Whitlam Dismissed – Again!

In the recent case of NRMA v Stewart Geeson and Ors the New South Wales Court of Appeal dismissed the NRMA’s application for leave to appeal from a decision of the New South Wales Supreme Court which allowed the publication of information regarding events which occurred during a meeting of the board of directors of the NRMA.

The events revolved around a request by one of the board members to embattled board president Nick Whitlam to step down as chairman of the board pending the result of investigations by the Australian Securities and Investment Commission into Mr Whitlam.

The NRMA argued that as discussions at board meetings are confidential it was entitled to an injunction preventing board members and the media from publishing information about the events and discussions at its board meetings.

The Court held that while board meetings are confidential, in this particular instance, due to the very large membership of the NRMA (1.8 million members), the impracticality of communicating to the members other than through the media and the fact that the NRMA was unable to show that disclosure would be against the interests of the body as a whole, the NRMA was not entitled to an injunction preventing the disclosure of the information.

This case in unusual as the courts will generally prevent disclosure of confidential information without requiring the plaintiff to show potential harm unless the information discloses a criminal or fraudulent act.

This case is in many ways limited to its somewhat unique facts. Board members need to keep in mind that discussions at board meetings are confidential and should not be disclosed to third parties without the consent of the board unless criminal acts or other serious improprieties are involved.