Access to society and charity records – Revisited

Joys of Writing this Column

I enjoy writing this column as issues arise where the answers are often uncertain or obscure.  Some articles provoke responses raising further questions or advancing other points of view, or draw attention to authority I either have not been aware of or have overlooked.

I discussed a South Australian decision, McKay v Australian Alpaca Association (1997) 69 SASR 218, dealing with a member’s request to access to a society’s records in my last article “Access to society and charity records”.  That morning a reader emailed me, drawing attention to another Australian decision of which I was aware, but had overlooked.  This earlier New South Wales decision in Grogan v McKinnon [1973] 2 NSWLR 290 is cited three times in my text, Society Law, and one footnote expressly discusses the conclusion that a candidate for office in a society should be permitted access to the member’s register to advance his candidacy.  Because the judgment of Street C.J. in that case explains the rationale for that conclusion and further explains why a member should be allowed to access a society’s records, extracts from the judgment are set out below.

Background facts in Grogan v McKinnon

This case raises a short but novel point concerning the right of a member of an unincorporated club to have access to the membership records of that club. …

The facts are not in dispute.  There is no challenge to the correctness of the Plaintiff’s assertion that it is in aid of his candidature for the position of president that he seeks to have access to the membership records.  Nor it is disputed that this is a legitimate purpose so far as the plaintiff is concerned. …

At a committee meeting held on 8th August 1973, the committee refused access to the membership records in response to a request made by the plaintiff, and the defendants maintain through to the present time their opposition to membership details being furnished to the plaintiff.

The constitution and rules contain no specific provision governing a members’ register.  It is, however, obvious that such a register would have to be kept in order to enable the affairs of the club to be conducted.  …

There is nothing in the rules which either confers upon an individual member a right to inspect or to be furnished with details of membership, nor which denies to a member any such right.  The constitution and rules are entirely silent upon the point.  The sole question which arises for determination is whether a member of the club in a position such as that occupied by the present plaintiff, that is to say, an intending candidate for office, should be regarded as having a right to have access to or to be furnished with details of the entries in the membership records of the club.

Where constitutional or legislative guidance is lacking

Neither counsel has been able to discover in the course of his researches any authority casting light upon the question that arises for determination.  It is accordingly to be decided in the light of basic principles, drawing as may be appropriate by way of analogy upon the principles governing partnerships and incorporated companies.  In the case of both partnerships and companies there is statutory recognition of the right of a member to be furnished with details of memberships, either by way of inspection of the records, in the case of partnerships, or by way of being furnished with an extract, in the case of companies.  This, in my view, indicates a recognition by the legislature that a member of a body of persons bound together by contract who seeks in a legitimate pursuit of a course of action open to him within that contract to have access to records kept on behalf of that body of persons, should be accorded that aid of the court in the enforcement of such an inspection.  The fact that no express contractual right is conferred within the present constitution and rules is undoubtedly relevant, but not decisive.

Conclusion in Grogan v McKinnon

Where, as here, the constitution and rules are entirely silent, and where there is a provision enabling any member to stand for an office such as president, then in my view the law should recognise a right in a member to have access to such of the records of the club as he may necessarily need to have access to in the due pursuit of his objective of standing for election as president.

On the facts of the present case there is not, as I have already noted, any denial that the purpose of which the plaintiff wishes to have access to these records is to purpose essentially and solely for his candidature as president.  This is a legitimate purpose, and he is entitled to have access to the membership records that are necessary for him to see in order fairly to pursue his candidature for that office.

Societal jurisprudence

Relying on Finnigan v New Zealand Rugby Football Union Inc [1985] 2 NZLR 159 (CA), 177, Kos J. in Tamaki v Māori Women’s Welfare League Incorporated [2011] NZAR 605 at [6] stated that while a society “is a private body, with a constitution that takes effect as a contract as between its members, it is also a society incorporated under the Incorporated Societies Act 1908” (see also [43] and [44]).  This highlights three points:

  • In jurisdictions where there is no legislation (as in the UK) most earlier court decisions seemed to involve disputes in gentlemen’s clubs, but even where there is legislation providing for incorporation, societies may chose not to register, in which case no statute will apply directly.  In the absence of applicable legislation, the English courts have long rationalised the relationships between club and society members as being contractual.  In contrast, we have had, for a very long time, statutes providing for the incorporation of societies (the Incorporated Societies Act and its predecessors, the Charitable Trusts Act, and other legislation dealing with the agricultural and pastoral societies  and industrial and provident societies).
  • Society members clearly have a relationship with each other.  That relationship is generally exercised socially and through democratic processes.
  • Resolving issues in societies often requires resort to principles and concepts not found in their constitutions or in any statute.

Because the law of societies set out in our legislation is (currently) somewhat sparse, New Zealand judges often draw on principles derived from contractual principles.  Personally, I find contractual analogies neither necessary nor particularly helpful when the issues involve constitutional interpretation and democratic principles.  In my view, the formation and operation of a society involve far more complex concepts than can be captured by characterising relationships as being merely contractual (between a member and the society, or between different members).  Will the current reconsideration of the Incorporated Societies Act by the Law Commission grasp that nettle?

Māori values may, perhaps, inform our understanding of societies, with the judgment in Tamaki affirming that there can be more to a society and its constitution than a contract.  Kos J. said “The constitution is a broadly cast document.  Although last amended in 2008, it is stronger on conceptual values than on prescriptive, procedural detail.  The constitution therefore needs to be construed in accordance with the core underlying values of the League.  Respect, manaaki (embrace) and tautoko (support) are at the heart of the tikanga of the League.”

This is one of a series of articles on societies and charitable trusts (originally published in the NZ Lawyer magazine) by Mark von Dadelszen, a Hastings lawyer and author of Law of Societies, 3rd Edition, 2013. If any reader has examples of issues that have arisen or questions about societies or charitable trusts that might be a suitable subject for one of these articles please contact Mark at mark.vondadelszen@bvond.co.nz.