Sally Ann McKay v Australian Alpaca Association No. Scgrg-96-2200 Judgment No. 6242 Number of Pages 17 Associations and Clubs (1997) 69 Sasr 218

[1997] SASC 6242

IN THE SUPREME COURT OF SOUTH AUSTRALIA

PERRY, J

Associations and clubs - members right of access to records - the plaintiff, a member of the Australian Alpaca Association, a voluntary association whose objects are concerned with promoting and avancing the breeding and husbandry of alpacas, sought a copy of the register maintained by it in an electronic database recording the pedigree and other information concerning registered alpacas - she sought access so as to pursue research directed to improving the blood lines and other characteristics - on its refusal to supply a copy unless the plaintiff agreed to stringent conditions as to confidentiality, the plaintiff sued for a declaration that she was entitled to inspect and copy the register without any such conditions applying - held that either pursuant to the rules of the Association, or by reason of an implied term of the contract between her and the Association, she was entitled, on payment of a reasonable fee, to a computer disk containing a downloading of the database, free of conditions as to its use and without any obligation to identify the purpose for which she sought the information - discussion of the rights of members of a voluntary association to have access to its books and records. Supreme Court Rules R 63; Associations Incorporation Act 1981 (Vic) ss 3, 6, 14A, 215 and 54; Associations Incorporation Regulations 1993 (Vic) ; Interpretation of Legislation Act 1984 (Vic) s23; Companies Clauses Act (UK) 1863 s28, referred to. Nurses Memorial Centre of SA (Inc) v Beaumont (1987) 44 SASR 454; Grogan v McKinnon and Ors [1973] 2 NSWLR
290; Mutter v Eastern and Midlands Railway Co (1888) 38 Ch D 92; Edman v Ross
(1922) SR NSW 351; Berlei Hestia (NZ) Ltd v Ferybough [1980] 2 NSLR 150; Conway and Ors v Petronius Clothing Co Ltd and Ors [1978] 1 All ER 195, considered.

ADELAIDE, 26 June 1997 (hearing), 9 July 1997 (decision)

#DATE 9:7:1997

Appearances:

Plaintiff:

Counsel, Mr R White

Solicitors: Lynch & Meyer

Defendant:

Counsel: Mr P Menamara

Solicitors: Cowell Clarke

Order: order made.

PERRY J

The plaintiff, Sally Ann McKay ("Mrs McKay") sues the Australian Alpaca Association Inc ("the Association"). She claims a declaration that she is entitled to inspect the books of the Association, more particularly a pedigree register maintained by it.

Mrs McKay commenced the proceedings by inter partes summons. She asserted before a Master that the action ought to be permitted to proceed as a construction summons under SCR R 63 without the need to call evidence or cross-examine the deponents of various affidavits which had been filed. The Association, however, contended that it was necessary to adduce evidence, and that it was not appropriate to proceed under Rule 63. The Master thereupon referred the matter to a Judge for directions as to whether or not the matter might proceed as a Rule 63 summons.

When the reference was listed before me, I took the view that an argument as to the characterisation of the action as a construction summons or otherwise would be unproductive and that it was better simply to bring the matter on for trial. The matter then proceeded by way of points of claim and points of defence, supplemented by affidavits filed on behalf of both parties. I gave leave for each party to cross-examine the deponents of affidavits filed on behalf of the opposing party, on notice.

In the events which happened, a number of affidavits were received in evidence at the trial and Mrs McKay was cross-examined by counsel for the Association, Mr McNamara.

BACKGROUND

(a) Alpaca

Alpacas are the species lama pacos. The two types of the species commonly bred are known as suri and huacaya. Alpacas are bred for their coats, generally referred to as alpaca fibre. Premium alpaca fibre is in high demand on world markets. Alpacas are scarce but the industry is growing, both in Australia and overseas. The fibre makes light, soft, warm garments. Its tensile strength is higher than sheep's wool but it is softer than merino wool. Much of the fibre is produced and sold in its natural colour, but white alpaca fibre can easily be dyed.

The progeny are known as crias. The gestation period for a female, a hembras, carrying a cria is of the order of eleven and a half months. There is no breeding season. Hembras can conceive and give birth to a cria more or less every twelve months. The life span of the animals is approximately twenty years.

The alpaca breeding industry in Australia is of relatively recent origin. It is still developing. The first shipments of alpaca into Australia took place in 1988. Less than ten years ago the Australian alpaca herd consisted of only a few animals. Through importation and intensive breeding, there are now an estimated 14,000 alpacas in Australia.

A large proportion of alpaca owners are members of the Association.

(b) The Alpaca Association

The Association was formed in 1990. It is an association incorporated under the Associations Incorporation Act 1981 (Victoria) ("the Act").

The Association is constituted by a set of rules ("the rules"). The purposes and objects of the Association are set out in schedule 1 to the rules. For the purposes of this case it is important to have regard to those purposes and objects. I will, therefore, set them out as they appear in schedule 1: "The purposes and objects of the Association are -

(a) to promote and advance in Australia the breeding and husbandry of alpacas, the purity of the alpaca breed, the harvesting, beneficiation, manufacture and marketing of alpaca products, and the industries associated with those activities

(b) to establish and operate a register of alpacas for Australia and other countries which seek to enter alpacas in the Australian register

(d) to establish codes of ethics in respect of members' alpaca-related business activities to enforce those codes

(e) to make representations to governments in Australia and in other countries about matters affecting members' alpaca-related business activities

(f) to conduct (alone or in cooperation with other companies, agricultural societies or associations) field days, shows, exhibitions, competitions, sales and seminars dealing with alpacas and alpaca products

(g) to commission research of all kinds into aspects of alpacas and alpaca-related industries

(h) to establish an alpaca stud-book for Australia and other countries which seek to enter alpacas in the Australian stud-book

(j) to advance members' interests in respect of owning and breeding alpacas for profit

(k) to advance the Association financially and in public esteem." A number of branches of the Association have been established in various regions. The branches have their own regional meetings. Generally speaking, however, the rules are of national application and the affairs of the Association are by and large governed by the National Committee, and between meetings of that committee, by the National Executive.

The principal office bearer of the Association is the president. The president, vice-president, treasurer and secretary constitute the National Executive.

Later in these reasons I will refer more particularly to certain of the rules.

Pursuant to the power given to it by the rules, the executive has promulgated a set of regulations which deal with various procedures largely to do with registration of the animals. It was not suggested during the case that any of the regulations were relevant to the determination of the questions at issue, and I do not refer further to them.

(c) The International Breeding Register

This is a pedigree register, known as the international alpaca register ("the register"), maintained by the Australian Business Research Institute ("ABRI") which is a body associated with the University of New England in Armidale, New South Wales.

The register is in the form of a computer database. The information in the database concerning animals is derived from data provided by members when they seek, inter alia, to register an animal or to record a transfer of the ownership of it. The animals are recorded by reference to name, sex and tag number, together with particulars of its owner and its pedigree.

The documents seeking registration are first sent to the Association, which in turn forwards them to ABRI for incorporation of the information into the register.

The software for the database has been specifically developed and is owned by ABRI. ABRI employs a registrar who maintains the database and is one of only a limited number of persons with direct access to it. ABRI owns the software, and pursuant to a contract with the Association, maintains the register for the Association. The Association owns the information contained in the database. ABRI will not release information except with the authority of the Association and on whatever terms may be imposed by the Association.

From the database an annual herd book is prepared. It is published as a hard copy but is also available on computer disk. ABRI provides the data required for the herd book in the format requested by the Association. The Association arranges for the printing and publication of the book to its members. The book is also available for sale to non-members.

The herd book records all animals registered or imported, and the breeder who registered those animals during the period since publication of the last herd book, which is generally done on a twelve monthly basis. If a breeder does not register an

animal or import an animal during the period of the herd book, or have a male animal, a machos, certified, the breeder will not be mentioned in the herd book for that period.

To use the expression of Mr Apps, the current registrar, in an affidavit sworn by him, the herd book is a static record or a "snap shot" of the areas of information contained in it as at the particular date of compilation of the book. It follows that one cannot ascertain by reference to the herd book all of the transfers which have taken place during the period intervening between successive editions of the herd book.

A service offered by the Association in conjunction with ABRI for a fee to is members is the provision of "mating information" in what has been described as a "mate search program". This is a facility by the use of which members may utilise the database to assist in choosing a desirable sire for their particular breeding program. Mrs McKay doubts that it is a facility which has a proper scientific basis.

THE DISPUTE

Mrs McKay operates an alpaca stud at One Tree Hill. She runs a herd of twenty alpacas. She started breeding alpacas as a hobby but it has become a business interest, although not her main business. At this stage she does not sell many of the animals. Rather, she is concentrating on building up the herd.

She has put a good deal of effort and much time into the study of the breeding of alpacas. She has done a certain amount of research and study overseas, including experience in Argentina, Germany, France and Italy.

Mrs McKay wishes to conduct research into the development of what she regards as desirable characteristics by breeding and cross-breeding. She wants to see whether the application of theories which she has developed would result in improved blood lines.

To pursue her research she has asked the Association to provide her with a copy of the database of the register on disk in ASCII format. Her request for this information was first communicated to the Association in a facsimile transmission from Mrs McKay to the registrar of the Association on 15 January 1996.

Before responding to her request, the national committee of the Association passed a resolution on 10 February 1996 in the following terms:

"At no time should any electronic form of information be given to individuals which includes names, address, herd names, identification of animals and animal transfers, apart from for (sic) the legitimate purposes of the Association." As will be seen, insofar as I eventually conclude that Mrs McKay has a right to the information which she seeks under the rules of the Association, that resolution cannot operate to detract from her rights under the rules.

A good deal of discussion and correspondence followed between Mrs McKay and the Association, her solicitors and the Association, and between her solicitors and the solicitors for the Association.

Without going into detail, it is plain that the executive of the Association was concerned in dealing with Mrs McKay's request to protect what it regarded as the confidentiality of the material, or some of it, stored in the database.

The clearest expression of the attitude of the Association appears in a letter dated 8 August 1996 written by it to Mrs McKay which is in the following terms: "PROVISION OF THE ABRI INFORMATION

As the Executive of the Australian Alpaca Association, it is our role to ensure that the interests of all our members are protected. On consideration of your request to us, the Rules of the Association, the objective and functions of the database information ("information") and submissions from concerned members, it was decided at the last National Committee meeting that you may obtain a copy of the information. Your obtaining the information is on the following terms and conditions:

1. The term "Confidential Information" means all information material in any form concerning the Association, any member, past or present, or any member's business that is not lawfully in the public domain and to which you gain access as a result, directly or indirectly, of obtaining a copy of the information.

2. It is absolutely essential that you observe a total restriction on the release of any information from the database to other non-AAA members or any other person whatsoever. This is necessary for the Register, and through it the interests of the AAA members, to retain their advantage over breeders or non-registered animals You agree to:

(a) keep confidential all Confidential Information;

(b) maintain proper and secure custody of the Confidential Information;

(c) not to reproduce the Confidential Information in any form; and

(d) not divulge, make available, or reveal or put into the possession or control of any person any Confidential Information except:

(i) as required by law; or

(ii) with the written consent of the Executive of the Association.

3. You agree to take all possible steps to:

(a) arrange the security and safekeeping of all Confidential Information; and

(b) prevent the Confidential Information from being published, disclosed, reproduced or retained except as expressly authorised by this document.

4. A cost will be payable to the Association to cover the cost of obtaining a copy of the information.

If you wish to obtain a copy of the information and are prepared to abide by these terms and conditions, please confirm your acceptance of the terms and conditions set out in this letter by signing and returning this letter to the Executive of the Association. A copy of the information may not be provided until this letter has been signed and returned." Mrs McKay would not agree to the suggested conditions as to confidentiality. In further correspondence which ensued she was pressed by the solicitors for the Association to give specific details of the purpose for which she required the information.

By letter dated 7 April 1997, her solicitors, Lynch & Meyer, intimated that they did not consider that their client was under any obligation to provide information as to her purpose, and that "the purpose for which our client seeks access to the Register is not relevant to her entitlement to have access".

The letter continues: ".... our client had previously advised Committee members of your client of the purpose for which she sought the information. There has never been any secrecy on our client's part as to the purpose in seeking access. In fact, she sent a circular letter dated 9th April 1996 to over 700 members of the AAA which, inter alia, sets out the purpose in seeking the information. I enclose a copy of that circular letter. That letter, in part, states:

'My primary reason for wanting this information base is so I can do some research on what combinations of blood lines have produced so that I may improve my breeding programme. I have available to me the necessary computer skills to properly interrogate the data'.

.....Our client was induced to register her animals when the Register was established by representations made by or on behalf of the Association which included:

1. The animals would be worth more if they were registered.

2. The information contained in the data base would be made available 'on farm'.

3. One of the principal purposes of the Register was to assist breeders in the 'genetic improvement' of the breed and to assist in research.

The last point encompasses the purpose for which our client seeks access to the data base.

The specific requirement relates to her breeding programme. She has a sire whose progeny exhibit fibre qualities that are considered desirable. Our client has also developed some ideas as to the potential outcomes of matings by her sire of animals that have been sired by other males. Our client's programme has been at a stage and the sire is at an age where she must seek an alternative sire for one or two seasons, after which the progeny will be crossed back to her aging sire.

Our client's instructions are that the only method for doing this accurately and in a time effective manner is to electronically interrogate the data base to identify the animals that our client may then be interested in looking at as sires. Having done this, our client then needs to negotiate a visit and explore the willingness of the owners to use their animal. All of this takes time, which is of the essence. Much time has been lost as a result of the AAA's position.

The data base can also assist our client (and any other member) in establishing the best time to market the animals and in what region.

The reasons that our client seeks access to the data base clearly falls within the purposes stated by the AAA for the establishment of the Register"

That statement of Mrs McKay's purposes did not satisfy the executive of the Association, and the action which had already been instituted by Mrs McKay on 14 November 1996 proceeded.

Mrs McKay was cross-examined before me by counsel for the Association. In the course of that cross-examination she emphasised that her intention was limited to research; that she might be prompted to present papers at seminars or conference, but that in doing so she would not identify animals or owners; and that any information which was published would be published in the form of bland statistics.

Any publication of that kind would be, in any event, to use her words, "a long way down the track". She said that she has only a theory which she wants to test by conducting an analysis of breeding patterns of specifically identified animals. She would need to locate the animals and, with the consent of the owners, observe them, and perhaps take fibre samples over a period of time, following the animals through any changes in ownership.

Mrs McKay asserted that most, if not all, of the information was already available to members, and much of it appears in the herd book. But without access to the database in the manner which she seeks, which she would want to update every three to six months, assembling the information which she requires would become impractical in the sense that it would be so time consuming that the exercise would not be feasible.

Given the information she will, if necessary with the assistance of computer experts, reformat it in her own computer system so that she can then systematically extract the information which she more specifically requires for the research which she wishes to pursue.

I formed a favourable impression of Mrs McKay during her cross-examination, and I accept her evidence as confirming that her intentions with respect to research are genuine and as described in her evidence. Furthermore, it could hardly be suggested that her desire to "improve blood lines" and to improve other attributes of the animals are not matters which are clearly within the purposes and objects of the Association as set out in schedule 1 to the rules.

In a number of the affidavits tendered before me, the Association sets out in detail the reasons why it insists upon the imposition of conditions. It puts its position in various ways.

In a letter dated 11 September 1996, exhibited to one of the affidavits written by the Association's solicitors, it is put this way:

"The National Committee (who has the matter of registration of animals reserved to it for action on behalf of the Association under the Rules) considers that it would be detrimental to the Association, the alpaca industry and all the members of the Association if your client is allowed to reproduce the information provided to her in a form that cannot be supervised by the National Committee." Essentially, both parties have stood firm on the positions adopted by them during the course of the dispute. That is to say, on the one hand Mrs McKay asserts that she is entitled to access to the information on the database free of any conditions as to her utilisation of it, and the Association asserts that her access to the information would only be countenanced by them if her use of the information was conditioned along the lines indicated in their correspondence.

At the trial, counsel for Mrs McKay contended that her right to unconditional access to the database information is established upon a proper construction of the Association's rules when read in conjunction with the Act, including certain rules described as "model rules for an incorporated association" which appear in a schedule to regulations made under the Act. To understand this argument, it is necessary to have regard to the statutory framework created by the Act.

THE STATUTORY FRAMEWORK

S21 of the Act is subtitled "Purposes and Rules". It provides: "(1) The purposes of an incorporated association are the purposes stated in the statement of purposes that accompanied the application for its incorporation under this Act as altered by the incorporated association from time to time in accordance with this Part.

(2) The rules of an incorporated association are-

(a) where the application for the incorporation of the association was accompanied by a copy of rules that complied with section 6 - those rules as altered by the incorporated association from time to time in accordance with this Part; and

(b) in any other case, the model rules, so far as applicable and as altered from time to time by the incorporated association in accordance with this Part.

(3) Where, in relation to any matter in relation to which the model rules make provision but the rules of the incorporated association do not make provision, the provision of the model rules shall, in relation to that matter, be deemed to be included in the rules of the incorporated association.

(4) A purpose or rule of an incorporated association is of no effect if it is inconsistent with this Act or contrary to law."

Under s3 of the Act, "model rules" means the rules prescribed under s54. S14A if the Act provides, inter alia: "(1) The rules of an incorporated association constitute the terms of a contract between the incorporated association and its members for the time being.

(2) ..........."

S6 of the Act provides: "The rules of an incorporated association or proposed incorporated association comply with this section if -

(a) they make provision, subject to and in accordance with this Act, whether by the adoption of the model rules or otherwise, for -

(i) the several matters that are specified in the Schedule; and

(ii) such other matters (if any) as are prescribed; and

(b) they are divided into paragraphs which are designated by letters in alphabetical order or are numbered consecutively."

S54 of the Act provides that the Governor in Council may make regulations, inter alia, prescribing rules as "model rules".

Pursuant to the regulation making power, regulations have been made entitled the "Associations Incorporation Regulations 1993". Model rules appear as schedule 2 to those regulations ("the model rules"). It was not suggested that the model rules were not capable of potential application to the Association, notwithstanding the fact that they came into effect after the Association was incorporated.

Model rule 34 provides: "34(1) Except as otherwise provided in these Rules, the secretary shall keep in his or her custody or under his or her control all books, documents and securities of the Association.

(2) All accounts, books, documents and securities of the association shall be available for inspection and copying by any member of the association upon request." Model rule 2(3) provides that words or expressions contained in the model rules are to be interpreted in accordance with the Interpretation of Legislation Act 1984 (Vic). Pursuant to s23 of that Act, words in a subordinate instrument (which in this case would include the regulations made under the Act) are to have the same meaning as they have in the Act conferring the power to make the subordinate instrument.

S3(1) of the Act defines books as including:

"... any register or other record of information and any accounts or accounting records, however compiled, recorded or stored and also includes any document."

MEMBERS RIGHTS OF ACCESS TO THE ASSOCIATION'S RECORDS

Put shortly, Mrs McKay contends that model rule 34(2) confers a right of inspection and copying by a member of the Association, upon request; that the right to do so is a "matter" within the meaning of s21(3) of the Act; that the rules of the Association do not within the meaning of s21(3) "make provision" in relation to that matter; and that accordingly, rule 34(2) of the model rules is "deemed to be included" in the rules of the Association.

The Association, on the other hand, contends that its rules do make provision for the topic of access to documents, but that they do so in terms which do not give a right to Mrs McKay of access to the records in question.

There is only one rule of the rules of the Association which bears on the matter. It is the first rule in that part of rules headed "Division 4 - Duties of Office Holders". Underneath that heading is a sub-heading "Secretary" following which appears rule 122 which reads: "A secretary shall -

(a) at each meeting of the Association, a region, a committee or a sub-committee, as the case requires, keep Minutes of the resolutions and proceedings in books provided for that purpose together with a record of the names of the persons present.

(b) keep safe and present for examination, on request by a member who is entitled to inspect them, the records and papers of the Association, region, committee or sub-committee other than records or papers for the keeping of which a treasurer is responsible

(c) perform such other duties in relation to meetings and the conduct of the business of the Association or a region as are appropriate for a secretary to perform

(d) exercise the powers and perform the functions of a secretary provided in these rules."

I agree with the submission of Mr McNamara that rule 122(b) does not confer a right of inspection. It simply obliges the secretary to "present for examination" the records and papers of the association (other than those for which the treasurer is responsible) on request by a member "who is entitled to inspect them". To identify an entitlement to inspect, one must look elsewhere.

At that point, however, I have a difficulty with Mr McNamara's argument. I am not entirely sure that I understand it correctly, but he seemed to be suggesting that a right of inspection did not arise by implication within the Association's rules as a whole, and this meant that there was in fact no right of inspection to which a member was entitled which could bring into operation rule 122(b). He denied that model rule 34 applied.

Mr McNamara further submitted that his client was entitled to look at the purpose of the examination of its records, and to deny access if it was not satisfied about that purpose. He put it this way during the course of his argument:

"Our primary submission is that if the purpose of inspection is not connected with the enjoyment of some express right, then the application for inspection lacks a foundation. If you were to adopt that submission then the plaintiff fails because she is clearly and manifestly seeking to advance a private interest."

He put a further slightly different, although allied, submission. He submitted that the register was an asset of the Association and that:

"... it can't be a purpose or a legitimate interest of a member to make any use of the register which diminishes its value ... It can't be a legitimate purpose or interest of any member of the defendant Association to establish or by the sale or by release of information facilitate the establishment of some rival association. It can't be a proper purpose of a member to facilitate the establishment of a rival register."

He further submitted that it could not be a proper purpose of membership:

"... to analyse the trading activities of another member and intrude into the privacy of another member and it couldn't be a proper interest of a member to sell information in the database." I do not accept those submissions or the analysis of the rules of the Association which underlies them.

Many alpaca breeders will be motivated to join the Association in order to further their own legitimate business interests, that is, improvement of their own herd of alpacas, with a view to increasing the sale value of the animals comprising it, or the commercial value of their fleece. True it is that some members may be altruistic enough to utilise the opportunities created by membership of the Association to improve in various ways the Association and the amenities offered by it and indirectly to enhance the breeding techniques of other members as well as of themselves. But the proposition simply cannot be sustained that it is in some way an improper purpose for a member to seek to use facilities offered by the Association for his or her own commercial interests. As I have said, it is likely that such a motive is present in the minds of many of the members.

The information in the database is the property of the Association, but the very purpose for the establishment of the register is to make available to its members the information contained in it. Indeed, the Association, by publication of the herd book, by its "mating program" and in a number of other ways is at pains to ensure that the information on the register is available to members. It would be of no benefit to the members if it was simply locked up by the officers of the Association and not made available to the members.

If it was necessary to do so, I would find that there was an implied right of access by reason of the nature of the contract which exists between the members for the time being and the Association, having regard to s14A(1) of the Act, the terms of the contract being the rules of the Association.

It seems to me that it is consistent with basic principles that where a contract envisages that ongoing records will be kept by one party to the contract, the other parties to the contract ought to be entitled to access to those records, absent any requirement of confidentiality imposed by the terms of the contract, or perhaps by reason of any limitation imposed by one of the contracting members when supplying the information for the purposes of the record. Such an implication, of course, would not arise if there was anything in the rules which operated to preclude the implication of such a term. But in my opinion there is nothing in the rules of the Association which would tend against an implication of such a term.

Of course, the implication of a right of access to documents generated in the course of the working out of the contract would not be permitted if it was contrary to any of the provisions of the Act. But I am unable to see anything in s21 of the Act, or in any of the other relevant provisions to the Act, to suggest that the model rules where they apply, or any other rules adopted by the Association, should be regarded as such an exhaustive statement of the rights between the parties to the contract that no other implied term could be allowed.

However, one does not reach the position of having to imply a term to the effect which I have suggested. In my opinion, model rule 34(2) is deemed to be included in the rules of the Association by virtue of s21(3) of the Act.

I have referred above to the terms of s6 of the Act, and I have referred in passing to s54. At this point it is necessary to refer to s 54 more fully.

As to s54, the regulation making power conferred upon the Governor in Council, by virtue of that section includes a power to make regulations which may: "(1) ........

(2) .........

(c) prescribe rules as model rules, being rules that make provision for the several matters that are specified in the Schedule, whether or not they make provision for other matters; and ........."

The schedule to the Act is headed "Matters to be provided in the Rules of an Incorporated Association". There then follows a reference to sixteen topics which includes such matters as entrance fees, subscription and other amounts (if any) to be paid by members of the Association, the name, constitution, membership and powers of the committee or other body having the management of the Association. More specifically, paragraph 13 provides:

"The custody of books, documents and securities of the incorporated Association."

and 14:

"The inspection by members of the incorporated association of books and documents of the incorporated association." Clearly, rule 122 of the Association, and for that matter rule 123 which imposes an obligation on the treasurer to "keep safe and present for examination" by members the financial records and securities of the Association, are rules which give expression to the obligation to provide for the matters referred to in paragraph 13 of the schedule.

However, it does not seem to me that rule 122(b) insofar as it uses the expression "keep safe and present for examination on a request by a member who is entitled to inspect them, the records and papers of the association ......" answers fully to the obligation to provide in the rules for matters dealing with the subject matter of paragraph 14 of the schedule. It does not seem to me that a rule which merely obliges the secretary to present for examination by a member "who is entitled to inspect them" the records and papers of the association, adequately provides for the inspection by members of the Association of those records and papers, or to use the expression in paragraph 14 of the schedule, the "books and documents" of the Association.

It seems to me that simply to provide an obligation to present the records and papers for examination to someone who is entitled to inspect them without defining what that entitlement is, necessarily results in a situation in which model rule 34(2) must be deemed to be incorporated in the rules so as to give rise to a right of inspection and copying in terms of that model rule.

That is not to say that when detailed rules have been adopted by an Association, one should have recourse to the model rules in order to augment the rules expressly adopted by an Association, in what might be regarded as minor respects. That is so if a specific rule adopted by an association substantially covers a given subject matter. In such a case, it would be wrong to make a nice comparison between the specifically adopted rules of the Association and the model rules, so as to engraft on the former every matter of detail contained in the model rules. Substantial coverage of the given topic in the expressly adopted rules of the Association should be regarded as representing an exhaustive coverage of that topic, save for such matters as might ordinarily be implied by reason of the common law rules as to implication of terms into a contract.

But it seems to me that a right of access to the books of an association is such a fundamental matter that if no right is either expressly conferred in the rules of the association, or is by the rules excluded or qualified, effect should be given to model rule 34(2) by regarding it as deemed to be included in the association's rules.

MEMBERS RIGHTS TO COPY DOCUMENTS

If model rule 34(2) is of application, it confers a right upon members of the association upon request both to inspect and to copy all of the books and documents, et cetera, of the association. If model rule 34(2) is not of application there is an implied right of access conferred by the contract between members and the association, and in my opinion, that right would include a right to copy.

In that respect I would adopt the reasoning of Chitty J and on appeal by the Court of Appeal, in Mutter v Eastern and Midlands Railway Co. That case concerned the right of inspection and perusal of the register of debenture stockholders by persons holding stock in a company, having regard to the terms of s28 of the Companies Clauses Act (UK) 1863. The principal matter decided by that case was that access to the register of debenture stockholders could not be denied on the basis that the holder of stock in the company wishing to exercise the right held the stock at the instance of the rival company and for the purpose of serving the interests of that rival company.

In the course of his judgment, Chitty J observed:

"I think that when a man is inspecting he may make bona fide use of his inspection, and it follows from his right to inspect that he can make copies."

On appeal, in the course of his judgment, with which Cotton and Bowen LJ agreed, Lindley LJ observed:

"I have not been able to find a single case either at law or in equity in the court has ever held that a person having a right to inspect a document has not also a right to take a copy of it, or so much of it as he requires for some legitimate purpose. The right to take a copy is treated as incidental to the right to inspect, and the common form of orders to inspect is to inspect and take copies. This seems to be the common form at law when a mandamus is granted, and when an order is made on a motion in a pending action, and this is, and, so far as I have been able to discover, always has been, the common form of an order to inspect when made in Chancery. A great number of cases on this subject will be found collected in the well-known note to Rex v Fraternity of Hostmen in Newcastle-upon-Tyne and in Chitty's Archbold; and an examination of these and other authorities has led me to the conclusion that, speaking generally, a right to take copies is always treated as incidental to a right to inspect. (See also Browning v Aylwin; Rex v Lucas; Rex v Merchant Tailors' Company; In re Burton and The Saddlers' Company. )"

He went on to observe:

"When the right to inspect and take a copy is expressly conferred by statute the limit of the right depends on the true construction of the statute. When the right to inspect and take a copy is not expressly conferred the extent of such right depends on the interest which the applicant has in what he wants to copy, and on what is reasonably necessary for the protection of such interest. The common law right to inspect and take copies of public documents is limited by this principle, as is shewn by the judgment in Rex v Justices of Staffordshire; so is the common law right of the member of a corporation to inspect and take copies of the documents of the corporation: Rex v Merchant Tailors' Company. " In this case, if the basis upon which Mrs McKay is entitled to take a copy arises from her right of inspection implied by law as opposed to the application of model rule 34(2), the "interest" which she is entitled to further by inspecting the register in question is an interest the reasonable exercise of which ought to carry with it a right to take a copy. Her desire to do so for the purposes of what I have held to be genuine research is, as I have already found, entirely consistent with the purpose and objects of the Association.

When the cases speak of taking a copy, it seems to me that in 1997 that should be regarded as carrying with it the right to use such technical aids, whether electronic or mechanical, as may reasonably be made available for that purpose. We are past the age of Dickens when clerks sat at high desks using quill pens to make copies.

Insofar as Mrs McKay has a right to inspect and make a copy of the pedigree register, having regard to the fact that it is contained in electronic form on a computer database, she would be entitled to attend with an appropriately qualified electronics expert to download the database in whatever format she found convenient. Furthermore, I do not see why, on payment of an appropriate fee, she should not be entitled to ask the Association to download the material into such a format. It would obviously be more convenient to the Association to do it in its own time, and to preserve the integrity of its database by controlling the downloading rather than have a stranger involved.

It is for the courts these days to give expression to common law principles in a practical and sensible fashion, and to have regard to developments in technology. I have no hesitation in going as far as I have suggested.

THE RELEVANCE OF PURPOSE

I am of the view that in the exercise of Mrs McKay's right to have access to and copy the information in question, the Association has no right to demand that she disclose her purpose.

It is true that in the case of a director of a corporation, he or she may be restrained from exercising a right of access to the corporation's books if the court was to be "satisfied affirmatively that his intention was to abuse the confidence reposed in him and materially to injure the company ...".

But a director of a corporation owes fiduciary duties to it, which distinguish his or her position from that of the members of the Association. For the reasons which I have given, the members of the Association are entitled to use the information available through the Association in the pursuit of their own business or personal interests.

Furthermore, after the observations which I have quoted, Street CJ in Equity went on to say, with reference to a director's right of access to a company's books:

"... he cannot be called upon to furnish his reasons before being allowed to exercise it." I accept that statement of the law. It applies a fortiori to members of an association. Although Mrs McKay has identified a purpose for requesting access to the information in question, she was under no legal obligation to do so.

That is not to say that in very limited circumstances the Association might be entitled to deny access by reference to a purpose which it has ascertained. The Association might, by one means or another, learn that a member intends to use the material for an illegal purpose, or for a purpose totally inconsistent with the purposes and objections for which the Association exists, such as to implement an intention to kill all alpacas. It might be that in such circumstances, access might be denied having regard to a clearly proved, illegal purpose. That question, however, does not arise for consideration in this case.

PAYMENT OF A FEE

There was some discussion at an early stage between Mrs McKay and the Association as to the question of a fee, if agreement could otherwise be reached on terms upon which the information sought by Mrs McKay might be released to her. But during the course of the trial, Mr McNamara submitted that there is no power for the Association to charge a fee for such a service, having regard to its rules, and that this circumstance added to the force of his arguments in favour of denying access except on terms laid down by the Association.

In my opinion, the Association clearly has power to charge a fee to a member, just as it does for the provision of information under its mating service, or for the sale of its breeding book, or for the provision of other services to members. Naturally, the Association must be even-handed about the charging of a fee. In the circumstances of this case, it is entitled to charge a fee being a reasonable fee for any services provided to Mrs McKay over and above the services which are provided to all members at no fee. Furthermore, the fee imposed upon Mrs McKay should not exceed that imposed on any other member for a similar service.

If necessary, the Court could, within the context of this action, determine an appropriate fee. But the indications are that the parties, sensibly, will not burden the Court with that task.

CONCLUSIONS

For the reasons which I have given, Mrs McKay has a right of access to the information contained in the Association's database with respect to registered alpacas, either by reference to model rule 34(2) on the footing that it is imported into the rules of the Association, or on the basis of an implied term in the contract between her and the Association which exists by reason of s14A(1) of the Act.

Mrs McKay is entitled to the relief which she seeks. While it must be acknowledged that the grant of equitable relief is discretionary, there is no reason why the discretion should be exercised against her. She negotiated in good faith with the Association over a long period of time, endeavouring to obtain the information she seeks without recourse to the Court. She has now been vindicated, in that her right of access to the information has been recognised in the terms which she contended for. The Association has made it plain that, short of an order of the Court, it would not yield to her request.

True it is that Mrs McKay might have sought a change to the rules by invoking a General Meeting of members. But she has satisfied the Court that she is entitled to what she seeks on the rules as they stand. This is not a case where the Court should refuse to intervene because of a failure to exhaust domestic or internal remedies. The stand taken by the Association left her with no choice but to apply to the Court.

Unassisted by further argument, I would be inclined to make an order in the following terms: "The Court:

1. Declares that:

(a) the plaintiff is entitled to inspect and make a copy of the International Alpaca Register ("the Register") maintained by the defendant at a reasonable fee;

(b) the defendant is not entitled to request that the plaintiff identify any purpose for which she may seek to inspect and copy the Register, or to impose any condition upon the use by the plaintiff of the information contained in the Register.

2. Orders that the defendant takes such steps as may be necessary to ensure that the plaintiff is able to obtain a copy of the Register in such electronic format as she may reasonably require.

3. Reserves liberty to both parties to apply from time to time or at any time as they may be advised for such further or other order or direction as may be necessary to ensure the proper and effective carrying out of this declaration and order." I will hear the parties as to the final form of the order, and as to the question of costs.