Lawrence v Melbourne Football Club Ltd
[2022] VSC 658
•21 October 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S ECI 2022 04175
BETWEEN:
| PETER LAWRENCE | Plaintiff |
| and | |
| MELBOURNE FOOTBALL CLUB LIMITED (ACN 005 686 902) | Defendant |
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JUDGE: | Riordan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 October 2022 |
DATE OF JUDGMENT: | 21 October 2022 |
CASE MAY BE CITED AS: | Lawrence v Melbourne Football Club Ltd |
MEDIUM NEUTRAL CITATION: | [2022] VSC 658 |
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CORPORATIONS — Application to inspect company register under s 173 of the Corporations Act 2001 (Cth) — Whether electronic addresses nominated by members required to be recorded on the company register —Corporation ordered to produce electronic addresses for inspection.
STATUTORY CONSTRUCTION — Principles of statutory construction — Meaning of ‘address’ in s 169(1) of the Corporations Act 2001 (Cth).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Peters AM KC and Ms K O’Gorman | Holding Redlich |
| For the Defendant | Ms P Neskovcin KC and Mr W Newland | Ashurst Australia |
HIS HONOUR:
By originating motion filed 18 October 2022, the plaintiff applies for a declaration that, pursuant to s 173 of the Corporations Act 2001 (Cth) (‘the Act’), the defendant (‘the Club’) is to provide the plaintiff forthwith, a copy of the Club’s register (‘the Register’) in the form:
a.in which it was held and used by the Club on or immediately before 29 September 2022 in order to send an email to all voting members of the Club to notify them of the Special General Meeting to be held on 26 October 2022 (‘the Special General Meeting’); and
b.prescribed in regulation 2C.1.02 of the Corporations Regulations 2001 (Cth).
The Club, is a registered company limited by guarantee. The plaintiff is a member of the Club who has requested inspection of the Club’s register for the stated purpose of providing all voting members ‘with a copy of our draft Constitution (together with a summary and explanatory notes)’ before the members vote on the amendments to the constitution proposed by the board of the Club at the Special General Meeting.
Background
The Club is governed by a constitution dated 20 December 2006 (‘the Constitution’). Clause 28.1 of the Constitution provides with respect to the giving of notice as follows:
A notice is properly given by the Club to a person if it is:
(a)in writing signed on behalf of the Club (by original or printed signature);
(b) addressed to the person to whom it is to be given; and
(c) either:
(i) delivered personally;
(ii)sent by prepaid mail (by airmail, if the addressee is overseas) to that person's address; or
(iii)sent by fax to the fax number (if any) nominated by that person; or
(iv)sent by electronic message to the electronic address (if any) nominated by that person.
The nomination of an address by a member is not otherwise dealt with under the Constitution, however, clause 3.4(c) provides with respect to the election of directors:
The election will be conducted by posting a secret ballot to each Voting Member's nominated address. Each Voting Member will be entitled to cast that number of votes which is equal to the number of vacancies.[1]
[1]Italics added.
On 25 May 2022, the board of the Club announced its intention to review the Club’s Constitution.
By email of 31 May 2022, the Club attached a survey to members which relevantly stated:
Following an initial review of the Melbourne Football Club constitution, the Constitutional Review Working Group (CRWG) is now seeking member feedback regarding potential changes.
On this page, you are able to:
– Review the findings and recommendations of the CRWG
– Share your support for these findings from strongly disagree (1) to strongly agree (5).
Following a Zoom meeting on 15 June 2022 between the plaintiff, Mr Rennick, the Chairman of the CRWG, and Mr Goldberg, the Company Secretary, on 1 July 2022, the plaintiff sent an email to Mr Rennick and Mr Goldberg summarising his concerns about the manner in which the Board of the Club proposed to have the members vote on amendments to the Constitution.
By email of 5 July 2022 to the plaintiff, Mr Rennick confirmed that the plaintiff’s ‘issues and views’ in his email of 1 July 2022 were the same that had been articulated by the plaintiff at the Zoom meeting between parties on 15 June 2022, and were well understood by the CRWG. Mr Rennick did not consider another meeting with the plaintiff was necessary to discuss his issues and views further, but advised that the next stage would be a member forum.
By email of 11 July 2022 to Mr Rennick, the plaintiff noted that there were concerns with certain governance elements in the Constitution in addition to those previously outlined in his email of 1 July 2022.
By email of 19 July 2022 to Mr Rennick, the plaintiff attached a copy of a submission to the Club on the proposed amendments to the Constitution prepared by the plaintiff and four other members of an informal group, who styled themselves as ‘Deemocracy’ (‘the Deemocracy submission’) .
On 25 July 2022, Deemocracy placed a full page advertisement in the Herald Sun newspaper ‘CALLING ON ALL OUR MFC MEMBERS’ to read the Deemocracy submission.
On 26 July 2022, the plaintiff attended a virtual town hall meeting held by the Club at which the CRWG’s proposed amendments to the Club’s Constitution were discussed.
On 1 August 2022, the plaintiff and two other members of Deemocracy met with two members of the CRWG and were told that the CRWG did not intend to give effect to the proposals outlined in the Deemocracy submission.
By email of 3 August 2022 to the members, the Club provided an update on the status of the Club’s constitutional review. In particular, it stated that the feedback from members had resulted in ‘minor amendments and wording refinements to the proposed changes’ to the Constitution and that the Club’s Board had decided to hold the Special General Meeting to consider the changes in October 2022.
On 20 September 2022, the plaintiff again met with Mr Rennick and advised that it was unlikely that Deemocracy would support the changes proposed following the virtual town hall meeting.
By letter dated 21 September 2022 to the Company Secretary, the plaintiff requested a copy of the Register and stated that his purpose was as follows:
To write to the members of the MFC and provide them with a copy of our draft Constitution (together with a summary and explanatory notes). This communication will highlight the differences between our draft of the Constitution and the Constitution that would emerge if the Club's proposed amendments were approved. In this way the members will be more fully informed when they cast their vote at the Special General Meeting.
The reference to ‘our draft Constitution’ was to a form of constitution which had been drafted for Deemocracy by King & Wood Mallesons in August and September 2022.
By email of 28 September 2022 to the plaintiff, the Company Secretary stated that he was processing the request in accordance with the Act but noted that:
[T]he Club has asked me to convey its concern about the implications on members for such a release and any associated communication ... The specific concern is that members are not familiar with the Corporations Act and actually have an expectation that their details will be kept private. In addition, the club believes that most members will respond negatively to communication they may perceive as unsolicited from another member. Such negative response would potentially impact on the Club and on you.
By email of 29 September 2022 to the Company Secretary, the plaintiff responded stating:
We believe there are ways to mitigate any negative impact on the Club. For example, we would accept the Club communicating with members outlining our position in relation to the Constitutional changes ... In that way members would not be receiving communication directly from another member or member group. We would require you to obtain our approval in writing in respect of the communication to be sent.
By email of 29 September 2022 to the plaintiff, the Company Secretary stated that the Club considered that it would be inappropriate for the Club to communicate with all voting members on behalf of one member and attached an invoice for payment to access the Register and listed the following conditions on which the Register would be provided:
·You must not use the register except for a single communication based solely on the purpose as described in your application of 21 September
·You must not share or disclose the contents of the register to any other person
·You must not make any copies of the register
·You must destroy your copy of the register (by hard-deleting it) as soon as practicable after sending the communication to members
·You must inform me in writing once you have destroyed the register
By email of 30 September 2022 to the Company Secretary, the plaintiff confirmed his agreement to the stipulated conditions for the release of the Register.
By email of 1 October 2022 to the plaintiff, the Company Secretary attached the Register ‘in accordance with your request’. With the exception of 900 members listed without a street address, the Register attached to the 1 October 2022 email contained the names and street addresses of 48,126 voting members in an Excel spreadsheet with the following columns titled:
a. “Name_first”;
b. “Name_last”;
c. “Member since” (year);
d. “Street address - Line 1”;
e. “Street address- Line 2”;
f. “City”;
g. “State”;
h. “Zip code”; and
i. “Country”.
By email of 1 October 2022 to the Company Secretary, the plaintiff stated ‘[t]he list does not appear to contain email addresses?’.
By email of 3 October 2022 to the Company Secretary, the plaintiff requested confirmation that he would be provided with the ‘list of emails [addresses] for our proposed communication with members regarding the Special General Meeting’.
By email of 3 October 2022 to the plaintiff, Mr Goldberg replied stating ‘[n]o, email addresses are not required to be collected or provided in the member register’.
By emailed letter of 6 October 2022 to the Club, on behalf of the plaintiff, King & Wood Mallesons set out the basis for its contention that the Register, as provided to the plaintiff in the 1 October 2022 email, did not meet the bare minimum requirements under s 169(1) of the Act and, in particular, had not included email addresses and membership numbers. It requested that within 24 hours, the Club:
a.confirm whether the register provided to Mr Lawrence is indeed the true Register maintained by the Club;
b.if on the other hand, the “Product List” provided to Mr Lawrence was not a true copy of the Register, provide a true copy of the Register to Mr Lawrence in accordance with section 173(3) of the Act;
c.provide a suitable date and time for inspection of the Register at the registered office of the Club; and
d.confirm the total number of the Club’s members, the number and identity of those entitled to vote at the Special General Meeting, evidence as to how they had been identified and provide the email addresses for those members.
By letter of 11 October 2022 to King & Wood Mallesons, Ashurst Australia, solicitors for the Club, stated that the Club would not provide email addresses ‘and that information does not comprise part of the Register and is not required to be maintained under the Corporations Act’. With respect to the nature of the Register, it was explained:
The Club, in common with other Australian Football League clubs, maintains its Register using the AFL's electronic Ticketmaster’s membership and customer relationship management platform (Archtics). In accordance with the procedures adopted between the AFL and the AFL clubs, when a membership application is received by the Club (online or otherwise) in the form of an application for one of the various membership packages that are offered by the Club, the Club inputs the details of the application directly into the AFL Archtics system. When the Club requires details of its memberships for Registry purposes it then downloads those details from the AFL Archtics system.
This is, in your words, the "true" Register of the Club. A register set up and maintained by the Club in that way satisfies the requirements of section 168(1) of the Corporations Act.
By email of 13 October 2022 to the Company Secretary, the plaintiff stated:
I confirm I will be inspecting the register shortly. Thank you for assisting with this.
Just to be clear, and for the avoidance of doubt, when I attend, I would like to be able to not just inspect a paper copy of what has sent to me previously, but also any documentation that assists with me gaining access to the information that I am entitled to as a member - not only under the Corporations Act but also pursuant to the relevant provisions of the Constitution of the Melbourne Football Club Ltd.
On the same day, the plaintiff attended the offices of the Club for the purpose of inspecting the Register. The meeting took place in the boardroom and the Excel spreadsheet, which had been an attachment to the 1 October 2022 email, was projected onto the wall. No papers or physical registers were available to be examined. The Company Secretary explained to the plaintiff that the email addresses had not been included in the Register attached to the 1 October 2022 email because they were not required to be kept by the Club under the Act. Mr Goldberg stated to the plaintiff that over 200 members of the Club had requested they be notified of matters other than by way of email.
By letter of 14 October 2022 to Ashurst Australia, Holding Redlich, which was now acting for the plaintiff, referred to case law and stated that if the Register was not provided by 17 October 2022 the plaintiff ‘may be left with no choice but to commence proceedings against the MFC seeking:
(a)a declaration that he be provided with a complete copy of the register;
(b)orders delaying the SGM until such time that Mr Lawrence has had the opportunity to contact members by email; and
(c) an order that MFC pay his costs of the proceedings’.
By emailed letter of 17 October 2022 to Holding Redlich, Ashurst Australia stated they were familiar with the case law referred to and further explained:
As made clear in the correspondence with King & Wood Mallesons, the Register is maintained through data request and extraction from the Australian Football League membership and customer relationship management platform (Archtics). The Archtics platform holds substantial amounts of member data. Dates of birth and email addresses will not be provided, neither of which is referenced in section 169(1) or (7) of the Corporations Act.
Relevant statutory provisions
The plaintiff’s right to inspect the register arises under s 173 of the Act, which relevantly provides as follows:
(1)A company or registered scheme must allow anyone to inspect a register kept under this Chapter. If the register is not kept on a computer, the person inspects the register itself. If the register is kept on a computer, the person inspects the register by computer.
(2) …
(3)The company or scheme must give a person a copy of the register (or a part of the register) within 7 days if the person:
(a)makes an application to the company or registered scheme in accordance with subsection (3A); and
(b)pays any fee (up to the prescribed amount) required by the company or scheme.
ASIC may allow a longer period to comply with the request. If the register is kept on a computer, the company or registered scheme must give the copy to the person in the prescribed form.
(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 those purposes is a prescribed purpose; and
(c) the application is in the prescribed form.
(4) …
(5)The company is not required under subsection (1) or (3) to allow a person to see, or to give a person a copy that contains, share certificate numbers.
Section 177 of the Act relevantly permits the use or disclosure of information from the register for a purpose ‘relevant to the holding of the interest recorded in the register or the exercise of rights attaching to them’. It is notable that the use or disclosure of such information in an unauthorised manner is an offence of strict liability and gives rise to a liability to compensate anyone who suffers loss because of the contravention and a liability to pay to the company the amount of any profit derived from a contravention. Section 177 provides as follows:
(1) A person must not:
(a)use information about a person obtained from a register kept under this Chapter to contact or send material to the person; or
(b)disclose information of that kind knowing that the information is likely to be used to contact or send material to the person.
Note: An example of using information to send material to a person is putting a person’s name and address on a mailing list for advertising material.
(1AA) A person must not:
(a)use information obtained from a register kept under this Chapter for any purpose prescribed by regulations made for the purposes of paragraph 173(3A)(b); or
(b)disclose information of that kind knowing that the information is likely to be used for any such purpose.
(1A)Subsection (1) does not apply if the use or disclosure of the information is:
(a)relevant to the holding of the interests recorded in the register or the exercise of the rights attaching to them; or
(b) approved by the company or scheme.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1A), see subsection 13.3(3) of the Criminal Code.
(1B)An offence based on subsection (1) or (1AA) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(2)A person who contravenes subsection (1) or (1AA) is liable to compensate anyone else who suffers loss or damage because of the contravention.
(3)A person who makes a profit from a contravention of subsection (1) or (1AA) owes a debt to the company or the scheme. The amount of the debt is the amount of the profit.
(4)If a person owes a debt under subsection (3) to the scheme:
(a)the debt may be recovered by the responsible entity as a debt due to it; and
(b)any amount paid or recovered in respect of the debt forms part of the scheme property.
Under s 168(1)(a) of the Act, a company must set up and maintain a register of members.
Section 169(1) of the Act with respect to general requirements of the register provides:
The register of members must contain the following information about each member:
(a) the member’s name and address;
(b)the date on which the entry of the member’s name in the register is made.
Section 205D of the Act with respect to ‘address for officers’ provides:
Address is normally residential address
(1)A person’s address for the purposes of a notice or application under subsection 5H(2), 117(2), 205B(1), (2) or (4) or 601BC(2) must be their usual residential address unless they are entitled to have an alternative address substituted for their usual residential address under subsection (2).
Entitlement to have alternative address
(2)The person is entitled to have an alternative address substituted for their usual residential address if:
(a)their name, but not their residential address, is on an electoral roll under the Commonwealth Electoral Act 1918 because of section 104 of that Act; or
(b)their name is not on an electoral roll under that Act and ASIC determines, in writing, that including their residential address in the notice or application would put at risk their personal safety or the personal safety of members of their family.
This alternative address must be in Australia and be one at which documents can be served on the person. At any particular time, a person is entitled to have only 1 alternative address under this section.
(3) A person who takes advantage of subsection (2) must:
(a)before or at the same time as the alternative address is first included in a notice or application, lodge with ASIC notice of the person’s usual residential address; and
(b)lodge with ASIC notice of any change in the person’s usual residential address within 14 days after the change.
A notice under this subsection must be in the prescribed form.
(4)If a court gives a judgment for payment of a sum of money against a person who is taking advantage of subsection (2), ASIC may give details of the person’s usual residential address to an officer of the court for the purposes of enforcing the judgment debt.
With respect to the method for the giving of notice to members and directors, s 249J(3) of the Act provides as follows:
How notice is given
(3) A company may give the notice of meeting to a member:
(a) personally; or
(b)by sending it by post to the address for the member in the register of members or the alternative address (if any) nominated by the member; or
(c)in the manner mentioned in paragraph 110D(1)(b), (c) or (d); or
(d)by any other means that the company's constitution (if any) permits.
Regulation 2C.1.02 of the Corporations Regulations 2001 provides with respect to the form of register:
For subsection 173(3) of the Act, a copy of a register must be provided as a delimited text file:
(a)produced by a commercially available spreadsheet or database application; ad
(b) copied on to a CD-ROM or a USB portable memory device.
Issues for determination
The application raises the following issues for determination:
(a)Does the word ‘address’ in s 169(1) of the Act include any electronic addresses nominated by the member?
(b)Are the email addresses maintained by the Club on the Archtics system part of the Club’s Register?
Does the word ‘address’ in s 169(1) of the Act include any electronic addresses nominated by the member?
Defendant’s submissions
On behalf of the Club it was submitted that ‘address’ in s 169 does not include email addresses for the following reasons:
a.Section 249J(3)(b) confirms that the reference in s 169 to ‘address’ is a reference to the member’s postal address.
b.The Act does not refer to electronic addresses as a form of ‘address’.
c.The fact that the Club may communicate with members through their electronic addresses does not create an entitlement on the part of the plaintiff to use the same mechanism by virtue of seeking to access the register of members.
Principles of Construction
The primary object of statutory construction is to construe the relevant provision so that its legal meaning is consistent with:
a.the language of the relevant provision, being the text; and
b.the legislative purpose of the statute.[2]
[2]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ) (‘Project Blue Sky’).
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]Ibid 384 [78].
[4]Ibid.
Accordingly, in statutory construction, the focus is on the text and the legislative purpose as follows:
a.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]
b.To ascertain the legislative purpose, the Court first considers the text of the relevant provision in its context.[7] The context means:
i. the whole of the Act or other instrument;
ii. the existing state of the law;
iii. the mischief that the statute was intended to remedy;[8] and
iv. the history of the legislative scheme.[9]
[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) 48 VR 351, 357–9 [12]–[18] (Warren CJ).
[6]FederalCommissioner of Taxation v Consolidated Media Holdings Ltd (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) 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) 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) 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).
[9]Federal Commissioner of Taxation v Consolidated Media Holdings (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).
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]
[10]Mills v Meeking (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) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); Northern Territory v Collins (2008) 235 CLR 619, 642 [99] (Crennan J).
If the literal meaning of the text is consistent with the identified legislative purpose, the literal meaning will be accepted as the legal meaning.
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]
[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).
Examples of conflicts between the literal meaning and the identified legislative purpose, which have justified departure from the literal meaning, have included the following:
a.The literal meaning would conflict with other provisions of the statute.
b.The literal meaning is inconsistent with the purpose of the statute.
c.The literal meaning is incapable of practical application.
d.Adoption of the literal meaning would lead to a result that is absurd, unreasonable or anomalous.[13]
[13]Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd [2016] VSCA 328, [53] (Warren CJ, Whelan JA and Riordan AJA) (citations omitted).
If it is determined that such a conflict exists, the approach to reconciliation of the conflict is as follows:
a.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]
b.After the identification of an alternative construction, the legal meaning will be determined by balancing:
i.the strength of the literal meaning as against the alternative construction; and
ii.the extent to which these meanings are consistent with the promotion of the legislative purpose.
[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.
[16]Ibid.
[17]Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378, 390 [26] (French CJ and Hayne J).
This balancing exercise has been explained by the High Court as follows:
a.‘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]
b.‘[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]
[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).
Conclusion
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.
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.
a.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’.
b.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]
[20]Macquarie Dictionary (online at 15 November 2022) ‘address’ (def 2).
[21]Ibid ‘reach’ (def 6).
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.
e.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:
i.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.
ii.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.
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]
g.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.
[22]Corporations Act 2001 (Cth) s 249J(3).
[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.
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:
a.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
b.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.
[24]See paragraph [47](a) above.
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:
a.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.
b.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’.
[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.
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.
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.
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
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