Turnbull v National Roads and Motorists' Association Ltd

[2004] NSWSC 577

Reported Decision: 50 ACSR 44
(2004) 22 ACLC 1094

Supreme Court

CITATION:	Turnbull & Ors v NRMA [2004] NSWSC 577
HEARING DATE(S):	25 June 2004
JUDGMENT DATE:	25 June 2004
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
DECISION:	Requisitioned meeting not to be called, and resolution notified under section 249N Corporations Act 2001 (Cth) not to be put to a meeting.
CATCHWORDS:	CORPORATIONS - management and administration - meeting requisitioned under section 249D Corporations Act 2001 (Cth), and amendment to proposed requisitions foreshadowed under section 249N Corporations Act 2001 (Cth) - later events mean purpose of holding meeting has now gone - ability of Court to order that meeting not be held - CORPORATIONS - management and administration - "oppression" provision - scope of provision under Corporations Act 2001 (Cth) - STATUTES - ACTS OF PARLIAMENT - interpretation - use of heading of Part as aid to interpretation
LEGISLATION CITED:	Acts Interpretation Act 1901 (Cth) Companies Act 1961 Companies Act 1955 (NZ) Companies (NSW) Code 1981 Corporate Law Economic Reform Program Act 1999 (Cth) Corporations Act 2001 (Cth) Corporations Law
CASES CITED:	Australian Securities Commission v The Multiple Sclerosis Society of Tasmania (1993) 10 ACSR 489 at 516 Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594 Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 Re Enterprise Gold Mines NL (1991) 3 ACSR 531 FAI Insurances Ltd v The Honourable Sir Henry Winneke and Others (1982) 151 CLR 342 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd and Others [2001] NSWCA 97; (2001) 37 ACSR 672 Hornsby Building Information Centre Proprietary Limited and Another v Sydney Building Information Centre Limited (1978) 140 CLR 216 Liosatos v Kefalinian Brotherhood 'O Kefalos' of NSW [2000] NSWSC 1138 McMillan v Toledo Enterprises International Pty Ltd and Others (1995) 18 ACSR 603 Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 Minister of State for Immigration and Ethnic Affairs v Ah Min Teoh (1995) 183 CLR 273 Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692 New South Wales Rugby League Ltd v Wayde and Another (1985) 1 NSWLR 86 NRMA v Parkin [2004] NSWSC 296 NRMA v Parkin (No. 2) NSWSC 496 NRMA v Scandrett [2002] NSWSC 1038 National Roads and Motorists' Association Ltd v Scandrett and Another [2002] NSWSC 1123; (2002) 43 ACSR 401 NRMA Insurance Ltd v Carroll [1999] NSWSC 1022; (1999) 32 ACSR 655 Re Polyresins Pty Ltd (1998) 28 ACSR 671 R v The Australian Broadcasting Tribunal; Ex parte 2HD Proprietary Limited (1979) 144 CLR 45 Silk Bros Proprietary Limited v State Electricity Commission (of Victoria) (1943) 67 CLR 1 Re Spargos Mining NL (1990) 3 ACSR 1 The State of New South Wales and Others v The Commonwealth of Australia and Carlton and Another (1983) 151 CLR 302 Sutherland v National Roads and Motorists' Association Ltd [2003] NSWSC 829; (2003) 47 ACSR 428 Thomas v H W Thomas Ltd [1984] 1 NZLR 686; (1984) 2 ACLC 610 Water Conservation and Irrigation Commission (New South Wales) v Browning (1947) 74 CLR 492
PARTIES :	Ross Vincent Turnbull - First Plaintiff Alan Hanson Evans - Second Plaintiff Graham John Blight - Third Plaintiff Jonathan Keith Brett - Fourth Plaintiff Kenneth Michael Hill - Fifth Plaintiff Judith Olga Stack - Sixth Plaintiff Laurence Joseph Maher - Seventh Plaintiff Geoffrey Robert Toovey - Eighth Plaintiff Michael Thomas Tynan - Ninth Plaintiff National Roads and Motorists' Association Limited - Defendant
FILE NUMBER(S):	SC 3647/04
COUNSEL:	J McCarthy QC/M Small - Plaintiffs and Defendant J B Whittle SC - for Mr Parkin (witness/insterested person)
SOLICITORS:	Corrs Chambers Westgarth - Plaintiffs and Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

FRIDAY 25 JUNE 2004

3647/04 TURNBULL & ORS v NATIONAL ROADS AND MOTORISTS’ ASSOCIATION LIMITED

JUDGMENT – Ex Tempore (Revised and expanded 29 June 2004)

HIS HONOUR:

Nature of Application

1 This is an application which has come on at great urgency. It is brought by nine plaintiffs, each of whom is a member of the National Roads and Motorists’ Association Limited (“NRMA”). As it happens, each of them is also a director of the NRMA. All the directors of NRMA are plaintiffs.

2 The defendant in the action is NRMA itself. It supports the application. Though not a defendant, Mr Parkin has been given notice of the hearing and has attended and been represented by counsel before me today. He also supports the application.

3 One order which is sought is, in substance, an order that a special general meeting of NRMA’s members called in response to a requisition under section 249D of the Corporations Act 2001 (Cth) given to NRMA on 18 March 2004, and now scheduled to be held on 13 August 2004, not be held. That requisition was one to call a meeting to consider resolutions to amend NRMA’s constitution by including objects which were, in broad terms, protective of the employment conditions of patrolmen and other employees of NRMA. Another order sought is that a resolution under section 249N of the Corporations Act 2001 (Cth), notice of which was given to NRMA on 28 May 2004 and which sought to amend the test of the resolutions set out in the section 249D requisition, not be included in the business of NRMA’s next occurring general meeting.

Facts

4 The circumstances from which the present application arises are set out in a judgment which I gave in NRMA v Parkin [2004] NSWSC 296, and further in a judgment in NRMA v Parkin (No. 2) [2004] NSWSC 496. I will not repeat those matters here. The present application proceeded on the basis that I could take into account facts established in both those previous judgments.

5 Since those judgments were given, there has been a resolution of the industrial dispute which was the impetus for the requisition delivered on 18 March 2004. The industrial dispute has been resolved on the basis that there will be an Enterprise Bargaining Agreement entered into between NRMA and the Union representing the patrol officers, the AMWU. The AMWU, under those circumstances, has lost all enthusiasm for pressing on with the placing of either the requisition, or the resolution, before any meeting of the members of NRMA.

6 Mr Parkin has given evidence in these proceedings, for the plaintiffs, that he has requested the NRMA Board, on behalf of the AMWU and the patrol officers which it represents, not to proceed with the Special General Meeting scheduled to be held on 13 August 2004, and that he has requested the NRMA Board not to incur any further costs in relation to notifying NRMA members about the meeting.

7 He has also informed the NRMA board that he withdraws the statement in his name under section 249P of the Corporations Act 2001 (Cth) which was delivered on behalf of the requisitionists, and has directed NRMA not to distribute or publish that document to any NRMA members, or at all.

8 He has offered an undertaking to NRMA that if the orders which NRMA seeks are made, the AMWU will not, directly or indirectly, prepare, circulate or give to NRMA, any request under section 249D of the Corporations Act 2001 (Cth), or any notice of a resolution under section 249N of the Act which, in broad terms, seeks resolutions which in any way relate to the terms and conditions of employment or engagement of patrol officers or other people who provide roadside assistance to members of the NRMA. He has also offered NRMA some other undertakings which it is unnecessary to set out.

9 In my judgment of 8 April 2004, I gave some consideration to the manner in which the signatures of requisitionists had been gathered. That evidence has been supplemented in the proceedings before me today.

10 Mr Parkin has confirmed that it was he who prepared the document which was subsequently used to gather signatures of members of the NRMA. Copies of the requisition document which Mr Parkin had drafted were handed to every NRMA patrol officer at the two mass-meetings which were held on 3 and 4 March 2004. Once a decision had been taken, on 3 and 4 March 2004, that there ought to be a Special General Meeting of members of the NRMA, the patrol officers were asked to take the requisition document to their family members, sporting clubs, pubs and any place where there were likely to be members of the NRMA, asked to explain the situation to them, and to ask for the members’ support in getting a “fair and equitable agreement” with the NRMA regarding the patrol officers’ employment conditions.

11 As well, signatures were collected from members of the public who were personally unknown to the patrol officers, who had called for breakdown assistance, and with whom the issue of the employment dispute was discussed.

12 Though there were some 4,248 people who signed the original requisition, NRMA’s subsequent inquiries have shown that only 3,602 of those people were current financial members of NRMA. The notice under section 249N Corporations Act 2001 (Cth) which was delivered on 28 May 2004, was signed by 217 people, of whom 199 have turned out to be current financial members of NRMA.

13 The company secretary of NRMA has enquired of each of the directors of NRMA, all of whom have expressed the view that they do not know of, and are not aware of, any requisitionist who has his or her own interests, independent of that of the AMWU and the patrol officers which it represents, to have the resolutions the subject of the requisition and notice put to the special general meeting and passed. She, as company secretary, is not herself aware of and does not know of any requisitionist who has expressed such an interest either. She has been informed by the manager of the Call Centre which NRMA maintains for contact with its members, that there have been no calls received from members concerning the Special General Meeting or the requisition. As well, Mr Parkin has given evidence that since the requisition was first proposed in March 2004 he has been in close and consistent contact with NRMA’s patrol officers concerning the industrial dispute, the resolutions and the proposed Special General Meeting. He states that he does not know of, nor is he aware of, any requisitionist who has stated his or her own desire, independent of the AMWU and the patrol officers which it represents, to have the resolutions the subject of the requisition and notice put to the Special General Meeting and passed if the dispute between the patrol officers and NRMA is resolved. I accept all this evidence. It, taken together with the evidence referred to in my two earlier judgments, establishes that it was the AMWU which was the sole driving force behind the requisition, and the section 249N resolution.

14 A final version of the proposed Enterprise Bargaining Agreement was put to patrol officers’ delegates on 22 June 2004. It was agreed by the delegates that it should be put to split mass-meetings of the patrol officers on 24 and 25 June 2004. Those meetings have been held and they have both approved the Enterprise Bargaining Agreement. Nearly 90% of the patrol officers at the meetings voted in favour of approving the Agreement.

15 The Enterprise Bargaining Agreement was also put to the NRMA’s Board of Directors on 23 June 2004, which resolved to accept the Enterprise Bargaining Agreement, subject to a number of conditions, which included (a) the Court making the orders sought in these proceedings; and (b) NRMA receiving an undertaking, of the kind which I have earlier mentioned, from the AMWU.

16 The company secretary of the NRMA has made enquiries of each of the directors of NRMA, each of whom has expressed the view that it was not in the best interests of NRMA members for the time, expense and other resources of the company to be spent on a Special General Meeting that no longer had any purpose for patrol officers or other NRMA members.

17 Mr Parkin has also given evidence that, in his view, it is not in the interests of the members for the meeting now to be held. He has given evidence that his original concerns, which were expressed in the section 249P Corporations Act 2001 (Cth) statement which he had prepared, arose from a fear that changes in the terms of employment of patrol officers might result in a decline in standards of the road service. He has given evidence that, in his view, the Enterprise Bargaining Agreement now arrived at will bring about employment conditions which will not adversely affect the road service. He has explained that he was formerly of the view that the road service might be adversely affected by the introduction of contractors, and that there is a clause in the Enterprise Bargaining Agreement which, in his view, will not allow that to happen. Thus, in his view, because the standard of the road service will be maintained, it is in the interests of all the members that the meeting no longer be held.

18 The preparations for the Special General Meeting have reached the stage where the Notice of Meeting has been printed, and the proxy form, which is to be sent with it, has been printed. The Notice of Meeting contains the section 249P statement which Mr Parkin made on behalf of all the requisitionists, and which he has now forbidden NRMA to distribute. The plastic wrapping of the 1.6 million copies of The Open Road, which are to be accompanied by the Notice of Meeting and proxy form, is scheduled to commence on 28 June 2004, and postage of The Open Road is also scheduled to commence on 28 June 2004. Thus, some expense has already been incurred in preparing for the calling of the Special General Meeting. However, if the Special General Meeting were to proceed, costs would need to be incurred, from today on, relating to the employment of an entity to count the vote, postage, venue hire, insurance and security, advertising, and other matters. Those costs are estimated to total nearly $1.83 million.

Relevant Legislative Provisions

19 The meeting was originally called under the provisions of section 249D of the Corporations Act 2001 (Cth). That section provides:

“(1) The directors of a company must call and arrange to hold a general meeting on the request of:
(a) members with at least 5% of the votes that may be cast at the general meeting; or
(b) at least 100 members who are entitled to vote at the general meeting.
(1A) The regulations may prescribe a different number of members for the purposes of the application of paragraph (1)(b) to:
(a) a particular company; or
(b) a particular class of company.
Without limiting this, the regulations may specify the number as a percentage of the total number of members of the company.
(2) The request must:
(a) be in writing; and
(b) state any resolution to be proposed at the meeting; and
(c) be signed by the members making the request; and
(d) be given to the company.
(3) Separate copies of a document setting out the request may be used for signing by members if the wording of the request is identical in each copy.
(4) The percentage of votes that members have is to be worked out as at the midnight before the request is given to the company.
(5) The directors must call the meeting within 21 days after the request is given to the company. The meeting is to be held not later than 2 months after the request is given to the company.”

20 The orders which are sought today are ones arising under sections 232 and 233 of the Corporations Act 2001 (Cth), which provide:

“232 The Court may make an order under section 233 if:
(a) the conduct of a company's affairs; or
(b) an actual or proposed act or omission by or on behalf of a company; or
(c) a resolution, or a proposed resolution, of members or a class of members of a company;
is either:
(d) contrary to the interests of the members as a whole; or
(e) oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity.
For the purposes of this Part, a person to whom a share in the company has been transmitted by will or by operation of law is taken to be a member of the company.
233(1) The Court can make any order under this section that it considers appropriate in relation to the company, including an order:
…
(c) regulating the conduct of the company's affairs in the future;
…
(i) restraining a person from engaging in specified conduct or from doing a specified act;
(j) requiring a person to do a specified act.”

Plaintiffs’ Standing

21 The provision of the Corporations Act 2001 (Cth) which now governs who has standing to apply for an order is section 234. Under it, a member is one type of person who can make an application for an order under section 233. The present plaintiffs clearly have standing to apply for the orders they seek.

Plaintiffs’ Contentions

22 The plaintiffs contend that the present is a case falling within the circumstances in which the Court can grant relief as follows. First, the calling of the Special General Meeting is a proposed act by, or on behalf of, NRMA, and so falls within section 232(b). The only business which is proposed to be conducted at that Special General Meeting is the putting of the resolutions contained in the requisition, and the amendment to those resolutions contained in the section 249N notice. Second, the resolutions referred to in the requisition and in the section 249N notice are each proposed resolutions of members of a company, and so fall within section 232(c). The calling of the meeting, and the passing of the resolutions, is contrary to the interests of the members of NRMA as a whole, and so is within section 232(d). Further, the calling of the meeting and the proposing of the resolutions is (in the circumstances which now exist) oppressive to, unfairly prejudicial to, or unfairly discriminatory against, the members of NRMA, and so falls within section 232(e).

Is “Contrary to the Interests of the Members as a Whole” a Separate Basis for the Court’s Intervention?

23 In considering previous cases relating to sections broadly analogous to sections 232 and 233 Corporations Act 2001 (Cth), it is necessary to pay close attention to the wording of the particular section being considered in the particular case. While there has been, for a considerable period, in the statute governing corporations from time to time, a provision which is, in some ways, broadly analogous to the present sections 232 and 233, the provision has changed considerably in its verbiage over the years. Without trying to list exhaustively all the sections which there have been over the last forty years which are broadly analogous to the present sections 232 and 233, this point emerges clearly from comparing section 186 Companies Act 1961 (NSW), section 320 Companies (NSW) Code, and section 246AA Corporations Law. Those provisions of the corporations legislation, known loosely as “the oppression provision”, have at all times included, either expressly or by necessary implication, a specification of who has standing to apply for relief, of the circumstances in which the Court can grant relief, and of the types of relief which the Court can grant. However the scope of each of those elements has widened in the particular corporations legislation which has been in place in Australia from time to time over the years since 1961.

24 The view was first expressed in Australasian jurisprudence by Richardson J in Thomas v H W Thomas Ltd [1984] 1 NZLR 686; (1984) 2 ACLC 610 that the version of the oppression provision then being considered imposed a test which was a composite expression for when it is that a court can interfere in the affairs of a corporation under that section.

25 The legislation Richardson J considered was section 209 of the Companies Act 1955 (NZ), in the new form it had after amending legislation introduced in 1980. That section identified the circumstances in which the court has power to grant relief at the suit of a member by the following language:

“(1) Any member of a company who complains that the affairs of the company have been or are being or are likely to be conducted in a manner that is, or any act or acts of the company have been or are or are likely to be, oppressive, unfairly discriminatory, or unfairly prejudicial, to him (whether in his capacity as a member or in any other capacity) … may make an application to the Court for an order under this section.”

26 Richardson J outlined the way in which the section had historically developed, from the recommendations of the Cohen Committee in the United Kingdom, to the effect that the just and equitable ground for winding up provided too blunt a means of dealing with oppressive conduct of the affairs of a company and hence that a statutory remedy for oppression was needed, and how the new New Zealand provision (the result of a recommendation of the Macarthur Committee) dealt with various inadequacies in the previous legislation on the topic. His Honour then continued (at 693 of NZLR, 616-617 of ACLC):

“In employing the words “oppressive, unfairly discriminatory or are unfairly prejudicial” Parliament has afforded petitioners a wider base on which to found a complaint. Taking the ordinary dictionary definition of the words from the Shorter Oxford English Dictionary : oppressive is “unjustly burdensome”; unfair is “not fair or equitable; unjust”; discriminate is “to make or constitute a difference in or between; to differentiate”; and prejudicial, “causing prejudice, detrimental, damaging (to rights, interests, etc)”. I do not read the subsection as referring to three distinct alternatives which are to be considered separately in watertight compartments. The three expressions overlap, each in a sense helps to explain the other, and read together they reflect the underlying concern of the subsection that conduct of the company which is unjustly detrimental to any member of the company whatever form it takes and whether it adversely affects all members alike or discriminates against some only is a legitimate foundation for a complaint under section 209. The statutory concern is directed to instances or courses of conduct amounting to an unjust detriment to the interests of a member or members of the company. It follows that it is not necessary for a complainant to point to any actual irregularity or to an invasion of his legal rights or to a lack of probity or want of good faith towards him on the part of those in control of the company.”

27 The notion that the oppression provision embodies a composite test has been repeated on numerous later occasions in relation to the then version of the legislation, but nearly always in a context where the question at issue has been whether conduct has been oppressive, unfairly prejudicial or unfairly discriminatory: eg Liosatos v Kefalinian Brotherhood ‘O Kefalos’of NSW [2000] NSWSC 1138; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd and Others [2001] NSWSCA 97; (2001) 37 ACSR 672 per Spigelman CJ at [6].

28 In Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692, Young J dealt with an application under section 320 of the Companies (NSW) Code, in the form it had after amendments made in 1983. Section 320(1)(a) permitted an application to be made:

“by a member who believes –
(i) that affairs of the company are being conducted in a manner which is oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member or members, or in a manner that is contrary to the interests of the members as a whole; or
(ii) that an act or omission, or a proposed act or omission, by or on behalf of the company, or a resolution, or a proposed resolution, of a class of members, was or would be oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member or members or was or would be contrary to the interests of the members as a whole.”

Section 320(2) Companies (NSW) Code defined the conditions for operation of the Court’s power in the following language:

“If the Court is of the opinion –
(a) that affairs of a company are being conducted in a manner that is oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member or members (in this section referred to as “the oppressed member or members”) or in a manner that is contrary to the interests of the members as a whole; or
(b) that an act or omission, or a proposed act or omission, by or on behalf of a company, or a resolution, or a proposed resolution, of a class of members of a company, was or would be oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member or members (in this section also referred to as the “oppressed member or members”) or was or would be contrary to the interests of the members as a whole.”

29 Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692 was a case which concerned an allegation of oppression in the conduct of the affairs of the company; it did not concern any proposed meeting, or any resolution or proposed resolution, nor did it concern any allegation that conduct was contrary to the interests of the members as a whole. Young J said, at 704:

“… in my view as a result of the decisions in New Zealand in Thomas v H W Thomas Ltd [1984] 1 NZLR 686; 2 ACLC 610; in England in Re Bovey Hotel Ventures Ltd (Chancery Division, Slade J 31 July 1981 unreported); Re R A Noble & Sons (Clothing) Ltd [1983] BCLC 273 at 290; and Re London School of Electronics Ltd [1985] 3 WLR 474 and in Australia in Wayde v NSW Rugby League Ltd (1985) 10 ACLR 87; 61 ALR 225 it has been accepted that one no longer looks at the word “oppressive” in isolation but rather asks whether objectively in the eyes of a commercial bystander, there has been unfairness, namely conduct that is so unfair that reasonable directors who consider the matter would not have thought the decision fair: see Wayde’s Case per Brennan J at ACLR 94 and at ALR 235; per the majority at ACLR 91 and at ALR 231. In my view a court now looks at sub-s 2(a) as a composite whole and the individual elements mentioned in the section should be considered merely as different aspects of the essential criterion, namely commercial unfairness.”

30 There has been discussion in some later cases, initially without decision, of whether that view of Young J ought apply in a case where the basis on which the court’s intervention was sought was not that the affairs of the company were being conducted in a manner that is oppressive or unfairly prejudicial to, or unfairly discriminatory against a member or members, but rather that conduct or proposed conduct was alleged to be contrary to the interests of the members as a whole: Re Spargos Mining NL (1990) 3 ACSR 1 at 42; Re Enterprise Gold Mines NL (1991) 3 ACSR 531 at 538; Australian Securities Commission v The Multiple Sclerosis Society of Tasmania (1993) 10 ACSR 489 at 516; McMillan v Toledo Enterprises International Pty Ltd and Others (1995) 18 ACSR 603 at 613.

31 In Re Polyresins Pty Ltd (1998) 28 ACSR 671, Chesterman J decided that question concerning section 260 of the Corporations Law. Section 260 was in identical terms to the portion which I have quoted in para [28] above from section 320 of the Companies (NSW) Code in the form considered by Young J in Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692. Chesterman J considered, at 675-677, a problem which he posed (at 675) as follows:

“Regard has so far been focused on that part of s 260 which refers to oppression or unfair prejudice or unfair discrimination. There is a further phrase to be found in the section: that the affairs of the company are being conducted in a manner contrary to the interests of the members as a whole or that acts or omissions or resolutions were or would be contrary to the interests of the members as a whole. If this phrase confers a separate basis for the court’s intervention the difficulty of a majority shareholder persuading the court to form the requisite opinion may not exist.
Does the phrase constitute a separate basis?”

His Honour noted, at 676, that the Court of Appeal of the Supreme Court of New South Wales in New South Wales Rugby League Ltd v Wayde and Another (1985) 1 NSWLR 86 at 96, after referring to the judgment of Richardson J in Thomas , said:

“The Australian provision contains an additional statutory basis for curial intervention to those in the New Zealand legislation. Section 320 also permits the court to intervene where the act or omission “was or would be contrary to the interests of the members as a whole”. This reflects recognition of a long established principle of company law.”

Chesterman J concluded, at 677 that:

“… the phrase “contrary to the interests of the members as a whole” is another expression overlapping “oppression, unfair prejudice and unfair discrimination” to provide a further element in the understanding of “commercial unfairness”.

A principal reason for reaching that conclusion was one which his Honour stated at 676:

“The structure of section 260 appears to me to be against the notion that the last mentioned phrase gives rise to a wholly separate statutory basis for the court's jurisdiction. If the first three expressions overlap and are to be read together to express one underlying concern it is difficult to see why the fourth is excluded. I would have thought that the subsection gives rise to four distinct grounds or one composite one. There seems to me nothing in the mode of expression of the section which allows one to amalgamate three of the four “concepts” but not the fourth.”

The logic of that reasoning seems to me, with respect, to be inescapable.

32 However, the wording of the section has changed since that decision was made. The present form of sections 232 and 233, was inserted into the Corporations Law by the Corporate Law Economic Reform Program Act 1999 (Cth) Schedule 1. It came into operation on 13 March 2000. The immediate predecessor of the new sections 232 and 233 was section 246AA Corporations Law, which set out the condition for operation of the court’s power in identical words to those which had been contained in section 320(2) Companies (NSW) Code, quoted above at para [28]. The new section 232 differed from the old section 246AA in that:

(a) the four elements which were contained in section 246AA(1)(a) were split into separate paragraphs, (d) and (e),

(b) the element involving “contrary to the interests of the members as a whole” was placed first, and in a paragraph of its own,

(c) paragraphs (d) and (e) were preceded by the phrase ‘is either” , and the word “or” was placed at the end of paragraph (d).

An action is capable of being “contrary to the interests of the members as a whole” in ways other than by being commercially unfair. Being pointlessly wasteful is one example. The changes which I have just listed make clear, in my view, that the ground of being “contrary to the interests of the members as a whole” in section 232 is intended to be an independent one to the ground of being “oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity”.

Construction of Section 232 Affected by its Part Heading?

33 The new sections 232-235 which were introduced into the Corporations Law in 1999 were accompanied by a heading “Part 2F.1 – Oppressive conduct of affairs”. Section 13(1) Acts Interpretation Act 1901 (Cth) provides that “the headings of the Parts Divisions and Subdivisions into which any Act is divided shall be deemed to be part of the Act.” In Hornsby Building Information Centre Proprietary Limited and Another v Sydney Building Information Centre Limited (1978) 140 CLR 216 Stephen J (with whom Jacobs J agreed) adopted, at 225, what had been said by Latham CJ in Silk Bros Proprietary Limited v State Electricity Commission (of Victoria) (1943) 67 CLR 1 at 16 concerning the use of headings in the interpretation of statutes. Latham CJ said:

“The headings in a statute or in Regulations can be taken into consideration in determining the meaning of a provision where that provision is ambiguous, and may sometimes be of service in determining the scope of a provision (see In re Commercial Bank of Australia Ltd (1893) 19 VLR 333 at p375). “But where the enacting words are clear and unambiguous, the title, or headings, must give way, and full effect must be given to the enactment” ( Bennett v Minister of Public Works (NSW) (1908) 7 CLR 372 at p383, per Isaacs J).”

34 The Hornsby Building Information Centre case concerned whether the general prohibition arising under section 52 Trade Practices Act 1974 (Cth), that “a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive” was limited by the fact that section 52 appeared in a Part of the Act which was headed “Consumer Protection”. Stephen J said, at 225:

“To subject the clear and quite general words of s 52 to some limitation derived from the heading to Part V is, I think, especially inappropriate in the case of this particular legislation.”

Notwithstanding the view which his Honour had come to, Stephen J accepted, at 224, that the heading “… does colour the meaning to be given to the sort of conduct against which the section is aimed.”

35 Murphy J’s pronouncement on the topic, at 234, was:

“Section 52 which is in Part V of the Trade Practice Act is not limited or qualified by the heading of the Part “Consumer Protection”.

36 In Concrete Constructions (NSW) Pty Limitedv Nelson (1990) 169 CLR 594 at 601 Mason CJ, Deane, Dawson and Gaudron JJ said that the heading to Part V Trade Practices Act 1974 (Cth):

“… constitutes part of the context within which the substantive provisions of Part V must be construed and should be taken into consideration in determining the meaning of those provisions in case of ambiguity. The heading does not, however, control the permissible scope of the substantive provisions of Part V and cannot properly be used to impose an unnaturally constricted meaning upon the words of those substantive provisions.”

37 Their Honours considered, at 601-2, that the prohibition of misleading or deceptive conduct “in trade or commerce” by section 52 was so clear that it applied “regardless of whether the conduct is misleading to, or deceptive of, a person in the capacity of a consumer.” However, their Honours noted, at 602, that the expression “in trade or commerce” in section 52 was imprecise, and its intended shade or meaning could be ascertained with assistance from the heading “Consumer Protection”.

38 Similarly, in Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 at 657, Kirby P said that headings in statutes:

“… may be referred to not to contradict “any clear and unambiguous language, but if there is any uncertainty it may be referred to for the purpose of resolving the uncertainty”: see Birch v Allen (1942) 65 CLR 621 at 625-626; see also Saunders v Borthistle (1904) 1 CLR 379 at 389; Inglis v Robertson and Baxter [1898] AC 616 at 624, 630; Toronto City Corporation v Toronto Railway Co [1907] AC 316 at 324; Ragless v District Council of Prospect [1922] SASR 299 at 311; Cole [v. Director-General of Department of Youth and Community Services and Another (1986) 7 NSWLR 541] (at 549).”

39 The deliberate change in the law which Parliament has made by enacting section 232 Corporations Act 2001 (Cth) in its present form, with the differences which I have earlier identified from the previous legislation, are such that it is so clear that “contrary to the interests of the members as a whole” is a ground on which the Court could make an order under section 233, independently of whether conduct, etc, is oppressive to, unfairly prejudicial to, or unfairly discriminatory against a member or members, that the Part heading cannot be used to limit the meaning of section 232(d).

How Section 249D Interacts with Sections 232 and 233

40 I have earlier quoted the wording of section 249D Corporations Act 2001 (Cth). If the wording of that section is taken on its own, then it imposes an absolute obligation on directors of a company to call and arrange a general meeting in the circumstances set out in that section. However, it is not to be taken on its own; rather, it is to be taken in its context in the statute as a whole. It has been repeatedly held that the obligations under section 249D can be modified by an order of the court made under section 1322, to alter the time limits laid down by that section: National Roads and Motorists’ Association Ltd v Scandrett and Another [2002] NSWSC 1123; (2002) 43 ACSR 401 at [61]; NRMA v Scandrett [2002] NSWSC 1038; NRMA Insurance Ltd v Carroll [1999] NSWSC 1022; (1999) 32 ACSR 655 at [16]; NRMA v Parkin [2004] NSWSC 296. I see no reason why, by similar reasoning, the wording of section 249D cannot also be made subject to the possibility of the court making an order under sections 232 and 233 Corporations Act 2001 (Cth).

Extent of the Court’s Power to make Orders Under Section 233

41 There is authority for the predecessor of sections 232 and 233 Corporations Act 2001 (Cth) being used to make an order that a company meeting be held: (Australian Securities Commission v The Multiple Sclerosis Society of Tasmania (1993) 10 ACSR 489). It is a more significant exercise of power to decide that a company meeting, which would otherwise be held, ought not be held. However, in my view, it is within power for the Court to make such an order in an appropriate case.

42 The power conferred on the Court by section 233 is to “make any order under this section that it considers appropriate in relation to the company”. That is a power conferred in extremely wide terms, which would be confined as a matter of construction only to the extent that the scope and purpose of the statutory enactment may enable the Court to see that some exercises of the power would be definitely extraneous to any objects the legislature could have had in view: Water Conservation and Irrigation Commission (New South Wales) v Browning (1947) 74 CLR 492 at 505; R v The Australian Broadcasting Tribunal; Ex parte 2HD Proprietary Limited (1979) 144 CLR 45 at 49; The State of New South Wales and Others v The Commonwealth of Australia and Carlton and Another (1983) 151 CLR 302 at 321-322; FAI Insurances Ltd v The Honourable Sir Henry Winneke and Others (1982) 151 CLR 342 at 368; Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40; Minister of State for Immigration and Ethnic Affairs v Ah Min Teoh (1995) 183 CLR 273 at 285.

43 I have earlier mentioned that in the course of enactment, amendment, and re-enactment of the various “oppression provisions” there has been a widening, over the decades, of the type of order which the Court can make. Section 186 Companies Act 1961 (NSW) conferred power on the Court, when oppression was established, to wind the company up or:

“where the Court is of opinion that to wind up the company would unfairly prejudice the member or members referred to in subsection (1) of this section, but otherwise the facts would justify the making of a winding up order on the grounds that it is just and equitable that the company be wound up, or that, for any other reason it is just and equitable to make an order (other than a winding up order) under this section, make such order as it thinks fit whether for regulating the conduct of the company’s affairs in the future or for the purchase of the shares of any members by other members or by the company and, in the case of a purchase by the company, for the reduction accordingly of the company’s capital, or otherwise.”

44 Section 209 of the Companies Act 1955 (NZ), considered by Richardson J in Thomas, included a provision that:

“(2) If on any such application the Court is of the opinion that it is just and equitable to do so, the Court may make such order as it thinks fit, whether for -
[list of types of order]
or otherwise.”

45 In Thomas v H W Thomas Ltd ([1984] 1 NZLR 686 at 693, (1984) 2 ACLC 610 at 616) Richardson J stated:

“Then subsec (2) provides that on any such application the Court may grant the statutory relief where it considers it “just and equitable” to do so. It follows in my view that the considerations underlying the exercise of the just and equitable winding-up jurisdiction bear on the exercise of the jurisdiction under subs (2)”

46 By the time of enactment of section 320 Companies Act 1981 (the ACT enactment which was adopted by the various States to become the Companies Code) any reference to “just and equitable” in the “oppression provisions” had been dropped. Section 320(2) said that, when the conditions for the Court’s exercise of power were satisfied:

“… the Court may, subject to sub-section (3), make such order or orders as it thinks fit, including, but without limiting the generality of the foregoing, one of the following orders:
[list of possible orders]
(3) the Court shall not make an order under sub-section (2) for the winding up of the company if it is of the opinion that the winding up of the company would unfairly prejudice the member or members referred to in paragraph (2)(a) or the other members referred to in paragraph (2)(b).”

47 Subsequent versions of the “oppression provisions” have continued to confer on the Court a power to make orders where the power is expressed in very general terms like “as it thinks fit”, or “that it considers appropriate”. The legislature has continued not to include the phrase “just and equitable”, which might bring with it overtones of the basis upon which the Court will order winding up on the just and equitable ground. This confirms the width of the intended power under section 233 Corporations Act 2001 (Cth).

48 Moving from the general power of the Court under section 233(1) Corporations Act 2001 (Cth) to “make any order under this section that it considers appropriate in relation to the company”, to the non-exhaustive list of examples of possible orders which then follows in section 233(1), an order that a meeting not be held comfortably falls within the scope of an order “regulating the conduct of the company’s affairs in the future” (section 233(1)(c)). The extended definition of “the affairs of a body corporate” in section 53 Corporations Act 2001 (Cth) (which section 53 expressly states applies to section 233) includes, “(c) the internal management and proceedings of the body.” Such “internal management and proceedings” includes the calling and holding of meetings. Ordering that a meeting should not be called, or held, is a regulation of the conduct of the company’s affairs. If an order needed to be cast in terms of restraining appropriate corporate officers from taking further steps to conduct a meeting, or requiring them to take positive steps to cancel the meeting, such orders fall within sub sections 233(1)(i) and (j).

49 Neither the fact that NRMA is a company limited by guarantee, nor the fact that the relief which is sought is relief to which the defendant consents, is sufficient to show that the power under sections 232 and 233 Corporations Act 2001 (Cth) cannot be exercised in the present case. I repeat what I said in Sutherland v National Roads and Motorist’s Association Ltd [2003] NSWSC 829; (2003) 47 ACSR 428 at [22]:

“There is no problem about applying the oppression provisions to a company limited by guarantee: Australian Securities Commission v Multiple Sclerosis Society of Tasmania (1993) 10 ACSR 489; 11 ACLC 461; Re Ingleburn Horse and Pony Club Ltd and the Companies Act [1973] 1 NSWLR 641; Fraser v NRMA Holdings Ltd (1995) 55 FCR 452; 127 ALR 543 at 564-5. … Nor is there any difficulty with making an order by consent under the section. As Young J pointed out in Quinlan v Fiboze Pty Ltd (1998) 14 ACLR 312; 6 ACLC 993 many oppression cases are ones where, at least ultimately, orders are made by consent, when the case settles.”

Should the Power be Exercised?

50 Having satisfied myself that the power to make the order sought exists, I turn to whether that power should actually be exercised.

51 The power of the court to make an order under sections 232 and 233 Corporations Act 2001 (Cth), on the ground that something prescribed by the Corporations Act2001 (Cth) is contrary to the interests of the members as a whole, is a power which must be exercised with the greatest of care. The court is extremely reluctant to interfere, in advance, with the ordinary processes of company democracy. It is a well-established rule of thumb that a court will, only in the rarest of circumstances, injunct the holding of a company meeting. Questions of what is, or is not, in the interests of the members as a whole are often best left to be decided by the officers, organs and procedures of the company itself, or by the court deciding, after events have happened, whether those events fall short of a legally required standard of conduct by virtue of them not having occurred in the interests of the members as a whole. If the court is asked to make an order under section 233 on the ground that some proposed course of conduct is contrary to the interest of the members as whole there will frequently be factual difficulties in demonstrating with sufficient certainty that that course of conduct is indeed contrary to the interests of the members as a whole. All these matters combine to show that it is likely to be only in a very rare case that a Court will decide to order that a company meeting validly requisitioned need not be held, or that a resolution validly proposed need not be put to a meeting.

52 It seems to me, however, that the present is a case where it is appropriate to exercise this extraordinary power. The evidence shows that the machinery for calling of the meeting has been set running for purposes which were proper ones. However, the settlement of the industrial dispute means that the entire point of the calling of the meeting has now gone away. If the meeting were now to be held, it would be an empty charade because no-one now wants to propose or speak in favour of the motions that, once, the requisitionists wished to have considered. Mr Parkin’s section 249P statement, which was very important for members who do not attend the meeting to consider if they were to cast a vote by proxy, has been withdrawn. Allowing the machinery which has been set running to continue its course will involve large expense. While that large expense is less than a dollar per member of the NRMA, there is enormous difference between expense of that order being incurred in the proper carrying through of a section 249D procedure which has been properly and bona fide invoked and which requisitionists continue to want to see through to finality, and the expense incurred in carrying through a section 249D procedure that, now, no-one wants to carry through.

53 No-one has been able to point to any power, other than sections 232 and 233, under which the Court would be able to intervene, to not require the meeting to be held. If the power of the Court under those sections were not exercised in the present circumstances, it would mean that the Court would be deciding it should stand by and watch while a large amount of work was done, members were sent and asked to consider documents, and over $1.8 million was spent, all for no purpose. I doubt that it would have been the Parliament’s intention that such a state of affairs should come about.

54 In the circumstances which I have outlined, I am satisfied that it would be contrary to the interests of the members as a whole for the meeting procedure to continue any further. Having reached a decision on that basis, it is not necessary to consider the alternative basis on which the plaintiffs seek orders. I therefore order:

(1) That a Special General Meeting of NRMA's members not be called or convened in response to the requisition under section 249D Corporations Act 2001 (Cth) given to NRMA on 18 March 2004, and;

(2) That the resolution, notice of which was given to NRMA on 28 May 2004 under section 249N of the Corporations Act 2001 (Cth) not be included in the business of NRMA's next occurring general meeting.

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Last Modified: 07/12/2004