COURT

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

CWDS

  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.

HDNT

  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.

HRNG

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 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

JUDGE1

  The applicant, Tom Molomby, is and has been since December l983, a Director
of the second respondent, Australian Broadcasting Corporation.  The first
respondent, Geoffrey Whitehead, is and has been since January l984, the
Managing Director of the Corporation.
         By letter to Mr. Whitehead dated 2 September l985, Mr. Molomby
requested access to certain of the Corporation's documents.  In subsequent
correspondence, to be detailed shortly, Mr. Whitehead supplied Mr. Molomby
with some only of the documentation sought.  On 5 September l985, Mr. Molomby
instituted these proceedings claiming orders for access to the documents in
question.  He seeks to rely upon the provisions of the Administrative
Decisions (Judicial Review) Act, l977 ("the Judicial Review Act").
Alternatively, he claims to be entitled to inspect the documents under the
general law by virtue of his office as a Director of the Corporation.
         There is little, if any, dispute as to the primary facts.  However,
something may depend upon the proper construction to be placed upon the terms
of the correspondence which passed between Mr. Molomby and Mr. Whitehead
between December l984 and September l985 and the inferences to be drawn in
that connection, since what was then said is central to the dispute which has
arisen;  it will thus be necessary to consider the letters in some detail.
         The exchange of correspondence commenced by letter dated l9 December
l984 written by Mr. Molomby to Mr. Whitehead:

      "As you know, I am most concerned about the
       situation of the Legal Department.  In addition
       to matters I have raised previously, I am
       concerned in particular by the memorandum of
       fees presented early this year by (a Professor
       of Law there named) for some $34,OOO, for work
       done in late l982/early l983 in relation to the
       ABC Bill in conjunction with Mr J D Traill, QC.
       My recollection is that the Principal Legal
       Officer approved or recommended the account for
       payment, and that in addition to the delay of a
       year in submitting the account, there were
       several questionable aspects:

       (a)  there was no known record of the
            considerable amount of work which should
            have been produced for this sum;

       (b)  there was no apparent indication of what
            the work would have been, in the light of
            the work which had already been done by Mr
            Traill and (the Professor);

       (c)  Mr Traill, who had died just before (the
            Professor) presented his memorandum, had
            submitted memoranda for the earlier period
            up to December l982, over which both he and
            (the Professor) had given advice of which
            there is a record, but not for the later
            period claimed by (the Professor).

       In addition, if as I suspect, the $34,OOO has
       not been paid, it is strange that no further
       approach has been made, if indeed none has.

       I would appreciate confirmation of the current
       situation in relation to this matter.  I do not
       feel comfortable in letting it lie unresolved."
         Mr. Whitehead replied by letter dated l5 February l985. Mr. Molomby
was given details of a payment made on 3l December l982 of $37,85O for
services rendered by the Professor in the period from 2O September l982 to 3
December l982.  The services apparently consisted of advice given in respect
of the Bill which was enacted as Australian Broadcasting Corporation Act, l983
("the Corporation Act").  Mr. Whitehead said that there was no record in the
Finance Department of any further payments to the Professor in this connection
until after the Corporation Act came into effect.  (It was assented to on l
June l983.)
         Mr. Molomby was not satisfied with this response.  On l9 February
l985, he wrote to Mr. Whitehead saying:

      "...the amounts I am concerned about relate to a
       later period, I believe the one immediately
       following that itemised in your letter.  As I
       pointed out, it is not a question of amounts
       paid - I do not know whether they have been; and
       hope they have not - but amounts claimed.  Since
       writing I have discovered in catching up on some
       filing the PLO's covering memo for the accounts
       involved, which I attach..."

         The attached memorandum from the principal legal officer (P.L.O.)
dated 20 January l984 addressed the Department of Finance as follows:

      "You will recall that in September l982, Mr. J.D.
       Traill Q.C. together with (the Professor) were
       retained to advise on provisions of the
       Australian Broadcasting Bill and transitional
       Bill.  This work extended over a considerable
       period of time as there was much to be done
       particularly in relation to Part 8, the Section
       dealing with the establishment of the office of
       Complaints Commissioner.

       Mr. Traill's fees were submitted together with
       some of (the Professor's) fees.  (The Professor)
       has only just brought to my attention that he
       overlooked submitting all his fees for that
       period.  He has now done so and it would be
       appreciated if the cheque and the sum of $33,75O
       would be drawn in favour of (the Professor) and
       sent to (his address)."

         On l8 March l985, Mr. Molomby wrote to Mr. Whitehead seeking access
to documents concerning certain other matters:

      "There are four matters on which I would like
       information:

       1.   The Financial Report presented to the
            meeting of 3l January referred on page 6 to
            "a recent third party settlement claim of
            $350,000".  I would like details of this.

       2.   The Wran/Four Corners case.  I would like a
            copy of all the pleadings in this case and
            all the legal advice we received.

       3.   I have heard from other sources of an
            action taken against us in the second half
            of l983 by two Melbourne Q.C.'s, Messrs.
            Jack Lazarus and John Walker.  I would like
            to see the file on this.

       4.   Mr. Frank Costigan, Q.C., the Royal
            Commissioner, took action against us some
            time, I believe, in l983.  I would like to
            see the file on this."

         By letter dated 8 May l985, Mr. Whitehead raised with Mr. Molomby a
statement said to be attributed to Mr. Molomby in a newspaper report that
"inadequate information is often provided to the Board by ABC Management."
Mr. Whitehead suggested a discussion between them.  Mr. Molomby responded by
letter dated 20 May l985 in which he denied making the statement attributed to
him but foreshadowed the preparation of "an outline of (his) concerns."  This
outline took the form of a lengthy letter to Mr. Whitehead dated 28 May l985.
Amongst other things, Mr. Molomby requested access to documents of which
copies had apparently been circulated to certain Board members only (see para.
numbered 4). A complaint was made that inadequate information had been
furnished in respect of a proposal to engage Mr. Max. Walsh (see para.
numbered 7).  Mr. Molomby continued:

      "I am sure that I have said enough to show you
       the extent of my concern about this issue.  I
       trust that you will tell me if you believe that
       anything I have said is incorrect.  Although I
       have mentioned my general concern from time to
       time at meetings, I have chosen not to make an
       issue of it, in the interests of getting on with
       badly needed work. Indeed, one of the basic
       problems caused by inadequate information is
       that it is often impossible to correct the
       situation during a meeting, because a
       disproportionate amount of time is needed to
       pursue through questions information which
       should have been provided anyway...I would find
       it helpful to have your considered comments on
       these issues before we have the discussion you
       have suggested."

Mr. Whitehead replied on 28 June l985 in these terms:

      "...In the light of yesterday's discussions about
       Board/Executive relationships, I suggest it
       might be more fruitful if you join the Executive
       Directors for a small lunch after one of our
       Friday meetings, soon after my return from
       overseas, when we should be able to resolve our
       mutual concerns."

         To this invitation, Mr. Molomby responded on 20 August 1985 as
follows:

      "...I will naturally be pleased to accept the
       sort of invitation you suggest for a suitable
       day.

       I must say, however, that I am disappointed that
       you have not answered either of the queries
       which I posed in my letter of 20 May, nor the
       request in item 4 of my letter of 28 May.
       Indeed, in addition to these, there are other
       outstanding requests which I have made for
       information which have not been acknowledged or
       replied to - my letters of l9 February, and 4
       April, copies of which I attach for convenience.

       Given the rather unusual delay which has
       accompanied all these, I think it is reasonable
       to ask for your assurance that such delay in
       supplying information requested will not occur
       again, and to seek a firm indication by the end
       of this week whether or not you intend to comply
       with these requests."

         Mr. Whitehead's response was given by letter dated 26 August 1985:

      "I am always happy to provide Board Members with
       relevant information they request.  It is,
       naturally, easier to do so, if the nature of the
       information they are seeking is conveyed to me
       precisely;  and if any additional requests, can
       be followed up closer to the original letter...

       So far as item 4 of your letter of 28 May is
       concerned, I reject your allegation that it is
       improper for me to circulate copies of some
       correspondence to some Board Members (notably
       the Chairman and Deputy Chair), and not others.
       You will recall the Board resolution of 3l May,
       l984, which specifically adopted guidelines
       stating:

       '1.  Where Senior Management is faced with
            editorial decisions concerning political or
            controversial matters of a potentially
            significant nature, the Chairman and Deputy
            Chair, or the Acting Chair and one other
            non-executive Board member, shall be
            consulted.

        2.  At the discretion of those directors
            consulted, the views of other members of
            the Board may be sought.'"

         Mr. Molomby then wrote the letter dated 2 September l985, the subject
of the present claim for relief:

      "I have received your letter dated 26 August,
       1985.

       It does not answer satisfactorily any of my
       requests.  Indeed, the way in which it
       misconstrues or misunderstands what I have said
       - considered with similar misconstructions and
       misunderstandings throughout the whole history
       of correspondence on these matters - leads me to
       conclude that your failure to cooperate is a
       deliberate obstruction of my rights as a
       Director...

       The requests in the last two paragraphs of my
       letter of 20 May, l985 were not answered in your
       letter of 28 June.  The resolution of the Board
       of 3l May, l984 which you quote in relation to
       my letter of 28 May, is nothing to the point.  I
       did not allege, as you claim, that it was
       improper for you to circulate copies of some
       correspondence to some Board members and not
       others;  my allegation is that it is improper
       for you to refuse my request to be supplied with
       copies of all documents of which you circulate a
       copy to any other member of the Board.

       In the light of what I can only conclude is your
       deliberate obstruction, I regret that I now have
       no choice but formally to request that, in the
       exercise of your duties under Section lO of the
       Australian Broadcasting Corporation Act l983,
       you provide me, by noon on Wednesday, 4
       September, l985, the following documents:-

       1.   All documents relating to claims for and
            payment of fees to (the Professor) from
            l982 to the present date;

       2.   Copies of all documents of which you have
            supplied a copy to any other Board member
            than myself, since 28 May, l985 (and I
            require an undertaking that you will
            continue to provide me with such copies on
            future occasions when you provide a copy of
            any document to any other Board member);

       3.   All documents relating to the four matters
            referred to in my letter to you dated l8
            March, l985;

       In addition to the above, there are four other
       matters on which I would like documents by the
       same time:

       4.   During the week before last, I asked Anna
            to obtain for me the documents relating to
            the agreement made with Irving Warren which
            was reported to the Board meeting of 3l
            July.  I understand that this request was
            passed on to you in that week, but I have
            not received the documents.

       5.   At the Board meeting of 3l July, concern
            was expressed about an article written by
            Max Walsh which you had not at that stage
            had the opportunity to read.  It was agreed
            that you would look into the matter and
            report back to the last Board meeting, but
            this did not occur.  I would like a copy of
            the contract with Mr. Walsh.

       6.   In giving your report on the current
            industrial situation at the Board meeting
            last Friday, you read from a document.  I
            would like a copy of that.

       7.   You will recall that during the Board
            meeting last Friday I asked for a copy of
            the agreement between ourselves and the
            Australian Opera relating to the recent
            productions of A Masked Ball and the
            Sutherland/Horne concert."

         By letter dated 2 September l985 in response to the request made in
item 7 of Mr. Molomby's letter of even date, Mr. Whitehead provided an
information paper on the industrial dispute.
         Mr. Whitehead dealt further with Mr. Molomby's request by letter
dated 5 September l985:

      "Further to my interim letter of 2 September, I
       would like to make the following points:

       1.   Papers relevant to matters of current
            consideration by the Board are, and will
            continue to be, supplied to Board Members.

            I have already supplied the Board with the
            information paper on the current industrial
            situation, listed as your Item 6, and I am
            in process of assembling the papers you
            requested relating to Item 5 (Max Walsh)
            and Item 7 (Australian Opera).  So far as
            Item 5 is concerned:  you are perfectly
            correct - I should have made a verbal
            report under "matters arising from the
            Minutes".  To rectify that oversight, I now
            record that I discussed the matter with
            Director Television and we did not see any
            reason to raise the issue directly with Mr.
            Walsh.  I am also considering your request
            under Item 4 (Irving Warren).

       2.   I do not think it is desirable that I
            should be restricted from dealing with
            occasional matters directly with individual
            Board Members;  nor do I accept that you
            should necessarily have copies of any such
            papers sent to those members;  I therefore
            refuse your request listed as Item 2.

       3.   Your request for several documents in
            relation to the Principal Legal Officer,
            under your Item l and 3, go back to l982.
            You also mention your letter of l9
            February, and your wish to sight other
            documents for purposes you have never
            explained to me, but which I assume may
            also be related to the work of the
            Principal Legal Officer.

            A full examination of all these matters is
            possible:  however, I think it would be
            more appropriate for this to be a matter
            for the Board as a whole.  I therefore
            suggest that you discuss these points with
            the Chairman, and ask if he is prepared to
            have the matter placed on the agenda for
            the next Board Meeting.

       In conclusion, may I add that I do not think it
       is appropriate for one Board Member to attempt
       to direct me in terms of Section lO of the l983
       Broadcasting Act."

         Finally, by letter dated l2 September l985, Mr. Whitehead made
available to Mr. Molomby a copy of the contract with Mr. Walsh (see item 5 in
Mr. Molomby's letter dated 2 September) and a copy of the contract with the
Australian Opera (see item 7 of that letter).  Mr. Whitehead concluded:

      "I believe that matters requested in your points
       l-4 should be discussed by the Board at the l9
       September Meeting."

         The matters were not, it seems, considered at that meeting although I
was informed that it is the present intention of the Chairman of the Board
that these questions be raised at a Board meeting to be held at the end of
this month.

The claim for relief under the Judicial Review Act

         By s.5(l) of the Judicial Review Act, a person who is aggrieved by a
decision to which the Act applies may apply to the Court for an order of
review on one or more of the grounds there stated.  Section 3(l) defines
"decision to which this Act applies" as a "decision of an administrative
character made...under an enactment..."   Further, a reference to the making
of a decision includes a reference to giving or refusing to give a consent or
permission (s.3(2)(b)).  In support of this claim for relief, Mr. Molomby
contends that in refusing him access to corporate documents, Mr. Whitehead
made a decision under an enactment, viz. the Corporation's constating statute,
the Australian Broadcasting Corporation Act, l983 ("the Corporation Act")
within the meaning of the Judicial Review Act.
         On the other hand, the respondents say that no relevant decision has
yet been made:  they claim that all that has happened is that the whole matter
has been referred to the full Board of the Corporation for decision;
alternatively, the respondents argue that, if Mr. Whitehead had made a
decision, it was not made under the Corporation Act.  On either view,
according to the respondents' argument, the consequence is that the Judicial
Review Act can have no application here.
         In order to understand the respective submissions of the parties on
this point it is necessary first to mention the relevant provisions of the
Corporation Act and then to describe the general nature of the case sought to
be made by Mr. Molomby.
         The Charter of the Corporation is contained in s.6 of the Corporation
Act.  The Corporation's functions include the provision, in accordance with
certain stated principles, of broadcasting and television programs within
Australia and their transmission to countries outside Australia (s.6(l)).  The
Corporation is to take account of a number of specific considerations (see
s.6(2)(a)).  Nothing in s.6 shall be taken to impose on the Corporation a duty
that is enforceable by proceedings in a court (s.6(4)).
         There shall be a Board of Directors of the Corporation which shall be
constituted as provided by Part III (s.7).  By s.8(l) it is the duty of the
Board:

      "(a)  to ensure that the functions of the
            Corporation are performed efficiently and
            with the maximum benefit to the people of
            Australia;

       (b)  to maintain the independence and integrity
            of the Corporation;

       (c)  to ensure that the gathering and
            presentation by the Corporation of news and
            information is accurate and impartial
            according to the recognized standards of
            objective journalism;  and

       (d)  to ensure that the Corporation does not
            contravene, or fail to comply with -

             (i)  any of the provisions of this Act
                  or any other Act that are
                  applicable to the Corporation;  or

             (ii) any directions given to, or
                  requirements made in relation to,
                  the Corporation under any of those
                  provisions."

         Nothing in s.8 shall be taken to impose on the Board a duty that is
enforceable by proceedings in a court (s.8(3)).
         There shall be a Managing Director of the Corporation who shall be
appointed and hold office as provided by Part III (s.9).  Subject to s.lO(2),
the affairs of the Corporation shall be managed by the Managing Director
(s.lO(l)).  By s.lO(2), the Managing Director shall, in managing any of the
affairs of the Corporation and in exercising any powers conferred on him by
the Act, act in accordance with any policies determined, and any directions
given to him, by the Board.
         Part III of the Corporation Act (ss.l2-24) deals further with the
positions of the Board and the Managing Director.  The Board shall consist of
the Managing Director and not less than 6 nor more than 8 other Directors
(s.l2(l)).  A non-executive Director shall be appointed by the
Governor-General and, subject to s.l6 (resignation) and s.l8 (termination for
cause), holds office on a part-time basis for such period, not exceeding five
years, as is specified in the instrument of his appointment, but is eligible
for re-appointment (s.l2(2)).   The Governor-General shall appoint one of the
non-executive Directors to be the Chairman of the Board (s.l2(3)).  A person
shall not be appointed as a non-executive Director unless he appears to the
Governor-General to be suitable for appointment by reason of his having had
experience in connection with the provision of broadcasting or television
services or in communications or management, by reason of his having expertise
in financial or technical matters, or by reason of his having cultural or
other interests relevant to the oversight of a public organization engaged in
the provision of broadcasting and television services (s.l2(5)).
         Mr. Molomby was appointed a Director of the Corporation from l5
December l983 for a term of two years expiring on l4 December next.  He is a
law graduate and a barrister.  He was appointed to the Board on the nomination
of the Minister administering the Corporation Act as a consequence of an
election held by staff of the Corporation
         The case put on behalf of Mr. Molomby is that the documents he seeks
are corporate material;  that, by virtue of the powers of management conferred
upon him by s.lO(l) of the Corporation Act, Mr. Whitehead had the power to
decide whether access to the material should be granted or denied;  that Mr.
Whitehead decided to refuse or at least to defer access;  so that he made a
decision of an administrative character under the Corporation Act.  Then Mr.
Molomby says that Mr. Whitehead committed an error of law within the meaning
of s.5(l) of the Judicial Review Act, arguing that as an incident to his
office as a director, Mr. Molomby has a prima facie right or power to see
corporate documents and that no reason exists here for displacing that prima
facie right (see Edman v. Ross (l922) 22 S.R. (N.S.W.) 35l per Street, C.J. in
Eq. at p.36O;  Parker v. National Roads & Motorists Association, Supreme Court
of New South Wales, Waddell, J., unreported, 2l October l985 at p.6).
         It is common ground between the parties that if Mr. Whitehead did
make a decision, that decision was managerial or administrative in character
(see Australian Capital Territory Health Authority v. Berkeley Cleaning Group
Pty. Ltd. (l985) 60 A.L.R. 284 at p.286).  The real debate centred on whether
Mr. Whitehead's conduct was something done under the Corporation Act or, as
the respondents argued, merely action on the part of Mr. Whitehead which
required no statutory sanction (cf. Hudson v. Venderheld (l968) ll8 C.L.R. l7l
at p.l75.)
         In my opinion, Mr. Whitehead's conduct may properly be characterised
as a "decision" made "under" an enactment.  Plainly enough, a decision of some
kind was involved.  On one aspect, there was a decision to refuse access to
certain documents as in the case of item 2 of Mr. Whitehead's letter dated 5
September. On another aspect, as in the case of item 3 in that letter, there
was a decision to defer access at least until the Board had considered the
position.  What matters for immediate purposes is that both aspects were
decisional.  The more difficult question is whether Mr. Whitehead's decisions
were "under" an enactment.
         It has been held in this Court that "under" in the present context
means "in pursuance of" or "under the authority of" (see The Minister for
Immigration and Ethnic Affairs v. Mayer, High Court, unreported, 5 November
l985 per Gibbs, C.J. at p.4 and the cases there cited ).  In Glasson v. Parkes
Rural Distributions Pty. Ltd. (l984) 58 A.L.J.R. 47l, a certificate authorised
by a State statute was held not to be "under" a Federal enactment
notwithstanding that the certificate had a practical effect on the rights of a
person under Commonwealth law:  the Federal enactment was not the source of
the relevant power nor did it give the decision any legal effect (at
pp.473-4).  On the other hand, it was held in Mayer, supra, by a majority
(Mason, Deane and Dawson, JJ), that the Judicial Review Act can apply to a
decision which is conferred by a Federal law even merely by implication (at
p.l5.)
         The Corporation Act, it is true, does not confer upon Mr. Whitehead
in any special terms a particular power to decide whether to grant or refuse
access to corporate documents.  But s.lO(l) does grant him a general power of
the management of the affairs of the Corporation and something can be "under"
an enactment if done pursuant to a generally expressed power.  The contrary
argument was rejected by the Full Federal Court in Australian Capital
Territory Health Authority v. Berkeley Cleaning Group Pty. Ltd., supra, (at
p.287):

      "The Judicial Review Act does not draw any
       distinction, or permit any to be drawn, between
       powers broadly expressed and those expressed in
       more detail.  The statute is a remedial one,
       obviously intended to be of wide scope, and
       within its limits very comprehensive, and it
       would be contrary to its purpose to read down
       'under an enactment' in the way suggested."

         In the present case, in my opinion, it may properly be said that, in
the exercise of the management powers vested in him by s.lO(l), Mr. Whitehead
decided that documentation in his possession or under his control should not
be released to Mr. Molomby.  The legal source of the power to make that
decision must be s.lO(l), however generally its empowering provisions may have
been expressed.  It follows, in my view, that the decision to refuse or at
least to defer access was made "under" the Corporation Act.  It must also
follow that the matter falls within the definition of "decision" in s.3(l) of
the Judicial Review Act.
         In my opinion, the line of authority instanced by Hudson v.
Venderheld, supra, relied on by the respondents should be distinguished for
present purposes. There, the different question arose whether a limitation
provision in a local government statute was available to a council employee
when driving a council vehicle on a public road - s.58O of the Local
Government Act, l9l9 (N.S.W), which  imposed a limitation period of l2 months
in respect of any action brought "for anything done...under this Act" was held
to be inapplicable. But the reasoning adopted cannot provide any proper
analogy here. Barwick, C.J., Kitto, Taylor and Owen, JJ. explained the basis
for their conclusion as follows (at p.l75):

      "...the Act expressly empowered the Council to
       supply electricity and to maintain electric
       wires erected in connexion therewith, and this
       would carry with it by necessary implication a
       statutory authority to do all those incidental
       acts necessary to the exercise of that power
       which the Council and its employees could not
       lawfully perform without such an authority.  But
       as Kitto J. pointed out in Board of Fire
       Commissioners (N.S.W.) v. Ardouin, such an
       implication '...arising as it does from
       necessity, must be limited by the extent of the
       need.  There can be no implication of a grant of
       power to do, in the performance of the duty,
       what is in any case lawful.'...

       In driving along a public highway the defendant
       was doing something which the law - apart
       altogether from the Local Government Act - gave
       him a right to do.  It is true that he was
       acting on the instructions of an officer of the
       Council and in the course of his employment, but
       that does not mean that what he was doing was
       being 'done under' the Local Government Act."

         Thus, the source of the defendant's right to drive was not found in
any express provision of the statute or in any implication therefrom.  By
contrast, in the present case, Mr. Whitehead's right to the possession or
control of the Corporation's documents and thus his decision to decline access
spring directly from s.lO(l) of the Corporation Act.  Unlike driving a vehicle
along a public road, Mr. Whitehead's title to the control of the material
depended upon the Federal statute. The respondents' submission to the contrary
must be rejected accordingly.
         It is next necessary to determine whether any of the grounds of
review of Mr. Whitehead's decision provided for by s.5(l) of the Judicial
Review Act have been made out by Mr. Molomby.  A number of grounds were
advanced in argument but, in the circumstances, it is only necessary to deal
with one: s.5(l)(f) - "that the decision involved an error of law, whether or
not the error appears on the record of the decision."
         In my opinion, in declining access to Mr. Molomby, Mr. Whitehead fell
into an error of law.  The error consisted of a failure to recognize that, as
a Director of the Corporation, Mr. Molomby had a prima facie entitlement to
access to the corporate material and that, in the absence of good cause to the
contrary, and none existed here, Mr. Molomby should be permitted to inspect
the documents nominated by him.
         The right or power of a director of a company or corporation to
inspect corporate material in aid of the proper execution of his fiduciary
obligation to advance the interests of the company or corporation is well
recognized (see Burn v. London & South Wales Coal Company (l89O) W.N. 2O9; Rex
v. Southwold Corporation; Ex parte Wrightson (l9O7) 97 L.T. 43l;  Rex v.
Hampstead Borough Council, Ex parte Woodward (l9l7) ll6 L.T. 2l3; Edman v.
Ross, supra;  Rex v. Barnes Borough Council, Ex parte Conlan (l938) 3 All E.R.
226; Funerals of Distinction Pty. Ltd. and the Companies Act (l963) N.S.W.R.
6l4; Bennetts v. Board of Fire Commissioners of New South Wales (1967) 87 W.N.
(l) 307; Conway v. Petronius Clothing Co. Ltd. (1978) 1 W.L.R. 72;  Berlei
Hestia (N.Z.) Ltd. v. Fernyhough (l98O) 2 N.Z.L.R. l5O; Birmingham City
District Council v. O. (l983) A.C. 578).
         These authorities indicate that there are some exceptions to the
general rule.  For instance, as arose in the Birmingham Case, supra, it may be
necessary for a director of a corporation or a councillor of a council who is
not a member of a committee dealing with a particular matter to show "good
reason" for access - a "need to know".  As Lord Brightman put it (at p.594):

      "In the case of a committee of which he is a
       member, a councillor as a general rule will ex
       hypothesi have good reason for access to all
       written material of such committee.  So I do not
       doubt that each member of the social services
       committee is entitled by virtue of his office to
       see all the papers which have come into the
       possession of a social worker in the course of
       his duties as an employee of the council.  There
       is no room for any secrecy as between a social
       worker and a member of the social services
       committee.

       In the case of a committee of which the
       councillor is not a member, different
       considerations must apply.  The outside
       councillor, as I will call him, has no automatic
       right of access to documentary material.  Of
       him, it cannot be said that he necessarily has
       good reason, and is necessarily entitled, to
       inspect all written material in the possession
       of the council and every committee and the
       officers thereof.  What Donaldson L.J. described
       as a "need to know" must be demonstrated."

The complication of a division of the Council or Board into sub-committees
which was central to the debate in the Birmingham Case does not arise here:
it is not suggested that the matters raised by Mr. Molomby fall within the
jurisdiction of a committee of the Board.  It follows that Mr. Molomby is not
required to demonstrate any particular "need to know" to justify his claim to
access.  On the contrary, to borrow the language of Lord Brightman, Mr.
Molomby was entitled to access "by virtue of his office" - "ex hypothes: (he
had) good reason for access."
         Another class of case where the prima facie entitlement of a director
to sight corporate material has been displaced is where there is evidence that
the director seeks to inspect, not in aid of the proper execution of his
fiduciary obligations but, to the contrary, with a view to the apprehended
detriment of the corporation.  The Hampstead Case, supra, Bennett's Case,
supra, and Conway v. Petronius, supra,  are examples of the exercise of a
judicial discretion denying the ordinary right of a director to inspect where
the evidence disclosed an ulterior purpose.
  No such case has been sought to be made here against Mr. Molomby.  Rather,
it was put on behalf of the respondents that the application for review should
fail because, on the face of the correspondence, Mr. Molomby has failed to
show a good reason why access should be granted.  In my opinion, if it were
necessary, the correspondence does indicate a "need to know", a matter to
which I will return later.  But, in any event, in the present circumstances,
the authorities cited make it clear that no initial burden of proof rests upon
Mr. Molomby to show any particular reason for, or utility in, the grant of
access.  This will ordinarily be assumed.
  The general position with respect to the onus of proof in this area was
described by Street, C.J. in Edman v. Ross, supra, in this way (at p.36l):

      "The right to inspect documents, and, if
       necessary, to take copies of them is essential
       to the proper performance of a director's duties
       and, though I am not prepared to say that the
       Court might not restrain him in the exercise of
       this right if satisfied affirmatively that his
       intention was to abuse the confidence reposed in
       him and materially to injure the company, it is
       true nevertheless, that its exercise is,
       generally speaking, not a matter of discretion
       with the Court and that he cannot be called upon
       to furnish his reasons before being allowed to
       exercise it. In the absence of clear proof to
       the contrary the Court must assume that he will
       exercise it for the benefit of his company."

  Slade, J., in Conway v. Petronius Cothing Co. Ltd., supra, after citing
Street, C.J. in Eq., said (at p.9O):

      "The passage seems to me, if I may say so,
       consistent with both principle and common sense.
       If the position were otherwise, a director's
       rights of inspection could be rendered more or
       less nugatory, at least for many months, by
       specious allegations that he was exercising them
       with intent to injure the company or for other
       improper motives."

  In my opinion, in refusing or at least deferring access to Mr. Molomby, Mr.
Whitehead wrongly assumed the role of the arbiter of Mr. Molomby's right, as a
legal incident of his directorship, to inspect documents held by the
Corporation which on their face were relevant to the affairs and management of
the Corporation.  Since it was a matter of legal right vested in Mr. Molomby,
such access did not lie within the gift of Mr. Whitehead.  It follows, in my
opinion, that his decision to withhold inspection was vitiated by an error of
law.   As has been said, such an error is a ground for review for the purposes
of the Judicial Review Act (see s.5(l)(f).
  The same consideration would lead to the conclusion that, if it were needed,
at least one other ground of review would be available here.  Section 5(l)(e)
specifies, as an additional ground of review, an "improper" exercise of a
statutory power.  This is defined by s.5(2)(a)(b) and (g) so as to include the
following:  the taking into account of an irrelevant consideration, failing to
take a relevant consideration into account and an exercise of power that is so
unreasonable that no reasonable person could have exercised the power (see
Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (l948)
l K.B. 223 at pp.228-9;  Parramatta City Council v. Pestell (l972) l28 C.L.R.
3O5 per Gibbs, J. at p.327).  For the reasons already given, I am of the
opinion that this ground of review has also been made out.
  In the result, Mr. Molomby has established a case for judicial review.
  Before turning to the question whether there are any discretionary reasons
why relief under s.l6 of the Judicial Review Act should be withheld from Mr.
Molomby, I should mention a number of specific matters advanced on behalf of
the respondents by way of answer to his claim.
  First, it was suggested that, in his correspondence, Mr. Molomby failed to
convey to Mr. Whitehead any reason why he needed to look at the material
sought.  Even if, contrary to the view I have expressed, Mr. Molomby had to
make out such a case, as it were, to Mr. Whitehead, his letters, in my
opinion, made it clear to Mr. Whitehead that the matters Mr. Molomby was
questioning were relevant to the affairs and management of the Corporation,
especially from his standpoint as a lawyer.  In the case of the fees claimed
by the Professor, Mr. Molomby's letters were quite explicit. (It is true that
Mr. Molomby had earlier initiated an independent inquiry into the
Corporation's legal department and, for that reason, had voluntarily absented
himself from Board discussion of the progress and result of that inquiry. But
it could hardly be suggested that such a voluntary action could or should
disqualify him from further participation in Board consideration of such
matters).
  So far as concerns the defamation actions about which Mr. Molomby sought
information, it may be accepted that Mr. Molomby gave no reasons in his
letters for his request.  However, as Mr. Whitehead must have known, the
plaintiffs in these proceedings were well-known public figures and it must
have been apparent to Mr. Whitehead, who did not give evidence, that this was
at least one of the reasons why Mr. Molomby wished to investigate these
matters.  Nor is it any answer to the claim now made to point to the fact that
each of these actions had been previously settled, in one case after
consideration by the Board, and in the other cases, by action taken below
Board level.  On the face of it, the conduct and the compromise by the
Corporation of defamation suits brought by public figures are matters of
obvious concern to a member of the Board with a legal background. In this
connection, Mr. Molomby could also reasonably point to the provisions of
s.8(l) of the Corporation Act, cited earlier, as additional reasons for his
enquiries.  The fact that s.8(3) makes these duties non-justiciable is of no
present significance. The duty imposed on the Directors by s.8(l) still
exists.
  In respect of Mr. Molomby's claim to sight copies of documents circulated by
Mr. Whitehead to other Board members, since Mr. Molomby was naturally unaware
of their contents, he did not advance any specific reason for his wish to
inspect the material beyond expressing his general desire to be as well
informed as his fellows with respect to the affairs of the Corporation. It was
not suggested on Mr. Molomby's behalf that Mr. Whitehead was at all times in
the future bound to send to Mr. Molomby a copy of every document sent to any
other Director. What is sought is an inspection of material already sent to
other Board members.  On the face of things, this material may be assumed to
relate to the management and affairs of the Corporation.  Prima facie, Mr.
Molomby has a need to be aware of such matters.  Short of a situation such as
arose in Bennetts' Case, supra, involving a clear conflict of interest on the
part of the Director, and no such conflict was established here, it is not
open to the Managing Director to deny Mr. Molomby access to corporate
documents on his assertion that they are "confidential".
  A separate argument was advanced on behalf of the respondents with respect
to the agreement made between the Corporation and Mr. Irving Warren.  In the
first place, it was submitted that the presence in the agreement of a
confidentiality provision justified withholding it from Mr. Molomby.  But the
presence of a secrecy clause could hardly preclude inspection of the document
by a member of the Board of one of the parties to the agreement. Once he had
inspected it, Mr. Molomby would, of course, be bound to observe the
contractual confidentiality. That is another question.  The only issue here is
his right to inspect the material and it is not suggested that Mr. Molomby
might use the information thus obtained to the detriment of the interests of
the Corporation.
  It was also put on behalf of the respondents that the decision to withhold
access to the agreement with Mr. Warren was justified because Mr. Molomby and
Mr. Warren were members of different trade unions.  But, in my view, none of
the considerations which were thought to be sufficiently significant to
warrant the denial of access in the authorities such as Bennetts' Case, supra,
are present here.  The respondents called no oral evidence and nothing was put
to Mr. Molomby in cross-examination to even hint at any threat by Mr. Molomby
to act in any way inimically to the interests of the Corporation. On the
contrary, his bona fides was accepted and there was no suggestion of any
ulterior motive or conflict of interest on his part.
  Finally, it was argued on behalf of the respondents that the claim for
relief should be denied because these are matters for the Board, as a whole,
to decide.  This is not so.  A Director's right to inspect corporate material
is a legal right which in no sense depends upon the views of the Board. Access
may be denied for good cause, as Bennetts' Case shows, but that apart, the
Board is no more able to act as the arbiter of a Director's rights in this
regard than is the Corporation's Managing Director.
  In my opinion, given Mr. Molomby's good faith and his apparent need to know,
as a Director of the Corporation, the matters he raises in his correspondence,
no basis exists for withholding from him relief under the Judicial Review Act
on discretionary grounds.  I propose to grant that relief.
  In the circumstances, it is unnecessary to deal with Mr. Molomby's claim
under the general law in the exercise of the Court's accrued jurisdiction.
However, it would follow from what has been said that the same result would
have been achieved under the general law.
  There will be a declaration of the right of Mr. Molomby to inspect the
material sought.  The declaration will be limited to the period of any
directorship (see Re Funerals of Distinction Pty. Ltd., supra, at p.6l5; Haw
Par Bros. (Pte) Ltd. v. Dato Aw Ko (l973) 2 M.L.J. l69;  Ford, Principles of
Company Law, 3rd ed. at p.4O3).  In the circumstances, injunctive relief
should be unnecessary (cf. the Berlei Case, supra, at p.l67) but liberty to
apply for this relief, if necessary, will be reserved.  The respondents must
pay Mr. Molomby's costs.
         I make the following orders:

    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 1985.

    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 rspondents pay the applicant's
         costs of the proceeding.