Avz Minerals Ltd v Fat Tail Holdings Pty Ltd
[2023] WASC 403
•26 OCTOBER 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: AVZ MINERALS LTD -v- FAT TAIL HOLDINGS PTY LTD [2023] WASC 403
CORAM: HOWARD J
HEARD: 26 OCTOBER 2023
DELIVERED : 26 OCTOBER 2023
FILE NO/S: COR 154 of 2023
BETWEEN: AVZ MINERALS LTD
Plaintiff
AND
FAT TAIL HOLDINGS PTY LTD
Defendant
Catchwords:
Competing applications for declarations - Sections 168(1)(a), 169(1)(a), and 173(3) of the Corporations Act 2001 (Cth) - Whether email addresses form part of the share registry where a member has nominated one to receive communications - Where no separate register held by the company - Whether Court should follow a decision of a co-ordinate court in the integrated national court system exercising federal jurisdiction - Orders made in terms of defendant's interlocutory process - Application dismissed
Legislation:
Constitution (Cth)
Corporations Act 2001 (Cth)
Corporations Regulations 2001 (Cth)
Judiciary Act 1903 (Cth)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | P Neskovcin KC and E Nadon |
| Defendant | : | S K Dharmananda SC and J Sippe |
Solicitors:
| Plaintiff | : | DLA Piper Australia - Perth |
| Defendant | : | Thomson Geer - Perth |
Case(s) referred to in decision(s):
Ardizzone v Valentino Nominees Pty Ltd [2019] WASC 55
Aurora Funds Management Ltd v Primary Securities Ltd [2019] NSWSC 630; (2019) 138 ACSR 1
Duckworth v Water Corporation [2012] WASC 30; (2012) 261 FLR 185
Electricity Generation and Retail Corporation t/as Synergy v EIT Kwinana Partner Pty Ltd [2022] WASCA 3
Laufer v Gear [2021] WASCA 2
Lawrence v Melbourne Football Club Ltd [2022] VSC 658; (2022) 373 FLR 10
MDA National Ltd v Medical Defence Australia Ltd [No 2] (2014) 225 FCR 476
Mohammadi v Bethune [2018] WASCA 98
Mustac v Medical Board of Western Australia [2007] WASCA 128
Pilbara Iron Co (Services) Pty Ltd v Chevron (TAPL) Pty Ltd [2020] WASC 296
Re Brashs Pty Ltd (1994) 15 ACSR 477
Re PanBio Pty Ltd [2000] QSC 366; (2000) 35 ACSR 458
Rizeq v State of Western Australia (2017) 262 CLR 1
Salini-Impregilo SPA v Francis [2020] WASC 72
HOWARD J:
At the conclusion of the hearing on 26 October 2023 I made orders broadly in terms of the defendant's interlocutory process. These are my reasons for doing so.
By an Originating Process dated 2 October 2023, the plaintiff, AVZ Minerals Ltd (AVZ Minerals), sought a declaration that it (AVZ Minerals) had: 'complied with its obligations under s 173(3) of the Corporations Act 2001 (Cth)[1] on 11 September 2023'.
[1] Unless otherwise indicated, all statutory references from here are to the Corporations Act 2001 (Cth).
The defendant, Fat Tail Holdings Pty Ltd (Fat Tail Holdings), by an Interlocutory Process dated 3 October 2023, sought a declaration: 'that once a member of [AVZ Minerals] had nominated an email address or other electronic address for the purpose of receiving shareholder communications then, on a proper construction of s 169(1)(a), the register of members … under ss 168(1)(a) and 169 … must contain the email address or other electronic address nominated by the member for that purpose'.
Fat Tail Holdings then sought a consequential Order pursuant to s 1303 or alternatively s 1324, if it was successful, to the effect that within 48 hours a complete copy of the AVZ Minerals share register as at 4 September 2023, including any email addresses and other electronic addresses, be provided.
Fat Tail Holdings, by its solicitors on 4 September 2023,[2] requested the register of AVZ Minerals and in accordance with s 173(3A) said it was 'for the purpose of communicating with AVZ Minerals shareholders in relation to their shareholding in AVZ Minerals'.
[2] Annexed as BJC-4 to the affidavit of Benjamin Jeffrey Cohen affirmed 2 October 2023.
That 4 September 2023 letter also said:
As per the decision in Lawrence v Melbourne Football Club Ltd [2022] VSC 658, please ensure that the Shareholder Register includes AVZ Minerals shareholders' email addresses where an AVZ Minerals shareholder has nominated email as a means of communication.
It is common ground that on 11 September 2023, AVZ Minerals supplied what was described as a 'soft copy' of the AVZ Minerals share register, but that did not contain any shareholders' email addresses; a matter taken up by Fat Tail Holdings by its solicitors in correspondence, including on 14 September 2023.[3]
[3] Annexed as BJC-7 to the affidavit of Benjamin Jeffrey Cohen affirmed 2 October 2023.
The potential significance of the issue may be seen from the fact that about 28% of AVZ Minerals shareholders have nominated email as their preferred means of communication.[4]
[4] Affidavit of Eric Roger Merven sworn 13 October 2023 [31].
There is some urgency attached to the determination of these applications. AVZ Minerals sent out the notice convening its annual general meeting on 24 October 2023[5] - the meeting being called for 23 November 2023.[6] Fat Tail Holdings wishes to communicate with the members of AVZ Minerals as close in time as possible to the calling of the annual general meeting.[7]
[5] 6 October 2023 ts 5.
[6] 6 October 2023 ts 4.
[7] 6 October 2023 ts 5.
It is not in dispute that Fat Tail Holdings is a member of AVZ Minerals. Fat Tail Holdings has nominated three people to be elected as directors of AVZ Minerals at the forthcoming annual general meeting.[8] The three prospective directors have been adjoined to the proceedings as interested non-parties.
[8] Letter from Fat Tail Holdings' solicitors dated 4 September 2023 (with the nominations attached) which appears as NCC-05 to the affidavit of Nicholas Calligaro Cole made 2 October 2023.
That letter from Fat Tail Holdings' solicitors stated that:[9]
Fat Tail are accessing a copy of the Shareholder Register for the purpose of communicating with AVZ Minerals' shareholders in relation to their shareholding in AVZ Minerals.
We confirm that Fat Tail are not accessing a copy of the Shareholder Register for a prescribed purpose under regulation 2C.1.03 of the Corporations Regulations 2001 (Cth) …
[9] Annexed as BJC-4 to the affidavit of Benjamin Jeffrey Cohen affirmed 2 October 2023.
No issue was taken as to the purpose for which Fat Tail Holdings sought a copy of the register.
The key provisions
Chapter 2C is headed 'Registers', and pt 2C.1 is headed 'Registers - generally'.
By s 168(1), relevantly:
A company … must set up and maintain:
(a)a register of members (see section 169); and
…
Section 169 then provides, relevantly:
General requirements
(1)The register of members must contain the following information about each member:
(a)the member's name and address;
…
Section 173 provides, relevantly:
(1)Rights to inspect
A company or registered scheme must allow anyone to inspect a register kept under this Chapter …
…
(3)Rights to get copies
The company or scheme must give a person a copy of the register (or a part of the register) within seven days if the person:
(a)makes an application to the company or registered scheme in accordance with subsection (3A) …
…
(3A)An application is in accordance with this subsection if:
(a)the application states each purpose for which the person is accessing the copy; and
(b)none of the purposes is a prescribed purpose …
Lawrence v Melbourne Football Club
Fat Tail Holdings contends that the principal issue of construction here was determined in the comparatively recent case of Lawrence v Melbourne Football Club Ltd,[10] and, indeed, Riordan J stated that the first (of two) issues for his determination was: 'Does the word "address" in s 169(1) … include any electronic addresses nominated by the member?'[11]
[10] Lawrence v Melbourne Football Club Ltd [2022] VSC 658; (2022) 373 FLR 10.
[11] Lawrence v Melbourne Football Club Ltd [2022] VSC 658; (2022) 373 FLR 103 [38a].
Riordan J concluded that:[12]
… the requirement under s 169(1)(a) … 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.
[12] Lawrence v Melbourne Football Club Ltd [2022] VSC 658; (2022) 373 FLR 103 [50].
His Honour gave seven reasons for having reached that conclusion.[13]
[13] Lawrence v Melbourne Football Club Ltd [2022] VSC 658; (2022) 373 FLR 103 [50].
This Court is exercising federal jurisdiction in the determining of the present questions. They are a matter arising under a law made by the Commonwealth Parliament and so within s 76(ii) of the Constitution (Cth).
This Court's power to hear and determine that matter of federal jurisdiction is invested by s 39(2) of the Judiciary Act 1903 (Cth).
As Kiefel CJ in Rizeq v State of Western Australia said:[14]
A State court invested with federal jurisdiction, while acting in that capacity, becomes part of the Federal Judicature. Chapter III provides for an 'integrated national court system'.
[14] Rizeq v State of Western Australia (2017) 262 CLR 1 [5] (citations omitted).
The plurality (Bell, Gageler, Keane, Nettle and Gordon JJ) in Rizeq said:[15]
The 'Federal Judicature' for that purpose is not limited to the High Court and other federal courts created by the Parliament of the Commonwealth. It includes, as a 'component part', State courts invested with federal jurisdiction.
…
Chapter III of the Constitution makes provision for what has come aptly to be described as an 'integrated national court system' …
[15] Rizeq v State of Western Australia (2017) 262 CLR 1 [45], [49] (citations omitted).
Riordan J, obviously enough, decided Lawrence in the Victorian Supreme Court in the exercise of federal jurisdiction when that Court formed part of the integrated national court system (of which this Court is also a part while exercising federal jurisdiction).
For the reasons below, I consider that I should approach the decision in Lawrence no differently from it being a judgment of another Judge of this Court. That is, I ought follow it unless I consider the decision to be plainly wrong.
In Duckworth v Water Corporation, Edelman J (then in this Court) said:[16]
There is considerable authority supporting the approach of Hayne J in Re Brashs Pty Ltd,[17] namely that trial judges should follow other decisions of equivalent trial judges in Australia on Commonwealth or uniform national law unless those decisions are plainly wrong ….
[16] Duckworth v Water Corporation [2012] WASC 30; (2012) 261 FLR 185 [31] (citations following omitted). In this respect Duckworth has been followed in this Court in Pilbara Iron Co (Services) Pty Ltd v Chevron (TAPL) Pty Ltd [2020] WASC 296 [60] (Archer J); Salini-Impregilo SPA v Francis [2020] WASC 72 [100] (Archer J); Ardizzone v Valentino Nominees Pty Ltd [2019] WASC 55 [718] (Archer J).
[17] Re Brashs Pty Ltd (1994) 15 ACSR 477 (Hayne J); see also Re PanBio Pty Ltd [2000] QSC 366; (2000) 35 ACSR 458 [12] (Byrne J).
Herzfeld and Prince, Interpretation (2nd ed) [33.390] state:
The predominant view is that, in the absence of binding authority to the contrary, Supreme Court and Federal Court judges at first instance should follow a decision of a judge at first instance in a co-ordinate court of another Australian jurisdiction on the interpretation of federal and uniform national legislation, and perhaps the common law, unless convinced that the decision is plainly wrong. There are, however, conflicting views. (citations omitted)
As Herzfeld and Prince identified,[18] various formulations have been used such as: 'plainly incorrect', 'clearly wrong', 'clearly incorrect', 'manifestly wrong' and 'manifestly incorrect'.
[18] Herzfeld and Prince, Interpretation (2nd ed) at footnote 176.
With respect to the contrary position, in my view the approach adopted by Edelman J in Duckworth should be followed and, further, in my view, it flows from the statements of principle I identified from Rizeq as to there being one integrated court system exercising federal jurisdiction.
I consider that approach is consistent with the observations of the Court of Appeal in Mustac v Medical Board of Western Australia.[19] Although Martin CJ approached the question as one of judicial comity, I think, with respect, that the later statements of principle cited above from Rizeq suggest that the matter may have moved from a practice of judicial comity to being a principle (effectively) of statutory construction where it applies.
[19] Mustac v Medical Board of Western Australia [2007] WASCA 128 [38] - [39] (Martin CJ).
AVZ Minerals submitted that as Lawrence was a first instance decision of a different court, it is not binding on this Court. For the above reasons, I do not accept the force of that submission. AVZ Minerals points to matters against the correctness of Lawrence and submits that it is wrong.
In my view, the decision of Riordan J not only is not 'plainly wrong' but, in my respectful view, is correct.
I can be brief in my reasons for agreeing, with respect, with Riordan J. That will not interfere with the plaintiff's appeal rights as there is only one true construction of the relevant statutory provisions,[20] and so my reasoning will not be of much, if any, significance in any appeal. And as noted, there is some urgency about the determination of this question at least from Fat Tail Holdings' perspective.
[20] Electricity Generation and Retail Corporation t/as Synergy v EIT Kwinana Partner Pty Ltd [2022] WASCA 3 [229]; Laufer v Gear [2021] WASCA 2 [20].
Riordan J in Lawrence set out the relevant statutory provisions at some length ([31] - [37]) and the relevant principles of construction ([40] ‑ [48]). I have not sought to repeat them here.
To those may be added the general principles of statutory interpretation which are well established and were summarised by the Court of Appeal in Mohammadi v Bethune,[21] and which do not need to be re‑stated here.
[21] Mohammadi v Bethune [2018] WASCA 98 [31] - [36] (Martin CJ, Mazza & Beech JJA).
In my view, in the broad, the statutory purpose of a company having to set up and maintain a members' register include:
(1)to allow a definitive statement as to who is a registered member, from when and in respect of how many shares of which particular class; and
(2)to allow communication with members.
That the register must be available for inspection and that copies must be made available of it (s 173(1) and (3)) suggests strongly to me that a person inspecting and receiving a copy of the register is to be, effectively, in the same position vis‑a‑vis communicating with the members as the company itself.
With respect, the third, fourth and sixth reasons given by Riordan J appear to me to be particularly significant. They are, respectively:
c.The Act contemplates that:
i.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
ii.a company may use an 'electronic address (if any) nominated by a member' for the purpose of receiving notifications of meetings.[22]
d.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.
f.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]
[22] Corporations Act 2001 (Cth) s 249J(3).
[23] This is the footnote from the original: 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.
AVZ Minerals placed considerable reliance on the decision of Yates J in MDA National Ltd v Medical Defence Australia Ltd [No 2],[24] and, in particular, [25] - [26] where, relevantly, it was said:
[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 …
[26]Section 173(1) of the Act confers a general right to inspect a register, and s 173(3) requires a copy to be provided of a register, required to be kept under Chapter 2C of the Act, including a register of members … This must mean all information contained in the register, not simply the information that the register, as a minimum, must contain. (emphasis added)
[24] MDA National Ltd v Medical Defence Australia Ltd [No 2] (2014) 225 FCR 476.
AVZ Minerals submitted that Yates J had held that 'address' within s 169(1)(a) did not include email addresses supplied by members.
I do not accept that submission. The case must, of course, be read against its facts.
In that case, MDA National had a database which included email addresses of its members and that database stood as its register: [19]. MDA National wished to accede to a request to supply the register (including email addresses) but sought a direction of the court before it did so.
In those circumstances, I think the finding by Yates J is to the effect that where the register contains email addresses supplied by the members then a right to inspect the register (and presumably have a copy of it) would include, at the least, email addresses.
That was how Riordan J in Lawrence: [52(a)] understood the decision.
To apply the decision of Yates J in MDA National, to the present case, it seems to me that if Fat Tail Holdings has a right to inspect the 'register' of AVZ Minerals and, effectively, the holder database maintained by Automic Pty Ltd (Automic) (discussed below) contains email addresses, then that should form part of the 'register' supplied to Fat Tail Holdings.
AVZ Minerals also referred to the decision of Aurora Funds Management Ltd v Primary Securities Ltd.[25]
[25] Aurora Funds Management Ltd v Primary Securities Ltd [2019] NSWSC 630; (2019) 138 ACSR 1 [28].
In that case - which concerned whether a meeting called was invalid - the court identified that much of the underlying difficulty arose from requests for a copy of the relevant register of members. Rees J said:
Regulation 2C.1.02 of the Corporations Regulations provides that a copy of the register must be provided as a delimited text file produced by a commercially available spreadsheet or database application, and copied onto a CD-ROM or a USB portable memory device. It is apparent from this regulation that the register must be provided in a usable format to permit convenient communication with a large number of members. It also seems to me that the regulation requires that the register be provided in the form in which it is held by the responsible entity or its registry, that is, without deleting or re-formatting the information, for example, by deleting email addresses where members have provided one. (emphasis added)
My observations in [45] above are also apposite to the application of the emphasised statement in Aurora Funds Management to the facts here.
Of course, the approach I have adopted about the precedential value of the decision in Lawrence extends equally to the decision of Yates J in MDA National and Rees J in Aurora Funds Management.
Suffice it to say for present purposes that I do not consider that the three cases are in any relevant respect inconsistent.
AVZ Minerals' share register
The share register of AVZ Minerals is kept by Automic. Mr Merven, one of Automic’s managers, made an affidavit on 13 October 2023 which was relied upon by AVZ Minerals.
Mr Merven deposes to having principal responsibility for Automic's 'account' with AVZ Minerals and deposes to assisting AVZ Minerals to, amongst other things, hold its annual general meeting.[26]
[26] Affidavit of Eric Roger Merven sworn 13 October 2023 [9].
Mr Merven deposes to Automic maintaining a database which he defines as the holder database.[27]
[27] Affidavit of Eric Roger Merven sworn 13 October 2023 [10] - [11].
Automic does not keep a separate (from the holder database) shareholder register for any of its issuers (which include AVZ Minerals).[28] Mr Merven deposes that it 'would be impractical' for Automic to keep separate shareholder registers in addition to its holder database.[29]
[28] Affidavit of Eric Roger Merven sworn 13 October 2023 [14] - [15]. Mr Merven refers to the approximately 630 ASX listed companies, unlisted funds, unlisted companies and larger private entities which it supplies share registry services as 'issuers'. AVZ Minerals is one of those issuers.
[29] Affidavit of Eric Roger Merven sworn 13 October 2023 [15].
Rather, Automic 'segregates' information in the holder database so that:
14.1an issuer can only see, access and manage information relating to its own holders and their holdings in it (and not information relating to another issuer), including the information required to be kept as the issuer's public registers; and
14.2a holder can only see, access and manage information relating to the holder's own holding and personal details held by Automic (and not information relating to another holder).
At [10] and [11] Mr Merven deposes:
10Automic maintains a database of information about its issuers' holders (including shareholders). In relation to shareholders, this holder database includes, at least:
10.1name of shareholder;
10.2shareholder's address;
10.3number of shares held;
10.4the date the shareholder first acquired shares in the issuer;
10.5a shareholder identification number, being either a Holder Identification Number (HIN) or a Securityholder Reference Number (SRN); and
10.6communication preferences (which are largely selected by deeming or default with an ability to opt-out or change, see paragraphs 26 to 30 below).
11Automic's holder database contains additional information in relation to its issuers' shareholders, including:
11.1telephone number(s);
11.2tax file number;
11.3Australian Business Number;
11.4electronic address (eg email address);
11.5bank account details;
11.6dividend reinvestment plan;
11.7return mail flag; and
11.8PID or Participant ID (used to identify organisations authorised to trade on the market, or to settle and clear trades with the market).
It is unclear as to why Mr Merven broke up the information in the holder database in the way he did between [10] and [11], as quoted above. It is unclear what 'additional' in [11] is intended to connote.
At [18] - [23], Mr Merven deposes to Automic's communicating and engaging with the Clearing House Electronic Subregister System (CHESS).
Those paragraphs might be summarised by saying that CHESS requires a physical address for a shareholder at a minimum: [20.2], [21], but also accepts (and communicates to Automic) 'additional information' from members including the shareholder's email address: [22.4].
Mr Merven further deposes (and emphasis added):
24Automic treats physical addresses and electronic addresses differently in its engagement with issuers, holders and other stakeholders.
25In relation to shareholders of ASX-listed companies, including AVZ, when onboarding a new shareholder (i.e. when a person becomes a shareholder for an issuer for whom Automic provides share registry services), Automic receives mandatory (see paragraph 20 above) and additional information (see paragraph 22 above), principally from CHESS.
26Automic communicates with shareholders on behalf of issuers in accordance with their preferences, which may be selected by deeming or default or by an actual election or opt-out. In this regard, Automic offers four 'communications preferences' to AVZ's shareholders, specifically:
26.1'Email all Investor Communications';
26.2'Post all Investor Communications, including the annual report and physical Notice of Meeting';
26.3'No annual report, all other Investor Communications by post (no physical notice of meeting)'; and
26.4'Post Physical Notice Of Meeting and other investor communications (No annual report)'.
27When a new shareholder is onboarded, if that new shareholder:
27.1provides an email address as part of onboarding (eg via CHESS as described in paragraph 22.4 above), then that shareholder is deemed (or defaults) to have selected the 'Email all Investor Communications' communications preference;
27.2does not provide an email address as part of onboarding, then that shareholder is deemed (or defaults) to have selected the 'No annual report, all other Investor Communications by post (no physical notice of meeting)' communications preference until there is a subsequent deemed or actual election to change the shareholder's communications preference.
28A shareholder is also deemed (or defaults) to have selected the 'Email all Investor Communications' communications preference if the shareholder provides an email address to Automic in connection with the appointment of a proxy to vote on the shareholder's behalf.
…
31I am informed by Automic's holder database and verily believe that, as at 4 October 2023, AVZ had 21,107 shareholders. The breakdown of communication preference by number and percentage of AVZ shareholders was as follows:
Communication preference deemed or actual)
Number of AVZ shareholders
Percentage of total AVZ shareholders
'Email all Investor Communications'
5,914
28%
'Post all Investor Communications, including the annual report and physical Notice of Meeting'
0
0
'No annual report, all other Investor Communications by post (no physical notice of meeting)'
15,130
72%
'Post Physical Notice Of Meeting and other investor communications (No annual report)'
63
0.003%
Totals:
21,107
100%
Mr Merven at [39] and [40] deposes to a request being made by AVZ Minerals' company secretary to provide 'a copy of AVZ [Minerals]' shareholder register, as at 4 September 2023': [39.2], and him sending a 'password‑protected copy of AVZ [Minerals]' shareholder register, as at 4 September 2023' to Fat Tail Holdings: [40].
It is of some significance that Mr Merven does not depose to the specifics of the request made by AVZ Minerals to him as to what Automic was to provide to Fat Tail Holdings.
With respect, AVZ Minerals' submissions based on Mr Merven's affidavit (and, indeed, [39] and [40] of Mr Merven's affidavit) are, on the relevant point, circular. The submissions are premised, in places, on AVZ Minerals’ preferred conclusion being accepted that 'address' in the relevant provisions does not include an electronic address. That is, that the share register does not contain email addresses.
That may be thought to be somewhat curious in circumstances where Mr Merven deposes plainly (as cited above) that there is no separate or additional shareholder register, but there is only the holder database which is segregated by issuer.
What is plain, I think, from Mr Merven's affidavit is that where an AVZ Minerals' shareholder has provided an email address then that is recorded in the holder database and is available to AVZ Minerals to contact that member where the member has indicated that email is their preferred address.
What is also readily apparent, in my judgment, is that AVZ Minerals made a deliberate decision on 11 September 2023 that Automic should supply a subset of the information about members which it holds; such subset including a physical address but not an email address. Counsel for AVZ Minerals confirmed that was the case.
That AVZ Minerals uses email addresses to contact members who have provided one is plain from Mr Merven's affidavit. That mode of communication is allowed for and facilitated by AVZ Minerals' Constitution and in particular by cl 26.1(c) and cl 26.4(b).
AVZ Minerals' Constitution
The Constitution of AVZ Minerals is annexed as BJC‑2 to the affidavit of Mr Cohen (Constitution).[30]
[30] Affidavit of Benjamin Jeffrey Cohen affirmed 2 October 2023.
Clause 12.5 of the Constitution provides:
12.5Notice
A notice of a general meeting shall be given in accordance with the requirements of the Corporations Act, clause 26 and the Listing Rules, and:
(a)must specify the place, the day and the time of the meeting;
(b)must state the general nature of the business to be transacted at the meeting;
(c)must, if a special resolution is proposed at the meeting, set out an intention to propose the special resolution and state the resolution;
(d)must include such statements about the appointment of proxies as are required by the Corporations Act;
(e)must specify a place and fax number for the purposes of receipt of proxy appointments; and
(f)may specify an electronic address for the purposes of receipt of proxy appointments,
and shall include any other information required to be included in the notice by the Listing Rules. The non-receipt of a notice of a general meeting by a Shareholder or the accidental omission to give this notice to a Shareholder shall not invalidate any resolution passed at the meeting.
Clause 26 of the Constitution provides relevantly as follows:
26.NOTICES
26.1Service by the Company to Shareholders
A notice may be given by the Company to any Shareholder either by:
(a)serving it on him or her personally; or
(b)sending it by post to the Shareholder at his or her address as shown in the Register of Shareholders or the address supplied by the Shareholder to the Company for the giving of notices to this person. Notices to Shareholders whose registered address is outside Australia shall be sent by airmail or, where applicable, by the means provided for by clause 26.9; or
(c)sending it by fax or other electronic means (including providing a URL link to any document or attachment) to the fax number or electronic address nominated by the Shareholder for giving notices.
…
26.3Service of notices by Directors, Alternate Directors and Shareholders to the Company
Without limiting any other way that a communication may be given under the Corporations Act, a notice may be given by a Director or Alternate Director or a Shareholder to the Company by:
(a)delivering it to the Company's registered office;
(b)sending it by ordinary post to the Company's registered office;
(c)sending it by fax or other electronic means to the principal fax number or electronic address at the Company's registered office.
26.4Deemed receipt of Notice
A notice will be deemed to be received by a Shareholder when:
(a)where a notice is served personally, service of the notice shall be deemed to be effected when hand delivered to the member in person;
(b)where a notice is sent by post, service of the notice shall be deemed to be effected by properly addressing, pre-paying and posting a letter containing the notice, and to have been effected, in the case of a notice of a meeting, on the date after the date of its posting and, in any other case, at the time at which the letter would be delivered in the ordinary course of post;
(c)where a notice is sent by facsimile, service of the notice shall be deemed to be effected upon confirmation being received by the Company that all pages of the notice have been successfully transmitted to the Shareholder's facsimile machine at the facsimile number nominated by the Shareholder; and
(d)where a notice is sent to an electronic address by electronic means, service of the notice shall be deemed to be effected once sent by the Company to the electronic address nominated by the Shareholder (regardless of whether or not the notice is actually received by the Shareholder).
26.5Notice to Joint Holders
A notice may be given by the Company to the joint holders of a Share by giving the notice to the joint holder first named in the Register of Shareholders in respect of the Share.
26.6Notices to Personal Representatives and Others
A notice may be given by the Company to a person entitled to a Share in consequence of the death or bankruptcy of a Shareholder by serving it on him or her or by sending it to him or her by post addressed to the person by name or by the title or representative of the deceased or assignee of the bankrupt, or by any like description, at the address (if any) supplied for the purpose by the person or, if such an address has not been supplied, at the address to which the notice might have been sent if the death or bankruptcy had not occurred.
Disposition
For the above reasons I made Orders broadly in line with Fat Tail Holdings' interlocutory process dated 3 October 2023. It followed that I dismissed AVZ Minerals' competing Originating Process dated 2 October 2023.
I heard the parties as to the exact form of the Orders to be made. That discussion does not need to be recorded here.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Associate to Hon Justice Howard
26 OCTOBER 2023
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