Thorpe v Adelaide University Post Graduate Students' Assoc Inc & Ors No. Scciv-03-1335

JILL SUZANNE THORPE v ADELAIDE UNIVERSITY POST GRADUATE STUDENTS’ ASSOCIATION INC AND ADELAIDE UNIVERSITY UNION AND NICOLE VINCENT
[2003] SASC 438
Civil

DEBELLE J In this application for judicial review the plaintiff seeks, among other things, a declaration that she is the duly elected President of the Adelaide University Post Graduate Students’ Association Inc (“the Association”) and an order quashing a resolution of the Council of the Association made on 7 August 2003 declaring that she is not eligible to hold the office of President.
The application was issued on 25 September 2003. Leave to serve the application was granted on 2 October. It is a matter which requires a prompt decision. There are a number of factors which point to that conclusion. They include the fact that the next election for the office of President will be in March 2004 and issues concerning payment to the plaintiff for discharging the office of President.
The affidavits which have been filed on behalf of the parties devote a good deal of attention to irrelevant issues. The central issue is whether the plaintiff was duly elected President of the Association. All other issues are either subordinate to or stem from that question. The resolution of that question in large part turns on the construction of the Constitution of the Association. For these reasons, when the application was called on before me on 12 December, I suggested to counsel for the parties that it would be appropriate to determine as a preliminary point of law whether the plaintiff was the duly elected President of the Association. They agreed. I therefore made an order pursuant to Rule 75.02 that the following question be determined as a preliminary point of law:
“Whether in the events which have happened and upon the proper construction of the Constitution of the Adelaide University Post Graduate Students’ Association, the plaintiff was duly elected President of the Association?”
The parties consented to that issue being determined as a preliminary question.
The parties have also commendably agreed the following facts to enable the determination of that question.
1.The document which is Exhibit JST1 to the affidavit of the plaintiff sworn on 25 September 2003 is a correct copy of the Constitution of the Association.
2.The Constitution of the Association provides that its Annual General Meeting shall be held during the month of March in each year: Article 5.1. Accordingly, the business year of the Association is from March in one year to March in the following year.
3.The Annual General Meeting of the Association for 2003 was held on 27 March 2003.
4.In the year ending 27 March 2003, the plaintiff was the duly elected Vice President of the Association and from November 2003 she was the acting President of the Association.
5.Nominations for election as President of the Association and for election to other offices in the Association for the year ending March 2004 were called in March 2003, a week before the Annual General Meeting.
6.The plaintiff nominated for election as President of the Association. She was the only nominee for that position. At the time of her nomination, the plaintiff was still the acting President of the Association.
7.At the Annual General Meeting on 27 March 2003, the plaintiff was elected unopposed to the office of President.
8.After the election, the Returning Officer of the Association reported the results of the election, including the election of other offices of the Executive and the newly elected Council of the Association.
9.In 2002, the plaintiff completed a post-graduate qualification at the University of Adelaide, qualifying for a Graduate Diploma in Creative Writing. The plaintiff has not yet been awarded the Diploma because she is indebted to the University of Adelaide for certain fees: see clause 4 of Chapter 89 of the Statutes of the University of Adelaide.
10.The plaintiff did not enrol for any course of study at the University of Adelaide in 2003.
11.In July 2003, members of the Association questioned whether the plaintiff had been duly elected to the office of President and whether she is entitled to hold that office. A meeting of the Council of the Association on 7 August 2003 adopted legal advice that the plaintiff was not duly elected.
12.The plaintiff asserts that the meeting of the Council on 7 August 2003 was not a duly convened meeting of the Association. The Association and other defendants deny that allegation.
That is the factual background against which the questions as to the plaintiff’s status need to be determined.
I turn to note the relevant provisions of the Constitution of the Association. The resolution of issues of this kind requires regard to be had to the whole of the constitution of the relevant incorporated or unincorporated association. That is evident commonsense. See also the approach of the Court of Appeal in Eyre v Milton Pty Ltd [1936] Ch 244. I note in passing that in Brierley v Santos Ltd (1989) 1 ACSR 169 at 171, Zelling AJ referred to “the operation of the law laid down by the Court of Appeal in Eyre v Milton Pty Ltd”. With respect, no principle of law was laid down by the Court of Appeal in that case other than the need to have regard to the whole of the constitution of an incorporated body, in that case the articles of association of the company.
The objects of the Association are essentially described in Article 2(a) of the Constitution of the Association. They are to represent students enrolled for post-graduate courses of study at the University of Adelaide and members of the Association. The membership of the Association comprises ordinary members, associate members and honorary members. The issues in this application concern, in part, the qualifications for ordinary membership. They are set out in Article 3.1 of the Constitution.
“3.1. Ordinary members.
Ordinary Members of the Association shall be considered to comprise students who are enrolled in courses that require the prior completion of an University degree, including Honours students.
a)An Ordinary Member who ceases to satisfy the requirements of Article 3.1 shall continue their Ordinary Membership up until the following Annual General Meeting.
b)Ordinary Membership for Office Bearers. The Council and/or a General Meeting shall have the power to confer Ordinary Membership on students who have completed a postgraduate qualification at the University of Adelaide, effective for a period not exceeding 12 months from the date of the AGM immediately following the completion of a postgraduate qualification at the University of Adelaide. Applications for such membership will be subject to the provisions of Clause 10.5.”
The issues in this case turn on the meaning of the expression “until the following Annual General Meeting”. Before considering that issue, it is convenient to note other relevant provisions in the Constitution, including those where a similar expression to “until the following Annual General Meeting” appears.
The management of the Association is conducted by an elected Council and an elected Executive. The Executive comprises the President, Vice President, Secretary, Treasurer and a Women’s Officer. The Council comprises all those persons as well as others nominated in Article 6.2 of the Constitution. The Executive is elected at the Annual General Meeting and its members “hold office until the next Annual General Meeting”: Article 10.1. Similarly, the Council is elected at the Annual General Meeting and holds “office until the next Annual General Meeting”: Article 10.2. There is a power to elect persons to fill vacancies to either the Executive or the Council at an Ordinary General Meeting or at an Extraordinary Meeting held for that purpose.
There are, therefore, three Articles in the Constitution of the Association where the expression “until the next Annual General Meeting” or a like expression occurs. They are Articles 3.1, 10.1 and 10.2. Mr Roder, for the plaintiff, contended that the expressions “until the following Annual General Meeting” or “until the next Annual General Meeting” mean until the conclusion of the next Annual General Meeting. Mr Doyle, for the Association, contended that it means, until the commencement of the next Annual General Meeting.
The preposition “until” in this context means “up to the time of”: see Macquarie Dictionary and Oxford English Dictionary. In ordinary usage, the word “until” is used to signify up to the time of a particular event. However, an understanding of the meaning of “until” does not resolve the present issue since it begs the question whether the particular event is the commencement or the conclusion of the Annual General Meeting.
There are arguments which point to each of the conclusions contended for by counsel. For example, it might be said that ordinary membership of a person who has ceased to satisfy Article 3.1 terminates before the Annual General Meeting so that that person is not entitled to vote at the next Annual General Meeting. By contrast, there is a valid point of view that persons in that category have one last entitlement to vote at the Annual General Meeting. However, there is nothing in the Constitution of the Association which states the time at which a person must be eligible to vote. I assume one must be eligible at the date of the Annual General Meeting but that does not resolve anything because the issue remains whether a person’s eligibility to vote ceases before or at the conclusion of the meeting. Little is to be gained by canvassing the various arguments which might be advanced. They might assist when consideration is given to amending the imperfections of the Constitution but they do not assist the resolution of the issues in this action.
There is, I think, at least one Article in the Constitution which points to the conclusion that the expression means “until the conclusion of the next Annual General Meeting”. It is Article 8.1 which lists the duties of the President. Those duties include the requirement that the President “present a report at the Annual General Meeting”. Plainly, the report is intended to relate to the activities of the Executive or of the Council for the previous year. It is a report which can, as a matter of practical commonsense, be presented only by the person holding the office of President in the previous year and his office will expire by effluxion of time at that Annual General Meeting. If the office of President were to terminate before the Annual General Meeting, that person would no longer be President and unable to present the report. This fact points to the conclusion that the expression “until the next Annual General Meeting” does not mean “until the commencement of the next Annual General Meeting”. The Constitution does not expressly provide for a report by either the Secretary or Treasurer of the Association. A report from at least the Treasurer is usually presented at the Annual General Meeting of an Association. Like arguments suggest that the report would be presented by the outgoing Treasurer who will still be holding office at the time of the Annual General Meeting.
The necessity of enabling outgoing officers such as the President or Treasurer of an Association to present a report as to the previous year’s operations and activities is usually recognised by the order of business for an Annual General Meeting. The agenda usually lists reports from outgoing office holders to be presented early in the meeting and before elections for office holders for the ensuing year are held. Thus, the President is able to present his or her report and thereafter manage the conduct of the elections and declare the result of any election. As a general rule, the President will hand over to the newly elected President immediately after the election or at the conclusion of the meeting. Which of those two alternatives is adopted will depend on the terms of the constitution of the Association. This reasoning is consistent with the view expressed in Horsley’s Meetings – Procedure, Law and Practice (4^th ed.), para 17.2, where the following appears:
“ Where elections of a body’s office-bearers are carried out at meetings, such elections come into effect immediately the person is elected, unless the rules provide that the successful candidate is to assume office at some future time, for example, at the close of the meeting, or at the commencement of the next calendar year or financial year. In the latter case, the new office-bearer’s designation would be, for example, ‘president-elect’.”
In my experience, that comment is consistent with the practice of most Associations.
The above practice might not obtain in the case of the Post Graduates Association. Article 10.6 of the Constitution of the Association makes detailed provision for the conduct of elections and establishes the office of a Returning Officer whose duties include reporting to the newly elected Council within 14 days after the election. Article 10.6 provides that voting shall be by secret ballot and shall be cast according to the South Australian State Electoral Office Optional Preferential Voting System. Thus, if there is a contest for the office of President and other office holders, the result of the vote may not be available until some time after the Annual General Meeting. It is necessary, therefore, for the President to remain in office until at least the conclusion of the Annual General Meeting to enable the orderly conduct of the meeting. If, as occurred in March 2003, a person is elected unopposed, there is nothing to prevent the new person taking office in the course of the meeting. Nevertheless, in whatever manner the Constitution is viewed, it is apparent that the outgoing President remains in office at least until some time after the commencement of the Annual General Meeting.
The same considerations apply to the term of office of other members of the Executive and to the members of the Council. They all hold office until at least a time after the commencement of the Annual General Meeting.
Given the need for consistency in the meaning of expressions used in the Constitution of the Association, is there any reason why the same conclusion does not obtain in respect of the expression “until the following Annual General Meeting” in Article 3.1. I think not. Indeed, an examination of Article 3.1 reinforces the conclusion that it has the same meaning as “until the next Annual General Meeting” in Articles 10.1 and 10.2. Article 3.1(b) is headed “Ordinary Membership for Office Bearers” and is plainly intended to extend membership for a person who holds office. Article 3.1(b) enables the Council or a General Meeting of the Association to confer ordinary membership on students who have completed a post-graduate qualification for a further period which does not exceed 12 months from the date of the Annual General Meeting immediately following the completion of a post-graduate qualification at the University of Adelaide. It will have been noticed that the period for which ordinary membership can be conferred is a period “not exceeding 12 months from the date of the Annual General Meeting following the completion of post-graduate qualifications”. Expressed another way, Article 3.1(b) enables ordinary membership to be conferred for a period which is effectively from one Annual General Meeting until the next. The power is plainly intended to enable persons who are office bearers to complete the term of office, notwithstanding that, but for the conferral of ordinary membership pursuant to Article 3.1(b), they would no longer be eligible for office.
For these reasons, I conclude that “until the following Annual General Meeting” in Article 3.1(b) and “until the next Annual General Meeting” in Articles 10.1 and 10.2 have the same meaning and do not mean “until the commencement of the next Annual General Meeting”. This is all that is necessary to decide. It is unnecessary in this case to decide whether it means until the conclusion of the next Annual General Meeting, although there are strong indications that that is the intended meaning.
I turn to apply that conclusion to the facts in this case. The plaintiff completed the qualifications to obtain a Graduate Diploma in Creative Writing at the end of 2002. She was at the time an ordinary member as she was completing a course that required the prior completion of a University degree. As she did not enrol for any further course of post-graduate study, her ordinary membership would, in the ordinary course, have continued until the next Annual General Meeting following the completion of her qualification, that is to say, the Annual General Meeting held on 27 March 2003. The plaintiff was, therefore, eligible to stand as a candidate for the office of President being an ordinary member. As her ordinary membership did not cease until some time after the commencement of the Annual General Meeting, she was also entitled to be elected President. She was, in fact, elected unopposed.
Upon the conclusion of the Annual General Meeting, the plaintiff was no longer an ordinary member of the Association. It was, therefore, necessary for her to apply for ordinary membership to be conferred on her pursuant to Article 3.1(b). If ordinary membership was conferred on her, she was entitled to continue to hold the office of President. If it was not, she was no longer eligible to hold that office.
Mr Doyle submitted that the last sentence in Article 3.1 required the plaintiff to apply for ordinary membership at the same time as she nominated for election to the office of President. I do not agree. That is an extremely cumbersome procedure. More importantly, Article 3.1(b) is intended to enable ordinary membership to be conferred on those who are office bearers. As a matter of practical commonsense, until the office holders are known, it is pointless to confer ordinary membership on a student.
Mr Doyle also contended that the expression “students who have completed a post-graduate qualification at the University of Adelaide” required that the plaintiff had not only completed her qualification for a Graduate Diploma in Creative Writing but also that she was eligible to graduate. Because she was indebted to the University of Adelaide, the plaintiff was not able to graduate with the consequence, Mr Doyle argued, that the plaintiff did not satisfy Article 3.1(b). I do not agree. Article 3.1(b) is quite explicit. All that is required is that the student should have completed a post-graduate qualification. Mr Doyle seeks to introduce words into Article 3.1 which are not present in it and so adds yet a further qualification for the conferral of ordinary membership. That is an impermissible line of reasoning. The argument must be rejected.
For these reasons, the plaintiff was duly elected President of the Adelaide University Post Graduates Students’ Association.
I will hear counsel as to the future course of this action.

[2003] SASC 438

23 December 2003