NATIONAL ROADS AND MOTORISTS' ASSOCIATION v WHITLAM [2007] NSWCA 81

Reported Decision: (2007) Aust Contract Reports 90-251(2007) 25 ACLC 688 Appeal Outcome: Special leave application refused with costs by the High Court - 31 August 2007

New South Wales Court of Appeal

CITATION: NATIONAL ROADS AND MOTORISTS' ASSOCIATION v WHITLAM [2007] NSWCA 81 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 28 February & 1 March 2007

JUDGMENT DATE: 11 April 2007

JUDGMENT OF: Beazley JA at 1; Campbell JA at 2; Handley AJA at 127

DECISION: (1) Appeal allowed. (2) Set aside the declarations and orders made on 1 September 2006 in proceedings 50185 of 2004 in the Equity Division, Commercial List of the Supreme Court. (3) Order that proceedings 50185 of 2004 in the Equity Division, Commercial List of the Supreme Court be dismissed. (4) Respondent to pay the costs of the appeal and of the hearing in the court below. (5) Respondent to have a certificate under the Suitors Fund Act 1951. (6) Cross appeal dismissed.; Confidentiality Orders; (1) Redacted version of Deed of Release to be filed. (2) Redacted version of Deed of Release to become exhibit in the appeal. (3) Orders made on 28 February 2007 (judgment para 112) varied.

CATCHWORDS: GUARANTEE AND INDEMNITY — indemnity — deed of indemnity — indemnity by company of officer — indemnity of all liabilities incurred by the officer as an officer — officer gives media interview as part of his duties — publication of extracts from interview in context allegedly defamatory of the officer — where officer undertook defamation proceedings against publisher — construction of indemnity — whether officer indemnified for loss of reputation — whether officer indemnified for costs incurred in pursuing defamation proceedings - GUARANTEE AND INDEMNITY — indemnity — indemnity under general law — nature of indemnity by company of officer under general law — where officer undertook defamation proceedings against third party — whether officer acting in performance of office - CONTRACTS — general contractual principles — construction and interpretation of contracts — contract of indemnity — indemnity to be construed strictissimi juris in favour of the indemnifier where indemnity ambiguous - CORPORATIONS — officer of corporation — legislative limits on corporation granting officer indemnity — Corporations Law ss 241, 199A - Corporations Act 2001 (Cth) s 199A - EVIDENCE — confidentiality — admission of confidential deed of settlement — confidentiality orders restricting use of contents of confidential deed of settlement - PRACTICE — confidential evidence — whether court should be closed — confidentiality orders restricting use of contents of confidential evidence