In Lawrence v Melbourne Football Club Ltd [2022] VSC 658, the Supreme Court of Victoria ordered that email addresses maintained as part of a members’ register must be provided under section 173 of the Corporations Act 2001 (Cth) (the Act). The Court reasoned that section 169(1)(a) of the Act requires a members’ register to contain any email address nominated by a member for the purposes of company communications.
The decision is a win for shareholder activists and reverses the policy position taken in the debate on the Corporations Amendment (Modernisation of Members Registration) Bill 2017 (considered below). With shareholder activism in resurgence and cyber and data abuses on the rise, it remains to be seen whether the decision strikes an appropriate balance between competing interests.
Summary of the decision
Melbourne Football Club is a company limited by guarantee. The plaintiff, a member of the Club, requested a copy of the Club’s members’ register under section 173 of the Act for the purpose of communicating with members in relation to a proposal to amend the Club’s constitution. In response, the Club provided a copy of the register but did not include members’ email addresses in that copy on the basis that section 169 of the Act does not specifically or expressly require email addresses to be maintained. However, as a matter of fact, the Club outsourced the operation of its members’ register to a third party platform which contained a range of member data including physical addresses, email addresses and dates of birth.
The plaintiff successfully sought a declaration that the Club provide a copy of the register in Excel spreadsheet format that listed the names and email addresses of members.
In granting the plaintiff the requested declaratory relief, the Court reasoned that the requirement under section 169(1)(a) for the register to contain members’ addresses includes an obligation to contain, not only the residential address, but any address nominated by the member for the purposes of communications relevantly including electronic addresses.
Amongst other things, the Court reasoned that the legislative purpose of section 169 and related provisions in the Act is to facilitate communication with members and in that context section 169 should be interpreted to require the maintenance of email addresses, if nominated by members, and not merely physical addresses.
Observations
The decision is surprising for a number of reasons.
First, section 169 does not refer to email addresses specifically, but requires a company to maintain a register containing the “member’s name and address”.
Second, the decision appears to go further than other cases (including MDA National Limited v Medical Defence Australia Limited (No 2) [2014] FCA 1071) which had reasoned that if a company maintained additional information in a register of members such as an email address provided with a member’s consent, then that information must be handed up if requested under section 173.
Third, the decision is at odds with the basis on which the unsuccessful Corporations Amendment (Modernisation of Members Registration) Bill 2017 had proceeded. That Bill proceeded on the basis that sections 169 and 173 do not refer to email addresses and therefore a change in the Act was – according to the proponents of the Bill – necessary to require companies to include email addresses in members’ registers. As set out in the Report of the Economics Legislation Committee, the Bill was not supported for a number of reasons, including that mandating the maintenance of email addresses in members’ registers under section 169 raised privacy and practical issues.
