11 In Campbell v Crawford, another case concerning meetings of a trade union, Wilcox J at 340, identified the reason for this rule as being "to enable any member receiving [the notice] to determine in his own interest whether or not he ought attend the meeting".
12 The common law distinction between charter day and other meetings of a municipal corporation and their respective notice requirements was also made between ordinary (or general) and extraordinary (or special) meetings of the members of companies in the series of statutes governing such associations that commence with the Companies Act 1862 (UK). In the standard regulations for the management of a company limited by shares contained in Table A to the Companies Act 1862, whose provisions were carried into later companies legislation in both the United Kingdom and Australia, articles 29 to 31 provided for certain meetings of all members to be held at fixed times - called ordinary general meetings - and for other meetings of all the members - called extraordinary general meetings. Clauses 35 and 36 of Table A dealt with the notice requirements for all meetings, ordinary and extraordinary, of the entire body of members of a company. Their effect was to require at least seven days' notice specifying the place, the day and the hour of the meeting. Only when "special business" was to be dealt with did the notice have to state "the general nature of such business". However, these clauses also provided that all business transacted at any meeting of members, ordinary or extraordinary, was deemed to be "special" (save only for a limited class of business, defined in cl 36, which members could expect would regularly arise, such as the presentation of financial reports and the ordinary report of the directors). Where no notice of special business was given, members could decide whether to attend in the knowledge that only those defined matters would be dealt with at the meeting.
13 The English and the Australian cases, which have arisen under Table A and its more recent variants that expressly require informative notice of meetings at which special business is to be dealt with, are concerned with whether the notice convening a meeting of members to deal with special business sufficiently stated "the general nature of such business", as required by the terms of the relevant article: they are therefore of little relevance to the question whether informative notice need be given under a regime that does not expressly stipulate for such a notice. But in the current, 44th ed of Gore-Browne on Companies, it is suggested at par 21.4 that, in the absence of provisions in a company's articles like those in cll 35 and 36 of the original Table A, the common law rule stated in The King v Hill would apply to require an informative notice before any business could be validly transacted at a meeting of the members of a company.
14 The provisions of the Local Government Act (SA), the subject of the decision in Myer Queenstown Garden Plaza Pty Ltd v Corporation of the City of Port Adelaide (1975) 11 SASR 504 distinguish between ordinary meetings of council, to be held at fixed times (s 144) and other meetings, called special meetings, capable of being convened at any time (s 145). Section 146 draws a similar distinction to that in Table A, in so far as it requires notice convening a meeting to include a statement of the business to be transacted thereat only in the case of special meetings. See p 524. What was in issue there was the validity of certain resolutions passed by the council at a special meeting which could only be called by an informative notice. The notice of the meeting was said to be deficient. The statements by Wells J relied on by the learned primary judge comprised part of Wells J's summary of the effect of "[t]he rules thus established at common law, in so far as they bear on special meetings and on the subject matter and construction of ss 146 and 147 …". I do not think that this decision is of much assistance in seeking the meaning of s 181 since Wells J was describing the common law rules governing the content of notices of special meetings, ie, what such notices had to contain to meet the common law requirement of an informative notice.
15 But, for the reasons given, where something can be done only at a meeting of all the members of a body called on notice, in the absence of indication in the regulatory regime of the particular body showing that prior intimation of the business to be dealt with at the meeting is not necessary, the requirement of notice, in my opinion, of itself connotes an informative notice, ie, one which tells those entitled to attend not just the time and place of the meeting, but also what business is intended to be transacted. The whole object of notice of such a meeting is to give those entitled to attend the opportunity of considering whether it is in their own interests to attend.
16 The appellant's first argument, based on the wording of s 181, also ignores the fact that the power to remove a trustee, which the creditors do not have apart from s 181, is expressly conditioned on being exercisable only at a meeting of which at least seven days' notice has been given. The notice requirement is clearly linked to the exercise of the power. But unless the notice condition which must be satisfied before the power can be exercised involves an intimation to the general body of creditors, as the persons with an interest in whether the power is to be exercised, that the power of removal will be invoked at the meeting called by the notice, it would appear to serve no purpose: if the power can be exercised at a meeting without any prior intimation that removal will be proposed, the persons interested in the exercise of the power and who must be given notice of the meeting are no better served by seven days' uninformative notice than by any lesser (or greater) number of days' uninformative notice.
17 It is true that, if the power conferred by s 181 is of removal at a meeting without prior intimation that removal will be considered, the section would enable those creditors who happen to have attended a meeting to remove a trustee on the spot, if they considered that circumstances emerging at the meeting required urgent action. But that consideration cannot provide a reason for reading s 181 as not requiring prior notice of a proposal to remove the trustee: circumstances warranting immediate removal of the trustee may emerge with as much sharpness at meetings called on short notice as at meetings called after seven days' notice. In an emergency situation, a creditor is, in any event, not impotent: under s 179(1), (and also under s 156A(4), in relation to a trustee appointed under s 156A(3)), the Court, on the application of an individual creditor, has power to remove a trustee from office. If an emergency sufficient to justify the immediate removal of the trustee by creditors arises, those circumstances are likely to enable a creditor to obtain the urgent intervention of the Court, at least on an interlocutory basis.
18 If s 181 were to be read in isolation from the rest of the Act, I would therefore construe it as permitting creditors to dismiss a trustee only at a meeting of which the requisite period of notice had been given and then only if what was relied on by way of notice contained an intimation that the removal of the trustee was to be considered at the meeting.
19 The appellant does not, however, rely only on the wording of s 181 read in isolation.
20 Section 181 must be read in its statutory context. This includes both the detailed provisions in Div 5 of Pt IV, which are of general application to creditors' meetings, and the legislative history of s 181. Reference to these considerations, so the appellant said, shows that the term "notice" in s 181 has a different meaning from that which it would, in my opinion, ordinarily be expected to bear, in the context of a provision that conditions the exercise of a power vested in a meeting of creditors upon notice being given of that meeting.
21 So far as the legislative history of s 181 of the 1966 Act is concerned, its precursor, s 153(1) in the 1924 Act, permitted a meeting of creditors to remove a trustee, provided the meeting was on seven days' notice and was "specially called for that purpose". The words quoted from s 153 did not find their way into s 181. There is nothing in the Clyne Report, in response to which the 1966 Act was enacted, to explain this change in wording. I do not, however, think that this change justifies the interpretation of s 181 proposed by the appellant. A meeting of creditors convened in accordance with s 153(1) could not transact any business other than removal of the trustee (unless all creditors happened to be present and all consented to dealing with other business): see Symes v Weedow (1892) 14 ALT 197 at 201 and McLure v Mitchell (1974) 6 ALR 471 at 494. The change in the two provisions can be explained by the legislature considering that the creditors should be able to remove a trustee at any meeting, rather than one dedicated solely to the issue of removal, but always provided that, as part of the necessary notice of that meeting, prior intimation was given that removal was to be considered.
22 Section 181 was amended by the Bankruptcy Amendment Act 1991 (Cth) (No 9 of 1992) which substituted an ordinary resolution for the original requirement of a special resolution, on its face suggesting a relaxation of the requirements to be met before creditors could exercise the power of removal of the trustee conferred by the section. This same Amendment Act introduced into Pt IV the new Div 5, which contains extensive provisions regulating meetings of creditors. It is the provisions of Div 5, in particular ss 64G(n) and 64W, that provide the strongest argument for the interpretation of s 181 proposed by the appellant, in so far as they authorise the transaction at creditors' meetings of business of which no prior notice has been given.
23 Section 64B(4) obliges the trustee to set out "the agenda for the meeting" in the notice which he gives convening any meeting of creditors and to state therein "that additional matters may be added to the agenda with the leave of the meeting". Section 64G prescribes the contents of the agenda for the meeting, which must be set out in the notice convening it. One of these items is "proposal of other motions (if any)" - s 64G(k); another is "any other business" - s 64G(n).
24 A reading of ss 64K to 64X shows that the course of the meeting must follow the order of the items that are listed in the agenda in accordance with s 64G. After various matters, including the appointment of the minutes secretary, have been dealt with, ss 64R and 64S require the president to move through the agenda items in s 64G(g), (h), (i) and (j). Immediately following the provision to the meeting of the information required by s 64R and the discussion provided for by s 64S, s 64T states: "The President must then invite the creditors and their representatives to propose any relevant motions", ie, s 64T requires the president at that point in the meeting to move to the agenda item in s 64G(k). The motions envisaged by ss 64T and 64G(k) which the creditors must then be invited to move are limited, in my opinion, to motions concerning matters arising out of what has occurred at the meeting in the discussion required by ss 64R and 64S of the agenda items in s 64G(g) to (j). Since there is no requirement in the Act that the statements the trustee and the creditors are entitled to make under s 64S must be on notice, so long as a motion is put pursuant to s 64T in respect of a matter arising out of those statements (and related questioning), it can be moved and dealt with by the creditors then present, without prior notice to the general body of creditors. If these provisions are looked at in isolation from the rest of the Act, s 64T would appear to permit the creditors to resolve on removal of the trustee without any prior notice, but only if such a motion arose out of the statement and questioning episode of the meeting provided for by s 64S and s 64G(g) to (j).
25 After any motions proposed under s 64T have been dealt with, the meeting must move on to deal with the trustee's remuneration (ss 64U(4) and 64G(l)) and the appointment of a committee of inspection (ss 64V and 64G(m)). After those matters have been dealt with, s 64W requires the president to invite the creditors to raise "any other matters relevant to the bankruptcy" (the agenda item provided for by s 64G(n)). If this provision is looked at in isolation, s 64W (with s 64ZD) would appear to give a creditor unqualified permission to move, without any prior notice, that the trustee be dismissed.
26 I do not, however, consider that these provisions require s 181 to be read so as to produce the result for which the appellant contends.
27 The provisions of Div 5 of Pt IV are general ones intended to regulate the conduct of all creditors' meetings. Section 181 is in Div 5 of Pt VIII which is concerned with vacation of office of trustees. It is a special provision vesting in the creditors power to remove a trustee; it is a power exercisable, however, only after a particular procedure has been followed. Provisions of general application to the conduct of meetings of creditors cannot, in my opinion, justify depriving of any sensible effect the condition upon which this special power of removal is exercisable. That, for the reasons already given, would be the consequence of adopting the appellant's reading of the section.
28 Further, the stated purpose of the amending legislation that introduced Div 5 into Pt IV of the Act was to arm creditors with the knowledge necessary to make informed decisions at their meetings. The Explanatory Memorandum to the Bankruptcy Amendment Bill 1991 contains the following: