Gold and Copper Resources Pty Ltd v Newcrest Operations Ltd

Supreme Court of NSW|2013-03-21|Before: Stevenson J

Introduction 1The plaintiff, Gold and Copper Resources Pty Limited ("GCR") claims that the defendants, Newcrest Operations Limited ("Newcrest Operations") and Newcrest Mining Limited ("Newcrest Mining") (together, "Newcrest") have breached obligations of confidence owed to GCR by reason of a Confidentiality Agreement executed by the parties on or about 20 January 2009 ("the Confidentiality Agreement"), and in equity. 2The breaches are said to arise from statements ("the Statements") made by Newcrest to the Minerals Division of the NSW Department of Primary Industries ("the Department") in the course of seeking renewal of two exploration licences. The first of the Statements was made in March 2009 ("the First Statement"), and repeated in May 2009 ("the Second Statement"). GCR contends that when the Second Statement was made, it was not only made in breach of confidentiality obligations, but was false, and thus amounted to misleading or deceptive conduct in breach of the former s 52 of the Trade Practices Act 1974 (Cth) ("TPA"). 3GCR contends that by reason of that conduct, Newcrest: - (a)obtained renewals of the whole of the two exploration licences in circumstances where, otherwise, it would have been obliged to relinquish half of those exploration licences; (b)thereby profited from the breach of confidence; and (c)caused GCR to lose the chance of applying for, and obtaining, exploration licences over the areas that would otherwise have had to be relinquished by Newcrest. 4So far as concerns its claim for breach of the equitable duty of confidence, GCR, in its opening submissions, made an election for an account of profits. 5Newcrest contends that: - (a)the Statements to the Department were not in breach of any obligation of confidence; (b)in any event, the Statements amounted to a disclosure required by law; (c)there was no contravention of s 52 of the TPA because Newcrest's conduct was not "in trade and commerce"; (d)in any event, Newcrest's conduct was not misleading or deceptive; (e)Newcrest has not made a profit from the disclosure, as Newcrest would have obtained renewal of the exploration licences in any event; and (f)GCR has suffered no loss as a result of the disclosure for the reason in (e) and also because GCR, in any event, would not have obtained the hypothetically relinquished portions of Newcrest's exploration licences.

Decision 6Although the Statements were made in breach of Newcrest's obligations under the Confidentiality Agreement: - (1)they were not made in trade or commerce; (2)it is probable that Newcrest would have obtained renewal of its exploration licences in any event; (3)accordingly it is not probable that Newcrest made any profit by reason of making the Statements; and (4)it is not probable that GCR has suffered any loss by reason of Newcrest making the Statements for the reason in (3); and for the further reason that, even if Newcrest had not obtained renewal of all of its exploration licences, it is a matter of speculation whether GCR could have obtained any part of those licences. 7Accordingly, GCR's claim fails, and the Amended Summons should be dismissed.

Background 8Both GCR and Newcrest carry on business exploring for minerals, including gold and copper. 9Newcrest Mining is the holder of two exploration licences under the Mining Act 1992 ("the Act") known as Exploration Licence 3856 ("EL 3856") and Exploration Prospecting Licence 1024 ("EL 1024"). Those two exploration licences cover land adjacent to Newcrest's existing mining operations in the Cadia Valley, south west of Orange. 10GCR holds a number of other exploration licences in the same region, including some which are adjacent to those of Newcrest. 11In 2007, GCR obtained the right to use, in an area within a 50 km radius of Orange, a technology known as "GoviEx Super IP" ("the Technology"). The Technology is a form of electro-magnetic survey known as "induced polarisation". Its purpose is to identify electro-magnetic anomalies that may be indicative of an underground mineral resource. 12GCR contends that, from 2007, it expended considerable effort in what it described as "educating" the Department as to the capabilities and logistical requirements of the use of the Technology in the Orange region. 13The Department required that GCR enter into access arrangements with holders of exploration licences adjoining those of GCR. One such adjoining licence holder was Newcrest. 14On 30 October 2008, GCR approached Newcrest and sought permission to enter land covered by Newcrest's exploration licences, for the purpose of GCR carrying out a survey of GCR's tenements using the Technology. Newcrest expressed interest in using the Technology in relation to Newcrest's tenements. 15As a result, negotiations commenced in November 2008 between Newcrest and GCR about the possibility of a joint survey.

The negotiations 16On 29 October 2008, GCR wrote to Newcrest Mining as follows: - "[GCR is] looking to carry out Induced-Polarisation ("IP") surveys within the Orange region. In some instances [GCR's] IP surveys will be completed over ground adjacent to tenements held by [Newcrest Mining]... Occasionally, and with [Newcrest Mining's] permission, personnel, cables and electrodes etc may need to be placed on land covered by Exploration Licences held by [Newcrest Mining] in order for [GCR] to collect data across its own ground. The [Department] has requested, as part of [GCR's] reporting requirements, that we provide signed letters (from our neighbours) agreeing "in principal" [sic] to [GCR] accessing land under their tenure. ...would you be happy if, as part of the access arrangements, [GCR] worked with the appropriate person in relation to the modification of any existing land access agreements held between [Newcrest Mining] and current land owners?" 17Thereafter, on 7 November 2008, a meeting took place in Orange between representatives of GCR and Newcrest. One of the participants in the meeting was Mr Tully Richards, a consultant exploration manager and geologist to GCR. 18At the meeting, the Newcrest representatives indicated that Newcrest was interested in acting in conjunction with GCR to use the Technology to collect data about Newcrest's own tenements. 19Mr Richards agreed that no representative of Newcrest said that this expression of interest was confidential and that, indeed, nobody at the meeting said that the discussions that took place were confidential. 20After the meeting, Mr Richards circulated a note stating that discussions at the meeting: - "...primarily focused on: 1. access to properties owned by Newcrest and covered by tenements held by [GCR] in order to run [the Technology]... 2. access onto tenements held by Newcrest... 3. the possibility of, under a Joint Venture, covering the [Newcrest] ground with [the Technology]. We will continue to remain in touch, in order to give you as much notice/information as possible, regarding our developing plans in the area. In the meantime, please contact me should you have any questions." 21There was no mention in Mr Richards' note of anything having been said at the 7 November 2008 meeting being confidential. 22At around that time, GCR communicated with the owners of the Technology that Newcrest was interested in having the Technology deployed on its tenements. In so doing, Mr Richards agreed that he did not regard GCR as being duty bound to keep that matter confidential. 23A further meeting took place on 12 November 2008. Mr Richards said that at that meeting: - "Newcrest appeared increasingly interested, not only in allowing GCR to collect its own data across GCR tenements, but in how Newcrest might become commercially involved with GCR's exploration strategy. I recall that we only discussed [the Technology], GCR's proposed exploration strategy and priorities at a high level with limited detail as a Confidentiality Agreement had not yet been signed." 24In cross-examination Mr Richards gave this evidence: - "Q: You discussed [the Technology] at a high level of generality, is that right? A: That's right. Q: You discussed GCR's proposed exploration strategy and priorities at a high level, correct? A: That's right. Q: You weren't going to go into details about [the Technology] or GCR's strategy unless and until there was a confidentiality agreement, is that right? A: Certainly." 25On 14 November 2008, Mr Richards sent Mr Colin McMillan from Newcrest, a letter as follows: - "Thank you for giving us the opportunity to discuss a little more about what [GCR is] looking to carry out in the area. Further to our discussion on [12 November 2008], Ross Ramsay (of Deacons), will arrange for a Confidentiality Agreement to be sent to you. I look forward to covering in detail why we are looking to deploy [the Technology] across [GCR's] tenements. Clearly there also remains the option to consider further the potential benefits, as touched on [12 November 2008], of extending the currently planned survey to cover [Newcrest's] tenements as well." 26Mr Richards gave the following evidence about that document: - "Q: You were happy to convey that information with Newcrest without having any confidentiality agreement in place, correct? The information that one sees on that page. A: The information on that page, that's correct. Q: But you didn't want to go into further detail with Newcrest about the technology or GCR's strategy until you had a confidentiality agreement, correct? A: That's right. Q: The mere fact that you were negotiating with Newcrest, albeit at a relatively early stage, about Newcrest using [the Technology] with GCR to cover its own tenements you were not insisting on that to be confidential, that mere fact, correct? A: That's right." 27On 14 November 2008, Mr Richards sent Mr McMillan a draft confidentiality agreement. 28Mr Richards gave the following evidence: - "Q: As you understood it up to this point in time you and Newcrest had not shared confidential information with each other, correct? A: It's sort of we are at 14 November, so a week has transpired since the 7th, and the context of those early meetings was those conversations being - we weren't shouting them from the roof tops, they were of a confidential nature. It was pretty clear that from the end of that first week or during that week that we would want this in a...confidentiality agreement. We were progressing as quickly as we could to formalise that. Q: You didn't want to go into further detail about the technology or about GCR's strategy until you had a confidentiality agreement, correct? A: That's right. Q: You were not intending to give Newcrest confidential information about the technology or about GCR's strategy until you had the confidentiality agreement, correct? A: That's right." 29Later Mr Richards gave this evidence: - "Q: Not once in this period of 7 to 14 November did you say to Newcrest, 'I'm not prepared to talk about your proposal of using this technology for Newcrest's own tenements until we have a confidentiality agreement in place'. Correct? A: No, I think verbally we made it clear we were working on getting that [confidentiality agreement] that we could start talking a little bit more meaningfully about what was being considered. Q: Quite. You were not going to go into more detail with Newcrest about GCR's plans or about the technology until you had the confidentially agreement, correct? A: A little bit more broadly. I suppose either party's plans. We wanted to get a [confidentiality agreement] in place so we could talk a little bit more freely and with more detail, about [the Technology]. Q: Because at that point, Mr Richards, you were hoping that a discussion would proceed into further detail about the technology and about GCR's plans, correct? You were not prepared to divulge that detail until the confidentiality agreement was signed, correct? A: That's right. Q: You had not reached that point by 14 November, correct? A: Correct. 30No further negotiations took place prior to execution of the Confidentiality Agreement.

The Confidentiality Agreement 31The Confidentiality Agreement was executed by the parties on or about 20 January 2009. 32Clause 2 of that agreement was in the following terms: - "2. Maintenance of confidentiality 2.1 [GCR] agrees to disclose Confidential Information to [Newcrest] for the Approved Purpose on the terms of this Agreement and represents to [Newcrest] that it is entitled and authorised to do so. 2.2 [Newcrest] must: (1) maintain and take all reasonable steps necessary to maintain all Confidential Information in strictest confidence; (2) take all reasonable precautions necessary to prevent accidental Disclosure of any of the Confidential Information; (3) not Disclose any of the Confidential Information to any person other than an Approved Person and then only to the extent that they are reasonably required to receive and consider the Confidential Information in the course of (and solely for the purpose of) the Approved Purposes; (4) use Confidential Information solely for the Approved Purposes; (5) keep confidential the fact that Confidential Information has been provided by [GCR] to [Newcrest]; and (6) promptly take all reasonable steps, at its own expense, to prevent or stop any actual or threatened breach of this Agreement by [Newcrest] or any Approved Person. 2.3 Clause 2.2 does not impose obligations on [Newcrest] concerning Confidential Information which: (1) is publicly available at the date of this Agreement; (2) becomes publicly available without breach of this Agreement after the date of this Agreement ... [or] (4) was already in [Newcrest's] possession (as evidenced by written records) when provided by or on behalf of [GCR]. 2.4 This Agreement does not apply to the Disclosure of Confidential Information which [Newcrest] or any of its Related Bodies Corporate is obliged to Disclose by: (1) law ... 33"Confidential Information" was defined in the agreement as follows: - "Confidential Information means information of every kind: (a) concerning or in any way connected with: (i) [GCR's] proposed Orange district IP survey; or (ii) the Tenements; or (iii) the Approved Purpose; or (b) which is the property of [GCR] or a Related Body Corporate of [GCR]; and which: (c) is Disclosed in writing, orally or by any other means by [GCR] ... to [Newcrest] ... for the Approved Purpose." 34"Approved purposes" was defined to mean the activities referred to in Recital A which read: - "[GCR] has agreed to give [Newcrest] access to Confidential Information to enable [Newcrest] to undertake a review of aspects of [GCR's] proposed Orange district IP survey and the Tenements." 35Clause 20 of the agreement was in the following terms: - "The existence and content of this Agreement and any discussions or negotiations between the parties in relation to the Approved Purpose [sic] are strictly confidential. Each party shall in respect of such information be bound by the same obligations (mutatis mutandis) as [Newcrest] is under this Agreement in relation to Confidential Information."

The Video 36Shortly after the Confidentiality Agreement was executed, Mr Richards and a Mr Hendrickson, a consultant to GCR, attended a meeting with Newcrest representatives. Mr Hendrickson showed a video ("the Video") and also a slide which was in the following terms: - "This is a private and confidential video for Newcrest. The information in this video is for the purpose of assessing Newcrest's interest in Gold and Copper package and can only be used in assessing Gold and Copper package. This video (as well as any other copies of it) must be returned back to Gold and Copper Resources at the end of the assessing process. PRIVATE AND CONFIDENTIAL".

Termination of negotiations 37On 27 April 2009, Newcrest terminated discussions with GCR. On that date, Mr Colin Moorhead, Executive General Manager - Minerals, from Newcrest, wrote to GCR's Managing Director: - "I am writing in reply to your letter addressed to Ian Smith dated 20 April 2009 regarding [GCR] and potential application of [the Technology] in the Cadia district. Whilst Newcrest is interested in the technology and may consider proposals in the future, I confirm that we will not be pursuing an agreement at this time and that all confidential information that may have been provided will be returned as soon as possible. On behalf of Newcrest I would like to wish GCR every success and apologise if you feel you have been at all misled by the Orange based staff."

Newcrest's applications to renew EL 3856 and EL 1024 38Both EL 3856 and EL 1024 were due to expire on 20 May 2009. 39Further requirements of the Act in relation to renewal were summarised in a document published by the Department in 2005 as follows: - "An exploration licence may not be renewed for more than half the area [later, and alternatively, half of the units] of the licence at the time of lodgement of the renewal application (Section 116 (6)), unless special circumstances are applicable. An application for renewal under special circumstances must be accompanied by a detailed submission to support the renewal. Also, to establish that special circumstances exist, applicants must demonstrate that: 1. expenditure and reporting conditions of the licence have been satisfactorily complied with, 2. through satisfactory and effective exploration over the whole of the licence area, it has been demonstrated that further exploration over more than half the area [later, and alternatively, half of the units] is required, 3. a satisfactory program of further exploration over the whole of the area applied for has been submitted." 40Thus, in order to obtain renewal of all of EL 3856 and EL 1024, Newcrest had to satisfy the Department that "special circumstances" existed. If, however, Newcrest could not satisfy the Department that special circumstances existed, it was entitled to renew the exploration licences but was obliged to relinquish either half of the area of those licences or half of the units comprised in those licences. 41On 24 March 2009 Newcrest Mining applied to the Department to renew each of EL 3856 and EL 1024 for two years. 42In relation to both applications, Newcrest Mining made a "special circumstances" submission. 43It is in that submission that Newcrest is said to have breached its obligations of confidence to GCR by making the First Statement. 44The First Statement read, under the heading "Year 1: 2009 - 2010": - "Work proposed in year one will include: data compilation, field mapping/ground truthing is proposed to target the known systems at Rowan Brae and Barton Park during year one and to finalise drill target definition for year two; and incorporation of GoviEx Super IP survey across the entire prospect area in conjunction with Gold and Copper Resources Pty Limited to assist in target definition in year two." (emphasis added) 45"Year 2" was stated to be 2010 - 2011. 46Newcrest concluded its submission as follows: - "Newcrest considers that special circumstances exist for renewal of the whole of [EL 1024] and EL 3856 for a further two years each, on the basis that; Newcrest has greatly exceeded minimum expenditure covenants and has satisfactorily met reporting requirements, Newcrest continues to carry out comprehensive licence-wide exploration, and Newcrest has ongoing major exploration, feasibility and mining programs in place and is budgeting for the continuation of these programs through the 2009-2010 financial year and subsequent years." 47GCR contends that, by making the First Statement, Newcrest "...disclosed to the Department that GCR and Newcrest were or had been carrying on negotiations ... regarding Newcrest's use of [the Technology] in conjunction with GCR, whether by joint venture or other arrangement". 48As set out above, Newcrest broke off negotiations with GCR on 27 April 2009. 49On about 20 May 2009, the Department asked Newcrest to submit an amended application seeking renewals of EL 3856 and EL 1024 for a period of five, rather than two, years. 50On 25 May 2009, Newcrest made an amended "special circumstances" submission in which it made the Second Statement (which was a repetition of the First Statement). 51On 8 October 2009, the Minister for Mineral Resources ("the Minister") approved the renewal of EL 1024 for five years from 20 May 2009; that is, to 20 May 2014. 52On 14 March 2011, the Minister renewed EL 3856 for five years from 20 May 2009; that is, to 20 May 2014. 53One condition of both approvals was: - "[Newcrest] must satisfactorily complete the work program nominated in the application for ... renewal of this licence. Any change to the proposed program must be approved by the Department".

What did Newcrest disclose to the Department? 54The critical words of the Statements were: - "Work proposed in year one will include: ... incorporation of GoviEx Super IP survey across the entire prospect area in conjunction with Gold and Copper Resources Pty Limited to assist in target definition in year two." 55Newcrest submits that by making the Statements it did no more than recite publicly available information. 56In 2007 and early 2008, GCR made no secret of the fact that it was proposing to conduct a survey using the Technology in the Orange area. Indeed, GCR had arranged public meetings to garner support from local landholders for access to their properties for the purpose of a roll out of the Technology. Newcrest submitted, and I accept, that consistently with Mr Richards' evidence set out at [18] to [29], it was common knowledge in the Orange area that GCR was proposing to do the survey using the Technology. 57In those circumstances, Mr Jackman SC, who appeared with Mr Lawrance for Newcrest, submitted that an available reading of the Statements was that Newcrest knew, from publicly available information, about GCR's plans with the Technology; and that all Newcrest was saying was that it could see no reason why GCR would decline to consent to Newcrest using the Technology for a survey over its own property. 58Mr Jackman also emphasised that the Statements were prospective. They spoke from March and May 2009 about what Newcrest proposed to do in "Year 1"; that is between 1 July 2009 and 30 June 2010. Mr Jackman submitted that the Statements did not disclose whether or not negotiations with GCR had already taken place and that, for all the Department knew, any negotiations were to take place in the future. One could not infer from the Statements, Mr Jackman submitted, that negotiations had already taken place. 59I am not able to accept this submission. 60It is true that the Statements speak of work that Newcrest "proposed" to do in the following financial year. However, the Statements continued that such work "will" include a survey using the Technology over Newcrest's tenements "in conjunction with" GCR. 61The Statements did not say, in terms, whether there had been any communication between Newcrest and GCR concerning the proposed survey. However, by stating that Newcrest "will" act as proposed, the statement implicitly represented, and thus disclosed, that Newcrest had a basis for making the prediction; namely that there had been some communication between Newcrest and GCR such as to enable Newcrest to make the Statements. What was implicitly disclosed was that, at the very least, there had been discussions, and perhaps also negotiations, between Newcrest and GCR on this subject 62Thus, in my opinion, by making the Statements, Newcrest did reveal to the Department, by implication, that, at least, there had been discussions between it and GCR about it working "in conjunction with" GCR to conduct a survey. 63Mr Jackman accepted that this was an available reading of the submission. 64In my opinion, it is the better view of what Newcrest said to the Department.

Were the Statements contrary to the Confidentiality Agreement?

The proper construction of the Confidentiality Agreement 65Under the Confidentiality Agreement, GCR agreed to disclose "Confidential Information" to Newcrest for the "Approved Purposes" and Newcrest agreed to, amongst other things, take all reasonable steps necessary to maintain the Confidential Information "in strictest confidence" (cl 2.2(1)), to not disclose any of the Confidential Information to any person (cl 2.2(3)), and to keep confidential the fact that the Confidential Information had been provided to it (cl 2.2(5)). 66"Confidential Information" was defined to include any information, concerning or in any way connected with the GCR's proposed survey and the "Approved Purpose" [sic], which had been disclosed in writing by GCR to Newcrest. 67Thus, this aspect of the agreement did not deal with confidential information disclosed by Newcrest to GCR; for example, its interest in using the Technology in relation to a survey of its tenements. 68The definition of "Confidential Information" was concerned with unilateral communications from GCR to Newcrest. 69Clause 20, however, dealt with "discussions or negotiations" which were, necessarily, bilateral in nature. 70The "discussions or negotiations" that cl 20 provided were "strictly confidential" were those between GCR and Newcrest "in relation to" the "Approved Purposes". 71"Approved Purposes" was defined to mean "the activities referred to in Recital A". 72Recital A stated: - "[GCR] has agreed to give [Newcrest] access to Confidential Information to enable [Newcrest] to undertake a review of aspects of [GCR's] proposed Orange district IP survey and [GCR's] tenements." 73Thus, "Approved Purposes" was defined by reference to the GCR's proposed survey of its own tenements; as is emphasised by the reference to GCR's tenements at the end of Recital A. 74In those circumstances, Mr Jackman submitted that cl 20 did not capture "discussions or negotiations" between GCR and Newcrest concerning the proposed use of the Technology on Newcrest's tenements; as opposed to GCR's tenements. 75Mr Jackman submitted that it would lead to a "commercial absurdity" to suppose that the parties intended to keep confidential any discussions or negotiations concerning use of the Technology by GCR on Newcrest's tenements for the benefit of Newcrest. 76This is certainly an available construction of the Confidentiality Agreement; as Mr Newlinds SC, who appeared with Ms Roughley for GCR, accepted. 77It is not, however, the construction of the Confidentiality Agreement that I prefer. 78The "discussions or negotiations" that cl 20 provided were "strictly confidential" were those between the parties "in relation to" the "Approved Purposes". 79The expression "in relation to" is very similar to the expression "relating to" which expression is capable, as a matter of language, of indicating any form of relationship that may exist between two parties or things. The particular type of relationship which is in the scope of the expression must be determined by the context and purpose of the instrument in which the expression occurs: Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 79 NSWLR 603 at [509] per Campbell JA. 80In my opinion, the context in which the expression "in relation to" appears in cl 20 suggests that the parties intended to keep confidential any discussions or negotiations between them which had any relationship with the "Approved Purposes". This includes, in my opinion, discussions concerning the use by GCR of the Technology on Newcrest's (as well as on GCR's) tenements. Contrary to Mr Jackman's submissions, I do not see this as a "commercial absurdity". 81Accordingly, my conclusion is that the parties agreed to keep confidential any aspect of their negotiations or discussions concerning the Technology, including the possible use of the Technology in a survey by or "in conjunction with" GCR over Newcrest's own tenements. 82In these circumstances, I do not see as relevant the concessions made by Mr Richards (see [18] - [29]) that he was not proposing to reveal confidential information about the Technology and details of "GCR's plans" prior to the execution of a confidentiality agreement. The Confidentiality Agreement, once executed, made confidential the very fact that discussions had taken place.

By making the Statements, did Newcrest act in breach of the Confidentiality Agreement? 83It follows from my conclusions about the subject of the Statements, and the proper construction of the Confidentiality Agreement, that the making of the Statements was a breach of the Confidentiality Agreement. 84Newcrest disclosed to the Department that there had been discussions between it and GCR "in relation to" GCR's proposed "Orange district IP Survey". In my opinion, Newcrest thereby acted in breach of cl 20 of the Confidentiality Agreement.

Did the Statements fall within clause 2.3 of the Confidentiality Agreement? 85Clause 2.3 provided that there was no obligation of confidence in respect of Confidential Information which was: - "Already in [Newcrest's] possession (as evidenced by written records) when provided by or on behalf of [GCR]." 86In my opinion, this subsection of the Confidentiality Agreement was not enlivened in the circumstances of this case. The "Confidential Information" that Newcrest imparted to the Department was the fact that there had been discussions between it and GCR of the kind I have discussed. That information was not already in Newcrest's possession "when provided" by GCR. It was the means by which the information was imparted and was, in any event, itself "confidential information".

Was there a duty of confidence in equity? 87I have concluded that, by making the Statements, Newcrest acted in breach of the Confidentiality Agreement. 88GCR nonetheless contends also for a breach of the equitable duty of confidence, as it wishes to obtain an account of profits from Newcrest. 89The question that arises is whether, in light of the Confidentiality Agreement, there is any room for an equitable obligation of confidence between the parties. 90The Court of Appeal in Streetscape Projects (Australia) Pty Ltd v City of Sydney [2013] NSWCA 2 at [150] recently preferred the views of Campbell JA in Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172; (2007) 73 IPR 326 at [118], and Gordon J in Coles Supermarkets Australia Pty Ltd v FKP Limited [2008] FCA 1915 at [63], that equity would not intervene to protect a confidence if the parties had entered into an agreement dealing with that matter. 91Barrett JA, with whom Meagher and Ward JJA agreed, said at [150] that the view of Campbell JA and Gordon J: - "...accords with the residual nature of the equitable duty as recognised by Deane J in Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) [1984] HCA 73; (1984) 156 CLR 414, 437-8. Deane J referred to "the equitable jurisdiction to grant relief against an actual or threatened abuse of confidential information not involving any tort or any breach of some express or implied contractual provision, some wider fiduciary duty or some copyright or trademark right" [emphasis added]. It is also consistent with the notion of equity's "supplementing" role ... in relation to fiduciary duties." 92Barrett JA held that the issue (which he described, adopting the words of Kenny J in Complete Technology Integrations Pty Ltd v Green Energy Management Solutions Pty Ltd [2011] FCA 1319 at [119], as "not without difficulty") did not arise in Streetscape because of the manner in which the proceedings had been fought before the trial judge. His Honour's observations were, thus, obiter. 93On the other hand, in Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21, the Full Court of the Federal Court (Finn, Sundberg and Jacobson JJ) expressed the view that the two kinds of obligations could coexist, and held that: - "The notion that no equitable duty of confidence arises where there is a comparable contractual duty is opposed to much authority" (at [38]). 94However, the contract in question in that case stated, in terms, that the remedies provided in it were "not exclusive of the rights, powers or remedies provided by law independent of this agreement" and referred to an account of profits as being "a remedy provided by law independent of this agreement". Thus, the Federal Court held that the observations of Campbell JA and Gordon J in Del Casale and Coles Supermarkets did not "cover the present case" (at [34]). 95There was no such provision in the Confidentiality Agreement. Indeed, cl 10 of the Confidentiality Agreement provided that the agreement was "the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement". 96In those circumstances, I consider the observations of Campbell JA and Gordon J to be entirely on point. In view of the very recent endorsement of them by the Court of Appeal, albeit in obiter, I consider I should follow them. 97My conclusion is, therefore, that, to adopt Campbell JA's words in Del Casale, as "there is a contractual obligation covering the topic, there is no occasion for equity to intervene to impose its own obligation" (at [118]).

Were the Statements required "by law"? 98Subclause 2.4(1) of the Confidentiality Agreement provided that the agreement did not apply to the disclosure of "Confidential Information" which Newcrest was obliged to disclose "by law". 99Newcrest argued that, because s 382 of the Act provided that an application under the Act must be in "the approved form", and because the relevant approved form (Form 9) required specification of "particulars of the proposed program of work", Newcrest was obliged, by law, to make the Statements. 100I do not accept this submission. 101As Mr Newlinds pointed out, Newcrest was not obliged "by law" to make an application for renewal and, if any such application for renewal were made, was not obliged to disclose all information in its possession, relevant to the application, regardless of the confidentiality of that information. 102Newcrest's obligation was to complete a form that required provision of "particulars" of the proposed work. 103It was open to Newcrest to simply state that it intended to use certain survey technology to explore the licensed area. Provision of more detail, including reference to the Technology, may have promoted Newcrest's prospects of a favourable departmental response to its application. But Newcrest was not, in my opinion, obliged "by law" to make the Statements.

Did Newcrest engage in misleading or deceptive conduct?

Was the Second Statement made "in trade or commerce"? 104GCR contends that Newcrest, by making the Second Statement (in circumstances where it had, on 24 April 2009 broken off negotiations with GCR) engaged in misleading or deceptive conduct. 105One answer that Newcrest offers to this contention is that Newcrest was not, in making the Second Statement, engaging "in trade or commerce". 106As Newcrest submits, the requirement that conduct be "in trade or commerce" restricts the operation of s 52 so that it refers only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character: Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 603; Houghton v Arms (2006) 225 CLR 553 at 565 [32] - [33]; Chapman v Luminis Pty Ltd (No 4) (2001) 123 FCR 62 at 109 [177]. 107Only conduct which is engaged "in" trade or commerce offends the proscription in s 52. 108As Newcrest submitted, the High Court has made clear that s 52 was not intended to extend to all conduct, regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business: Concrete Constructions at 603-4. What the section is concerned with is the conduct of corporations towards persons (whether or not consumers) with whom it has or may have dealings in the course of activities or transactions which, of their nature, bear a trading or commercial character: Concrete Constructions at 604. 109Generally speaking, communications between a corporation, even a corporation which is itself engaged in trade or commerce, and a government regulator will not be "in" trade or commerce: Glueck v Stang (2008) 76 IPR 75 (representations made to the Australian Patent Office); RGC Minerals Sands Ltd v Wimmera Industrial Minerals Pty Ltd (No 2) [2000] FCA 22 (representations made to the Commissioner of Patents). In Glueck, Lindgren J held (at [32]) that representations made "to a government instrumentality pursuant to legislation for the purpose of obtaining an exclusive right or bundle of rights made available by that legislation" were not, in the absence of trading or commercial dealings, in trade or commerce. 110Thus, as Mr Newlinds accepted, a corporation completing an income tax return, or a return to the corporate or prudential regulator, is not engaging in trade or commerce. 111Mr Newlinds submitted that the circumstances in this case are different from the mere submission by a regulated party to a regulator because: - "The EL application is, in effect, an application to enter into a commercial dealing with the State to pursue mining activities for the parties' common pecuniary benefit. [The Act] establishes a form of statutory joint venture between the EL holder and the State, whereby the former will prospect for, and may ultimately extract, minerals (most or all of which are owned by the State), and the latter will receive a royalty for minerals it could not otherwise easily access of sell." 112Mr Newlinds' submission relied upon the following propositions: - (a)in NSW minerals are, generally, reserved to the Crown; (b)the Crown, by the Minister, is empowered by the Act to grant exploration licences; (c)exploration licences are granted to enable holders to explore for minerals with a view to seeking a lease to mine those minerals; (d)the holders of the mining lease are entitled to extract minerals; (e)any party extracting minerals must pay a royalty to the Crown; and (f)the Crown thus has a direct commercial interest in the exploration for minerals, the mining for minerals, and the receipt of royalties for minerals so mined. 113The question is whether the holder of an exploration licence under the Act engages "in" trade or commerce when it makes a submission to the governing department administering the Act. 114In this case, by making the Second Statement, Newcrest represented to the Department that it had had discussions, or some other form of communication with GCR that enabled it to predict that, in the year commencing 1 July 2009, its proposed work "will include" a survey using the Technology "in conjunction with" GCR. 115The Second Statement was made in the course of a communication by Newcrest to the Department in which Newcrest was seeking to show that "special circumstances" existed that would warrant renewal of the whole of EL 3856 and EL 1024 for five years. 116This was an occasion remote indeed from any potential "commercial dealing" between GCR and the Department of the kind postulated in Mr Newlinds' submissions; namely the extraction by GCR of minerals and the payment of royalties to the Department. Such activities would only take place if, having exercised its rights under the exploration licences, Newcrest was able to satisfy the Department that it should be granted a mining lease over the areas the subject of the exploration licences and only if, having obtained such mining leases, minerals were extracted. 117Whether or not Newcrest and the Department would then be in a "potential or actual trading or commercial dealing or relationship" (Street v Luna Park Sydney Pty Ltd (2009) 223 FLR 245 at [218] per Brereton J (a matter about which I express no opinion)), I think it clear that no such relationship existed between Newcrest and the Department at the time of the Second Statement. At that point, Newcrest's relationship with the Department was that of licence holder and government authority responsible for determining whether that licence should be renewed. That was not, in my opinion, a commercial relationship. 118My conclusion is that the Second Statement was not made "in trade or commerce".

Was the Second Statement misleading or deceptive? 119In view of my conclusion that the Second Statement was not made "in trade or commerce", it is not necessary for me to decide whether, by making the Second Statement, Newcrest engaged in conduct that was misleading or deceptive. 120However, in deference to the arguments put by counsel, I shall deal with the matter briefly. 121Newcrest submitted that the Second Statement was not misleading or deceptive because, having made the original submission for a two year renewal of the exploration licences on 24 March 2009 (which is not alleged to contain any misleading or deceptive statement), on 25 May 2009, Newcrest responded to the Department's request for a five year renewal application and simply submitted an amended first page of the application form for renewal of each of EL 3856 and EL 1024. Newcrest submitted that, given that only the first page was sent, it must have been apparent to the Department that it was to be attached to the remainder of the original application and, accordingly, dated as received in March 2009. 122In those circumstances, Newcrest submitted that a reasonable recipient of the amended documents would have understood the Second Statement to have spoken of Newcrest's intentions as at March 2009. 123I do not accept this submission. In my opinion, the reasonable recipient would have understood Newcrest to be representing that the position in May 2009 remained as had been stated in March 2009. 124In May 2009, Newcrest no longer proposed that work in the year commencing 1 July 2010 would include a survey using the Technology "in conjunction with" GCR. It was false, and thus misleading or deceptive, of Newcrest to so represent. 125However, as I explain in my reasons concerning causation, it soon became clear to the Department that it was not possible for Newcrest to make use of the Technology (because it had not been rolled out) and that Newcrest was no longer asserting that it proposed to use the Technology. 126Accordingly, the misleading or deceptive nature of the Second Statement, when made in May 2009, soon ceased to have any probable impact on the Department's consideration of Newcrest's position.

Causation; would Newcrest's applications for renewal of the whole of EL 3856 and EL 1024 have failed but for the Statements; has Newcrest made a profit from the Statements? 127Mr Newlinds accepted that in order to succeed, GCR must prove, on the balance of probabilities, that but for the making of the Statements, Newcrest: - (1)would not have satisfied the Department that "special circumstances" existed justifying renewal of the whole of EL 3856 and EL 1024; (2)would not have obtained such renewal; and (3)would have had to relinquish half the area or (at its option) half the units comprised in those exploration licences. 128I am not satisfied that GCR has sustained this onus. On the contrary, my opinion is that it is more probable that the Statements made no difference to the Department's consideration of Newcrest's application for renewal. 129Accordingly, GCR's claim must fail. 130I have a number of reasons for coming to this conclusion. 131First, the evidence shows that the Department, including the relevant decision maker, was well aware of the fact that the Technology had not been rolled out by the time approval was given to renew EL 1024 (on 8 October 2009) and EL 3856 (on 14 March 2011). 132Second, Newcrest submitted reports to the Department which made clear that, contrary to the Statements, it was not using the Technology, or indeed working in any other way "in conjunction with" GCR in its development of EL 1024 and EL 3856. 133Third, the evidence strongly suggests that the Department was sceptical about both GCR and the Technology. 134Fourth, by the time the Department came to approve the renewal of EL 3856 (on 14 March 2011), GCR itself (in the course of arguing for renewal of its own exploration licences) disclosed to the Department that it had been negotiating with Newcrest regarding the possibility of Newcrest using the Technology. 135These matters are best revealed by a chronological review of the evidence.

Events leading to the renewal of EL 1024 136Newcrest's applications to renew EL 3856 and EL 1024 were first considered by the Department on 2 June 2009 by Mr Kevin Capnerhurst from the Minerals Exploration Assessment division of the Department. 137In relation to both applications, Mr Capnerhurst noted that "all statutory reports [had been] received and deemed satisfactory". 138Mr Capnerhurst was referring to six monthly and annual reports that Newcrest was obliged, by the Act, to submit to the Department. 139Sometime in June 2009, Newcrest submitted to the Department its annual report for the 12 month period ending 20 May 2009. That report outlined Newcrest's "planned work" in relation to EL 3856 and EL 1024 (as well as two other exploration licences). The annual report made no reference to any work involving the Technology or to GCR. However, as the annual report is dated June 2009, and as there is no evidence as to when, precisely, Newcrest sent it to the Department, I am not able to conclude that it played any role in the Department's assessment of Newcrest's applications at this time. 140In relation to EL 1024, Mr Capnerhurst said of the "proposed program": - "This is satisfactory and coverage of the area for renewal is satisfactory". 141Mr Capnerhurst recommended approval as follows: - "Special Circumstance Renewal is recommended for sixty months as Newcrest have met the reporting requirements and greatly exceeded the expenditure commitment on this group of licences. Effective exploration continues to be carried out as they try and increase the resources of the Cadia operations." 142In relation to EL 3856, Mr Capnerhurst said of Newcrest's "proposed program": - "Newcrest are planning to drill test a number of known prospects as well as use [the Technology] if it is commercially available. This is satisfactory and coverage of the area for renewal is satisfactory." (emphasis added) 143In another document, apparently produced at around this time, Mr Capnerhurst commented: - "Only worry is the proposal to use [the Technology]". (emphasis added) 144Mr Capnerhurst concluded: - "Special circumstance renewal is recommended for five years as Newcrest have met the reporting requirements and greatly exceeded the expenditure commitment. Effective exploration has been undertaken and further drilling is being planned in the next five years." 145Mr Capnerhurst's remarks reveal that the Department thought, contrary to the facts, that Newcrest still proposed to use the Technology. 146Insofar as Mr Capnerhurst seemed to place emphasis on planned "further drilling" over the "next five years", Mr Newlinds pointed out that Newcrest's May 2009 application for extension (which, unlike the March 2009 application, dealt with proposed exploration for the next five years) stated that the exploration in years "three to five will greatly depend upon the exploration results obtained during year[s] one and two". The proposed use of the Technology was to be in year one. 147Nonetheless, Mr Capnerhurst's comments suggest that he did not place significant weight on the proposed use of the Technology and that he had some reservations about it (see his comments at [142] and [143]). 148On 7 and 10 July 2009, Mr Robert New, Team Leader, Western, supported renewals of EL 1024 and EL 3856 respectively. Mr New was the delegate of the Minister and was, in substance, the relevant decision maker concerning these exploration licences. 149The formal decision to approve extension of EL 1024 was made at a meeting of the Department's Exploration Titles Committee on 10 July 2009. 150For some reason, not explained in the evidence, further consideration by the Department of Newcrest's application to extend EL 3856 was deferred until early 2011. 151As I have mentioned, formal approval for the renewal of EL 1024 was on 8 October 2009, on which occasion EL 1024 was renewed to 20 May 2014. 152I conclude from this material that the Department's understanding of Newcrest's proposed use of the Technology played no significant role in its decision to approve renewal of EL 1024. There was no reference to the Technology in the departmental documents considering the renewal of EL 1024. There was, however, reference to the Technology in corresponding and contemporaneous departmental documents (prepared by the same individuals) concerning EL 3856. Those references ("if it is commercially available" and "only worry is the proposal to use" the Technology) suggest that, at best, the Department thought the proposal to use the Technology was problematic. 153I cannot conclude from this material that, but for the Statements, the Department would not have renewed EL 1024.

Events leading to the renewal of EL 3856 154As I have mentioned, departmental consideration of the renewal of EL 3856 was, for some reason, deferred until early 2011. Events between October 2009 and early 2011 show, even more clearly, that there is no basis to conclude that, but for the Statements, the Department would not have renewed EL 3856. 155On 17 December 2009, Newcrest provided the Department with an Interim Report for the six month period ending 30 November 2009. The report dealt with EL 3856, EL 1024 and two other exploration licences. It set forth details of Newcrest's "proposed program" for the following six month period. There was no mention of any proposed use of the Technology. 156In the meantime, GCR engaged in correspondence with the Department concerning its application to renew a number of its exploration licences. 157On 29 January 2010, there was a meeting between Mr Peter Lewis from GCR and officers from the Department. 158According to a note prepared by the Department, Mr Lewis said that it was still GCR's intention to use the Technology in relation to its tenements, but that the Technology would not be available before the end of July 2010. The Department concluded that it was not "realistically likely" that the Technology would be in use on GCR tenements until, at the earliest, August 2010. 159A departmental minute paper prepared after that meeting reported that GCR's proposed program for the survey was the "same program proposed in the previous renewal application" and this was an "unsatisfactory" situation. The minute continued: - "The last renewal for this group of licences was based on a detailed work schedule provided to the Department, by [GCR] for a [survey using the Technology] to be completed by September 2009. [GCR] did not commence the survey and failed to make significant progress on...logistical issues...". 160Thus, in January 2010, the Technology had not been rolled out and was unlikely to be in use prior to August 2010. 161On 12 March 2010, a further meeting took place between representatives of GCR (including Mr Lewis) and departmental officers. According to a departmental note, the meeting was: - "...requested by Mr Lewis to update the Department staff in Orange on general progress of [GCR] in preparing to undertake the [survey using the Technology] and other proposed activities on its ELs." 162The note recorded that the Department had been told that GCR had "signed an agreement" to use the Technology to conduct three 70 day "programs" with the first program proposed to commence in August or September 2010. 163A few days later, on 15 March 2010, officers from the Department's Geological Survey (described within the Department as "Survey") made a note: - "It is Survey's belief that insufficient progress has been made on vital preparatory work required to allow commencement of the proposed regional field program. Lack of advancement in this regard since the last renewal will inevitably lead to further lengthy delays on top of those experienced since conception of the program in mid 2007. Briefings given by [GCR] to Department staff at meetings on 29 January 2010, and as late as 12 March 2010, failed to provide the Department with confidence that commencement of field work is at all likely in the foreseeable future. On the contrary, correspondence provided by [GCR] from [the owners of the Technology] indicates that in the 2 ½ years since the JV commenced, many of the logistical issues remain far from resolved... In the 2 ½ years since [the Technology] program was proposed, and in the case of EL 6249 since as far back as original grant in 2004, it is clear these commissions have not been met." 164In these circumstances, Survey recommended that the Department refuse to renew GCR's exploration licences "on the grounds that further inevitable delays are totally unacceptable". 165On 19 March 2010, an officer of the Department's Mineral Exploration Assessment area endorsed that recommendation and stated, in relation to the use of the Technology: - "This very ambitious exploration program has not significantly advanced it does not appear that it will." 166On 31 March 2010, Mr Wayne McDonald, from the Department's Titles Branch, wrote to a subsidiary of GCR stating that: - "as you have failed to undertake the work program requirements of the preceding special circumstance[s] renewal of the licence, it is proposed to refuse your application for renewal." 167Clearly, at this point, the Department was not impressed with the progress that GCR had made rolling out the Technology. This material is relevant to consideration of what weight the Department placed on the reference to the Technology in the Statements. 168On 9 April 2010, Mr Lewis, and other representatives of GCR, visited the Department's Orange office. Mr New (the relevant decision maker so far as concerns Newcrest's applications to renew its exploration licences) noted: - "During their visit they took the opportunity to speak to me regarding the Department's recommendation to refuse the applications for renewal of 18 exploration licences held by the company and other associated companies. They expressed their disappointment in the recommendation and particularly the 'cold tone' of the letter relaying the recommendation. They advised that the letter had the potential to frighten off the 2 parties that propose to finance [the Survey] as the letter was interpreted that the applications were to be refused and that there was no other option available. I pointed out that the Department's position was to refuse the applications based on past performance and the information lodged to support the applications." 169On 15 April 2010, the Department's Survey area noted: - "...[the Technology] part of the proposed program is unacceptable to the Survey. It is recommended the ELA is granted subject to receipt of a revised proposed program covering the entire application area using exploration methods considered acceptable to the Survey... It is recommended that [the application for renewal of an exploration licence] be refused on the grounds that [GCR] has, over an extended period on adjacent title, failed to demonstrate the viability of the proposed [Technology] program". 170Thus, Survey's view was that not only had GCR failed to demonstrate that the Technology was "viable", but that if GCR's exploration licences were to be renewed, they should propose a "revised" program to explore their tenements. 171On 16 April 2010, Mr New, and other officers of the Department, visited one of GCR's tenements to observe a "trial line". 172Mr New recorded: - "[GCR] has completed about 3 kilometres of this trial line. We were advised that the total length of the line would be about 12 kilometres and the company expected that it would be completed by the end of next week. The line is mounted on wooden poles approximately 8 metres above the ground. Upon completion of this line [GCR] propose to do a trial of [the Technology] using a company based in South Australia. If the trial is successful [GCR] propose to proceed with its program using [the Technology owner's] team...." 173On 21 April 2010 GCR's consultant, Hetherington Exploration & Mining Title Services Pty Ltd ("Hetherington Exploration"), made a detailed submission to the Department supporting GCR's application to renew some 18 exploration licences. Included in the material attached to this submission was a copy of the Video that Mr Hendrickson had shown Newcrest representatives on 20 January 2009, shortly after execution of the Confidentiality Agreement (see [36]). 174Thus, in support of its application for renewal of its exploration licences, GCR disclosed to the Department information concerning the negotiations that had taken place with Newcrest that went far beyond the relatively limited revelation constituted by the Statements. 175On 13 May 2010, there was a further meeting between Mr Lewis, and other officers of GCR, and officers from the Department. The departmental note records that Mr Lewis said that the program using the Technology "could not be completed before 2011". 176On 21 May 2010, GCR wrote to the Department confirming that, as a condition of renewal of their exploration licences, they would perform a survey using the Technology prior to the next expiration date of GCR's exploration licences on 31 January 2012. 177GCR acknowledged that if that survey was not completed by 31 January 2012, the Department would have no obligation to consider any further renewal of the exploration licences. 178On 24 May 2010, the Department renewed GCR's exploration licences to 31 January 2012 on condition that, by that date, GCR complete a survey using the Technology over areas to be renewed. 179In an email dated 21 May 2010, Mr New said that he was "not impressed" with the decision to renew GCR's exploration licences but: - "...the decision comes from a higher authority and we have to abide by that decision. I only hope that after the next 24 months that [GCR] is held to its commitments..." 180A number of points may be made here. First, the only commitment that GCR had made to the Department was to roll out the Technology by 31 January 2012. Second, the relevant decision maker, so far as Newcrest was concerned, Mr New, was somewhat disenchanted with GCR. 181Further, the Department was sceptical about the Technology itself. As GCR accepted in its closing submissions: - "... the application of [the Technology] in the Orange district posed particular logistical difficulties. Indeed, the Department came within a whisker of not renewing [GCR's] exploration licences in March 2010 because the Department doubted the logistical challenges could be overcome". 182These factors point strongly to the conclusion, in my opinion, that the Statements, and the reference in them to the Technology, played little, if any, role in the Department's consideration of Newcrest's renewal applications. 183In June 2010, Newcrest forwarded to the Department its annual report for the 12 month period ending 20 May 2010. That report contained details of Newcrest's "exploration work" and "planned work". There was no reference in that report to any proposed use by Newcrest of the Technology. 184On 21 January 2011, Newcrest sent to the Department an Interim Report on Mineral Exploration for the six month period ending 30 November 2010. This report dealt with "exploration progress" and Newcrest's "proposed program". It made no reference to any proposed use of the Technology. 185In January 2011, the Department revisited Newcrest's application to renew EL 3856. 186On 2 February 2011, the Exploration Titles Committee recommended renewal and as earlier mentioned, on 14 March 2011, EL 3856 was renewed for a further term of 5 years until 20 May 2014. 187The renewal was signed by Mr New, as the Minister's delegate. 188By now, Mr New knew that there had been no roll out of the Technology. Indeed he knew, and was "not impressed" by the fact that GCR's exploration licences had, on 24 May 2010, been renewed on condition that GCR complete a survey over its tenements using the Technology by 31 January 2012; some nine months after the date of his approval of renewal of EL 3856. 189There is no direct evidence that Mr New read the various Annual and Interim Reports submitted by Newcrest to the Department. However, I would infer that, as the delegate to the Minister and as the relevant decision maker concerning Newcrest's application for renewal of its exploration licences, Mr New would have made it his business to peruse these reports. Such perusal would have made obvious the fact that, contrary to the proposal outlined in the Statements, Newcrest had not been using, nor intended to use, the Technology in respect of its tenements. 190In any event, Mr New must have known that Newcrest could not be using the Technology for the simple reason that it had not been rolled out.

Conclusion as to causation 191When all those circumstances are considered, I cannot be satisfied that it is more probable than not that, but for the Statements, Newcrest would not have obtained renewal of the whole of EL 1024 and EL 3856. 192To the contrary I am satisfied that, as a matter of probability, the Statements made no difference to the Department's consideration of Newcrest's application for renewal of EL 1024. So far as concerns Newcrest's application for renewal of EL 3856, I am comfortably satisfied that the Statements played no role whatsoever in the Department's consideration of that matter.

Has Newcrest made a profit by reason of the Statements? 193I have found that, because the parties dealt with obligations of confidence in the Confidentiality Agreement, there is no cause for equity to intervene to protect GCR's confidences. It follows that GCR is not entitled to the equitable remedy of an account of profits. I have also held that any misleading or deceptive conduct by Newcrest was not in trade or commerce. Accordingly, assuming it were otherwise possible to do so, I would not be prepared to fashion relief under the former s 87 of the TPA to the effect of an account of profits 194Nonetheless, I will deal, briefly, with some of the evidence adduced in relation to this topic.

What part of EL 3856 and EL 1024 would Newcrest have relinquished? 195It was common ground that, whether or not the Statements were made, Newcrest was entitled to renewal of half of EL 3856 and EL 1024. 196Thus the issue arose as to what half of EL 3856 and EL 1024 Newcrest would have relinquished had it not made the Statements and, as a consequence, not been able to satisfy the Department of "special circumstances". It was GCR's case that Newcrest's retention of the "hypothetically retained" part of its exploration licences represented the profit Newcrest had made by reason of making the Statements. 197At the relevant time, Newcrest had the option of relinquishing either half of the area of the exploration licences or half of the units comprised in those exploration licences. 198Newcrest adduced evidence from Mr Mark Miller who, at the relevant time, was the Regional Exploration Manager of Newcrest and whose role it would have been to decide which units or area to relinquish, had that need arisen. 199Mr Miller identified which units in EL 1024 he would have relinquished and said: - "I would have chosen to relinquish those units because I think they are the least valuable and least prospective units in [EL 1024]. I think they are the least valuable and least prospective units because they are covered by magnetised Tertiary basalt sequences on the outer margin of the Cadia mineralised corridor. In addition, units d and e are very small in area." 200In relation to the units that Mr Miller would have relinquished in EL 3856 he said: - "I would have chosen to relinquish those units because I think they are the least valuable and least prospective units in EL 3856. I think they are the least valuable and least prospective units because exploration completed to date comprising geological mapping, magnetics, and gravity surveys used to identify classic porphyry style (Cadia & Ridgeway) deposit signatures and soil geochemistry does not indicate the presence of these styles of systems or the considered prospective host geology." 201Mr Newlinds criticised Mr Miller's evidence and said it was "entirely unreliable" and the Court ought "give it no weight" because it was based upon what a geologist at Newcrest had told him having regard to documents that Mr Miller did not himself consider. 202In my opinion, this criticism of Mr Miller is misplaced. He was not put forward by Newcrest as an expert witness or to give an opinion. He was called to give evidence, as the relevant decision maker, as to what decision he would have made in the hypothetical circumstance that Newcrest was obliged to decide which parts of the exploration licences to relinquish. 203Mr Jackman submitted, in my opinion correctly, that there was no need for Mr Miller's views to be reasonable, or well reasoned (although in fact, as I have set out, Mr Miller did give reasons for his hypothetical decision). What is relevant is what, in fact, Mr Miller would have done. 204Further, as Mr Jackman submitted, GCR did not suggest any alternative hypothetical decision that Newcrest could have made which ought to be adopted by the Court in preference to Mr Miller's evidence. 205I accept Mr Miller's evidence as to what Newcrest would have done in the hypothetical circumstances to which I have referred.

The "strategic value" to Newcrest of the hypothetically relinquished areas 206Both parties adduced expert evidence as to the fair market value of the portions of EL 3856 and EL 1024 that Newcrest would have chosen to relinquish, had it been obliged to. There was considerable time spent in cross-examination of those experts as to their opinions on that topic. 207The expert called for Newcrest, Mr Campbell Jaski, opined that the hypothetically relinquished portions of EL 1024 had no, or only a nominal value, and that the fair market value of the hypothetically relinquished portions of EL 3856 was approximately $226,000 if relinquishment was by units, and $46,000 if relinquishment was by area. 208The expert called for GCR, Mr Robert Adamson only expressed an opinion about the hypothetically relinquished area of EL 3856 by units; he opined that the fair market value of that area was $850,000. 209However, Mr Newlinds submitted, in light of evidence given by Mr Jaski, that the fair market value of those portions did not represent the profit that Newcrest had made as a result of making the Statements. Rather, Mr Newlinds submitted, Newcrest's profit was the "strategic value" to Newcrest of those portions; and that such strategic value was likely to be very much higher than fair market value. 210Neither party adduced evidence about such "strategic value". 211Mr Newlinds submitted that there should be an inquiry, whether by reference under Uniform Civil Procedure Rules Pt 20 or otherwise, as to the profit that Newcrest has made by reason of the Statements and that such inquiry should include an inquiry as to the "strategic value" to Newcrest of the hypothetically relinquished portions of EL 3856 and EL 1024. 212Before me there was argument as to whether an agreement between the parties, which I noted during a directions hearing on 23 November 2012 ("that the hearing of the proceedings is to be in respect of all issues arising in the proceedings, including the assessment of any loss suffered by [GCR] and the assessment of any profit made by [Newcrest]"), precluded GCR from, now, seeking such an inquiry. 213There was also argument as to whether, in the face of GCR's claim for an account of profits, Newcrest should have "brought in an account". 214In view of my other conclusions, including that Newcrest has not made a profit by reason of the Statements, I do not propose to deal with these arguments or make any such order. GCR has failed to establish to my satisfaction that Newcrest has made any profit at its expense. In those circumstances, I do not propose to impose on Newcrest the trouble and expense of any such further inquiry.

Has GCR suffered loss by reason of the Statements? 215For the reasons set out above, my conclusion is that GCR has suffered no loss by reason of the Statements. 216The loss that GCR is said to have suffered is the loss of a chance to acquire those portions of EL 3856 and EL 1024 that Newcrest would have been obliged to relinquish in the hypothetical circumstances to which I have referred. 217As I have outlined above, at the time of Newcrest's hypothetical relinquishment of half of EL 3856 and EL 1024, GCR was struggling to persuade the Department to renew its own exploration licences. 218What the Department would have made of an application by GCR to acquire the hypothetically relinquished portions of Newcrest's EL 3856 and EL 1024 is, in my opinion, a matter of speculation. 219I am not able to form any view of what prospects GCR would have had of persuading the Department that it should acquire those portions of those exploration licences.

Conclusion 220The Amended Summons should be dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 April 2013

Trade Practices Act 1974(Cth)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (28 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (17)

Cited By (10)