YOUNG and ORS v COTTER and ORS

"The Annual General Meeting of the association is, subject to the Act and to R23, to be convened on such date and at such place and time as the committee thinks fit."

R29 is as follows: "Adjournment

(1) The chairperson of a general meeting at which a quorum is present may, with the consent of the majority of members present at the meeting, adjourn the meeting from time to time and place to place, but no business is to be transacted at an adjourned meeting other than the business left unfinished at the meeting at which the adjournment took place.

(2) If a general meeting is adjourned for 14 days or more, the secretary must give written or oral notice of the adjourned meeting to each member of the association stating the place, date and time of the meeting and the nature of the business to be transacted at the meeting.

(3) Except as provided in CL(1) and CL(2), notice of an adjournment of a general meeting or of the business to be transacted at an adjourned meeting is not required to be given."

RE-CONVENING THE MEETING

The appellants contended that model R24(1) mandated that the Annual General Meeting could only be re-convened by the Committee and that the Secretary acted without authority in purporting to re-convene it without the Committee's approval. Santow J said:

"....whilst CL8 of the Constitution lays down no express requirement as to who shall determine the date, time and place of the annual general meeting, it is clear enough from CL3(b) of the Constitution that the Secretary would have power to do so and indeed would be the natural person to do so. Under CL3(b) of the Constitution it is provided that 'under his [the President's] direction', 'the Secretary will be the Chief Executive Officer and carry out all the instructions given to him or her by the Committee'. Thus the Secretary as the Chief Executive Officer would clearly have authority to convene such a meeting as well as authority to determine in the Secretary's discretion its date, place and time. This is unless that discretion had earlier been curtailed either by a direction from the President or by instructions from the Committee. But there is no requirement under the Constitution for the Secretary first to seek either a direction from the President or an instruction from the Committee, nor to await the initiative of either President or Committee, before the Secretary may elect to convene a meeting. Nor, given the senior executive status of the Secretary, would this be implied.

.... Lam therefore satisfied that CL8, read with CL3(b), does make provision 'in relation to' the convening of annual general meetings by the Secretary and comprehends the power on the secretary's part to determine date, time and place in the absence of countermanding direction or instruction. These provisions of the Constitution therefore leave no gap for the model rules to fill in relation to that matter. The regime of the Club's Constitution 'covers the field' in relation to that matter;..."

URJ YOUNG and ORS v COTTER and ORS (Sheller JA) 5

$19(3) contemplates that the model rules shall, in relation to any matter for which they make provision but the rules of an association do not, be deemed to be included in the rules of the association. His Honour's approach to the operation of this subsection would make its application very complex. CL8 of the Constitution provides for the Annual General Meeting to be held once a year, preferably as early as convenient in April, but not more than fifteen months after the previous Annual General Meeting and on a date to be notified to all members at least thirty days prior to the meeting. It deals with voting power, who will chair the meeting and the order of business and proscribes any motion from an unfinancial member. CL10 deals with the quorum and CL10A with absentee and proxy voting. The Constitution says nothing about who may convene an Annual General Meeting or determine where and when it will be held. Santow J thought that this gap in the express provisions of the Constitution was filled by CL3(b) and that the Secretary as the Chief Executive Officer had authority to convene such a meeting as well as authority to determine in his or her discretion its date, place and time.

With the greatest respect I do not agree with this interpretation of the Constitution. CL3(b) speaks of the Secretary being the Chief Executive Officer under the direction of the President and carrying out "all the instructions given to him or her by the Committee". The paragraph is the opposite of a grant of power to make independent decisions. In particular I do not think it enables the Secretary, contrary to the clear language of model R24(1), to convene the Annual General Meeting, without the approval of the Committee, at such place and time as he or she determines. His Honour's conclusion derived from an analysis which involved, amongst other things, holding, by analogy with the operation of s109 of the Federal Constitution, that the Club's Constitution covered the field. The officers and members of associations making daily decisions about how the rules of the Club work should not be expected to engage in such analysis. The words of model R24(1) would lead the average reader to think that it dealt precisely with the convening of an Annual General Meeting subject only to the Act and to R23, if that rule applied. The inter-action of the model rules and the rules of an association must be governed, in the first instance, by consideration of the matters with which they expressly deal in direct terms, rather than by consideration of whether clauses in the rules, which do not directly deal with a matter the express subject of the model rules, could be said in some general sense to cover the field. CL24(1) says that the Annual General Meeting of the association is to be convened on such a date and at such place and time as the committee thinks fit. In my opinion, pursuant to s19(3), that rule was deemed to be included in the Constitution. However, again with the greatest respect, that is irrelevant to the resolution of the present problem. No one suggested the Annual General Meeting had not been duly convened.

An officer or member of the Club concerned with the adjournment of a general meeting would find nothing said expressly about that matter in the Constitution but would find the matter addressed under the heading "Adjournment" in model R29. Santow J held that, since CL3(b) of the Constitution enabled the Secretary to convene the Annual General Meeting, it also enabled the Secretary to re-convene it at such time and place as she considered appropriate. I can only reiterate that, in my respectful opinion, an officer or member of the Club would be hard-pressed to derive such an independent power from the words of the

6 UNREPORTED JUDGMENTS

Constitution. On the other hand model R29 plainly deals with the matter. Pursuant to s19(3) of the Act model R29 is deemed to be included in the Constitution.

This leaves the question whether the requirement that the Secretary not only may but must given written or oral notice of the adjourned meeting enabled her to determine the place and time it would be held. The appellants submitted that model R29(2) did not enable the Secretary to determine the time and date when the adjourned meeting should be held and relied upon such cases as In re Haycraft Gold Reduction and Mining Company [1900] 2 Ch 230 at 236-237 and In re State of Wyoming Syndicate [1901] 2 Ch 431 at 436-437.

The decision to adjourn and re-convene after the "requisite notice period" of thirty days meant that the meeting was adjourned for more than fourteen days. I would infer that the majority of members present at the meeting on 16 September 1994 consented to its being re-convened after the expiry of the thirty day notice period and left it to the Secretary, the person model R29(2) made responsible for giving notice of the adjourned meeting stating the date, place and time, to arrange these matters. The Annual General Meeting was held, not at the Club's premises, but at premises hired for the occasion. No doubt the obtaining of premises for the re-convened meeting was a matter that had to be arranged and the arrangement would have played a part in determining its date and time. As Santow J pointed out these arrangements were appropriately left to the Club's administrative officer, the Secretary. Accordingly, though for different reasons, I agree with Santow J that the meeting was duly re-convened.

ATTEMPTED CANCELLATION

The Secretary, in setting the place and time for the adjourned meeting was acting on the authority of a meeting of the General Body which has the final decision in all matters pertaining to the Club. The Constitution confers no power on the President or any other member to frustrate that decision. Accordingly in my opinion for that reason, if no other, the letter received from the President on 27 October 1994 was ineffective to cancel the adjourned meeting on 28 October 1994.

CONCLUSION

I propose that the appeal be dismissed with costs.

Appeal dismissed with costs.

Counsel for the appellant: DA Smallbone

Solicitors for the appellant: Pigott Stinson Stuart Thom Counsel for the respondent: GA Sirtes

Solicitors for the respondent: Parish Patience