(b) Did the 2009 Committee continue in office after 31 December 2009?
49The plaintiffs submit that once elected on 26 April 2009: that the members of the 2009 committee held office for a term, expiring at the next annual general meeting; and, that the Association's Constitution required that next annual general meeting to be held within the same calendar year, by 31 December 2009. But, the plaintiffs say, it was not held by that date, and as a result, the positions of the 2009 committee became automatically vacant on 31 December 2009. In answer the defendants say that the members of the 2009 committee who have not resigned or vacated their positions are still in office, because the Constitution permits their continuation in office after 31 December 2009.
50The Plaintiff's Argument . The plaintiffs submit that the result for which they contend flows from the combined operation of Constitution rules 13(3), 22(1) and 23(2)(c) and the general law. The plaintiffs' argument follows. Rule 13(3) provides that "each member of the committee shall, subject to these rules, hold office until the conclusion of the annual general meeting following the date of the member's election...". Rule 22(1) requires that the Association "shall, at least once in each calendar year and within 6 months of the expiration of each financial year of the association, convene an annual general meeting of its members". And rule 23(2)(c) requires that "the business of an annual general meeting" shall be "(c) to elect office bearers of the association and ordinary members of the committee biannually :" (emphasis added). The plaintiffs say: that the ordinary dictionary meaning of the word "biannually" is "twice a year", so rule 23(2)(c) requires the election of the Association's office bearers and committee twice in each year; as the 26 April annual general meeting was only the first annual general meeting in 2009, another annual general meeting was required by the end of that year; rule 22 requires that the second annual general meeting must take place within 6 months of the end of the Association's financial year, which ended on 30 June 2009; as no annual general meeting took place before 31 December 2009, the last day on which it could be held, based on cases such as Singh v Singh [2008] NSWSC 386, rule 13 requires the office of the committee members to fall vacant on 31 December 2009.
51The plaintiffs further submit that upon acceptance of their argument, giving "biannually" its ordinary meaning, the Association's meeting and electoral processes work as follows: that at each annual general meeting an election is held for a committee to hold office until the conclusion of the next annual general meeting (rule 13(3)); a committee elected at an annual general meeting in the first six months of the calendar year holds office until the earlier of the annual general meeting held in the second half of the same year or 31 December that year (rule 22(1)); a committee elected in the second six months of the calendar year holds office until the end of the next annual general meeting, which, to use the plaintiffs' words, "it should convene about 6 months after an election", or if no such annual general meeting is convened by the committee, then the committee holds office until 31 December in the following year (rule 22(1)).
52The plaintiffs point out that not adopting their construction leads to what they submit are absurd results. For example they put that if their construction of the Constitution were not accepted that rule 23(2)(c) would not itself apply to every annual general meeting but anomalously only to every second annual general meeting.
53Moreover to those who say that holding committee elections for the Association every six months would be too burdensome, the plaintiffs reply there is no reason to think that the corporators of the Association sought less frequent than annual accountability to members through election; that it may be that they wanted more frequent accountability; and, that was the reason for the addition of the word "biannually". They say there is nothing inherently more or less practical in a requirement that there be an annual general meeting every six months than a requirement that it be every two years.
54Background. The Association's rules are adopted from the Model Rules provided for under the 1984 Act with a single notable addition, the word "biannually" at the end of rule 23(2)(c) after the words "(c) to elect office-bearers of the association and ordinary members of the committee".
55When the Constitution is construed as a whole the addition of the word "biannual" rather than "biennial" seems to be an obvious drafting error. The Macquarie Dictionary defines "biannually" as "occurring twice a year". "Biennially" is defined as "happening every two years". Confusion between the two words is commonplace. They look and sound similar. The draftsperson of the 1995 Constitution appears to have encountered a not uncommon problem in the English language, occasioned by the use of the prefix "bi", which problem the authors of Fowler's Modern English Usage (H.W.Fowler, A Dictionary of Modern English Usage, 2 nd Edition, Revised by Sir Ernest Gowers, Oxford Clarendon, 1968, p 58) long ago explained thus:-
" bi - prefixed to English words of time ( bi-hourly, bi-weekly, bi-monthly, bi-quarterly, bi-yearly ) gives words that have no merits and two faults: they are unsightly hybrids, and they are ambiguous. To judge from the OED, the first means only two-hourly; the second and third mean both two-weekly, two-monthly, and half-weekly, half-monthly; and the last two mean only half-quarterly, half-yearly. Under these desperate circumstances we can never know where we are. If it were not for bicentenary , which lacks a vernacular equivalent, there would be no reason why all the bi- hybrids should not be allowed to perish, and the natural and unambiguous two-hourly and half-hourly , fortnightly and half-weekly , two-monthly and half-monthly , half-yearly and half-quarterly , two-yearly and half-yearly , of which several are already common, be used regularly in place of them and the words ( biennial, bimestrial ) on which they were fashioned; these latter have now almost become ambiguous themselves from the ambiguitity of the misshapen brood sprung of them. They cause confusion in the most surprising places. An annual bulletin is our first aim; but biennial issues may become possible if the Association enlarges as we hope. (From a bulletin issued by the International Association of University Professors of English.) Biannual, probably invented to stand to biennial as half-yearly to two-yearly , is sometimes confused with and sometimes distinguished from it. Half-yearly is the right word."
56Analysis. There are many difficulties with the plaintiffs' argument. The defendants' response to it is persuasive. In my view the proper construction of Constitution rule 23(1)(c) is to read "biannual" as "biennial". So read, the clause makes sense in its context with the other provisions of the Constitution. Reading the rule as the plaintiffs' suggest, causes inconsistency with these other provisions. Context is important and a dictionary definition is not definitive on its own of the meaning of a term: Singh v Commonwealth of Australia (2004) 222 CLR 322 at [12]. The plaintiffs' argument fails for the following reasons.
57First, there are many indicators in the Constitution that the Association must hold one not two annual general meetings per year. These start with Constitution rules 22 and 23, which allow for the convening of general meetings described as " annual general meetings", predicting an event that occurs on a yearly not on a half yearly cycle.
58Secondly, Constitution rule 23, which is said to be the source of the obligation to hold half yearly elections, declares itself to be "subject to the Act [now read as the 2009 Act ] and to rule 22". But rule 22 clearly prescribes yearly not half yearly annual general meetings. It does allow for the possibility of more than one annual general meeting being held in a calendar year, "at least once in each calendar year". But this language is permissive, allowing for the practical possibility of an extra annual general meeting within a single calendar year, if required. But rule 22 does not require two such general meetings every calendar year. It would be odd for the subsidiary provision, rule 23, to be the source of an obligation to hold half yearly meetings of the Association's members, when the dominant provision, rule 22, allows yearly meetings.
59Thirdly, reading rule 23(2) as the source of an obligation to hold half yearly general meetings misapprehends its subject matter. Rule 23(2) is about the business conducted at meetings. The rule merely mandates that in addition to the optional business at the meeting, that "the business of an annual general meeting shall be" the identified subject matters, one of which is the election of office bearers and committee members biannually. Rule 23(2) is concerned with the content of meetings, not how frequently the meetings occur. Rule 23(2)(c) is concerned to regulate how frequently a particular subject matter of a general meeting will recur, namely the holding of management elections, within a framework of meeting frequency that is otherwise set by rules 22(1) and 23(1). Rule 23 (2) is not a source of power to increase the frequency of general meetings. Rather, biannually should be construed to mean happening every two years.
60Fourthly, if rule 23(2)(c) is read so as to increase annual general meeting frequency it would create far more chaos than the plaintiffs' argument presently acknowledges, especially through the operation of rules 22 and 23. Two examples will suffice. First, rule 23(2) requires the business of an annual general meeting to include the receipt and consideration of the statement "which is required to be submitted to members pursuant to section 26(6) of the Act". That is a reference to the financial statements that the 1984 Act required (and 2009 Act, ss 43 and 47 now requires) the committee to produce, giving a true and fair view of, "the income and expenditure of the association during its last financial year". It would be absurd to require an Association to produce annual statements every six months but that is what would have to happen if an annual general meeting were held that often. Second, on the plaintiffs' construction it is curious that one (of the two) annual meetings in a calendar year must be held by 31 December, "within six months after the expiration of each financial year of the association". But the other one has to be held in the same six months in order to comply with rule 22. And there is no requirement for the two meetings to be held, if they are to be useful, about six months apart if the plaintiffs' construction were accepted.
61Fifthly, there is an answer to the difficulties of construction that the plaintiffs' say arise from treating "biennially" as meaning, "happening every two years". The plaintiffs point to the tension between: (1) rule 13(3), which provides that a committee member holds office "until the annual general meeting following the date of the member's election but is eligible for re-election"; and, (2) a construction of rule 23(2)(c) that requires committee elections to be held once every two years. How can a committee member be required to hold office until the next annual general meeting (and be eligible for re-election) at which meeting no election can be held? The answer to this problem is that the holding of office under rule 13(3), until the "conclusion of the annual general meeting following the date of the member's election" applies to a committee member "subject to these rules". The operation of rule 13(3) is subordinated to that of rule 23(2)(c), which prevents the holding of an election for office bearers and committee other than every second year. But rule 13(3) also contemplates that the committee member will hold office until a meeting when the member "is eligible for re-election". The tension between rule 13(3) and the defendants construction of 23(2)(c) is resolved by construing "annual general meeting" in rule 13(3) as referring to an annual general meeting at which an election can be held as commanded by rule 23(2)(c). This construction gives proper effect to the dominance of rule 23(2) and avoids a construction that would have the Constitution creating an unfillable temporal gap between the end of a committee member's term of office and the committee member's eligibility for re-election.
62As the defendants submit, this is a matter of construction and does not constitute rectification of the contract as the plaintiffs submit it is. See, for example, Fitzgerald v Masters (1956) 95 CLR 420, where the High Court (Dixon CJ and Fullager J) held that "Words may generally be supplied, omitted or corrected, in an instrument, where it is clearly necessary in order to avoid any absurdity or inconsistency". In my view reading "annual general meeting" in rule 13(3) as referring to an annual general meeting at which an election is held required to be held under rule 23(2)(c), and "biannual" as "biennial", can perhaps be seen as an instance of the application of the principle of construction falsa demonstratio non nocet cum de corpore constat , which loosely translated means that a wrong description does not vitiate a document if the intent is clear from the whole body of the document: see Puccini Festival Australia Pty Ltd v Nippon Express (Australia) Pty Ltd and Anor (2007) 17 VR 36, Cavanough J; Ford Motor Company of Australia Ltd v Arrowcrest Group Pty Ltd (2002) FCA 1156, Finkelstein J, Modern Buildings Wales Ltd v Limmer & Trinidad Co Ltd [1975] 1 WLR 1281, at 1288 per Buckley LJ and Adamastos Shipping Co Ltd v Anglo-Saxon Petroleum Co Ltd [1959] AC 133. In Arrowcrest Finkelstein J applied the maxim (at [27]) in order to disregard "what is inaccurate and inapplicable and [proceed] upon that which is appropriate and intelligible and what are evidently intended to be the governing words".
63Past Practice. The defendants sought in submissions to support their position from evidence of the Association's past practice. Ms Daphne Lowe gave evidence, which I accept, that since the incorporated Association's inception in 1995, the Association's elections had in fact been held every second year, with the result that the 2009 Committee is in fact known as "the Tenth Committee", it being only the tenth committee to be elected since 1995. I infer from this evidence that in past years the practice of the Association has been to hold elections for the Association's committee and office bearers only every two years. This practice appears to provide the Association with the stability and continuity. This material cannot be used as an aid to construction: Byrne v Macquarie Group Services Australia Pty Limited [2011] NSWCA 68 at [40] and Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52; 219 CLR 165 at 179 - 181 [40] - [46]. But it shows that past committees of the Association have interpreted the Association's Constitution the way the Court has now shown to be correct.