Andrews v Queensland Racing Ltd (No 3) [2009] QSC 366

1-1 [2009] QSC 366 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION McMURDO J No 9471 of 2009 WILLIAM BERNARD ANDREWS Plaintiff and QUEENSLAND RACING LIMITED (ACN 116 735 374) Defendant BRISBANE ..DATE 13/11/2009 JUDGMENT -- 1 of 5 -- 1-2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: In proceedings 9471 of 2009, I order that the respondent, Queensland Racing Limited, be restrained from acting upon any shortlist provided by Northern Recruitment Proprietary Limited in the process of the selection and appointment of directors to take place in 2009 and that there be liberty to apply. The application made by Queensland Racing Limited is also the subject of reasons which I am about to publish, but as there appears, I would be assisted by further submissions before making orders upon that application. I publish the reasons for judgment. ... HIS HONOUR: In my reasons for judgment published earlier this afternoon I identified an issue for further submissions which arose in the application by QRL. I have had the benefit of submissions from counsel for QRL and Mr Andrews on that matter. It appears to be accepted that the alternative course which I have raised in my written reasons might be undertaken consistently with the constitution and with the Act if an order is made under section 1322(4)(d) to extend the time for the holding of an annual general meeting from that required by section 250N. It is common ground that the requirement within that section for the holding of a meeting requires the annual general meeting not only to commence but to conclude. -- 2 of 5 -- 1-3 JUDGMENT 1 10 20 30 40 50 60 The proposal, under which the AGM would consider all relevant business but for this business of the appointment of directors and would then be adjourned to a later date to permit the steps under clause 17 to be completed, would require the concurrence of the members. That is because clause 11 of the constitution empowers the chairman to adjourn the annual general meeting with the consent of the members present and requires him to do so if so directed by those members. The possibility exists that members, for whatever reason which may or may not have something to do with the interests of the company, may decline to consent to such an adjournment of the meeting for the purpose of having the matter of the directorships dealt with at a later date. Should that occur, well then the meeting would commence and conclude next Tuesday and that inevitably would mean that the vacancies would not be then filled according to the constitution because, by reason of the orders previously made and the orders made by me this afternoon, there would not have been compliance with the steps required by clause 17 by then. In that event, the way to fill the vacancies according to the constitution would seem to be that which is presently proposed by the company. However, the preferable course is that under which the AGM would be adjourned after the disposition of the other business, as I have suggested in my published reasons. The main reason why I regard that as preferable is that it involves the least interference with the company's -- 3 of 5 -- 1-4 JUDGMENT 1 10 20 30 40 50 60 constitution and in particular the process of the rotation of directors next year and in following years. The course which I will take this afternoon is to extend the time for the holding of the annual general meeting pursuant to section 1322(4)(d) of the Corporations Act until 21 December 2009 and I so order. I will stand over the company's application until 9.30 A.M. on 19 November 2009, by which time the outcome of the meeting will be known, i.e., it will be known whether it has been adjourned or whether orders will have to be made to the end of another so-called annual general meeting to be held in the next month or so. I should also record that there was some debate this afternoon as to the time which would be required for the company to comply with clause 17 given that it will not be able to use the services of Northern Recruitment Proprietary Limited. Understandably Queensland Racing does not wish to suggest a timetable which is unrealistically brief. But I do not presently accept that the process could not be completed by 21 December. In particular, I was told that there might be a delay caused by probity checks being undertaken in relation to other candidates. Of course there is to be no readvertisement. According to her Honour's orders the short list is to be compiled by reference to the 26 applications received already. It is far from demonstrated that the work which would be involved in such checks would delay this process as is feared. -- 4 of 5 -- 1-5 JUDGMENT 1 10 20 30 40 50 60 The precise timing of the steps to be undertaken under clause 17 would, I hope, be the subject of agreement between the present parties by Thursday's hearing. If it has to be argued however, I will then decide it. The outcome on the company's application for today is the order I have made under section 1322 in relation to the holding of the annual general meeting and the adjournment, as I have said, until next Thursday at 9.30. There remain questions of costs upon the two applications. ... HIS HONOUR: It will be ordered in the application by Mr Andrews that his costs of that application be paid by Queensland Racing Limited. You don't require reasons for that costs order? MR DERRINGTON: No - no we don't, your Honour. Is that to be assessed on the standard basis, your Honour? HIS HONOUR: That is to be assessed on the standard basis. That's the result of not saying anything about the basis. ----- -- 5 of 5 --