Access to society and charity records

The joys of writing these articles

I enjoy writing these articles 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 Court decisions I either have not been aware of or have overlooked.  That occurred when this article was first posted online, where I discussed a South Australian decision, McKay v Australian Alpaca Association (1997) 69 SASR 218, which dealt with a member’s request to access to a society’s records.  A reader emailed me, drawing attention to another Australian decision of which I was well-aware, but had overlooked; New South Wales decision, Grogan v McKinnon [1973] 2 NSWLR 290.

Background facts in Grogan v McKinnon

A New South Wales decision, Grogan v McKinnon [1973] 2 NSWLR 290, is cited several times in my text, Law of Societies, and the decision discussed a short but then novel point concerning the right of a member of an unincorporated club to have access to the membership records of that club. The Plaintiff wanted access to the club’s membership records to advance his candidature for the position of club president, but the club’s committee refused access to those membership records in response to a request made by the plaintiff.

The club’s constitution and rules contained no specific provision governing a membership register, although the Court noted that it was obvious that such a register would have to be kept in order to enable the affairs of the club to be conducted.

There was nothing in the rules which either conferred on an individual member a right to inspect or to be furnished with details of membership, nor any provision that denied a member any such right.  In those circumstances the Court had to decide whether a member of the club who was an intending candidate for office, should have a right to have access to or to be furnished with details of the entries in the club’s membership records.

Where constitutional or legislative guidance is lacking

The Judge noted that:

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

The judgment concluded as follows:

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 – but our Courts usually recognise that there is also a contractual relationship.
  • 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 have often drawn 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 (between a member and the society, or between different members) as being merely contractual.  The current Incorporated Societies Bill does not address that issue.

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.”  It would be fantastic if those values were found in all incorporated societies.

Proposed new Incorporated Societies Act 

Clauses 74-77 of the Incorporated Societies Act Bill introduced into Parliament in April 2021 provide that members should have enhanced rights of access to society information.  However, the proposed statutory provisions will entitle a society to refuse a request if, for example, withholding the information is necessary to protect a person’s privacy, disclosure would prejudice the commercial position of the society or another person, or the request is frivolous or vexatious. 

For specific advice about issues discussed in the article you can contact Mark at

This is one of a series of articles on societies and charitable trusts by Mark von Dadelszen, a lawyer and author of Members’ Meetings, 3nd Edition, 2012, and Law of Societies, 3nd Edition, 2013 (both texts being in the course of editing for 4th editions to be published after the new Incorporated Societies Act is enacted).