"....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