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Allan Menham
14-12-2009, 04:42 PM
The AGM was held in Brisbane on Saturday 12 December, which I attended. It was very poorly attended with only five persons attending!!. I consider that this is a reflection on Chess in Queensland. If the CAQ decided to apply for any grants to a Government Department, and the Department knew that only five persons attended the AGM, it would not promote chess in general.

The total number of votes between the five persons attending was nine votes when proxies were taken into account.

There were 427 financial members of the CAQ as at 12 December 2009. There were 543 financial members as at December 2008.

There must be something wrong somewhere , or there is a complete lack of interest in chess in Queensland ,when only five persons attend an AGM, with three of them on the CAQ Council.

Can anyone give me any reasons for such a poor attendance?

Garrett
14-12-2009, 04:59 PM
I had no idea it was on.

I knew all about the Chess Victoria AGM and the NSWCA AGM from reading here, but was totally clueless about the CAQ AGM.

There's some doubt whether I would have attended anyway, but some others may have if they had known.

Garrett.

Garrett
14-12-2009, 05:01 PM
I can't see anything on the CAQ website.

I don't remember seeing any info in an email.

Garrett
14-12-2009, 05:04 PM
Was there a thread here ?

Desmond
14-12-2009, 06:05 PM
I had no idea it was on.Ditto. Having it on a seperate day to the tournament probably didn't help.

Bill Gletsos
14-12-2009, 06:14 PM
According to the CAQ Constitution a Notice of a CAQ general meeting is:

20.9 The Secretary shall convene all general meetings of the Association by giving not less than twenty-eight days' notice of any such meeting to the members of Council and to the clubs and leagues affiliated with the Association. Such notice shall also be given to the delegate appointed to represent associate members in terms of section 13.2.

20.10 Notices shall be given in writing.The CAQ Constitution quorum requirements are:
20.4 At any general meeting, the number of delegates required to be present to constitute a quorum shall be one-third of the appointed delegates of the Affiliated Clubs of the Association.

Desmond
14-12-2009, 06:29 PM
The agenda is online here (http://www.caq.org.au/htm/CAQ_AGM_Agenda_121209.doc). Looks like several of the agenda items might be better suited to council meetings than general meeting IMO.

It seems doubtful whether 5 people could constitute a quorum but it's hard to know for sure without the clubs' membership figures.

Patrick Byrom
14-12-2009, 06:46 PM
As CAQ Secretary, I can help with some of these questions.

Notices for the AGM were emailed to all clubs. The Council has no control over what the club does after it receives the notice. Nor do we control what clubs want to discuss at the AGM.

There are 24 votes potential AGM votes, so 9 votes satisfies our quorum. Only having five people with votes may sound small, but in 2005 all the votes were held by myself and Mark Stokes :(

Our membership is actually fairly average, if you look at the last 10 years.

CameronD
14-12-2009, 06:47 PM
Clubs are the members involved at the CAQ, not individuals. Could you change the 5/427 to how many clubs has voting rights.

It would be a waste of my time to attend, then theres regional clubs located a cast distence away.

Maybe internet connection could be arranged for regional clubs to attend with a volunteer raising his hand when the club wishes to contribute or vote.




The AGM was held in Brisbane on Saturday 12 December, which I attended. It was very poorly attended with only five persons attending!!. I consider that this is a reflection on Chess in Queensland. If the CAQ decided to apply for any grants to a Government Department, and the Department knew that only five persons attended the AGM, it would not promote chess in general.

The total number of votes between the five persons attending was nine votes when proxies were taken into account.

There were 427 financial members of the CAQ as at 12 December 2009. There were 543 financial members as at December 2008.

There must be something wrong somewhere , or there is a complete lack of interest in chess in Queensland ,when only five persons attend an AGM, with three of them on the CAQ Council.

Can anyone give me any reasons for such a poor attendance?

Basil
14-12-2009, 06:48 PM
Welcome to the board, Pat! :D

CameronD
14-12-2009, 07:02 PM
The agenda is online here (http://www.caq.org.au/htm/CAQ_AGM_Agenda_121209.doc). Looks like several of the agenda items might be better suited to council meetings than general meeting IMO.

It seems doubtful whether 5 people could constitute a quorum but it's hard to know for sure without the clubs' membership figures.

Which motions were passed (if any)

Desmond
14-12-2009, 07:09 PM
Clubs are the members involved at the CAQ, not individuals. Could you change the 5/427 to how many clubs has voting rights.It is not that simple. Clubs get different numbers of votes depending on how many members they have.

Patrick Byrom
14-12-2009, 07:15 PM
Hi Gunner! I'm glad I finally made it.

Five of our 11 affiliated clubs were represented at the AGM. And 2 of those were regional clubs (most of whom are within reasonable travelling distance of Brisbane).

The AGM minutes, along with the SGM and Council Meeting minutes, will be available on the CAQ website after they've been approved by Council - probably in a few days.

Capablanca-Fan
14-12-2009, 07:20 PM
Hi Gunner! I'm glad I finally made it.

Five of our 11 affiliated clubs were represented at the AGM. And 2 of those were regional clubs (most of whom are within reasonable travelling distance of Brisbane).

The AGM minutes, along with the SGM and Council Meeting minutes, will be available on the CAQ website after they've been approved by Council - probably in a few days.
Congrats on tying for 1st in the QLD Lightning :clap:

Spiny Norman
14-12-2009, 07:34 PM
What you guys need is a fair dinkum presidential leadership stoush to liven things up! ;) The VIC AGM had around (rough estimate) 30+ people in attendance, which I wholly attribute to (a) our leadership stoush; and (b) the fact that clubs must have enough delegates in attendance to match the number of votes they wield (e.g. if 5 votes, 5 bodies must turn up ... no proxy votes!).

Bill Gletsos
14-12-2009, 07:44 PM
There are 24 votes potential AGM votes, so 9 votes satisfies our quorum. Only having five people with votes may sound small, but in 2005 all the votes were held by myself and Mark Stokes :(The important word in 20.4 of the CAQ Constitution regarding quorum requirements is delegates not votes.

Since you only have 5 delegates present I would suggest you check with the QLD Dept. of Fair Trading as that number of attendees does not appear to actually meet the quorum requirements.

Desmond
14-12-2009, 07:53 PM
What you guys need is a fair dinkum presidential leadership stoush to liven things up! ;) The VIC AGM had around (rough estimate) 30+ people in attendance, which I wholly attribute to (a) our leadership stoush; and (b) the fact that clubs must have enough delegates in attendance to match the number of votes they wield (e.g. if 5 votes, 5 bodies must turn up ... no proxy votes!).
Yeah we had one of those a coupla years ago. Funny thing is the winner left council shortly after in disgrace and the loser got in a while later. Go figure.

Patrick Byrom
14-12-2009, 08:01 PM
Originally posted by Jono
Congrats on tying for 1st in the QLD Lightning

Thanks, Jono. But I wouldn't have had a chance if you or Moulthun had stayed :)

This is actually relevant to the AGM, as the Lightning Championship used to be before the AGM, but was held after the Qld Teams this year. This change meant more players for the Lightning (including myself), but probably fewer for the AGM.


Originally posted by The Snail King
What you guys need is a fair dinkum presidential leadership stoush to liven things up! The VIC AGM had around (rough estimate) 30+ people in attendance, which I wholly attribute to (a) our leadership stoush; and (b) the fact that clubs must have enough delegates in attendance to match the number of votes they wield (e.g. if 5 votes, 5 bodies must turn up ... no proxy votes!).

Absolutely correct. In 2006, which is the only recent year in which I can remember a contested election for President, we had 18 attendees with 24 votes between them.

CameronD
14-12-2009, 08:38 PM
The important word in 20.4 of the CAQ Constitution regarding quorum requirements is delegates not votes.

Since you only have 5 delegates present I would suggest you check with the QLD Dept. of Fair Trading as that number of attendees does not appear to actually meet the quorum requirements.

An Affiliated Club which has more than twenty members affiliated with the Association, not including cadet members or limited junior members, is entitled to appoint an additional delegate or proxy for each additional twenty members or part thereof. A delegate or proxy already appointed by the club may also be appointed as such additional delegate or proxy.

Fairly confusing. But i think this means that clubs with over 20 members can have 1 person counting as 2 delegates

Bill Gletsos
14-12-2009, 09:00 PM
An Affiliated Club which has more than twenty members affiliated with the Association, not including cadet members or limited junior members, is entitled to appoint an additional delegate or proxy for each additional twenty members or part thereof. A delegate or proxy already appointed by the club may also be appointed as such additional delegate or proxy.

Fairly confusing. But i think this means that clubs with over 20 members can have 1 person counting as 2 delegatesI do not believe you will find it works that way.

A person may be holding multiple votes but they are the one delegate.

Garvinator
14-12-2009, 11:03 PM
CAQ Council is currently discussing these matters in relation to quorum at the SGM/AGM.

Regards,

Garvin Gray
CAQ President

Bill Powell
15-12-2009, 08:06 PM
Yeah we had one of those a coupla years ago. Funny thing is the winner left council shortly after in disgrace and the loser got in a while later. Go figure.

Rubbish, as winner I resigned half way into my term because I was sick of the hostile committee that was not loyal to the member’s wishes.
Also while I was there the CAQ Tournaments were up, after I left the numbers were down. While I was President in the early 1990’s Qld had more Grand Prix Tournaments than another State. 1995 Under Howard and Murray they fell to around 4th. Not one of you guys that run me down on this chess chat site have joined a small club and turned it into the largest club in Qld. I did this at Ipswich in from 1975 to 1981. Then again I did this at Suncoast Club from 1988 to 1995. I have been CAQ President 3 times and each time the numbers rose and more tournaments were conducted across the state. Get your facts correct Boris.

Basil
15-12-2009, 09:15 PM
Rubbish, as winner I resigned half way into my term because I was sick of the hostile committee that was not loyal to the member’s wishes.
:lol: My God - that's a classic post.

Not one of you guys that run me down on this chess chat site have joined a small club and turned it into the largest club in Qld.
Well there's the Brisbane club, although that has been a group effort.


Then again I did this at Suncoast Club from 1988 to 1995.
You did very well. You also presided over the same club while it declined.


Get your facts correct Boris.
Bill, you are all but universally loathed by anyone of standing in the chess scene. You have demonstrated the ability to be pig-headed and deceitful. Your reputation is deservedly in the gutter. Get a reality check, dude.

Desmond
15-12-2009, 09:24 PM
Rubbish, as winner I resigned half way into my term because I was sick of the hostile committee that was not loyal to the member’s wishes.
Also while I was there the CAQ Tournaments were up, after I left the numbers were down. While I was President in the early 1990’s Qld had more Grand Prix Tournaments than another State. 1995 Under Howard and Murray they fell to around 4th. Not one of you guys that run me down on this chess chat site have joined a small club and turned it into the largest club in Qld. I did this at Ipswich in from 1975 to 1981. Then again I did this at Suncoast Club from 1988 to 1995. I have been CAQ President 3 times and each time the numbers rose and more tournaments were conducted across the state. Get your facts correct Boris.
Yet you left council in disgrace, after being caught red-handed doing a hatchett job on Ian Murray.

Patrick Byrom
17-12-2009, 07:27 PM
Originally Posted by Garvin

CAQ Council is currently discussing these matters in relation to quorum at the SGM/AGM.

Regards,
Garvin Gray
CAQ President

The majority opinion on Council is that proxy votes are included in our delegate count. So we had nine delegates present at our general meetings, which definitely gives us a quorum.

Our Treasurer, Jim Rogers, is a retired solicitor, and he agrees with this interpretation.

Bill Gletsos
17-12-2009, 11:33 PM
The majority opinion on Council is that proxy votes are included in our delegate count. So we had nine delegates present at our general meetings, which definitely gives us a quorum.You had 5 delegtes present, some of which held multiple votes via proxy.

Our Treasurer, Jim Rogers, is a retired solicitor, and he agrees with this interpretation.No doubt another solicitor could be found who would disagree with him.

As for the majority of the CAQ Council supporting it their opinion is irrelevant and in fact they could be considered as having a conflict of interest.

However my opinion, the majority of the CAQ Councils opinion or anyone else's opinion is immaterial.

The fact is the only opinion that matters is that of the QLD Department of Fair Trading.

I would suggest you seek their opinion.

Patrick Byrom
18-12-2009, 01:51 AM
Originally Posted by Bill Gletsos
As for the majority of the CAQ Council supporting it their opinion is irrelevant and in fact they could be considered as having a conflict of interest.
Actually, our Constitution gives the Council the power to interpret the meaning of the Constitution:

15.1 Except as otherwise provided in this Constitution and subject to resolutions carried at any general meeting, the Council:-
...
15.1.2 shall have the authority to interpret the meaning of the Constitution, Rules and By-Laws of the Association and any matter relating to the Association on which the Constitution, Rules and By-Laws are silent; and


Originally Posted by Bill Gletsos
The fact is the only opinion that matters is that of the QLD Department of Fair Trading.
I would suggest you seek their opinion.
An excellent suggestion. Unfortunately, the Office of Fair Trading states on its website that it does not provide legal advice:
http://www.fairtrading.qld.gov.au/legal-advice.htm

Spiny Norman
18-12-2009, 04:17 AM
Actually, our Constitution gives the Council the power to interpret the meaning of the Constitution:

15.1 Except as otherwise provided in this Constitution and subject to resolutions carried at any general meeting, the Council:-
...
15.1.2 shall have the authority to interpret the meaning of the Constitution, Rules and By-Laws of the Association and any matter relating to the Association on which the Constitution, Rules and By-Laws are silent; and
I doubt such interpretation would extend to matters which contradict the laws of the land.


Unfortunately, the Office of Fair Trading states on its website that it does not provide legal advice:
http://www.fairtrading.qld.gov.au/legal-advice.htm
Not surprising. Its up to judges to interpret, aided by lawyers. I expect this issue boils down to this: if nobody raises a formal objection from within the organisation itself by complaining to the Office of Fair Trading, they would quite rightly ignore the matter.

Moriarty
24-12-2009, 08:59 AM
I don't see what the quorum problem is. The constitution provides for one third of appointed delegates to constitute a quorum. From the posts above, it seems as though there are 11 clubs with 24 votes and 5 delegates attended the meeting. As 5/11 is greater than one third a quorum is achieved. Of course, there may be a problem if some clubs with multiple votes appointed more than one delegate to exercise those votes, but this seems unlikely to me. I'm sure Garvin or Patrick could confirm this off the top of their head. The question of whether the delegate's powers are exercised by proxy is not relevant as a person who attends by proxy is still present at the meeting.

I also think The Snail King is right - if nobody makes noises about any problems the Office of Fair Trading will not look at it or even know about it. In fact, even if it was clear that no quorum was achieved I doubt OFT would bother since the meeting is not invalidated by a procedural irregularity (such as a lack of quorum or notice) unless there is a substantial injustice. In most cases to show a substantial injustice the aggrieved person would need to show that had it not been for the lack of quorum a different result would have been achieved on a resolution. I have not looked at the resolutions voted on, but I doubt a substantial injustice arises.

Perhaps (if it has not done so in the past) the CAQ council could consider the issue raised by Cameron of attendance by electronic means for regional delegates and propose the appropriate amendment to the constitution. This is certainly allowed by the Associations Incorporation Act (section 56).

Denis_Jessop
24-12-2009, 03:23 PM
I don't see what the quorum problem is. The constitution provides for one third of appointed delegates to constitute a quorum. From the posts above, it seems as though there are 11 clubs with 24 votes and 5 delegates attended the meeting. As 5/11 is greater than one third a quorum is achieved. Of course, there may be a problem if some clubs with multiple votes appointed more than one delegate to exercise those votes, but this seems unlikely to me. I'm sure Garvin or Patrick could confirm this off the top of their head. The question of whether the delegate's powers are exercised by proxy is not relevant as a person who attends by proxy is still present at the meeting.

I also think The Snail King is right - if nobody makes noises about any problems the Office of Fair Trading will not look at it or even know about it. In fact, even if it was clear that no quorum was achieved I doubt OFT would bother since the meeting is not invalidated by a procedural irregularity (such as a lack of quorum or notice) unless there is a substantial injustice. In most cases to show a substantial injustice the aggrieved person would need to show that had it not been for the lack of quorum a different result would have been achieved on a resolution. I have not looked at the resolutions voted on, but I doubt a substantial injustice arises.

Perhaps (if it has not done so in the past) the CAQ council could consider the issue raised by Cameron of attendance by electronic means for regional delegates and propose the appropriate amendment to the constitution. This is certainly allowed by the Associations Incorporation Act (section 56).

I am not keen to get involved in this and would not but for the statement about the effect of lack of a quorum. The true position is that when there is no quorum any business transacted is invalid.

DJ

Moriarty
24-12-2009, 04:27 PM
I am not keen to get involved in this and would not but for the statement about the effect of lack of a quorum. The true position is that when there is no quorum any business transacted is invalid.

DJ

It certainly is if it cannot be remedied as a procedural irregularity, which in this case it can and would unless there is a substantial injustice.

Bill Gletsos
24-12-2009, 04:30 PM
In fact, even if it was clear that no quorum was achieved I doubt OFT would bother since the meeting is not invalidated by a procedural irregularity (such as a lack of quorum or notice) unless there is a substantial injustice. In most cases to show a substantial injustice the aggrieved person would need to show that had it not been for the lack of quorum a different result would have been achieved on a resolution. I have not looked at the resolutions voted on, but I doubt a substantial injustice arises.If a meeting it is inquorate then no motion passed is valid whether someone complains or not.

Moriarty
24-12-2009, 04:39 PM
If a meeting it is inquorate then no motion passed is valid whether someone complains or not.

Correct, unless it can be remedied in the manner I outlined above. Happy to go into mumbo jumbo details if anyone is nerdy enough (as I am) to be interested. However, I don't want to be seen to be hijacking the first thread I have posted on!

My point was only that OFT, even if it knew and cared, would not worry about it when there are legal mechanisms in place to remedy problems like this that don't really matter. That is on the assumption that there is no substantial injustice.

Denis_Jessop
24-12-2009, 07:42 PM
It certainly is if it cannot be remedied as a procedural irregularity, which in this case it can and would unless there is a substantial injustice.

It cannot be remedied as a procedural irregularity whatever you mean by that. Lack of a quorum is not a mere procedural irregularity - it goes to the substance, that is, validity, of the meeting.

"A resolution, passed at a subsequent meeting at which there is a quorum, which is merely a formal carrying out of a decision finally resolved upon at an earlier meeting at which there was no quorum, does not validate the earlier decision..." Joske, "The Law and Procedure at Meetings", p26.

DJ

Moriarty
24-12-2009, 08:27 PM
It cannot be remedied as a procedural irregularity whatever you mean by that. Lack of a quorum is not a mere procedural irregularity - it goes to the substance, that is, validity, of the meeting.

"A resolution, passed at a subsequent meeting at which there is a quorum, which is merely a formal carrying out of a decision finally resolved upon at an earlier meeting at which there was no quorum, does not validate the earlier decision..." Joske, "The Law and Procedure at Meetings", p26.

DJ

What I mean by procedural irregularity is the well-established legal principle. In this case it is embodied in section 133 of the Qld Associations Incorporation Act, but it appears in other legislation also. It has been in the corporations legislation for years.

Substance is not the same as validity. Of course a lack of quorum is a procedural irregularity – it is the classic irregularity along with a deficiency in notice. I’ll find some authority.

Your quote, while no doubt true, is entirely beside the point. The situation described in the extract bears no resemblance to what we are discussing.

I should say I have a bit of an advantage here as I have previously been involved with some nasty business that involved these points, hence my interest in the question.

Moriarty
24-12-2009, 08:45 PM
Of course a lack of quorum is a procedural irregularity – it is the classic irregularity along with a deficiency in notice. I’ll find some authority.

Just realised I don't need authority for the point, it is express in section 133(3) itself. For good measure, here's some recent authority:

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2008/1491.html?query=^amlaki

Denis_Jessop
24-12-2009, 09:49 PM
Just realised I don't need authority for the point, it is express in section 133(3) itself. For good measure, here's some recent authority:

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2008/1491.html?query=^amlaki

That is all very well but s133(3) requires a court order to achieve what you are talking about so, essentially, my original point stands. The matter is invalid until a court decides otherwise. Your link to the Federal Court Case doesn't work (it's not an active link but a copy and paste didn't turn up anything) so I don't know what it says.

I don't know what the position is in all Australian jurisdictions but the Associations Incorporation Act 1991 of the ACT has no provision equivalent to s133 of the Queensland Act.

DJ

Moriarty
24-12-2009, 10:55 PM
That is all very well but s133(3) requires a court order to achieve what you are talking about so, essentially, my original point stands. The matter is invalid until a court decides otherwise. Your link to the Federal Court Case doesn't work (it's not an active link but a copy and paste didn't turn up anything) so I don't know what it says.

I don't know what the position is in all Australian jurisdictions but the Associations Incorporation Act 1991 of the ACT has no provision equivalent to s133 of the Queensland Act.

DJ

I don’t agree. Section 133(1) provides (my underlining):

No proceeding under this Act shall be invalidated by any defect, irregularity or deficiency of notice or time unless the court is of opinion that substantial injustice has been or may be caused thereby which cannot be remedied by an order of the court.

Quite clearly the underlined section operates to avoid an irregularity amounting to an invalidity without the need for a finding of a court. It is only if you are attempting to establish a substantial injustice (i.e. invalidate the irregular proceeding) that you need a finding of the court. The fact that 133(2) empowers the court to make an order does not limit the operation of 133(1). This is the very purpose behind the provision - to avoid technical breaches where nobody has been harmed.

In any event, your original point was to imply that my position was not the ‘true’ position and then to set out what the ‘true’ position was (post 30). My point from the start was that the OFT would not pursue any perceived breach because if it did the mechanism in section 133 would defeat it (posts 29 and 33). That point, in my opinion, is well made.

I’m not great with links, I will PM the authority to you.

I think that had you known of the existence of section 133 you would no doubt have seen what I meant in post 29. Understandable that you did not know of it if as you say there is no equivalent provision in ACT.

Either way I have a ham to glaze (that’s not a euphemism), so Merry Christmas Denis and I hope you enjoy yourself tomorrow.

Bill Gletsos
25-12-2009, 12:16 PM
I don’t agree. Section 133(1) provides (my underlining):

No proceeding under this Act shall be invalidated by any defect, irregularity or deficiency of notice or time unless the court is of opinion that substantial injustice has been or may be caused thereby which cannot be remedied by an order of the court.That is all well and good but an an inquorate meeting isnt one of the situations covered by it.

Denis_Jessop
25-12-2009, 08:58 PM
I don’t agree. Section 133(1) provides (my underlining):

No proceeding under this Act shall be invalidated by any defect, irregularity or deficiency of notice or time unless the court is of opinion that substantial injustice has been or may be caused thereby which cannot be remedied by an order of the court.

Quite clearly the underlined section operates to avoid an irregularity amounting to an invalidity without the need for a finding of a court. It is only if you are attempting to establish a substantial injustice (i.e. invalidate the irregular proceeding) that you need a finding of the court. The fact that 133(2) empowers the court to make an order does not limit the operation of 133(1). This is the very purpose behind the provision - to avoid technical breaches where nobody has been harmed.

In any event, your original point was to imply that my position was not the ‘true’ position and then to set out what the ‘true’ position was (post 30). My point from the start was that the OFT would not pursue any perceived breach because if it did the mechanism in section 133 would defeat it (posts 29 and 33). That point, in my opinion, is well made.

I’m not great with links, I will PM the authority to you.

I think that had you known of the existence of section 133 you would no doubt have seen what I meant in post 29. Understandable that you did not know of it if as you say there is no equivalent provision in ACT.

Either way I have a ham to glaze (that’s not a euphemism), so Merry Christmas Denis and I hope you enjoy yourself tomorrow.

Thanks very much for the additional references to the Federal Court case which I have now tracked down.

The case was between two incorporated companies but the relevant section of the Corporations Law (s.1322(2) ) is in terms similar to that of s.133(3) of the Associations Incorporation (Qld). The decision, in my view, makes it clear that any purported decision of an inquorate meeting is invalid and a court application is necessary to validate it, provided that there is a law such as s.1322 or s.133 that applies. Moreover (the ouch factor), as the presiding judge (Finkelstein J) said it is usual in such applications for the applicant to pay the costs. So I maintain my original view that the basic position is that a purported decision made when there is no quorum is invalid.

Another thing to note about the FCA case is that it highlights the fact that applications like the one made there depend very much on the particular facts of the case - perhaps more so than usual. The facts in that case were really rather odd including that when the inquorate meeting was held the parties were already in dispute and represented by solicitors.

Regarding your reference to s.133(1) of the Qld Act, Bill has already observed, and I agree, that it does not refer to inquorate meetings. It is concerned only with matters of notice or time. That is, the words "defect, irregularity or deficiency" apply only to notice or time.

DJ

Moriarty
26-12-2009, 10:07 AM
That is all well and good but an an inquorate meeting isnt one of the situations covered by it.

Yes it is. I am away from home for a few days but will find some more authority when I am back next week.

Even without case authority, basic statutory interpretation works anyway. While 133(1) operates independently of the remaining provisions, 133(3) makes it clear that the absence of a quorum is such a defect or irregularity. When construing the meaning of 133(1) you must consider the statute as a whole, including 133(3).

Moriarty
26-12-2009, 10:30 AM
Thanks very much for the additional references to the Federal Court case which I have now tracked down.

The case was between two incorporated companies but the relevant section of the Corporations Law (s.1322(2) ) is in terms similar to that of s.133(3) of the Associations Incorporation (Qld). The decision, in my view, makes it clear that any purported decision of an inquorate meeting is invalid and a court application is necessary to validate it, provided that there is a law such as s.1322 or s.133 that applies. Moreover (the ouch factor), as the presiding judge (Finkelstein J) said it is usual in such applications for the applicant to pay the costs. So I maintain my original view that the basic position is that a purported decision made when there is no quorum is invalid.

Another thing to note about the FCA case is that it highlights the fact that applications like the one made there depend very much on the particular facts of the case - perhaps more so than usual. The facts in that case were really rather odd including that when the inquorate meeting was held the parties were already in dispute and represented by solicitors.

Regarding your reference to s.133(1) of the Qld Act, Bill has already observed, and I agree, that it does not refer to inquorate meetings. It is concerned only with matters of notice or time. That is, the words "defect, irregularity or deficiency" apply only to notice or time.

DJ

Regarding 133(1), the 'notice or time' attaches only to 'deficiency' not 'defect or irregularity'. I have responded to Bill's point above.

Even assuming you are right and 133(1) doesn't apply and a court order is required (which for the reasons I have set out earlier is not the case), my point clearly stands. As I said earlier:

My point from the start was that the OFT would not pursue any perceived breach because if it did the mechanism in section 133 would defeat it (posts 29 and 33).

Denis_Jessop
26-12-2009, 10:50 PM
Regarding 133(1), the 'notice or time' attaches only to 'deficiency' not 'defect or irregularity'. I have responded to Bill's point above.

Even assuming you are right and 133(1) doesn't apply and a court order is required (which for the reasons I have set out earlier is not the case), my point clearly stands. As I said earlier:

My point from the start was that the OFT would not pursue any perceived breach because if it did the mechanism in section 133 would defeat it (posts 29 and 33).

First, in my opinion your interpretation of s133(1) is flawed. It just does not make sense for the words "defect' and "irregularity" to be, in effect, undefined. They must be attached to notice and time. That is the ordinary meaning of the sentence also. Certainly, had I been called upon to advise on the matter, I have no doubt that that is the opinion I would have given.

Secondly, I had deliberately not addressed this point but now that you have raised it again, I have no choice. The problem with your proposition is that it would involve the OFT in pre-empting the views of the court. I doubt whether there are many precedents on the question and, moreover, as I have pointed out, each case depends on its particular facts. The view that the matter would not be worth pursuing does not appear to be supported by authority. The facts of the case you cited are in no way analogous with the alleged CAQ situation. The OFT, or any other body in a similar situation, could not afford to take a cavalier approach lest they, themselves, be sued for negligence or failing properly to perform their functions.

DJ

Denis_Jessop
26-12-2009, 10:59 PM
Yes it is. I am away from home for a few days but will find some more authority when I am back next week.

Even without case authority, basic statutory interpretation works anyway. While 133(1) operates independently of the remaining provisions, 133(3) makes it clear that the absence of a quorum is such a defect or irregularity. When construing the meaning of 133(1) you must consider the statute as a whole, including 133(3).

I'm afraid that my experience of statutory interpretation, which is considerable, would not lead me to that conclusion at all. For one thing, the forms of s133(1) and of s.133(3) are quite different. If lack of a quorum were caught by s.133(1), s.133(3) would be unnecessary. The presence of the latter reinforces the view that lack of a quorum is not caught by s,133(1). Paradoxically, perhaps, that conclusion comes from looking at the section as a whole.

DJ

Bill Gletsos
27-12-2009, 12:37 AM
First, in my opinion your interpretation of s133(1) is flawed.I agree.

It just does not make sense for the words "defect' and "irregularity" to be, in effect, undefined. They must be attached to notice and time. That is the ordinary meaning of the sentence also.I agree.

Garvinator
28-12-2009, 10:16 PM
After much investigation and discussion inside council, the picture is thus.

We determined that out of all the affiliated clubs, there were 15 delegates appointed by the clubs. At the SGM and AGM there were 5 delegates in attendance.

So, with 15 delegates appointed and 5 delegates in attendance, the quorum of 1/3 has been met.

Moriarty
30-12-2009, 10:28 PM
First, in my opinion your interpretation of s133(1) is flawed. It just does not make sense for the words "defect' and "irregularity" to be, in effect, undefined. They must be attached to notice and time. That is the ordinary meaning of the sentence also. Certainly, had I been called upon to advise on the matter, I have no doubt that that is the opinion I would have given.

I mentioned earlier that I would add some authorities, they are mentioned below and they squarely address your point above. I think that they show your opinion is not correct.

There are countless authorities on the point in relation to section 1322 of the Corps Law and the Corps Act. The potential problem with analogies to section 133 is that 1322 (unlike 133) is worded slightly differently, such that 1322(2) (the equivalent to 133(1)) expressly includes a lack of quorum, so the authorities on those provisions that I am familiar with operate on the assumption (by virtue of 1322(1)) that a lack of quorum falls within the provision.

Nevertheless, section 366 of the old Companies Act 1961 is in precisely the same terms as section 133. This is where your above analysis fails. The authorities on section 366 consistently hold that the wording "defect, irregularity or deficiency in notice or time" applies in the manner that I have argued – i.e it applies to "defects and irregularities and deficiencies of notice/time". See for example Re Clearwater Pty Ltd (1981) 6 ACLR 201 at 208 (my underlining):

“Defect” means a lack or absence of something essential to completeness; per Bruce CJ, Tate v Latham (1897) 66 LJQB 349 at 351 “irregularity” seems to suggest an error or mistake not deliberately made, but “deficiency of notice or time” does not seem to be limited to a deficiency which is accidental as opposed to a deficiency knowingly created. On the other hand, s 366(3) envisages an omission defect error or irregularity resulting in any breach of the Act or whereby there has been “default” in the observance of the memorandum or articles. This might suggest that the section is not intended to be limited to accidental or inadvertent or unintended defects irregularities deficiencies omissions or errors.

Clearly, the underlined part of this extract is at odds with your interpretation and supports mine – the three descriptions are defined separately and 'of notice or time' is limited only to deficiencies.

This is also clearly noted in Re Testro Bros Consolidated Ltd [1965] VR 18 at 24:

But I think that the words "defect" and "irregularity" are unrelated to the words "of notice or time"

There are other such cases but I think these are the clearest. Incidentally, there are plenty of these that apply the section to validate an inquorate meeting where there is no substantial injustice.

Moriarty
30-12-2009, 10:32 PM
Secondly, I had deliberately not addressed this point but now that you have raised it again, I have no choice. The problem with your proposition is that it would involve the OFT in pre-empting the views of the court. I doubt whether there are many precedents on the question and, moreover, as I have pointed out, each case depends on its particular facts. The view that the matter would not be worth pursuing does not appear to be supported by authority. The facts of the case you cited are in no way analogous with the alleged CAQ situation. The OFT, or any other body in a similar situation, could not afford to take a cavalier approach lest they, themselves, be sued for negligence or failing properly to perform their functions.

DJ

I cannot see how this can be correct. Any regulatory body such as OFT, ASIC, ACCC or even the DPP that has the power to penalise (or institute proceedings to penalise) a person or organisation will without fail make its own assessment of the prospects of such an action succeeding. This process would include 'pre-empting' the court's likely finding on any defence to an action, such as a defence based on section 133. If such a process is not undertaken, then its enforcement proceedings would regularly fail.

While I know of no previous instance of OFT being sued for negligence, it seems to me far more likely that if OFT penalised an incorporated association without considering the prospects of a section 133 defence it would be up for the costs of any remedial action (or defence of the OFT action, if any) and potentially a civil action for any loss suffered.

Moriarty
30-12-2009, 10:34 PM
I'm afraid that my experience of statutory interpretation, which is considerable, would not lead me to that conclusion at all. For one thing, the forms of s133(1) and of s.133(3) are quite different. If lack of a quorum were caught by s.133(1), s.133(3) would be unnecessary. The presence of the latter reinforces the view that lack of a quorum is not caught by s,133(1). Paradoxically, perhaps, that conclusion comes from looking at the section as a whole.

DJ

I don't see what the relevance of your experience is to this argument. Prior to me specifically raising the point, you were not aware of the existence of section 133 or even what a procedural irregularity was, despite the long line of authority.

My post earlier tonight has clearly demonstrated that the above view is not the view adopted by courts interpreting the section.

Even leaving that aside, when interpreting section 133(1) you cannot ignore the remainder of 133 or, indeed, the remainder of the statute. Subsections within a section are considered to be no more than emphatic punctuation and it is the context of the section that prevails. As you are experienced in statutory interpretation you will know that these are basic principles, so I cannot see why the basis for you disagreeing with my interpretation. In this case, when you consider the context (i.e what the relevant defects and irregularities are), it is clear that the section as a whole is intended to apply to deficiencies in quorum.

Moriarty
30-12-2009, 10:36 PM
After much investigation and discussion inside council, the picture is thus.

We determined that out of all the affiliated clubs, there were 15 delegates appointed by the clubs. At the SGM and AGM there were 5 delegates in attendance.

So, with 15 delegates appointed and 5 delegates in attendance, the quorum of 1/3 has been met.

If you don't mind saying, is this because some clubs appointed more than 1 delegate to exercise their votes? I find it interesting that a club would do this.

Denis_Jessop
31-12-2009, 03:45 PM
I mentioned earlier that I would add some authorities, they are mentioned below and they squarely address your point above. I think that they show your opinion is not correct.

There are countless authorities on the point in relation to section 1322 of the Corps Law and the Corps Act. The potential problem with analogies to section 133 is that 1322 (unlike 133) is worded slightly differently, such that 1322(2) (the equivalent to 133(1)) expressly includes a lack of quorum, so the authorities on those provisions that I am familiar with operate on the assumption (by virtue of 1322(1)) that a lack of quorum falls within the provision.

Nevertheless, section 366 of the old Companies Act 1961 is in precisely the same terms as section 133. This is where your above analysis fails. The authorities on section 366 consistently hold that the wording "defect, irregularity or deficiency in notice or time" applies in the manner that I have argued – i.e it applies to "defects and irregularities and deficiencies of notice/time". See for example Re Clearwater Pty Ltd (1981) 6 ACLR 201 at 208 (my underlining):

“Defect” means a lack or absence of something essential to completeness; per Bruce CJ, Tate v Latham (1897) 66 LJQB 349 at 351 “irregularity” seems to suggest an error or mistake not deliberately made, but “deficiency of notice or time” does not seem to be limited to a deficiency which is accidental as opposed to a deficiency knowingly created. On the other hand, s 366(3) envisages an omission defect error or irregularity resulting in any breach of the Act or whereby there has been “default” in the observance of the memorandum or articles. This might suggest that the section is not intended to be limited to accidental or inadvertent or unintended defects irregularities deficiencies omissions or errors.

Clearly, the underlined part of this extract is at odds with your interpretation and supports mine – the three descriptions are defined separately and 'of notice or time' is limited only to deficiencies.

This is also clearly noted in Re Testro Bros Consolidated Ltd [1965] VR 18 at 24:

But I think that the words "defect" and "irregularity" are unrelated to the words "of notice or time"

There are other such cases but I think these are the clearest. Incidentally, there are plenty of these that apply the section to validate an inquorate meeting where there is no substantial injustice.

I'm not sure that much will be achieved by prolonged discussion of this topic as we could continue for a long time quoting odd bits of authority that are not conclusive or producing one or another interpretation of the various laws. It's a truism to observe that views expressed on a matter are not necessarily right or wrong just as single justice decisions are often, though not always, of less weight than those of a bench of 3, 5 etc.

Some of your comments in this and the later posts are a bit puzzling. The first authority you quoted to me was a decision inder s1322 of the Commonwealth legislation as was the Clearwater case but now you seem to be saying that that section is slightly different from s133 of the Associations Incorporations law of Queensland and so cases under it are somehow distinguishable. It's true that s1322 expressly by definition covers absence of a quorum while s133 does not but otherwise s133(1) and s1322(2) are essentially the same, the difference being that the Commonwealth drafter's style is to use simple, plain English whereas that of the Queensland drafter apparently is not (perhaps because the Quensland version is not as modern).

As I have pointed out earlier, the problem I have with your view that s133(1) includes lack of a quorum is that you break your own rule by not giving proper weight to s133(3) which makes abundantly clear that lack of a quorum is not caught by s133(1). That is you have to look at the whole section not just a bit of it. I note your reference to the "old Companies Act 1961" which I take to be e reference to the Queensland version of the old so-called uniform Companies legislation.

I mention that the view I expressed earlier about the risk of taking these cases as precedents is confirmed by the following passage from an interesting article by Professor Boros, Company Law Professor at Monash University:


The very existence of s*1322 indicates a legislative intention to relax the rigidity of the procedural requirements for meetings, as long as there is no substantial injustice. Most of the cases decided under this section are responses to somewhat unusual facts, and therefore are not necessarily illustrative of any wider principle.
However, one case which stretches the boundaries of this section, and therefore warrants some discussion, is Re Pembury Pty Ltd.[106] The facts of this case were less extreme than some that have been litigated under this section,[107] but still unusual. There had been two earlier unsuccessful attempts to convene a meeting. In the first case, the notice was not properly served and in the other the notice was inadequate.[108] Byrne*J placed some emphasis on the fact that the shareholder, who did not attend the third (also irregularly convened) meeting, had had some forewarning of the business to be transacted at the meeting by virtue of these earlier irregular communications. His Honour was therefore prepared to declare resolutions passed at the purported meeting valid, notwithstanding the deficiency of notice and the absence of a quorum at the third ‘meeting’.[109] This was on the basis that the outcome of the voting would have been no different if there had been no irregularity. Byrne*J attempted to limit the potential ambit of his decision, saying: ‘This decision should not encourage the notion that shareholders with voting control may always give short notice of general meetings or pass effective resolutions in the absence of a quorum.’[110] Nevertheless, the fact that the irregularities in calling and holding the meeting in this case were deliberate[111] means that Byrne*J’s decision to validate the ‘resolutions’ runs counter to the emphasis in other contexts on the meeting as a forum for accountability, debate and persuasion, even if the outcome may seem to be a foregone conclusion.
Prof Elizabeth Boros: Virtual Shareholder Meetings: Who decides how Companies make decision? [2004]MULR9

see http://www.austlii.edu.au/au/journals/MULR/2004/9.html

I haven't included the footnotes but 107 is a reference to the Clearwater case.

DJ

Moriarty
31-12-2009, 05:38 PM
I'm not sure that much will be achieved by prolonged discussion of this topic as we could continue for a long time quoting odd bits of authority that are not conclusive or producing one or another interpretation of the various laws. It's a truism to observe that views expressed on a matter are not necessarily right or wrong just as single justice decisions are often, though not always, of less weight than those of a bench of 3, 5 etc.

Some of your comments in this and the later posts are a bit puzzling. The first authority you quoted to me was a decision inder s1322 of the Commonwealth legislation as was the Clearwater case but now you seem to be saying that that section is slightly different from s133 of the Associations Incorporations law of Queensland and so cases under it are somehow distinguishable. It's true that s1322 expressly by definition covers absence of a quorum while s133 does not but otherwise s133(1) and s1322(2) are essentially the same, the difference being that the Commonwealth drafter's style is to use simple, plain English whereas that of the Queensland drafter apparently is not (perhaps because the Quensland version is not as modern).

As I have pointed out earlier, the problem I have with your view that s133(1) includes lack of a quorum is that you break your own rule by not giving proper weight to s133(3) which makes abundantly clear that lack of a quorum is not caught by s133(1). That is you have to look at the whole section not just a bit of it. I note your reference to the "old Companies Act 1961" which I take to be e reference to the Queensland version of the old so-called uniform Companies legislation.

I mention that the view I expressed earlier about the risk of taking these cases as precedents is confirmed by the following passage from an interesting article by Professor Boros, Company Law Professor at Monash University:



see http://www.austlii.edu.au/au/journals/MULR/2004/9.html

I haven't included the footnotes but 107 is a reference to the Clearwater case.

DJ

I don't agree with your comments, but I am happy to drop it here if you are - I don't think I can put it any higher than I already have anyway. It is academic in light of Garvin's most recent post anyway.

For the sake of completeness, I should note that the reference to the Companies Act was intended to be general. My understanding (without having checked each jurisdiction) is that the relevant section was in the relevant section for each jurisdiction. I think I saw authorities from Vic, WA and NSW.

Denis_Jessop
31-12-2009, 08:14 PM
I don't agree with your comments, but I am happy to drop it here if you are - I don't think I can put it any higher than I already have anyway. It is academic in light of Garvin's most recent post anyway.

For the sake of completeness, I should note that the reference to the Companies Act was intended to be general. My understanding (without having checked each jurisdiction) is that the relevant section was in the relevant section for each jurisdiction. I think I saw authorities from Vic, WA and NSW.

I agree that the matter is now academic as far as the CAQ AGM is concerned and that, as I said above, this could otherwise go on for a long time and there is not much point in doing so. Regarding the Companies Act, the Standing Committee of Comonwealth and State Attorneys-General sponsored what was for a while uniform companies legislation but before long various jurisdictions started to depart from uniformity (I was in the area of the Commonwealth Attorney-General's Department responsible for administration of the ACT Companies Ordinance at the time). I am not sure if the provision was part of the agreed uniform code - 40 years ago is quite a while :) .

DJ

Basil
31-12-2009, 08:31 PM
Gentlemen, you are a credit to yourselves. If I were ever going to fly naked in male company and discuss the adventures of Macho Grande, I couldn't think of two finer specimens to accompany. I'm sure I speak for every red-blooded male on board.

Carry on!

Garvinator
31-12-2009, 08:33 PM
Carry on!
Pleaseeeeeeeeeee do not!!!!!!!!!!!!!!!!!!!!

Moriarty
31-12-2009, 09:07 PM
Pleaseeeeeeeeeee do not!!!!!!!!!!!!!!!!!!!!

I must take the opportunity to point out my disclaimers in post 33! Some would say we have substantially contributed to the board's knowledge bank in respect of meeting practice and procedure, not to mention providing some cheap entertainment for the bush lawyers amongst us. You should be thanking us :) .

Gunner - you clearly have not seen me naked.

Garvinator
31-12-2009, 09:12 PM
The question I am most asking is.... who is Moriarty?

Basil
31-12-2009, 09:13 PM
Gunner - you clearly have not seen me naked.

Welcome to the board. Do you play chess?

Moriarty
31-12-2009, 09:49 PM
Welcome to the board. Do you play chess?

Thanks.

Yes I do, but very quietly and not particularly well (I suppose it is all relative though).

Moriarty
31-12-2009, 09:52 PM
The question I am most asking is.... who is Moriarty?

But you have not answered my questions!!

Moriarty is a reference to Count Jim Moriarty on the Goon Show, not the original Sherlock Holmes Prof Moriarty.

Allan Menham
13-01-2010, 08:22 AM
The minutes of the December 09 AGM of the CAQ are now on the CAQ website. I urge all CAQ Members and any other interested persons to read the minutes to see what transpired at the AGM. If there is anything that you do not agree with, then contact the CAQ Secretary and let him know. He can then get it tabled at the next CAQ Council Meeting for discussion. If you cannot get any satisfaction from the Council Meeting, then there are no doubt other avenues that can be used.

Garrett
13-01-2010, 08:58 AM
can you tell me what I am supposed to be upset about Allan ?

Desmond
13-01-2010, 09:14 AM
Allan, why did you withdraw your motions?

Allan Menham
13-01-2010, 09:45 AM
can you tell me what I am supposed to be upset about Allan ?

I do not understand what you mean by upset? My post is just a general one. There is nothing about upset in it

Allan Menham
13-01-2010, 09:48 AM
Allan, why did you withdraw your motions?

I withdrew them after the motions were discussed at the AGM. There were a few things that I was not aware of and when they were discussed at the AGM, I was quite happy to withdraw them. There are a few notes I would like included in the AGM Minutes which I have forwarded down to the Council for consideration.