Walker, David v Daniel, David

[1996] FCA 1159

CATCHWORDS

MEETINGS  -  amendment of rules  -  whether rules may be amended "in principle" and amendments drafted subsequent to meeting convened for purpose of amending rules.

Aboriginal Councils and Associations Act 1976 ss 54, 79
Judiciary Act 1903 s39B

DAVID WALKER & ORS v DAVID DANIEL & ORS
WAG134 OF 1996

LEE J
PERTH
24 DECEMBER 1996

IN THE FEDERAL COURT  )
OF AUSTRALIA         )
WESTERN AUSTRALIA     )
DISTRICT REGISTRY     )
GENERAL DIVISION     )    NO. WAG 134 OF 1996

B E T W E E N:            DAVID WALKER

MICHAEL WALKER

MARY COSMOS

MARGARET PARKER

SUSAN HUGHES

ALICE SMITH

ROBERT BOONA

STEWART INJIE

JOHNNY ASHBURTON

DARREN INJIE

TRUDY HAYES

GLADYS WALKER

Applicants

and

DAVID DANIEL

CAROL LOCKYER

JILL CHURNSIDE

MAUDIE JERROLD

REX CHURNSIDE

TREVOR SOLOMON

AUSTIN JAMES

JUDITH COPPIN

ROSS WALKER

MICHELLE ADAMS

First Respondents

and

WEST PILBARA LAND COUNCIL ABORIGINAL CORPORATION

Second Respondent

and

REGISTRAR OF ABORIGINAL CORPORATIONS

Third Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER:       LEE J

DATE OF ORDER:            24 DECEMBER 1996

WHERE MADE:               PERTH

THE COURT ORDERS THAT:

The application be dismissed with costs of the first and second respondents to be paid by the applicants.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT  )
OF AUSTRALIA         )
WESTERN AUSTRALIA     )
DISTRICT REGISTRY     )
GENERAL DIVISION     )    NO. WAG 134 OF 1996

B E T W E E N:            DAVID WALKER

MICHAEL WALKER

MARY COSMOS

MARGARET PARKER

SUSAN HUGHES

ALICE SMITH

ROBERT BOONA

STEWART INJIE

JOHNNY ASHBURTON

DARREN INJIE

TRUDY HAYES

GLADYS WALKER

Applicants

and

DAVID DANIEL

CAROL LOCKYER

JILL CHURNSIDE

MAUDIE JERROLD

REX CHURNSIDE

TREVOR SOLOMON

AUSTIN JAMES

JUDITH COPPIN

ROSS WALKER

MICHELLE ADAMS

First Respondents

and

WEST PILBARA LAND COUNCIL ABORIGINAL CORPORATION

Second Respondent

and

REGISTRAR OF ABORIGINAL CORPORATIONS

Third Respondent

CORAM:    LEE J

DATE :24 DECEMBER 1996

PLACE:    PERTH

REASONS FOR JUDGMENT

The applicants claim to be the duly elected members of the Board of Management of the second respondent ("the Corporation"), a body incorporated under the Aboriginal Councils and Associations Act 1976 ("the Act").

The second respondents dispute that claim and assert that they remain in office as the Board of Management of the Corporation.

The applicants seek an order pursuant to the jurisdiction conferred on this Court by s39B of the Judiciary Act 1903 directing the Registrar to exercise the power conferred on the Registrar by s79 of the Act dealing with the approval of amendments to rules of registered bodies and a declaration that the applicants were properly elected as the Board of Management of the Corporation.

On 29 July 1996 a special general meeting of the Corporation was convened.  The notice convening the meeting advised that the purpose of the meeting was to alter the objects and Rules of the Corporation.  The form of the proposed amendments was not set out in, nor attached to, that notice which gave headings or outlines only of the proposed amendments.

On 29 July 1996 the meeting of members resolved to change the name of the Corporation to the name as it now appears.  It also resolved that a draft constitution be prepared to reflect the amendments sought to be made to the structure to the Board of Management.  The meeting further resolved as follows:

"This Special General Meeting stands adjourned to 30 August pending the resolution of the compositions [sic] of the question of membership of the Board of Management.  If the matter is resolved in accordance with these [sic] resolution,  the Land Council will pass the necessary constitutional amendments".

On 1 August 1996 notice of the adjourned special general meeting was given to members and to other persons of the Aboriginal community in the district.  The notice included a copy of the proposed re-drafted Rules of the Corporation.  The notice advised that a meeting of a "Representative Body" of people of the West Pilbara would be held on 9 August 1996 and the adjourned meeting of the Corporation would resume on 30 August 1996 after "this matter has been decided by the people of the Representative Body meeting".

Participation in the meeting held on 9 August 1996 was not restricted to members of the Corporation.

The applicants contend that at the meeting held on 9 August 1996 the Rules of the Corporation were amended by "adoption" of an amended "draft constitution".  The meeting purported to elect a new Board of Management pursuant to the "new Rules".  It is in respect of those "amendments" that the applicants seek an order directing the Registrar to register amended Rules of the Corporation.

Rule 23 of the Rules of the Corporation as at 29 July 1996 provided as follows in respect of amendment of the Rules:

"23.(1)The objects and rules of the Association may, subject to this Rule, only be altered by a resolution passed by a majority of at least three-quarters of the members of the corporation present and voting at a General Meeting specially convened for the purpose.  The proposed alterations must be specified in the notice of the General Meeting.

(2)The Public officer shall, pursuant to section 52 or 54 (as appropriate) of the Act, within six weeks after the making of the alteration, file with the Registrar a notification of the alteration.

(3)The alteration shall not take effect unless and until approved by the Registrar.

(4)The Public Officer shall notify the Deputy Commissioner of Taxation in Western Australia of any alteration."

The applicants submitted that the Rules were amended in principle on 29 July 1996 and that any steps thereafter to reduce the amendments to express words consistent with the amendments in principle were merely steps taken to perfect the amendments in the form required to be provided to the Registrar under s54 of the Act. Alternatively, the applicants submitted that amendment of the Rules in accordance with r23 was effected at the "meeting" held on 9 August 1996.

With regard to the provisions of sub-r23(3) which states that no alteration takes effect unless and until approved by the Registrar, the applicants submitted that the provision was intended to permit a retrospective effect to be accorded by that approval to validate actions taken pursuant to the amended Rules in the interim.  The applicants pointed out that the context in which such corporations operated, namely, disparate membership, vast distances, difficulties in convening meetings and in maintaining communications between members, made it appropriate to apply a generous approach to the operation of such rules to allow them to be an effective form of governance of the affairs of such corporations.

With regard to the latter submission I agree that commensense must be applied construing the intended manner of operation of the Rules but not at the expense of the plain meaning of the words used.

With regard to the meeting convened on 29 July 1996 it is obvious from the minutes recording the business of the meeting that the amendment of the Rules proceeded no further than the agreement that draft amendments would be put to the meeting upon resumption of the meeting on 30 August 1996 after adjournment.

It is unnecessary to determine whether the notice convening the meeting complied with the requirements of sub-r23(1).  The respondents did not make any submissions on that issue.

I do not accept that the rules could be amended "in principle" by a resolution that amendments be drafted thereafter. Both the Rules and the Act contemplate that specific amendments are to be put and resolved at an appropriately convened meeting.

Furthermore, I do not accept that the meeting held on 9 August 1996 was a resumption of the adjourned meeting of the Corporation.  It did not purport to be so and its purpose was to expose the proposed amendments to the Rules of the Corporation to a wider group than the existing membership of the Corporation for discussion and consultation, although members of the Corporation were given notice of that meeting.

At all times it was intended by the members, as expressed in the resolution made in general meeting, that the special general meeting of the Corporation would resume on 30 August 1996 to consider amendments to the Rules.
         It follows that any resolutions made at the meeting held on 9 August 1996 had no effect on the Rules of the Corporation.  Even if they had, the terms of sub-r23(3) prevented such amendments operating until approved by the Registrar.  Until such amendments were approved, members were bound to conduct the business and affairs of the Corporation under the Rules as they stood.

It follows that the purported steps taken by those assembled at a meeting held on 9 August 1996 to elect a new Board of Management of the Corporation pursuant to the rules of the Corporation as "amended" at that meeting were of no effect and the application must be dismissed.

I certify that this and the preceding     6 pages are a true copy of the Reasons for Judgment of his Honour Justice Lee.

Associate:
              Date:

APPEARANCES

Counsel for the Applicants: S R Sirrett

Solicitors for the Applicants:  Thami Nqayi

Counsel for the First and Second Respondents:  C G Colvin

Solicitors for the First and Second Respondents:  DCH Legal Group

Date of Hearing  :  20 November 1996
Date of Judgment :  24 December 1996