Plaintiff v Defendant

1. The primary object of statutory construction is to construe the relevant provision so that its legal meaning is consistent with:
   1. the language of the relevant provision, being the text; and
   2. the legislative purpose of the statute.[2]
2. The legal meaning is 'the meaning that the legislature is taken to have intended [the provision] to have'.[3] It may or may not be the same as the literal meaning.[4]
3. Accordingly, in statutory construction, the focus is on the text and the legislative purpose as follows:
   1. The primacy of the text has been emphasised by the High Court.[5] It has been said that the process of statutory interpretation starts and ends with the text.[6]
   2. To ascertain the legislative purpose, the Court first considers the text of the relevant provision in its context.[7] The context means:

iii. the mischief that the statute was intended to remedy;[8] and

iv. the history of the legislative scheme.[9]

1. The section does permit 'a court to consider the purposes of an Act in determining whether there is more than one possible construction';[10] but such material cannot displace the meaning of the statutory text.[11]
2. If the literal meaning of the text is consistent with the identified legislative purpose, the literal meaning will be accepted as the legal meaning.
3. However, if the literal meaning conflicts with the identified legislative purpose, a departure from the literal meaning may be justified. The resultant tension was described by Francis Bennion in Statutory Interpretation:

Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with.[12]

1. Examples of conflicts between the literal meaning and the identified legislative purpose, which have justified departure from the literal meaning, have included the following:
   1. The literal meaning would conflict with other provisions of the statute.
   2. The literal meaning is inconsistent with the purpose of the statute.
   3. The literal meaning is incapable of practical application.
   4. Adoption of the literal meaning would lead to a result that is absurd, unreasonable or anomalous.[13]
2. If it is determined that such a conflict exists, the approach to reconciliation of the conflict is as follows:
   1. First, if an alternative construction is to be adopted as the legal meaning, it is necessary that the alternative construction is 'reasonably open'[14] and 'consistent with the language in fact used by the legislature'.[15] This is necessary because 'the task remains the construction of the words the legislature has enacted'.[16] 'The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions'.[17]
   2. After the identification of an alternative construction, the legal meaning will be determined by balancing:
      1. the strength of the literal meaning as against the alternative construction; and
      2. the extent to which these meanings are consistent with the promotion of the legislative purpose.
3. This balancing exercise has been explained by the High Court as follows:
   1. 'If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.'[18]
   2. '[I]nconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which ... is reasonably open and more closely conforms to the legislative intent'.[19]

1. The first issue raised by this application is whether a corporation's obligation under s 169(1) of the Act to record the member's address is limited to the member's residential address or whether it extends to other addresses, which are nominated by the member, in particular electronic addresses.
2. In my opinion, the requirement under s 169(1)(a) of the Act for the Register to contain the member's address includes an obligation to contain, not only the residential address, but any address nominated by the member for the purposes of communications relevantly including electronic addresses. My reasons for this conclusion are as follows.

1. The fact that s 169(1)(a) of the Act refers to singular 'address' is not inconsistent with a requirement that the Register record more than one address, if more than one address is nominated by the member. Section 23 of the Acts Interpretation Act 1901 (Cth) provides that 'words in the singular number include the plural'. 2. Address is a normal English word which, when used as a noun, has a variety of meanings. The relevant definition in the Macquarie Dictionary contains two meanings 'a place where a person lives or [a place where a person] may be reached'.[20] The relevant definition of 'reach' in the Macquarie Dictionary is 'to establish communication with'.[21] 3. The Act contemplates that: 1. a person, who inspects the register, may use the information to communicate with members providing it is for a proper purpose as described in s 177(1A) of the Act; and 2. a company may use an 'electronic address (if any) nominated by a member' for the purpose of receiving notifications of meetings.[22] 4. The principal purpose for a member nominating an address, or more specifically an electronic address, is to permit communications and receipt of notices relevant to the company's affairs. Accordingly, in my opinion, the legislative intent of requiring the register to contain the address of the member is to record the addresses, whether physical, electronic or otherwise, which the member has nominated for the purposes of receiving communications. 5. To limit the meaning of 'address' to a residential address, in s 169, would in some cases substantially interfere with the legislative intention of permitting a person, who has inspected the Register, to communicate with the members for an approved purpose, for the following reasons: 1. The cost and inconvenience of mailing communications to numerous members of a corporation is substantially greater than communicating by email. In this case, the plaintiff has incurred $56,000 as a result of mailing out communications to members' residential addresses. 2. In parts of Australia, and overseas, delivery services are not available to residential addresses. Such persons rely upon post office boxes, roadside delivery and in more recent times electronic addresses, for the purposes of receiving communications.

1. The fact that the legislature did not intend the word 'address' to be limited to a residential address, when used generally in the Act, is apparent from s 205D because the subsection provides that a person's address for the purposes of a notice or application under the specified subsections must be their 'usual residential address' (except in the limited circumstances prescribed in s 205D(2), in which they are entitled to give an alternative address). The specified subsections do not include s 169 of the Act, and it is to be observed that no similarly limited meaning of address is prescribed for s 169.[23]

1. It would be incongruous for the Act to permit a company to record one address in the official register; but then record a second address on another register, particularly when it is the latter address that the company uses for the purpose of communications with its members.
2. In the circumstances, I consider that the broader interpretation of the word 'address' in s 169 of the Act is 'reasonably open' and 'consistent with the language in fact used by the legislature'.[24] The broader meaning in the section is also consistent with:
   1. The fact that the legislature uses more specific addresses, such as 'residential' and 'electronic', when a narrow meaning is required for other specified sections of the Act; and
   2. the legislative purpose apparent in Chapter 2 of the Act to facilitate communication with members for proper purposes by persons entitled to inspect the register.
3. I do not accept that the above indications of the legislative intent are outweighed by the fact that s 249J(3)(b) of the Act permits service by post at the address of the member in the register of members, for the following reasons:
   1. It is unsurprising that the legislature would contemplate that the 'address' in the register would include the residential address. However, that is not inconsistent with s 169 requiring the recording of another address nominated by the member for the purpose of receiving communications. As Yates J said in MDA National Limited v Medical Defence Australia Limited (No 2):[25]

The Act does not define an "address" for the purposes of the requirement in s 169(1)(a) of the Act , or indeed, so far as I can see, for any other purpose under the Act. Section 249J of the Act, dealing with the giving of notices of meeting, distinguishes between an address for the member in the register of members to which notice can be posted, and an electronic address nominated by the member: see s 249J(3)(b) and (c). This indicates that the requirement in s 169(1)(a) is for an address which has a physical location to which mail can be sent by post. This would seem to be a minimum requirement for an "address" in a register of members. However, there appears to be nothing which would prohibit the inclusion of additional information in a register of members, including, for example, an email address provided by the member.

With respect, I endorse these observations. It is to be noted in that case it was conceded that the register recorded the email addresses of members, and his Honour only needed to decide that the obligation under s 173(1) conferred a right to inspect the whole of the register and not just the information that the register, as the minimum, must contain.

1. I reject the Club's submission that the Act does not refer to electronic addresses as a form of 'address'. Subsection 600G(4)(b) of the Act refers to 'a nominated electronic address',[26] and s 249(3)(c) of the Act (prior to its repeal this year[27]) recognised an 'electronic address'. The fact that the Act refers to such limited forms of address (together with the reference to 'residential address' in s 205D) when appropriate, supports a broader interpretation when the Act simply refers to the more general term, 'address'.

1. Neither do I consider privacy concerns militate against requiring an electronic address nominated by the member to be recorded in the register. The legislature has permitted access to addresses of members of a corporation for proper purposes and prescribed penalties for unauthorised use. One may expect that there would be greater concerns about disclosure of residential addresses than email addresses.
2. As a result of the Club's concession that an order for inspection should be made if it is required by s 169(1) of the Act to record electronic addresses nominated by its members, it is not necessary for me to consider the question of whether the Register as maintained by the Club includes details contained on the Archtics platform other than those matters, which are required under s 169 of the Act. Accordingly, given the very limited time available to determine this application, I do not propose to do so.
3. In the circumstances, the parties propose to order as follows:
   1. By 8.00pm on 21 October 2022, the defendant provide to the plaintiff's solicitors a list of the names and email addresses of the Members listed in the Excel spreadsheet previously provided to the plaintiff under cover of the email from Mr David Goldberg of the defendant dated 1 October 2022 at 1.31pm.
   2. By 10.00am on 27 October 2022, the plaintiff and its solicitors destroy copies of the list provided by the defendant pursuant to order 1.

3. Costs are reserved.

4. There is liberty to apply

[2] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ) ('Project Blue Sky').

[5] See examples cited in Commissioner of State Revenue v EHL Burgess Properties Pty Ltd [2015] VSCA 269, [56]-[62] and the discussion in Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230, [32]-[48] (Osborn and Kyrou JJA) and Lowe v The Queen [2015] VSCA 327; (2015) 48 VR 351, 357-9 [12]-[18] (Warren CJ).

[6] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). The expression was adopted by the High Court in Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664, 671 [22] (French CJ, Hayne, Kiefel, Gageler and Keane JJ) and also by the Court of Appeal in DPP v Walters [2015] VSCA 303; (2015) 49 VR 356, 358 [2] (Maxwell P and Redlich, Tate and Priest JJA).

[7] This approach 'needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction': see Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, 235 (Dawson J).

[8] For this purpose, courts may have regard to reports of law reform bodies: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).

1. [9] Federal Commissioner of Taxation v Consolidated Media Holdings [2012] HCA 55; (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 306 (Gibbs CJ), 324 and 334 (Aickin J).

[10] Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, 235 (Dawson J). See also s 15AB Acts Interpretation Act 1901 (Cth).

[11] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619, 642 [99] (Crennan J).

[12] Francis Bennion, Statutory Interpretation: A Code (Butterworths, 3rd ed, 1997) 343-4; referred to with approval in Project Blue Sky (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ).

[13] Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd [2016] VSCA 328, [53] (Warren CJ, Whelan JA and Riordan AJA) (citations omitted).

[14] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).

[15] Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531, 549 [39] (French CJ, Crennan and Bell JJ). Although the Court was here referring to a modified meaning as one which added or omitted words, a fortiori, it must also be a requirement whenever a court is to infer that the legal meaning is other than a literal or grammatical meaning.

[17] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378, 390 [26] (French CJ and Hayne J).

[18] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 321 (Mason and Wilson JJ).

[19] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).

[20] Macquarie Dictionary (online at 15 November 2022) 'address' (def 2).

[22] Corporations Act 2001 (Cth) s 249J(3).

1. [23] The purpose of the requirement for a residential address in s 205D of the Act is for the enforcement of the payment of any judgment sum. As much is apparent from the section, because under s 205D(4), if a person uses an alternative address, ASIC may give details of the person's actual residential address 'for the purposes of enforcing the judgment debt'. It is notable that all of the specified subsections (except s 205H(2)) provide for strict liability offences.

[25] [2014] FCA 1071, [25].

[26] As introduced by s 19 of Schedule 4 of the Corporations Amendment (Corporate Insolvency Reforms) Act 2020; but the term 'electronic address' was also used in sub-sections 600G(2) and (5) in the previous version of the section introduced by s 120 of Schedule 1 of the Corporations Amendment (Insolvency) Act 2007.

[27] Repealed by s 7 of Schedule 2 of the Corporations Amendment (Meetings and Documents) Act 2022.