National Roads and Motorists' Association Ltd v Geeson and 3 Ors

[2001] NSWSC 832

Reported Decision: (2001) 39 ACSR 401
(2002) 20 ACLC 111

New South Wales

Supreme Court

CITATION:	NATIONAL ROADS AND MOTORISTS' ASSOCIATION LTD v GEESON & 3 ORS [2001] NSWSC 832
CURRENT JURISDICTION:	EQUITY
FILE NUMBER(S):	SC 4601/2001
HEARING DATE(S):	18 & 19/09/2001
JUDGMENT DATE:	21 September 2001
PARTIES :	National Roads and Motorists' Association Limited - Plaintiff Stewart Geeson - First Defendant Anne Keating - Second Defendant Jane Singleton - Third Defendant John Fairfax Publications Pty Ltd - Fourth Defendant
JUDGMENT OF:	Bryson J at 1

COUNSEL :	R. McColl S.C. & T. Blackburn for Plaintiff G. Lucarelli -First Defendant A. Keating - Second Defendant in Person G. Reynolds S.C., R. Lancaster & J. Hmelnitsky - Fourth Defendant
SOLICITORS:	Corrs Chambers Westgarth - Plaintiff
CATCHWORDS:	CONFIDENTIAL INFORMATION - directors' meeting - NRMA sought interlocutory injunction to restrain communication by 3 directors and publication by SMH of events at board meeting of 17/9/01 - examination of facts relating to reasonable apprehension of publication - SMH had some source of information, not shown to be any of the director defendants - declining to give undertaking not to communicate events was not in the circumstances evidence of a threat to communicate it - one director stated at meeting and gave evidence that she was considering and might decide to communicate events at part of meeting when occupation of the Chair was discussed - Directors' Code of Conduct entitled directors to communicate information on deciding to do so on stated principles - there was no reasonable apprehension of communication of information about other subjects or of publication by SMH - the Court declined to make an injunction which would prevent that director from taking a course which this Code of Conduct permited her to take - interlocutory injunction refused.
LEGISLATION CITED:	Corporations Act
CASES CITED:	Attorney General v. Guardian Newspapers (No. 2) [1990] 1 AC 109 AG (UK) v. Heinemann Publishers Pty Ltd (1987) 10 NSWLR 86 Mooregate Tobacco Co. Ltd v. Philip Morris Ltd (No. 2) (1984) 156 CLR 414 AG v. Guardian Newspapers at (1990) 1 AC 256 Commonwealth of Australia v. John Fairfax & Sons Limited & Ors (1980) 147 CLR 39 Coco v. A.M. Clark (Engineers) Limited [1969] RPC 41 Smith Kline & French Laboratories (Aust) Limited & Ors v. Secretary, Department of Community Services & Health [1990] 22 FCR 73 O'Brien v. Komesaroff (1982) 150 CLR 310
DECISION:	Interlocutory injunction refused.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

4601/2001

BRYSON J.

FRIDAY 21 SEPTEMBER 2001

NATIONAL ROADS & MOTORISTS’ ASSOCIATION LIMITED v. STEWART GEESON & ORS

Judgment

The plaintiff commenced these proceedings by Summons on 17 September 2001 and claimed remedies relating to apprehended disclosure by the defendants of proceedings of the plaintiff’s Board on 17 September 2001. At the same time the plaintiff applied by Notice of Motion for interlocutory injunctions restraining the defendants from publishing or otherwise disclosing the proceedings at the meeting. These reasons relate to the application for interlocutory injunction.

2 Mr Stewart Geeson, Ms Anne Keating and Ms Jane Singleton are board members. They are the first, second and third defendants. The fourth defendant John Fairfax Publications Pty Ltd is the publisher of the Sydney Morning Herald newspaper. Mr Geeson and John Fairfax Publications were represented by counsel on the application to continue the injunction. Ms Keating appeared and opposed the application in person. Ms Singleton did not appear. There was evidence that a copy of the Summons was sent to her, but not evidence of personal service. Even in the absence of her appearance or regular service the plaintiff was entitled to apply for continuation of the immediate injunction which I made on 17 September in her absence.

3 Various circumstances operate to show that, as a general proposition, events and discussions at meetings of the Board of Directors of NRMA, and papers before the Board are confidential in character. A prominent consideration is the nature of the business of the Board of a corporation and the responsibilities of its directors; ordinary good sense would show directors and officers that confidence should be observed with respect to matters discussed at a board meeting, unless there was a specific decision to make them public. Similarly other persons receiving information about boardroom discussions understand their confidential nature without any particular explanation.

4 More specifically, the NRMA board on 28 June 2001 approved the Directors’ Code of Conduct which spells out the conduct of directors in a number of respects including confidentiality. The Code is not a contractual arrangement but it is basic for establishing what NRMA requires of its directors and hence for establishing what they as fiduciaries may and may not do. The Code was produced in evidence by Ms Kelly and formulates a number of matters expected of directors. In cl. 5 Confidentiality is stressed:

An individual director will generally not be at liberty to disclose in the public arena, whether through the press or otherwise, information regarding the affairs of the Association that has been received in the course or exercise of directorial duty.

There are a number of further references to confidentiality. Clause 13 contains provisions spelling out that confidential information including board papers remains the property of the company and it is improper to disclose it unless disclosure has been authorised by the company or required by law or the ASIC listing rules. Clause 14 expands this somewhat. Clause 15 provides for disclosure.

13. Confidential information (including Board or Committee papers) received by a Director in the course of the exercise of directorial duties remains the property of the company from which it was obtained and it is improper to disclose it, or allow it to be disclosed, unless that disclosure has been duly authorised by the company, or the person by whom the information was provided, or is required by law or by the ASX Listing Rules.
14. A Director must not disclose the content of discussion at Board meetings or committee meetings outside appropriate and responsible circles within the company with a legitimate interest in the subject of the disclosure, unless that disclosure has been authorised by the company, or is required by law or by the ASX Listing Rules.
15. In exceptional circumstances where it is in the interests of the company as a whole for disclosure of particular discussions to be made public, it may be appropriate for a Director to publicly disclose the content of discussions which took place during Board meetings or Committee meetings. In such exceptional circumstances, and subject to prior discussion with the President and notification to the Board, a Director may publicly disclose the content of those discussions only if the Director honestly and reasonably believes that it is in the best interests of the company as a whole to do so.

5 Clause 13 speaks with an element of circularity of confidential information; that expression is used so as to include board papers, but leaves open to consideration in relation to any particular piece of information whether it is confidential. Clause 14 extends to all discussion at board meetings. It will be seen that prior discussion and notification is required by cl.15 but concurrence is not required. It will be seen that disclosure is authorised according to the judgment of the director. Clause 18 contains a further restriction on making public statements likely to prejudice NRMA’s business or denigrate the company, directors or staff, but again there is an exception which depends on the judgment of the director.

18. A Director generally must not engage in conduct, or make any public statement likely to prejudice the company’s business or likely to harm, defame or otherwise bring discredit upon or denigrate the company, fellow Directors or staff. A Director may make such a statement only if the Director believes in good faith that it is in the best interests of the company as a whole to make such a statement.

6 There is nothing in the Code of Conduct which obliges a director to give an undertaking to the President when called upon to do so, and an undertaking could well be inconsistent with matters which the Code remits to the personal judgment of each director. The Code contains a regime of sanctions to be administered within the company, but this regime applies only to directors, could not affect the obligations of persons other than directors, could not be regarded as intended to be the exclusive means of enforcement, and could have no impact on the jurisdiction of the court.

7 The plaintiff’s counsel referred to and relied on the fiduciary position and duty of company directors, and their statutory obligations under s.182 and s.183 of the Corporations Act in support of contentions that directors are subject to an obligation of confidentiality with respect to board business, and that other persons in positions like that of John Fairfax Publications should be taken to know of that obligation. There were also claims to have standing to enforce provisions of ss.182 and 183, and to have the relief claimed on the basis of the fiduciary obligations of directors.

8 Since 29 June there has been correspondence between solicitors for NRMA on the one part and Ms Anne Lampe and other persons representing the Sydney Morning Herald on the other part relating to publication of information relating to affairs of the NRMA. The opening letter of 29 June 2001 referred to an article entitled “Carnell joins the Board” published in the Sydney Morning Herald on 29 June 2001, and particularly to this statement: “At yesterday’s Board Meeting, the NRMA has approved upgrades for non-executive directors’ expenses to provide them with ‘indemnity against certain liability incurred as directors from the Company’”. The solicitor’s letter went on to protest at length and with reasons against an inferred availability to Ms Anne Lampe of information confidential to the NRMA. The letter avoided stating, and there is no evidence establishing whether or not the published matter represented anything which had actually happened at the Board Meeting of 28 June 2001. The letter stated that Ms Anne Lamp was put on notice that any communication to her of NRMA board papers or business conducted at the Board could only come in circumstances that involved a breach of confidence unless disclosed publicly by NRMA . The letter called for delivery up of copies of any information and documents and for a statement of some matters about how they had been used. In reply Mr Mark Polden of John Fairfax Limited’s Legal Unit by a letter of 5 July 2001 contested the position asserted. In a further letter of 29 August NRMA’s solicitors made a number of contentions supporting the claim of confidentiality for matters considered or transacted at Board meetings. Mr Polden replied on 30 August 2001, and his letter was not altogether in point but did not accept the contentions.

9 On Friday 31 August 2001 an item dealing with the affairs of NRMA was published in the financial pages of the Sydney Morning Herald in a segment called “CBD” – Exhibit 3. The item was entitled “Brawls as usual” and reported or purported to report events at a Board meeting on 30 August 2001. The style was entertaining rather than informative. It opened with the following:

We can happily report that the Board Meeting of NRMA lived up to expectation yesterday.
As usual there was plenty of dissent, with three directors seeking to stop the legal actions mounted against Channel Nine and CBD’s own employer, John Fairfax Holdings, on the grounds of the unknown nature of the costs involved and the potential for a public relations fiasco. They didn’t get their way.

The item went on to another subject said to have been discussed at that meeting. Again there is no evidence showing whether or not the report has any relation to anything which actually happened at the meeting of 30 August.

10 There is no evidence which would tend to establish that any of the director defendants communicated to Ms Anne Lampe or any other person associated with John Fairfax Publications any information about events at board meetings on 28 June or 30 August; and no evidence which shows in what circumstances or from whom the information in the items published was obtained. On the face of things John Fairfax Publications probably has some source of information about what happened at those two meetings, although the two items contain, in truth, very little of information about events at those meetings and there is no evidence that the events reported in fact took place. The nature of the information makes it highly probable that it was received in circumstances which showed that it was surreptitiously passed on, that it was a leak. The information, judged by what was published, has been very meagre. There is no basis for a finding that John Fairfax Publications has had access to board papers such as legal advice or other documents tabled at or read to board meetings, or to minutes, and there is no basis on which it should reasonably be apprehended that John Fairfax Publications will use or publish any such papers.

11 The two earlier publications, and the appearance of the second publication after full (indeed strident) assertions by NRMA of its claim of confidentiality, make it probable that John Fairfax Publications has access to some source of information about events and statements at NRMA board meetings, is aware of the claim of confidentiality, and will receive and publish information, not very detailed and not very specific, about events at the board meeting of 17 September; and it is particularly likely that the information to be published will relate to events and discussion relating to occupying the Chair. The confidential nature of the information must be plain to John Fairfax Publications, as it would be to any reasonable person.

12 A meeting of the Board of Directors of NRMA took place at the boardroom at 388 George Street, Sydney, on Monday 17 September 2001 commencing at 9.32 a.m. The President Mr N.R. Whitlam was in the Chair. Ten other board members were present including the first three defendants, and four further board members were in telephone contact and were treated as present. Officers present were Ms P. Bardsley, Mr Carter the Chief Executive Officer and Ms Kelly the Group Secretary and General Counsel. A written agenda had earlier been distributed and the business shown was a decision on forms for Notice of the Annual General Meeting and Proxy forms, and General Business. Mr Carter the Chief Executive Officer read out a statement and addressed the Board on comments which he had made a week earlier to the media relating to matters affecting the Board. Ms Kelly tabled a paper relating to the business to be put to the Annual General Meeting and commenting on litigation then pending in the Supreme Court which affected that business. Ms Kelly had with her a paper “Legal Advice for Mr Carter at NRMA Board Meeting”. She did not table that paper but she quoted from paragraphs in it while addressing the Board. The paper dealt with pending litigation in the ACT Supreme Court against the Nine Network and with the appearance of Mr Geeson and Ms Singleton in a television broadcast. After the meeting Ms Kelly prepared draft minutes of the Board Meeting. These minutes remain in draft and have not been adopted or confirmed.

13 The meeting turned to General Business at about 11.02 a.m. There was discussion about occupation of the Chair until proceedings between ASIC and the President Mr Whitlam are completed. Mr Geeson moved or sought to move a motion which dealt with that subject, and after some discussion put an alternative motion. The draft minutes do not record any events in which Mr Geeson’s motion and alternative motion were treated as business before the meeting or were seconded. According to the draft minute (and there does not seem to be any dispute as to this event) what followed Mr Geeson putting his alternative resolution was:

The President then noted that if he did not receive an undertaking from every director in the Board Room today that they will not disclose confidential discussion outside the Board Room he will seek an immediate injunction.
The President then asked each director in terms whether they would give such an undertaking.

14 The draft minute then records that ten directors informed the President that they would give the undertaking. One director had left the meeting earlier. The draft minute goes on:

Ms S.J. Geeson and Ms A.J. Keating declined to give an undertaking
Ms F.J. Singleton informed the Board that she would not give an undertaking in that form and like her comments on the previous statutory declaration she will say neither yes or no to the question being posed however she will at all times follow the Director Code of Conduct.

15 An another place in evidence Ms Kelly gives Ms Singleton’s statement as being to the following effect:

In this form no. It is like my statutory declaration. I am happy to say no. I want to speak. My response will say neither yes or no to the questions, but I will follow the Code of Conduct.

16 Earlier Ms Singleton had written notes an statutory declaration forms which she declined to complete. One related to whether she made any disclosure of matters discussed on 28 June; Ms Singleton struck a line through the form and wrote a note on the form: “… Ms Lampe did not ring me nor I her”. On a similar form relating to business on 30 August Ms Singleton wrote “I believe the various laws and code surrounding this matter more than adequately bind me and that a statutory declaration is simply not necessary. However for your information Belinda Tasker rang and left a message. I did not return her call.”

17 In my opinion there were no circumstances which make it reasonable to understand declining to give Mr Whitlam the undertaking he called for as meaning that a particular director intended or that there were reasonable grounds to apprehend that that director would disclose what had been discussed at the meeting to John Fairfax Publications. Mr Whitlam had no right to demand undertakings and directors had no duty to give them. Where there is no indication that a particular director from whom an undertaking was demanded had ever given any confidential information to John Fairfax Publications, or intended to do so or was likely to do so, there are a number of meanings which unwillingness to give an undertaking on demand could have. The demand for an undertaking could reasonably be regarded as an insult. A refusal could be an expression of a sense of affront at Mr Whitlam’s behaviour in demanding the undertaking, it could be based on respect for one’s own autonomy, or it could be based on consciousness of an array of considerations favouring not communicating the information which made the undertaking superfluous. The demand for an undertaking and the discussion of General Business took place in the context of circumstances naturally tending to impel directors to maintain the confidence of board business, including a Code of Conduct which, as well as containing provisions tending to protect confidentiality, also contained provisions recognising that there might be circumstances in which a director might decide to make a communication. In Ms Singleton’s case the basis for an adverse inference gains nothing from earlier events in which she had not given a statutory declaration. It is conceivable that the reply she did give, on either of the two slightly differing versions, reflected awareness of the circumstances referred to in the Directors’ Code of Conduct in which a director is entitled to decide to communicate information. There is evidence that Mr Geeson and Ms Singleton have made public statements and have appeared on television, but no evidence that they have published confidential board business on those occasions. However that may be, there is in my opinion no basis for finding that it is reasonable to apprehend that Mr Geeson or Ms Singleton will communicate events at the board meeting to John Fairfax Publications. The claim for injunctions restraining them does not require further consideration.

18 In the case of Ms Keating there are some other circumstances. The draft minute records that Ms Keating, after some discussion about occupation of the Chair, said:

Ms A.J. Keating informed the Board that a request had been made for the President to stand aside and that she would make it a matter of public record on the way the Board voted.
She said I will make all this public.

At a later point it is recorded that she said to the effect that she would be making a vote on this issue public. The request for an undertaking and her refusal came at a later point.

19 Ms Keating gave oral evidence. She did not accept that the matter recorded in the Draft Minute is an exact account of what she said. The effect of her evidence was that she intended and said that she intended to make public the way the board voted, first to the ASIC and that then she would decide what she would do. She denied that she said directly that she would make the voting public but she reserved her right to do so. In my finding Ms Keating expressed herself in a way which indicated that she may very well decide to make the voting public. When she gave evidence she had not made a decision and she said she had not had time to consider whether she would make public statements about the board meeting. She was considering making a statement to the media but her primary consideration was informing the ASIC. Her evidence shows that in the past she has issued three press releases about NRMA matters; she was not cross-examined to suggest that she had breached board confidence in the press releases. She said in terms that she had not disclosed board agendas and papers to third persons or sought to communicate them to the media. There is no basis for a finding that she has in the past communicated board business to John Fairfax Publications.

20 In these circumstances I find that there are reasonable grounds to apprehend that Ms Keating will communicate to the media (which could well include John Fairfax Publications) part of the board discussions in General Business relating to occupation of the Chair. She mentioned in evidence the possibility of disclosing the way the Board voted, although no vote was actually taken in General Business. The Code does contemplate making voting public, at least to some degree, in cl.16:

Where a decision is not unanimous, a dissenting director may disclose the fact that he/she dissented.

21 It would not in my opinion be appropriate for the court to restrain by injunction the communication by a director of a company of any information which the director thought fit to ASIC, which is a law enforcement body and has statutory obligations of confidentiality of its own. If Ms Keating does decide to communicate information of the kind of which she spoke to the media or to publish it, it appears from the terms of the Code that it is possible for her to make that decision in the exercise of choices and grounds for decision the opportunity to make which the Code itself offers her. Under cl.15 it is within the range of matters which a director could honestly and reasonably believe for her to decide that it is in the best interests of NRMA as a whole to make known the discussion about occupation of the Chair. In the present case, events at the meeting in General Business could reasonably be seen as prior discussion and notification. If and in so far as making that discussion known did or might be thought to harm, defame or bring discredit upon or denigrate NRMA or fellow directors, the opportunity to consider and come to a conclusion that to do so was in the best interests of NRMA as a whole is offered to her by the terms of cl.18. If she made such a decision she should expect that her decision would be examined and might be challenged, and that she might have to justify and be answerable for it. However an injunction which had the effect that she could not make such a decision at all would have the effect of denying to her opportunities which the Code of Conduct offers her, and that is the basic document establishing what NRMA requires of directors with respect to confidentiality.

22 It appears to me that if Ms Keating decided to publish information that decision could well be within the range of legitimate outcomes to which consideration in accordance with the Code could bring her. There are circumstances which could lead a reasonable director, according to her own consideration, to decide to make such a publication; there are pending proceedings by ASIC against the President Mr Whitlam and it is reasonable for the minds of persons involved in NRMA’s affairs including directors and members to turn to whether he is to continue to occupy the Chair while the proceedings are pending. The state of consideration of that matter by the Board is something in which members might well feel interest and concern. In a perception of the interests of the NRMA as a whole an evaluation in which factors favouring publicity outweigh factors favouring confidentiality seems to me to be reasonably available. The context includes the elective nature of board membership and the fact that an election for half the board membership, to hold office for four years, is to commence in October 2001.

23 As there are circumstances in which a decision to publish information of the kind which Ms Keating may well decide to publish is authorised by the Code of Conduct itself, there is in my opinion no proper ground on which she should be restrained. It would not be a breach of fiduciary duty for her to act in a way the Code provides for, and to do so could not be improper conduct within the reach of s.182 or s.183 of the Corporations Act. Further there is no proper ground on which a third person such as John Fairfax Publications should be restrained by injunction from further publishing anything which she should decide to publish within the opportunities reserved to her by the Code of Conduct. I see the possibility that there might be a purported exercise of one of those opportunities which was vitiated for some reason such as an improper purpose or malice, but the existence of that possibility is not to my mind a reason for preventing Ms Keating from coming to any decision; she would be answerable in various ways, not least to the members as electors, for any abuse of her position.

24 Except in respect of the matters I have specifically dealt with, there is in my opinion no showing of reasonable grounds for apprehension of the publication of confidential material either by Ms Keating or by John Fairfax Publications. There is no justification for a blanket injunction covering all board papers or all papers from which officers read at the meeting. Some papers used by Ms Kelly, which discussed NRMA’s legal business, have a claim of confidentiality which is overwhelmingly strong and publication would be an enormity; but there is no ground for reasonable apprehension that such publication will take place.

25 The claims in the Summons and the claim for an interlocutory injunction relate to disclosure of any proceedings of the NRMA board, including board papers, discussions and deliberations. The protection given by the law to confidential information is not given on a blanket basis, but is given in respect of defined information which is specified in the Court’s order. On the need for specificity see O’Brien v. Komesaroff (1982) 150 CLR 310 at 326 (Mason J) and Smith Kline & French at 87 (Gummow J). The point of commencement of consideration is the general rule stated by Lord Keith of Kinkel in Attorney General v. Guardian Newspapers (No. 2) [1990] 1 AC 109 at 256:

The general rule is that anyone is entitled to communicate anything he pleases to anyone else, by speech or in writing or in any other way.

26 In Commonwealth of Australia v. John Fairfax & Sons Limited & Ors (1980) 147 CLR 39 at 50 Mason J said of restraining disclosure to confidential information:

The principle is that the court will ‘restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged’ (Lord Ashburton v. Pape [1913] 2 Ch 469-475 per Swinfen Eady LJ).”

At 51, while dealing with the question whether the Government was entitled to protect information which was not public property even if no public interest was served by maintaining confidentiality, Mason J said:

However, the plaintiff must show, not only that the information is confidential in quality and that it was imparted so as to import an obligation of confidence, but also that there will be ‘an unauthorised use of that information to the detriment of the party communicating it’). Coco v. A.M. Clark (Engineers) Limited [1969] RPC 41 at 47.

27 Mason J was speaking of a claim relating to government information. The need to show detriment has been questioned and the formulation of McHugh JA in AG (UK) v. Heinemann Publishers Pty Ltd (1987) 10 NSWLR 86 at 190 to which I will refer does not include a requirement to show detriment, although it does require that the preservation of confidentiality or secrecy be a substantial concern of the plaintiff. Lord Keith of Kinkel said in AG v. Guardian Newspapers (No 2) [1990] 1 AC 109 at 256;

Further, as a general rule, it is in the public interest that confidences should be respected, and the encouragement of such respect may in itself constitute a sufficient ground for recognising and enforcing the obligation of confidence even where the confider can point to no specific detriment to himself. Information about a persons private and personal affairs may be of a nature which shows him up in a favourable light and would by no means expose him to criticism. The anonymous donor of a very large sum to a very worthy cause has his own reasons for wishing to remain anonymous, which are unlikely to be discreditable. He should surely be in a position to restrain disclosure in breach of confidence of his identity in connection with the donation. So I would think it a sufficient detriment to the confider that information given in confidence is to be disclosed to persons whom he would prefer not to know of it, even though the disclosure would not be harmful to him in any positive way.

28 It will be seen that in Lord Keith’s view there is a need to show sufficient detriment but in the protection of a person’s private and personal affairs there can be some relevant detriment although disclosure would not be harmful in any positive way. The example of an anonymous donor is not, as far as I am aware, drawn from the law reports and with respect to his Lordship, the example is on the edge of fantasy. The learned authors of “Equity Doctrines and Remedies” Meagher, Gummow & Lehane (3rd ed) 1992 at p 872 question the need to show detriment. In Smith Kline & French Laboratories (Aust) Limited & Ors v. Secretary, Department of Community Services & Health [1990] 22 FCR 73 at 111-112 Gummow J made observations on the significance of detriment which show his Honour’s view that it may not, or may not always be necessary to show detriment. That was a case in which there was detriment in fact.

29 In my opinion a business organisation would very rarely have any claim for a court to protect its sensitivities or feelings about private and personal affairs, or be able to show that the sensitivity is that of the plaintiff and not of officers. In the present case I am of the view that it is necessary for NRMA to show detriment, and also necessary for the Court to appraise the detriment when deciding whether confidentiality should be protected by injunction.

30 In Moorgate Tobacco Co. Ltd v. Philip Morris Ltd & Anor (No. 2) (1984) 156 CLR 414 at 438 Deane J said:

Relief under the jurisdiction is not available, however, unless it appears that the information in question has ‘the necessary quality of confidence about it’ (per Lord Greene MR, Saltman Engineering Co Ltd v. Campbell Engineering Co. Ltd (1947) 65 RPC 203 at 215) and that it is significant, not necessarily in the sense of commercially valuable (see Argyll v. Argyll [1967] Ch 302 at329) but in the sense that the preservation of its confidentiality or secrecy is of substantial concern to the plaintiff.

31 The need for the plaintiff to show, and for the Court to assess that the information in question has the necessary quality of confidence about it almost invariable reappears in judicial formulations and shows that, although parties may have established by some arrangement between them that some information is confidential, it remains for the Court to decide whether it has the necessary quality.

32 When a Court makes an order which creates an exception of the general rule the Court acts on a careful address to the terms of the exception and an evaluation of the need to enforce the exception by an injunction. An injunction is a discretionary remedy and the need to evaluate whether or not an injunction should be made in a particular case is inescapable. With respect I am of the view that the discretionary nature of injunctive relief, in confidential information cases as in all cases, is a qualification to the word “invariably” used by McHugh JA (as his Honour then was) in AG (UK) v. Heinemann Publishers Pty Ltd (1987) 10 NSWLR 86 at 190. In the course of the passage at pp189-192 McHugh JA said:

Once it is established that a person without authorisation is proposing to publish confidential information imparted to him in confidence during a private or business relationship, little more need be proved for Equity to restrain the publication. If information imparted in confidence retains the necessary quality of confidence ‘in the sense that the preservation of its confidentiality of secrecy is of substantial concern to the plaintiff’, then, subject to any special defences, Equity will invariably restrain the publication: cf Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 at 438 per Deane J. Private concern or embarrassment is prima facie sufficient detriment to ground an injunction to restrain the threatened publication of confidential information acquired by one citizen in the course of his or her relationship with another.

33 In my opinion the statement that Equity will invariably restrain the publication is not altogether consistent with the following reference to private concern or embarrassment as prima facie sufficient detriment to ground an injunction; if the response were invariable, the sufficiency of private concern or embarrassment would be more than prima facie and would be unqualified. The passage in the judgment of Deane J in Mooregate Tobacco Co. Ltd v. Philip Morris Ltd (No. 2) (1984) 156 CLR 414 at 438 to which McHugh JA referred does not express the concept of invariability.

34 If it were otherwise appropriate to grant any interlocutory injunction in the present case, the injunction would not be in the broad terms claimed but would be moulded so as to deal only with information which was defined in the order and of which it was found that there was a reasonable apprehension that it would be communicated and published. The only part of all the proceedings at the meeting of which that finding could be made is the material which Ms Keating considered and might decide she would publish; that is, events and discussions in General Business relating to Mr Whitlam’s occupation of the Chair. In an exercise of discretion on whether confidential information of that kind should be protected by injunction I am of the view that the detriment which publication would cause to NRMA is a prominent consideration, and that elements of private concern or embarrassment to NRMA have no real weight. The detriment which is relevant is detriment to NRMA itself, and the private concern or embarrassment of particular Board members is not the subject protected by the Code of Conduct. I do not think that NRMA is an organisation for which the concept of private concern or embarrassment has any real meaning, and cases in which a breach of confidence involves invasion of personal privacy (Duchess of Argyll v. Duke of Argyll [1967] Ch 302 dealing with marital confidences), or the mildly fantastic donor who wished to remain anonymous conjured up by Lord Keith in AG v. Guardian Newspapers at [1990] 1 AC 256 can be left out of consideration.

35 The considerations adverse to publishing information relating to conflict on the Board were collected and stated very fully and forcefully by Mr Carter the Chief Executive Officer in his statement to the Board; they were to the effect that the reputation of NRMA is very important for its affairs, and is very greatly injured by publicity about board turmoil; he produced information suggesting that there actually had been injury to NRMA’s reputation and to perception of NRMA by employees and members, and to what he referred to as “perceived values of the brand” and that this injury was closely related to publicity about conflict and turmoil within the Board. There are in my view other interests of the NRMA involved in considering whether publication of proceedings of the Board relating to the occupation of the Chair, and discussion on that subject, should be restrained. The membership of NRMA is very large, I was told 1.8 million, and its membership is so large and its activities are so pervasive that it does not seem too much to say that the NRMA is part of the general organisation of society in New South Wales. In my view interests of the NRMA as a whole would be positively served by making public, for the information of members and others, events and circumstances at a Board meeting relating to occupation of the Chair while ASIC proceedings are pending against Mr Whitlam. The readiness of media to report such things is a reflection of real, well-based and widespread interest and concern in the community. If it were otherwise appropriate to make an interlocutory injunction, the discretionary considerations against doing so are quite strong.

36 Judicial decisions usually speak of confidential information in reference to an identifiable communication or statement in which the information is contained. The claim here and the scope of the Code of Conduct extend not only to communications of information at Board meetings but also to entire series of events and everything that happens at meetings. It is one thing to restrain a communication of identifiable information and quite another thing to restrain publication of what happened throughout a series of events: that is more than Courts have done, and I would think more than Courts should do or can do.

37 Judicial observations which appear to limit severely the discretion to withhold an injunction to protect confidential information were made in relation to the well-defined and specific classes of information which injunctions protect, not in contemplation of an attempt to prevent publication of the fact that a series of events happened at all. There must be a stage at which the Court selects or approves of the plaintiff’s selection of some defined piece of information as appropriate for protection by injunction, and this would not be done if I simply adopted the plaintiff’s claim to blanket protection of all proceedings, meaning everything that transpired at the Board meeting. The Court must still make this selection even if the parties have made some protocol which in its terms creates confidentiality for a broad sweep of events and facts: with fair certainty, some of the facts and events will have no real claim for protection on the grounds of confidentiality, and some will have very little claim. The quality of confidence and the claim to the Court’s protection can only be assessed by focussing on some precise piece of information.

38 The plaintiff tendered two bundles of documents Exhibits JK1 and JK2 in support of its case and claimed confidentiality in respect of the contents, and I made a direction limiting access to the documents and the use to which information in the documents should be put. In my view the directions relating to confidentiality should continue in effect notwithstanding the use of the documents as evidence and the disposition of the interlocutory application. I am prepared to consider further the question whether the direction should be varied in respect of any particular document if application is made to me, but unless and until I make some further direction, their confidentiality continues to be protected by the Court’s order.

39 For these reasons I will not further continue the immediate injunction which I made on 17 September 2001.

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Last Modified: 01/03/2002