Case: Edman v Ross (1922) 22 SR (NSW) 351
Outcome: followed
I have noted earlier, the applications made by Mr Campbell are made on three bases. I turn to the basis of common law principles. It is an accepted principle, which has long been established, that a director of a company has a right to inspect the Company's records. What may be in issue is whether there is an absolute right of access to the Company's records, or whether that, in a given case, the court has a discretion to determine whether or not a director should be permitted to have such access. In Edman v Ross (1922) 22 SR (NSW) 351 , Street CJ in Eq said, at 360-361: "A director's right to inspect and take copies of documents belonging to his company is, I think, clear. ... 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." In Boulos v Carter; Re TARBS World TV Australia Pty Ltd (2005) 220 ALR 572 , Barrett J said at 582: It is unnecessary to go into any detailed analysis of the general law position. The right of a director to inspect company documents, and, if necessary, to take copies of them has long been recognised as one of the rights that general law affords a director for the purpose of enabling him or her to perform the functions and discharge the duties of the office of director. The classic statement of this right appears in a judgment of Street CJ in Eq Edman v Ross ." Edman v Ross (supra) was also followed by De Jersey J, as he then was, in Kriewaldt v Independent Direction Ltd (1996) 14 ACLC 73 , where at 75, his Honour said: "A director obviously has a right of access to company documents to facilitate the performance of his or her duty, and that carries with it a right to make copies. See Edman v Ross and McGee v Sanders [1991] FCA 554 ; (1991) 32 FCR 397 , 405". As was pointed out by Street CJ in Eq in Edman v Ross (supra) (par [28] above), a limitation on that right might arise if the court was satisfied affirmatively that the director's intention was to abuse the confidence reposed in him and materially to injure the Company. I should point out that on the material before me, I do not consider that I should make a finding that what Mr Campbell proposes, or what his intention is, is to abuse the confidence reposed in him, or to materially injure the Company. I am making no ultimate findings in this proceeding in relation to the substantive issues raised by Mr Campbell and Mr Pursell in their affidavits. This matter has been brought on as a matter of urgency. Neither deponent was cross-examined and any views I express at the moment are tentative, insofar as they relate to findings as to what the particular purpose or intention of the parties, in particular, Mr Campbell, may be. Counsel for the Company submitted that the common law right arises on the basis of a director having access for the purposes of the Company, and that if that access is not sought in the interests of the Company, then the common law right could not be availed of. Counsel for the Company submitted that Mr Campbell wanted access to the proxies delivered to Computershare and to what was called the "live count" to enable him, amongst other matters, to lobby proxy holders and to establish a foundation to challenge votes that may be cast. Counsel for the Company submitted that these purposes related to personal interests.