N.R.M.A. v Stewart Geeson & Ors

Court of Appeal (NSW)|2001-10-11|Before: Mason P, Giles JA, Bryson J, Ms J

(2001) 40 ACSR 1 Reported Decision : [2001] NSWCA 343 [2001] ACL Rep 325 NSW 376

CITATION : N.R.M.A. v Stewart Geeson & Ors [2001] NSWCA 343 FILE NUMBER(S) : CA 40754/01 HEARING DATE(S) : 26/09/2001, 28/09/2001 JUDGMENT DATE : 11 October 2001

PARTIES : N.R.M.A. v Stewart Geeson & Ors JUDGMENT OF : Mason P at 1; Giles JA at 2; Ipp AJA at 3

Ms R S McColl SC / T D Blackburn - Appellant G. Lucarelli - 1st Opponent COUNSEL : Ms A. Keating (in person] - 2nd Opponent Ms J. Singleton (no appearance) - 3rd Opponent G. O'L Reynolds SC / R. Lancaster - 4th Opponent SOLICITORS : Corrs Chambers Westgarth - Appellant Freehills - 4th Opponent CATCHWORDS : CONFIDENTIAL INFORMATION - Injunctive relief - qualified obligation of confidentiality - public interest in information - balance of convenience - approach of appellate court. D LEGISLATION CITED : Corporations Act 2001 Bennetts v Board of Fire Commissioners of New South Wales (1967) 87 WN (Pt 1) (NSW) 307 at 310 Harkness v Commonwealth Bank of Australia Limited (1993) 32 NSWLR 543 at 552 Attorney-General v Guardian Newspapers Limited & Ors [1987] 3 All ER 316 at 327 CASES CITED: David Syme & Co Limited v General Motors - Holden's Limited [1984] 2 NSWLR 294 Australian Capital Television Pty Limited v The Commonwealth (1992) 177 CLR 106 Attorney-General (UK) v Heinemann Publishers Pty Ltd (1987) 10 NSWLR 86 at 190 Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 50 Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 at 438 DECISION : Dismiss the application for leave to appeal.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40754/01 SC 4601/01 MASON P GILES JA IPP AJA

Thursday, 11 October 2001 National Roads and Motorists' Association Limited v Geeson & Ors

Bryson J dismissed an application by the applicant for an interlocutory injunction restraining the respondents from publishing information (concerning events which occurred during a meeting of the applicant's board of directors) said to be confidential. The applicant then applied for leave to appeal from the decision of Bryson J. The Court of Appeal dismissed the application for leave to appeal on 28 September 2001.

HELD, dismissing application for leave to appeal:

The mere fact that particular information is of a confidential character does not impose an obligation of absolute confidentiality on every person in possession of it. Each case depends on its own circumstances and in each case there has to be an inquiry into the extent and limits of the obligation of confidentiality that may be imposed on an individual in regard to particular pieces of confidential information in his or her possession.
It is in the interests of a very large mutual association such as the applicant for members to be fully informed as to events such as those which occurred at the meeting so that they would be able to consider, properly, what action should be taken in that connection. The only practical way in which members could be advised of the information was through the press even though this would inevitably result in non-members coming into possession of that information.
Bryson J did not err in taking into account the public interest in the dissemination of the information. The circumstances of the present case were distinguished from those in David Syme & Co Limited v General Motors-Holden's Limited [1984] 2 NSWLR 294. In that case the Court refused to take into account considerations of public interest in determining whether an injunction against disclosure of trade secrets should be granted. In this case the affairs of the applicant were of significance to society in New South Wales as a whole. It is not comparable with the idle curiosity the public in general might have about the secret manufacturing processes of a well-known industrial company.
Bryson J correctly conducted a balancing act in determining the overall interests of justice according to the principles in Attorney-General v Guardian Newspapers Limited [1987] 3 All ER 316 at 351. The approach on appeal is that expressed by Sir John Donaldson MR in the same case at 335-336.
Not withstanding the applicant's arguable entitlement to an injunction even without proof of detriment, the trial judge was entitled to have regard to the potential detriment and benefit to the applicant that depended upon whether an injunction would be granted or refused as these matters remained relevant to the determination of the balance of convenience. ORDERS

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40754/01 SC 4601/01 MASON P GILES JA IPP AJA

Thursday, 11 October 2001 National Roads and Motorists' Association Limited v Geeson & Ors Judgment 1 MASON P: I agree with Ipp AJA. 2 GILES JA: I have had the advantage of reading the judgment of Ipp AJA in draft form. What his Honour says reflects my own reasons for joining in the order dismissing the application for leave to appeal against the decision of Bryson J and dissolving the interim injunction granted by his Honour. I respectfully adopt his Honour's statement of reasons. 3 IPP AJA:

The dismissal of the applicant's application for leave to appeal 4 On 21 September 2001 Bryson J dismissed an application by the applicant for an interlocutory injunction restraining the four respondents from publishing certain information said to be confidential. The information in question was described in the applicant's summons as "the proceedings of the [applicant's] board on 17 September 2001, including board papers, discussions and deliberations at that meeting". Thereafter, on the same day, I granted an interim injunction restraining the fourth respondent from publishing or otherwise disclosing that information and restraining the first, second and third respondents from disclosing to any person "the events and discussions at the meeting of the [applicant's] Board on 17 September 2001 relating to Mr Whitlam's occupation of the chair". 5 On 28 September 2001 this Court dismissed the applicant's application for leave to appeal against the decision of Bryson J and dissolved the injunction granted by me. I set out below my reasons for joining in that decision.

The information alleged to be confidential 6 In order to appreciate the significance of the proceedings of the applicant's board on 17 September 2001, it is necessary to know the context in which that board meeting took place. 7 The applicant is a company limited by guarantee and does not have a share capital. Its principal function is to render roadside and other services to motorists. It has some 1.8 million members. As Bryson J pointed out, the applicant is so large and its activities are so pervasive that it is "part of the general organisation of society in New South Wales". 8 The president of the board of directors of the applicant is Mr N Whitlam. It was public knowledge that for some time there had been dissention amongst the members of the board. A number of board members supported Mr Whitlam. Others did not. The different groups were often in disagreement. The first, second and third respondents, at least at times, were part of the dissentients. 9 In March 2001 the first and third respondents were interviewed on the Channel 9 "Sunday Program" and that program was telecast on 9 September 2001. On 17 September 2001 a meeting of the board of the applicant was held. At the commencement of the meeting, Mr Carter, the chief executive officer of the applicant, read a statement criticising the first and third respondents' appearance on the Sunday Program. He referred to "much negative media surrounding the board". He said that the "turmoil" amongst board members had caused "a drop in positive member perceptions of the company and brand". He said: "[R]esults for the quarter ending in March revealed a radical drop in perceived values of the brand, i.e. that it was being damaged and that damage has continued. The brand tracking study for August noted that the brand had dropped on all positive attributes and increased on its negative attributes by a ratio of 3:1".

Mr Carter also referred to the concerns of employees "at the action of some directors". He said "I strongly believe that in future, if anyone has something to say, they should say it within the board forums". He asserted that the appearance by the first and second respondents on the Sunday Program constituted a breach of the Code of Conduct, applicable to directors of the applicant, which the board had adopted. 10 After Mr Carter had completed reading his statement, the meeting continued. When the item "general business" was reached, the first respondent asked Mr Whitlam "whether he wished to stay as this item of general business deals with the president's position as chair". Mr Whitlam replied that he wished to remain. The first respondent then moved a motion "that in view of the gravity of the charges levelled against the president by the Australian Securities and Investment Commission, … the deputy president take the chair until the ASIC matter has been completed". The "ASIC matter" referred to serious allegations made by ASIC against Mr Whitlam relating to contraventions of the Corporations Act. 11 Mr Whitlam informed the board that he was entitled to chair the meeting and that the first respondent could only move a motion to remove him as president. The second respondent informed the board that a request had been made for Mr Whitlam to stand aside as president and she would make the way the board voted a matter of public record. 12 The first respondent then said that he wished to clarify that he did not want to move a motion to remove the president as chair. He merely wanted the president to stand aside. The second respondent reiterated that the board had an obligation to consider matters put before it by directors and she would be making the vote on the issue public. The first respondent proceeded to put an alternative resolution to the board "that the chair consider standing aside as president of the company until the ASIC matter has been completed". 13 Mr Whitlam responded that, if he did not receive an undertaking from every director present that he or she would not disclose "confidential discussion outside the boardroom", he would seek an immediate injunction. He then asked each director for such an undertaking. All, save for the first, second and third respondents, said that they would give such an undertaking. 14 According to the second respondent, before a vote could be taken on the first respondent's motion, Mr Whitlam abruptly halted the meeting by saying that it had come to an end. As she put it, "there was no vote, no discussion". 15 The injunction claimed by the applicant was of an all embracing and general nature and related to any "papers, discussions and deliberations" at the board meeting on 17 September 2001. In his reasons for judgment, Bryson J divided the information the applicant sought to protect into three categories. These were: (a) Events and discussions relating to Mr Whitlam's occupation of the chair at the board meeting on 17 September 2001; (b) Board papers such as legal advice or other documents tabled at or read to board meetings, or minutes of board meetings; (c) Information ("not very detailed and not very specific") about events at the board meeting of 17 September 2001. 16 Not everything said at a board meeting is necessarily confidential and an obligation of confidence does not arise in respect of every item discussed at a meeting of a company's board of directors: Bennetts v Board of Fire Commissioners of New South Wales (1967) 87 WN (Pt 1) (NSW) 307 at 310; Harkness v Commonwealth Bank of Australia Limited (1993) 32 NSWLR 543 at 552 per Young J. 17 Bryson J observed that "as a general proposition" the information as to the events and discussions at the meetings of the applicant's board was confidential in character. By that phrase I understood his Honour to mean that there was a serious issue to be tried as to whether the information in the three categories he identified was confidential. None of the respondents disputed this finding.

The findings concerning the likelihood of publication 18 An essential element of the applicant's claim for an injunction was that a reasonable apprehension existed that the respondents or any of them would disclose the information claimed to be confidential. Bryson J held that the applicant had proved the existence of such a reasonable apprehension only in respect of the second and fourth respondents and in respect of a limited quantity of the information concerned. It is convenient at this stage to deal with this issue. 19 As regards the first category of the information that the applicant sought to protect, that is, events and discussions relating to Mr Whitlam's occupation of the chair at the board meeting on 17 September 2001, Bryson J held that there was no basis for finding any reasonable apprehension that the first or third respondent would make that information public. He found however that there were reasonable grounds to apprehend that the second respondent would communicate to the media, including the fourth respondent, "part of the Board discussions in general business relating to occupation of the chair". Bryson J held that the fourth respondent would probably publish that information were the second respondent to disclose that information to it. 20 As regards the second category of information, that is, board papers, legal advice, documents tabled or read at meetings of the applicant and minutes of such meetings, Bryson J held, in effect, that there was no reasonable apprehension that the first, second and third respondents would disclose such matters. As regards the fourth respondent, Bryson J held that there was no basis for a finding that it had access to such papers and there was no basis on which it could reasonably be apprehended that the fourth respondent would use or publish any such papers. 21 As regards the third category of information, that is, general information about events at the board meeting of 17 September 2001, Bryson J held that there was no reasonable apprehension that the first or third respondents would communicate such events to the fourth respondent (and, in effect, to anyone else). His Honour held, as regards the second respondent, that there was a reasonable apprehension that she would publish information concerning the matters relating to Mr Whitlam's occupation of the chair, but not other matters relating to the events of the meeting of 17 September 2001. Bryson J held that it was probable that the fourth respondent would receive and publish information (not very detailed and not very specific) about events at that board meeting. 22 To summarise, therefore, Bryson J held that there was no reasonable apprehension that the first and third respondents would publish any of the information the subject of the injunction claimed by the applicant. He held that there was a reasonable apprehension that the second respondent would publish information concerning the events and discussions that took place at the meeting relating to Mr Whitlam's occupation of the chair and the fourth respondent would be likely to publish that particular information and general information about events at that meeting. 23 Ms McColl SC, senior counsel for the applicant, challenged Bryson J's finding that there was no reasonable apprehension that the first and third respondents would disclose any of the information in question. She submitted that the first and third respondents' appearance on the Sunday Program and their refusal to give the undertaking sought by Mr Whitlam at the meeting of 17 September 2001 gave rise to such a reasonable apprehension. 24 Bryson J pointed out that there was no evidence that the first and third respondents had published confidential board business while appearing on the Sunday Program. There was nothing to suggest that his Honour was in error in this respect. It followed that the fact that the first and third respondents appeared on the Sunday Program did not give rise to an inference that they were likely to disclose information confidential to the applicant. 25 As regards the refusal of the first and third respondents to give the undertaking, Bryson J rightly pointed out that there were a number of possible reasons for the unwillingness of the respondents to give such an undertaking. These ranged from a "sense of affront" caused by the demand for the undertaking to a knowledge of the existence of a qualified duty not to disclose the information, which duty rendered the undertaking unnecessary or even undesirable. 26 I concluded that his Honour's reasons in this respect were entirely correct. They demonstrated that no inference could be drawn from the first and third respondents' refusal to give the undertaking that they intended to make some public disclosure in breach of whatever duty of confidentiality was imposed upon them. 27 This conclusion effectively disposed of the application for leave to appeal against Bryson J's decision insofar as it applied to the first and third respondents and I shall say no more about this aspect of the case. 28 Ms McColl also challenged his Honour's finding that the second respondent was only likely to disclose information relating to Mr Whitlam's occupation of the chair at the meeting of 17 September 2001. This challenge, largely, was also based on the second respondent's refusal to give the undertaking called for by Mr Whitlam. What I have said in regard to the first and third respondents' refusal to give that undertaking applies equally to the second respondent's refusal. I was not persuaded by the submissions advanced by the applicant in this respect. Further, there was nothing in the other evidentiary material that suggested that his Honour was wrong in his findings on this issue. 29 Although Ms McColl challenged Bryson J's finding that the only relevant material that the fourth respondent was likely to publish was that falling within the first and third categories of information, she was unable to point to any evidence that suggested that Bryson J erred in this respect.

A qualified obligation of confidentiality: the first category of information 30 The mere fact that particular information is of a confidential character does not impose an obligation of absolute confidentiality on every person in possession of it. For example, ordinarily, a director who knows a trade secret of the company would be entitled to discuss that trade secret with appropriate officers of the company. Senior government officers will often be entitled to discuss matters of great secrecy and great national interest with others who are authorised to receive such information. Moreover, circumstances may arise where a person in possession of confidential information is duty bound to disclose it. Each case depends on its own circumstances and in each case there has to be an enquiry into the extent and limits of the obligation of confidentiality that may be imposed on an individual in regard to particular pieces of confidential information in his or her possession. 31 In this case, the applicant contended that the second respondent was obliged not to disclose the first category of information (that relating to the events and discussions concerning Mr Whitlam's occupation of the chair) because, it was argued, such a disclosure would be in breach of her fiduciary duties as a director of the applicant, or, such a disclosure would contravene ss 182 and 183 of the Corporations Act, or the Code of Conduct applicable to the applicant's directors. 32 The basis of the applicant's case against the fourth respondent was not expressly stated but, I think, was assumed by all concerned to be that an injunction would lie against the fourth respondent if it were established that it was a third party assisting a confidant (namely, one or other of the first three respondents) in committing a breach of confidence, that is, by publishing information known to be confidential: Attorney-General v Guardian Newspapers Limited & Ors [1987] 3 All ER 316 at 327 per Sir Nicolas Browne-Wilkinson V-C. 33 It was rightly accepted by Ms McColl that, to establish a breach of fiduciary duty on the part of the second respondent, the applicant had to show that the disclosure of the first category of information would be contrary to the best interests of the applicant. 34 Reliance on sub-sections 182 and 183 of the Corporations Act required the applicant to establish that publication of the information in question by the second respondent would be an improper use of her position as director, either to gain an advantage for herself or someone else, or to cause detriment to the applicant. 35 The Code of Conduct upon which the applicant relied did not take the matter significantly further. Clause 13 thereof provided that it would be improper for directors to disclose confidential information received by them in the course of directorial duties unless the disclosure had been duly authorised by the applicant itself. Clause 14 provided that directors must not disclose the content of discussion at board 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…". Clause 15 provided that, subject to prior discussion with the president and notification to the board, "in the exceptional circumstances where it is in the interests of the company as a whole for disclosure of particular discussions [of board meetings] to be made public", a director may publicly disclose the contents of those discussions "if the director honestly and reasonably believes that it is in the best interests of the company as a whole to do so". Clause 16 provided that "where a decision is not unanimous, a dissenting director may disclose the fact that he/she dissented". 36 The argument of the second respondent (as supported by the fourth respondent) in essence was that it was in the interests of the applicant as a whole that she disclose to members the events and discussions relating to Mr Whitlam's occupation of the chair at the board meeting on 17 September 2001. This, it was submitted, answered the applicant's contention that the disclosure would be a breach of fiduciary duty. 37 The second and fourth respondents submitted further that disclosure of the events and discussions relating to Mr Whitlam's occupation of the chair would not be "improper" in any respect and would not be in breach of ss 182 and 183 of the Corporations Act. 38 As regards the Code of Conduct, the second and fourth respondents submitted that a disclosure of events and discussions relating to Mr Whitlam's occupation of the chair largely would be to members who had a legitimate interest in the subject matter (and, hence, within cl 14). Further, they submitted that "exceptional circumstances" existed within the meaning of cl 15 and the discussion that had taken place at the meeting of 17 September 2001 constituted the requisite prior discussion with the president and notification to the board. They submitted that the evidence as a whole revealed that the second respondent "honestly and reasonably believe[d] that it [was] in the best interests of a company as a whole" to disclose the information in question. It was also submitted that, at least to a degree, the disclosure was authorised by cl 16. 39 It is unnecessary and, in my view, undesirable, to canvass in any detail the merits of the arguments so raised by the second and fourth respondents in regard of the first category of information. It is sufficient to point to the following:

(a) The information in question did not relate to trade secrets or to particular business of the applicant;

(b) The information illustrated a particular instance of dissention amongst board members (the existence of which was well-known to the public in consequence of considerable media comment in the past) and that it continued to exist;

(c) To the extent that the information caused embarrassment to individual board members, that was irrelevant to the interests of the applicant;

(d) As Bryson J pointed out, an election for half the board membership, to hold office for four years, was to commence in October 2001;

(e) The conduct of Mr Whitlam at the meeting of 17 September in regard to his occupancy of the chair, and the extent to which it was supported by certain board members, was a matter that members of the applicant might view as having a significant bearing on the propriety of decisions taken at that meeting and also on the suitability of those involved to be directors of the applicant.

(f) The evidence was capable of establishing the requisite belief on the part of the second respondent to enable her to rely on cl 15 of the Code of Conduct. 40 In the circumstances, it was strongly arguable that it would be in the interests of the applicant as a whole, and entirely proper, and within the Code of Conduct, for the second respondent, as a director of the applicant, to advise the members of the events and discussions relating to Mr Whitlam's occupation of the chair at the board meeting on 17 September 2001 (and, particularly, the fact that, notwithstanding the actions taken by ASIC, Mr Whitlam had, in effect, opposed the motion proposed by the first respondent and caused the board meeting to be terminated with very little discussion, if any, being allowed on the motion and without a vote being held). 41 Underlying the view expressed in the preceding paragraph is the proposition that it would be in the interests of the applicant as a whole, particularly in the light of the pending election, for members to be fully informed as to these events so that they would be able to consider, properly, what action should be taken in that connection. Achieving such a situation might readily be thought to be beneficial to the long-term health of the company, notwithstanding any exacerbation of the damage of the kind to which Mr Carter referred in the course of the meeting of 17 September.

Disclosure of the first and third categories of information to the public 42 If the first and third categories of information were to be disclosed in the media, as contemplated by the fourth respondent, members of the public who were not members of the applicant would come into possession thereof. 43 Having regard to the very large number of members of the applicant, I accepted the submission advanced by Mr Reynolds SC, senior counsel for the fourth respondent, that the only practical way in which the second respondent could advise members of the information she wished to publish (that is, the first category of information) was through the press. This would inevitably result in non-members coming into possession of that information. 44 There was little focus in argument on the potential disclosure by the fourth respondent of the third category of information, but the argument of the fourth respondent was that, to the extent that such disclosure (and that of the first category) would be to members of the applicant, it would be in the overall interests of the applicant and, therefore, would not be in furtherance of a breach of confidence, and to the extent that the disclosure would be to the public, it would be in the public interest for such disclosure to be made (and, also, not in furtherance of a breach of confidence). 45 Bryson J, indeed, took into account the public interest in the relevant information being disclosed. His Honour pointed in this respect to the very large body of membership of the applicant and the important part it plays in society in New South Wales. 46 Ms McColl submitted that his Honour erred in having regard to public interest considerations and relied on David Syme & Co Limited v General Motors - Holden's Limited [1984] 2 NSWLR 294. In that case, this Court refused to take into account considerations of public interest in determining whether an injunction against disclosure of trade secrets should be granted. Hutley AP said at 306: "If the correct way to approach the matter were to weigh the interest of the respondent in confidentiality of its technical and project information and the interest of the public to know, represented by the professional disseminator of information, namely, the newspaper, there could be only one answer: industrial progress is more worthy than satisfied curiosity. However, in my opinion, there is no question of weighing one against the other at all. The proprietary right in its confidential information of this kind is not to be weighed against other circumstances, except in cases where questions of iniquity are involved." 47 In my view, however, the circumstances of the present case are to be distinguished from those in David Syme & Company Limited. As Bryson J pointed out, the affairs of the applicant are of significance to society in New South Wales as a whole. The way in which the applicant's board of directors conducts its affairs could materially affect the roadside and motoring facilities available to the public in this State. The real interest that the public would have in such a topic is self-evident, particularly immediately prior to a board election. It is not comparable with the idle curiosity the public in general might have about the secret manufacturing processes of a well-known industrial company. 48 Moreover, in light of the extent to which the affairs of the applicant are of direct and immediate concern to the members of the public, it is arguable that considerations analogous to those involving freedom of communication in relation to public affairs apply (cf Australian Capital Television Pty Limited v The Commonwealth (1992) 177 CLR 106). 49 In all these circumstances I do not think that Bryson J erred in taking into account the public interest in the dissemination of information concerning what took place at the board meeting on 17 September 2001 as part of the factors relevant to whether there was a serious question to be tried.

The existence of a serious issue to be tried 50 The arguably confidential nature of the information in question and the obligation of confidentiality arguably owed by the second respondent supported the applicant's case that it was entitled to protect the information against disclosure. 51 On the other hand, the interest of the applicant in ensuring that its members were fully informed as to material matters concerning the conduct of board members (particularly in light of the pending election), the public interest in those matters, and the arguable right (or even duty) of the second respondent to disclose the information were powerful countervailing considerations. 52 In effect, Bryson J held that the matters referred to in the preceding two paragraphs resulted in there being a serious question to be tried as to whether a disclosure of the first category of information by the second respondent and a publication of the first and third categories of information by the fourth respondent would be in breach of the obligations of confidentiality that each owed the applicant. In my opinion, his Honour was entirely correct in so holding.

The balance of convenience (or injustice) and the approach of an appellate court 53 While Bryson J did not expressly refer to the concept of the balance of convenience, an analysis of his reasons reveals that he went to considerable lengths to determine whether the matters relied upon by the respondents outweighed the need, asserted by the applicant, to preserve the confidentiality of the information. There can be no doubt that this was the correct approach. 54 The choice before his Honour lay between refusing the injunction, which would result in permanent and irrevocable loss of confidentiality in the information concerned (with concomitant damage to the applicant), or granting the injunction, which would result in the members of the applicant not being informed of the events and discussion at the meeting in question at a time when election of members was pending. A balancing exercise in determining the overall interests of justice in these circumstances is indeed what his Honour was called upon to conduct: Attorney-General v Guardian Newspapers Limited at 351. Bryson J determined the balance in favour of the respondents. 55 On appeal, the approach of the Court should be as expressed by Sir John Donaldson MR in the Court of Appeal in Attorney-General v Guardian Newspapers Limited at 335-336: "[T]he appeal is against the exercise of a judicial discretion and it is not sufficient that we may think that, faced with this problem, we would have exercised the discretion differently. Initially our function is one of review only . (See Hadmor Productions v Hamilton [1983] 1 AC 191 at 220 ). This Court, as an appellate court, may not intervene, unless it is satisfied that the judge exercised his discretion on a wrong principle or that, the judge's decision being so plainly wrong, he must have exercised his discretion wrongly. ( See G v G [1985] 1 WLR 647 at 652)."

See also Lord Oliver in the House of Lords in Attorney-General v Guardian Newspapers Limited at 370. 56 Bryson J took into account several factors in determining the balance of convenience. First and foremost amongst these were those to which he had regard, at the earlier stage of the inquiry, when determining that there was a serious issue to be tried. That is to say, in balancing the extent of the injustice that would arise depending on whether the injunction be granted or refused, Bryson J had regard, again, to the desirability of members of the applicant being informed of the events and discussions relating to Mr Whitlam's occupation of the chair at the board meeting on 17 September 2001, to the public interest in such information being published, and to the fact that that a disclosure by the second respondent of the first category of information arguably would not amount to a breach of her fiduciary duties or improper conduct under the Corporations Act or a breach of the Code of Conduct. 57 Bryson J also had express regard to the detriment the applicant would suffer were an injunction not to be granted. In so doing, he took into account the relative lack of novelty in the first category of information and to the fact that elements of private concern or embarrassment to particular board members of the applicant were irrelevant. 58 Ms McColl rightly pointed out that arguably the applicant was entitled to an injunction even without proof of detriment (see for example Attorney General (UK) v Heinemann Publishers Pty Ltd (1987) 10 NSWLR 86 at 190; sed contra Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 50; see also Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 at 438). His Honour, nevertheless, in my view, was entitled to have regard to the potential detriment and benefit to the applicant that depended upon whether an injunction would be granted or refused. These matters remained relevant to the determination of the balance of convenience. 59 After weighing all these matters in the balance, Bryson J concluded that the interests of justice required the application for an injunction to be dismissed. 60 Bryson J committed no error of principle in his general approach to the question before him. He took into account all relevant factors and did not take into account any irrelevant factors. There was evidence before him that supported the factors that he did take into account. I was not persuaded that his Honour erred in the exercise of his discretion in any respect. 61 For the above reasons, I joined with the other members of the Court in dismissing the application for leave to appeal against the decision of Bryson J. **********

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Judgment (27 paragraphs)

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Cases Cited (5)