PointsOfOrder/holding-meetings.rst

Holding meetings
================

.. _meeting-requirements:

What are the requirements for a valid meeting?
----------------------------------------------

There are roughly 4 requirements that must be met for a valid meeting to be held:

* there must be *authority* to hold the meeting
* proper *notice* needs to be given of the meeting
* there must be a *quorum* present at the meeting
* the meeting must be presided over by a *Chair*\ [#fn1]_

In this chapter, we will examine each of these in turn.

There are also a number of other more obscure technical requirements for a meeting – for example, that it must not be an ‘unlawful meeting’, and there must be an ‘intention’ to hold a meeting. We reserve these discussions for the legal textbooks.\ [#fn2]_

Authority
---------

A meeting must be convened with the requisite authority, in a manner compliant with all applicable requirements.

In the case of a public meeting, any individual or group of individuals may decide to convene such a meeting.\ [#fn3]_

In the case of an established body, the rules of the body should prescribe who is permitted to convene a meeting, and the manner in which this must be performed. For example, the rules may specify that the Chair or Secretary may convene a meeting. The rules of many bodies also specify that a particular number of members may convene (or may require the convening of) a meeting.

Subject to those rules, the body may, by resolution, authorise another person (such as the Secretary) to convene meetings.\ [#fn4]_

It is also within the power of a court, exercising equitable jurisdiction, to order that a meeting be held.\ [#fn6]_

Since the question of authority speaks to the very validity of the meeting itself, any defects will be difficult to cure – a meeting which is inherently invalid has no way validating itself. Requirements for authority are interpreted by courts strictly, and so all applicable rules should be observed precisely, or the meeting may be invalid.\ [#fn5]_

However, if a meeting is attempted to be convened without authority, but the requisite authority ratifies that action in advance of the meeting, the meeting is deemed valid as regards authority.\ [#fn11]_

.. _notice:

Notice (and agenda)
-------------------

Notice must be given
^^^^^^^^^^^^^^^^^^^^

*Notice* that a meeting will be held must be given to meeting participants. Unless the rules otherwise provide, the notice must be given to every member of the body.\ [#fn9]_

The notice must contain, at a minimum:

* the time and place of the meeting\ [#fn12]_
* the general nature of the business to be transacted\ [#fn7]_
* a reference to whose authority the notice is given under\ [#fn8]_ – for example, ‘By order of the Board’

The reference to ‘general nature’ means that, unless the rules otherwise provide, it is not necessary to exactly describe every particular motion or matter that will be considered.\ [#fn16]_

.. comment
	The traditional wording for giving notice of a meeting goes something along the lines of:
	
		*Notice is hereby given*\ [#fn44]_ *that the annual general meeting of ACME Ltd will be held at 12:00 pm on 31 July 2021, at 42 Wallaby Way, Sydney NSW 2000. The business at the meeting will be as follows: …*
	
	[#fn44] What does ‘Notice is hereby given’ even mean? The fact that the document gives notice of the meeting should be self-evident, and how else is notice given if not ‘hereby’! See also :mref:`‘Plain English’ <plain-english>`.
	
	A more modern alternative might be:
	
		*The annual general meeting of ACME Ltd will be held:*
		
		* *Time: 12:00 pm*
		* *Date: 31 July 2021*
		* *Venue: 42 Wallaby Way, Sydney NSW 2000*
		
		*The business at the meeting will be: …*

Notice defines the scope of the meeting
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

The business described in the notice defines the permissible scope of the meeting, and the meeting may not then deal with matters outside that scope.\ [#fn17]_ Unless the rules require stricter notice, the inclusion of ‘other business’ or ‘general business’ in the notice enables routine or minor items to be considered.\ [#fn18]_

How must notice be given?
^^^^^^^^^^^^^^^^^^^^^^^^^

The notice must be given in a way that can ‘reasonably be expected to come to the attention’ of the members. The notice must be received sufficiently in advance to enable members a ‘reasonable opportunity’ to attend.\ [#fn14]_

The notice is usually given in writing. However, unless the rules require it, written notice is not required at common law, and notice could instead be given, for example, orally or by telephone.\ [#fn39]_

.. index:: clear days

In addition, the rules of a body generally prescribe a certain minimum time between the sending of the notice and the date of the meeting. When the rules prescribe a certain number of ‘days’ (or ‘clear days’) notice, that is exclusive of both the day of issuing the notice and the day of the meeting. Weekends and holidays are counted as ordinary days.\ [#fn15]_

Notice of regular meetings
^^^^^^^^^^^^^^^^^^^^^^^^^^

If meetings are held frequently, at regular intervals – for example, as is the practice of many boards or committees – individual notice of every meeting does not need to be given, so long as all members of the body, including new members, understand and agree.\ [#fn13]_

Inability to cancel or amend notice
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

At common law, once notice is given of a meeting, the meeting cannot be cancelled, and the notice cannot be amended, unless this is specifically permitted by the rules.\ [#fn19]_

As this may be a convenient power to have, the author recommends that a body's standing orders should enable notice of a meeting to be cancelled or amended.

Defective notice
^^^^^^^^^^^^^^^^

As with authority, requirements regarding notice are applied by courts strictly, and all requirements should be observed, or the meeting may be invalid.\ [#fn5]_

However, if all members of the body are present at the meeting and agree to waive the absence of proper notice, the meeting is deemed valid as regards notice.\ [#fn10]_

.. index:: agenda

.. _agenda:

Agenda
^^^^^^

The *agenda*\ [#fn21]_ (or *agenda paper*) is a document setting out specifically the order and items of business to be discussed at a meeting. The agenda is a separate concept to the notice, and there is no requirement at common law to prepare an agenda,\ [#fn20]_ but it is usual that an agenda be sent (if available at that time) with notice of a meeting.

The typical items appearing on an agenda are described in more detail in :mdoc:`‘The order of business’ <order-of-business>`.

.. index:: quorum

Quorum
------

The *quorum* is the minimum number of people who must be present at a meeting in order for the meeting to be valid. A meeting with insufficient attendees is known as *inquorate*, and the meeting is said to have *lapsed*.

The rules of a body should specify what the quorum for its meetings is. If no quorum is specified, then at common law:

* for a general meeting of a corporation, the quorum is a majority of the members of the corporation\ [#fn22]_

..

* for a general meeting of an unincorporated association, the quorum is the entire membership of the association (unless there is a longstanding custom to the contrary)\ [#fn23]_

..

* for a committee, the quorum is the entire membership of the committee\ [#fn24]_

.. index:: proxy; counted towards quorum

If proxy voting is permitted, then unless the rules provide otherwise, proxies are not considered in determining whether a quorum is present – only those personally present are counted towards the quorum.\ [#fn25]_

If proxy voting is permitted, the rules do permit proxies to be counted towards quorum, and the quorum is more than 1, then unless the rules otherwise provide, there must still be at least 2 people personally present. This is based on the general principle that a meeting must consist of more than 1 person.\ [#fn25]_

If certain members are prohibited by the rules from voting on a matter, those members do not count towards the quorum during that matter.\ [#fn26]_

Some rules, including the former *Companies Act 1981* (Cth),\ [#fn27]_ provide that a quorum is required ‘at the time when the meeting proceeds to business’. Under such a rule, a meeting that commences with a quorum may validly continue even if quorum is later lost.\ [#fn45]_

However, in the absence of such a rule, the general rule is that the quorum must be present at all times throughout the meeting,\ [#fn28]_ and any business conducted without a quorum present will be invalid.\ [#fn29]_ As soon as it is discovered that quorum has been lost, the Chair should close (or, if permitted under the rules, adjourn) the meeting.\ [#fn30]_

.. index:: Chair

.. _chair:

Chair
-----

Every meeting must be presided over at all times by a *presiding officer*, who exercises procedural control.\ [#fn34]_ The presiding officer is generally known as the *President* or, more generally, *Chair* (or *Chairman*, *Chairwoman* or *Chairperson*). When addressing the presiding officer directly, they are traditionally addressed *Mister Chair* or *Madam Chair*, though the author prefers the simple *Chair*.\ [#fn43]_

In this book, we use the term *Chair* to refer to the person who chairs a meeting, and, when necessary to make a distinction, the term *chair* to refer to the seat or office occupied by the Chair.\ [#fn33]_

Who is the Chair?
^^^^^^^^^^^^^^^^^

The rules of the body should specify who is to be the Chair of its meetings, or how the Chair is to be appointed or elected. If the rules do not specify, or the Chair is absent, the first item of business will be to elect a Chair.\ [#fn35]_

Procedures for conducting an election are described in greater detail in :ref:`‘Elections’ <elections>`.

.. index:: Chair; role

.. _role-of-chair:

Role of the Chair
^^^^^^^^^^^^^^^^^

The Chair has the responsibility, among other things, for:

* being satisfied that the meeting is :ref:`validly convened <meeting-requirements>` and that a quorum is present at the outset

..

* ensuring a quorum is present throughout the meeting, if one is required

..

* administering proceedings in accordance with the :ref:`rules and conventions <contemporary-requirements>` that apply to the meeting

..

* recognising members who wish to speak, and controlling the right to speak

..

* maintaining order and decorum

..

* ruling on procedural questions and disagreements

..

* administering votes and determining the outcome of votes\ [#fn38]_

The role of the Chair in each of these areas is explored in greater detail in following chapters.

The Chair, when discharging these duties, should be regarded as a servant of the meeting, not as its ruler. The Chair should be impartial, and act in a bona fide way on every issue. It is highly improper for a Chair to misuse their power to pursue their personal agenda.

To this end, the Chair should avoid participating in debate (except in occasional circumstances, such as to offer factual information, or keep the discussion on topic), and should avoid moving or seconding motions (unless the subject is completely uncontentious).

Failure to discharge duties
^^^^^^^^^^^^^^^^^^^^^^^^^^^

If the Chair fails to discharge their duties correctly, it is open to members to raise a :mref:`point of order <point-of-order>`, move :mref:`dissent <dissent>` or, if absolutely necessary, move to :mref:`replace the chair <no-confidence>`.

One would hope that the situation would never become so severe as to require even further escalation, but it could be that the Chair improperly refuses to accept these recourses. Courts have held that, without authority from the rules, the Chair ‘cannot refuse to put motions which are in order under those rules’.\ [#fn41]_

There does not appear to be any Australian authority on what can be done (other than commence legal action) if the Chair does refuse, but North American authorities provide that if the Chair ignores a point of order or appeal (dissent) made by a member, the member may themselves put the question to the meeting.\ [#fn42]_

If it comes to be that the Chair improperly purports to adjourn the meeting and leave, despite a clearly indicated intention by members to dissent and continue the meeting, the purported adjournment will be invalid, and the meeting may elect a new Chair and continue.\ [#fn40]_

.. rubric:: Footnotes

.. [#fn1] :ref:`Lang 2015 <horsley>`, ¶1.22. ‘A valid meeting needs to comply with all relevant requirements’, ‘proper notice needs to be given of the meeting, a quorum must be present, and a Chair … should preside’.
.. [#fn2] See e.g. :ref:`Lang 2015 <horsley>`, ch. 1.
.. [#fn3] :ref:`Magner 2012 <joske>`, ¶2.05.
.. [#fn4] :ref:`Lang 2015 <horsley>`, ¶4.3.
.. [#fn6] :ref:`Magner 2012 <joske>`, ¶2.05; *Ball v Pearsall* (1987) 10 NSWLR 700.
.. [#fn5] :ref:`Lang 2015 <horsley>`, ¶4.2; *R v Fulton* `(1876) 2 VLR (Eq) 100 <http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VicLawRp/1876/83.html>`_.
.. [#fn11] :ref:`Lang 2015 <horsley>`, ¶4.3; *Hooper v Kerr, Stuart & Co Ltd* `(1900) 83 LT 729 <https://heinonline.org/HOL/P?h=hein.selden/lwtrpt0086&i=805>`_.
.. [#fn9] :ref:`Lang 2015 <horsley>`, ¶4.4; *Symes v Weedow* `(1893) 14 ALT 197 <https://heinonline.org/HOL/P?h=hein.journals/ausianlati14&i=200>`_; *Campbell v Higgins* (1957) 3 FLR 317.
.. [#fn12] :ref:`Lang 2015 <horsley>`, ¶4.9; *Wishart v Foster* (1961) 4 FLR 72.
.. [#fn7] :ref:`Lang 2015 <horsley>`, ¶4.1.
.. [#fn8] :ref:`Lang 2015 <horsley>`, ¶4.3; *R v Fulton* `(1876) 2 VLR (Eq) 100`_.
.. [#fn16] :ref:`Lang 2015 <horsley>`, ¶4.16; *Colhoun v Green* `[1919] VLR 196 <http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VicLawRp/1919/18.html>`_.
.. [#fn17] :ref:`Lang 2015 <horsley>`, ¶4.17; :ref:`Magner 2012 <joske>`, ¶3.10.
.. [#fn18] :ref:`Lang 2015 <horsley>`, ¶4.18; :ref:`Magner 2012 <joske>`, ¶3.10.
.. [#fn14] :ref:`Lang 2015 <horsley>`, ¶4.11; :ref:`Magner 2012 <joske>`, ¶3.25.
.. [#fn39] :ref:`Lang 2015 <horsley>`, ¶4.15; *Browne v La Trinidad* `(1887) 37 Ch D 1 <http://www.commonlii.org/uk/cases/UKLawRpCh/1887/191.html>`_; *Wilson v Manna Hill Mining Co Pty Ltd* `[2004] FCA 912 <https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2004/2004fca0912>`_.
.. [#fn15] :ref:`Lang 2015 <horsley>`, ¶4.12; :ref:`Magner 2012 <joske>`, ¶3.30; *Re Railway Sleepers Supply Co* `(1885) 29 Ch D 204 <http://www.commonlii.org/uk/cases/UKLawRpCh/1885/120.html>`_; *Ex parte McCance; Re Hobbs* `(1926) 27 SR (NSW) 35 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWStRp/1926/82.html>`_; *Ayres v Chacos* (1972) 19 FLR 468; *Labouchere v Earl of Wharncliffe* `(1879) 13 Ch D 346 <http://www.commonlii.org/uk/cases/UKLawRpCh/1879/316.html>`_.
.. [#fn13] :ref:`Lang 2015 <horsley>`, ¶4.10; :ref:`Magner 2012 <joske>`, ¶3.25.
.. [#fn19] :ref:`Lang 2015 <horsley>`, ¶4.19; *Bell Resources Ltd v Turnbridge Pty Ltd* (1988) 13 ACLR 429; *McPherson v Mansell* (1994) 16 ACSR 261; *McKerlie v Drillsearch Energy Ltd* (2009) 74 NSWLR 673.
.. [#fn10] :ref:`Lang 2015 <horsley>`, ¶4.7; *Machell v Nevinson* `(1809) 103 ER 936 <http://www.commonlii.org/uk/cases/EngR/1809/9.pdf>`_; *Johnson v Beitseen* (1988) 41 IR 395.
.. [#fn21] Eagle-eyed readers may note that ‘agenda’ is plural in Latin. In English, it is effectively universally used as a singular noun. Each individual item contained in the agenda is typically referred to as an *agenda item* rather than, as the Latin would suggest, an ‘agendum’.
.. [#fn20] :ref:`Lang 2015 <horsley>`, ¶3.2.
.. [#fn22] :ref:`Lang 2015 <horsley>`, ¶5.4; *Merchants of the Staple of England v Bank of England* `(1887) 21 QBD 160 <http://www.commonlii.org/uk/cases/UKLawRpKQB/1887/173.html>`_, 165.
.. [#fn23] :ref:`Lang 2015 <horsley>`, ¶5.4; *Ball v Pearsall* (1987) 10 NSWLR 700.
.. [#fn24] :ref:`Lang 2015 <horsley>`, ¶5.4; *Re Liverpool Household Stores Association* `(1890) 59 LJ Ch 616 <https://babel.hathitrust.org/cgi/pt?id=coo.31924064811684&view=1up&seq=630&skin=2021>`_.
.. [#fn25] :ref:`Lang 2015 <horsley>`, ¶5.8.
.. [#fn26] :ref:`Lang 2015 <horsley>`, ¶5.10.
.. [#fn27] |CompAct|_, Sch. 3, reg. 42.
.. [#fn45] :ref:`Lang 2015 <horsley>`, ¶5.11; *Re Hartley Baird Ltd* [1955] Ch 143.
.. [#fn28] :ref:`Lang 2015 <horsley>`, ¶5.11; *Henderson v Louttit* `(1894) 31 SLR 555 <https://www.bailii.org/scot/cases/ScotCS/1894/31SLR0555.html>`_; *Ball v Pearsall* (1987) 10 NSWLR 700.
.. [#fn29] :ref:`Lang 2015 <horsley>`, ¶5.11, ¶5.13. This differs to the practice in North America under *Robert's Rules*, where an inquorate meeting can continue to transact certain procedural business – namely, to fix the time to which to adjourn, adjourn, recess or take measures to obtain a quorum, as well as relevant subsidiary or incidental motions, questions of privilege, or motions to call for the orders of the day: :ref:`Robert et al. 2020 <ronr>`, ¶40:7.
.. [#fn30] :ref:`Lang 2015 <horsley>`, ¶5.11. This differs to the practice in the Australian Parliament, and in North American meetings under *Robert's Rules*, where a quorum is presumed to be present, and business transacted without a quorum is not invalid until the lack of quorum is noticed by, or brought to the attention of, the Chair: :ref:`Lang 2015 <horsley>`, ¶5.13; :ref:`Robert et al. 2020 <ronr>`, ¶40:12; :ref:`Elder et al. 2018 <horp>`, p. 272.
.. [#fn34] Even in small, informal meetings where procedural control moves fluidly from person to person, there must at all times, unless all are unanimous, be some person responsible for ‘enabl[ing] the wish or decision of the meeting to be ascertained’: :ref:`Lang 2015 <horsley>`, ¶6.1; *Colorado Constructions Pty Ltd v Platus* `[1966] 2 NSWR 598 <https://nswlr.com.au/view-pdf/1966-2-NSWR-598>`_.
.. [#fn43] See, for example, Anna Burke, who as Speaker of the Australian House of Representatives preferred the address ‘Speaker’ (as opposed to ‘Madam Speaker’).
.. [#fn33] The distinction is necessary only occasionally; for example, in the motion :subref:`LeaveChair <vacate-chair>`.
.. [#fn35] :ref:`Magner 2012 <joske>`, ¶6.10.
.. [#fn38] :ref:`Lang 2015 <horsley>`, ¶6.10.
.. [#fn41] :ref:`Lang 2015 <horsley>`, ¶6.5; *Wishart v Henneberry* (1962) 3 FLR 171.
.. [#fn42] :ref:`Robert et al. 2020 <ronr>`, ¶62:8–9.
.. [#fn40] :ref:`Magner 2012 <joske>`, ¶¶6.85, 11.20; *Shaw v Thompson* `(1876) 3 Ch D 233 <http://www.commonlii.org/uk/cases/UKLawRpCh/1876/209.html>`_; *Wishart v Henneberry* (1962) 3 FLR 171; *Catesby v Burnett* [1916] 2 Ch 325; *National Dwellings Society v Sykes* `[1894] 3 Ch 159 <http://www.commonlii.org/uk/cases/UKLawRpCh/1894/119.html>`_.

.. |CompAct| replace:: *Companies Act 1981* (Cth)
.. _CompAct: https://www.legislation.gov.au/Details/C2004A02466

.. |LeaveChair| replace:: ‘*That the Chair leave the chair*’