FEDERAL COURT OF AUSTRALIA

Gladstone Region Aboriginal & Islander Community Controlled Health Service Limited v National Aboriginal Community Controlled Health Organisation [2025] FCA 656

ORDERS

THE COURT ORDERS THAT:

(1)    As soon as reasonably practicable, the Respondent must use all reasonable endeavours to:

(a)    send the notice in the form of Attachment A to this Order to the email addresses as referred to in the email attaching the Notice of the Extraordinary General Meeting (EGM) at page 328 of Exhibit DVM-1 to the Affidavit of Donnella Vanora Mills affirmed 5 May 2025; and

(b)    permit members by their authorised delegates to attend, participate and vote at the EGM to be held on 7 May 2025 by virtual meeting technology.

(2)    By 4.00pm on 13 May 2025, the Respondent file and serve on the Applicants an affidavit setting out the steps that were taken under paragraph 1 above.

(3)    The Interlocutory Application dated 2 May 2025 be otherwise dismissed.

(4)    Costs reserved.

(5)    The matter be listed for a case management hearing at 9.30am on 14 May 2025.

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

ATTACHMENT A TO THIS ORDER

Notice to Members

We refer to the Extraordinary General Meeting of Members scheduled to take place at 10:00 am on 7 May 2025 (ACST).

Gladstone Region Aboriginal & Islander Community Controlled Health Service Limited and Centre for Regional and Rural Aboriginal and Torres Strait Islander Health sought orders from the Federal Court of Australia to stop the Extraordinary General Meeting of Members (EGM) scheduled to take place at 10:00 am on 7 May 2025 (ACST) from proceeding.

The Extraordinary General Meeting will be proceeding as planned.

However, the Court has ordered that NACCHO use all reasonable endeavours to enable members to attend, participate and vote virtually, if they can make arrangements prior to the commencement of the meeting. If those arrangements can be made, you will be provided with a link to enable you to attend the meeting virtually and participate and vote at the meeting. You can attend, participate and vote virtually or personally even if you did not register 48 hours prior to the meeting.

If virtual meeting technology cannot be arranged prior to the EGM, members will be notified that they cannot attend virtually.

Note to members who have appointed proxies

Upon being notified that you can attend, participate and vote virtually if your organisation has appointed a proxy, you can withdraw that proxy by sending an email to company.secretary@naccho.org.au and informing the person to whom you have given your proxy. This will allow you to attend, and participate at the meeting virtually, and vote after hearing from those who wish to be heard at the meeting.

Members should not withdraw proxies which have already been submitted prior to any notification sent to them confirming virtual meeting arrangements (if those arrangements can be made prior to the EGM).

REASONS FOR JUDGMENT

WHEATLEY J:

INTRODUCTION

1    The Applicants, Gladstone Region Aboriginal & Islander Community Controlled Health Service Limited and Centre for Regional and Rural Aboriginal and Torres Strait Islander Health, sought urgent interlocutory relief to restrain a meeting taking place of the members of Respondent, National Aboriginal Community Controlled Health Organisation (NACCHO). This was based on and in furtherance of the originating process which sought orders pursuant to s 232 and s 233 of the Corporations Act 2001 (Cth) (the Act).

2    Both Applicants are each a member of NACCHO. NACCHO is the national body representing 146 different member Aboriginal community controlled health organisations. It is a charitable organisation. The members of NACCHO are located throughout Australia. The two Applicant members before the Court were also supported by three other members of NACCHO.

3    The interlocutory relief sought was to restrain NACCHO, by its directors, officers, servants or agents, from putting to members for adoption, by special resolution, the New Constitution at the Extraordinary General Meeting (EGM) which was due to take place on 7 May 2025 at 10.00am in Adelaide. The EGM was due to take place the morning after the Court hearing which commenced around 2.30pm on 6 May 2025. The EGM had only one item of business being considered (which is set out in full below), that being whether the New Constitution as was circulated be adopted as the Constitution of NACCHO.

4    The Applicants offer the usual undertaking as to damages and have put forward evidence, which I accept, to support the submission that the undertaking as to damages is of value.

5    At the hearing, I was not persuaded to grant the interlocutory injunction as sought by the Applicants. The appropriate approach was for the Court not to interfere with the company’s processes and to leave such matters to the members to decide, in accordance with the principles discussed below.

6    However, I was prepared to make orders attempting to facilitate remote attendance and participation at the EGM. Those orders required that the Respondent use all reasonable endeavours to facilitate that remote attendance. Given the late time at which the hearing took place and was ultimately concluded, due in large part to the delay in bringing this matter before the Court by the Applicants, I did not make orders that the Respondent ensure that remote attendance was to be provided. Further, I advised that I would give reasons for this decision at a later time. These are my reasons for the orders given on 6 May 2025.

THE ORIGINATING AND INTERLOCUTORY APPLICATIONS

7    The Originating Application bought by the Applicants sought the following:

A.     DETAILS OF APPLICATION

This application is made under sections 232 and 233 of the Corporations Act 2001 (Cth) for an injunction on the grounds of oppressive conduct.

On the facts stated in the supporting affidavit of Matthew Cooke sworn on 30 April 2025, the plaintiff claims:

1.    An order restraining the Respondent, whether by its directors, officers, servants, or agents, from presenting to the members for adoption the same or substantially similar constitution that has previously been rejected by the members unless and until:

a.    Material changes have been made to the proposed constitution; and

b.    Proper consultation with the members has been undertaken, including workshops, information sessions, or structured consultations.

2.    Alternatively, an order requiring the Respondent to engage in a proper and meaningful consultation process with its members prior to any further resolution proposing amendments to its constitution.

3.     The Notice of Meeting dated 14 April 2025 is invalid.

4.     Such further or other orders as the Court considers appropriate.

5.     Costs.

8    The interlocutory application which was urgently heard, provided and sought the following:

This application is made under sections 232 and 233 of the Corporations Act 2001 (Cth).

On the facts stated in the supporting affidavit of Matthew Cooke, the applicant, (sic) Gladstone Region Aboriginal & Islander Community Controlled Health Service Limited (GRAICCHS) and the Centre for Regional and Rural Aboriginal and Torres Strait Islander Health (CRRATSIH) applies for the following relief:

1.    That until further order, the Respondent, whether by its directors, officers, servants, or agents, be restrained from putting to the members for adoption at the general meeting scheduled for 7 May 2025, or any adjournment thereof, the special resolution to adopt the proposed new constitution.

2.     That the costs of and incidental to this application be reserved.

3.    Such further or other orders as the Court deems appropriate.

9    At the hearing, the terms of the draft order, as was sought on the hearing of the interlocutory relief, was provided. The terms of that order was different to the terms of the interlocutory application and sought as follows (without detailing the timetabling orders):

Upon the applicants giving the usual undertaking as to damages, the Court orders that:

1.    Until further order, the respondent, whether by its directors, officers, servants, or agents, be restrained from putting to the members at the Extraordinary General Meeting scheduled to take place on 7 May 2025, or any other meeting of the members of the respondent a resolution to adopt a new constitution in place of its current constitution.

2.    Costs reserved.

10    During the course of argument, it was accepted by the Applicants that the words “or any other meeting of the members of the respondent a resolution” should be deleted from the terms of the draft order as sought. Furthermore, on these words being deleted, it was also accepted that even if the injunction were granted in relation to the EGM that was to take place on 7 May 2025, the Respondent could simply call another meeting.

11    In addition to these matters, at the hearing and again during the course of argument, the Applicants accepted that the originating application would also need amendment. The proposed terms of that amendment were not provided, nor was a description or parameters of that amendment outlined. These observations are made because they are relevant in considering the case advanced at this stage when applying the relevant principles as to whether or not to grant the injunction as sought and on the basis of the material as before the Court at the time.

CONSIDERATION

Relevant legal principles – interlocutory injunction

12    The Applicants relied on s 232 and s 233 of the Act for the grant of the interlocutory injunction sought. No additional provisions were advanced in the submissions for the Applicants. Neither the Applicants’ originating application nor the interlocutory application identified which subsection of s 232 was relied upon to seek relief under s 233 of the Act.

13    The relevant principles to be applied on an application for an interlocutory injunction were referred to in the Respondent's submissions (and were not cavilled with by the Applicant). These principles are well settled and were explained in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [65]-[71]. However, it is sufficient to only set out [65] and [71]:

Interlocutory injunctions

[65]    The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:

“The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.” By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:

“How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.”

…

[71]    However, a difference between this Court in Beecham and the House of Lords in American Cyanamid lies in the apparent statement by Lord Diplock that, provided the court is satisfied that the plaintiff’s claim is not frivolous or vexatious, then there will be a serious question to be tried and this will be sufficient. The critical statement by his Lordship is “[t]he court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried”. That was followed by a proposition which appears to reverse matters of onus:

“So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought.”

(Emphasis added.)

Those statements do not accord with the doctrine in this Court as established by Beecham and should not be followed. They obscure the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.

[footnotes omitted]

14    To this, also referred to by the Respondent and again not cavilled with by the Applicant, can be added the observations of the Full Court in Warner-Lambert Co LLC v Apotex Ltd (2014) 311 ALR 632; [2014] FCAFC 59 at [68]-[72], which state (without again restating [65] from O’Neill):

The relevant principles

[68]    There was no dispute between the parties as to the test that the primary judge was required to apply in deciding whether to grant or withhold the interlocutory relief sought by Warner-Lambert. There are two inquiries that must be undertaken when determining whether an applicant should be granted an interlocutory injunction. The first relates to the strength of the applicant's claim to final relief. The second relates to the balance of convenience or, as it is sometimes expressed, the balance of the risk of doing an injustice by either granting or withholding the interlocutory relief sought.

[69]    The principles to be applied in determining whether or not to grant interlocutory relief were considered by the High Court in Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57; 229 ALR 457; [2006] HCA 46 (O’Neill), including by Gummow and Hayne JJ at [65]-[72]. Gleeson CJ and Crennan J agreed at [19] with the explanation of the relevant principles in those paragraphs. In O’Neill Gummow and Hayne JJ stated at [65]:

…

[70]    Whether an applicant for an interlocutory injunction has made out a prima facie case and whether the balance of convenience favours the grant of such relief are related questions. It will often be necessary to give close attention to the strength of a party’s case when assessing the risk of doing an injustice to either party by the granting or withholding of interlocutory relief especially if the outcome of the interlocutory application is likely to have the practical effect of determining the substance of the matter in issue or if other remedies, including an award of damages, or an award of compensation pursuant to the usual undertaking, are likely to be inadequate.

[71]    It is also not in dispute that the decision of the primary judge to grant or withhold the interlocutory relief sought by Warner-Lambert required the primary judge to exercise a judicial discretion. As the High Court explained in House v R (1936) 55 CLR 499 at 504-5:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

15    Therefore, the assessment of the first consideration, being that the prima facie case must be made on the basis of the evidence as is before the Court, requires the Court to determine whether it is more probable than not that at the trial the Applicants would succeed should this evidence remain the same. That is, the assessment must consider whether the Applicants have demonstrated a sufficient likelihood of success to justify the preservation of the status quo, pending the trial. The consideration of the requisite strength of the probability of success, in terms of the Applicants’ claim to final relief, depends on the nature of the rights asserted and the practical consequences likely to flow from granting the injunction sought. The second consideration, related to the first, is whether the balance of convenience favours the grant of such relief. That is, the inconvenience or injury the Applicants, in the circumstances of this case, would be likely to suffer if the injunction was refused outweighs or is outweighed by the injury or inconvenience which the Respondent would suffer if the injunction was granted. Ultimately the decision to grant or withhold interlocutory relief requires an exercise of judicial discretion.

Relevant legal principles – s 232 and s 233 Corporations Act

16    Given the provisions of the Act relied upon by the Applicants and the context within which the assessment of the Applicants’ prima facie case must be considered, it is necessary to consider and set out s 232 and s 233(1) of the Act, in relation to the orders the Court may make and the final relief sought by the Applicants. Those provisions provide:

232    Grounds for Court order

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.

Note 1:    For affairs, see sections 53 and 53AAA.

Note 2:    The effect of paragraph (d) is extended in relation to a sub - fund of a CCIV: see section 1227F.

233    Orders the Court can make

(1)    The Court can make any order under this section that it considers appropriate in relation to the company, including an order:

(a)    that the company be wound up;

(b)    that the company's existing constitution be modified or repealed;

(c)    regulating the conduct of the company’s affairs in the future;

(d)    for the purchase of any shares by any member or person to whom a share in the company has been transmitted by will or by operation of law;

(e)    for the purchase of shares with an appropriate reduction of the company’s share capital;

(f)    for the company to institute, prosecute, defend or discontinue specified proceedings;

(g)    authorising a member, or a person to whom a share in the company has been transmitted by will or by operation of law, to institute, prosecute, defend or discontinue specified proceedings in the name and on behalf of the company;

(h)    appointing a receiver or a receiver and manager of any or all of the company's property;

(i)    restraining a person from engaging in specified conduct or from doing a specified act;

(j)    requiring a person to do a specified act.

Note:    If the company is a CCIV there are modifications for paragraphs (1)(a) and (h) (see section 1227G and Part 8B.6).

Order that the company be wound up

(2)    If an order that a company be wound up is made under this section, the provisions of this Act relating to the winding up of companies apply:

(a)    as if the order were made under section 461; and

(b)    with such changes as are necessary.

Order altering constitution

(3)    If an order made under this section repeals or modifies a company’s constitution, or requires the company to adopt a constitution, the company does not have the power under section 136 to change or repeal the constitution if that change or repeal would be inconsistent with the provisions of the order, unless:

(a)    the order states that the company does have the power to make such a change or repeal; or

(b)    the company first obtains the leave of the Court.

Note:    If the company is a CCIV the reference to section 136 is modified (see subsection 1227G(2)).

17    The power of the Court under s 233 is “particularly broad and versatile”: Re Downing Investments Pty Ltd (2022) 68 VR 226; [2022] VSC 641 at [36], citing Turnbull v NRMA Ltd (2004) 50 ACSR 44; [2004] NSWSC 577 at [42]. The power was described by Campbell J in Turnbull in the following way:

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….

18    The appropriate enquiry, on this application, is whether the conduct complained of establishes a prima facie case under s 232, for the granting of relief under s 233 of the Act. The Applicants’ submissions do not identify which subsection of s 232 is relied on.

19    It can be accepted that the Applicants (and those additional members who support the Applicants) are in the minority. However, “[t]he mere disadvantage of being in a minority does not in itself constitute oppression”: Shelton v National Roads and Motorists Association Ltd (2004) 51 ACSR 278; [2004] FCA 1393 at [24]. The conduct in question must be objectively viewed: Wayde v Rugby League Ltd (1985) 180 CLR 459; [1985] HCA 68 at 472-473. It involves “a departure from the standards of fair dealing, or where a decision has been made so as to impose a disadvantage, disability or burden on the plaintiff that, according to ordinary standards of reasonableness and fair dealing, is unfair”: Re Ledir Enterprises Pty Ltd (2013) 96 ACSR 1; [2013] NSWSC 133 at [178].

20    The principles to be applied for the purposes of s 232(e), in an assessment and determination of whether conduct is oppressive, unfairly prejudicial, or unfairly discriminatory, have been helpfully summarised by Croft J in LL Up Pty Ltd v Kegland Distribution Pty Ltd [2024] VSC 651 at [66], (also adopted by Charlesworth J in Vitnell v Vellenga, in the matters of Australian Carer Pty Ltd [2024] FCA 1492 at [15]) which I gratefully adopt as follows:

[66]    …

(a)    The essential criterion of oppressive conduct for the purpose of s 232(e) is that of commercial unfairness: Wayde v NSWRL Ltd (1985) 180 CLR 459, 468, 472-3; Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692, 704; and Hillam v Ample Source International Ltd (No 2) (2012) 202 FCR 336, [4].

(b)    Unfairness is assessed by reference to 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’ and can be established by wrongful exclusion from participation in a company’s management or by conduct in breach of a shareholders or services agreement even if the person undertaking that conduct thinks he or she is acting properly: Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304, [176].

(c)    Whether the treatment of one member was fair also needs to be assessed against the background of the fair treatment of the whole body of members. Fairness cannot be considered in a vacuum, and in relation to a family company can only be considered in the light of the history of the company and the family and the purpose for which the company was formed.

(d)    The question is whether there has been unfairness. The test is objective, and it is viewed from the perspective of the commercial bystander. As the test is objective, whether or not the conduct is oppressive will not depend upon the motives for what was done. It is the effect of the conduct that is material: Catalano v Managing Australia Destinations Pty Ltd [2014] FCAFC 55, [9].

(e)    The task is to be undertaken in the context of the particular relationship in issue (Mackay Sugar Limited v Wilmar Sugar Australia Limited [2016] FCAFC 133, [14]) and in the context of the facts and circumstances existing at the time of the oppression: Strategic Management Australia AFL Pty Ltd v Precision Sports & Entertainment Group Pty Ltd (2016) 114 ACSR 1, [147].

(f)    The oppression need not be of a member in its capacity as a member, and may include conduct that impacts upon a member in his capacity as a director: Smith Martis Cork & Rajan Pty Ltd v Benjamin Corp Pty Ltd (2004) 207 ALR 136, [105].

(g)    The doctrine is informed by equitable considerations: Walker v New South Wales Bar Association [2016] FCA 799, [91]. However, there is no independent or overriding requirement that it should be just and equitable to grant relief or that the petitioner should come to the court with clean hands: Joint v Stephens [2008] VSCA 210, [136]; Spence v Rigging Rentals WA Pty Ltd [2015] FCA 1158, [139].

(h)    It is unnecessary for an applicant to prove that the respondent knew or believed that the impugned conduct was unfair: Joint v Stephens [2008] VSCA 210, [138]. A defendant may act oppressively even though its motives are honest: Mackay Sugar Limited v Wilmar Sugar Australia Limited [2016] FCAFC 133, [12].

(i)    The conduct of a company’s affairs may be oppressive even though the conduct is otherwise lawful, and the person engaging in the conduct believes he or she is acting lawfully: Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304, [176]. An exercise of a discretionary power under a company’s constitution in a particular way may enliven s 232: Donaldson v Natural Springs Australia Ltd [2015] FCA 498, [251].

(j)    A single instance of oppression is sufficient to constitute a basis for relief: Spence v Rigging Rentals WA Pty Ltd [2015] FCA 1158, [137], citing Re Norvabron Pty Ltd (No 2) (1986) 11 ACLR 279, 289. Separate instances of conduct may, cumulatively, constitute oppression: Aqua-Max Pty Ltd v MT Associates Pty Ltd (2001) 3 VR 473, [61]; Endoline Pty Ltd v Drapac [2012] VSC 156, [272]; and Zomojo Pty Ltd v Hurd (No 2) (2012) 299 ALR 621, [509].

(k)    The oppression need not exist at the time of the application or trial: Strategic Management Australia AFL Pty Ltd v Precision Sports & Entertainment Group Pty Ltd (2016) 114 ACSR 1, [147].

21    The assessment and determination under s 232(d), of whether the conduct is contrary to the interests of members as a whole, involves a different analysis – it is one of broad compass: Turnball at [32]. Such conduct will not necessarily involve commercial unfairness. It is to be assessed and determined against accepted standards of corporate behaviour or how reasonable directors would act in attending to the affairs of the company: Australian Institute of Fitness Pty Ltd v Australian Institute of Fitness (Vic/Tas) Pty Ltd (No 3) (2015) 109 ACSR 369; [2015] NSWSC 1639 at [84]. The relevant enquiry focuses attention not on the interests of the persons who are in fact the members for the time being but on the interests of “an individual hypothetical member”: Goozee v Graphic World Group Holdings Pty Ltd (2002) 42 ACSR 534; [2002] NSWSC 640 at [42].

22    Section 233 of the Act does allow the Court, in appropriate circumstances, to make an order preventing a company from holding a meeting that is contrary to the interests of the members as a whole. In the particular circumstances involved in Turnbull, the Court was persuaded “to exercise this extraordinary power” and ordered that the special general meeting not be called or convened (at [52]).

23    However, as Campbell J explained in Turnbull (at [51]):

[51]    The power of the court to make an order under ss 232 and 233 of the Corporations Act 2001 (Cth), on the ground that something prescribed by the Corporations Act 2001 (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 s 233 on the ground that some proposed course of conduct is contrary to the interest of the members as a 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.

24    This passage and this approach has been cited with approval in Shelton at [25]-[27] and Atlas Holdings Pty Ltd (Trustee), in the matter of Allied Resource Partners Pty Ltd v Allied Resource Partners Pty Ltd (2017) 122 ACSR 345; [2017] FCA 923 at [54]; Laine Commodities Pte Ltd (Receiver Appointed) v C S Agriculture Pty Ltd [2021] FCA 635 at [40]; Reuther v Wallace [2021] SASC 107 at [45] and In the matter of Kentel Australasia Pty Limited [2024] NSWSC 1352 at [103].

25    I also adopt this approach, which is evidently appropriate, in the circumstances of this case.

26    It is also worth observing the following from those authorities:

(a)    in Turnball, orders were made that the special general meeting of NRMA’s members not be called or convened. This was on the basis that the Court was satisfied that it was contrary to the interests of the members as a whole for the meeting procedure to continue any further (Turnball at [54]). This was because although the calling of the meeting was proper, the settlement of the industrial dispute meant that the entire point of the meeting had gone away. The continuing of the meeting would have involved large expense in circumstances where it was no longer required and was an “empty charade” (Turnball at [52]). That is, this was a rare case where it was appropriate to exercise this extraordinary power.

(b)    Shelton concerned an application to strike out the pleadings. Tamberlin J observed at [17] that:

[17]    It will be rarely, if ever, that a court will or should intervene so seriously with the internal management of a large publicly held body corporate such as the NRMA in the general and imprecise manner broadly claimed in the ASOC by way of relief. A court will be reluctant to interfere with the election preferences of members of a widely held public corporate body where claims have been made and opinions asserted during and in the course of an electoral campaign for control of the corporation. …

The court recognised that it was not practicable to delineate the numerous ways in which oppression conduct may be established. Furthermore, the Court did grant the applicant leave to replead, the material not being so deficient that the General Steel standard for dismissal was satisfied: General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 at 128-129.

(c)    in Atlas Holdings, the plaintiff brought an application for urgent relief, being a declaration regarding a special resolution which was passed. However, the plaintiff alleged that it was invalid due a lack of proper notice and that there was a serious question to be tried regarding the share register and therefore the voting on that resolution. The plaintiff was given leave to amend (given the difficulties of seeking an interlocutory declaration: Atlas Holdings at [6]). The Court did not make the declaration sought, as the procedural irregularity would not have resulted in substantial injustice and hence s 1322(2) of the Act applied to validate the proceeding: Atlas Holdings at [30]-[32] and [41]-[45]. The Court also did not make the injunction sought. Applying O’Neill, Lee J observed that “the question … is whether or not there is a serious question to be tried in the way in which the argument was articulated in the Application…”: Atlas Holdings at [50]. The evidence before the Court and the arguments deployment on the interlocutory hearing were insufficient to amount to a serious question to be tried: Atlas Holdings at [51]. Lee J observed at [54]:

[54]    Courts have long demonstrated an unwillingness to interfere with the democratic process of a corporation, except where it is necessary to do so: Turnbull v National Roads and Motorists Association Ltd (2004) 50 ACSR 44 186 FLR 360; [2004] NSWSC 577 at [51] per Campbell J. ….

(d)    Laine Commodities considered the application of s 249G and s 1319 of the Act in relation to calling a meeting of members if it is impracticable to call the meeting in any other way. The plaintiff, Laine Commodities Pte Ltd, held 51% of the shares in the relevant company and the defendant, CS Agriculture Pty Ltd, held the remaining 49% of the shares. Laine Commodities had attempted to call a meeting and to change the composition of the company’s board, but to no avail. On five separate occasions a meeting was attempted to be called, but on each occasion the defendant declined to attend rendering the meeting inquorate. At [40]-[41], O’Callaghan J adopted and applied the approach of Campbell J in Turnbull at [51]. The Court found it was impractical to conduct or call a meeting and that the interests of the members as a whole of the company are best left to be decided by the officers, organs and procedures of the company itself.

(e)    in Reuther, the Court considered (at [39]) whether a notice issued under s 293 of the Act was within the ordinary meaning of s 232(a) and then either within s 232(d) or (e) of the Act. The notices issued under s 293 of the Act required the relevant company to prepare audited financial reports and a director’s report. The Court held that the notices issued were not within the meaning of s 232(a). However, applying the reasoning of Campbell J in Turnbull, the Court was satisfied that those actions fell within s 232(b) and hence then considered whether such conduct was contrary to the interests of the members as a whole or oppressive to, unfairly prejudicial to, or unfairly discriminatory against a member or members. In considering the first aspect under s 232(d) of the Act, Parker J approached the issue by reference to the interests of an “individual hypothetical member” as explained in Goozee (Reuther at [70]-[75]) and held the issue of the s 293 notice was not contrary to the interests of the members of the company as a whole within s 232(d). Further, his Honour held that in relation to s 232(e), a commercial bystander would not consider the issuing of the s 293 notices to be unfair.

(f)    in Kentel, the Court considered an application for orders under s 249G and s 1319 of the Act. Justice Nixon held that amongst other matters, the consideration of what is or is not in the interests of the members as a whole are best left to be decided by the officers, organs and procedures of the company itself featured: Kentel at [103]-[104] and [129]. The Court granted the relief sought and ordered that a meeting take place (which was to be facilitated by using online video link technology).

27    What this survey of the authorities reinforces is the primacy of the following principals enunciated by Campbell J in Turnbull at [51], and further developed in the aforementioned cases, being that:

(a)    Courts are reluctant to interfere in advance (of course without being able to anticipate what the voting will be: Atlas Holdings at [55]) with the ordinary process of company democracy, which usually occurs at a company meeting. It will be a rare case where such interferences occurs;

(b)    questions of what is or what is not in the best interest of the members of the company are best decided by the officers, organs and procedures of the company itself (Kentel at [103]-[104] and [129]);

(c)    considering the interests of the members as a whole must be approached by reference to the interests of the “individual hypothetical member”: Goozee at [52]; Reuther at [70];

(d)    asking the Court, in advance, to make an order under s 233 that a proposed course is contrary to the interest of the members as a whole will often confront factual difficulties in demonstrating with sufficient certainty that the proposed course is actually contrary to the members as a whole, particularly once considered by reference to the individual hypothetical member.

28    Finally, in addition to the balance of convenience and the discretion to be exercised, the Court should also consider any delay in bringing the application for urgent interlocutory relief: Carlton & United Breweries (NSW) Pty Ltd v Bond Brewing Co New South Wales Ltd (1987) 76 ALR 633 at 638. Delay, of itself, can be a sufficient reason for rejecting urgent interlocutory relief: Carlton & United at 638-639; Construction Forestry Mining and Energy Union v Anglo Coal (Capcoal Management) Pty Ltd (2016) 266 IR 185; [2016] FCA 1582 at [97]-[98]; Workplace Institute Limited v IBM Australia Limited (2019) 147 IPR 13; [2019] FCA 1339 at [68]-[71]. Furthermore, if there has been delay is must be adequately explained: Network Ten Ltd v Fulwood (1995) 62 IR 43 at 47.

29    Of course, each case must turn on its own facts and in the context of the particular legal controversary. In Williment v Commissioner of Taxation (2010) 190 FCR 234; [2010] FCA 8080 at [17]-[18], Perram J held a 16-day delay to be a “very substantial delay”, whereas in Capcoal Management at [96], Katzmann J held that a 16-day delay was “insubstantial”. It is the consideration of the delay in all of the particular circumstances, not the actual number of days of delay, that is determinative.

30    It is clear that in all cases, an applicant seeking an interlocutory injunction is required to act promptly. What will be “prompt” will depend on the particular circumstances, including the facts of the case and the nature and circumstances of the matters involved.

Background to the EGM

31    NACCHO was founded in 1997 and is a company limited by guarantee. It is a registered charitable organisation with the Australian Charities and Not-for-profits Commission. NACCHO supports and advocates for its members across Australia to organise and strengthen health systems to improve the ability of those systems to address the health and wellbeing needs of Aboriginal and Torres Strait islander Peoples. The health network is expansive, spanning over 550 locations around Australia. NACCHO receives Commonwealth Government funding to undertake specific programs with its members to improve health outcomes for Aboriginal and Torres Strait Islander peoples.

32    The version of the Constitution which was current, at the time of the hearing of the application, was one amended by way of special resolution passed at an Annual General Meeting on 15 November 2011. This version of the Constitution, passed on 15 November 2011, has been in force since that date (Current Constitution).

33    The New Constitution has been raised at previous meetings in the same or substantially the same form as that proposed to be adopted at the EGM. However, at each of these earlier meetings, the required special resolution to adopt the New Constitution has failed. According to the Applicants, the dates of those previous meeting are as follows:

(a)    7 November 2019;

(b)    March 2021 (no specific date was alleged);

(c)    22-25 November 2021;

(d)    17 October 2022;

(e)    24 October 2023; and

(f)    3 December 2024.

34    The dates of these meetings from the evidence of one of the directors and Chair of the Board of NACCHO (the Chair) (supported by the relevant minutes of meeting) are as follows:

(a)    2 November 2017;

(b)    2 November 2018;

(c)    7 November 2019;

(d)    18 October 2022;

(e)    24 October 2023; and

(f)    3 December 2024.

35    It is not necessary to resolve any conflict in this evidence for the purposes of this application. For this purpose the date or dates of the meetings is not relevant. The relevance of this is that the New Constitution is the same or substantially the same form has been previously advanced six times and, on each occasion, failed to be adopted.

36    On 14 April 2025, a notice of the EGM was given to the members (Notice). The Notice, amongst other matters, required members to provide, at least 48 hours prior to the date of the meeting, the name of the voting representatives and confirmation that the delegates have been validly elected by members of the organisation. Attendance at the meeting was only in person, no online or virtual attendance was permitted. The Notice also included the agenda for the meeting, which provided as follows:

Agenda for Extraordinary General Meeting

National Aboriginal Community Controlled Health Organisation (NACCHO)

7 May 2025 at 10:00am ACST

Adelaide Convention Centre, North Terrace, Adelaide SA

Opening remarks by the NACCHO Chair

Item 1 - Special resolution to adopt new Constitution

To consider and vote on the following special resolution:

“Resolved by special resolution that the Constitution circulated with this Notice of Extraordinary General Meeting and marked ‘A’ (‘New Constitution’) be adopted as the Constitution of NACCHO in place of its current Constitution, effective from the conclusion of this Extraordinary General Meeting.”

(emphasis in original)

37    Accompanying the Notice was a “Quick Guide” and an explanatory memorandum for the New Constitution, for the EGM. The explanatory memorandum stated, amongst other matters:

Members’ Explanatory Memorandum for EGM

The new Constitution is based on extensive consultations with members. Each time the new Constitution has been put to members, a clear majority has voted in favour, although we have not achieved the 75% we need for a ‘special majority’. This Constitution is the same as the Constitution put to the members on 3 December 2024 (other than the transition provisions) and continues to reflect member preference for a 16-member Board similar to the current NACCHO Board.

38    The explanatory memorandum provided a high-level comparison between the Current Constitution and the New Constitution. This was together with a short introductory description of the purpose of the explanatory memorandum, the purpose of the New Constitution and a table which provided further details. That table compared certain key provisions, as between the Current Constitution and the New Constitution and provided commentary regarding the changes. Finally, the documents provided also included a complete copy of the Current Constitution and the New Constitution.

Background to the Applicants bringing the Application

39    On 17 April 2025, three days after the Notice was given, the Applicants’ solicitors wrote to the Chairperson of NACCHO seeking, effectively, to rely on article 4.15 of the Current Constitution to commence the dispute resolution procedure. This was said to be on the basis that there was a dispute between a member organisation and the Organisation, being NACCHO. Eight separate points were articulated, which were claimed to support the position that the dispute could not be referred to mediation by the Chairperson. As such, a request was made for that provision of the Constitution not to apply or that NACCHO could waive compliance. The letter concluded by seeking that the proposed resolution be withdrawn by 29 April 2025, or otherwise, urgent instructions would be received to seek an urgent injunction.

40    On 29 April 2025, as requested and in response to the Applicants’ solicitors’ letter of 17 April 2025, solicitors for NACCHO responded. This letter described the Applicants’ position as unsubstantiated and that there was no basis for any interlocutory injunction.

41    On 1 May 2025, the Applicants’ solicitors wrote further to the solicitors for NACCHO and amongst other matters, provided NACCHO with what was described as a final opportunity to cancel the meeting, requiring confirmation by 10am on 2 May 2025, otherwise the Applicants would be filing an urgent application to be heard on 6 May 2025.

42    On 2 May 2025 at 10:23am, the Applicants contacted the Registrar of the Court seeking an urgent listing on 6 May 2025. In Queensland, Monday 5 May was a public holiday.

The Issues – prima facie case

43    The Applicants raised the following matters in support of their application for an injunction to restrain the proposed adoption of the special resolution (as outlined above, being Item 1) at the EGM, that:

(a)    this was the seventh attempt to pass the New Constitution;

(b)    the calling of the EGM was invalid;

(c)    the notice calling the EGM was invalid; and

(d)    the explanatory material regarding the New Constitution was misleading.

44    I will outline each of these and the Respondent’s position to consider whether the Applicants have established a prima facie case and then move to the balance of convenience.

(a)    Seventh attempt

45    The Applicants point to the previous six attempts to amend the Current Constitution in earlier meetings, noting that at each of those meeting the special resolution which was required to adopt the New Constitution failed. The Applicants submit that for reasons unexplained and without any additional consultation or material changes to the New Constitution, the directors wish to have this seventh attempt to have the New Constitution adopted.

46    The real focus of this submission by the Applicants, was that since the last meeting in December 2024, there was a suggested lack of consultation. The Applicants submits that NACCHO has previously engaged in a consultative process, which was contrary to how it was acting now.

47    The Respondent contends that there has been extensive consultation regarding the New Constitution since 2016. The Chair gives evidence of the process that has been undertaken. The Respondent also relies on the Quick Guide, which accompanied the explanatory memorandum, to support its submission that consultation has been undertaken.

48    However, as observed above, the real focus by the Applicants was in relation to the period in between December 2024 and the calling of the meeting for 7 May 2024. The Chair gives evidence that as the passing of the New Constitution had been “so close” at the December 2024 meeting (73.33%, where 75% was required for the special resolution), NACCHO needed to continue to listen to members and advance the progress for reforming the Current Constitution. The Chair also gives evidence that feedback was received that “many” members wished to have another opportunity to vote on the adoption of the New Constitution as soon as possible. In addition, the Chair gives evidence regarding responses to an open letter dated 3 March 2025 and a Board meeting on 27 March 2025, which supported holding the EGM on 7 May 2025.

49    The Respondent also submitted that the relief sought by the Applicants was vague and uncertain. It is unclear, according to the Respondent’s submissions, what is meant by “material changes” to the Current Constitution, what is “proper consultation” or “meaningful proper consultation”. Effectively, the Respondent submitted that such measure were likely to be subjective. Although the Respondent accepted that such matters would ultimately have to be considered objectively, the submission was maintained that the form of such orders introduced an uncertainty which should not then be the subject of orders of the Court.

50    On this interlocutory application it is not appropriate to finally resolve whether or not there was any extensive consultation in between December 2024 and the calling of the 7 May 2025 meeting by the Notice. However, what must be considered is whether or not this issue, as advanced by the Applicants, it being the seventh attempt that the New Constitution was proposed to be adopted, which may have been done without any or without extensive consultation, establishes a sufficient prima facie case of oppression. That is, does this basis demonstrate a sufficient likelihood of success to the final relied claimed, on the basis of oppression, that the status quo should be maintained, by way of ordering the injunction sought.

51    One of the difficulties confronted by the Applicants on this basis is that there is no requirement on the Current Constitution to consult with members. The argument advanced by the Applicants was that a process of consultation had taken place in the past and in essence that that process should be continued with, but has not, since the meeting in December 2024.

52    There is some evidence of some consultation which has taken place.

53    The Applicants do also advance this submission as a need for “proper” consultation. Even applying or seeking to apply an objective basis to the nature and kind of consultation which should be undertaken, to try and provide certainty to that requirement, it is still somewhat vague and indeterminate.

54    As already observed, the Applicants do not identify in any of their material which subsection of s 232(a) to (c) they seek to rely on, either generally or in relation to this issue. However, without deciding that any such limb is satisfied, I will consider whether the Applicants have established a prima facie case that any suggested lack of consultation (again, without deciding whether that is the case or not) would amount to “commercial unfairness”, which is the essential criterion of oppressive conduct under s 232(e) of the Act, or whether it is contrary to the interests of the members as a whole under s 232(d) of the Act.

55    In relation to s 232(e), the level and nature of consultation was the same across all members. The Applicants (and those supporting the Applicants) were not in this regard unfairly treated when compared against the background of the treatment of the whole body of members. Objectively, the conduct, being the calling of a seventh meeting to consider the New Constitution in all of the circumstances, is what must be considered. Of course, being an objective test, the motives of the Respondent are not relevant and the relevant conduct may be oppressive, even if the motives are honest. The conduct may be lawful and still may be oppressive. In all the circumstances, the commercial bystander would not consider the effect of calling the EGM so that members could again consider the New Constitution as being objectively unfair. This is because fairness is not assessed by reference to one member (or two), being the Applicants, and because it was conduct that applied in a like manner to all members, it cannot properly be described as unfairly prejudicial or discriminatory: Nawar v Newcrest Mining Ltd [2022] FCA 424 at [48].

56    In relation to s 232(d), it is to be assessed and determined against accepted standards of corporate behaviour or how reasonable directors would act in attending to the affairs of the company. Furthermore (as set out in [23] and [27] above), it is to be approached on the basis that Courts are reluctant to interfere, in advance, with the ordinary process of company democracy, which usually occurs at a company meeting. These matters are best decided by the company itself. Further when considering the interests of members as a whole, it must be approached by reference to the interests of the “individual hypothetical member” and not by reference to the Applicants. The members themselves are in the best position to consider whether or not sufficient consultation has occurred prior to being asked to vote at the EGM. If members are of the view that further consultation is required, that is likely to be raised by members at the meeting, and prior to the actual voting taking place. At the EGM, the members will be able to ask questions of the Board (as stated in the Notice) and raise any issues regarding the proposed special resolution and the New Constitution prior to voting. In accordance with the relevant principles, this is the preferred approach. On this basis, I am not satisfied that the Applicants have established a prima facie case that any suggested lack of consultation on this seventh attempt to pass the proposed special resolution for the adoption of the New Constitution would be contrary to the members as a whole because the directors have called the meeting in response to requests from some members and considered the way the meeting should be held and the papers to be provided prior to the EGM. All of this is in accordance with generally accepted standards of corporate behaviour and how reasonable directors would act in attending to the affairs of the company. Of course, it is a matter for the members themselves to decide how it is they will vote and the Court should be reluctant to interfere with that.

(b)    The calling of the EGM was invalid

57    The Applicants rely on clause 6.3.1 of the Constitution, which states:

6.3.1    The Board of Directors may, whenever it considers it necessary and, in light of geographical restraints upon a national body, whenever it considers it financially feasible, convene an Extraordinary General Meeting of the Organisation. All General Meetings other than the Annual General Meeting shall be called Extraordinary General Meetings.

58    This provision of the Current Constitution, the Applicants contend, requires consideration of when it is “necessary” to convene an extraordinary general meeting. The provision also requires consideration of when it is “financially feasible” to convene such a meeting. Neither of these matters, the Applicants submit, have been established. The Applicants submit that there is no evidence that the Board has actually satisfied its obligations before convening this meeting. Furthermore, the Applicants query the suggested offer made to members to assist with the cost to subsidise travel and accommodation costs up to $1,000. This appears to be advanced in support of the Applicants’ submission regarding the requirement to consider the financial feasibility of convening the meeting. I will consider it together with the overall financial feasibility issue.

59    The Respondent submits that there is evidence regarding consideration of the financial feasibility of the EGM, which included consideration of an appropriate venue, that the EGM could be held at a time which coincided with another forum to save costs and maximise attendance, and the Respondent’s members having indicated an unwillingness to incur costs to attend the standalone EGM or separately a one-day workshop (although some members had indicated they would be more willing to attend a two-day event). This was supported, the Respondent submitted, by a letter dated 27 March 2025, which commenced with:

… We have responded to requests from members that it be held while the sector is already gathering in Adelaide on 7-8 May 2025 to minimise the cost and impost for members.

60    The “it” in that letter was a reference to the EGM. Furthermore, the Respondent submitted that clause 6.3.1 of the Constitution, as a matter of construction, did not require specific parameters of what the Board is to consider in determining financial feasibility. Finally, since the meeting had actually been called, it was submitted that the Respondent had determined the required matters under clause 6.3.1. As such, the Respondent submitted, there was no invalidity.

61    Although the EGM was called by the directors, it is apparent that the EGM was called due to the request from its members.

62    The Applicants also and separately submit that the directors of NACCHO have decided to restrict members from attending virtually for a variety of reasons. Implicitly, the Applicants do not accept those are valid reasons to deny members the ability to attend virtually.

63    The Applicants contend that s 249S(1) of the Act requires that a company that holds a meeting of its members must give its members a reasonable opportunity to participate in the meeting. Further, the Applicants also rely on s 249R of the Act. Section 249R(b) relevantly provides that a company may hold a meeting of its members at one or more physical venues and using virtual meeting technology. That is, the Applicants submitted that the restriction on delegates attending virtually was contrary to the Act.

64    The Respondent submits that the decision not to hold the meeting virtually or by way of a hybrid meeting was on the bases that:

(a)    previously, attendance at virtual meetings has been historically low;

(b)    connectivity issues have arisen as a difficulty for some members in remote communities;

(c)    when there are a large number of in-person attendees, a larger auditorium space is required, which is not conducive to interaction and participation of virtual attendees;

(d)    it is not practical to have online or electronic voting systems (there have been challenges to the validity of such voting in the past, as recorded in the 3 December 2024 minutes);

(e)    there is, at least, a perceived reduction in the transparency of the voting and counting of votes process.

65    As such, the Respondent submits that this decision was a rational one and open to the Respondent.

66    The Applicants have provided some evidence that the Adelaide Convention Centre, where the EGM is to be held, does promote that it offers facilities to allow for hybrid events. Such facilities would appear to allow for attendance by way of virtual meeting technology.

67    This issue can be distilled as raising the following two issues. First, that the calling of the EGM was contrary to clause 6.3.1 of the Current Constitution as the Board did not satisfy itself it was “necessary” and “financially feasible” to call the EGM. Secondly, that a reasonable opportunity to participate in the meeting has not been provided to members due to the lack of being able to attend virtually. The submissions advanced for the Applicants did not address how this issue would provide the Court with a basis to make order under s 233 of the Act, on the satisfaction by this issue, of the grounds in s 232 of the Act.

68    Therefore, without deciding whether any limb of s 232(a)-(c) is satisfied by this issue, I will again proceed to consider whether the Applicants have established a prima facie case that the Respondent’s conduct amounts to “commercial unfairness”, which is the essential criterion of oppressive conduct under s 232(e) of the Act, or whether it is contrary to the interests of the members as a whole under s 232(d) of the Act.

69    The relevant circumstances for this consideration, on the basis of the material currently available, are that:

(a)    the directors were requested by members to call another meeting to consider the adoption of the New Constitution;

(b)    consideration was given to an appropriate venue, in the context of a national organisation;

(c)    the kind of attendance at the meeting was considered, including by way of virtual attendance and the cost for only attending a single issue meeting (so as to include a workshop component as well, for the travel associated with attendance).

70    On a prima facie basis, it appears that the directors have acted reasonably in attending to the affairs of the company and have dealt with all members the same. As such, this conduct cannot properly be described as unfairly prejudicial or discriminatory.

71    I am not satisfied that the Applicants have established a prima facie case that the calling of the meeting was invalid for lack of consideration of the EGM being “necessary” or it being “financially feasible” on the basis of the evidence currently before the Court. There is some evidence that such matters have been considered, as I have outlined above. I accept that the matters referred to by the Respondent do support the position, at least at this stage, that such matters were considered.

72    Therefore, the Applicants have not established on a prima facie basis that the calling of the meeting was invalid. In relation to the interests of the members as a whole and being able to attend virtually, the evidence currently available does not support the Applicants having established on a prima facie basis that members were not given a reasonable opportunity to participate in the meeting. As such, I am not satisfied that the Applicants have established on a prima facie a likelihood of succeeding for final relief for oppression, on this basis under s 232(d) of the Act.

73    In relation to s 232(e), the Applicants (and those members supporting the Applicants) were not, in this regard unfairly treated, against the background of the treatment of the whole body of members. Further, as I am not satisfied that the Applicants have established on a prima facie basis that the calling of the meeting was invalid, objectively this would not amount to “commercial unfairness”, which is the essential criterion of oppressive conduct under s 232(e) of the Act.

(c)    The notice calling the EGM was invalid

74    The Applicants contend that the Notice was contrary to the requirements of the Current Constitution. The Notice stated that members were entitled to have two voting representatives at the EGM who must provide at least 48 hours prior to the date of the EGM, the name of those voting representatives together with confirmation that those delegates have been validly appointed.

75    The Applicants take issue with the imposed requirement of providing 48 hours’ notice prior to the EGM. However, the Applicants accepted that if members were permitted to attend without providing 48 hours’ notice and could attend by way of a virtual attendance, then this complaint could not properly be maintained.

76    The Applicants relied on clauses 4.5 and 4.5 of the Constitution, which do not contain any requirement for 48 hours’ notice. However, the Applicants quite properly accepted that the definition of “alternate delegate or proxy” did contain a requirement that if a member appoints an alternate delegate or proxy then they must register that alternate delegate or proxy 48 hours prior to the meeting.

77    The Applicants accept that the Notice was given at least 21 days prior to the meeting on 7 May 2025. No issue was taken with the timing of the Notice.

78    The Respondent accepts that there is not a specific provision that requires a member to register for voting as a delegate 48 hours prior. However, the Respondent contends that the Current Constitution does provide the company with power to control its own affairs, including meetings. The Respondent pointed to the broad, overarching powers in clause 3.1.2 and 3.1.1(b) of the Current Constitution. The Respondent submitted that the 48 hours’ notice, was permitted by these broad powers, and it was the company requiring a certain procedure for registration, it was not denying that members are still entitled to vote. The Respondent also maintained the submission that the requirement to lodge the required form 48 hours prior was one allowable under the Current Constitution, and if that was not done, there was an ability to deny voting if those requirements were not meet.

79    The powers relied on by the Respondent provide as follows:

Powers

3.1.1    The Company has, both within all States and Territories of Australia, all those powers provided for in the Corporations Act (2001), including all powers and legal capacity of a natural person, and no restriction is placed on the exercise of those powers, including:

a)    …

b)    to do and suffer all other things that a body corporate may, by law, do and suffer and that are necessary for, or incidental to, the exercise of its functions;

3.1.2    The Company shall have the power to co-ordinate, facilitate and oversee the operations of the Organisation as required by the Constitution and in accordance with the Aims and Objectives of the Organisation contained therein.

80    There is no express requirement in the Current Constitution that members must provide 48 hours written notice prior to the EGM of the name of their voting representatives and confirmation that the delegates have been validly appointed.

81    However, the Current Constitution does provide the company with broad powers. Those powers include all things necessary or incidental for the exercise of its functions, in accordance with clause 3.1.1(b) of the Current Constitution. Against that broad overarching power is the power in clause 3.1.2. If clause 3.1.1(b) was as broad as contended by the Respondent, it would leave little to no work for clause 3.1.2 to do. The Current Constitution should be construed objectively and for each clause to have work to do. To this consideration should be added the remedial power under s 1322 of the Act. Section 1322(2) operates automatically to validate proceedings which would but for operation of this provision be invalid due to a procedural irregularity. A proceeding for the purposes of s 1322(2) includes both a meeting and a resolution: Atlas Holdings at [30]-[31].

82    On this interlocutory application it is not necessary to finally resolve any matters of construction. For the purposes of this application, it is necessary for the Applicants to establish that they have a prima facie case of oppression due to the Notice being invalid, due to an inability to impose a 48 hours notice requirement. Once again, the specific provision of s 232(a)-(c) was not identified by the Applicants to support this argument. Furthermore, as outlined above, this was the Notice issued to all members and as such cannot be unfairly prejudicial or discriminatory: Nawar at [48]. As such, this argument would not be able to satisfy the requirements of s 232(e) of the Act.

83    The test under s 232(d) is different. It requires this Court to consider an “individual hypothetical member” objectively, as to whether the Notice requiring 48 hours’ notice prior to the meeting was contrary to the interests of the members as a whole. On the one hand, the members of this national organisation would all presumably make their travel arrangements before the end of the 48 hour notice period and therefore more than 48 hours before the meeting taking place. Therefore, this additional requirement may not impose an unreasonable requirement. As such, considering the interests of the members as a whole, to impose this requirement would not appear to be contrary to those interests, for members to be able to attend. This assumes an in-person attendance. On the other hand and against that, is that member attendees may not organise travel that far in advance or may seek to change their mind about attendance, and then seek to register within the 48 hour period. Furthermore, some members may also prefer not to incur the costs of attending in person but may still seek to participate in the meeting.

84    Consideration must be given to the interests of the members as a whole. The primary matter in this analysis is that it is the members themselves who are best to determine what is in the best interests of the company, through the usual company democratic process, which is by way of a company meeting. On this basis and the Applicants’ acceptance that if members were permitted to attend without providing the 48 hours’ notice and could attend virtually, I was satisfied that limited interlocutory relief should be granted. As explained below, in considering delay, I was not satisfied that this relief should be made absolute but should be made by the Respondent using its best endeavours.

(d)    The explanatory material regarding the New Constitution is misleading

85    As outlined above, the Notice was accompanied by an explanatory memorandum, together with other documents including full versions of the Current Constitution and the New Constitution. That explanatory memorandum provided a comparative table of the provisions from the Current Constitution and the New Constitution. The Applicants submit that an aspect of that explanatory memorandum is wrong or misleading in a material way. The complaint related to the provision regarding when a member can be expelled and the change that is proposed in the New Constitution.

86    The explanatory memorandum the subject of this submission provides as follows:

87    Clause 4.17 of the Current Constitution states:

Right of Appeal of Disciplined Member

4.17.1    A member organisation may appeal to the Organisation in general meeting against a resolution of the Board of Directors under Clause 2.16, within twenty-one (21) days after notice of the resolution is served on the member organisation, by lodging with the Company Secretary a notice to that effect.

4.17.2    The notice may, but need not, be accompanied by a statement of the grounds on which the member organisation intends to rely for the purposes of the appeal.

4.17.3    On receipt of a notice from a member organisation under Clause 4.17.1, the Company Secretary must notify the Board of Directors which may convene an Extraordinary General Meeting of the Organisation to consider the matter. However, at the discretion of the Board of Directors, due to financial feasibility in light of geographical restraints upon a national body, this matter may be adjourned until the next Annual General Meeting.

4.17.4    At an Extra Ordinary General meeting, or at a scheduled specified time at an Annual General Meeting, of the Organisation convened under Clause 4.17.3:

(a)    no business other than the question of the appeal is to be transacted whilst the matter is being considered;

(b)    the Board of Directors and the member organisation must be given the opportunity to state their respective cases orally or in writing, or both; and

(c)    the representative delegates of member organisations present are to vote by secret ballot on the question of whether the resolution should be confirmed or revoked.

4.17.5    Where at an Extra Ordinary General Meeting or an Annual General Meeting the Organisation passes a special resolution confirming the expulsion or suspension of a member organisation as provided for in Clause 4.17.4 above, the expulsion or suspension shall take effect.

88    The Applicants submit that there is no explanation that currently a member can only be expelled by way of a special resolution (see clause 4.9.1) or once the process in (mis-numbered) 2.16.1 (which should be numbered 4.16.1) is undertaken.

89    Clause 4.9.1 expressly provides that a member organisation may be expelled by special resolution at an extraordinary general meeting in certain circumstances. Clause 2.16.1 provides for the disciplining of members. Clause 4.16.2 then provides the directors with a right to investigate and by clause 4.16.3, following that process, the directors may, by resolution, expel the member organisation. The Applicants submit that the process is significantly different under the New Constitution and this is not explained under the explanatory memorandum.

90    Further, the Applicants refer to clauses 12 and 23 of the New Constitution, as is done in the explanatory memorandum. Clause 12 is regarding disciplining members and delegates. Clause 23 concerns dispute resolution. None of these clauses provide a power to the members to expel another member. This power, so the Applicants submit, has been removed. Further, the requirement for a complaint to be made by a member before any power of the directors is enlivened to expel another member has been replaced by a discretionary power to the directors to expel members in accordance with clause 12. This change, according to the Applicants, has not been explained in the explanatory memorandum. These matters, the Applicants submit, are wrong or misleading, such as to support the final relief claimed of oppression, which would entitle them to relief under s 233 of the Act.

91    The Respondent submits that there is nothing misleading about the passages in the explanatory memorandum referred to by the Applicants, as the explanatory memorandum explicitly references members’ rights of appeal under clause 4.17. The Respondent’s submission regarding that clause can be accepted as the Board can expel a member and the member may appeal that decision at an AGM. Further, the explanatory memorandum must be considered as a guide and together with the other documents which accompanied it. Those other documents included complete versions of the Current Constitution and the New Constitution.

92    The explanatory memorandum does not address each and every clause of the Current Constitution and the New Constitution. The purpose of the document includes to “explain the key differences between the current NACCHO Constitution and the New Constitution”. The table of comparison expressly states that it provides “a comparison of certain key provisions of the current Constitution and the New Constitution.”

93    The Applicants did not seek to identify which subsection of s 232(a)-(c) was relied on for the purposes of the interlocutory relief sought.

94    Before considering whether or not such an argument would fall within the bounds of s 232(d) or (e), I will consider whether the Applicants have raised a prima facie argument that the part of the explanatory memorandum relied on is wrong or misleading. Once the entire package of documents which accompanied the Notice is considered as a whole, together with the purpose of the explanatory memorandum, I am not satisfied that the part or parts relied on are wrong or misleading. In this regard the Respondent’s submissions regarding the appeal rights, which is the description given in the far-left column of the explanatory memorandum, are correct. The explanatory memorandum does not purport to be a comprehensive comparison of the Current Constitution and the New Constitution. It expressly states it is providing a comparison of certain key differences. However, full versions of each document were also provided to members, so that they could consider each document in detail. The explanatory memorandum expressly encouraged members to “discuss the new constitution within your organisation and with your state affiliate…”.

95    On the basis of the arguments advanced and the evidence at the time of the hearing, I am not satisfied that this argument raises a prima facie case such that the Applicants would be entitled to final relief by way of orders for oppression.

Balance of convenience

96    This question, is related to the first question: Warner-Lambert at [70]. It is necessary to consider it, give the position reached on the imposed requirement of 48 hours’ notice.

97    The Applicants accept that if orders were made preventing the EGM, that would cause some inconvenience and disruption to some members. However, the Applicants also submitted that as there was also a workshop taking place on the next day after the EGM, the travel and the like of those attending would not be wasted.

98    The Applicants also submitted that the “single issue meeting” was not going to be well attended, suggesting that there would only be 71 or perhaps 91 voting delegates. If it was 71, so the Applicants submitted, that would be less than half of the members. Even if it was 91 voting delegates, according to the Applicants, that would still be insufficient to pass the special resolution, as it requires a 75% majority to pass. That is, the Applicants also relied on the number of delegates attending the meeting and the poor prospects of the special resolution being passed.

99    The Applicants submit that, if the meeting goes ahead on the next day and is passed, the New Constitution will become effective immediately and that acts done at the meeting would presumably be valid. This would affect the ultimate hearing of this matter.

100    The purpose of the injunction, as is sought by the Applicants, is to maintain the status quo. There have been six failed attempts to change the Current Constitution and the Applicants submit that there is no immediate need, in terms of the Respondent’s day-to-day operations, to change the Current Constitution.

101    The Respondent submits that the balance of convenience favours refusal of the relief sought. The meeting, which is to be held the next day, was to be well attended with 121 voting delegates registered to attend. Further, those delegates who have travelled to attend the EGM will incur wasted costs and inconvenience. There will also be wasted costs in having to make arrangements again for a further EGM, borne by the Respondent, which will affect its members. The Respondent submitted that the lack of the strength of the Applicants’ case would also weigh against the Applicants and the grant of interlocutory relief. Further, the Respondent submitted, in terms of any final relief and whether there has been oppressive conduct, if the meeting proceeded and the members vote in favour of the New Constitution, that factor would be weighed by the Court, when ultimately deciding the Applicants’ application. Further to this, the Respondent observed that if the New Constitution is passed and the Applicants succeed at trial, the Court retains power to make orders to modify or repeal the New Constitution.

102    The Applicants also sought (later in submissions) to resist the suggestion that any kind of notice now being provided to members that the previous requirements of providing 48 hours’ notice and being able to attend virtually would not apply to the EGM, would not assist. This was on the basis that time was short. The notice would be sent after hours, and with potentially only a few business hours prior to the meeting. However, the Applicants did maintain the submission that members have been restricted from attending.

103    There is only one item of business to be considered at the EGM. Therefore, to restrain the consideration of that item is to effectively cancel the meeting. Members would have already travelled and incurred expense in attending the meeting. This aspect of the balance of convenience favours not granting relief.

104    Courts will only interfere and halt the holding of a company meeting in the rarest of circumstances. The questions of what is in the best interests of the members as a whole are best left to be determined by the officers, organs and procedures of the company. As this second question is related to the first, is relevant to consider the nature of the relief sought when considering the balance of convenience.

105    Although both the Applicants and the Respondent sought to advance what might be the outcome of the EGM, I cannot, nor should I try to, anticipate what will be the result of the voting on the special resolution. If anything, these submissions only reinforce that such matters should be left to the members to decide. If there are insufficient attendees at the meeting, leaving aside the possible difficulties with requiring 48 hours prior notice, then the special resolution will not be passed. However, this will be because the members did not pass it. Similarly, if there are sufficient attendees and the special resolution is passed, again, this will be because the members did pass it. The submissions regarding the attendance and whether or not the special resolution will pass support the proposition that the Court should not interfere with the ordinary democratic process of the company which usually occurs at the company meeting.

106    This was quite rightly accepted by the Applicants that “[b]ecause it is purely a decision for the members, we accept that as a proposition, and by and large members should be left to control their own organisation, and courts really shouldn’t interfere.” And further “That’s the accepted principle. We readily accept that.”

107    The Court has power under s 233(1)(b) of the Act to order that the Respondent’s Current Constitution or New Constitution be modified or repealed. Therefore, even if the injunction sought is not granted, on any amended originating application supported by potentially a pleading or concise statement and further evidence, the Court retains the ability to modify or repeal the New Constitution, if it was actually passed by special resolution at the EGM.

108    Finally, to this must be added the Applicants’ delay in bringing this application.

109    The minimum period required for the Notice was 21 days, which occurred. The Applicants submitted that the 21st day was the day prior to the hearing on 5 May 2025. Therefore, the consideration of delay must be considered in the context of all of the particular circumstances, not only based on the numerical value of days taken.

110    On 17 April 2025, the Applicants’ solicitors wrote to the Respondent’s solicitors, three days after the Applicants’ received the Notice.

111    The 17 April 2025 letter requested a response by 29 April 2025. Therefore, to the initial three days, which were taken by the Applicants, must be added these 12 days, which the Applicants’ solicitor allowed, before a response was required.

112    There is no explanation why such a lengthy period, in the context of the EGM having been called and it occurring in approximately 22 or 23 days’ time. Allowing 12 days to respond was effectively half of the relevant period. Once the initial three days is added, such that 15 days had elapsed before any response by the Respondent was to be received, this equates to more than half of relevant time elapsing. There is no explanation by the Applicants why it took three days to initially write to the Respondent raising issues regarding the EGM nor is there an explanation as to why a period of 12 days was nominated as the time within which a response was required. It is insufficient to amount to an explanation to remain “hopeful” that upon the Respondent receiving such correspondence, it would agree to withdraw the proposed resolution for consideration at the EGM or postpone the EGM.

113    Furthermore, the 17 April 2025 letter stated, if the resolution was not withdrawn “we anticipate receiving instructions to bring an urgent injunction”. There is no explanation why such instructions were not already held.

114    In response to the 29 April 2025 letter from the Respondent’s solicitors, on 1 May 2025, the Applicants’ solicitors wrote further, then seeking a response the next day, 2 May 2025.

115    It is unclear and unexplained why the matter was not initially progressed promptly.

116    In the particular circumstances of this case, there has been delay. The initial letter and request for a response took some 15 days in a context where the entire relevant period was only 22 or 23 days. As already observed, it is not the number of days itself which causes the finding of delay. It is the contextual delay, in the particular circumstances of the case which means that the Applicants have delayed, they have not acted promptly and have not explained to the Court why that period of time was taken. The effect was that ultimately the matter was being heard between 18-12 hours prior to the EGM.

117    As the best interests of the company are best considered by the members themselves, the best interests of the members as a whole are best served by members being able to attend and participate in the EGM.

118    If a member, after the Court hearing then wanted to attend the EGM, as the Notice required 48 hours prior notice, such members would have been restricted from participating and voting. This is not in the best interests of the members as a whole. However, given the delay and the fact that the EGM was due to take place, by the time the argument had concluded, in approximately 12 hours’ time (which was effectively overnight), I was only prepared to order that the Respondent use its best endeavours to notify members that the requirements for attendance and voting had changed, by order of the Court, and only if such remote facilities could be established, overnight. There were only a few business hours within which such matters could be attended to and at the time of the hearing it was uncertain whether such arrangements could be put in place.

119    Therefore, for all of these reasons, I made the above Orders.

Associate:    

Dated:    18 June 2025