Molomby v Whitehead

Case [1985] FCA 498


Re: TOM MOLOMBY
And: GEOFFREY WHITEHEAD and AUSTRALIAN BROADCASTING CORPORATION (1985) 7 FCR
541 No. G256 of 1985
Administrative Law - Companies
13 IR 119

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.(1)

CATCHWORDS

Administrative Law - Judicial Review - decision by Managing Director of Australian Broadcasting Corporation to refuse another Director access to corporate material - whether decision made "under" an enactment - Administrative Decisions (Judicial Review) Act, l977, s.3(l) - whether error of law.

Company Law - whether Director has right to inspect corporate documents - no evidence of bad faith or ulterior motive.

Administrative Law - Judicial review - Whether decision "under an enactment" - Managing Director of statutory corporation having general power of management - Decision refusing non-executive Director's request for access to corporate documents - Whether error of law - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 3(1), 5(1)(f) - Australian Broadcasting Corporation Act 1983 (Cth), s 10(1).

Companies - Directors - Authorities and powers - Access to company documents - Rights of Directors - Onus of proof of matters disentitling right to access.

HEADNOTE

Held: (1) The decision of the Managing Director of the Australian Broadcasting Corporation, refusing a Director's request for access to certain corporate documents, was made "under an enactment" within the meaning of s 3(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (Judicial Review Act). The enactment was s 10(1) of the Australian Broadcasting Corporation Act 1983 (Cth) which granted to him a general power of management of the Corporation's affairs.

The Minister for Immigration and Ethnic Affairs v. Mayer (1985) 59 ALJR 824, applied.

Australian Capital Territory Health Authority v. Berkeley Cleaning Group Pty Ltd (1985) 7 FCR 575, approved.

Hudson v. Venderheld (1968) 118 CLR 171, distinguished.

(2) The Managing Director's failure to recognise that every Director had a prima facie entitlement to access to corporate documents (subject to good cause to the contrary, and none was established here) was an error of law involved in his decision, within the meaning of s 5(1)(f) of the Judicial Review Act.

Edman v. Ross (1922) 22 SR (NSW) 351; Conway v. Petronius Clothing Co Ltd (1978) 1 WLR 72, followed.

HEARING

Sydney, 1985, November 5-8, 13. #DATE 13:11:1985
APPLICATION

Application for an order of review pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

M R Einfeld QC and S M Littlemore, for the applicant.

K Handley QC and J J Garnsey, for the respondent.

Cur adv vult

Solicitors for the applicant: Allen Allen & Hemsley.

Solicitors for the respondent: Bartier Perry & Purcell.

FPC
ORDER

1. Declare that, for so long as the applicant is a Director of the second respondent, the applicant is entitled to access to the documents the subject of the request for access made by the applicant in his letter to the first respondent dated 2 September l985.

2. Reserve liberty to the applicant to apply for…

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Details
AGLC
Molomby v Whitehead [1985] FCA 498 ((1985) 7 FCR 541; 13 IR 119)
Case
[1985] FCA 498
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Molomby v Whitehead involved a dispute between the applicant, Mr Molomby, and the respondents, Mr Whitehead and the Australian Broadcasting Corporation (ABC). Mr Molomby sought access to certain corporate materials held by the ABC, which were requested in a letter dated 2 September 1985. The Managing Director of the ABC, Mr Whitehead, had denied the request, leading to the current judicial review proceedings. The primary legal issue before the court was whether the decision made by Mr Whitehead to deny access to the corporate materials was made "under" an enactment as defined by section 3(1) of the Administrative Decisions (Judicial Review) Act 1977, and if there was an error of law in the decision-making process.

The court examined the nature of the decision made by Mr Whitehead and its relation to the statutory framework provided by the Act. It was determined that the decision fell within the scope of the Act, as it was an administrative decision that affected the applicant's rights as a Director of the ABC. Furthermore, the court considered whether there was an error of law in the decision-making process. It was found that the decision did not take into account relevant considerations and was therefore flawed. The court held that the decision was made without proper regard to the applicant's rights and the applicable legal principles, which constituted an error of law.

As a result, the court declared that Mr Molomby is entitled to access the documents he had requested, for so long as he remains a Director of the ABC. The court also reserved the right for Mr Molomby to apply for further relief if necessary and ordered the respondents to pay the applicant's costs of the proceeding. These orders were made in accordance with Order 36 of the Federal Court Rules, which govern the settlement and entry of orders in such cases.

Orders

Orders of the court

1. Declare that, for so long as the applicant is a Director of the second respondent, the applicant is entitled to access to the documents the subject of the request for access made by the applicant in his letter to the first respondent dated 2 September l985.

2. Reserve liberty to the applicant to apply for further relief, if necessary, on such notice as a Judge of the Court may allow.

3. Order that the respondents pay the applicant's costs of the proceeding.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

Orders accordingly

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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