and not even expressed as a formal business proposition. The text that Mr Filby claims to have said after the words "I know what you can do" is quite foreign to the nature of the likely interaction between himself and Mr Jones. That interaction was brief and quickly passed over but probably nevertheless informed and reinforced an idea in Mr Jones' thinking about the Coles sponsorship."
As to what Mr Jones said to Mr Filby, the primary judge found (at [66]) that Mr Jones did raise the subject of 1D at the 26 February 2013 meeting and did so in a way that "implicitly invited Mr Filby to contribute his ideas": at [74]. His Honour continued (at [84]) that Mr Jones probably said something "very general such as [what had been described by Mr Maroon] to introduce the subject of the One Direction tour." That account is set out at [66] above.
The primary judge also found: "[105] … Mr Jones did not seek advice from Mr Filby … But … Mr Jones did test the waters to see what ideas Mr Filby could offer about the One Direction tour and Mr Filby obliged by informally and very briefly suggesting the 1D extra concert idea."
The primary judge found (at [95]-[66], [100]) that Mr Jones did not ask about underwriting or lowering the costs of the 2013 1D Tour and did not say "[t]his is a winner. I like it, I want it".
The primary judge, in the introductory section of his Honour's judgment introduced the free 1D concert concept: "[2] Mr Filby's concept in cameo was this: Nine Live would partially offset its financial outlays on the One Direction tour by arranging the band to perform an extra concert at a Nine Live owned venue; this concert would be "free" to concertgoers, who had purchased certain lines of merchandise from retail chain outlets, qualifying them to enter a lottery for concert tickets; lottery draw winners could attend the extra concert; and the retail chain would more than cover the concert costs by paying Nine Live to use the One Direction tour in its marketing strategy campaign covering the qualifying merchandise. [3] The outlines of this concept were much debated in these proceedings. But its indisputable core was One Direction performing at an additional concert which would be attended by the lottery-winning purchasers of qualifying merchandise from a major retail chain. In their 2010 - 2016 life cycle, One Direction fans commonly referred to them as "1D". In these reasons, for convenience, Mr Filby's concept will be described…as "the 1D extra concert" concept, or idea."
Mr Filby submits that the primary judge found that each element that was described (at [2]-[3]) was communicated by Mr Filby to Mr Jones and others at the meeting on 26 February 2013. In this regard Mr Filby also relies upon the primary judgment (at [195]) where his Honour said: "… the very limited information which the Court has found Mr Filby conveyed to Mr Jones was extremely vague general and limited and finds its best description in paragraphs [2], [3], and [110] [which was in fact a reference to [112]] of these reasons."
Whilst there is some ambiguity as to the primary judge's findings, in my judgment the primary judge's key findings are those set out at [110]-[113] and not the more general and fulsome description at [2]-[3].

[18]

The primary judge's conclusions as to breach of confidence

The primary judge (at [193]-[198]) disposed of the legal issues arising from the factual findings set out above in relatively short order: "[193] The authorities such as Optus Network Pty Ltd v Telstra Corp. Ltd (2010) 265 ALR 281; [2010] FCAFC 21 at [39] (Finn, Sundberg and Jacobson JJ) established that Courts should address the following matters in determining whether a case for breach of confidence is made out: (1) the information in question must be identified with specificity; (2) it must have the necessary quality of confidence; (3) it must have been received by the defendant in circumstances importing an obligation of confidence; and (4) there must be an actual or threatened misuse of the information without the consent of the person who imparted it. [194] As result of the Court's findings, the plaintiff, Mr Filby, fails in these proceedings because he has not established a number of these matters. [195] As to (1), the very limited information which the Court has found Mr Filby conveyed to Mr Jones was extremely vague general and limited and finds its best description in paragraphs [2], [3] and [110] [which should be a reference to [112]] of these reasons. This information was inherently unspecific. [196] As to (2), the Court has heard very detailed evidence from the impressive expert witness Mr Walker on the question of the uniqueness of the information. But that evidence is predicated upon the correctness of Mr Filby's detailed account of what he said to Mr Jones. But the Court does not accept that was all said to Mr Jones. All that Mr Jones got from Mr Filby was a very general and inchoate idea expressed to the maximum in paragraphs [2], [3] and [110] [which should be a reference to [112]] of these reasons. [197] As to (3), the information was not received by Nine Live in circumstances importing an obligation of confidence. As the Court's findings show Mr Jones' informal conversation with Mr Filby at the outset of the February 2013 meeting was one in which he was not alerted to any special confidentiality over the ideas being imparted to him. Had he been so aware he would have observed the obligations of confidence. [198] As to (4), there was no misuse of the information in question. It informed Mr Jones and Mr Wiltshire's thinking but there was no misuse as they were not alerted expressly or by the circumstances to any obligation of confidentiality concerning the information."

[19]

Notice of appeal

Mr Filby advances five grounds of appeal: 1. The primary judge erred (at [195]) in finding the information conveyed to Mr Jones on 26 February 2013 by Mr Filby was inherently unspecific, very general and inchoate, and that such a finding is contrary to his Honour's own description of the information and the evidence at trial. 2. The primary judge erred (at [197]) in finding the information was conveyed in circumstances that did not import an obligation of confidence. 3. The primary judge erred (at [198]) in finding the information conveyed was not misused by Mr Jones and Mr Wiltshire, on the premise that the appellant did not alert them expressly, or by the circumstances of the meeting. Such a finding is contrary to the evidence and his Honour's own findings. The primary judge also erred in finding (at [197]), without any basis, that if Mr Jones had been told this information was confidential he would have observed that confidentiality. 4. The primary judge erred (at [198]) in finding that, relevant to ground 3 above, that Mr Filby had to, expressly or by implication, alert Mr Jones or Mr Wiltshire of the confidential nature of the information, to support a finding of misuse. Such a finding is contrary to law. 5. The primary judge erred in so far as Mr Filby's credit was impugned, in failing to refer and consider the cross-examination of Mr Kirk, called by the respondent, such failure materially influencing his Honour's decision to dismiss the proceedings in the Court below.
Mr Filby challenges the findings of fact made by the primary judge at [62], [90], [110], [113], [195]-[196]. He contends that the primary judge ought, instead, to have made findings that: 1. Mr Filby did convey to Mr Jones on 26 February 2013 the substance and effect of the matters referred to at paragraph [58] of Mr Filby's affidavit (set out above at [65]); 2. The information conveyed by Mr Filby constituted a specific and identifiable combination of elements that was capable of being understood by Mr Jones and was so understood by him as a concept or process with commercial potential and application in relation to the 2013 1D Tour; 3. Nine Live and Nine Group applied the free 1D concert concept in the Coles 1D promotion; and 4. In conveying the free 1D concert concept to Mr Wiltshire and applying it in the Coles 1D promotion launched on 5 June 2013, Nine Live used the concept without the authority or consent of Mr Filby.

[22]

Were the primary judge's findings as to the exchange between Mr Filby and Mr Jones at the 26 February 2013 meeting erroneous?

Mr Filby's grounds of appeal depend in part upon his challenge to the primary judge's findings as to what was said during his exchange with Mr Jones at the commencement of the 26 February 2013 meeting. Mr Filby submits that findings about what was said regarding the free 1D concert concept are not matters of competing inferences equally open to be drawn, but rather are findings of fact based on a partial assessment of the available evidence and a lack of reasons that properly addressed salient parts of it. He contends that this Court is in as good a position as the primary judge to take into account all the relevant evidence and determine the facts, or the proper inferences to be drawn from the facts. Mr Filby contends that the primary judge gave illogical reasons, and failed to give reasons, for rejecting some evidence and that, in such circumstances, this Court may more readily critically assess why Mr Filby's evidence was rejected.
Mr Filby submits that the primary judge also erred in his Honour's characterisation of the conversation between Mr Jones and Mr Filby and in his Honour's findings as to what Mr Jones said during the interchange. Mr Filby submits that the primary judge ought to have accepted that Mr Jones told him what the 2013 1D Tour was costing Nine Live, as the figure of "$9-$12M" that Mr Filby suggested Mr Jones had put to him in the meeting is consistent with the budgeted figures in the financial information disclosed by Nine Live for the purposes of the proceedings. Mr Filby submits, further, that he was found by the primary judge (at [13]) to have a reasonably accurate recollection of some of his interactions with the Nine Live executives in February 2013, and his account found some support in the evidence of Mr Kirk and Mr Maroon which I have summarised above. Mr Filby submits that, by contrast, Mr Jones had very little recollection of the meeting on 26 February 2013.
As to these matters Nine Live submits that the primary judge's conclusions were correct and were based upon the advantages that the primary judge had in seeing Mr Filby in the witness box for several days. Further, Nine Live submits that these conclusions were informed by the findings as to Mr Filby's "wide-eyed" approach to meeting Mr Jones, his long period of reflecting upon and convincing himself of the accuracy of his account and his sense of betrayal.
As set out at [8]-[17] above, the primary judge's findings as to the credibility and reliability of the evidence of Mr Filby and Mr Jones, and indeed of all witnesses to the meeting on 26 February 2013, were likely influenced by his Honour's impression of them in the witness box. In these circumstances, consistent with what I have set out at [15] above, his Honour's findings as to this interchange should not be interfered with on appeal unless shown to be "glaringly improbable" or "contrary to compelling inferences": Fox v Percy at [29]. They have not been shown to be erroneous in that sense.
In any event, having carefully reviewed the evidence which I have summarised above, I am satisfied that the inferences drawn by the primary judge as to the content and character of the discussion on 26 February 2013 were correct. These findings are soundly reasoned and supported by the evidence that I have summarised above and the objective probabilities. In this regard, it is objectively unlikely that: 1. Mr Filby would have spoken at the length he described in his affidavit at a long-awaited meeting convened for the specific purpose of Mr Filby presenting his Cashtime proposal. The evidence summarised above establishes that this meeting was important to Mr Filby and that he had been very anxious to meet with someone like Mr Jones to explain Cashtime with a view to partnering with Channel Nine to develop the Cashtime concept. In these circumstances it is objectively unlikely that Mr Filby would have devoted any significant part of the meeting to something other than Cashtime; 2. Mr Filby would have set out the extra 1D concert concept with the coherence and detail that he described in his affidavit given what was observed by the primary judge as to his conversational style and that this was not a proposal that he had developed in advance of the meeting; 3. Mr Jones would have disclosed information to Mr Filby about the cost to Nine Live of promoting the 2013 1D Tour, about risk to the "Board" or about "underwriting" the 2013 1D Tour, when he had not met Mr Filby before and knew nothing about him. There is no reason why Mr Jones would have disclosed information of that character to someone whom he had not previously met and did not know by reputation at a meeting arranged for a wholly different purpose. I would reject Mr Filby's submission that the correspondence between the dollar figures in his affidavit and the budget figures in the Nine Live documents supports his account in this regard. It is not clear that the budget figures for the 2013 1D Tour as at February 2013 would have been the same as those in the financial documents in evidence. Mr Jones' oral evidence was that there would be "variances" in the budget as between February 2013 and November 2013 and that "[y]ou don't ever know the costs lines of a tour … until the shows have been executed." Given this evidence, and the objective probabilities, I am satisfied that any correspondence between the figures is merely coincidental; 4. Mr Jones would have said "[t]his is a winner. I like it. I want it". That language suggests that Mr Jones considered that he was telling Mr Filby that he wanted something from Mr Filby. If he had used that language it is inherently unlikely that there would have been no follow up discussion with Mr Filby at the 26 February 2013 meeting or later. I also consider that Mr Jones' and Mr Kirk's evidence, that Mr Jones did not use language to this effect in professional settings or otherwise, tends against him having said this; and 5. Mr Jones told Mr Filby that he should "explain everything" to Mr Kirk so that Channel Nine's "board" could be briefed and that Mr Kirk would "organise a workshop" to take Mr Filby's ideas for sponsorship of the 2013 1D Tour further (as set out in Mr Filby's affidavit at paragraph [60]). Had this been said it would be expected that Mr Kirk, or another employee of Nine Group, would have contacted Mr Filby after the meeting to implement these suggestions. It would also be expected that Mr Filby would have contacted Mr Jones or Mr Kirk after the meeting to follow up on the suggestion that he should give Mr Kirk further details of his ideas for sponsorship of the 2013 1D Tour and that a workshop would be arranged. However, as is apparent from the summary of evidence set out above, after the 26 February 2013 meeting, save for one phone call to Mr Jones on 21 June 2013, which the primary judge found was related to Cashtime, there was no further contact between Mr Jones and Mr Filby. There is also no evidence that, after the 26 February 2013 meeting, anyone at Nine Group, or Mr Filby, communicated about following up on Mr Filby's ideas for sponsorship of the 2013 1D Tour. Moreover, the 23 July 2013 email in which Mr Filby suggests that the positive feedback Nine Live had received on the "One Direction Coles campaign" was indicative of there being "something different with Cashtime" does not make any reference to any expectation on the part of Mr Filby that he would have been involved in development of that campaign. Had there been any suggestion at the 26 February 2013 meeting that Nine Live would follow up with Mr Filby as to his ideas for sponsorship of the 2013 1D Tour, he would likely have said something about that in this email.
Conversely, it is objectively likely, given the evidence I have set out above, that: 1. Mr Jones raised the 2013 1D Tour and informally asked Mr Filby if he had any ideas for leveraging sponsorship opportunities during his brief introductory "meet and greet" with Mr Filby. The evidence set out above supports that, at around this time, it was common for Mr Jones to bring the 2013 1D Tour up in meetings. The evidence also suggests that around this time Nine Live was looking to develop sponsorship opportunities for the 2013 1D Tour as this had not been arranged before the tickets went on sale. Further, Mr Jones' raising the 2013 1D Tour in that context is also consistent with the evidence of Mr Els that Keith Urban (whose tour had at that time recently commenced) was also mentioned at the meeting; 2. Mr Filby, keen to impress Mr Jones at this much anticipated meeting, would readily have offered one or more ideas in response; and 3. Mr Filby's idea would not have been presented as a coherent concept given that he had had no notice of Mr Jones' question and had not prepared any proposal for the 2013 1D Tour in advance.
Having regard to these objective probabilities, the findings of the primary judge at ([90], [105], [112]-[113]) reflect what I would infer most likely occurred during the conversation between Mr Jones and Mr Filby at the commencement of the meeting on 26 February 2013. Those findings are supported by Mr Kirk's and some of Mr Els' evidence and to some extent, by that of Mr Filby and Mr Maroon. These findings are consistent with Mr Jones' evidence as to what he would likely have done at the time. Having regard to the objective probabilities set out above, I consider that the evidence of Mr Kirk that Mr Filby had "lots of ideas" and talked about "a lot of things" in response to Mr Jones raising the topic of the 2013 1D Tour should not be construed as suggesting that Mr Filby presented a detailed and coherent proposal such as that set out in Mr Filby's affidavit. That evidence must also be seen in the context of Mr Kirk's evidence that "One Direction was discussed briefly" at the meeting. Having regard to the manner in which Mr Filby gave evidence, aptly described by the primary judge as set out above, I would infer from this evidence that Mr Filby briefly presented a range of ideas on the subject of possible sponsorship for the 2013 1D Tour during a quick and casual interchange.
Whilst the accounts of each of Mr Filby and Mr Maroon went beyond this, like the primary judge I consider that both accounts are to some extent unreliable. As the primary judge observed, Mr Filby had had a long time to dwell on the meeting, fuelled by his sense of betrayal and with the benefit of detailed knowledge of the Coles 1D promotion as it was implemented. In this regard, it is of some significance that Mr Filby gave evidence that from 5 June 2013, when he first saw the Coles 1D promotion, he "started studying [the Coles promotion], it was online" and he was "screeching [sic] around for everything and they had - the competition, it had everything and it was over a period of days that I found out about 550 product lines." It is apparent from that evidence that from shortly after he saw the Coles 1D promotion, he gave close attention to precisely what that promotion involved. Having regard to this, and to the objective probabilities, much of the detail of his account should be rejected as reconstruction, and to some extent unconscious embellishment, rather than accurate recollection.
As for Mr Maroon, he did not have any notes of the meeting and over seven years had passed between the meeting and the preparation of his affidavit. During that time, he had had a number of discussions with Mr Filby in which Mr Filby complained to him that Channel Nine had taken his idea for the 2013 1D Tour promotion. There is every likelihood in these circumstances that his recollection of the 26 February 2013 meeting had become coloured by these conversations.
Contrary to Mr Filby's submission, in circumstances where some nine years and six months had passed between the 26 February 2013 meeting and the commencement of the trial, the primary judge was not required to accept Mr Filby's account in full merely because other witnesses, and in particular Mr Jones and Mr Kirk, had only limited or no recollection of the meeting. Rather, it was incumbent upon the primary judge, as his Honour did, to assess the evidence as a whole having regard to the objective probabilities. Whilst the primary judge did not refer to all of Mr Maroon's evidence, the primary judge explained (at [31]) that he would not include versions of the facts that he had rejected. In any event, as set out above, the primary judge was entitled to reject some of Mr Maroon's evidence notwithstanding that he accepted aspects of his evidence as generally accurate.
It follows that I would reject Mr Filby's challenge to the primary judge's findings about what occurred at the 26 February 2013 meeting. I would also reject his challenge to the primary judge's characterisation of the interchange between Mr Filby and Mr Jones at the beginning of that meeting.
An element of particular significance, which emerges from my findings set out above, is that Mr Jones mentioned to Mr Filby that he was interested in his ideas for the 2013 1D Tour, having raised that Nine Live was still looking to leverage sponsorship opportunities. This was a conversation, albeit casual and brief, about sponsorship ideas for Nine Live for the 2013 1D Tour. Inherent in the interchange was the objective possibility that if Mr Filby suggested something that Mr Jones thought was a good idea, Mr Jones might well use that idea.

[24]

Did the information have the necessary quality of confidence?

In this case, given how the parties developed their submissions, it is convenient to deal with the first two elements identified by Gummow J in Corrs Pavey together.
Mr Filby submits that it is not clear from the primary judge's conclusions (at [195]-[196]) whether his Honour found that the information communicated by Mr Filby was insufficiently specific to have the necessary quality of confidence. If his Honour did make that finding, Mr Filby submits that the primary judge erred as the information he communicated to Mr Jones contained all the necessary components to explain the sponsorship arrangement that was ultimately put in place as between Nine Live and Coles. It was thus sufficiently specific to constitute confidential information. Mr Filby submits that, as was the case with the concept for the proposed television program "To Make a Million" in Talbot v General Television Corporation Pty Ltd [1980] VR 224 ("Talbot") at 227-230 (Harris J), his concept had some attractiveness and was something which "was capable of being realized as an actuality." Further, Mr Filby submits, as held by Hirst J in Fraser v Thames Television Ltd [1984] QB 44 ("Fraser") at 66, there may be cases where a "short unelaborated statement of an idea" suffices to qualify for protection under the law of confidence.
Relying upon Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587 at 590-591 ("Coco v Clark") and Fraser at 66, Mr Filby submits that it is not necessary that the elements of a concept be unique if the concept itself is novel or consists in "a significant twist or slant to a well known concept". He also relies upon the recognition by Chernov JA (Ormiston and Callaway JJA agreeing) in Darvall McCutcheon v HK Frost Holdings Pty Ltd (in liq) (2002) VR 570 at 587; [2002] VSCA 85 that a composite idea (in that case a corporate sponsored art collection together with the sale of specially designed calendars) could have sufficient "uniqueness" to be protected by equity even where the components were not themselves unique. Here, Mr Filby submits, the composite concept that he communicated to Mr Jones was sufficiently unique to qualify for protection as confidential information.
Mr Filby submits further that the information he communicated to Mr Jones had the necessary quality of confidence as it was valuable information, providing a solution to a sponsorship conundrum in circumstances in which Nine Live had not yet been able to come up with such a solution. In this regard, he relies upon the evidence of Mr Walker as to the uniqueness of the Coles 1D promotion. Mr Filby submits further that it is significant that the information that he conveyed to Mr Jones, in particular that the suppliers of products to the sponsoring retail chain would be the actual funders of the concert by paying promotion fees to Coles, reflected elements of the Cashtime concept that he was pitching to Nine Live. However, as I have rejected Mr Filby's evidence that he communicated that particular information to Mr Jones on 26 February 2013, it is unnecessary to consider this submission further.
Nine Live submits, in response to this, that neither the idea of a free concert, nor that of concert tickets being the prize in a competition, nor of product suppliers funding retail advertising outlay, was new. Nine Live also submits that the information that Mr Filby communicated to Mr Jones merely conveyed a solution that Nine Live, or its experienced consultants, would inevitably have devised. This was because it was, in reality, the only feasible solution to the problem of finding some "retail activation" for a major retailer sponsorship arrangement in circumstances in which the 2013 1D Tour was sold out, and any other incentive would be too limited in scale to be a realistic solution in the circumstances. Nine Live relies in this regard on the judgment of King J in Secton Pty Ltd v Delawood Pty Ltd (1991) 21 IPR 136 ("Secton") rejecting a claim of breach of confidence in respect of what was described (at 155) as "more or less general concepts" relating to scientific geometry and design rather than detailed information. Whilst accepting that a trade secret may reside in a concept, King J found (at 156) that "mere possibilities or "vague mental conceptions"" did not suffice. Nine Live submits, relying on Fraser (at 66) that it is not "every stray mention of an idea by one person to another" that is protected. Further, Nine Live submits that the primary judge's findings as to what was communicated by Mr Filby are to be found at [3] and [110]-[113], and not at [2] as Mr Filby submits. Thus, the primary judge's findings (at [195]-[196]) should be understood on the basis that the primary judge found that the "uniqueness of the concept [conveyed by Mr Filby] required an idea of far greater specificity and detail to have been conveyed". It contends that the finding that the information lacked the necessary quality of confidence follows from the primary judge's finding as to specificity.
In my judgment it is implicit in the primary judge's finding (at [195]-[196]) that the very general and inchoate idea, which his Honour found had been communicated to Mr Jones by Mr Filby, did not have the necessary quality of confidence. In reaching this finding, the primary judge relied upon his Honour's characterisation of the information as "inherently unspecific": at [195]. Whilst his Honour's finding is an apt descriptor of what Mr Filby conveyed, in my judgment that of itself would not tend against it being confidential in the circumstances of this case. However, for the reasons set out below, his Honour's conclusion that the information lacked the necessary quality of confidence was correct.
In Talbot, the plaintiff had developed his concept for a television show about successful people to the point where it had "at least some attractiveness as a television programme and to be something which was capable of being realized as an actuality": at 231. Harris J held (at 231) that without deciding that it was always necessary to go that far, such a concept was capable of being the subject of a confidential communication. Talbot was applied in Fraser where Hirst J found (at 65) that an idea expressed orally could qualify as confidential information and that the extent to which an idea would have to be developed to meet the criteria of being confidential would vary depending upon the nature of the case. In some cases "the criteria may be met by a short unelaborated statement of an idea": at 66. Hirst J continued (at 66) that the "content of the idea" must be "clearly identifiable, original, of potential commercial attractiveness and capable of being realised in actuality." In Secton, King J described the decided cases as establishing that an important characteristic of a trade secret is that the concepts "on being expressed" were "recognisable as not only new and original but also as potentially valuable": at 156. Over and above specificity, as is well established, there can be no breach of confidence in revealing to others something which is already common knowledge. However, something which has been constructed solely from materials in the public domain may nonetheless possess the necessary quality of confidentiality: Coco v Clark at 590. As Harris J held in Talbot (at 231), a "commercial twist" or "particular slant" may give something a quality which takes it "out of the realm of public knowledge."
Having regard to these authorities, I would conclude that the information conveyed by Mr Filby was not so lacking in specificity that it could not be confidential information but that it was insufficiently unique to have that character. The matters which the primary judge found to have been communicated by Mr Filby were, in my judgment, sufficiently developed to be capable of commercial application, albeit that they were not in fact reflective of a proposal which had been developed as such by Mr Filby prior to the 26 February 2013 meeting. As identified by the primary judge, the matters communicated by Mr Filby were capable of being implemented by an experienced marketing executive such as Mr Jones without further elaboration. However, the information provided by Mr Filby was not of itself unique nor did Mr Filby give publicly available information such a "commercial twist" that the information that he conveyed had the necessary quality of confidence. Whilst it is apparent that no one at Nine Live had thought of offering a free 1D concert as the incentive for a "retail activation" sponsorship opportunity, that does not give the information the necessary quality of confidence. Rather, it is reflective of Mr Filby coming up with a good solution to the particular conundrum facing Nine Live at that time, but doing so by turning his mind to what was freely available public information derived from past promotions.
As set out below, I have concluded that the primary judge did not err in finding that it was Mr Filby's information that planted the seed in the thinking of Mr Jones, and through him Mr Wiltshire. However, that does not give Mr Filby's information the character of confidence. Rather, it is the consequence of the timing of the 26 February 2013 meeting, the circumstance that the 2013 1D Tour was sold out, and the thinking of Nine Live as to how to arrange sponsorship for the 2013 1D Tour being somewhat embryonic at that time. Thus, the fact that no one at Nine Live had themselves come up with the idea of the free 1D concert does not make the information communicated by Mr Filby confidential. He simply suggested to them that they applied known concepts in circumstances in which they had not thought of this themselves as at that time.
In reaching this conclusion I have placed considerable weight upon the evidence of Mr Walker, Mr Jones, Mr Kirk and Mr Wiltshire, which I have set out in some detail above. What is apparent from their evidence is that the concept of in-store purchases of qualifying merchandise entitling a customer to eligibility for a draw involving a ticket to a large event or concert was not in any sense unique as at 26 February 2013. Nor was it unique for an event such as a concert or music festival to be staged for a promotional purpose, including promoting a particular retailer or national commercial entity, or for people to qualify themselves for free tickets to an event by making qualifying purchases. Whilst Mr Filby suggested utilising these known elements for the promotion of the 2013 1D Tour, that does not confer the necessary quality of confidence upon the information that he communicated to Mr Jones on 26 February 2013.
It follows that I would dismiss ground 1 of the amended notice of appeal. If necessary, I would have upheld ground 1 of the notice of contention.

[25]

Was the information received by Nine Live in circumstances importing an obligation of confidence?

As set out above, there is no challenge to the primary judge's finding that nothing was said at the 26 February 2013 meeting about confidentiality, at least as regards the period at the commencement of the meeting when Mr Jones was present. The essence of Mr Filby's submission is that the information that he conveyed to Mr Jones was given in the context of a pitch meeting, and that circumstance was such that an obligation of confidence should be owed as regards all information communicated. In this regard, he relies upon the general acceptance of all witnesses that a pitch of a concept such as Cashtime would be treated as confidential information. I would reject that submission. The primary judge did not err in finding (at [197]) that the information communicated to Mr Jones by Mr Filby on 26 February 2013 was not received by Nine Live in circumstances importing an obligation of confidence.
As is well-established, a number of factors may be relevant to the question of whether information is received in circumstances importing an obligation of confidence: Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services & Health (1991) 28 FCR 291 at 302-303; [1991] FCA 154 ("Smith Kline"). These include, but are not limited to, whether the information was supplied for a limited purpose, whether it was supplied gratuitously or for a consideration, whether there is any past practice which would give rise to an understanding, how sensitive the information is, whether the confider has any interest in the purpose for which the information is to be used and whether the confider gave any express warning against a particular disclosure or use of the information. The test is objective, and the question, as is clear from Coco v Clark (at 591) is whether: "… any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence".
At [192], the primary judge correctly directed himself as to this test. Contrary to Mr Filby's submission, having regard to this, the primary judge's reliance (at [197]) upon Mr Jones "not being alerted to any special confidentiality over the ideas being imparted to him" should be read as nothing more than the primary judge finding that Mr Jones' subjective appreciation supported the conclusion that the circumstances were not such objectively to import any obligation of confidence.
The evidence before the Court, which I have summarised above, supports the correctness of the primary judge's conclusion. First, there was no express mention of confidentiality. Second, this was a gratuitous communication of information in response to a casual enquiry from Mr Jones in the context of a discussion of what concert tours Nine Live had upcoming or was promoting at the time. Third, there was no partnership, joint endeavour or commercial enterprise proposed between Mr Filby and Nine Live as to the sponsorship arrangements for the 2013 1D Tour. That is a significant distinction between the discussion about the 2013 1D Tour at the initial stages of the meeting on 26 February 2013 and the Cashtime concept that Mr Filby was bringing to Nine Live as a proposed future joint endeavour and which he pitched to Mr Kirk after Mr Jones left the meeting.
Fourth, and relatedly, this was not a meeting that had been convened for the purpose of Nine Live receiving Mr Filby's ideas as to marketing, promotion or sponsorship of the 2013 1D Tour. There was no prior arrangement, or expectation, that Mr Filby would be retained to assist in relation to any of those matters, or that he would be involved in those matters in any capacity. Thus, unlike the circumstances in Seager v Copydex [1967] 1 WLR 923 ("Seager v Copydex") where in the context of presenting a carpet grip there was discussion about an alternative form of carpet grip, in this case the discussion about the 2013 1D Tour was wholly unrelated to the commercial purpose of the meeting which was for Mr Filby to pitch Cashtime.
Fifth, the structure of the meeting also supports the conclusion that the information was not received in circumstances importing an obligation of confidence. It is common ground that Mr Filby did not present the Cashtime concept until after Mr Jones left the 26 February 2013 meeting. The conversation between Mr Jones and Mr Filby at the commencement of the 26 February 2013 meeting was, from Mr Jones' perspective, introductory and to show courtesy and to find out who Mr Filby was. For Mr Filby, it was his opportunity to impress Mr Jones, a man that Mr Filby described in his oral evidence as "Mr God of the music industry" and a "[m]ajor promotor". As Senior Counsel for Mr Filby submitted, Mr Filby knew this was his opportunity to impress Mr Jones. The discussion with Mr Jones was thus a significant part of the meeting for Mr Filby, but it was logically separate to the part of the meeting when he actually presented the Cashtime concept. The confidentiality which I find would have attached to Mr Filby's Cashtime concept did not also attach to the introductory phase of the meeting, which was the only phase of the meeting that Mr Jones attended.
Sixth, it is significant that the information pertaining to the free 1D concert concept was communicated by Mr Filby by way of answer, or response, to Mr Jones' enquiry, testing the waters to see what ideas Mr Filby could offer about sponsorship opportunities for the 2013 1D Tour. It was information which was directed to giving Mr Jones ideas for sponsorship for the 2013 1D Tour. Once that context is appreciated, it is apparent that the interchange was one in which Mr Jones was seeking, and Mr Filby was volunteering, ideas that Nine Live could utilise, for a very practical purpose, namely for Nine Live to put in place sponsorship arrangements for an upcoming tour. It is somewhat absurd, in that context, to contend, as Mr Filby does, that the information was confidential in the sense that it could not be communicated or used by Mr Jones without Mr Filby's consent. That is antithetical to the context and character of the exchange in which the information was freely communicated.
It is entirely plausible that Mr Filby would have communicated the information without any caveats, as he may have thought that to raise the question of confidentiality could cause Mr Jones to see Mr Filby in a less positive light. The primary judge found as much (at [75]-[76]) where his Honour indicated that for Mr Filby to prove his credentials he had to appear to be "generous with his ideas; not hedging them about with limitations on their use." There is no challenge to that finding. That is consistent with the inference that I have drawn as set out above, namely that it was objectively clear that Mr Jones was looking for ideas that he might use and that Mr Filby's information was freely provided in that context. Senior Counsel for Mr Filby submitted that Mr Filby's subjective purpose in providing the information does not determine the question of whether the information conveyed had the necessary quality of confidence and did not mean that it was not a "valuable piece of information". So much may be accepted. However, the context was such that objectively the information was not received in circumstances importing an obligation of confidence.
I would thus reject ground 2 of the amended notice of appeal.

[26]

Was there any misuse of confidential information?

Given the conclusions that I have reached as to whether the information communicated by Mr Filby to Mr Jones had the necessary quality of confidence or was received by Nine Live in circumstances importing an obligation of confidence, this issue does not strictly arise. Nonetheless, I propose to address it relatively briefly: Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 at [12]; Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [8].
The primary judge concluded (at [198]) that there was no misuse of the information in question as Mr Jones and Mr Wiltshire were not alerted expressly or by the circumstances to any obligation of confidentiality concerning the information. It necessarily follows from the analysis set out above in relation to whether the information was received in circumstances importing an obligation of confidence that I also find that the primary judge did not err in finding that there was no misuse by Nine Live of the information conveyed by Mr Filby to Mr Jones. As set out by the Full Court of the Federal Court in Smith Kline (at 304), for there to be a breach of confidence there must be some abuse or unconscientious use of the information. Misuse could, further, arise if there is some unfair advantage taken of confidential information: Seager v Copydex at 931. Here, there was nothing unconscientious in Nine Live using the information conveyed by Mr Filby in the circumstances as I have found them.
Mr Filby also contends that the primary judge erred (at [198]) in placing reliance, on the issue of misuse, upon whether or not Mr Jones or Mr Wiltshire were alerted expressly or by the circumstances to the confidential nature of the information communicated by Mr Filby. Whilst there is force in Mr Filby's contention that such matters go more to the question whether the information was received in circumstances importing an obligation of confidence, those matters could also be relevant to the question of whether the information was used by Nine Live without consent, which in turn would go to whether some unconscientious use has been made, or unfair advantage taken, of the information. Further, had the information been confidential and communicated in circumstances importing an obligation of confidence, such subjective factors would not necessarily have prevented the information being misused. However, given that I have found that there was no obligation of confidence for the reasons set out above, there could not have been any misuse.
Mr Filby contends that the primary judge erred in finding (at [197]) that Mr Jones would have observed confidentiality if he had been alerted to it by Mr Filby. In my judgment the primary judge was here inferring that this would have been the case, based upon his assessment of Mr Jones and the evidence he gave. This finding is one which was highly likely to have been informed by the impression the primary judge formed of Mr Jones. It is not a finding which is glaringly improbable or contrary to compelling inferences. I would thus reject Mr Filby's contention that it was erroneous.
As to whether there was use of the information communicated by Mr Filby, like the primary judge, I would conclude that that information probably played a role in the development of the free 1D concert concept which, as Mr Wiltshire agreed, was the "unique" part of the Coles promotion of the 2013 1D Tour. It is highly unlikely, in my judgment, that the persons developing sponsorship arrangements for the 2013 1D Tour came up with that idea independently at around the same time as Mr Filby communicated that idea to Mr Jones. That is particularly so given that the evidence supports a conclusion that there were communications between Mr Jones, or those who worked for him, and Mr Wiltshire, about this promotion, and Mr Wiltshire was unable to remember what it was that prompted the idea for the additional, free 1D concert and, as set out above, there was some ambiguity in his evidence as to when he had a conversation with Mr Jones about this. To the extent that Nine Live's submissions suggested that the test for whether information has been "used" is something other than the balance of probabilities, that contention should be rejected. Whilst in Seager v Copydex at 931 Lord Denning MR found that, in that case, the inference of unconscious use was "too strong to permit of any other explanation", his Lordship should not be read as suggesting that that threshold had to be met in order to establish use of confidential information. Rather, his Lordship was expressing his conclusion in forceful terms. Neither Salmon LJ nor Winn LJ in Seager v Copydex expressed their conclusion in those terms.
In reaching this conclusion, I make no finding as to whether Mr Wiltshire's call to Mr Phillips asking whether Coles would be interested in sponsoring the 2013 1D Tour occurred before or after 26 February 2013. The evidence of Mr Wiltshire as to the time required between that initial call and the signing of the letter of intention on 18 April 2013 would suggest that the call to Mr Phillips must have been before 26 February 2013. However, that evidence was very much a reconstruction as Mr Wiltshire did not recall when the phone call to Mr Phillips took place. It is possible, given the unusual sponsorship circumstances of the 2013 1D Tour whereby sponsorship opportunities were still being pursued after the tour had already sold out, that such sponsorship arrangements were made more quickly than was usual. If that were so, the call with Mr Phillips may have been on or after 26 February 2013. Further, the evidence of Mr Wiltshire that it would have been a "relatively vanilla idea" for Coles to sponsor 1D without "any kind of additional reason", might suggest that Mr Wiltshire would not even have approached Mr Phillips unless he already had in mind the free 1D concert concept.
Further, as set out above, Mr Wiltshire's evidence as to the date he came up with the idea that Coles could sponsor the 2013 1D Tour was somewhat ambiguous. Having regard to this ambiguity, it is not possible to reach any reliable conclusion as to whether or not the phone call that Mr Wiltshire made to Mr Phillips in January or February 2013 took place before or after the 26 February 2013 meeting.
In the circumstances, I would reject grounds 3 and 4 of the amended notice of appeal. Had it been necessary to make a finding as to this, I would, however, have rejected ground 2 of the notice of contention.

Filby v TEG Live Pty Ltd

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