Woolworths Ltd v GetUp Ltd

Case [2012] FCA 726

FEDERAL COURT OF AUSTRALIA

Woolworths Limited v GetUp Limited [2012] FCA 726

Citation: Woolworths Limited v GetUp Limited [2012] FCA 726
Parties: WOOLWORTHS LIMITED (ACN 000 014 675) v GETUP LIMITED (ACN 114 027 986)
File number(s): NSD 941 of 2012
Judge: YATES J
Date of judgment: 6 July 2012
Catchwords: CORPORATIONS – application under s 1322 of the Corporations Act 2001 (Cth) for an extension of time for the calling and holding of an extraordinary general meeting and the issuing of a members’ statement – whether no substantial injustice is likely to be caused to any person by the making of the order
Legislation: Corporations Act 2001 (Cth) ss 249D, 249P, 1322
Cases cited:

National Roads and Motorists’ Association Ltd v Parkin (2004) 49 ACSR 386
National Roads and Motorists’ Association Ltd v Parkin (No 2) (2004) 49 ACSR 501

National Roads and Motorists’ Association Ltd v Snodgrass (2002) 42 ACSR 371

NRMA Insurance Group Ltd v Spragg (2001) 38 ACSR 174
Date of hearing: 6 July 2012
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 29
Counsel for the Plaintiff: Mr J Lockhart SC
Solicitor for the Plaintiff: Allens
Counsel for the Defendant: Mr GK Rich
Solicitor for the Defendant: Marque Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 941 of 2012
BETWEEN:

WOOLWORTHS LIMITED (ACN 000 014 675)
Plaintiff
AND:

GETUP LIMITED (ACN 114 027 986)
Defendant

JUDGE:

YATES J

DATE OF ORDER:

6 JULY 2012

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to s 1322(4)(d) of the Corporations Act 2001 (Cth) (the Corporations Act) the time fixed by s 249D(5) for calling the meeting (Meeting) requested in the document which is Annexure PJH-1 to the affidavit of Peter John Horton (Notice) be extended up until and including 31 October 2012.

2.Pursuant to s 1322(4)(d) of the Corporations Act the time fixed by s 249D(5) for holding the Meeting be extended up until and including 30 November 2012.

3.Pursuant to s 1322(4)(d) of the Corporations Act the time fixed for issuing a members’ statement under s 249P(6) be extended up until and including 31 October 2012.

4.Until further order, the contact addresses listed in the 3rd and 5th columns of the table at Annexure PJH-1 to the affidavit of Peter John Horton be kept confidential and access to those documents be restricted to the parties, their solicitors and counsel.  

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 941 of 2012
BETWEEN:

WOOLWORTHS LIMITED (ACN 000 014 675)
Plaintiff
AND:

GETUP LIMITED (ACN 114 027 986)
Defendant

JUDGE:

YATES J

DATE:

6 JULY 2012

PLACE:

SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

  1. The plaintiff seeks orders pursuant to s 1322(4)(d) of the Corporations Act 2001 (Cth) (the Act) extending the time fixed under the Act for calling and holding an extraordinary general meeting and for…

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AGLC
Woolworths Ltd v GetUp Ltd [2012] FCA 726
Case
[2012] FCA 726
Decision Date

CaseChat Overview and Summary

Woolworths Ltd sought relief from the Federal Court to extend the statutory timeframe for calling and holding an extraordinary general meeting (EGM) and issuing a members’ statement. GetUp Ltd, representing members who had requested the EGM, opposed the application. The proposed EGM aimed to consider a special resolution to amend Woolworths’ constitution, excluding the ownership or operation of certain electronic gaming machines from its objects and purposes as of 1 January 2016. The central legal issue before the court was whether the plaintiff could be granted an extension of time under section 1322(4)(d) of the Corporations Act 2001 (Cth), provided no substantial injustice would be caused to any person. The court examined the arguments presented by both parties and considered the statutory provisions and relevant case law. The court noted that the statutory period for calling and holding the EGM had already expired, and there was no evidence that a failure to hold the EGM would cause substantial injustice to any party. The court also considered the principle that detriment alone does not equate to substantial injustice. After weighing the arguments and authorities, the court found that Woolworths had not demonstrated a case for extending the time limits. The court concluded that granting the extension would not cause substantial injustice to any person and made orders to extend the timeframes for calling, holding the EGM, and issuing the members’ statement. Additionally, the court ordered that certain contact addresses provided in the Notice be kept confidential and access to those documents be restricted to the parties and their legal representatives.

Orders

Orders of the court

1. Pursuant to s 1322(4)(d) of the Corporations Act 2001 (Cth) (the Corporations Act) the time fixed by s 249D(5) for calling the meeting (Meeting) requested in the document which is Annexure PJH-1 to the affidavit of Peter John Horton (Notice) be extended up until and including 31 October 2012.

2. Pursuant to s 1322(4)(d) of the Corporations Act the time fixed by s 249D(5) for holding the Meeting be extended up until and including 30 November 2012.

3. Pursuant to s 1322(4)(d) of the Corporations Act the time fixed for issuing a members’ statement under s 249P(6) be extended up until and including 31 October 2012.

4. Until further order, the contact addresses listed in the 3rd and 5th columns of the table at Annexure PJH-1 to the affidavit of Peter John Horton be kept confidential and access to those documents be restricted to the parties, their solicitors and counsel.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The plaintiff seeks orders pursuant to s 1322(4)(d) of the Corporations Act 2001 (Cth) (the Act) extending the time fixed under the Act for calling and holding an extraordinary general meeting and for issuing a members’ statement. It wishes to extend the relevant times to coincide with the times for calling and holding its scheduled annual general meeting for 2012.Background The directors of a company must call and arrange to hold a general meeting on the request of members with at least 5% of the votes that may be cast at the general meeting, or at least 100 members who are entitled to vote at the general meeting: s 249D(1). The directors must call the meeting within 21 days after the request is given to the company. The meeting is to be held no later than two months after the request is given to the company: s 249D(5). The members making the request may also request the company to give to all its members a statement provided by them about a resolution that is proposed to be moved at the general meeting, or any other matter that may properly be considered at the meeting: s 249P(1). The company must distribute to all its members a copy of the statement at the same time, or as soon as practicable afterwards, and in the same way, as it gives notice of the general meeting: s 249P(6). On about 25 June 2012 the plaintiff received a letter enclosing notices signed by 210 current members containing a request to the directors to call a general meeting and a request to issue a members’ statement. One of those members was GetUp Limited (GetUp). GetUp has been joined as a defendant to the proceeding pursuant to r 2.13(3) of the Federal Court (Corporations) Rules 2000 and, pursuant to r 2.13(5), has been appointed the representative of each of the members who requested the extraordinary general meeting of the plaintiff pursuant to s 249D and who requested the issue of a members’ statement pursuant to s 249P of the Act. It opposes the extensions of time that have been sought. The purpose of the requested general meeting is to consider and, if thought fit, pass a special resolution to alter the plaintiff’s constitution by inserting a new clause which will effect a change to the plaintiff’s objects and purposes. In substance, the proposed change is that, with effect from 1 January 2016, the ownership or operation by the plaintiff of electronic gaming machines having certain characteristics, or the derivation by it of any income, revenue or benefit from electronic gaming machines having those characteristics, will be excluded from its objects and purposes. The statement which the requesting members seek to have issued propounds an ethical case and a business case for the resolution they propose. It is not necessary for me to expand upon the contents of the statement other than to note, as the proposed resolution itself makes clear, that the change sought to be made to the plaintiff’s constitution is one intended to change the way in which the plaintiff owns, operates and obtains income, revenue or other benefits from certain electronic gaming machines from 1 January 2016.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Fourthly, it submits that the Court should not accord any weight to the plaintiff’s submissions directed to the cost and inconvenience to its senior executives and employees being diverted from the plaintiff’s business by the need to participate in calling and holding the requested meeting. It submits that complying with requests lawfully made under ss 249D and 249P of the Act is not a diversion. It submits that every request made under these provisions will require the time and attention of management and others associated with the company. It submits that the circumstances relied upon by the plaintiff are in no way unusual so as to justify a departure from the statutory timeframes. It submits that, for these reasons, the plaintiff has not made out a case for any extension of the time limits prescribed in ss 249D and 249P of the Act. Consideration The power reposed in the Court by s 1322(4)(d) is a wide one, conditioned in the present case only by the requirement that no substantial injustice is likely to be caused to any person. Section 1322(4) provides: Subject to the following provisions of this section but without limiting the generality of any other provision of this Act, the Court may, on application by any interested person, make all or any of the following orders, either unconditionally or subject to such conditions as the Court imposes:…(d)an order extending the period for doing any act, matter or thing or instituting or taking any proceeding under this Act or in relation to a corporation (including an order extending a period where the period concerned ended before the application for the order was made) or abridging the period for doing such an act, matter or thing or instituting or taking such a proceeding;and may make such consequential or ancillary orders as the Court thinks fit. Section 1322(6) provides:The Court must not make an order under this section unless it is satisfied:…(c) in every case—that no substantial injustice has been or is likely to be caused to any person. In NRMA Insurance Group Ltd v Spragg (2001) 38 ACSR 174, Santow J at [27] said that:… the cases have determined that “injustice” within s 1322(6)(c) requires “the Court to consider real, and not merely insubstantial or theoretical prejudice” (Elderslie Finance Corp Ltd v ASC (1993) 11 ACSR 157; 11 ACLC 787 at 790) and that a degree of prejudice to a person or persons may be outweighed by the “overwhelming weight of justice”: Re Compaction Systems Pty Ltd [1976] 2 NSWLR 477; (1976) 2 ACLR 135 at 150. Moreover, as I said in Super John Pty Ltd v Futuris Rural Pty Ltd (1999) 32 ACSR 398 at 402 [14]:… detriment per se is not the same as substantial injustice; that must depend on whether the remedial order in giving rise to that detriment is unjust in the sense of causing such prejudice overall as to be unfair or inequitable, taking into account the interests of all of those directly affected by such dispensation. In National Roads and Motorists’ Association Ltd v Parkin (No 2) (2004) 49 ACSR 501, Campbell J at [34] said:… When there is no evidence of any particular consequence flowing to anyone from that failure of the resolution to be determined, I do not accept that the mere fact of delay amounts to substantial injustice.