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[2020] FCA 592
procedural. Orders were made as sought. If the Court made the specified orders at the First Scheme Hearing, the scheme meeting could be conducted virtually, with the stated participation, voting and...
The Court allowed Avita Medical's proposed scheme meeting to be held online if the Court later made the specified orders convening it. The company constitution appeared to require a physical quorum, but the Court said its statutory powers over a court-ordered scheme meeting could override that requirement. The Court was satisfied that the proposed website and mobile technology would let members observe, participate, ask questions or propose motions, and vote. The decision was made in the specific circumstances of COVID-19 restrictions and the evidence presented.
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3 cited instruments linked from this judgment.
2,394 words · generated 02/10/2026
Avita Medical Limited applied for interlocutory orders under ss 411 and 1319 of the Corporations Act 2001 (Cth). The application concerned how a proposed members’ scheme meeting could be held if the Court later made orders convening it. Avita asked that the meeting be conducted virtually, without requiring two or more people to gather physically ([1]).
The application arose during the COVID-19 pandemic. The Court had evidence of legislative changes restricting gatherings and assemblies, and noted that those changes affected Avita’s ability to follow its usual practice of convening and holding general meetings in Victoria ([2]). Avita said its proposed arrangements would allow the meeting to occur without members breaching restrictions or putting their health at risk ([3]).
The orders were conditional. The originating process was listed for a First Scheme Hearing on 11 May 2020. If the Court made the specified orders at that hearing, the scheme meeting could take place online (order 2). The decision of 30 April did not itself approve the scheme. It addressed the format and conduct of the possible meeting.
The proposed arrangements used a website and a mobile application. Avita proposed appointing its usual share registry provider, Computershare Investor Services Pty Limited, and having Computershare engage Lumi Holdings Limited to provide meeting technology. Members and proxyholders could register, observe, lodge questions or motions, and vote through the website or mobile application ([15]–[16]). The meeting webcast could also be viewed through Avita’s website ([16]).
The orders dealt with practical meeting procedures, not merely the platform. They permitted the chair, board members, chief financial officer and other selected company personnel to access the meeting online. Members and proxyholders could submit written questions or motions for the chair’s consideration, subject to the chair’s powers under the company constitution and general law. Procedural motions accepted by the chair could be voted on using the platform. The scheme resolution was to be decided by poll, with technology to count votes and the shares to which they related. The company was also required to have a helpline available during the meeting for people experiencing technical difficulties (order 2(b)–(e)).
A separate issue arose from Avita’s constitution. Clauses 28 to 40 addressed meetings. Clause 32.1 provided that a general meeting could transact business only if a quorum was present, while cl 32.2 specified a quorum of three members. Avita submitted that these provisions might not permit a virtual meeting without a physical gathering ([13]). The Court accepted that the statutory power to order a scheme meeting could override the constitution in this case ([14]–[15]).
The Court’s reasoning combined statutory power, the meeting’s court-ordered status, practical evidence about the proposed technology, and the exceptional public-health context.
First, the Court considered the source and breadth of its power. Avita referred to ss 411 and 1319 of the Act. It also relied on rules of the Federal Court Rules 2011 (Cth), including rr 1.32 and 1.33, which the judgment described as enabling the Court to make appropriate orders in the interests of justice and to impose appropriate conditions ([4]–[6]). Jagot J accepted that the proposed orders would facilitate efficient implementation of a commercial restructuring transaction according to law in the difficult circumstances created by COVID-19 ([8]).
The judgment referred to the Full Court’s statement in McGraw Hill Financial Inc v Clurname Pty Ltd that rr 1.32 to 1.35 were important procedural powers directed to achieving the overarching purpose of resolving disputes justly, quickly, inexpensively and efficiently ([7]). In this case, that reference supported the procedural context for the orders. The Court’s central conclusion about the meeting itself was expressed in terms of ss 411 and 1319: because the meeting was one to be ordered by the Court under s 411(1), the company constitution could be overridden if the Court considered that appropriate ([14]–[15]).
Second, the Court assessed the evidence about whether the online arrangement would work for members. It was satisfied that the proposed technology would allow effective participation and voting and would record votes as required ([17]). The detailed order addressed the mechanics: registration and access, questions and motions, procedural voting, a poll on the scheme resolution, counting of votes and shares, exclusion of a proxy vote where the appointing shareholder had also voted, and a technical helpline (order 2(c), 2(e)). These provisions show that the Court was concerned with participation and vote integrity, not simply with avoiding a physical venue.
Third, the Court considered the circumstances created by restrictions on gatherings. It noted that the purpose of the proposal was to permit a meeting without members violating restrictions or risking their health ([2]–[3]). At [18], it concluded that, on the evidence, the proposal was the only practicable and reasonable way for the meeting to occur. This conclusion was specific to the application and evidence before Jagot J; the judgment does not announce that all scheme meetings, or all member meetings, may always be held virtually.
The Court also referred to two recent decisions involving meetings conducted by telephone or video link: Eagle, concerning meetings of creditors and committees of inspection in an administration, and Strawbridge, concerning creditors’ meetings in an administration ([9]–[10]). Jagot J noted an apparent issue between those decisions about whether a place for a meeting had to be specified, but did not resolve it ([11]). The orders in Avita therefore should not be read as deciding that broader question.
The judgment does not set out a complete account of the law before the decision, and it does not identify any statutory amendment made by the judgment. Its contribution is narrower: it records how the Court exercised its existing statutory powers in a particular scheme-meeting application during pandemic restrictions.
Before the application, Avita’s constitution contained quorum provisions that were said potentially to require a physical gathering. Clause 32.1 required a quorum for the transaction of business, and cl 32.2 set that quorum at three members. Avita submitted that those clauses could prevent a virtual meeting without a physical gathering of two or more people ([13]). The judgment does not independently interpret every aspect of those clauses. Instead, it accepted that the Court’s power over a meeting ordered under s 411(1) could override the constitutional provisions where the Court considered it appropriate ([14]).
After the orders, the conditional arrangement was that the scheme meeting could proceed virtually if the Court made the specified convening orders at the First Scheme Hearing. The order preserved applicable provisions of Part 2G.2 of the Act and consistent provisions of the company constitution, subject to the Court’s specific orders (order 2(f)). This structure matters: the judgment did not disapply all meeting law or all constitutional procedures. It displaced inconsistent requirements to the extent needed for the court-ordered arrangements, while retaining other applicable rules.
The judgment also referred to the broad procedural powers in rr 1.32 and 1.33 of the Federal Court Rules and to the overarching purpose discussed in McGraw Hill ([6]–[8]). It did not hold that those rules alone create a general power to disregard statutory or constitutional requirements. The stated basis for permitting the virtual scheme meeting was the Court’s powers under ss 411 and 1319, considered alongside the procedural setting.
Accordingly, the “after” position shown by this judgment is a practical and fact-specific court order, not a new universal rule. The decision demonstrates that a court may structure a scheme meeting virtually despite inconsistent company-constitution provisions where the court considers the statutory power available and is satisfied by the evidence about participation and voting. The source does not establish how the same question would be resolved on different evidence, under different constitutional wording, or outside a court-ordered scheme meeting.
At [14], Jagot J said the company constitution “may be overridden by the exercise of the statutory power if the Court sees fit”. In plain English, the constitution did not necessarily control the format of a scheme meeting ordered by the Court. The Court considered that it could make an order inconsistent with the constitution in this case.
At [15], the Court said its powers under ss 411 and 1319 allowed it to order a virtual scheme meeting notwithstanding the constitution. This is the clearest statement of the statutory basis for the result. It is tied to a meeting ordered by the Court under s 411, rather than a general conclusion about every company meeting.
At [17], Jagot J said the evidence satisfied her that the proposed technology would enable “effective participation” and voting, as well as the recording of votes. In plain English, the Court required more than a technical ability to broadcast the meeting. It was satisfied that members could take part and that votes could be counted and recorded.
Also at [17], the Court said security holders would have a “reasonable opportunity to observe and participate” and cast their votes. This links the technology assessment to members’ practical ability to engage with the meeting. The judgment does not specify a universal checklist for reasonable participation, but the orders show the features considered here: online access, mobile access, questions or motions, voting facilities, and assistance with technical problems.
At [18], the Court described the proposal as “the only practicable and reasonable manner” for the meeting to take place. This was a conclusion on the evidence and circumstances before it, including the COVID-19 context. It should not be detached from that record and treated as a finding about virtual meetings generally.
The orders give further detail than the reasons. For example, the scheme resolution had to be decided by poll, and technology had to make vote totals and the number of shares attached to votes available to the chair (order 2(e)(iii)–(iv)). The order also provided for excluding a proxyholder’s vote where the shareholder who appointed that proxy had also voted (order 2(e)(v)). Those provisions show how the Court translated its assessment of adequate participation into operational directions.
The decision is most directly relevant to a court application about a scheme meeting that the Court is being asked to convene under s 411. The case involved a company seeking advance directions about how the meeting would be conducted if the Court later made the requested convening orders ([1]; order 2).
It is also relevant where a company’s constitution appears to require a physical quorum or otherwise seems inconsistent with holding the court-ordered meeting online. Avita’s constitution contained quorum provisions, including a quorum of three members, and the Court accepted that its statutory power could override inconsistent provisions in the circumstances ([13]–[15]).
The factual support for the order included a pandemic-related restriction on physical gatherings, disruption to the company’s usual meeting arrangements, and evidence about a specific technology provider and meeting platform ([2], [15]–[17]). The decision may therefore be pertinent where a proposed virtual meeting has defined systems for member access, participation, voting, vote counting and technical support.
The limits are equally important. This was not a ruling about an ordinary annual general meeting in every circumstance, nor was it a decision that all electronic meeting arrangements satisfy the Act or a company constitution. The judgment notes ASIC’s pandemic-related approach and its awareness of the proposed arrangements, but does not set out a general ASIC rule ([12], [18]). It also does not resolve the issue about specifying a place for a meeting that Jagot J identified when discussing Eagle and Strawbridge ([11]).
The judgment itself does not cite any later court’s treatment of this decision. The material provided ends with Jagot J’s reasons on 30 April 2020 and contains no subsequent decisions discussing, applying, distinguishing or limiting Avita Medical.
The cases mentioned in Avita are not later treatments of Avita. Eagle and Strawbridge were earlier 2020 decisions about meetings in administrations. Jagot J described them as examples of virtual or remote meetings in different contexts and noted an apparent disagreement about specifying a meeting place ([9]–[11]). They form part of the contemporaneous context, not a record of how later courts treated the Avita ruling.
McGraw Hill and Amcom are also earlier authorities. Amcom was cited for the breadth of the Court’s statutory power under s 411 as supplemented by s 1319 ([5]). McGraw Hill was cited for the importance of procedural powers in achieving the overarching purpose of civil practice and procedure ([7]). Neither is a later application of Avita.
On the judgment text alone, therefore, no conclusion can be drawn about whether subsequent courts followed, narrowed or departed from Avita. The judgment’s own stated reasoning can be identified, but the later-precedent history is not supplied by this source.
The judgment expressly leaves open the issue of whether a place for a meeting must be specified. It noted an apparent issue between Eagle and Strawbridge on that point but did not decide it ([11]). The Avita orders permitted a virtual meeting without a physical gathering, but the reasons do not explain or resolve the place-specification question.
The decision also does not set out a comprehensive test for when members have a reasonable opportunity to participate in a virtual scheme meeting. It found the evidence adequate in this case, based on the proposed website, mobile application, ability to observe and submit questions or motions, voting arrangements and helpline ([16]–[18]; order 2). The source does not say whether different technology, less reliable access, or a different membership profile would satisfy the same standard.
Another question is the extent to which constitutional provisions may be overridden in other meeting contexts. Jagot J’s reasoning is expressly connected to a scheme meeting ordered by the Court under s 411(1) ([14]–[15]). The judgment does not determine whether the same reasoning applies to meetings not convened by the Court, or to constitutional provisions with different wording.
Finally, the decision does not detail the content of the “requirements of ASIC” that the Court considered alongside the Act. It records that ASIC knew of the proposed arrangements and did not intend to appear at the interlocutory hearing, and that the evidence supported the Court’s conclusion ([18]). The judgment does not reproduce ASIC’s advice or establish a general regulatory standard.
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The proceedings 1 This is an interlocutory application in which the plaintiff, as the applicant, seeks orders pursuant to ss 411 and 1319 of the Corporations Act 2001 (Cth) (the Act), so that if the Court makes an order convening a meeting of the members of the plaintiff, as sought in the originating process, that meeting may be conducted as a virtual meeting without requiring the physical presence of two or more persons in the same place. 2 It is not necessary, in the context of the present application, to explain the proposed scheme of arrangement in relation to the plaintiff. What is relevant for present purposes is that, if it were not already common knowledge, I have evidence before me of various legislative changes in respect of the gathering and assembly of people that have been introduced in response to the COVID-19 pandemic. It goes without saying that these legislative changes have affected the ability of the plaintiff to follow its usual practice of convening and holding its general meetings in Victoria. 3 This is why the plaintiff seeks orders to enable a virtual meeting of its members to occur. The object of these arrangements is to ensure that the meeting can occur in a way which will not result in the members of the plaintiff violating any of the legislative restrictions or placing their health at risk.
Sections 411 and 1319 of the Act 4 In the written submissions for the plaintiff, reference has been made to the terms of both s 411 and s 1319 of the Act. 5 The submissions for the plaintiff refer to the judgment of McKerracher J in Amcom Telecommunications Limited, in the matter of Amcom Telecommunications Limited (No 4) [2015] FCA 720; (2015) 107 ASCR 341 at [44], in which his Honour emphasised that "the Court's statutory power as to the making of orders for meetings under s 411(1) as supplemented by s 1319 is broad." 6 Reference has also been made to the Court's broad power under r 1.32 of the Federal Court Rules 2011 (Cth) to make "any order that the Court considers appropriate in the interests of justice", as well as r 1.33, which provides that "the Court may make an order subject to any conditions the Court considers appropriate." 7 In McGraw Hill Financial Inc v Clurname Pty Ltd [2017] FCAFC 211; (2017) 123 ACSR 467 at [25], the Full Court (Allsop CJ, Jagot and Yates JJ) said: Rules 1.32 to 1.35 are important weapons in the Court's armoury to enable the overarching purpose of the 'civil practice and procedure provisions'… to be achieved as identified in section 37M(1) of the [Federal Court of Australia Act 1976 (Cth)]. The overarching purpose is to facilitate the just resolution of disputes according to law, as quickly, inexpensively and efficiently as possible. 8 I accept the submission for the plaintiff that the orders sought in the present application will facilitate the efficient implementation of a proposed commercial restructuring transaction according to law in the difficult circumstances posed by COVID-19.
Recent decisions regarding the holding of virtual meetings 9 My attention has been drawn to two recent decisions of the Court involving the holding of virtual meetings, albeit in different contexts. The first is Eagle, in the matter of Techfront Australia Pty Limited (administrators appointed) [2020] FCA 542, in which Farrell J made orders which, amongst other things, permitted company administrators to hold meetings of creditors during the administration by telephone or audio-visual conference in place of a physical meeting. Similar orders were made for the conduct of meetings of any committee of inspection formed by the creditors. 10 Subsequently, in Strawbridge, in the matter of Virgin Australia Holdings Ltd (administrators appointed) [2020] FCA 571, Middleton J allowed an application by administrators to hold, amongst other things, creditors' meetings by video-link or telephone rather than in person. 11 There appears to be some issue between the two decisions in the treatment of the requirement that a place for the meeting be specified. 12 It has also been pointed out to me that the Australian Securities and Investment Commission (ASIC) has adapted its approach to meetings of companies in response to the COVID-19 pandemic, issuing guidelines regarding upcoming annual general meetings of companies and financial reporting requirements. 13 Reference has been made in these submissions for the plaintiff to a potential issue arising under the constitution of the plaintiff. The provisions of the constitution governing meetings are at cll 28 to 40. Clause 32.1 of the constitution provides that a general meeting can only transact business if a quorum of members is present, while cl 32.2 of the constitution provides that a quorum is three members. It is submitted that, on one view, these clauses do not permit the scheme meeting to be held as a virtual meeting using audio and audio-visual technology without a physical gathering of two or more persons.
Discussion 14 I accept the plaintiff's submission that since the scheme meeting is a meeting to be ordered by the Court under s 411(1) of the Act, the constitution of the company concerned may be overridden by the exercise of the statutory power if the Court sees fit, and in the present case I do see fit. 15 I accept the submissions for the plaintiff that the Court's powers under ss 411 and 1319 of the Act allow for the ordering of a virtual scheme meeting by the Court, notwithstanding the provisions of the plaintiff's constitution. The affidavit evidence before me discloses that the plaintiff intends to appoint its usual provider of share registry services - Computershare Investor Services Pty Limited (Computershare) - to provide the meeting and the live webcast that will accompany the meeting. 16 The affidavit evidence discloses that Computershare will engage the services of the third party provider Lumi Holdings Limited (Lumi) to provide the technology that will enable shareholders and property holders to register, observe, lodge questions or motions, and vote during the scheme meeting. This will occur by way of Lumi's website and, as an alternative for shareholders, by Lumi's pre-downloaded application on a security holder's mobile device. The webcast of the scheme meeting will also be able to be viewed through the plaintiff's website. 17 The evidence satisfies me that the holding of the meeting using the technology proposed will enable effective participation in the meeting and voting as well as the recording of voting as required. I accept the submissions of the plaintiff that by conducting the scheme meeting as a virtual meeting in the manner and by means of the audio and audio-visual technology described above, security holders of the plaintiff will have a reasonable opportunity to observe and participate in the scheme meeting and cast their vote on a scheme in a way that satisfies both the requirements of ASIC as well as those of the Act 18 In terms of ASIC, there is evidence that the plaintiff has been in communication with ASIC. ASIC has advised that it does not currently intend to appear at the hearing of the interlocutory application. It is aware of the arrangements which are to be made for the virtual meeting to take place. In these circumstances, it seems to me that the plaintiff's proposal is the only practicable and reasonable manner in which the scheme meeting can take place. Orders will be made as sought. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.
McGraw Hill Financial Inc
Clurname Pty Ltd
Orders were made as sought. If the Court made the specified orders at the First Scheme Hearing, the scheme meeting could be conducted virtually, with the stated participation, voting and technical-support arrangements. The plaintiff had liberty to apply on three business days' written notice to vary the orders.