Are electronic addresses nominated by members considered part of the members register
16 December 2022
16 December 2022
A recent decision has determined that electronic addresses provided by members for the purposes of communications with a company form part of the company's member's register and, therefore, must be provided when a valid request for a copy of the register is received by a company.
Melbourne Football Club (the Club) was a registered company limited by guarantee. The plaintiff was a member of the Club who requested inspection of the Club’s register for the purpose of providing all voting members with information before the members voted on the proposed amendments to the constitution proposed by the board of the Club. A copy of the register was provided but this did not contain email addresses for members.
The Club would not provide email addresses on the basis that the information did not comprise part of the register and was not required to be maintained under the Corporations Act. The Court was asked to determine whether the word ‘address’ in s 169(1) of the Corporations Act 2001 Cwlth (Act) included any electronic addresses nominated by a member.
Section 169(1) of the Act with respect to general requirements of the register provides:
The register of members must contain the following information about each member:
(a) the member’s name and address;
(b) the date on which the entry of the member’s name in the register is made.
The Court found that the requirement under s 169(1)(a) of the Act for the register to contain the member’s address includes an obligation to contain, not only the residential address, but any address nominated by the member for the purposes of communications including electronic addresses on the basis of the following:
(a) The fact that s 169(1)(a) of the Act refers to singular ‘address’ is not inconsistent with a requirement that the Register record more than one address, if more than one address is nominated by the member. Section 23 of the Acts Interpretation Act 1901 (Cth) provides that ‘words in the singular number include the plural’.
(b) Address is a normal English word which, when used as a noun, has a variety of meanings. The relevant definition in the Macquarie Dictionary contains two meanings ‘a place where a person lives or [a place where a person] may be reached’.
(c) The Act contemplates that:
(i) a person, who inspects the register, may use the information to communicate with members providing it is for a proper purpose as described in s 177(1A) of the Act; and
(ii) a company may use an ‘electronic address (if any) nominated by a member’ for the purpose of receiving notifications of meetings.
(d) The principal purpose for a member nominating an address is to permit communications and receipt of notices relevant to the company’s affairs. Accordingly, in the opinion of the Court, the legislative intent of requiring the register to contain the address of the member is to record the addresses, whether physical, electronic or otherwise, which the member has nominated for the purposes of receiving communications.
The Court found that to limit the meaning of ‘address’ to a residential address in s 169, may substantially interfere with the legislative intention of permitting a person, who has inspected the register, to communicate with the members for an approved purpose, for the following reasons:
(a) The cost and inconvenience of mailing communications to numerous members of a corporation is substantially greater than communicating by email.
(b) In parts of Australia, and overseas, delivery services are not available to residential addresses. Such persons rely upon post office boxes, roadside delivery and in more recent times electronic addresses, for the purposes of receiving communications.
(c) The fact that the legislature did not intend the word ‘address’ to be limited to a residential address, when used generally in the Act, is apparent from s 205D of the Act because the subsection provides that a person’s address for the purposes of a notice or application under the specified subsections must be their ‘usual residential address’. The specified subsections do not include s 169 of the Act, and it is to be observed that no similarly limited meaning of address is prescribed for s 169.
(d) It would be incongruous for the Act to permit a company to record one address in the official register; but then record a second address on another register, particularly when it is the latter address that the company uses for the purpose of communications with its members.
The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
Readers should take legal advice before applying it to specific issues or transactions.